The parties in this case were married in Turkey on September 21, 1995. They moved to Canada in 2006 and resided in Oakville, Ontario. They separated in 2008 and two motions were brought before the court.

The Applicant Mother was seeking an order for custody of the child of the marriage, namely, Onur Anamur, and the Respondent Father brought a motion seeking custody of the child and further that the child be transferred to Turkey along with the hearing of the herein matter.

In November 2009, the Respondent Father commenced a legal proceeding in Turkey. The Applicant Mother was not served with the appropriate motion materials. The Turkish Court made an interim order awarding the Respondent Father with guardianship of the child. Subsequently, in December, 2009 the Respondent Father brought this Motion relying on The Hague Convention arguing that the child was wrongfully removed from Turkey and section 22 of the Children’s Law Reform Act (CLRA), which provides the court with circumstances where an order regarding custody and access can be made.

Although the term ‘habitual residence’ is not defined in the Hague convention, the general principles to determine same are found in case law, (Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.) and Jackson v. Graczyk, 2007 CarswellOnt 3216). They are as follows:

• The question of habitual residence is a question of fact to be decided on all the circumstances;
• A person’s habitual residence is the place where that person resides for an appreciable period of time with a “settled intention” to do so;
• A “settled intention” is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family; and
• A child’s habitual residence is tied to that of the child’s custodial parent.

The child was residing in Ontario with the consent of the Respondent Father for the purposes of bettering the child’s life and education. The Respondent Father had sworn an affidavit in April, 2009, stating the following:

We immigrated to Canada on March 11th, 2006, but permanently moved to the province on December 11, 2006, hoping to give a better future our son, Onur.

The above further demonstrates the intention of the parties to reside in Ontario for the purpose of bettering the child’s life. Therefore, the court found that the Hague Convention had no application in the herein matter.

Section 22 of the CLRA gives jurisdiction to the Ontario Court to make an Order regarding the custody and access of the child.

Subsection 22(2) of the Act defines habitual residence as follows:
(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

Given that the child was living with the Respondent Mother in Oakville at the commencement of the application, the child was residing in Ontario for the purposes of section 22 of the CLRA.

The Applicant Mother’s motion was allowed. An order was made for sole custody of the child to the Applicant Mother. The Respondent Father’s motion was dismissed. The court did not recognize the order of the Turkish court as the Respondent Father had attorned to the jurisdiction of the Ontario Court.

This case deals with determining whether another home of a married couple, namely the cottage could be considered a matrimonial home at the date of separation. The cottage was registered in the Husband’s name and was an inheritance from his Mother.

The issue in this case is if there is a finding that the cottage is a matrimonial home, then the Husband could not exclude the cottage from his net family property. This would effectively mean that the married couple get to equally share the value of the matrimonial home. Of course the Husband argued that the cottage was not a matrimonial home and since it was an inheritance he would be able to exclude it from his net family property.

The decision has reinforced the well-known idea that parties may have more than one matrimonial home. According to section 18(1) of the Ontario Family Law Act (“FLA”) the definition of a matrimonial home includes:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

The Wife argued that the family used the cottage during the winter frequently. For the last four years of their marriage, the Husband spent more time at the cottage than at home. In comparison, the Husband stated that his Wife was disinterested in the cottage and that for the last two years of their marriage she hardly went to the cottage. As the marriage deteriorated, the Husband spent more time at the cottage.

The Court decided that the cottage was extensively used by the entire family from the date of marriage and on a going forward basis. The cottage was renovated by both parties through joint funds and joint labour. The family had spent the last two holidays leading up to the date of separation at the cottage. The Court made it patently clear that just because the Wife did not spend as much time as the Husband at the cottage because she had an inflexible work schedule, this does not override the fact that the parties and the children were at the cottage together. The important point is that there was family use that occurred up until the date of separation.

The Court clarified that under section 18(1) of the FLA, there is no condition that requires spouses to occupy the matrimonial home together or concurrently. It simply provides that both spouses must be occupying the home as a “family residence” at the date of separation. Arguably, if a family is using their cottage on weekends during the summer, there is a propensity to characterize the property as a matrimonial home. It is important that counsel be reminded that section 18(1) of the FLA does not mention that the asset (home) must be habitually used for family purposes or as accommodation.

There are situations where the Court is trying to determine whether there has been a change in user enough to alter the classification of the residence. In such situations, the Court should consider the following:

1. The Court should be given a time frame within which to decide whether the change in user has occurred;
2. The failure to use the property as a residence should be viewed in the context of an ordinary user, specifically look at whether in the past the residence was ordinarily used;
3. Has the user been altered since it was previously occupied; and
4. If the user is altered, is the difference sufficient to justify changing the characterization of the property?

