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By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

Contingent Liabilities

Calculating a party’s net family property (“NFP”) under s. 4(1) of the Family Law Act (“FLA”) involves deducting their debts and liabilities from their assets. The onus of proving a deduction is on the party claiming it: Family Law Act, RSO 1990, c F.3, ss 4(1) & 4(3).

The Court of Appeal for Ontario has confirmed that when determining a party’s NFP for the purpose of equalization under s. 5 of the FLA, “contingent liabilities are to be taken into account as long as they are reasonably foreseeable”: Greenglass v. Greenglass, 2010 ONCA 675 (CanLII), at para 26.

There is some overlap in the principles concerning contingent liabilities and debts which are not contingent but may never be repaid: Zavarella v. Zavarella, 2013 ONCA 720 (CanLII), at para 33. This blog post focuses on the former. For a summary of the case law on interfamilial loans, where courts often discount loans on the basis they may not be repaid, check out Lam Family Law’s post: Gifts or Loans? Decoding the Intent Behind Parental Generosity.

Reasonable Foreseeability of the Liability

“The reasonable foreseeability of the liability is determined at the valuation date, not the date of the trial”: Peerenboom v. Peerenboom, 2020 ONCA 240 (CanLII), at para 67, citing Greenglass v. Greenglass, 2010 ONCA 675 (CanLII), at para 27.

However, if the debt crystallized shortly after separation, this supports an argument that the liability was reasonably foreseeable as of the valuation date. For example, in Murray v Bortolon (2016), the wife personally guaranteed a $100,000 loan for the husband’s corporation. The corporation defaulted during the marriage and the litigation to collect on the wife’s personal guarantee was outstanding on the date of separation. The wife’s exposure under the personal guarantee was 80% of the loan. After separation, the creditor obtained an order on a summary judgment motion that the wife was liable for 80% of the loan, plus interest. Justice Emery found that the wife was entitled to claim the full amount of the judgment for the purposes of calculating her NFP because the “liability was not only reasonably foreseeable when the parties separated, it was imminent.”: Murray v Bortolon, 2016 ONSC 5164 (CanLII), at paras 79-80 & 83 [note that there were other contingent liabilities claimed in this case].

However, Justice Emery only allowed the wife to claim 50% of the legal costs awarded against her at the summary judgment motion. The court explained that while the wife owed the husband’s corporation costs of $40,000, “the hearing of the motion occurred approximately seven months after the date of separation, [and] an unknown portion of those costs had not yet been incurred” on the date of separation: Murray v Bortolon, ibid, at para 84.

Valuing the Contingent Liability

For equalization purposes, the court values a contingent debt based on the probability that it will be collected. To determine a realistic value of a debt, the court must consider the “reasonable likelihood that the debt will ever be paid” and may discount the face value “where the evidence indicates it is unlikely that the debtor will ever be called upon to pay”: Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII), at para 89, citing Zavarella v. Zavarella, 2013 ONCA 720 (CanLII), at paras 38-39.

Hindsight evidence should not be relied on in determining the value of a contingent asset or liability. The court must calculate the value based on information that existed as of the valuation date. The only permissible use of hindsight evidence is to confirm assumptions that were made on the valuation date: C.Z. v. J.Y., 2021 ONSC 256 (CanLII), at paras 151-152.

Where the contingent liability is a future judgment, the “court has observed that it may be necessary to have expert opinion evidence to arrive at the present value”: Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII), at para 90, citing Sheikh v. Sheikh, 2010 ONSC 1407 (CanLII), at para 47; supplementary reasons at 2010 ONSC 2985 (CanLII).

Case Examples

In Roach v. Lashley (2018), the husband was reassessed by the CRA prior to separation and told that he owed back taxes of approximately $37,500. He appealed the reassessments, but the issue was not resolved by the time of the family law trial. The husband “did not testify as to the probability of collection by the CRA on this debt or the probability of his objection being allowed”. Further, the husband provided “little or no evidence” regarding the validity of the objection “other than to say that there were numerous other people in Canada objecting to the reassessment of this particular tax scheme and that the matter remains involved in litigation to the present day.” Thus, on a “somewhat arbitrary” basis, Justice McDermot allowed the husband to claim 50% of the value of the debt to address the potential collection on his claim: Roach v. Lashley, 2018 ONSC 134 (CanLII), at paras 95-97.

In Oudeh v. Prior-Oudeh (2021), the husband sought to deduct a contingent liability of $250,000 from his NFP for an unresolved estate claim by his late mother’s estate against his interest in the matrimonial home. The claim was ten years old at the date of separation and had “not moved beyond the pleadings stage.” The husband had not taken any steps to have the estate litigation action dismissed or to remove the Certificate Pending Litigation from the title of the matrimonial home. Justice Kimmel noted that “[t]his lack of progress may inform the assessment of the foreseeability or probability of the applicant [husband] being found liable to pay anything in the estate litigation.”: Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII), at paras 85, 86(e), 87, & 90.

The husband “did not call any expert or other evidence to suggest that there is any reason to believe that he can be expected to be ordered to pay anything in the estate litigation.” Considering the merits of the estate claim, Justice Kimmel found that there was “a very low risk” of the husband being held liable. Therefore, the court found it could not “place anything other than a nominal value on this contingent claim”. The court allowed the husband to deduct $25,000 as a contingent liability against his NFP, recognizing that this was “an arbitrary but nominal amount”: Oudeh v. Prior-Oudeh, ibid, at paras 95-96.

In Zunnurain v Chowdhury (2024), the husband owned a Bangladesh-based company, with outstanding bank debts of approximately CAD $21.9M, for which the wife had given a personal guarantee. The wife met her burden of proving that there was a real possibility on the date of separation that the creditors would call on her to pay the debts. She provided evidence demonstrating that she was liable for these debts, including a demand letter from the bank to the husband, on which she was copied, and advice she had received from her civil lawyer. Though the wife omitted the debts from her financial statement, her pleadings noted her concerns. The court accepted her explanation for her omission, namely that the husband was trying to sell the business with its liabilities at the time: Zunnurain v Chowdhury, 2024 ONSC 5552 (CanLII), at paras 12, 138, 142-143, & 147; supplementary reasons at 2025 ONSC 143 (CanLII).

Nevertheless, the court deemed the wife’s risk low, as she was “only a guarantor,” the bank had sued only the husband, significant time had passed, and her Bangladeshi assets were liquidated, making potential enforcement costly. Similarly, the husband’s risk was low due to the passage of time and his relocation to Canada. Despite the low risk, the court allowed the wife a 25% deduction and the husband a 50% deduction, given the bank’s resources and incentive to pursue large debts: Zunnurain v Chowdhury, ibid, at paras 148-151.

Practice Points

• When preparing your client’s Financial Statement, inquire about any contingent liabilities or debts your client may have had as of the date of marriage and date of separation.
• Assess whether a claimed contingent liability was reasonably foreseeable on the relevant date.
• Gather evidence about the realistic value of the claimed contingent liability. Depending on the circumstances, this may include evidence regarding the likelihood that your client would ever be called upon to pay and/or expert evidence to help value the liability.

*with thanks to Rebecca Winninger for her suggestions and edits.

By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law, and
Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law*

In a previous blog post, “Appealing an Interim Order to the Divisional Court, Part 1: The Test for Leave to Appeal”, Rebecca Winninger discussed the strict test for leave to appeal from an interim order, to help counsel advise their clients about whether or not to seek leave, and any alternatives they should consider before doing so.

This second instalment continues on the subject of seeking leave to appeal from an interim order, focusing on the logistical steps that must be taken once the decision to seek leave has been made.

Applicable Rules and Practice Direction

Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194, apply to proceedings in the Divisional Court.

Rule 62 deals with appeals from interlocutory/interim orders. Within that Rule, r. 62.02 (Motion for Leave to Appeal) provides the framework to seek leave to the Divisional Court from an interim order made in the Superior Court of Justice, as well as final cost orders from the Superior Court of Justice (note: most other leave motions in the Divisional Court are governed by r. 61.03).

However, Rule 62.02 cannot be read in isolation – it incorporates parts of r. 61.03.1 (Motion for Leave to Appeal to Court of Appeal), which in turn draws on parts of r. 61.03 (Motion for Leave to Appeal to Divisional Court).

Rule 37 (Motions) also applies generally to motions in an appellate court, with necessary modifications: r. 61.16.

The Divisional Court has a detailed and helpful Consolidated Practice Direction (effective June 15, 2023), which specifically discusses motions for leave to appeal under r. 62.02 at Part I, Section E. It is important to review the Consolidated Practice Direction in full, including the sections on commencing proceedings and filing materials.

Deadline to Serve the Notice of Motion for Leave to Appeal

The Notice of Motion for leave to appeal must be served within 15 days after the order is made: r. 62.02(3), incorporating r. 61.03.1(3)(a).

Use Form 37A for the Notice of Motion, with any necessary modifications.

It is crucial to meet this deadline, as the Divisional Court will not necessarily grant an extension. As discussed in Part 1 of this blog, the court’s goal is to move the case forward, and the Divisional Court has said that an extension “may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial”: MacMillan v. Klug, 2024 ONSC 1125 (CanLII), at para 16.

