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.

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

Property and possessory rights under Parts I and II of the Family Law Act (“FLA”) do not apply to common law spouses. Therefore, where a non-titled common law spouse refuses to vacate the property after separation, the titled spouse is often able to obtain an order requiring the non-titled spouse to vacate the subject property.

While a common law spouse cannot rely on the FLA provisions for an order for interim possession, case law demonstrates that there are at least two ways in which a non-titled common law spouse may oppose a titled spouse’s motion to vacate and obtain interim possession to their spouse’s solely-owned property:

The courts have also granted common law spouses what is effectively an order for interim exclusive possession.

A Meritorious Claim to a Beneficial Interest in the Property

A non-titled common law spouse may obtain an order for interim possession (or, as is often the case, an order dismissing their spouse’s motion to vacate) by demonstrating that they have a meritorious claim to a beneficial interest in the property.

Morningstar v. Holley (2007) is a particularly instructive case on this issue. The parties had cohabited for 20 years. On the date of separation, the parties and their child (aged 13) resided in a property solely owned by the man. After separation, the woman and child continued to reside in the property. The man wished to sell the property, but the woman refused to co-operate with respect to any potential sale. Therefore, the man brought a motion to obtain exclusive possession of the property for the purpose of selling: Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras 1-3 & 7.

Justice Henderson acknowledged that, prima facie, the man should be entitled to evict the woman at will. The woman had no legal interest in the property as title to the property was registered solely in the man’s name, and she could not acquire an interest in the property through the operation of Part II of the FLA because the parties were not spouses for the purposes of Part II: paras 4-5.

However, the woman was making an unjust enrichment claim that, if successful, could result in a court granting her an interest in the property. The court found that the woman’s unjust enrichment claim, for which she was seeking a constructive trust remedy, was not a frivolous one. The woman explained that she had evidence to show that she contributed money towards the acquisition of the property, and that she contributed money and money’s worth towards the maintenance of the property throughout the parties’ 20-year relationship: paras 6-7.

Given that the woman’s claim was, in part, for an interest in the property, the court found that it would be unjust to liquidate the property prior to the determination at trial of the woman’s interest in the property. The only reason the man wished to have possession of the property was to sell it, but the property should not be sold prior to trial. Therefore, Justice Henderson found there was no reason to order the woman to vacate the property at this time and dismissed the man’s motion for exclusive possession: paras 14-15 & 18.

In the more recent case of Anthony v. Oqunbiyi (2023), the parties resided together for a number of years (duration disputed) and had two children together. The woman believed that the parties were married, whereas the man sought a declaration that the parties were not married. The court found that the marriage was not valid: Anthony v. Oqunbiyi, 2023 ONSC 861 (CanLII), at paras 1 & 11-12.

The parties and their two children resided in a property solely owned by the man. The man sought an order that the woman vacate the home immediately. Since the parties were not married, they were not spouses as defined in s. 1(1) of the FLA and the property was not a matrimonial home. The woman had advanced a claim for equalization of net family property on the basis that she believed the parties were married. Justice Shaw presumed that, based on the its ruling that the parties were not married, the woman would now seek leave to amend her pleadings to seek an interest in the property by way of a “constructive claim” (i.e., an unjust enrichment claim with a constructure trust remedy): paras 2, 13-14, & 26.

At this stage, Justice Shaw could not say that the woman’s claim was “unmeritorious, particularly as she has not yet advanced a claim for an interest in the property based on the principle of constructive trust.” There was also conflicting evidence with respect to the financial contributions made by each party to the property. Accordingly, the court was not prepared to order the woman to vacate the property on an interim basis since her claim for an interest in the property should be adjudicated at trial: paras 24 & 27.

A Transfer of an Interest in the Property to Satisfy Support

Another way a non-titled common law spouse may successfully oppose a motion to vacate property is by seeking a transfer of an interest in property to satisfy a support order under s. 34(1)(c) of the FLA. However, this appears to be a less common approach: Family Law Act, RSO 1990, c F.3, s. 34(1)(c).

The court in Morningstar v. Holley (2007) considered this approach in the alternative. Justice Henderson noted that the woman was making a claim for retroactive spousal and child support. The court found that the woman’s case was not a frivolous one, as no spousal or child support has been paid since separation. Since the parties were spouses for the purposes of Part III of the FLA, it was open to the woman to argue that the retroactive portion of the support should be paid to her by way of a transfer of an interest in the property pursuant to s. 34(1)(c) of the FLA. The court found that the woman may be entitled to an interest in the property in this way as well: Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras 11-13.

In Rare Circumstances, A Non-Titled Common Law Spouse May Obtain Interim Exclusive Possession

The court has confirmed that “There is no statutory authority to award exclusive possession of real property to an unmarried non-owner or joint owner.”: Souleiman v. Yuusuf, 2021 ONSC 6994 (CanLII), at para 5.

Nevertheless, there is case law where the non-titled spouse has obtained an order that, at least in practice, gives them interim exclusive possession. These cases are rare and often involve extreme circumstances, such as incidences of family violence, the non-titled spouse having limited ability to find alternate accommodations, or the titled spouse living far away from the subject property.

For example, in Joyce v. O’Neill (2008), the parties lived in a common law relationship for approximately 22 years. They resided together in a property owned solely by the man. In 2008, a domestic incident occurred which resulted in the police removing the man from the parties’ home. A term of the man’s bail was that he not return to the home or contact the woman. The man resided with his adult son, and then moved into a senior’s residence with assisted living capability: Joyce v. O’Neill, 2008 CanLII 68120 (ON SC), at paras 1 & 5.

The man’s counsel submitted that there was no basis for the woman’s claim to continue to reside in the property solely owned by the man because the parties were never married. Justice Hackland noted that the woman claimed an interest in the property by way of a constructive trust. Further, she was entirely dependent on the man for support. The man, on the other hand, was doing well in assisted living, would likely not be able to return to the property, at least not without a caregiver, and had considerable means. Therefore, pending the trial of this proceeding, Justice Hackland found that the woman should be permitted to retain exclusive possession of what had been her home for many years: paras 15-16.

In Morrison v. Barbosa (2017), the parties resided in a property solely owned by the man for approximately three years. After three years, the man moved out to attend university and then to move to Alberta. The woman remained living in the property during this time. When the parties separated, the man asked the woman to vacate the property, but she declined to do so. Subsequently, the man brought a motion for an order that the woman immediately vacate the property: Morrison v. Barbosa, 2017 CarswellOnt 12197 (WL), at paras 4-6.

The woman claimed that her extensive contributions to the maintenance and value of the property entitled her to a proprietary interest in the property and a monetary award would not afford satisfactory compensation to her. Justice Moore held that a determination of the woman’s trust claim required a trial: para 22.

Justice Moore also found that the property had been the woman’s home for seven years and, due to her medical conditions, she had limited ability to find alternate accommodations. As such, the woman would experience hardship if she were evicted. Further, the man did not provide evidence of any need to move into the property pending trial. Accordingly, the court granted the woman interim exclusive possession of the property pending further court order: paras 29-30.

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

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

Section 7 Expenses: Generally

Section 7 of the Child Support Guidelines (both Federal and Ontario) (“Guidelines”) governs “special or extraordinary expenses” that parents or spouses may be required to cover “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the” parents or spouses “and those of the child and to the spending pattern of the” parents or spouses prior to separation or in respect of the child during cohabitation: Federal Child Support Guidelines, SOR/97-175, s. 7; Ontario’s Child Support Guidelines, O Reg 391/97, s. 7 [underlining added].

The Court of Appeal for Ontario (“ONCA”) has set out the following considerations for s. 7 expenses:

• 1. Does the expense fall within the listed special or extraordinary expenses?

