The motion, W. (K.S.) v. W. (S.), was about whether the youngest of two children could have private counsel appointed.

The motion was brought by the father who wanted a change in custody, access and the residential arrangements for the children ages 18, 15 and 12. This motion was also brought due to the mother’s intentions to move to Los Angeles.

The Office of the Children’s Lawyer refused to become involved due to timing issues. The mother sought an order to appoint a private lawyer for the children. The mother’s motion was persistently opposed by the father.

Analysis

The court began its analysis by first considering section 64 of the Children’s Law Reform Act which states that where possible the court shall take into consideration the views and preferences of the child.

Furthermore, Rule 4(7) of the Family Law Rules states that a court may authorize a lawyer to represent a child. As such, the court had jurisdiction to make an order to appoint a lawyer to the children, and in the end a lawyer was appointed to each of the younger two children.

The court was of the opinion that the issue was really about allowing the children to express their views with regard to the move. It was held that:

“because of the narrow focus of the role of lawyers in this case, I note by way of instructions to the lawyers that I am not expecting them to evaluate the capacity of Daniel and Hannah to retain and instruct counsel because that is not what either child is doing. Appointed counsel is not expected to advocate as particular outcome based on instructions from the child. Appointed counsel is expected to advise the court as to the child’s views and preferences in accordance with s. 64 of the Children’s Law Reform Act. A formal evaluation of capacity is not required.”

It is interesting that the court decided to appoint a lawyer for each child instead of appointing a psychologist or therapist to act in the capacity of the Office of the Children’s Lawyer, as the role of a lawyer in this position is somewhat confusing. The acumen of a therapist or psychologist is probably more appropriate.

In Chaudry, the Superior Court conducted a thorough review of the conflicting interests at play, where one party requests the interim sale of the home. This case also focused on setting aside an administrative order for dismissal, however, this analysis focused on the sale of the home, as that is a common issue that arises in divorce and separation.

Background

The parties were divorced in June 2008, and were eight years apart on what they believed to be the date of separation.

In June 2011, the Respondent husband brought a motion requesting the court to order the interim sale of the former matrimonial home, which both parties were registered owners of. The outstanding issues were equalization, the date of separation and support.

The Applicant wife was residing in the home with the parties’ 33-year-old son, who was diagnosed with schizophrenia-undifferentiated. The Applicant contested the Respondent’s motion, asserting that due to their son’s condition, it was best that she remain in the home with him. The Applicant’s position was that the issue should be dealt with at trial, as her claims for retroactive support, and an equalization payment, would off-set the Respondent’s entitlement to any proceeds from the sale of the home.

The Respondent, 68 years of age at the time of the motion, asserted that he required the interim sale of the home as the proceeds would assist him in making retirement related arrangements.

Analysis

The court looked to relevant case law, which outlines that prior to trial, the court has the jurisdiction to order the sale of the home. The court must however, consider whether the resisting party (often the party still residing in the home), has any competing interests which fall within the scope of the Family Law Act. Case law makes clear that the absence of such a competing interest results in granting the order for the interim sale.

The court will also look to the availability of a trial within a short period of time. This requirement establishes that even without reviewing the basis for the claimant’s request for the sale, the court acknowledges the claimant’s interest in having the matter heard and dealt with in a timely manner.

Relevant case law also stipulates that an order for the sale of jointly owned property, shall not be made in advance of trial, where there is a substantial right to be tried that is connected to the property.

A noteworthy issue in Chaudry is the Applicant’s failure to provide disclosure. Notwithstanding this fact, the Respondent conceded that an equalization payment would be payable by him, regardless of the correct date of separation. The issue of equalization was therefore restricted to the amount of the equalization payment, rather than entitlement to same.  Based on this fact, the court made clear that for the Applicant to obtain an order to receive the Respondent’s interest in the home, she would have to show that the amount of equalization owing to her was equal to or greater than the Respondent’s equity in the home.

In Chaudry, the court recognized that the Applicant had to establish a prima facie basis that dealing with the sale at trial would allow her to seek a legal remedy connected to the property. Based on her asserted claims, she would essentially have to show how the delay of the sale until trial, was necessary to determine the amount of equalization owing and support arrears she claimed to be owing.

