The following decision deals with the issues of child support and the enforcement of an extra-provincial order. When the parties separated in 2002 they were residing in Florida with their two children, Justin and Kassandra. That same year the mother obtained orders for custody and support of the children and relocated with them to Ontario. The next year the mother, who was at this point residing in Ontario with the children, brought a motion in a Florida court to increase the child support order which was consented to by the father.

In 2004, the father ceased making support payments which resulted in the mother bringing yet another motion in Florida to deal with the enforcement of said order. At this proceeding the mother agreed to link support and access issues such that if she denied the father of his right to access he could refrain from making payments. The aforementioned occurred and despite her initial consent, the mother brought a final motion in Florida to enforce the support order.

The General Magistrate there recommended that due to her significant history of denying access to the father, child support payments should cease as agreed to. That recommendation was incorporated into a decision and support was effectively terminated.The mother did not attempt to appeal or vary the final decision in Florida, rather she applied to an Ontario court and sought an order for support.

The history of the proceedings is crucial in this case because it is illustrative of the implied acceptance, on the part of the mother, of the jurisdiction of the Florida courts with regards to the support and custody/access issues. It is only when a decision was reached that was unfavorable to her situation that she opposed the jurisdiction of the Florida courts and applied within Ontario. Otherwise known as “jurisdiction shopping” this is generally not tolerated by judges as is evinced by the reasons of Justice Ricchetti in this judgment whereby he recognized and enforced the extra-provincial order.

He identified that there are three provisions of the Children’s Law Reform Act which provide the applicable tests, ss. 19, 41(1), and 42(1)-(2). Briefly, s. 19 states that the purposes of the act are to recognize and enforce orders for custody granted by a foreign jurisdiction unless there exist exceptional circumstances which warrant the setting aside of said extra-provincial order. Section 41(1) provides a list of circumstances that if satisfied will result in the setting aside of an extra-provincial order. Lastly, s.42(1) and (2) allow a court to supersede an extra-provincial order if it is satisfied that there has been a material change in circumstances that affects or is likely to affect the child.

Justice Ricchetti briefly explained and applied the facts of the case to each provision. He affirmed that the mother had failed to satisfy each test. He also considered the obligation imposed by s. 31 of the Family Law Act. This section states that every parent has an obligation to financially support his or her unmarried child. Generally this obligation cannot be bargained away by parents nor is it common in Ontario for access and support to be linked. However, there do exist exceptional circumstances which will allow for it, such as:

• where the custodial parent has sufficient assets and income and the children will not be deprived of appropriate support,
• when the children are older, and
• where the parents have consented to conditional support.

Lastly, he emphasized the fact that the order from Florida linking support and access, and to which the mother consented, stipulated that any disputes arising therefrom would be dealt with in a Florida court. This further reinforced his reluctance to interfere and so he refused to exercise his discretion or set aside the extra provincial order. Instead, Justice Ricchetti dismissed the application and did not award any costs.

In this case, the Ontario Court of Appeal affirmed the decisions reached at the Ontario Superior Court stemming from the dispute between the parties, C.S. and M.S., who were married in 1986 and separated in 2002.

At trial, Justice Perkins made the following orders:

• That the mother be granted full and sole custody of their youngest daughter, M, with no access to the father or the other three children of the marriage.
• That a restraining order be placed on the father forbidding him from making contact directly or indirectly with either his daughter or his wife, and
• That an award of costs be given to the mother in the amount of $320,198.85.

The Court of Appeal looked to the best interests of the child test in order to determine whether an order forbidding access to a father was justified. An overwhelming amount of evidence indicated that it was decidedly so. It was shown how the father, through his behavior, had been successful in alienating three children from their mother. The Court of Appeal was certain that if given the opportunity he would probably do the same with his youngest child. Therefore, it was stated that the extent of contact between father and daughter that would be in her best interests was “no contact”. However, it was mentioned, in paragraph 7 of this judgment, that the order for no access could be varied subject to a material change in circumstances.

As was previously noted the order regarding access to M was extended to cover the three older children as well. The father, through his persistent and aggressive conduct, had alienated the three older children from their mother to such an extent that allowing contact between all children could potentially expose M to negative influences and consequent estrangement from her mother. The three older children, together with their father, were seen as belonging to a “single camp” the goal of which was to do the bidding of their father and effectively remove the mother from their lives.