Location

Motions for leave to appeal under r. 62.02 must be commenced at the Toronto Divisional Court: Consolidated Practice Direction, Part I, para 3a.

Next Steps: Filing, Intake Form, and Email to Include a Schedule

The Notice of Motion must be filed with proof of service within 5 days after service: r. 62.02(3), incorporating r. 61.03.1(3)(b) & Consolidated Practice Direction, Part I, para 2.

The Divisional Court’s Intake Form (found here) must also be completed and filed with the Notice of Motion: Consolidated Practice Direction, Part I, para 2. While the Practice Direction does not expressly require service of the Intake Form, we believe that it is best practice to also serve the Intake Form.

Within two weeks of filing the Notice of Motion, the parties must email the court to advise of any preliminary issues, the proposed hearing length, and provide a draft proposed or agreed schedule for exchanging court documents: Consolidated Practice Direction, Part I, para 26.

The Divisional Court greatly encourages the parties to work out a consent schedule for exchanging court documents. In the event the parties cannot agree, the court may schedule a case management conference to work out the schedule with a judge, or a case management judge may simply give directions, which are orders of the court and which are typically communicated to the parties by email. Any timetable or deadline set through case management supersedes the timelines set out in the Rules of Civil Procedure: see Consolidated Practice Direction, Part I, paras 33-35.

Motion for Stay Pending Appeal

In parenting cases, it is generally necessary to seek a stay of the interim order pending the hearing of the leave motion, to avoid creating a new status quo. You can bring a stay motion either in the Superior Court or the Divisional Court: r. 63.02(1).

A substantive discussion of stay motions is beyond the scope of this blog. But note that you must indicate the intention to seek a stay “at the earliest opportunity, generally when first contacting the court to request a hearing”: Consolidated Practice Direction, Part I, para 37. This means you should mention the stay in the Intake Form and preliminary email which the parties must send to the court (both discussed above). The court may decide to hold a case conference, and the case management judge may grant or decline the stay by case management direction, or may direct that a stay motion be brought: Consolidated Practice Direction, Part I, paras 37-38. The takeaway is that it is possible to obtain a stay without bringing a motion, so you should communicate with the court before preparing motion materials.

Main Motion Materials

After the Intake Form and subject to any other motions (such as a motion to stay), the next step on the main motion for leave to appeal is for the moving party is to prepare the following materials:

• Motion Record and Transcripts, if Any: For the contents, see r. 62.02(5), incorporating rr. 61.03.1(4) & 61.03(2). The Motion Record must contain the issued and entered order from which leave to appeal is sought: Consolidated Practice Direction, Part I, para 25b. In addition, it must include costs submissions respecting the motion for leave to appeal if costs are sought. The costs submissions should include the proposed quantum of costs (win or lose) and a Costs Outline (Form 57B): Consolidated Practice Direction, Part I, para 25c.
• Factum: For the contents, see r. 62.02(5), incorporating rr. 61.03.1(4)-(5), & 4.06.1. Ensure that Part IV of the Factum directly addresses and applies the test for leave to appeal. The Factum should not argue the merits of the appeal, nor treat the leave motion as a “re-hearing of the original motion”: Kadolph v. Kadolph, 2015 ONSC 3047 (CanLII) (Div Ct), at para 6 & Fatahi-Ghandehari v. Wilson, 2018 ONSC 5988 (CanLII) (Div Ct), at para 20.
• Book of Authorities (if any): For the contents, see r. 4.06.1(5). A Book of Authorities is not required if hyperlinks to free public websites are provided in the Factum for all authorities: r. 4.06.1(4) & Consolidated Practice Direction, Part IV, para 9.

The timeline under the Rules of Civil Procedure is that the moving party’s Motion Record, Factum, and Book of Authorities must be served and filed within 30 days after the filing of the Notice of Motion for leave to appeal: r. 62.02(5), incorporating r. 61.03.1(6).

The responding party’s timeline under the Rules of Civil Procedure is that their materials must be filed with proof of service within 25 days after service of the moving party’s Motion Record and other documents: rr. 62.02(5) & 61.03.1(10).

But remember that these timelines may be changed by the parties’ consent or by case management.

Uploading Documents to Case Center

All materials should be uploaded to Case Center as soon as practicable after receiving the Case Center link, and at least four weeks before the hearing date: Consolidated Practice Direction, Part III, paras 2, 5a, & 5m.

The Leave Motion Hearing

The motion will be heard in writing, without the attendance of parties or lawyers, unless the court decides that an oral hearing is required: rr. 62.02(2) & 62.02(5), incorporating r. 61.03.1(15).

Costs

Costs submissions must be included in each party’s Motion Record if costs are being sought: Consolidated Practice Direction, Part I, para 25c.

However, it is quite typical to agree upon an amount for costs. Unless the court has directed an earlier deadline, the parties must upload the agreement they have reached on costs, or their Bills of Costs or Costs Outlines, at least one week before the hearing: Consolidated Practice Direction, Part III, para 5(k.).

The Divisional Court tends to award $5,000 in costs (all inclusive of HST and disbursements) to the successful party on a motion for leave to appeal, but the amount can be lower or higher depending on the circumstances: Bressi v. Skinulis, 2023 ONSC 4917 (CanLII), at para 10 & 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (CanLII), at para 5.

Managing the Case While Awaiting the Decision

A motion for leave to appeal “ought not bring the proceedings below to a halt.” Parties “can and should be able to proceed where doing so would be in compliance with the rules and any existing orders that have not yet been set aside.” If there is no “statutory stay or a formal stay order from the court, an appeal to [the Divisional Court] of an interlocutory order should not halt – or even slow – proceedings in the court below”: Spagnolo v. Spagnolo, 2023 ONSC 5780 (CanLII), at para 22.

Next Steps if Leave is Granted

If leave is granted, serve and file the Notice of Appeal (Form 61A.1) within 7 days after the granting of leave: r. 62.02(5), incorporating r. 63.03.1(16). Review rr. 61.04-61.11 closely, as well as the Consolidated Practice Direction.

*with thanks to Kayleigh Pink for her suggestions and edits. The steps in this blog post were also heavily drawn from Lam Family Law’s Family Law Appeal Checklist (Div Ct).

By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law*

When a client receives an unfavourable decision from a Superior Court judge at the interim stage, they may wish to appeal, but they cannot do so without leave from the Divisional Court: Courts of Justice Act, RSO 1990, c C.43, s 19(1)(b).

Whether to seek leave to appeal an interim order is a difficult decision to make. On the one hand, in family law – and particularly in parenting cases – an interim decision can effectively decide the case. On the other hand, the threshold for leave to appeal an interim order in family law is very high and the test is strict.

The Divisional Court has discouraged appealing interim orders on numerous occasions, and this is an important consideration to explain to your client when seeking instructions. Courts want to move matters forward to trial, and appeals of interlocutory orders run contrary to that goal: see, e.g., Lokhandwala v. Khan, 2019 ONSC 634 (CanLII) (Div Ct), at para 5 & Bergen v. Sharpe, 2011 ONSC 1930 (CanLII) (Div Ct), at paras 42 & 45-46.

The test is found at r. 62.02(4) of the Rules of Civil Procedure, RRO 1990, Reg. 194. Leave will not be granted unless:

• (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
• (b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. [underlining and bolding added]

The test involves two possible branches upon which leave may be granted: paragraph (a) or paragraph (b). Both branches involve a two-part test, and in each case, both aspects of the two-part test must be met before leave may be granted: Carone v. Peel Condominium Corporation No. 766, 2016 ONSC 7821 (CanLII) (Div Ct), at para 7.

Paragraph (a)

Under the first part of paragraph (a), the moving party must establish that there is a “conflicting decision”. This refers to a difference in the principle chosen as a guide to the exercise of discretion. There may be other cases in which judges, on similar facts, have made different decisions, but that is not enough to satisfy the test. The other decisions must be based upon different legal principles or legal tests: Kadolph v. Kadolph, 2015 ONSC 3047 (CanLII) (Div Ct), at paras 9-10. See also A.H. v. L.W., 2014 ONSC 7486 (CanLII) (Div Ct), at para 20.

Establishing that there is a conflicting court decision is not sufficient unless it is also desirable that leave to appeal be granted. The former does not necessarily lead to the latter: A.H. v. L.W., ibid, at para 18.

Paragraph (b)

Under paragraph (b), for there to be “good reason to doubt the correctness” of the decision, it is not necessary to determine whether the decision was wrong or probably wrong, or whether the court hearing the leave motion would have decided differently. Instead, the test is whether the decision is open to serious debate: Judson v. Mitchele, 2011 ONSC 6004 (CanLII), at para 15.

Under the second prong of paragraph (b), “Matters of sufficient importance are ones that extend beyond the interests of the litigants and relate to matters of public importance and to the development of the law and the administration of justice”: Judson v. Mitchele, ibid, at para 16.

An “issue that rises beyond the interim interests of the particular litigants” is generally required under either paragraph (a) (desirable that leave be granted) or paragraph (b) (matters of sufficient importance)

The Divisional Court does not typically give reasons on a motion for leave to appeal, but in Lokhandwala v. Khan (2019), the court took the opportunity to address “a continuing pattern of unmeritorious motions for leave to appeal temporary support orders”. The motions judge had ordered the father to pay spousal and child support to the mother, without acknowledging that the children spent half their time with the father. The motions judge did not apply a s. 9 offset, or explain why he was not applying an offset: Lokhandwala v. Khan, 2019 ONSC 6346 (CanLII) (Div Ct), at paras 2-3.