In addressing the Applicant’s claims as outlined above, the court took into consideration that the Respondent had paid approximately $2,200.00 to $2,500.00 per month towards household expenses without any tax deductions. The court also acknowledged that the parties’ disabled son was in receipt of ODSP, which would minimize any support requirements. Furthermore, the Applicant had not established that she would be entitled to all of the Respondent’s equity in the home, and even more so how she could compensate the Respondent, if need be, once the equalization payment is determined. She also failed to show how she could carry all the household expenses and the mortgage, if the Respondent’s interest in the home was transferred to her.

An important point made by the court was such that joint owners do not have a right to purchase a property from the other owner. Therefore the Applicant was held to a prima facie proof of her claims to justify the matter being postponed to trial.

Based on the foregoing the court ordered the interim sale of the home, as there was no prima facie case that the Applicant had a legal remedy to be dealt with at trial, which was determinative on the property.

Conclusion

This case provides an incredible insight into the difficult analysis involved, when looking at competing interests as they relate to the interim sale of the home.  This case shows that an interim sale is anything but a matter of right, but nonetheless will be called for where there are insufficient grounds to postpone the issue to trial.

This case canvasses the issue of non-lawyer representation for litigants in family law matters.

BACKGROUND

The parties were divorced in 2011, via a comprehensive court Order that also addressed custody and access, child support, spousal support and property division.

In 2012, the Applicant Mother brought an application to change the support obligations under the said Order. In particular, the Applicant Mother alleged non-disclosure by the Respondent Father of his income information prior to and after the making of the Order, as well as alleged failure by the Respondent Father to contribute to the children’s special or extraordinary expenses.

Since making her Application, the Applicant Mother has brought other motions for documentary disclosure, wherein she repeatedly asked the court for permission for her boyfriend, Mr. Taylor, to represent her in relation to her family law dispute pursuant to Rule 4(1)(c) of the Family Law Rules.

Among several objections to the representation request made by the Applicant Mother, the Respondent Father cited the following:

• The Applicant Mother had previously been represented by lawyers in her legal disputes with the Respondent Father;
• The Applicant Mother had ample financial means to retain counsel;
• The Applicant Mother was well educated and able to represent herself if necessary;
• Mr. Taylor was the Applicant Mother’s live-in boyfriend;
• Mr. Taylor’s relationship with the Applicant Mother dated back to the time of the parties’ divorce proceedings, making him a potential witness with evidence relating to the matter;
• Mr. Taylor had no experience or training to conduct a case in court;
• Mr. Taylor had a history of open hostility toward the Respondent.

ANALYSIS

At the outset of its analysis, the court examined Rule 4(1)(c) of the Family Law Rules, which states:

“A party may be represented by a person who is not a lawyer, but only if the court gives permission in advance”.

In canvassing the relevant case law on the issue of non-lawyer representation the court articulated a number of general principles that should be considered by courts in decided whether to grant permission to a litigant in this regard.

Specifically, the court underscored that its discretion to permit non-lawyers to represent parties is very limited, and would constitute an exemption to s. 50(1) of the Law Society Act, which prohibits non-lawyers from appearing in court to represent parties.

Moreover, the court explained that the Rule must be interpreted narrowly, such that it should only be implemented in limited circumstances.

Under what circumstances, if any, does a spouse “own” on the date of marriage an entitlement to a severance payment that he or she later receives?

BACKGROUND

The parties were married in 1998 and separated in 2007. Prior to separation, the husband was terminated from his employment and was paid 18 months’ salary in lieu of notice and eight weeks of severance pay under the Employment Standards Act. It is the treatment by the court of this latter payment that forms the basis of the appeal.

Specifically, the trial judge held that since the severance payment had fully accrued before the date of marriage, it was a property interest held by the husband as of that date for the purposes of calculating his Net Family Property.

The wife appealed the trial judge’s decision.

ANALYSIS

To determine the treatment of the severance payment under family law, the Court of Appeal set out to answer three fundamental questions:

1. What is property?
2. What property is subject to deferred sharing?
3. On which date is property to be valued?

In formulating its answers, the court canvassed case law and scholarly work on these issues, articulating a number of principles along the way. For example, the court stipulated that the meaning of property under the Family Law Act must be guided by general property principles.