Beyond affirming the orders and awards made at trial, and dismissing the appeal in its entirety, the Court of Appeal also awarded costs of the appeal to the mother in the sum of $10,000.

The parties in this case were married in 1987 and separated in 2009. There were two children of the marriage, Brigitte (aged 16) and Martin (aged 12), the temporary custody of whom forms the basis of this dispute. It was adduced in court that at the time of separation there was a shared custody arrangement agreed to whereby the children would reside with each parent on a week-by-week basis. However, with the passage of time what occurred is that Martin remained in the matrimonial home with the Respondent-husband and Brigitte continued to alternate between residences and spent time with both parents. The parties, unfortunately, were not amicable and allegations were hurled at one another regarding improperly influencing the children. The parties did attempt to resolve the issue of custody by bringing an initial motion for temporary custody, however, that motion did not proceed and consequently the arrangement was never concluded.

Since the Applicant-wife was determined to fundamentally alter the de facto custody arrangement that was in place she began behaving in such a manner that was condemned by the court and which ultimately resulted in the court ruling in her Respondent’s favor.

She contacted the Children’s Aid Society (hereinafter referred to as the CAS) and arranged for a meeting with a CAS Social Worker as well as contacted the local police making various false allegations against her Respondent. Moreover, when the Respondent left the couple’s motor, boat, and trailer in the Applicant’s parking spot, so that she could sell the items for a profit, she called the police. This resulted in the arrest and detention of the Respondent who was charged with mischief.

While the Respondent was in court awaiting his bail hearing the Applicant took it upon herself to change the custody arrangements. She had Martin delivered to her where she kept him out of school for a brief period of time and then enrolled him in a school nearer to her residence. Justice Cornell from the Ontario Superior Court did not look favorably on the applicant’s actions. He stated that her behavior ran contrary to s. 20(4) of the Children’s Law Reform Act which provides that:

Where the parents of a child live separate and apart and the child lives with one of them with a consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidence of custody, but not the entitlement to access, is suspended until a separation agreement or court order provides otherwise.

He emphasized that the proper procedure to follow to rectify her dissatisfaction with the custody arrangements would have been to apply for a temporary order for custody. Her unilateral actions of changing Martin’s school and his residence were unacceptable and as a result would not be tolerated by the court.

Justice Cornell awarded temporary custody to the Respondent and determined that pursuant to s.24(1) of the Children’s Law Reform Act this would be in the children’s best interests as Martin would be able to return to the matrimonial home and re-enroll in his previous school. Once again he would be reunited with all his friends and the surroundings with which he was most familiar. He also granted reasonable access to the Applicant and stated that each party was to abide by the “Rules for Separated Parents” which were attached to the reasons.

Justice Cornell’s main motivation in coming to this decision was to ensure that the Applicant was not rewarded for her outrageous conduct. Rather, she should have been patient, followed proper procedure, brought a motion for custody and presented the court with the best possible evidence. Had she behaved accordingly perhaps the outcome would have been different.

In this case Justice McGee of the Ontario Superior Court was asked to decide on numerous issues relating to the custody and access of the parties’ daughter, Maya.

The facts of this case are simple. The parties were married for just under six years and had one child (Maya). Their marriage was a difficult one and they were anything but amicable, dragging their case through court and engaging in incessant litigation on every possible issue.

One such issue related to the appointment of a parenting coordinator with the authority to make final awards. Prior to appointing a parenting coordinator from a list of pre-selected and approved candidates, Justice McGee requested that counsel for both parties confirm their instructions to ensure that there was mutual consent. However, despite previous dealings and apparent consent, counsel for the father revealed that he no longer consented to the appointment.