The Divisional Court did not grant leave, explaining that in family law, errors in temporary orders “are almost always better addressed at trial rather than by interlocutory appeal”. While there may be reason to doubt the correctness of the order, that does not satisfy the second prong of paragraph (b) – that the proposed appeal is of “such importance” that leave should be granted. Nor does it make it “desirable that leave to appeal be granted” under paragraph (a). Under either branch of the test set out in R. 62.02(04), “the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice”. Even then, “leave will still not usually be granted where that issue will still be available for appellate adjudication after trial”: Lokhandwala v. Khan, ibid, at paras 4-5 [underlining added], citing various cases.

While support amounts can be corrected at trial, with credit given for any overpayment, it may be difficult for a client to hear that they will have to wait to correct an erroneous support amount. In the meantime, the affordability of the payments may be problematic.

Where the interim order involves parenting issues, the Divisional Court may be somewhat more flexible in finding that the matter is one of public importance, given that interim orders “often create a status quo that is difficult to alter at trial”: Mudry v. Danisch, 2014 ONSC 4335 (CanLII) (Div Ct), at paras 155-156.

The Divisional Court has also said that it will rarely grant leave to appeal from case conference, case management, or scheduling decisions, although there are exceptions: Spagnolo v. Spagnolo, 2023 ONSC 5780 (CanLII) (Div Ct), at para 18.

Alternatives to a Leave Motion

Instead of bringing a motion for leave to appeal, you may wish to push the matter towards a final resolution, which is typically a trial. The trial judge has unfettered discretion and can make a substantially different order after a full investigation of the facts.

Or, consider bringing a motion to change the order under r. 25(19) of the Family Law Rules. This rule allows the court that made the order to change it, on a motion, in limited circumstances, including where the order “(b) contains a mistake;” or “(c) needs to be changed to deal with a matter that was before the court but that it did not decide”. A “mistake” in the context of paragraph (b) has generally been interpreted narrowly, to refer only to “a typographical error, a misstatement of what was actually endorsed by the court, or where it does not correctly reflect the common intention of the parties”: Samama v. Gaskovski, 2021 ONSC 7110 (CanLII), at para 20, citing various cases.

For a recent example where the court commented on the interplay between seeking leave to appeal versus bringing a r. 25(19) motion and interpreted a “mistake” in the context of r. 25(19)(b) a bit less narrowly, see Gee v. Gee (2024). In that case, the motion judge ordered the Children’s Aid Society to conduct a s. 30 assessment, but a Children’s Aid Society is not a “person who has technical or professional skill” to prepare a s. 30 report. The Divisional Court denied the motion for leave to appeal from the order, observing that both parties agreed the motion judge had made a mistake, and that this was “the sort of mistake that can and should be corrected on a motion in the Court below under Rule 25(19)(b) of the Family Law Rules”: Gee v. Gee, 2024 ONSC 6343 (CanLII) (Div Ct), at paras 1-2.

*with thanks to Vanessa Lam for her suggestions and edits.

By Kayleigh Pink, Associate Research Lawyer, Lam Family Law, and
Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law

Surreptitious recordings (aka secret recordings) usually refer to audio or video recordings made by one person, without the other person’s consent or knowledge.

In family law proceedings, these recordings often involve a party recording conversations between themself and the other party/parent, the child(ren), or third-party professionals.

A surreptitiously obtained recording may also be illegally obtained / a criminal offence pursuant to s. 184(1) of the Criminal Code if the person recording it intercepts private communications in which they are not a participant, such as by placing a recorder in the other party’s vehicle or home. However, s. 184(2)(a) effectively states that s. 184(1) does not apply if the party recording the conversation is one of the participants to the conversation: Criminal Code, RSC 1985, c C-46, ss. 184(1) & (2)(a). See also N. v N., 2015 ONSC 3921 (CanLII), at para 36.

Concerns Weighing Against Admitting Surreptitious Recordings

The two main concerns frequently cited by the courts that weigh against admitting surreptitious recordings are: (a) public policy; and (b) reliability.

(a) Public Policy

The Court of Appeal for Ontario has recognized that there are “sound public policy” reasons to discourage the use of secretly recorded conversations in family law proceedings: Sordi v. Sordi, 2011 ONCA 665 (CanLII), at para 12.

For example, condoning the secret recording of parties in family law matters would be “destructive” to what courts and professionals working with families are attempting to accomplish in a constructive family law case, which includes trying “to rebuild trust so that the parties can learn to act together in the best interests of the child.”: Hameed v. Hameed, 2006 ONCJ 274 (CanLII), at para 11.

In other words, “routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.”: Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII), at para 40.

(b) Reliability

In Tillger v. Tillger, 2019 ONSC 1463 (CanLII), at para 64, Justice Richetti held that some common concerns about reliability include:

• (i) The recording may not accurately reflect or provide context to the events or conversations they purport to depict;
• (ii) The recording may not accurately reflect the typical behaviour of the person being recorded[;]
• (iii) The recording likely reflects the “artificial” conduct of the party recording because the recorder has knowledge the recording is being made and may be used in the future;
• (iv) The recording can easily be edited, removing important parts or the entirety of segments which reflect badly on the recorder or reflect well on the person being recorded;
• (v) The recording can be selectively chosen from a number of recordings;
• (vi) The recording likely does not reflect the entire interaction or the context of the interaction;
• (vii) The recording may not reflect the typical interactions between the parties recorded but only demonstrate an isolated incident;
• (viii) The recorded incident may [have] been “provoked” by the recorder to cause the recorded party to make illicit, ill-advised statements or behave in an inappropriate manner; and
• (ix) The recording may have been staged by the recorder to include negative surroundings such as having children present during an argument.

For the court to admit recordings into evidence, the recordings “must accurately depict facts, they have to be verified by the person who made the recording, and there must be an absence of any intention to mislead.”: L.D. v. A.E., 2020 ONCJ 417 (CanLII), at para 52, citing various cases.

Presumption Against Admitting Surreptitious Recordings

In Hameed v. Hameed (2006), Justice Sherr reviewed some of the concerns and policy reasons that justified strongly discouraging the use of surreptitious recordings in family law proceedings, and concluded that the party seeking the admission of a surreptitious recording “should establish a compelling reason for doing so.”: Hameed v. Hameed, 2006 ONCJ 274 (CanLII), at paras 11-13 [underlining added].

In Van Ruyven v. Van Ruyven (2021), Justice Kurz noted that, since Hameed v. Hameed was decided, the court was now regularly provided with secret recordings. Most of the time, the recording is an edited or selectively recorded version of a highly contentious argument between the parties: Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII), at para 39.

After reviewing the policy reasons for discouraging secret recordings, Justice Kurz held that the “courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it.” This presumption can only be rebutted where the recording provides evidence (1) “disclosing serious misconduct by a parent”, (2) “significant risk to a child’s safety or security”, or (3) “a threat to another interest central to the need to do justice between the parties and children”: Van Ruyven v. Van Ruyven, ibid, at para 41. Followed in numerous cases: see, e.g., Kidd v Mokrenko, 2024 ONSC 4002 (CanLII), at para 36; Sadikali v. Sadikali, 2023 ONSC 4639 (CanLII), at para 10; & Melek v. Mansour, 2022 ONSC 6688 (CanLII), at para 116.

The court has also recognized that this presumption against admitting the recording “is arguably and appropriately even more difficult to rebut when the recordings are of professionals working with the family.”: Wilson v. Sinclair, 2022 ONSC 820 (CanLII), at para 19 [underlining added], citing various cases.

Recent Example Case

In Kidd v Mokrenko (2024), the presumption against admitting a surreptitious recording of the parties prevailed for one video, but was successfully rebutted for another video. The mother sought to file two video recordings as evidence of the father’s “drinking and abusive behaviour”. Justice Cook acknowledged that both videos were “presumptively inadmissible” and that their “prejudicial effect… is presumed to outweigh their probative value in family law proceedings except in the most limited circumstances”: Kidd v Mokrenko, 2024 ONSC 4002 (CanLII), at paras 35-36.

The first video appeared to show “a male individual”, who the mother claimed was the father, “lying face down on a bed, in his underwear, weeping despondently”. The mother did not identify when she made the video, the video was undated, and the audio was “barely intelligible”. Justice Cook found that this video had no probative value and was inadmissible: Kidd v Mokrenko, ibid, at para 38.

In contrast, the second video consisted primarily of the mother “yelling at and berating the [father] in the presence of the child.” After being berated for about four minutes, the father yelled back, using inappropriate language. When the mother then told the father she was recording him, the father did not respond and walked away with the child in his arms. “Despite the very serious public policy concerns engaged in admitting the surreptitious recording into evidence”, Justice Cook admitted this second video “because it is probative to the issues of the [mother’s] credibility, family violence, and the parties’ ability and willingness to communicate and co-operate with one another on matters affecting the child.”: Kidd v Mokrenko, ibid, at para 40.