  2. Is the expense necessary in relation to the children’s best interests?

  3. Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?

  4. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?: Hawkins v. Hawkins, 2019 ONSC 7149 (CanLII), at para 72 [emphasis added], citing Titova v. Titov, 2012 ONCA 864 (CanLII), at para 23.

In deciding whether an expense is necessary in relation to the child’s best interests, the question is whether it is appropriate having regard to the child’s particular needs and any special skills, and the importance of supporting their overall physical, emotional, and social wellbeing and development. Continuity for the child in terms of their education and activities is also relevant to the necessity analysis, particularly when they are struggling as a result of their parents’ separation: A.E v. A.E., 2021 ONSC 8189 (CanLII), at para 380, citing various cases.

The reasonableness assessment respecting s. 7 expenses is three-fold; the court must consider the reasonableness of the expense in relation to:

• 1. The means of the parties;

  2. The means of the child; and

  3. The family’s spending pattern prior to the separation: A.E v. A.E., ibid, at para 381.

Are Cell Phones a Possible S. 7 Expense?

Most case law approaches cell phones as a possible s. 7 expense and follows the s. 7 analysis set out above. While earlier case law was more cautious, more recent cases recognize that use of cell phones by teenagers is often a reasonable and necessary expense for the purposes of school and communication with parents, as long as the parents have the means to cover the expense.

For example, in Studzinski v. Studzinski, 2020 ONSC 2540 (CanLII), Justice Fowler Byrne considered cell phones as follows (at paras 127-128):

• [127] With respect to the child’s cell phone, such an expense is not specifically referenced in s. 7 of the Guidelines. In this day and age, when most teens carry a cell phone and teachers allow for these tools in their classrooms, a cell phone may be considered a necessary expense for primary or secondary school or something necessary for the children’s extracurricular activities (ability to contact their parents for scheduling of activities, rides, etc.) Accordingly, I find that cell phone expenses for teenagers in high school should be included as a potential “extraordinary expense” related to school and extracurricular activities, as long as it meets the definition of same [extraordinary].
  [128] “Extraordinary” is defined in s. 7(1.1) of the Guidelines. In determining if an expense is truly “extraordinary”, the court must look at the expense in relation to the resident parent’s income and the amounts they will be receiving for support, the nature of the expense, and the overall costs (along with other extraordinary expenses). [underlining added]

In that case, Justice Fowler Byrne found that the child’s cell phone ($56.50 per month) was extraordinary and should be paid as a s. 7 expense, instead of being subsumed within the table amount of $654 per month: para 129.

Similarly, in Zawahreh v. Alkhoury, 2021 ONSC 7956 (CanLII), Justice Himel included cell phone expenses as s. 7, where these were a “reasonable expense for teenage boys”: para 87. In that case, the parties’ incomes were $80,000 and $40,000: para 6.

A cell phone may be even more important where it is used as the primary way a child communicates with a parent. For example, in Regnier v. Regnier, 2014 ONSC 5480 (CanLII), Justice Pelletier found that cell phones were reasonable (up to a cost of $3,915 per year), given the children’s ages (18, 16, & 15), the parties’ respective incomes ($100,000 and $172,000 per year), and the fact that the cell phones promoted communication between the father and children: para 33. See also Liberty v. Liberty, 2014 ONSC 957 (CanLII), at para 33 [ages 15 & 14; combined income of $120,000 per year; cell phones facilitated father-child contact].

In the recent decision of Little v. Little, 2024 ONSC 3771 (CanLII), Justice Stothart noted that most teenagers would likely say a cell phone is “essential”. However, the decision to purchase cell phones for children is necessarily based on the family’s financial circumstances. “Families of modest means may not be able to afford cell phones for some or all of their children”: para 25.

In that case, the parties were of modest means. The mother, a nurse, currently earned $74,645 per year. The father was unable to work due to an injury, and currently had no income. The children were aged approximately 18, 14, & 12 and lived primarily with the father: paras 5-9. While the parties were together, the children did not have cell phones. It was the payor mother who paid for the children’s cell phones, so they could connect with her and to provide them with better internet for gaming and communication with friends when at their fathers’ house. She sought a credit towards child support for the cell phone bills. Justice Stothart found that, in the circumstances of this family, the cell phones were to be considered as s. 7 expenses (and not part of base Table support), and ordered the cost to be split 75 [mother] / 25 [father]. The court noted that the mother had agreed to take on the “bulk” of this expense so that the children could enjoy the use of cell phones which are, “for many families of modest means, a luxury”: paras 20-28.

[Also of note about Little v. Little (2024): It was a Binding Judicial Dispute Resolution hearing, and Justice Stothart gives a good overview of this process at para 2.]

However, there are still many cases where the court takes a stricter approach, and refuses to accept cell phone costs as a s. 7 expense.

For example, in Evans v Evans, 2023 ONSC 3919 (CanLII), Justice Madsen noted that as a “general rule”, cell phones for a child do not fall within s. 7 “unless specifically required for an educational program or a medical purpose”: at para 79. In that case, the parties’ respective incomes were $106,005 plus rental income and $106,000 plus rental income: para 5.

Similarly, in Ferlisi v. Boucher, 2021 ONCJ 48 (CanLII), Justice Sherr held that a “youth’s cellphone costs do not fall within an enumerated category under subsection 7 (1)” of the Guidelines. Although, the analysis may be different if the youth resides out of town for their post-secondary education: para 98, citing Park v. Thompson, 2005 CanLII 14132 (ON CA).

In Rodriguez v. Robertson, 2022 ONSC 965 (CanLII), Justice Audet held that cell phones were not proper s. 7 expenses because – like gluten-free food and food supplements – such expenses were covered by basic child support: para 18. In that case, the parties’ respective incomes were $87,975 and $41,285: paras 12-13.

For other recent Ontario cases where cell phones were denied as s. 7 expenses, see:

• Lopatowski v. Lopatowski, 2024 ONSC 3833 (CanLII), at para 248 [parties had agreement requiring joint approval before items could be treated as s. 7 expenses; parties’ incomes were $100,000 and $55,562: para 219 & Appendix A];
• Moore v Lemmon, 2023 ONSC 6735 (CanLII), at para 46 [temporary without prejudice order; parties’ combined incomes were $672,436: para 45]; &
• McMillan Barta v. Barta, 2023 ONSC 125 (CanLII), at para 91 [where mother claimed cell phone expense but gave no explanation why such an expense met the criteria under s. 7; parties’ incomes were $91,673 and $66,514: para 104(3)(d)].

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

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

The Divorce Act, unlike Ontario’s Children’s Law Reform Act, allows courts to make parenting orders for “children of the marriage” who have reached the age of majority in some circumstances, pursuant to s. 16.1. A “child of the marriage” is defined in s. 2(1) to include a child who is the age of majority or over but who cannot withdraw from their parents’ charge “by reason of illness, disability or other cause”.

In J.F.R. v. K.L.L., 2024 ONCA 520 (CanLII), the mother of a 26-year-old man with Down Syndrome attempted to challenge the Divorce Act’s definition of a “child of the marriage” under the Charter of Rights and Freedoms. She argued that the definition infringed equality rights under s. 15 by allowing courts to make parenting orders for adults living with a disability. However, the mother had not raised the constitutional challenge in the hearing below, and the Court of Appeal for Ontario (“ONCA”) did not have an appropriate record to carry out the s. 15 analysis. The mother also lacked standing to raise the issue on behalf of her son, so the ONCA did not consider the Charter challenge: paras 13-17.

However, the mother raised other grounds of appeal, and the ONCA went on to set out important procedural safeguards in parenting cases involving adult children of the marriage, to protect their ability to be heard on important decisions affecting their lives.

