Category: Uncategorized (Page 1 of 3)

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.

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.