What is useful about this case is that it clearly outlines the law relating to the jurisdiction of the court when it comes to appointments of parenting coordinators and affirms that both parents must consent. A judge cannot unilaterally, or on the consent of one party, appoint a parenting coordinator. At paragraph 5, Justice McGee states:

“It is a decision increasingly being made by separated parents, and it is their decision alone. It is outside the jurisdiction of the court to delegate the court’s authority to a parenting coordinator, or to dispense with the consent of a parent to an Agreement for Mediation/Arbitration, or an Agreement for Parenting Coordination Services and Arbitrations in accordance with the Arbitration Act, S.O. 1991, c. 17 and the Family Statute Law Amendment Act, 2006, S.O. 2001 c.1.”

By not agreeing to the appointment of a parenting coordinator, Justice McGee was obligated to reluctantly make a decision regarding the custody of and access to Maya. At paragraph 22 he states “In the motion before me, I am left to consider the optimal schedule for Maya at this time based on the evidence as it stands today, and without the prospect of parenting coordinator.”

She stated the utility of resolving disputes through a parenting coordinator and his words should be kept in mind if and when you are ever faced with a similar dilemma.

“Fully authorized and funded parenting coordinators act as fail safes for co-parenting plans that seek to balance time and decisions making between parents. Without such a safety mechanism, conflict can increase between parents.”

In this decision delivered by Justice Ricchetti, from the Ontario Superior Court, the issue of interim interim (or temporary temporary) orders for support was discussed. The court optimally presented and applied the law to the facts of the case, thus providing a viable precedent for lawyers and judges considering said issue.

The facts offered are few and elusive. From what may be gathered the parties cohabited for 2 years prior to marrying in 1996. There were three children born of the marriage and the year of separation was slated as being 2007. Moreover, the respondent-Haefele was a high-income earner. It should be noted that there were some inconsistencies in determining the exact income amount. More specifically, the applicant-Moorthy claimed he received approximately $6.5 million a year from various interests in German business whereas the respondent countered that his income was $500,000 plus whatever amount he needed to pay taxes.

In addition to an order for interim spousal and child support, the wife sought retroactive support, an order for non-dissipation as well as the full disclosure of further documentation. The husband also brought a cross-motion for the adjournment of the wife’s motion for the purposes of questioning her on her materials.

The adjournment was granted to the husband as it was decided that there was no urgency to the wife’s motion since all her expenses (i.e. mortgage, children’s tuition, etc.) were being paid for by the respondent and would be until the motion was heard. However, Justice Ricchetti noted that the sole source of support available to the wife was access to a joint line of credit which could be easily controlled or reduced by her husband. As a result, and recognizing that the wife would be in need of some form of support, the judge decided to address the issue of support and imposed an order for interim interim support without prejudice to either party.

Justice Ricchetti looked to two previously decided cases from the Ontario Court of Appeal in order to ascertain the current state of the law. The first case Sugar v. Sugar stands for the proposition that in order to be granted interim interim support:

• an applicant must show a prima facie case of need,
• the respondent must have the ability to pay, and
• the adjournment may result in a delay making the provision of support reasonable given the circumstances.

The second case relied on, Elliston v. Elliston, divulges the purpose of an order for interim interim support which is to prevent hardship to a spouse until the necessary material upon which the court can act can be procured. It is not a procedure which is to be invoked as a matter of course. Therefore, it is not readily or easily granted.

Justice Ricchetti reviewed all the evidence put forward and dismissed the amounts and proposed budgets adduced by the wife. Rather, he favored a proposal presented by the husband’s counsel and ordered a lump sum payment of approximately $200,000 for a period of 6 months. The husband was also required to continue to pay for all other expenses relating to the children and the matrimonial home.

Justice Ricchetti was satisfied that the amount ordered would avoid any hardship for the wife and children as it represented more than two times the wife’s monthly expenses in her financial statement or approximately the amount of her proposed budget or more than the amount of the minimum child support.

The issue of support would be re-visited 6 months later when the wife’s motion was scheduled to be heard.

When will a court award access to a grandparent? What factors will a judge consider? These questions and many more were answered in a well-written judgment by Justice Brownstone.

In this case, the paternal grandmother of Nathan Mangal-Hurst (aged 5 years old) applied to the court for an order granting access to her grandson. However, the opposing parties, namely her son and his ex-partner, disapproved of her application and were vehemently against an order for access in her favor. They did everything in their power to keep Nathan away from his grandmother during the proceedings and also, prior to the proceedings, they greatly reduced the number of times the applicant visited with her grandson.