The appeal concerned an order by a motion judge which imposed a shared parenting schedule on the parties’ son, M., who was 24 years old at the time of the order. M. was financially dependent on his parents and could not live independently, but there was no formal assessment of his capacity to make decisions about his residence. He was not named as a party or formally served with notice of the proceedings, and did not have the opportunity to make submissions on the motion: para 2.

The ONCA held that M., as an adult, had the right to be heard on a decision which would affect him, under the audi alteram partem principle. Dependence on others or incapacity in some or all areas of decision-making does not eliminate this right: paras 21-24.

In addition, there is a common-law presumption that adults have capacity to make decisions about their own lives, which safeguards the important right of self-determination. There is a low threshold to establish capacity, which is not an “all-or-nothing proposition”, since a person may be capable of making some decisions but not others: paras 26-29.

Procedural safeguards, including the requirement to serve a person who will be affected by a decision, protect the right to be heard and to retain independent counsel. The right to be heard and retain counsel protects, in turn, the important presumption of capacity and the right to make one’s own decisions. As the intervenor Community Living Ontario put it, “the right to make decisions about one’s own life is fundamental to autonomy and personhood”: paras 25-26.

Issues of capacity for dependent adults living with disabilities are commonly but not exclusively decided in guardianship proceedings under the Substitute Decisions Act, 1992, where there is also a presumption of capacity. There was no reason to treat capacity differently under the Divorce Act, given the common-law presumption: paras 3 & 31.

The ONCA therefore held that an adult child of the marriage is presumed capable of decision-making, and the presumption can only be rebutted on sufficient evidence. In addition, since capacity is context-specific, so should be the analysis of whether a child is unable to withdraw from parental charge in s. 2(1). The question should be assessed in relation to the particular order sought. A person may not be able to withdraw for purposes of financial support, but may be able to make decisions about which parent(s) they spend time with and when: paras 34-35.

The ONCA concluded that in the absence of a prior capacity determination relevant to the order sought, “an adult who is presumed to be capable and who is potentially affected by the order in question should be served with notice of the proceeding and afforded the opportunity to obtain separate legal representation and to participate fully, including in the adjudication of any capacity issue”: para 38 [underlining added].

In this case, M. was denied the opportunity to participate and the presumption of capacity to make his own residential decisions. While he could not live independently and required financial support, there was no evidence he could not withdraw from parental charge in relation to decisions about residence. The independent evidence that was before the motion judge did not bear directly on this question: paras 39-43.

Further, r. 7(5) of the Family Law Rules provides a mechanism for an adult child’s participation by allowing a party to be added and served notice of the proceeding. If, on the other hand, the court determined that M. was unable to withdraw from parental charge on the question of his residence, rr. 4(2) and 4(3) allow the court to order legal representation for a “special party”. These requirements apply even in the context of an interim order under the Divorce Act: paras 46-47.

The motion judge’s order could not stand. If the parties still wished to pursue a parenting order, they would have to add M. as a party and he would continue to be represented by counsel, as he was on the appeal: paras 40 & 48-49.

This case has broad implications for people living with a disability who may, as a result of the disability, be dependant on their parents or others for care. It provides procedural safeguards to ensure their interests are protected and their views made known to the court: para 24.

The right to notice is now fairly straightforward. On the other hand, the right to retain independent counsel, including how to fund counsel and ensure independence, will likely be more complex and will be an interesting area of law to follow.

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

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

Every year, especially leading up to the fall, the court hears countless choice of school motions. This article:

• i) provides an overview of the frequently-cited general principles on choice of school motions; and
• ii) highlights recent cases from 2023/2024 on the issue of public versus private school.

General Principles
Choice of school cases are fact-specific. The test remains what is in the best interests of the child, and not the rights or interests of the parents. The selection of a school must be determined based on which of the proposals is better for the child: A.P. v. P.P., 2021 ONSC 6540 (CanLII), at paras 30-31.

In Thomas v. Osika (2018), Justice Audet summarized thirteen general principles that have emerged from the choice of school case law: Thomas v. Osika, 2018 ONSC 2712 (CanLII), at para 37 [citations omitted]:

1. Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody;
2. It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account;
3. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program;
4. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents;
5. The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage;
6. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features;
7. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
8. Any problems with the proposed schools will be considered;
9. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail;
10. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context;
11. If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests;
12. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school;
13. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court.

These principles continue to be relied upon in more recent cases: see, e.g., Grove v. Fahad, 2024 ONSC 2143 (CanLII), at para 11 & Offer v. Lamorea, 2024 ONSC 927 (CanLII), at para 15.

Since the test is the best interests of the child, it is essential that parties provide evidence to the court demonstrating why their preferred school is in the child’s best interests: Sain v Shahbazi, 2023 ONSC 5187 (CanLII), at para 27, citing Roberts v. Symons, 2023 ONSC 4757 (CanLII).

Public vs. Private School
A common conflict between parents is whether their child should attend public or private school.

Private school often also raises financial issues. As noted by Justice Akazaki in Hall v. Galbraith (2023), “The topic of private schooling usually melds the legal issues of decision-making and support.” From an analytical perspective, it is better to first determine the issue of decision-making, because if the proposed s. 7 expense of private school education turned out to not be in the child’s best interests, then “the financial support issue may become moot or at best questionable.”: Hall v Galbraith, 2023 ONSC 2161 (CanLII), at paras 31-32.

The following four choice of school cases from 2023/2024 provide guidance and highlight recurring considerations in these types of cases.

I. Roberts v. Symons, 2023 ONSC 4757 (CanLII)
The most important takeaway from this case is that, while each case is fact-specific, “absent a compelling reason for the child to attend a private school, a public school [is] the default location for the child to receive an education.”: Roberts v. Symons, 2023 ONSC 4757 (CanLII), at para 76; followed in Gill v. Gill, 2023 ONSC 5882 (CanLII), at para 162.

In Roberts v. Symons (2023), the parties disagreed on where their child should attend junior kindergarten. The father wanted him to attend public school in his neighbourhood (“Kettle Creek”); the mother wanted him to attend a private faith-based school where his older half-brother attended (“King’s Academy”). At a previous court appearance, Justice Price found that the issue underlying the dispute was “the quality of education at a public school versus that at a private school”: at paras 2-3.

Both parties listed several reasons why their preferred school would be in the child’s best interests: paras 7 [father’s reasons] & 17 [mother’s reasons]. I will only address three factors, which, in my view, are particularly relevant to the broader discussion of public school versus private school:

• (i) funding;
• (ii) teacher qualification; and
• (iii) tuition/cost.

The father argued that Kettle Creek received public funding to operate, which would ensure that the child received adequate and necessary resources, equipment, and supports. On the other hand, King’s Academy was often driven to fundraising for basic necessities for their students: paras 7(a) & 59.

On this issue, Justice Price found that Kettle Creek was “a potentially more stable and, for students with learning difficulties, better resourced school”. While the child in this case did not have a diagnosed learning disability, the court stated that, with respect to resources for students who struggle with learning, “[t]he simple fact is, dollar for dollar, the public school system carries greater heft in this area than a private school can aspire to do.”: paras 62 & 69.

The father also had great concern that King’s Academy did not require their teachers to be members of the Ontario College of Teachers. Justice Price did not find this argument convincing. First, the court noted that the Education Act allows for persons who are not members of the Ontario College of Teachers to teach for a period of up to one year under a letter of permission. Accordingly, Justice Price found, “being a member of the Ontario College of Teachers seems not to confer any superior status on a person’s ability to teach.” Rather, “[i]t merely grants them permission to teach in the public system and makes them subject to the requirements of the College with respect to such matters as competence and discipline.”: paras 7(i) & 64-67.