On this point, the court took special pains to emphasize that while property evades easy characterization, it is useful to think of it as a right over something that is enforceable against others. This said, the court clarified that property under the Family Law Act should not be read as including every interest, particularly those bearing no relation to the marriage.

Having reasoned in this manner, the court examined jurisprudence specific to the treatment of severance payments, and held that courts in Ontario have consistently held that entitlement to severance pay is only property once it has crystallized.

Moreover, the court stated that in order for a severance package to be considered property at the date of separation or date of separation, there must be a right or entitlement to it at that date.

Having regard to the particular facts of the case, the court reasoned that until the husband was terminated, he had no right or entitlement to severance. As such, the trial judge erred in concluding that the husband’s accumulated severance under the Employment Standards Act as of the date of marriage was property owned by him at that time.

Finally, the court explained that to permit the retroactive reclassification of property would inject uncertainty into court proceedings and potentially increase the consumption of time, money and energy involved in the resolution of family law disputes.

On this basis, the appeal was allowed in part.

Michael Shannon is living many parents’ worst nightmare. For 12, years Shannon has been separated from his two sons, one of whom he has sole custody of and the other which could not be removed from the state of Maryland without his consent. The children were abducted by their mother, Nermeen Khalifa, Shannon’s ex-wife who is an Egyptian citizen.

Many parents presume that they are protected from the other parent crossing the border with minor children, without their consent or court Order. Generally speaking, this should be the case. This matter, however, provides an insight into the extra precautions that should be taken by the custodial parent, as there are loopholes in the system which Shannon had to discover the hard way.

Background

As reported by CNN, 12 years ago, Khalifa asked Shannon if she could take the children to New York, from Maryland, to visit some of her family. Shannon reluctantly agreed. He was prudent enough to retain the children’s passports in his possession.

Sunday evening, the time at which Khalifa was to return with the children, came and went. Phone calls to the New York residence at which the parties’ were to be visiting, went unanswered and unreturned. Frantically, Shannon drove to New York, only to find the house empty of people and belongings.

As it turns out, Khalifa had fled to Egypt in what was alleged to be a well thought out plan.

At that time, one parent was able to apply for a new passport, regardless of custody, which Khalifa did, assumingly knowing that Shannon would not relinquish their passports or allow her to travel out of country.

For the past 12 years, Egypt has refused to Order the return of the children, and the US has no jurisdiction to enter the country and physically remove them, or demand their return.

The Law

The Hague Convention is an international treaty which provides protection to ensure that children are returned from where they were wrongfully removed. The issue with international law, however, is that countries elect to be bound by the treaties—or not.

As it so happens, Egypt is not a member of the Hague Convention, and thus Shannon cannot rely on the convention’s protection to return his sons.

As the only law that could bind the countries is non-applicable, it is essentially Egypt’s view against the US. And since Egypt actually has the children in its jurisdiction, for the time being, their view trumps.

Conclusion

Although this is an American case, it has important implications and warning signs for parents worldwide. Parents need to be aware of the potential risks when the other parent has the desire and potential, for whatever reason, to flee to another country.

Parents should take care to retain passports, as in Canada both parent’s consent is required to obtain or re-new a passport, unless there is a court Order specifically stating the contrary.

Furthermore, if another parent is a citizen of another country or has family in another country, it may be prudent to research whether that country is party to the Hague Convention, and determine what protection, if any, will be afforded should something go wrong.

Regardless of custody, and unless there is a court Order denying access, an access parent has certain interests that would be prejudiced by the other parent taking a child out of country. Access may go from being easily exercised, to almost impossible to exercise. Therefore, non-custodial parents should be advised that they still have a say in the matter, in so far as their ability to have meaningful access is concerned.

This is a scary, but important topic to keep in mind. Parents can protect themselves by being proactive, and in certain circumstances, considering worst possible scenarios, so that appropriate terms can be incorporated into court Orders to ensure they have proper protection and relief in the event of breach.