The opposing parties claimed that access should not be granted for the following two reasons:

• The applicant rarely saw her grandson. She has always either lived in North Bay or Barrie whereas he has always lived in Toronto. The only period during which visitation was frequent and lengthy with Nathan was for approximately 6 months when her son was residing with her. When Nathan visited his father, he necessarily visited with his grandmother as well.
• Secondly, they claim that the quality of the relationship shared by Nathan and his grandmother was poor due to alleged bad parenting skills. They stated that she was abusive and neglectful as a parent; qualities that definitely continued when she became a grandparent.

Justice Brownstone, however, was not persuaded by the arguments and dismissed their allegations. Instead, he deduced from the evidence provided that the true reason motivating the parents’ desire to cut ties between the applicant and her grandson was due to the feelings of spite and vindictiveness they harbored against her rather than a true, genuine concern for Nathan’s best interests.

The law regarding access to a child by a grandparent is derived from the leading case in Ontario of Chapman v. Chapman (2001), 141 O.A.C. 389 (Ont.C.A.). This case established that generally judges will defer to the decisions made by parents regarding access to their children since they are endowed with final and ultimate decision-making authority. However, if the following questions are answered in the affirmative then the potential to grant access to a grandparent is possible. The questions are:

1. Does a positive grandparent and grandchild relationship already exist?
2. Has the parent’s decision imperiled the positive grandparent and grandchild relationship?
3. Has the parent acted arbitrarily?

Justice Brownstone clarified that question #1 requires something more than an occasional pleasant experience for the child. Rather, it must consist of a close bond with strong emotional ties deserving of preservation. So, under what circumstances will these requirements be met? Justice Brownstone identified two situations which will almost always satisfy question #1:

• where the child has either lived with or spent significant time with the grandparent over a significant period of time prior to litigation, or
• where a parent is deceased and the access order is necessary to ensure that the child maintains a connection to the deceased parent’s side of the family.

Based on the law and the evidence provided, it was concluded that the relationship shared by Nathan and the applicant was not strong enough to justify interfering with the parents’ decision-making rights. Justice Brownstone also determined that granting access to the applicant would result in increased stress for the parents which could very well affect the child. He was hesitant to interfere with the arrangements arrived at by the parents because, despite a previously tumultuous relationship, they were finally able to effectively communicate with one another and were working together to meet Nathan’s needs and ensure his continued progress and success. Forcing them to disrupt the schedule they had devised to incorporate trips to Barrie to visit with his grandmother would only add unnecessary stress to an already fragile situation. A court, in cases such as this, is required to balance the benefit to be gained by the child in having occasional visits with a grandparent, against the risk of being exposed to the very predictable and emotional manifestations of the parents as they act out their anger and stress over the access. Following a decision from Douglas v. Hoar, 2001 NBQB 260, 23 R.F.L. (5th) 141 (N.B.Q.B.) Justice Brownstone concluded that the intensity of the parent-and-grandparent conflict militated against an access order because of the risk of harm to the child.

Justice Brownstone’s final remarks suggest that this case is illustrative of the assertion that litigation between family members can intensify and escalate a conflict rather than assist those involved achieve peace and a reasonable compromise. He suggested that attempting to coordinate access on their own and without court interference would have been the better route to take as perhaps the parties may have been able to eventually repair their relationship. Even though the relationship between the applicant and her son was already tenuous, by bringing the issue to court to litigate she only further severed any remaining ties with her son and cemented the fact that she would probably not see her grandson for a very long time.

This case was heard by Justice Turnbull in the Ontario Superior Court of Justice. There are three children from the marriage. The parties separated in December 2005 and at that time negotiated a separation agreement. At the time of separation however, only one child namely, Angeli, born February 1, 1990, required child support. Pursuant to the separation agreement, the Respondent was to pay $175.00 per month into an RESP and $129.00 per month towards an insurance premium on her life. The agreement did not have any terms with respect to table amount for child support under the Ontario Child Support Guidelines.

The Applicant brought a motion seeking retroactive child support and retroactive extraordinary expenses when the Respondent unilaterally stopped making payments towards the RESP and insurance. The Respondent did claim however that he was making payments in the amount of $150.00 directly to Angeli and the Applicant did not dispute this.