Accordingly, the Court decided that the cottage was a matrimonial home at the date of separation. The Court made a point of saying that if a cottage is used on weekends during the summer, and a couple separate in the winter, and there is a lack of use during the winter, this does not negate the property as a matrimonial home.

In this case, the Boyles sought increased access with their three grandchildren. The mother objected to increased access because of the hostility that the Boyles had for her, because they showed favouritism for the eldest child, and because she was worried that the Boyles would allow their son, the children’s father, access with the children. The father was denied access because he was suffering from a drug addiction.

This case began when the mother fled with the children without telling the grandparents where she was going. When the grandparents found out where the mother was staying, they took one of the children with them and appeared to use this child as leverage to gain access with the other two children.

As social worker’s report recommended that the grandparents and the mother have joint custody of the children. This recommendation held little weight because it seemed to be founded upon the premise that the mother owed the grandparents gratitude for allowing her to stay with them when she was teenager.

Ultimately, Justice Tucker sided with the mother. She believed that the grandparents lacked credibility, that the mother’s witnesses were reliable, and that the fact that the mother fled from the Boyles, taking only a diaper bag with her, supported the mother’s claim that she only fled because the grandparents threatened to keep the children if she tried to leave.

The grandparents were denied further access with the children and the access schedule, whereby the grandparents spent every other Sunday with the children, was not varied. Justice Tucker stated that increasing access with the grandparents would only expose the children to more hostility, which is not in their best interests. She made it clear that the grandparents’ and the children’s love for one another did not mean that greater exposure to the grandparents was in the children’s best interests.

The grandparents’ Application was not entirely dismissed. They were granted birthday and Christmas access, as well as the right to be reasonably informed of, and participate in, any holidays or special events.

This case was a long motion heard by Justice Ellen MacDonald in the Ontario Superior Court of Justice in Toronto. The Applicant wife, Rachelle Tauber, was seeking to have her husband’s lawyer removed as the solicitor of record for the Respondent husband in their matrimonial matter. Ms. Tauber alleged that retaining the husband’s lawyer created a conflict of interest as she had previously spoken with that lawyer regarding her matrimonial matter and was thinking of hiring him.

In June of 2009, Ms. Tauber contemplated changing lawyers. She already had counsel at the time, but her friend had recommended that she speak with another lawyer. The husband subsequently hired that lawyer five months after the lawyer’s conversation with Ms. Tauber. Ms. Tauber spoke with the husband’s lawyer on the phone for seven minutes regarding her matter. The husband’s lawyer and Ms. Tauber arranged a meeting for the following week; however Ms.Tauber cancelled the meeting and she decided that she would like to continue being represented by her existing lawyer. The husband’s lawyer did not record any notes of the conversation that took place between them, nor was there a file opened for Ms. Tauber. Ms. Tauber alleged that the conversation contained confidential information, while the husband’s lawyer denied same.

Justice MacDonald considered the following question in determining whether there was a conflict of interest:

Does the seven minute telephone call with Ms. Tauber place the husband’s lawyer in a conflict of interest when he was retained by Mr. Tauber five months later?

The leading case on this issue is MacDonald Estate v. Martin. The court in that case asked two questions in order to determine whether a conflict of interest can be established:

1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand; and
2. Is there a risk that it will be used to the prejudice of the client?

The second part of the test can only apply if the confidential information has actually been received by the lawyer. Although Ms. Tauber claimed that she had given confidential information to the husband’s lawyer, she was not able disclose to the court what that information was and why the information was confidential. There was no evidence submitted to demonstrate that there was an exchange of confidential information. Therefore, Justice MacDonald found that the test could not apply in this particular case. If there is no confidential information provided, then there is no risk of prejudice to the client. Justice MacDonald held that the husband’s lawyer can continue to represent Mr.Tauber. Solicitor-client privilege could not be established in this case. Justice MacDonald found that a minimal amount of contact, such as a telephone call with a prospective lawyer, should not disqualify that person’s spouse from being able to retain that lawyer later on.

The motion was dismissed with costs.

This case deals with Section 46 of the Arbitration Act. The parties entered into a Separation Agreement that included a clause regarding dispute resolution. The parties agreed to resolve all issues that arise from the Separation Agreement through Mediation/Arbitration. Both parties were provided independent legal advice regarding the Separation Agreement.