In the case Hazelwood v. Hazelwood, the mother appealed to the Superior Court of Justice from an order made in the Ontario Court of Justice where she was ordered to return the children of the marriage to Timmins, Ontario, or else turn them over to the care of their father.

Background

The parties married in December 2005 and had two sons, the first born in April 2005 and the other in January 2007. In October 2007, the parties moved from Toronto to Timmins. The parties eventually separated in July 2011.

In October of 2011, the mother initiated proceedings seeking among other things: sole custody, child and spousal support, and interestingly enough, an Order that the father “not remove the children out of the District of Cochrane, Ontario” without her written consent.

In March 2012, the Mother brought a motion (which eventually did not go forward) allowing her to relocate to Toronto with the children.  Prior to any Motion taking place, the mother left Timmins with the children and moved them to Toronto.

Shortly thereafter, the father brought his own motion seeking the return of the boys to the District of Cochrane, and temporary care and custody of the children.

The judge, who heard both parties’ motions simultaneously, ordered that the children be returned to the Timmins area on or before June 1, 2012. The mother then appealed.

Appeal

During the appeal, J. Gauthier reviewed the principles of case law including the principles illustrated by J. Marshman in Plumley v. Plumley stating:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstance that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

J. Gauthier also quoted J.Nelson in Serafin v. Serafin:

Thus, although it is open to the court to permit the move on a temporary basis, there needs to be cogent evidence to establish that the move is in the child’s best interest; that the determination of the issue cannot wait for trial; and that Ms. Serafin would likely be successful at trial.

The mother in the case at hand tried to argue that the children had already established a new routine in Toronto and therefore they should not be disturbed by having to return to Timmins. However, neither the motions court judge nor the appeal judge were swayed by this argument.

Although the outcome of this case is not unexpected, it is an imperative reminder that the courts will almost always order a return of the children to their home pending trial when there is a real and substantial issue to be tried.

Furthermore, this type of self-help that the mother chose to participate in, will only be detrimental to her at trial, as this type of behaviour illustrates that she is not concerned with the best interests of the children.

This case involves an appeal by a father of an order granting the mother custody of the parties’ children.

On appeal, the father claimed that the trial judge should have considered whether it was in the best interests of the children to order homogenous French language education for the children as a condition of awarding custody to the mother.

The father further asked the court to order the mother to enroll the children in a homogenous French language school.

BACKGROUND

The parties were married in 1996 and had three children. The father was a native French speaker who worked as a teacher in a homogenous French language school. The mother was a native English speaker with some knowledge of French and francophone roots.

The parties separated in 2006. At the time of separation, the children were all enrolled in a French Immersion program. While the father was initially agreeable to this educational program, he subsequently changed his mind and wanted the children to become enrolled in a homogenous French language program. The mother objected on the basis that the children should receive education in both English and French as they did under the French Immersion program.

LOWER COURT HOLDING

At trial, the father asked for sole custody, or in the alternative, joint custody of the children. He also asked the court to make an order stipulating that the children must be enrolled in a homogenous French language program.

After evaluating the parties’ parenting skills and the children’s best interests, the Superior Court granted custody to the mother with access rights to the father.

The trial judge’s reasons did not address the issue of the children’s education.

The father appealed.

ANALYSIS

At the outset of its analysis, the Court of Appeal recognized the role of the French language in Canada and extolled the virtues of homogenous French language education.

The court then established the standard of review for the trial judge’s decision, stating that custody orders made at trial are entitled to considerable deference and can only be interfered with where there has been an error in evidence or law. Even where such an error is found, the court emphasized that the best interests of the child must prevail in an appeal court’s analysis.

Having established it to be a common practice among courts to include conditions such as that requested by the father in custody orders, the court found that the trial judge erred in not even considering the option of ordering French language schooling as a condition of awarding sole custody to the mother.

However, in considering whether or not the Court of Appeal should itself make the order for French language schooling, the court found that as more than two years had passed since the date of the order, the overall situation and needs of the children had changed. In particular, the children had spent three additional years at their elementary school.

As such, the court ordered that despite the advantages the children would have enjoyed through homogenous French language instruction, a change in schools would not be in their best interests.