As in some of the cases discussed further below, the admission of this evidence backfired on the mother who sought to admit the evidence. Justice Cook found that the mother’s claim that she recorded her argument with the father “for her safety” was simply not credible. Instead, the court found that the mother made the recording to exercise control and gain tactical advantage over the father. Her denigration of the father in front of the child fit within the definition of family violence: Kidd v Mokrenko, ibid, at para 41-42, citing various cases.

Caution: Surreptitious Recordings can Backfire on the Recording Party

Even if the court finds that a surreptitious recording is admissible, it may not be used in the manner that the party intended. For example, in S.C.H. v. S.R. (2023), the father sought to have several video recordings, at least some of which were surreptitious, admitted as evidence at trial. The father sought to have these videos admitted to show the mother’s problematic behaviour, such as her behaving in a violent manner or putting a child at risk. Justice Finlayson admitted these videos, but not for the purposes set out by the father. Rather, these recordings were admitted because of the mother’s claim of family violence and coercive control: S.C.H. v. S.R., 2023 ONSC 4928 (CanLII), at paras 594-600, 613, 625, 633, & 642; subsequent motion regarding financial issues at 2023 ONSC 1549 (CanLII).

Similarly, in K.M. v. J.R. (2022), surreptitious recordings were admitted, but the court did not rely on them in the way intended by the parties. In this case, both parties provided the court with surreptitious recordings. Uniquely, the parties consented to the recordings being admitted. One of the videos provided by the father was a 30-second recording of a private conversation between him and the child. He introduced the video to show how unhappy the child was before going to see his mother. Justice Pazaratz found that this “video was heart-breaking but not for the reasons the father intended”. For example, the recording “was an overt evidence gathering mission” by the father “to elicit specific statements from a trusting and distressed child”. Overall, Justice Pazaratz found that the parents in this case had “become so obsessed with gathering damaging evidence against one another that they have lost track of the devastating consequences of their actions on the child.”: K.M. v. J.R., 2022 ONSC 111 (CanLII), at paras 194-195 & 207-209; subsequent motions and motions to change at 2024 ONSC 1338 (CanLII).

Practice Points

• Understand the policy reasons and presumption against surreptitious recordings and explain it, and the types of exceptions that may apply, to your client.
• Remember your own duty to advise your client of their duty to, to the best of their ability, protect any child from conflict arising from the proceeding and their duty to act in a manner that is consistent with the best interests of the child.
• Consider the circumstances and full context of any surreptitiously recorded evidence to assess any reliability issues.
• Consider the relevance and probative value of the recording, whether the recording was obtained illegally, and whether the recording could backfire on the person seeking to admit the recording.
• If your client wants to admit the recording as evidence, ensure that the person who made the recording can verify/authenticate the circumstances and integrity of the recording. The process of establishing authenticity and integrity is beyond the scope of this blog post, but you should understand how to properly introduce the recording and the applicable provisions of the Evidence Act. See e.g., Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII), at paras 58-61 & Lenihan v. Shankar, 2021 ONSC 330 (CanLII), at paras 216-222.

By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

Looking for some key child protection cases from 2024 to keep in your back pocket?

The following annotated list will help you navigate the legislation and highlights some key 2024 cases to read (or re-read). For the cases, the annotations include paragraph links to CanLII and annotations in bullets to explain the main issue addressed (i.e., why you should look at this case).

Relevant Legislation

1.    Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 (“CYFSA”).
2.    Family Law Rules, O Reg 114/99 (“FLR”).
3.    An Act respecting First Nations, Inuit and Métis children, youth and families, 2019, SC 2019, c 24 (“Federal Act”).

Enforcement Motions

4.    Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93 (CanLII), Nordheimer J.A., for the panel.

• Trial judges retain jurisdiction to hear enforcement motions: paras 22-28.
• Under the FLR, R. 1(8) motions to enforce can be brought in child protection proceedings: paras 10-14, 28, & 30.
• Test for reasonable apprehension of bias reviewed: paras 18-21.

         Read our previous blog post on this case here.

Timing Issues: e.g. Delay, Counting Days, Adjournments, Time Limits, Extending Time

5.    Sarnia-Lambton Children’s Aid Society v. N.S., 2024 ONCJ 391 (CanLII), Pawagi J.

• Noteworthy comments on delay in child protection proceedings and “10 concrete actions” to avoid it: paras 280-286.

6.    Two (conflicting) Ontario Court of Justice cases that deal with counting days:

a. Anishinaabe Abinoojii Family Services v. S.B.-M., 2024 ONCJ 89 (CanLII), MacKinnon J.

• Method of counting days as per R. 3(2) of the FLR does apply to CYFSA matters: paras 8-15.
• Failure in first apprehension to abide by timelines set out in s. 88 of the CYFSA did not thwart court’s jurisdiction following second apprehension: paras 26-36.

b.    Children’s Aid Society of the Districts of Sudbury and Manitoulin v. K.P., 2024 ONCJ 180 (CanLII), Jenner J.

• Method of counting days as per R. 3(2) of the FLR does not apply to CYFSA matters: paras 1-5.
• Weekends count when counting days under s. 88 of the CYFSA: paras 14-56.

7.    Children’s Aid Society of the Niagara Region v. Tanguay et al., 2024 CanLII 27335 (ON SC), MacNeil J.

• Extending time to apply for openness orders; application of parens patriae: paras 14-23, 26-37; & 41-44.

8.    A. K. v. Family and Children’s Services of Guelph and Wellington County, 2024 ONSC 296 (CanLII), Petersen J.

• Unsuccessful appeal from summary judgment motion dealing with denial of adjournment request: paras 20-35.
• Alleged reliance on inadmissible hearsay: paras 36-47.
• Alleged misapplication of s.122(1) of CYFSA [time limits for interim society care]: paras 48-54.

Transfer of Venue

9.    Children’s Aid Society of Toronto v. H.G., 2024 ONCJ 337 (CanLII), Sherr J.

• Overview of relevant legal considerations for transfer motions; transfer ordered: paras 37-45 & 56.

10.    CAS v. B.T. and R.C. et al, 2024 ONSC 2238 (CanLII), Daurio J.

• Society lacked territorial jurisdiction where child did not reside in and was not present in jurisdiction, and was not in immediate danger; transfer ordered: paras 30-49 & 59.

11.    The Children’s Aid Society of Ottawa. v. L.M-L.B. et al., 2024 ONSC 348 (CanLII), Audet J.

• Court cannot transfer proceedings outside of Ontario; Society can, subject to internal procedures and policies; no transfer ordered: paras 13-18.

Other Procedural Issues

12.    Children’s Aid Society of Algoma v. C.D., 2024 ONCJ 167 (CanLII), Mendes J.

• Unsuccessful motion by parent for access to information relating to child: paras 3 & 18-29.

13.    Children’s Aid Society of the Districts of Sudbury and Manitoulin v. P.B., 2024 ONCJ 621 (CanLII), Jenner J.

• Notice to children over 12 years of age, party status: paras 3-10.

14.    Nogdawindamin Family and Community Services v. J.N., 2024 ONCJ 376 (CanLII), Jenner J.

• Various issues arising with self-represented litigants, including challenge to jurisdiction: paras 21-25, last-minute trial adjournment request: paras 26-30, phone communication during trial: paras 36-43, and evidence admissibility concerns: paras 48-56.

15.    Children and Family Services for York Region v. B.T. and R.S., 2024 ONSC 2179 (CanLII), Bale J.

• Admissibility of police records: para 175.

16.    Children’s Aid Society of the Districts of Sudbury and Manitoulin v. M.S., 2024 ONCJ 604 (CanLII), Jenner J.

• When CAS may withdraw its application: paras 6-8 & 22-32.

17.    Dnaagdawenmag Binnoojiiyag Child and Family Services v. G.K., 2024 ONSC 3018 (CanLII), Bruhn J.

• Overview of summary judgment principles: paras 52-61.

18.    Family and Children Services of St. Thomas and Elgin v. S.A., J.W. and Caldwell First Nation, 2024 ONSC 2740 (CanLII), Price J.

• Test to vary interim order: paras 12-14 [also below under “Indigenous Children”].

Indigenous Children

19.    Family and Children Services of St. Thomas and Elgin v. S.A., J.W. and Caldwell First Nation, 2024 ONSC 2740 (CanLII), Price J.

• Relationship between CYFSA and Federal Act; Federal Act has paramountcy where any conflict: paras 15-20 [also above under “Other Procedural Issues”].

20.    The Children’s Society of Ottawa v. N.D., 2024 ONSC 6200 (CanLII), Jensen J.

• Mini-trial on whether children were Inuit: paras 7-17.

21.    Nogdawindamin Family and Community Services v. C.M. (Deceased), 2024 ONCJ 329 (CanLII), Mendes J.

• Whether to add former customary caregivers as party; interaction with Federal Act: paras 19-29 & 33-56.

The Charter

22.    Children’s Aid Society of Toronto v. J.A.L., 2024 ONCJ 146 (CanLII), Sherr J.

• Child protection proceedings engage Charter implications for a “vulnerable segment of our society”; cautious approach required before proceeding on summary basis: paras 26-30.