The Applicant prepared calculations with respect to child support payments and claimed that the Respondent was to pay the Applicant a sum of $9,925.32 in retroactive child support and that the Respondent not be given any credit for the payments of $150.00 per month which the Respondent had been giving to Angeli directly. The Respondent acknowledged the arrears in support in a document he had created calculating same, however, he had credited himself the $150.00 payments he had made.

Justice Turnbull was of the view that child support should be paid to the parent entitled to receive same and not the child unless there is an agreement in place between the parties that states otherwise. He went on to say that the parent who is entitled to the support has the discretion as to how to spend that money for the benefit of the child. On the facts, it appeared as though the Respondent gave Angeli $150.00 amount instead of the Applicant as he did not want her to derive any benefit from the money paid by him. Although Justice Turnbull was sympathetic to the Respondent’s request to take into account the $150.00 payments, he ordered that the Respondent pay $6, 861.00 in retroactive support.

With respect to Angeli’s extraordinary expenses, Justice Turnbull ordered that the Respondent pay the Applicant his proportional share from the day of the motion forward.

This case warns the paying parent to make child support payments directly to the other parent even if the child is an adult child of the marriage.

This is an interesting case heard b Justice Spies in the Ontario Superior Court of Justice. Three parties, namely, Mr. Martinez, his ex spouse, Ms. Rodriguez and his new spouse Ms. Basail brought this motion seeking an order that a divorce granted in Cuba should be recognized as a valid divorce in Ontario.

The parties, Mr. Martinez and Ms. Rodriguez resided and married in Cuba in 2004. They had one child together. Mr. Martinez immigrated to Canada in July 2006 and in October 2006, Ms. Rodriguez and the child moved to Canada. The parties separated in May 2007.

At this time, both parties were permanent residents of Canada. The parties believed that that as the marriage took place in Cuba, the divorce would also have to take place in Cuba. Neither party consulted with Ontario lawyers to confirm this. The parties travelled to Cuba in October 2007 to obtain the divorce. They retained a lawyer who assisted with the divorce and the parties signed an agreement which reflected the terms they had agreed to; namely, custody and access, waiver of spousal support and child support in the amount of $300 Canadian per month. The parties returned to Canada and Mr. Martinez followed the terms of the agreement to pay child support. In fact, he was making payments that were more than the terms agreed to by the parties.

Mr. Martinez had met Ms. Basail in Cuba. They married in Cuba in December 2009 believing that he was properly divorced. When Mr. Martinez applied to Immigration Canada for Ms. Basail, Immigration Canada did not recognize the Cuban divorce as valid as neither party was resident in Cuba when they applied for the divorce there. Mr. Martinez therefore could not legally marry Ms. Basail. What is different about this case is that neither party was disputing the validity of the divorce. Mr. Martinez was following the terms of the agreement signed by the parties in Cuba.

Given that the Judge in Cuba granted the Divorce in Cuba, Justice Spies was of the view that the lawyer in Cuba had the authority to grant a valid divorce pursuant to Cuban law. Justice Spies agreed. The parties had a substantial connection with Cuba when they applied for the divorce; they were born there, they married there and lived in Cuba for most their lives and their child was born there as well. The facts of this case bears resemblance to the Indyka case where the husband, although no longer a resident of Czechoslovakia, was granted with his divorce in Czechoslovakia because he had a ‘real and substantial connection’ to Czecholslavia which was sufficient to recognize the Czech divorce.

Given that Mr. Martinez had been divorced in Cuba prior to marrying Ms. Basail, Justice Spies found that the marriage was valid. If the marriage was valid in Cuba, it should be valid in Ontario for the reasons noted above.

In this case, the mother sought spousal support arrears and child support arrears for one of the parties’ three children.

Pursuant to the Divorce Act, in order to make a claim for child support, the children for whom support is sought must be either:

1. under 18 years of age and under parental control, or
2. over 18 years of age and, by reason of illness, disability or other cause, unable to withdraw from parental charge.

Pursuant to the Family Law Act, in order to make a claim for child support, the children for whom support is sought must be either:

1. under 18 years of age and unmarried, or
2. enrolled in school full time.