Clearly, this case is a cautionary tale to parties who do not immediately appeal decisions with which they are less than satisfied. As the case suggests, it is important to expediently move forward with an appeal to avoid the development of a status quo that may be difficult to displace.

The Spousal Support Guidelines are a non-binding tool used by courts to determine the amount and duration of support, with reference to factors such as the length of the marriage/cohabitation, age, and the income of the respective parties. Aujla v. Singh is a great example of a case where the facts do not lend themselves to a straightforward application of the Guidelines.

Background

The parties were married in India on August 28, 2004, pursuant to an arranged marriage, and separated in June 2009. There were no children of the marriage.

Both parties were in their mid 30s at the time the matter was heard.

The parties did not cohabitate for the full length of their marriage, as the Applicant only arrived in Canada, in May 2006.

The Applicant owned his own incorporated business, in which capacity he earned $34,000.00 in 2008 and then $48,000.00 in 2009 and 2010. He also earned $41,000.00 in 2011 and at the time the matter was heard, expected to earn $20,000.00 for 2012.

The Respondent was gainfully employed until she became disabled in 2006 shortly after the Applicant came to Canada. She was diagnosed with multiple sclerosis, which significantly inhibited her mobility. At the time the matter was heard, the Respondent was residing in a nursing home, and was restricted to a wheelchair, and was paying $2,166.58 per month to the nursing home. The Respondent also traveled to India to undergo an experimental medical procedure, and had a corresponding debt of $278.97 per month.

In 2011, the Respondent received $9,161.76 per month in CPP Disability Benefits, and $7,275.74 in long-term disability from Manulife Insurance. Since March 2011, the Respondent was also receiving $600.00 per month in interim spousal support from the Applicant, pursuant to a previous court order.

Sufficient to say, the Respondent had fallen on extremely hard times.

Analysis

According to the Spousal Support Guidelines, the Applicant was to pay between $156 per month and $208 per month, for a maximum of five years. The Respondent claimed however, that her spousal support entitlement should be $1,000.00 per month for an indefinite period. The Respondent further claimed that anything less than her request, would leave her destitute.

The Applicant, on the other hand, claimed that he could not afford the Respondent’s requested amount, and accordingly asserted that he would continue to pay $400.00, for a limited period of time.

The court acknowledged that the purpose of the Guidelines was to provide ‘order and predictability’ to spousal support calculations. However, the statutory language of the Divorce Act empowers the court with discretion to award a sum, which the court deems to be reasonable.

This reasonable analysis, brings the court to consider factors such as illness and disability, which are relevant considerations in this matter. The court acknowledged that when dealing with a matter where long-term disability is a factor, there are three approaches courts can take, which are exceptions to the standard application of the Guidelines. The three approaches are:

1. Lower Amount, Extend Duration: extend duration, even to the ‘indefinite’ while keeping the amount within the range, at or near the lower end;
2. No Exception: fix an amount in the range, often towards the upper end, and use the maximum duration;
3. Increase Amount, Extend Duration: increasing the amount and extending duration.

The third approach is the least common approach applied by courts, however it is the very approach the court elected in this matter. The court increased the quantum of support by setting it at $300.00 per month, and extended the duration by making support indefinite.

The only qualifier to the support awarded was that it is subject to change upon a material change in circumstance. This qualifier, however, does not work to the Applicant’s advantage in this particular case.  The nature of the Respondent’s disability is such that she is not likely to regain normal physical function, therefore the likelihood that a material change, being an improvement in the Applicant’s condition, such that she becomes self-sufficient is just not likely to happen.

Conclusion

This case provides insight into calculating support where the Spousal Support Guidelines are not easily applicable. It is important for parties to be mindful of the role that disability and illness can play when analysing support obligations and entitlement.  As was seen in Aujla, notwithstanding a short marriage and an Applicant’s relatively low income, there is still a potential for steep support obligations.

The moral of the story is that the presence of long-term illness and disability can require someone to pay much, much more than they bargained for.