23.    Simcoe Muskoka Child, Youth and Family Services v. J.M.W., 2024 ONSC 1396 (CanLII), McDermot J.

• Application of s. 13 of Charter (protection against self-incrimination): paras 11-37.

Ancillary Orders and Miscellaneous

24.    Children’s Aid Society of Toronto v. M.O., 2024 ONCJ 26 (CanLII), Sherr J.

• Courts have jurisdiction to make temporary travel orders (dispensing with a party’s consent to the child travelling internationally): paras 20-40.

25.    Children’s Aid Society of Toronto v. A.V.G., 2024 ONCJ 157 (CanLII), O’Connell J.

• Society needs court authorization to withdraw life support for a child in its temporary care: paras 1 & 102-131.

26.    A.R.P. v. Children’s Aid Society of London and Middlesex, 2024 ONSC 4023 (CanLII) (Div Ct).

• Review of criteria for secure treatment program order: paras 2-9 & 49-58.

27.    Catholic Children’s Aid Society of Toronto v. W.-D., 2024 ONCJ 150 (CanLII), Kapurura J.

• Determining who had charge of a child for purposes of a temporary care and custody hearing: paras 42-49.

28.    Catholic Children’s Aid Society of Toronto v. C.S., 2024 ONCJ 393 (CanLII), Pawagi J.

• Educational neglect and lack of attendance at school as risk of harm: paras 36-66.

*with thanks to Rebecca Winninger, Vanessa Lam, and Sierra Larmand for their suggestions and edits.

By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

When a court order or an agreement for child support includes a requirement to make annual financial disclosure and adjustments, but the payor ignores these obligations, what is the recipient’s recourse?

In many cases, a recipient will seek a motion for retroactive support dating back to the date of the first adjustment. However, a growing body of case law confirms that where a recipient is seeking only to increase support based on the terms of the court order or what the parties agreed to, this is more appropriately framed as an “enforcement motion” rather than a motion for retroactive support.

This article discusses the difference between retroactive child support and enforcing unpaid increases to child support orders, and why the correct framing of the request matters.

Presumptive Approach to Child Support

Child support is the right of the child, and parents have a financial obligation to their children arising at birth and continuing after separation. Under the Federal Child Support Guidelines, the payor is “always under a free-standing legal obligation – independent of any court order – to pay child support commensurate with income”: Colucci v. Colucci, 2021 SCC 24 (CanLII), at para 36, citing D.B.S. v. S.R.G., 2006 SCC 37 (CanLII).

Retroactive Child Support

Retroactive awards involve “enforcing past obligations”. Unlike prospective child support awards, retroactive awards “implicate the delicate balance between certainty and flexibility”: D.B.S. v. S.R.G., ibid, at para 2.

For retroactive child support claims, the court must consider the following non-determinative factors: (a) the recipient’s excuse for not seeking support sooner; (b) the payor’s conduct in relation to their support obligation; (c) the needs and circumstances of the child; and (d) the hardship to the payor of a retroactive award: Sondhi v. Sondhi, 2022 ONSC 202 (CanLII), at paras 18-20, citing D.B.S. v. S.R.G., ibid; leave to appeal ref’d, Sondhi v. Sondhi, 2022 ONSC 1510 (Div Ct).

The recipient’s delay in seeking support is a complex issue, and this concept was recently refined by the Supreme Court of Canada: see, e.g., Abumatar v. Hamda, 2021 ONSC 2165 (CanLII), at para 55, citing Michel v. Graydon, 2020 SCC 24 (CanLII).

Even where a claim for retroactive support is made out, however, D.B.S. v. S.R.G. (2006) (“D.B.S.”) establishes that generally, a retroactive child support order should commence as of the date of effective notice that a request is being made for an adjustment to child support. In most cases, it will be inappropriate to make a support award retroactive to a date more than three years back from when formal notice was given of the requested change (the “three-year rule”): D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), at para 123.

Enforcing Annual Increases in a Previous Order or Agreement

Where there is already an existing order or agreement with respect to child support, a claim based on the explicit or implicit (in the form of disclosure requirements) adjustments to that support are not a retroactive claim.

Instead, the issue in such cases is more appropriately characterized as enforcing unpaid child support orders.

Why does this matter?

Because the threshold is much higher for a motion for retroactive support and, as noted by Justice Chappel in a number of cases, requiring recipients to meet the criteria for a claim for retroactive support when they are, in fact, seeking enforcement, “places an unfair burden on the recipient to jump legal hoops to pursue rights that they have already been granted”: see Meyer v. Content, 2014 ONSC 6001 (CanLII), at para 61 & MacEachern v. Bell, 2019 ONSC 4720 (CanLII), at para 103.

Ontario Case Law

Justice Chappel thoroughly addressed this issue in Meyer v. Content (2014) and more recently in MacEachern v. Bell (2019). In both cases, Her Honour found that where an existing order or agreement establishes an obligation to increase table child support in accordance with increases in income, a subsequent variation proceeding by the recipient to pursue the increased amount “is more akin to an enforcement proceeding” than a claim for retroactive support. As such, neither the D.B.S. criteria nor timing guidelines apply: Meyer v. Content, ibid, at para 61; MacEachern v. Bell, ibid, at paras 44-45 & 103.

In D.B.S., the threshold test evolved primarily out of the Supreme Court of Canada’s concern for the payor’s need for predictability and certainty, and the hardship that could result from an unexpected retroactive claim: MacEachern v. Bell, ibid, at para 103; Meyer v. Content, ibid, at para 61.

These concerns about predictability and certainty “do not arise” where an agreement or order clearly sets out the payor’s obligation to make increases to table support and they fail to do so. In such circumstances, the payor should instead bring a cross-motion to vary the order and the onus should be placed “unequivocally” on the payor to satisfy the criteria for retroactively varying and reducing their support obligation. The D.B.S. threshold would only apply to a claim by the recipient that includes relief not provided for in the original order, such as claims for contribution to past s. 7 expenses that were not addressed in the earlier order: Meyer v. Content, ibid, at para 61; MacEachern v. Bell, ibid, at para 103.

If the payor’s income increased and the table amount should also have increased, the shortfall in the amount of support paid is better characterized as being in the nature of arrears under the order or agreement: MacEachern v. Bell, ibid, at para 103, citing various cases.

In Meyer v. Content, ibid, the father sought to terminate support for a child who was over 18 and no longer in school. He also sought reimbursement for overpayment of support. The mother opposed the application, arguing that the father had actually underpaid support under the terms of a separation agreement which required payments to be reviewed on an annual basis: paras 1-4. Justice Chappel held that the threshold test set out in D.B.S. does not apply in a case where an agreement or a previous court order “requires that child support be adjusted annually in accordance with changes in the payor’s income” and the recipient seeks to enforce that requirement: paras 56-57.

Rather, the terms of the order “clearly establish” that the recipient claimed and was accorded the legal right to receive increases in the table amount, and the court “should proceed directly to the merits of the case”, at which point any issues regarding ongoing entitlement, whether the table amount continues to be appropriate, and the timing of any adjustments to the table amount can be addressed: para 61.

A term requiring automatic adjustments to child support based on income changes establishes a legal obligation on the payor to take the initiative and make the necessary adjustments, given that the payor is the party who has the income information in their possession. It “does not create a legal obligation on the recipient to annually pursue the payor and pressure them to comply.” The recipient is entitled to expect compliance: para 61.

The key question is whether the proceeding is “truly just an attempt to enforce clear terms in an agreement or order or whether there is a claim to change the order or agreement so as to seek increased support on a retroactive basis. The threshold test set out in D.B.S. would apply in the latter situation”: para 61.

Justice Chappel’s analysis was followed in the Ontario cases of Pitre v Lalande, 2017 ONSC 208 (CanLII), Corthorn J., at paras 58-85 & Mackenzie v. Mackenzie, 2018 ONSC 3090 (CanLII), Price J., at paras 22-26.

More recently, in MacEachern v. Bell, 2019 ONSC 4720 (CanLII), a 2014 court order required the father to “automatically adjust child support” each year if his income increased. The father now sought to terminate support on the basis of a loss of employment and an inability to work due to terminal cancer. The mother, however, responded with a request for retroactive support, increasing the table amount payable: paras 1-4.

Again, Justice Chappel found that the mother’s claim for increases in the table amount as of June 2015 was “more in the nature of enforcement” and the threshold criteria did not apply: para 105.

However, in the event that the D.B.S. criteria did apply, the mother had satisfied the criteria. Her explanations for delay were reasonable and understandable. Given the terms of the order, the mother was entitled to assume the father would comply without the need for her to raise the issue annually. With respect to the payor’s conduct, Justice Chappel considered that the father made “fairly regular” payments until late September 2017. Overall, however, he engaged in “extremely blameworthy conduct”, including resisting providing income information, failing to contribute to extraordinary expenses, unilaterally stopping payments for some time, and providing misleading information to the mother and the court on several occasions. The court also considered the past and current circumstances of the two children, and found that both would benefit greatly from a retroactive award. Finally, the court considered hardship and found that, while the father’s income had decreased, he still had a regular income stream of approximately $80,000 and a significant amount of savings: paras 105-107 & 109-110.