Additionally, Justice Price noted that the evidence of the principal at King’s Academy was that students who graduate from King’s Academy can successfully move onto secondary education in the public and Catholic school systems. This suggested that “the students at King’s Academy emerge as prepared to receive a secondary education as those who graduate from the public elementary system.”: para 68.

The cost of attending King’s Academy was “somewhat vague.” While there appeared to be a set amount of tuition, the principal had the authority to waive or reduce that tuition for families who could not afford to pay. It was unclear, however, whether the next principal would act in the same manner, should the current principal move on or retire. The mother would not be able to afford her proportionate share of the full tuition. Further, if the child attended Kettle Creek, the paternal grandmother could continue to provide free before and after school chid care; this was not an option if the child attended King’s Academy: paras 70-73.

After weighing the benefits of the child attending the two schools, the court found that there was not a “sufficiently compelling reason” to order the child to attend King’s Academy. Nothing established that King’s Academy would meet any of the child’s needs that also could not be met in a public school, apart from the mother’s desire for him to receive a faith-based education. Thus, the court ordered the parties to register the child in Kettle Creek: paras 69, 79-80 & 82.

II. Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII)
Similarly, in Den Boer v. Van Ittersum (2024), the mother sought to register the child for junior kindergarten at a private religious school (“Oxford Reformed Christian School”) and the father sought to register the child in public school. Oxford Reformed Christian School was affiliated with the church where the mother continued to be, and the father formerly was, a member: Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII), paras 9 & 25.

Unlike in Roberts v. Symons, most of the evidence provided by the parties regarding the advantages of their preferred schools failed to meet the test for admissibility (e.g., information from third parties was relied upon, but not identified): paras 42-44 & 50-51.

Given the lack of admissible evidence on the individual schools, Justice Price’s analysis largely focused on the primary consideration of the child’s physical, emotional and psychological safety, security and well-being (s. 24(2) of the Children’s Law Reform Act) and the child’s religious and spiritual upbringing and heritage (s. 24(3)(f) of the Children’s Law Reform Act): paras 59 & 61.

First, the court held that registering the child at Oxford Reformed Christian School would likely place the child in the middle of ongoing disputes between his parents about what he was being taught in school, especially given the father’s negative views about his former religion. Justice Price found that this would not be conducive to the child’s emotional and psychological security and well-being. Additionally, attending Oxford Reformed Christian School could foreseeably negatively impact the child’s relationship with his father, which could be equally damaging to him: para 60.

Regardless of which school the child attended, the court accepted that the mother would continue to bring the child to church when he was in her care on weekends and expose him to the values of her religion whenever he was in her care. Justice Price found that this addressed the requirement of considering a child’s “religious and spiritual upbringing and heritage” when determining their best interests: para 61.

The court ordered the parties to register the child in public school for September 2024, but left the issue of where the child should attend longer-term for trial. It was possible this matter would proceed to trial by September 2025: paras 40-41 & 64.

Since public school is the default after Roberts v. Symons (although this earlier case of Justice Price was not referred to by Justice Price in Den Boer v. Van Ittersum) and the child will have attended public school for at least a year by the time of trial, it will be essential for the mother to provide strong, admissible evidence regarding the strengths and weaknesses of the proposed schools if she continues to seek an order for the child to attend Oxford Reformed Christian School.

III. LF v. MF, 2024 ONSC 1262 (CanLII)
While public school was referred to as the default in Roberts v. Symons, the best interests of the specific child may warrant the child being enrolled, or remaining enrolled, in private school. For example, in LF v. MF (2024), the mother brought a motion to keep the children enrolled in their private school for 2024/2025. She also sought an order that she pay 30% of the tuition and expenses and the father pay 70%: LF v. MF, 2024 ONSC 1262 (CanLII), at para 2.

Justice Doi first considered whether remaining in the private school for the 2024/2025 year was in the children’s best interests, before considering whether private school was an appropriate s. 7 expense given the parties’ financial circumstances.

Justice Doi found that remaining in the private school for the 2024/2025 school year was in both of the children’s best interests. The older child was in grade 4 at the private school and only had one year left at the “Lower School”, which ended in grade 5. They had special needs and, in the past, had experienced academic and social issues, including bullying, in the public-school environment. The younger child was in Senior Kindergarten in the private school. Justice Doi acknowledged that while it may be easier to transfer the younger child to a public school, it was in her best interest to not be separated from her older sibling: paras 4-7.

Justice Doi then considered whether private school tuition and expenses were an appropriate s. 7 expense. The tuition was $60,000 for both children. The father had a full-time average income of approximately $350,000 and the mother had a part-time income of approximately $20,000. The costs amounted to 26.5% of their combined incomes: paras 2 & 10.

The parties had recently obtained proceeds from the sale of their matrimonial home and rental property, which would “easily cover the one-year tuition and expense of the private school.” Use of “capital” or savings for education was consistent with the family’s spending pattern prior to the separation and there was no evidence that using the proceeds of sale for tuition and expenses would negatively impact the parties’ current living arrangements. Further, the private school offered a payment plan, avoiding the need for a lump sum payment. Thus, the court found that it was an appropriate s. 7 expense in this case: para 10.

IV. T.W. v J.A, 2023 ONSC 3123 (CanLII)
On the other hand, where parties are of more modest means, the cost of tuition may not be necessary or reasonable, especially where the child is young and does not have any particular needs that cannot be met in public school. For example, in T.W. v. J.A. (2023), the child attended a Forest Montessori school for junior kindergarten until it closed due to Covid-19. The child was then homeschooled by his paternal grandmother, his mother, and, to a lesser extent, his father. The parties agreed the child should no longer be homeschooled, but disagreed on the choice of school: T.W. v J.A, 2023 ONSC 3123 (CanLII), at paras 105 & 109.

The mother sought to enrol the child in a different Forest school for the upcoming school year if she was allowed to relocate with the child or, alternatively, a Montessori school if the relocation was not permitted. The father sought to enrol the child in a public school that offered French immersion and was close to his house: paras 106-107.

Justice Piccoli acknowledged that the child enjoyed his time at the Forest Montessori school and it had met his needs, aptitudes, and attributes. However, attending a Forest school was expensive. The tuition was between $8,600 and $10,000 per annum. Justice Piccoli found that this was not a reasonable or necessary expense given the father’s income of approximately $62,000 and the mother’s income of approximately $17,000. For the upcoming school year, the child was to be enrolled in the public school proposed by the father if the mother relocated or, if the mother remained within one hour of the father’s residence, then the child would attend a public school in the mother’s area: paras 108, 114-116, & 119.

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

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

A court may set aside an order that has noted a party in default and/or an order made on an uncontested trial, pursuant to R. 25(19)(e) of the Family Law Rules, O Reg 114/99: Gray v. Gray, 2017 ONCA 100, at paras 26-32.

Rule 25(19) of the Family Law Rules reads:
Changing order — fraud, mistake, lack of notice
(19) The court may, on motion, change an order that,

• (a) was obtained by fraud;
  (b) contains a mistake;
  (c) needs to be changed to deal with a matter that was
  before the court but that it did not decide;
  (d) was made without notice; or
  (e) was made with notice, if an affected party was not present
  when the order was made because the notice was inadequate
  or the party was unable, for a reason satisfactory to the court,
  to be present.

In the recent decision of Beaudette v. James (2024), Justice Jenner gave a helpful overview of the principles to be applied on a motion to set aside a default order: Beaudette v. James, 2024 ONCJ 115 (CanLII).

The onus is on the party who moves to set aside the order: para 25, citing Irons v. Irons, 2020 ONSC 1471 (CanLII).

The decision as to whether to set aside is a matter of judicial discretion: para 25, citing Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 (CanLII), at paras 47-51.