All three children in this case were over 18 years of age when this court action began, so options (a) above do not apply. The mother dropped her claim for child support arrears for the two older children because they were over out of school and not under parental control.

When this court action began, the youngest child had just finished school and had just returned from a vacation that was a graduation gift from the mother. The judge determined that the mother could apply for child support for this third child, even though she was technically no longer in school, because she was still under parental control. She was still considered to be under parental control because:

1. she had just graduated from school,
2. she had just returned from a vacation for which her mother paid, and
3. she had not yet entered the workforce.

Once it was established that the mother could claim child support arrears for the youngest child, the court had to determine how far back her claim for arrears should go.

Usually, parties can make a claim for support arrears from three years prior to broaching the subject of support. However, parties can claim arrears farther back than this three year time period if there is blameworthy conduct on the part of the payor.

The father’s blameworthy conduct in this case includes the following:

1. He failed to disclose his income, as required by the parties’ Separation Agreement.
2. When seeking a reduction in support because of a temporary decrease in employment income, the father failed to inform the mother of stock options from which he earned a significant income., and;
3. When the father stopped paying child support while he took time off work to care for his new spouse, he failed to mention that his new spouse was receiving a significant income while she was off work.

As a result of this blameworthy conduct, the mother thought that she was receiving an appropriate amount of support and thus had no way of knowing that she should have commenced this court action much earlier. Consequently, the judge ordered the father to pay child support and spousal support arrears in the amount of $463,000.00 as well as ongoing spousal support in the amount of $2,000.00 per month.

This case provides an example of when parties can make a claim for child support arrears even though the children for whom they are claiming are support are over the age of 18 and are no longer attending school fulltime.

This case also outlines how far back claims for support arrears can be made. In sum, claims for support arrears can go back as far as is reasonable, which is usually up to three years before the support recipient broaches the subject of support with the support payor. However, if the payor does not act reasonably, arrears can be ordered beyond this three year threshold. This procedure is meant to ensure that support payors do not benefit from their own wrongdoing.

This case also outlines what constitutes unreasonable/blameworthy conduct. In the judge’s words:

“I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support…Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct.”

This case deals with whether the parties were considered spouses for the purpose of claiming spousal support. According to section 29 of the Ontario Family Law Act, a spouse is defined as either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years or in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Essentially, the above definition of a spouse is broken down into a three part test whereby two persons who are not married and have no children must show the following:

1. that there was cohabitation;
2. that this cohabitation was continuous; and
3. that this continuous cohabitation spanned a period of no less than three years.

Without the above, the parties lack a legal standing that is required for common law couples who are claiming spousal support. In this case, the parties were never married and no children were involved. The male in the relationship was claiming that the parties were not a common law couple because they did not cohabit continuously for three years or more. The female in the relationship claimed in her amended Application that the parties lived together in February 2006 to February 2009. The female stated that the breakdown in the relationship was due to the conflicts with the other party’s daughter.

The Court noticed that despite the female’s amended Application, she did not correct the vagueness problem in relation to the time span of the relationship. However, the female provided third party evidence via affidavits from friends who used factual evidence to corroborate the cohabitation relationship. The Court found that all of the affiants did not have much contact with the parties during the alleged cohabitation period. For the most part, the affidavits were either vague or lacking a factual basis for the stated opinion.

The female also provided the Court with email exchanges between the parties that were meant to show that a husband-wife like relationship continued after December 31, 2008. However, the Court found that these emails represented a person that cared for the other’s wellbeing, and a person that was somewhat angered that his generosity had been manipulated. Nothing had suggested to the Court that this was a romantic relationship. Also, the Court noted that the male had changed the locks on the residence he had purchased during the “cohabitation” phase of this relationship, and he did not provide her with a key. The Court stated, “A relationship comes to an end when either party regards it as being at an end, and by conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”.

The Court decided that the husband-wife like relationship ended as of December 31, 2008, which was marked by the change of the locks, and the email exchanges that did not show a continued relationship. Once the Court decided that the female was not a spouse to the male because she did not meet the section 29 definition, the female was precluded from making a spousal support claim.