Further, even if the D.B.S. criteria were to apply to cases where an order includes a clause for automatic increases, the analysis should be guided “largely by the terms of the clause.” Failure on the payor’s part to comply with such a provision is a factor that should “weigh heavily” at every stage of the D.B.S. analysis in such circumstances: para 104.

Case Law in Other Jurisdictions
This issue has been addressed by courts in other jurisdictions as well. For example, in LEH v YMT, 2019 BCPC 146 (CanLII), the Provincial Court of British Columbia held that the tests for enforcement of outstanding arrears and claims for retroactive support are not the same (at paras 7-8):

The court went on to note that, in cases of enforcement, delay will “only be relevant if the obligor can demonstrate prejudice and an inability to pay at the time of the application or in the future”: para 12.

This issue was also thoroughly considered by the Court of Appeal for Saskatchewan in the context of a domestic contract in Hnidy v Hnidy, 2017 SKCA 44 (CanLII), at paras 89-131.

Citing heavily from Meyer v. Content, 2014 ONSC 6001 (CanLII), the Court of Appeal noted that a claim that there has been a breach of an agreement containing a provision for review and/or adjustment of support “does not implicate retroactivity in the sense of increased obligations imposed for a past period when those obligations did not exist.” Rather, it is “simply a present assessment of prescribed contractual duties and undertakings, having regard to the nature and scope of the particular provision in question”: para 110. The Court of Appeal also confirmed that the critical consideration is “the existence of a contractual provision for reviewing and/or adjusting child support”: para 107 (emphasis in original).

On the issue of certainty and predictability, the Court of Appeal in Hnidy cited to an earlier decision from the Court of Appeal of Alberta, noting that where parties make an agreement with a clear fixed contractual obligation to disclosure annual income increases, the payor’s primary interest in certainty and predictability “is found in the terms of that Agreement – in disclosing his income and increasing his support payments accordingly”: paras 95-96, citing Goulding v Keck, 2014 ABCA 138 (CanLII).

In Hnidy, the Court of Appeal disagreed with the father’s argument that the mother was seeking to vary the parties’ agreement. Rather, the mother was asking the court to determine whether a breach of the agreement’s terms had occurred and to award an appropriate remedy. Such a determination, if made, “would be a measure of damages in contract – an amount that restores the contracting parties, as nearly as possible, to the positions they would have occupied if the terms of their domestic agreement had been fully honoured”: para 111.

While in that case, the parties’ Interspousal Contract did not expressly provide for an annual disclosure of income, the court found that separation agreements can implicitly require disclosure obligations: para 126, citing D.B.S. v. S.R.G., 2006 SCC 37 (CanLII). Further, the parties’ agreement had a provision for a right of review simply in the event of a “change in circumstances.” Contractual terms of this kind imply an obligation to notify the other parent of changed financial circumstances: para 126, citing Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA).

Key Takeaways

 
*with thanks to Vanessa Lam for her suggestions and edits.

By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law*

As research lawyers, one property issue we deal with frequently is whether a transfer of funds from a parent to an adult child was a gift or a loan. The classic scenario is that of a spouse who received funds from their parents and used the money to purchase a matrimonial home. The spouse claims that the funds were a loan, as opposed to a gift (because a gift traceable to a matrimonial home is not “excluded property”). The issue also comes up in the support context, where gifts of money may be imputed as income in some circumstances, whereas a loan would not.

To review the basics, a gift is “a voluntary transfer of property to another without consideration”. The essential ingredients of a legally valid gift are: (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; (2) an acceptance of the gift by the donee; and (3) a sufficient act of delivery or transfer of the property to complete the transaction: McNamee v. McNamee, 2011 ONCA 533 (CanLII), at paras 23-24. A contribution to the purchase price of property without any intention to impose conditions or requirements is a legal gift: Nishi v. Rascal Trucking Ltd., 2013 SCC 33 (CanLII), at para 31.

The Court of Appeal for Ontario (“ONCA”) has provided guidance on how to distinguish between gifts and loans in the context of an advance from a parent to an adult child. In Chao v. Chao (2017), the ONCA suggested that the following considerations are relevant [paraphrased]:

• 1. whether there are any contemporaneous documents evidencing a loan;
  2. whether the manner for repayment is specified;
  3. whether there is security held for the loan;
  4. whether there are advances to one child and not others, or advances of unequal amounts to various children;
  5. whether there has been any demand for payment before the separation of the parties;
  6. whether there has been any partial repayment; and
  7. whether there was any expectation, or likelihood, of repayment: Chao v. Chao, 2017 ONCA 701 (CanLII), at para 54.

In Barber v. Magee (2017), the ONCA stated that a gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments, or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. Generally, there are objective indicators to help determine if an advancement is a gift or a loan: Barber v. Magee, 2017 ONCA 558 (CanLII), at para 4.

As for who bears the onus, there is some uncertainty on this point in equalization cases. The onus of proving a loan is generally on the person claiming it, under s. 4(3) of the Family Law Act, RSO 1990, c F.3. In Milutinovic v. Milutinovic (2018), Justice McDermot held that this is “especially so in respect of interfamily loans where there may very well be an incentive to gift the funds to children or close family members”: Milutinovic v. Milutinovic, 2018 ONSC 4310 (CanLII), at paras 84 & 87. See also Vaccaro v. Vaccaro, 2005 CanLII 4270 (ON CA), at para 2; Marrello v. Marrello, 2016 ONSC 835 (CanLII), at paras 144-147; and Dasilva v. Dasilva, 2004 CanLII 5043 (ON SC), at para 50.

However, in Chao v. Chao (2017), the ONCA held that the trial judge properly applied the presumption of resulting trust in assessing whether an advance was a loan or a gift: Chao v. Chao, 2017 ONCA 701 (CanLII), at para 53. The presumption of resulting trust places the onus on the spouse who argues the funds were a gift.

In income cases, the onus is on the party who seeks to impute the gifts as income, because that is generally the case under s. 19 of the Child Support Guidelines: Homsi v. Zaya, 2009 ONCA 322 (CanLII), at para 28, and because of the presumption of resulting trust, as discussed above.

While documentary evidence is an important factor in the analysis, as recognized in Chao, it is not always determinative. For example, the court is not always satisfied with the authenticity of promissory notes or other loan documents: see, e.g., Vaccaro v. Vaccaro, 2004 CarswellOnt 5922 (ON SC) (WL), at paras 8-13, 25, & 27-28, aff’d 2005 CanLII 4270 (ON CA), and Abu-Shaban v. Abu-Shaaban, 2022 ONSC 65 (CanLII), at para 133.

Conversely, the court may find that an advance was a loan, even if the terms of the loan were not documented. For example, in Wardlaw v. Wardlaw (2019), which was an income imputation case, the court was satisfied that the husband’s parents paid his bills as a loan so that the husband would not have to cash in his investments while awaiting a large tax refund: Wardlaw v. Wardlaw, 2019 ONSC 5829 (CanLII), at para 109.

If the court finds that money advanced from a party’s parent was a loan, the court must then decide whether to discount the amount of the loan for net family property purposes, to reflect the probability that the loan will actually be repaid. Although a debt “may have a specified face value, if the evidence indicates that it is unlikely that the promissor will ever be called upon to pay the debt, the value of the debt should be discounted to reflect that reality”: Poole v. Poole, 2001 CanLII 28196 (ON SC), at para 35. See also Khaira v. Ghumman, 2022 ONSC 7165 (CanLII), at para 211. The question is not whether the lender will go “through the motions of receiving payment from the [debtor]”, and then give the money back. The issue is the probability that the debtor will “actually remain out-of-pocket in the amount paid”: Poole v. Poole, 2001 CanLII 28196 (ON SC), at para 38.

The same principles apply whether the issue is about a debt at the end of the marriage, or a debt brought to the marriage: Zavarella v. Zavarella, 2013 ONCA 720 (CanLII), at paras 39-40.

These are fact-specific cases which often turn on the credibility of multiple witnesses, and outcomes are difficult to predict. When a large transfer of funds is contemplated, it is best for the parties to have a cohabitation agreement that clearly confirms their mutual understanding of the transfer.

*with thanks to Maria Golarz for her suggestions and edits.

By Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law*

This article discusses the deadline for starting an appeal, and the test for an extension of time if the deadline is missed. It also highlights the part of the test that focuses on the merits of the appeal, and provides some tips and tricks to help you navigate this important appeal deadline.

 
What Deadline Applies to Starting an Appeal?

You don’t always have 30 days! So be careful.

If it is an appeal as of right (no leave required), the deadline to appeal is within the following number of days after the making of the order:

• 30 days for an appeal to the Court of Appeal for Ontario or the Divisional Court, unless a statute or the Rules of Civil Procedure provide otherwise;
• 30 days for an appeal to the Superior Court of Justice of a final order (or a temporary order under the Child, Youth and Family Services Act, 2017); or
• 7 days for an appeal to the Superior Court of Justice of a temporary order under any other statute.

If leave is required, the deadline to bring your motion for leave is within 15 days after the making of the order for leave to appeal to the Court of Appeal for Ontario or the Divisional Court, unless a statute or the Rules of Civil Procedure provide otherwise, or for leave to appeal to the Superior Court of Justice.