The Court of Appeal for Ontario (“ONCA”) set out a five-factor test for setting aside a default order in Mountain View Farms Ltd. v. McQueen (2014):

1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;
2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;
3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;
4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;
5. The effect of any order the motion judge may make on the overall integrity of the administration of justice: para 26, citing Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 (CanLII), at paras 47-51.

The ONCA “rearticulated and supplemented” these factors for the family law context in Zia v. Ahmad (2021):

1. Whether the moving party moved promptly, after learning of the order, to have it set aside;
2. Whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;
3. Whether the moving party has established an arguable case on the merits;
4. Whether the moving party is acting in good faith and with “clean hands”;
5. The prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,
6. Whether, in the final analysis, the interests of justice favour setting aside the judgment: para 27, citing Zia v. Ahmad, 2021 ONCA 495 (CanLII), at para 4.

In Beaudette v. James, Justice Jenner briefly reviewed the jurisprudential debate over whether the court must make a finding of fraud, mistake, omission, lack of notice, or “satisfactorily explained absence”, i.e., can a party without a good excuse for being noted in default still succeed if the other factors are “sufficiently compelling”? However, the facts of this case did not require a definitive answer: paras 28-30.

In this case, the mother moved to set aside both an order noting her in default, as well as an order made following an uncontested trial: para 1. She was self-represented and attended the first court appearance. However, despite being granted additional time, she did not file a response to the father’s motion to change. She also did not attend two subsequent court appearances: first, claiming she could not unmute herself in virtual court, and second, claiming she slept through court: paras 4-7. She was immediately advised of being noted in default, and of the uncontested trial date: para 8. For unknown reasons, the uncontested trial was rescheduled to an earlier date, but no communication was sent to the mother: para 10. At the uncontested trial, a final order granted the father sole decision-making responsibly and primary residence, with supervised parenting time to the mother: para 11. The mother took steps to set aside the order and eventually brought the current motion, 10 months after learning of her noting in default and 8-9 months after learning of the final order: paras 12-13 & 37.

Justice Jenner considered the aforementioned factors and refused to set aside either order:

(1) The evidence did not support that the mother moved quickly after learning of her noting in default or the final order. While some delays occasioned by seeking legal assistance can be justified, where the process unfolds over a protracted period, it is “incumbent on the requesting party to provide a detailed account of their efforts, and where appropriate to advise the other party of their intention”: paras 31-37.
(2) While the mother had “not provided a very satisfactory account” of her failure to respond, it was not the “most egregious illustration of non-compliance.” This moderated the weight, to some degree, of the second factor: paras 38-39.
(3) The mother’s “broad and conclusory statement, bereft of detail or corroborative evidence” fell short of an arguable case on merits: paras 40-44.
(4) While there was no evidence of “bad faith”, the mother had still not paid a costs award from nearly two years ago, without explanation: para 45.
(5) While it is preferable, in determining a child’s best interests, to have the benefit of input from all relevant parties, the court could not conclude, in this case, that it served the child’s best interests to recommence the motion to change in the absence of “detailed and cogent evidence” on the parenting issues: paras 46-50, citing King v. Mongrain, 2009 ONCA 486 (CanLII).
(6) Overall, the court found that the “modest prejudice” to the mother in dismissing her motion was outweighed by the prejudice to the father if it was granted. Similarly, it would be contrary to the primary objective of the Family Law Rules (i.e., to deal with cases justly), and would send the wrong signal to other litigants about the need to rectify a noting in default urgently: paras 51-53.

This case reinforces the high threshold for setting aside a default order in family law. In several other recent family law cases, the court has refused to set aside a default order.

• See, e.g., Fasullo v. Fiorini, 2024 ONSC 639 (CanLII) (Div Ct), at paras 1-5 & 16-23 [parenting and child support; no error in dismissal of motion to set aside default order; moving party acted quickly but did not have plausible explanation nor arguable case on merits];
• Recoskie v. Lucchitti, 2024 ONSC 2823 (CanLII), at paras 1 & 10-27 [spousal support; none of the factors met; evidence did not support fraud allegation];
• Singla v. Tayal, 2023 ONSC 688 (CanLII), at paras 1-2 & 7-21 [divorce; evidence of prejudice to litigation in foreign jurisdiction was “weak and clearly insufficient”].

For a recent case where the moving party did meet the threshold for setting aside a default order, see Phelan v Gilvin, 2023 ONSC 3917 (CanLII). In that case, which addressed parenting, support, and property issues, the moving party moved promptly, had an “adequate” – although not “perfect” – explanation; the other party did not have “clean hands” with respect to disclosure; there was an arguable case on the merits; and any prejudice to the other party could be addressed by costs: paras 1-4 & 6-28.

In that case, Justice Chown also provided a “Practice Point” for parties seeking an order following an uncontested trial: at paras 29-32. In short, it is best practice to give notice and serve the materials for an uncontested trial on the defaulting party. This ensures they have knowledge of the proceeding and appears to have chosen not to participate. When this is done, the judgment is “much more likely to withstand a motion to have it set aside or changed.”

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

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

In Ontario, a person cannot claim spousal support if they were validly divorced in another country. There is no jurisdiction to claim support under the federal Divorce Act unless a party is seeking a divorce in Canada, or has already obtained a divorce in Canada. There is no jurisdiction under the provincial Family Law Act (“FLA”), because the definition of a spouse for support purposes does not include a “former spouse”: Okmyansky v. Okmyansky, 2007 ONCA 427 (CanLII), at paras 41-42.

This situation creates a strong incentive to litigate the validity of foreign divorces. In the last year and a half alone, the Court of Appeal for Ontario (“ONCA”) has decided cases on:

• the validity of Islamic “talaq” divorces (Abraham v. Gallo, 2022 ONCA 874 (CanLII) & Sonia v. Ratan, 2024 ONCA 152 (CanLII));
• attornment to the foreign court that granted the divorce (Mehralian v. Dunmore, 2023 ONCA 806 (CanLII)); and
• determining the validity of a foreign divorce by summary judgment (Zafar v. Azeem, 2024 ONCA 15 (CanLII)).

Arguably, the ONCA’s most precedential decision in recent months is Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII) (“Vyazemskaya”), which introduced a new defence to the recognition of a foreign divorce.

First, some background on the recognition of foreign divorces is necessary. Under s. 22 of the Divorce Act, a foreign divorce will be recognized in Canada where there is a real and substantial connection between one of the parties and the granting jurisdiction, unless an exception applies: Vyazemskaya, at para 21. The Supreme Court of Canada (“SCC”) had previously recognized three exceptions: fraud, public policy, and lack of natural justice: Vyazemskaya, at para 26, citing Beals v Saldanha, 2003 SCC 72 (CanLII) (“Beals”), at paras 219-245.

In Vyazemskaya, the trial judge held that the public policy exception applied, because the husband had unfairly “forum shopped” to avoid spousal support obligations in Ontario. In other words, he specifically sought a divorce in Russia to avoid paying spousal support to the wife: Vyazemskaya, at paras 13-14.

On appeal, the husband argued that the trial judge erred in applying the public policy exception, because that exception targets only “repugnant laws” of the foreign country, not “repugnant facts”, such as the husband’s motivation in seeking the Russian divorce: Vyazemskaya, at para 17, citing Beals.

The ONCA acknowledged that international comity requires a “narrow public policy basis for rejecting foreign judgments”: Vyazemskaya, at para 25. However, the ONCA picked up on a passage from Beals where the SCC referred to what the ONCA considered to be “a fourth potential defence” of “unfair forum-shopping tactics”. The SCC indicated that a foreign judgment “should be entitled to full recognition and enforcement” provided it was “not prompted by unfair forum-shopping tactics on the plaintiff’s part”: Vyazemskaya, at para 30, citing Beals, at para 191 [underlining added].