The parties in Osanlo v. Onghaei were married in Iran in 1999 and had two children. They successfully applied for landed immigrant status in Canada and moved to Richmond Hill in 2008. In 2011, the parties, with their children, returned to Iran to celebrate the Iranian New Year on March 20. While in Iran, all of the wife’s identification including her birth certificate, passport, permanent residence card and other Canadian identification went missing. Shortly thereafter, the husband left for Canada with their two young children. Upon realizing that the husband left with the children, the wife discovered that the husband had barred her exit from Iran, as under Islamic law, a wife cannot leave Iran without her husband’s permission.

Before the wife could return to Canada, the husband sold the matrimonial home without the wife’s consent and also cohabitated with another woman. From Iran, the wife was able to instruct Ontario counsel to obtain an emergency Order with respect to the sale proceeds of the property and obtained an order that the husband not remove the children from Ontario.

The wife was able to return to Canada in June of 2011. Upon arrival she learned that she had been replaced by her husband’s second “wife,” Ms. Alimardani, who was now caring for the parties’ children.

The wife brought an Application for interim spousal support and other relief as she had no savings, financial means, or the ability to earn income in Canada.  The judge found that the wife’s entitlement to spousal support was not an issue.

The husband’s financial affairs were a “mystery” as quoted by the Judge. He did not disclose Financial Statements for his business, nor did he disclose any Corporate Tax Returns, company or personal bank accounts, or any details pertaining to his assets or debts within his Financial Statement.

The Court observed many inconsistencies within the husband’s pleadings, affidavit materials and submissions. His Line 150 income during and after the marriage did not correlate with his personal and family’s lifestyle. As such, the Judge took the husband’s expenses as the best indication of his income for support purposes only. The Judge stated that the husband’s expenses were being met without resulting in debt and so she imputed the husband’s income at $120,000.00.

This case is important for two reasons:

First, the Judge found that this was an appropriate case to deviate from the SSAG, as she saw no basis to award an amount limited to the range of SSAG, as in the Judge’s opinion, “to limit the award of spousal support to the high range of the custodial formula would in my view frustrate the intention of the Guidelines: to financially support the role of a primary care parent.” As such the Judge made an award outside of the SSAG framework.

Second, the Judge also made an order for disclosure in which the Judge ordered what disclosure as requested by the wife had to be provided by the husband and if the disclosure was not provided, the husband would not be able to take any further steps in the proceedings until he produced same.

This case is an appeal from an order requiring a husband to reinstate his life insurance policy and to designate his wife as a beneficiary thereof.

BACKGROUND

The parties were married in 1982 and separated between 2001 and 2002. There are five children of the marriage, two of whom are considered special needs and who could require parental support for the rest of their lives.

In 2006, the husband was ordered to pay periodic child and spousal support. In 2007, the husband was ordered to designate the wife as a beneficiary in trust for the children of a life insurance policy with a value of $900,000. The said policy was intended to secure any outstanding support obligations that the husband might have in the event of his death.

Following the husband’s loss of employment in 2009, the court made a temporary order suspending the obligation to pay child and spousal support. After protracted litigation on the subject of life insurance, in January 2011, Justice Ferguson ordered that life insurance continued to be necessary to support the children who would require lifelong parental support.

Further, as the husband had pleaded that the policy in question was no longer even in existence, Justice Ferguson found him in contempt of court and ordered that he reinstate the policy in the amount of $400,000.

In August 2011, the husband was granted leave to appeal.

ANALYSIS

The crux of the husband’s appeal was that Justice Ferguson erred by imposing an obligation to designate a life insurance policy at a time when he had no support obligation.

The Ontario Divisional court did not agree with the husband’s assertions in this regard. Rather, in its reasons, the court cited subsection 34(1) of the Family Law Act, which provides that pursuant to an application for an order of support, the court can make an order requiring a party to designate their spouse or child as the irrevocable beneficiary of a life insurance policy.

Instead, the court found that Justice Ferguson had erred in another respect. In particular, the court found that subsection 34(1) only provided jurisdiction to designate a beneficiary, but not to obtain life insurance or to reinstate a policy. As such, in requiring the husband to reinstate his policy in the amount of $400,000, the court found that Justice Ferguson had made an error of law.

In the result, the court allowed the husband’s appeal on the issue of the reinstatement of his life insurance.