Common Mistakes

• Timing: Thinking that the time doesn’t start to tick until you get the issued and entered Order back, or until the court decides costs. Time starts ticking as soon as you receive the decision, whether that be by a formal Order, by Reasons, or by an Endorsement.
• Finality: Not understanding if the decision is temporary or final.
• Court: Appealing to the wrong court.
• Leave: Not knowing if you need leave to appeal.

Extension of Time

What if you miss the deadline to appeal? The parties may agree to an extension of time, or a single judge of the appeal court can hear a motion for an extension of time.

In the civil context, the test granting a motion for an extension is well-established. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

• (1) whether the moving party formed a bona fide intention to appeal within the relevant time period,
• (2) the length of and explanation for the delay,
• (3) any prejudice to the responding party, and
• (4) the merits of the proposed appeal: Enbridge Gas Distributions Inc. v. Froese, 2013 ONCA 131 (CanLII), at para 15.

This test applies in family law cases. However, in family law cases affecting the rights of children, the overarching inquiry into whether the extension is in the interests of justice is whether the extension would be in the best interests of the children: Collins v. Tiveron, 2024 ONCA 447 (CanLII), at para 13, citing various cases.

Some case law holds that no one factor is determinative, and that ultimately all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires: Alaycheh v. Alaycheh, 2020 ONSC 6006 (CanLII), at paras 13-14, citing various cases.

The Merits of the Proposed Appeal

However, other case law holds that the merits of the proposed appeal is the most important consideration: Liu v. Chan, 2024 ONCA 699 (CanLII), at para 29.

Anecdotally, I have seen more focus on the merits of the appeal in recent case law, with numerous judges dismissing a motion for an extension of time based on this factor.

The case law is clear that a lack of merit of the proposed appeal can be determinative. The question is whether the appeal has “so little merit” that the moving parties should be deprived of the important right to appeal: Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328 (CanLII), at para 2, citing various cases.

Where an appeal is completely devoid of merit, it is doomed to fail. For example, in Liu v. Chan (2024), no legal errors were identified and the appellant only sought to re-argue factual matters, such that there was virtually no chance of success on appeal. Even though the self-represented proposed appellant was only four days late with his Notice of Appeal, the Court of Appeal for Ontario dismissed his motion for an extension of time because the other factors were overwhelmed by the complete lack of merit in his proposed appeal: Liu v. Chan, 2024 ONCA 699 (CanLII), at paras 22, 33, & 36.

Takeaways and Practical Tips

• Check your timelines! Diarize the appeal deadline as soon as you get an unfavourable decision that you think your client might want to appeal.
• Check the appeal route and if leave to appeal is required! Lam Family Law has a chart to help with both of these issues.
• Get a second opinion (even an informal one) on the merits of a potential appeal.
• If your client misses the appeal deadline, do not assume they will be granted even a short extension (e.g., a few days, or a week). Your client needs to address all parts of the test for an extension of time.
• Your client’s affidavit in support of an extension of time may include evidence about any delay in retaining counsel. But be careful how much detail you give beyond making inquiries and securing funds to retain counsel. No information should be included that might inadvertently waive solicitor-client privilege.
• Think about if you need to bring other types of motions as well (e.g., a motion for a stay pending appeal), and the timing of those motions in relation to the main appeal.

*with thanks to Maria Golarz and Sierra Larmand for their suggestions and edits.

By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

It has been a little over one year since the Court of Appeal for Ontario (“ONCA”) released its decision in Non Chhom v. Green, 2023 ONCA 692 (CanLII), confirming that an order for occupation rent need not be “exceptional”. This article discusses how Ontario courts have treated occupation rent claims in subsequent decisions.

What is Occupation Rent?

Where there is an order for exclusive possession of the matrimonial home, the court may award the non-occupying spouse occupation rent pursuant to s. 24(1)(c) of the Family Law Act, RSO 1990, c F.3 (note that the term “occupation rent” is not used in the legislation).

Where there is no order for exclusive possession, the court “has the power at common law to order occupation rent.”: Khan v Khan, 2015 ONSC 6780 (CanLII), at para 11, citing s. 24 of the Family Law Act.

An award for occupation rent “usually represents half of the rent that could have been earned had neither spouse lived in the house”: Khan v Khan, 2015 ONSC 6780 (CanLII), at para 11. Followed in, e.g., Doyle v De Sousa, 2023 ONSC 3163 (CanLII), at para 40.

In Non Chhom v. Green, 2023 ONCA 692 (CanLII), the ONCA stated: “While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional”: para 8.

Factors to Consider

The relevant factors to be considered when occupation rent is at issue in a family law context are (Non Chhom v. Green, 2023 ONCA 692 (CanLII), at para 9):

• the timing of the claim for occupation rent;
• the duration of the occupancy;
• the inability of the non-resident spouse to realize on their equity in the property;
• any reasonable credits to be set off against occupation rent; and
• any other competing claims in the litigation.

In several recent decisions, the Ontario Superior Court of Justice has additionally considered the following factors:

• a. the conduct of the non-occupying spouse, including the failure to pay support;
  b. the conduct of the occupying spouse, including the failure to pay support;
  c. delay in making the claim;
  d. the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
  e. whether the non-occupying spouse moved for the sale of the home and, if not, why not;
  f. whether the occupying spouse paid the mortgage and other carrying charges of the home;
  g. whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
  h. whether the occupying spouse has increased the selling value of the property; and
  i. ouster is not required, as once was thought in some early decisions.

See, e.g., Ginese v. Fadel, 2024 ONSC 3011 (CanLII), at para 26 & Delongte v. Delongte, 2024 ONSC 3454 (CanLII), at para 244, both citing Higgins v. Higgins, 2001 CanLII 28223 (ON SC), at para 53.

Occupation Rent Claims in Ontario After Non Chhom v. Green

Occupation Rent Ordered

In the following cases, the court awarded occupation rent and cited Non Chhom v. Green for the principle that occupation rent need not be “exceptional”.

1.        Cirota v. Cirota, 2024 ONSC 4117 (CanLII)

The mother left the matrimonial home with the three children due to the father’s threatening and erratic behaviour. After initially residing with the maternal grandparents, the mother found rental accommodation close to the children’s school. In addition to paying rent for herself and the children, the mother also paid for the mortgage, taxes, and utilities for the matrimonial home. Although living in the matrimonial home alone, the father only paid child support in the amount of $6,210, which was court-ordered. The father also denied the mother’s request to use the home under a nesting agreement and demanded that she not enter the home, even while he was out of the country. Further, while the parties initially agreed to sell the home, the father withdrew his consent, causing unnecessary delay and forcing the mother to bring a motion to proceed with the sale: paras 2, 4, 26-27, 178, 188-189, & 195.

The mother now sought an order that the father pay her $26,450 in occupation rent, representing half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This amount was supported by a Market Rent Analysis. Justice Horkins found that this was “a clear case for awarding occupation rent” and ordered the father to pay occupation rent from his share of the net sale proceeds, which remained in trust pursuant to a consent order: paras 182, 186, 196, & 198.
 

2.        Ginese v. Fadel, 2024 ONSC 3011 (CanLII)

The father had exclusive possession of the matrimonial home, per a consent order, from January 2020 to February 2021. Justice Audet found that the mother was entitled to occupation rent for these months. In coming to this conclusion, the court noted that the mother did not have access to her significant equity in the jointly-owned home for this period and was required to reside elsewhere; the mother had not delayed in seeking the sale of the home, whereas the father resisted the sale for more than a year; and the mother was being ordered to pay any outstanding child support owing for these months: paras 22 & 27-30.

The mother submitted two undated rental offerings for family homes similar to the parties’ family home in the same neighbourhood. One could be rented for $3,450 monthly, and the other for $4,000 monthly. The father relied on a Comparative Market Analysis by the parties’ real estate agent, but the analysis was based on 2019 rental prices. The real estate agent opined that pre-pandemic, the parties could have obtained $2,600 per month. However, most of the mother’s occupation rent claim was for months post-pandemic. Justice Audet seemed to use a middle-number, finding that the parties could have rented their matrimonial home for $3,000 during the relevant months: paras 23-24 & 29.
 

3.        Delongte v. Delongte, 2024 ONSC 3454 (CanLII)

Following separation, the father moved out of the matrimonial home while the mother and children continued to reside in the home. Following the father’s motion to compel the sale of the home, opposed by the mother, Justice Shaw ordered the house be listed no later than July 2, 2020. The house was not listed until August 2020 and it sold in March 2021: paras 245 & 251.

Justice Byrne found that the father was entitled to occupation rent from April 1, 2018 (the month following separation), to December 1, 2019 (the date of Justice Shaw’s Order), plus one month (to account for the mother’s delay in listing the home): para 256.

The father had gathered information about comparable rental rates himself. These properties, however, were located far from the matrimonial home. The mother, on the other hand, provided four comparable rental rates in the same area as the matrimonial home, from 2018, 2020, and 2021. Justice Byrne used the mid-range of the three properties leased in 2018 and 2020, which was approximately $3,000 per month, to calculate occupation rent: paras 254-256.

The father had access to half of his equity in the matrimonial home prior to the sale because he had removed money from the home equity line of credit and, per court order, was allowed to use this equity subject to him being responsible for any accumulated interest. As such, Justice Byrne reduced the total occupation rent by 50%: paras 246 & 256.
 