Based on this passage, the ONCA held that Beals “leaves open” unfair forum-shopping “as a possible exception.” Like the other defences of fraud and natural justice, unfair forum-shopping is analytically distinct from the public policy defence. There is therefore no inconsistency in recognizing a defence which, unlike the public policy defence, is not based on morally repugnant foreign laws. While the public policy defence is aimed at “foreign laws that ‘violate our principles of morality’”, the unfair forum-shopping defence is about “decisions taken to avoid the application of domestic laws”: Vyazemskaya, at paras 31 & 34-35.

Given that Beals “leaves open” the forum-shopping defence, and there was evidence to support the judge’s conclusion that the husband obtained the divorce in Russia to avoid paying spousal support, the ONCA upheld the decision: Vyazemskaya, at paras 38-40.

The ONCA’s language around recognizing the new defence was oddly tentative. Even in a concluding paragraph, the ONCA stated it was “sufficient to conclude that…Beals leaves open ‘unfair forum-shopping tactics’ as a possible exception to the recognition of foreign divorces”: Vyazemskaya, at para 37. However, in upholding the trial judge’s decision, the ONCA appeared to endorse the defence, and it is curious that the court did not wish to come out and say definitively that it was recognizing the new defence.

The analysis was also relatively brief. The ONCA explained that the defence was consistent with the value placed on partnership and equality in the preamble to the FLA, and referred to other appellate cases where forum-shopping concerns impacted the analysis: Vyazemskaya, at paras 32-33, citing various cases.

However, I think there is more to be said in favour of the new defence. First, it fits well with the principle of international comity. The courts do not wish to be seen as criticizing the justice systems of other states. The unfair forum-shopping defence allows them to focus instead on the conduct of and motivations of the party who obtained the divorce.

Second, the defence recognizes the underlying motivation of much of this litigation. As discussed above, these cases are usually litigated because one party wants to claim spousal support, and cannot do so due to the foreign divorce. The new defence looks at whether escaping spousal support is what motivated the foreign divorce in the first place. This is a more honest way to approach the issue, in my opinion, than trying to shoehorn the facts to fit the other three defences.

However, the new defence arguably does not fit well with the idea that foreign judgments will be recognized in Canada save in “rare circumstances”: Akyuz v. Sahin, 2023 ONSC 1024 (CanLII), at para 14.

Read broadly, the unfair forum-shopping defence may extend to every case where the party contesting the divorce proves on a balance of probabilities that the party who obtained the divorce did so to avoid support obligations in Ontario. The ONCA cautioned that “[w]hile forum-shopping will not always violate our principles of morality, ‘unfair forum-shopping tactics’ most certainly will”: Vyazemskaya, at para 31. The forum shopping was unfair in the circumstances of Vyazemskaya simply because the husband obtained the divorce in Russia to avoid paying spousal support under Ontario law. This seems like a common scenario (although it may not always be easy to prove a party’s intention).

Litigation on this subject will likely remain common – and not rare – unless the FLA is amended to allow a “former spouse” to claim spousal support, as the ONCA suggested in Sonia v. Ratan, 2024 ONCA 152 (CanLII), at para 94. The ONCA also indicated it might be willing to revisit its own jurisprudence that there is no jurisdiction to order spousal support in Ontario in the face of a valid foreign divorce.

Note that there is also currently a Charter challenge alleging that s. 4 of the Divorce Act (jurisdiction in corollary relief proceedings) and s. 29 of the FLA (the definition of “spouse”) violate s. 15 of the Charter: Mehralian v. Dunmore, Toronto, FS-21-24032 (ONSC).

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

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

Resulting Trust Analysis: Effect of an Intention to Avoid a Merger under the Planning Act

In Holtby v. Draper, the husband had put a property in his and his wife’s names as joint tenants for the purpose of preventing a merger under the Planning Act with an adjacent property he held in his name alone. The Court of Appeal for Ontario (“ONCA”) found that the wife rebutted the presumption of resulting trust for this property because having different beneficial ownership in the two properties was necessary for the husband to achieve his intended goal under the Planning Act: Holtby v. Draper, 2017 ONCA 932 (CanLII), at paras 68-70.

The impact of the transferring party’s intention to avoid the Planning Act was revisited by the ONCA in it’s February 2024 decision of Falsetto v. Falsetto. Here, the husband wanted to buy a property (“415 Lisgar”) that was adjacent to another property he owned in his sole name. To prevent a merger under the Planning Act, the husband’s solicitor suggested that the husband’s father (the “father”) be added to title. The husband and father accepted this advice but, six days before closing, the bank advised it did not have sufficient time to approve the father under the mortgage. The husband and father agreed the wife would take the father’s place on title instead: Falsetto v. Falsetto, 2024 ONCA 149 (CanLII), at paras 4-6.

The husband and father paid the down payment, land transfer tax, and other closing costs in equal shares. The wife made no financial contribution to the purchase. Title was taken jointly by the husband and wife and they were named as co-mortgagors. The property was subsequently rented out to tenants. All rental income was paid to the husband and father. The husband and father continued to pay for all expenses related to the property. The wife did not make any financial contributions to the property: Falsetto v. Falsetto, ibid, at paras 7-8.

When the husband and wife separated, the father claimed a purchase money resulting trust in 415 Lisgar. The trial judge rejected the father’s claim, concluding that he had intended to gift the wife his interest in the property: Falsetto v. Falsetto, ibid, at paras 10-12.

On appeal, the wife argued that Holtby v. Draper provided a complete response to the father’s application. The ONCA disagreed, finding that Holtby v. Draper does not stand for the proposition that “achieving the Planning Act goal was decisive in determining the transferor’s intention.” Rather, the ONCA found that the court in Holtby v. Draper “simply considered it as one factor “consistent with the presumption of joint ownership [that] in no way refute[d] it””: Falsetto v. Falsetto, ibid, at paras 25-26.

The ONCA considered the father’s intent at the time of the conveyance and whether he intended to retain a beneficial interest in 415 Lisgar, as presumed, or if he had intended to give the wife a gift. The ONCA found that the father’s evidence showed that (1) the end he was trying to achieve was to purchase 415 Lisgar as an investment property; (2) in so doing he wanted to avoid merging the title with the adjacent property; and (3) he thought he could achieve this through having the wife take legal title while he retained the beneficial interest. This evidence was rejected by the trial judge because “the plan could not have worked”. The ONCA held that the trial judge “erred in making the presumed operation of the Planning Act determinative of the question of whether” the father intended to make a gift of the purchase money or retain a beneficial interest in the property. As such, the ONCA allowed the appeal, finding that the father was the beneficial owner of a 50% interest in 415 Lisgar. It made an order vesting title of the wife’s interest in the father: Falsetto v. Falsetto, ibid, at paras 27 & 29-31.

Conclusion

The outcome in Falsetto v. Falsetto means that transferring or putting title in a person’s name for the purpose of avoiding a merger under the Planning Act is no longer determinative (as it appeared to be in Holtby v. Draper), but now simply one factor to consider in the resulting trust analysis. This makes it harder to predict the result in a particular case.

However, this is consistent with another part of the decision in Holtby v. Draper where the ONCA held that “[a] motive to shield property from creditors does not itself rebut the resulting trust presumption”: 2017 ONCA 932 (CanLII), at para 55. Subsequent case law showed that lower courts were applying this principle such that the intention to avoid creditors was a relevant, but not conclusive factor. To read more, check out my previous blog post from November 2023, called “An Update on Resulting Trust Claims in the Context of Creditor-Proofing”.

As a recent example from March 2024, in Skrak v. Skrak, the court followed Holtby v. Draper in stating that “[w]hile evidence of an intention to defeat creditors can be evidence of a gift, it’s not conclusive.” In that case, the husband had transferred title of the matrimonial home to the wife to shield the home from his creditors. Justice Agarwal found that this was insufficient to find the husband intended to gift his interest to the wife: Skrak v. Skrak, 2024 ONSC 1574 (CanLII), at paras 37-39.

So, as with an intention to avoid creditors, an intention to avoid the Planning Act requires a case-by-case evaluation of the evidence to ascertain the gratuitous transferor’s actual intention on the balance of probabilities to determine whether to rebut the presumption of a resulting trust. The intention to avoid creditors or avoid merger does not necessarily entail the intention to make a gift. See Falsetto v. Falsetto, 2024 ONCA 149 (CanLII), at para 18.

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

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

The Ontario government has recently passed amendments to the Courts of Justice Act, which will include changes to the procedure for seeking a vexatious litigant order.

This article:

1. Provides an overview of the current procedure to seek a vexatious litigant order;
2. Discusses the purposes of such an order and the factors to be considered;
3. Highlights recent Ontario family case law where such an order has been made;
4. Discusses upcoming amendments regarding vexatious litigant claims; and
5. Provides alternatives remedies to consider.

1. Current Procedure

The Superior Court of Justice can make a “vexatious litigant order” pursuant to s. 140(1) of the Courts of Justice Act, RSO 1990, c. C.43:

Vexatious proceedings
140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

•      (a) instituted vexatious proceedings in any court; or
  • (b) conducted a proceeding in any court in a vexatious manner,
• the judge may order that,
•      (c) no further proceeding be instituted by the person in any court; or
  • (d) a proceeding previously instituted by the person in any court not be continued,
• except by leave of a judge of the Superior Court of Justice.

The Ontario Court of Justice cannot make a vexatious litigant order under s. 140: see, e.g., M.B. v. A.F., 2021 ONSC 5395 (CanLII), at para 7.

Although the legislative wording itself does not refer to a “vexatious litigant order”, this is what the courts call an order made under this subsection: see, e.g., Austin v. House, 2023 ONCA 55 (CanLII), at paras 4-5; Hart v. Fullarton, 2021 ONCA 438 (CanLII), at paras 11-12; & Kallaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), at paras 24-26.

The remedial purpose of s. 140(1) is to codify the inherent jurisdiction of the Superior Court of Justice to control its own process and to prevent abuses of that process by authorizing the judicial restriction – in defined circumstances – of a litigant’s right to access the courts: Kallaba v. Bylykbashi, ibid, at paras 30 & 40, citing Ballentine v. Ballentine, 2003 CanLII 27775 (ON CA).

Currently, the wording of the subsection means that a vexatious litigant claim can only be brought on application, not by way of motion: see Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at para 23, citing Lukezic v. Royal Bank of Canada, 2012 ONCA 350 (CanLII). This requirement is one of the most important changes in the proposed amendments, discussed below.

2. Purpose of Vexatious Litigant Order and Factors

The purposes for making a vexatious litigant order and the factors to be considered were recently outlined in the family law case of Austin v. House, 2022 ONSC 2349 (CanLII), at paras 7-10, citing various cases; aff’d 2023 ONCA 55 (CanLII), at paras 5-15.

As outlined by Justice Broad (at para 7 of the ONSC decision), there are two purposes for declaring a party vexatious: (1) to prevent litigants from harassing others; and (2) to protect the vexatious litigant from squandering their own resources.

The factors that may lead to such an order include (also at para 7 of the ONSC decision):

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

However, it is not necessary that the litigant’s conduct fall within each of the factors. Further, the court may look at a litigant’s conduct in both judicial and non-judicial proceedings.

The court has also “sounded a note of caution, observing that s. 140 is to be interpreted narrowly, such that its application should be reserved for the clearest and most compelling of cases” (at para 8 of the ONSC decision). See also: Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at para 127, citing Howie, Sacks & Henry Llp et al. v Wei Chen, 2015 ONSC 2501 (CanLII) [court’s power to declare a vexatious litigant must be “used sparingly”].

3. Recent Family Law Cases

In recent Ontario family law cases, the court has made a vexatious litigant finding in the following circumstances:

• Taking a “very aggressive” and unreasonable approach to litigation, including numerous pre-trial motions; re-visiting previously adjudicated issues; serving voluminous, extraneous, and irrelevant materials; and failing to pay costs awards: Austin v. House, 2022 ONSC 2349 (CanLII), at paras 14-23; appeal dism’d, 2023 ONCA 55 (CanLII), at paras 6-7 & 15.
• Persistently “and without reasonable grounds” instituting vexatious proceedings and conducting proceedings in a vexatious manner: Justice for Children and Youth v. Glegg, 2021 ONSC 8515 (CanLII), at paras 1 & 78-97; appeal dism’d, Flores v. Glegg, 2022 ONCA 825 (CanLII).
• Making numerous attempts to appeal or set aside orders; avoiding court-ordered obligations; pursuing “unattainable remedies” based on a conspiracy theory; commencement of civil and criminal proceedings against not only the other party but also lawyers, judges, and other professionals; bringing and abandoning motions; re-litigating issues; and displaying a “total disregard for the Court and its resources”: Teitler v. Dale, 2021 ONCA 577 (CanLII), at paras 1-3, 25, & 27 [ONCA also considered that litigant was in default of numerous costs awards in declining to extend time to appeal the vexatious litigant order]; aff’g unreported decision dated July 5, 2019.
• Instituting numerous proceedings found to be “frivolous, vexatious and without merit; non-payment of costs”: Hart v. Fullarton, 2020 ONSC 6804 (CanLII), at paras 68-82; later proceedings at 2021 ONCA 438 (CanLII) [vexatious litigant finding not appealed].

4. Upcoming Amendments

On March 6, 2024, the Ontario government’s Bill that proposed changes to s. 140 of the Courts of Justice Act (vexatious proceedings) received Royal Assent: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157/status.

The changes to s. 140(1) come into force on a day to be named by proclamation of the Lieutenant Governor.

The Royal Assent version of Bill 157, Enhancing Access to Justice Act, 2024, can be viewed online, here: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157.

The changes affecting the vexatious litigant procedure are found in Schedule 6, which would amend s. 140 of the Courts of Justice Act to allow judges of both the Superior Court of Justice, and the Court of Appeal, to make orders related to vexatious proceedings. These orders may be made on the judge’s own initiative or on motion or application by any person. The new s. 140 also sets out rules for appeals and reviews of vexatious proceeding orders.

The new s. 140(1) will read:

Vexatious proceedings
(1) If a judge of the Superior Court of Justice or of the Court of Appeal is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner, the judge may make an order that includes any of the following terms:

1. No further proceeding may be instituted by the person in any court, except by leave of a judge of the Superior Court of Justice.
2. No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge of the Superior Court of Justice.
3. Any other term that is just.

Procedure
(2) An order under subsection (1) may be made on the judge’s own initiative or on motion or application by any person, as provided in the rules of court.
Notice required
(2.1) An order under subsection (1) may only be made on notice to the person who is the subject of the order, as provided in the rules of court.
Branches of the Superior Court of Justice
(2.2) An order of the Superior Court of Justice under subsection (1) may be made by a judge presiding in any branch of that court.
Appeals and reviews
(2.3) The following rules apply with respect to an order made under subsection (1):

1. If the order was made by a judge of the Superior Court of Justice, an appeal of the order lies to a panel of the Court of Appeal.
2. If the order was made by a judge of the Court of Appeal, a panel of the Court of Appeal may, on motion, set aside or vary the decision.
3. For greater certainty, leave is not required to bring an appeal under paragraph 1 or a motion under paragraph 2, unless the court orders otherwise.