Occupation Rent Not Ordered

In the following cases, the court declined to award occupation rent where the moving party failed to establish their entitlement and/or failed to produce evidence regarding their loss. These cases illustrate that while occupation rent need not be “exceptional”, it must still be reasonable, supported by evidence, and it is not an automatic right.

1.        Albaz v. Rihawi, 2024 ONSC 812 (CanLII)

The parties separated in either April or December of 2017. The parties and their four children continued to reside together in the matrimonial home until November 2018, when the father was arrested for assaulting the mother. The mother and children continued to reside in the home thereafter: para 8.

Justice Agarwal declined to award occupation rent to the father. First, the father did not make a claim for occupation rent in his answer. Second, there was no evidence that the father moved for an order for either exclusive possession of the home or a partition and sale. Finally, and “[m]ost importantly”, the husband had not been paying support during the occupancy and he had made no financial contribution to the mortgage or property expenses: para 213.

Justice Agarwal also noted that since the father did not lead any admissible evidence about the rent, even if the court were inclined to order occupation rent, the father had failed to meet his burden of proving his loss: para 212.
 

2.        Skrak v. Skrak, 2024 ONSC 1574 (CanLII)

The wife remained in the matrimonial home after separation. The husband was barred from attending at the home due to criminal charges. The husband sought occupation rent of $2,000 per month from November 1, 2019 (the month following the date of separation), until the home was sold (ordered at trial): paras 15 & 93.

The husband did not provide evidence regarding what the house could have been rented for and Justice Agarwal refused the husband’s suggestion to take judicial notice of the rental rate. The court further confirmed that the party seeking an order for occupation rent has the burden of establishing the rent that could have been earned if the occupying spouse was not living in the house. Accordingly, Justice Agarwal found that the husband had not proved his claim and opined that he “should’ve adduced opinion evidence on rental rates”: paras 95-96.
 

3.        Surridge v Ross, 2024 ONCA 314 (CanLII)

In this brief decision, the ONCA upheld a motion judge’s decision to refuse the appellant’s claim for occupation rent, including because she “provided no evidence of market rental rates”: paras 6 & 14.

Note that Non Chhom v. Green was not cited in this decision.
 

4.        O.K. v. M.H., 2024 ONSC 1612 (CanLII)

The mother and two children continued to live in the matrimonial home post-separation. It appears the father left the home immediately following separation due to criminal charges. Nevertheless, he continued to pay for the maintenance of the home: para 10.

Justice McGee declined to grant the father’s request for occupation rent, primarily in the face of the parties’ agreement that the mother would pay the father a post-separation adjustment largely related to household expenses. The post-separation adjustment “more than offsets any benefit that Ms. H [the mother] enjoyed as the occupying spouse, independent of the use enjoyed by the children.” Further, Justice McGee noted that while occupation rent is “no longer restricted to exceptional cases… there is no automatic right to occupational rent.”: paras 4, 114, 116, & 119.
 

Takeaways and Practical Tips

• Occupation rent is not an exceptional remedy;
• Occupation rent is not an automatic right;
• The party claiming occupation rent has the burden of proof;
• To prove entitlement to occupation rent, the moving party should provide evidence responding to the five factors confirmed at para 9 of Non Chhom v. Green and, if applicable, the additional factors set out at para 53 of Higgins v. Higgins; and
• The moving party should produce evidence, preferably expert opinion evidence, regarding market rental rates of comparable properties to prove their loss.

*with thanks to Maria Golarz for her suggestions and edits.

By Rebecca Winninger, Senior Associate Lawyer,
Lam Family Law*

The Divorce Act and Children’s Law Reform Act were both amended in 2021 to include a provision which states that, unless the court orders otherwise, each parent has “exclusive authority” during their parenting time to make “day-to-day decisions affecting the child”: Divorce Act, RSC 1985, c 3 (2nd Supp), s 16.2(2) & Children’s Law Reform Act, RSO 1990, c C.12, s. 28(6).

Shortly after the provision was enacted, Justice Chappel wrote that it was “an important development in the law, as it clarifies that a party who has not been granted decision-making responsibility for ‘significant decisions about a child’s well-being’…nonetheless plays an important role in the child’s life and retains a decision-making role in regard to daily issues that can be equally important to the child’s overall well-being.” The section also “protects children and parents who have parenting time with each other from attempts by the party who has been granted decision-making authority respecting significant decisions to intrude upon or marginalize the role of the other parent”: McBennett v Danis, 2021 ONSC 3610 (CanLII), at para 80 [underlining added].

As for the scope of what constitutes a “day-to-day” decision, Justice Mandhane opined that this includes “feeding, clothing, bathing, soothing, and providing basic non-emergency medical care to the child”: E.M.B. v. M.F.B., 2021 ONSC 4264 (CanLII), at para 148. In one B.C. case, the court described day-to-day decision-making as “e.g. what the child eats, play time, bed time”: C.L.D. v J.J.P.D, 2024 BCSC 1123 (CanLII), at para 217.

In “The Divorce Act Changes Explained”, the Department of Justice wrote that day-to-day decisions include “bedtimes and what the child should eat”. Given the nature of these decisions, “a person with parenting time should normally be able to make these decisions during their parenting time without the need to consult any other person with decision-making responsibility in relation to the child.”

Given the wording of the new provisions, the court clearly retains the authority to allocate day-to-day decision-making in another manner if it sees fit. The court can “make specific orders about day-to-day decisions generally, or about certain day-to-day decisions, if it finds that this would be in the best interests of the child”: The Divorce Act Changes Explained.

However, in the reported cases to date, courts have largely relied on the provision as Justice Chappel anticipated – to prevent a more zealous parent from imposing their parenting practices on the other parent. In L.M. v. K.P. (2024), Justice Bale noted that the right to make day-to-day decisions while the child is in each parent’s care is presumptive, and declined to impose the restrictive qualifications the mother sought regarding day-to-day care. The father did not require that level of oversight and control. It was clear that the parties had many differences of opinion regarding appropriate use of curse words, social media, and humour. The father’s household appeared to be loud and boisterous, while the mother’s was more structured and reserved. There were positive and negative features in both homes, and the child would hopefully achieve balance by exposure to both: L.M. v. K.P., 2024 ONSC 2959 (CanLII), at paras 19 & 41.

In E.M.B. v. M.F.B. (2021), the mother accused the father of not adequately feeding the child, and she was sending the child for parenting time with a cooler of food. The father sought an order preventing the mother from sending food for the child. Justice Mandhane observed that the father had “generally acquiesced” in major decisions made by the mother about the child, but he had shown himself capable of providing for the child’s basic needs during his parenting time. There was no evidence to justify “disrupting the presumption set out in s. 16.2(2) of the Divorce Act that the party exercising parenting time has exclusive authority to make day-to-day decisions”. Rather than sending food, the mother should keep the father informed about the child’s dietary needs and preferences. The child, who was 4 years old at the time of the motion, would eventually be able to communicate her preferences directly: E.M.B. v. M.F.B., 2021 ONSC 4264 (CanLII), at paras 124 & 147-149.

In Sadikali v. Sadikali (2023), the father sought an order that the mother cooperate in imposing certain household rules and discipline consequences on the children. Justice Fowler Byrne observed that while “a common approach to parenting is always preferred”, this is only possible if the parents can “communicate in a mature and civilized manner, with the children’s best interests at heart.” The court was not prepared to impose rules and a discipline regime on the children. There was no evidentiary basis that the rules were in the children’s best interests, and it is not the court’s role to impose itself in “the day to day lives of the litigants”. Each party would “set their own rules when the children are with them.”: Sadikali v. Sadikali, 2023 ONSC 4639 (CanLII), at paras 3 & 58-59.

In Y.V. v. V.Y. (2023), the mother was a Jehovah’s Witness and was keeping the child out of school during Halloween and Christmas celebrations, over the father’s objections. The mother also wanted to attend Jehovah’s Witness events with the child during the father’s parenting time. The court relied on s. 16.2(2) of the Divorce Act in holding that each party was “entitled to participate in religious and cultural events and activities as they see fit on their own parenting time, with neither parents’ (sic) religious views or practices taking priority over the other.” Each parent would decide whether the child would participate in holiday celebrations at school during their parenting time, and the mother would be free to attend religious events with the child during her parenting time. However, a child’s religion is a “significant decision” about a child’s well-being which falls under the definition of “decision-making responsibility” in s. 2(1) of the Divorce Act. Decision-making about religion would therefore normally be allocated under s. 16.3 of the Act, as opposed to s. 16.2(2): Y.V. v. V.Y., 2023 ONSC 5461 (CanLII), at paras 91-93.

While courts are reluctant to interfere with the presumption of “exclusive authority” in s. 16.2(2), this does not mean that courts do not appreciate the value of consistency between households. In J.B.-S. v M.M.S. (2022), the New Brunswick court noted that the children were approaching an age where “consistent household and discipline rules would be important”. The court encouraged “the parties to start sharing some information and to find a compromise to ensure consistency regarding household and discipline rules”: J.B.-S. v M.M.S., 2022 NBQB 18 (CanLII), at para 128.

*with thanks to Vanessa Lam for her suggestions and edits.