The most important change is to how and when a vexatious litigant claim can be brought. As discussed above, such a claim must currently be brought on application. However, the amendments would allow a vexatious litigant claim to be sought on motion as well as on application. The amendments would also allow a vexatious litigant order to be made on the judge’s own initiative, as part of their inherent jurisdiction.

The substantive test of what type of conduct is required does not appear to be changed. However, the new wording does appear to broaden the type of order that a court may make, by adding in the catch-all “any other term that is just”.

5. Alternative Remedies to Consider

Overall, the threshold for a vexatious litigant order is high and will likely remain so under the new amendments.

However, it is expected that the amendments will make the procedure to get a vexatious litigant order easier, thus encouraging the use of s. 140.

In addition, the court has alternative options to a vexatious litigant order, including:

• Staying or dismissing a proceeding that is vexatious or an abuse of the process of the court, pursuant to R. 2.1.01(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194. See, e.g., Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at paras 9-11 & McIntosh v Sutherland, 2023 ONSC 2788 (CanLII), at paras 9-19, for relevant principles.
• Making an order to respond to a person’s failure to obey a court order or follow the Family Law Rules, pursuant to R. 1(8) or 1(8.1) of the Family Law Rules, O Reg 114/99, such as an order for costs, dismissing a claim, or striking out parts of a document or claim. See Oliver v. Oliver, 2020 ONSC 2321 (CanLII), at para 37, for the three-party inquiry in applying R. 1(8).
• Imposing criteria pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules), such as seeking leave or providing specified documents, that must be satisfied before the respondent can initiate further proceedings. See Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at paras 138 & 143.
• Remaining seized of any related proceeding, also pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules). See Robertson v. McKenzie, ibid, at paras 139 & 145.

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

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

Updated April 7, 2024 due to CRA changes announced after posting this blog: The CRA announced on March 28, 2024 that bare trusts will be exempt from trust reporting requirements for the 2023 tax year, unless the CRA makes a direct request for these filings . The CRA indicated this decision was made “[i]n recognition that the new reporting requirements for bare trusts have had an unintended impact on Canadians”. It is not yet clear whether bare trusts will be exempt in future years. The CRA says it will work with the Department of Finance in the coming months to “clarify its guidance on this filing requirement”, and will provide further information as it becomes available: Government of Canada, Bare trusts are exempt from trust reporting requirements for 2023 (March 28, 2024).

Original blog post:

Bare trusts have been getting a lot of attention in the media lately, and among legal and accounting professionals. The rules governing which trusts must file a T3 tax return have changed for trusts with a taxation year ending after December 30, 2023. Even bare trusts may now be required to file a T3 return, unless they meet certain exemptions. The Canada Revenue Agency (“CRA”) considers a “bare trust” to be “an arrangement under which the trustee can reasonably be considered to act as agent for all the beneficiaries”. A bare trustee has “no significant powers or responsibilities” and “can take no action without instructions from” the beneficiary: Government of Canada, New reporting requirements for trusts: T3 returns filed for tax years ending after December 30, 2023 (last updated March 12, 2024).

Commentators have suggested that the new rules may capture informal arrangements where, for example, an aging parent added their adult child to a joint account for convenience, or a parent holds title or joint title to their adult child’s home for mortgage financing reasons. See, for example, Rob Carrick, “A guide to family finances and the new CRA reporting rules for bare trusts – are you in the crosshairs?”, The Globe and Mail (March 25, 2024).

Family lawyers will not likely be in a position to advise their clients about CRA requirements. But it is worthwhile to review the definition and legal test for a bare trust, since the concept is relevant to property issues generally, including in family law, although it does not come up nearly as often as resulting and constructive trusts. It is also important for family lawyers to be aware of the change in reporting requirements so that they can request the appropriate tax disclosure if the issue arises.

The Court of Appeal for Ontario has defined a bare trust as “a trust where the trustee holds property without any active duties to perform other than to convey the trust property to the beneficiaries on demand”. The hallmarks of a bare trust are: (1) the beneficiaries must be able to call for the property when they please; and (2) the trustee must not have (or must no longer have) active duties in respect of the trust property. The duty to guard the property prior to conveyance is passive: Rubner v. Bistricer, 2019 ONCA 733 (CanLII), at para 56.

A bare trustee “has no independent powers, discretions, or responsibilities. Their only responsibility is to carry out the instructions of the principals – the beneficiaries. If the trustee does not have to accept instructions, if the trustee has any significant independent powers or responsibilities, the trustee is not a bare trustee”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII), at para 26, citing Trident Holdings Ltd. v. Danand Investments Ld., 1988 CanLII 194 (ON CA).

A bare trust is a form of an express trust, and there are four requirements for establishing a valid express trust:

1. the relevant parties to the trust must have capacity;
2. there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects (the “three certainties”);
3. the trust must be constituted, meaning the trustees must hold legal title to the property; and
4. the required formalities must be met: Lyttleton v. Lyttleton, ibid, at para 27, citing Rubner v. Bistricer, 2019 ONCA 733 (CanLII).

Certainty of intention requires that the settlor intended to create a trust, and that the trustee would be required to hold the trust property for the benefit of the beneficiary. This is a question of fact. A settlor need not fully understand the legal concept of trust in order to satisfy this test. Certainty of subject matter requires that the trust property is identifiable. Certainty of objects requires that the beneficiaries be sufficiently described to allow for trust performance: Rubner v. Bistricer, ibid, at paras 52-59.

With regard to the fourth requirement (that the required formalities must be met), a written document is not required to create a bare trust. However, the court requires “cogent evidence of the intention to create a trust from the context of the relevant words or circumstances”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII), at para 31. Additionally, if the trust includes real property, then a lack of documentation may breach the Statute of Frauds: Do v. Do, 2022 ONSC 6679 (CanLII), at para 36.

In some cases, litigants have pleaded a “bare trust” as an alternative claim, along with resulting and constructive trust. Do v. Do, 2022 ONSC 6679 (CanLII) is an example of a case where the court analyzed all three arguments, and found that there was no trust. In contrast, in Anspor v Neuberger, 2016 ONSC 75 (CanLII), at para 47, the court held that the evidence established “the essential elements for both a bare trust and a purchase money resulting trust.” Neither was a family law case, although Do v. Do was an intergenerational dispute.

In family law, bare trusts have come up in the following contexts:

• Where a spouse did not hold legal title to property and denied any beneficial interest, but the court found they were the beneficial owner and that the person who did have legal title was a “bare trustee” for the spouse: Lokhandwala v. Khan, 2021 ONSC 7974 (CanLII) [wife successfully claimed that the husband’s mother was holding corporate shares as a bare trustee for the husband and wife].
• Where a spouse did not hold legal title to property and claimed to be the beneficial owner, but the court found the spouse did not have a beneficial interest and the titled party was not a “bare trustee”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII) [wife unsuccessfully claimed that the husband’s brother held property as a bare trustee for her and that she was entitled to half the current value of the property, as she did not establish certainty of intention].
• Where a spouse did have legal title to property, but asserted they held it as a bare trustee with no beneficial interest: Sampath v. Deopersad, 2017 ONSC 7055 (CanLII) [husband unsuccessfully claimed that he held title as bare trustee for his new partner; court held that husband had a beneficial interest in proportion to his financial contribution to the purchase]; & David v. Stiuca, 2024 ONSC 83 (CanLII) [mother and adult son unsuccessfully claimed that the mother and her former husband held title in trust for the son]. See also Li v Liang, 2021 BCSC 862 (CanLII).

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