Prior to the family arbitration session, the parties, who were common-law partners, signed an Arbitration Agreement. The Arbitrator had informed both parties of the change in legislation regarding family arbitrations, more specifically, that parties could not opt out of all rights of appeal.

The parties used arbitration to resolve their property issues, specifically the home of the relationship. Mr. Cunningham was arguing for an unequal interest in the home. He argued for a greater interest. Conversely, Ms. Moran argued for a 50% interest in the home. At the end of the day, the Arbitrator decided to give the parties an unequal interest in the home, with Mr. Cunningham having a greater interest.

Since the arbitration award, Ms. Moran was unable to realize her interest in the property and Mr. Cunningham continued to dwell in the disputed home. Subsequently, Mr. Cunningham decided to challenge the arbitration award through two avenues: (1) an appeal; and (2) a Section 46 Motion.

The grounds for Mr. Cunningham’s Section 46 Motion was that the Arbitration Agreement is invalid because (a) the agreement to preserve some appeal rights was not done in writing; and (b) no certificates of independent legal advice were obtained. Mr. Cunningham’s Section 46 Motion was dismissed.

Mr. Cunningham decided to bring another section 46 Motion for reasonable apprehension of bias. The Court stated that Mr. Cunningham cannot bring a second motion under section 46 because he already argued section 46 in his first motion and had the opportunity to raise alleged bias then. Moreover, Mr. Cunningham had the opportunity to amend his pleading during his first motion to include alleged bias as he was aware of the bias at the time.

The Court determined that prior to Mr. Cunningham’s first motion; he had knowledge of the alleged bias through email correspondences between the Arbitrator and Mr. Cunningham. Mr. Cunningham had emailed the Arbitrator stating that the arbitration award should be invalidated because the Arbitrator had a conflict of interest with Ms. Moran. Allegedly, the Arbitrator had a close association with the University of Toronto, the same institution where Ms. Moran is the Dean of the Faculty of Law. As a result, it was Mr. Cunningham’s belief that any decision made by the Arbitrator would be reflective of actual bias and a serious lack of impartiality. The Arbitrator replied that he had never met Ms. Moran until the Arbitration, and just because he taught at the same school, this does not automatically mean that there is bias or an apprehension of bias.
The Court dismissed the second motion as this was considered res judicata. This doctrine means that a person is precluded from bringing an action when the same cause of action has been already determined in earlier proceeding by the Court.

Once both motions were dismissed, there was an outstanding appeal that was left to be heard. However, the Court stated that Mr. Cunningham would have to pay for his motion costs before he proceeds to an appeal. Also, in his appeal, he would be unable to argue a reasonable apprehension of bias because he did not claim this issue in his initial proceeding.

The Miller v. Volk 2009 decision of the Honourable Justice Blishen concerns the application of Section 9 of the Federal Child Support Guidelines (Guidelines) and a shared parenting regime.

The parties entered into a separation agreement in 2003, which provided that the two children of the marriage reside equal time with each parent. The parties had agreed that the Respondent, Ms. Volk pay the Applicant, Mr. Miller child support based on the parties respective incomes at the time of the agreement using the set off or subtraction method. The Agreement between the parties formed part of the Divorce Order dated April 23, 2003.

Mr. Miller argued however, that there has been a material change in circumstances, namely that Ms. Volk’s income has significantly increased and this factor should be accounted for when determining the appropriate quantum of child support payable. Ms. Volk accepted that there was an increase to her income, however argued that her contribution to the children’s expenses for clothing, footwear and extracurricular activities etc, should be considered having regard to all of the factors in Section 9 of the Guidelines. They are as follow:

Section 9: where a spouse has access or physical custody of a child for not less than 40 percent of the time over the course of a year, the amount of child support order must be determined by taking into account the following:

1. the amounts set out in the applicable tables for each of the spouses;
2. the increase costs of the shared custody arrangements and;
3. the conditions, means, needs and other circumstance of each spouse and of any child for whom the support is sought.

The Supreme Court of Canada in Contino v. Leonelli-Contio analyzed section 9 of the Guidelines and emphasized that the set off approach is only a starting point and the weight of each factor under section 9 will vary according to the particular facts of each case.

Taking into account the Contino analysis as well as the parties Separation Agreement, Justice Blishen found that the set off formula should continue, however she also considered other factors in determining the appropriate amount of support. Justice Blishen took into account the following factors:

• The income disparity between the parties and two households,
• Ms. Volk’s partner’s contribution to her household,
• Mr. Miller’s partner’s pregnancy,
• Mr. Miller’s loss of his employment, and
• The parties’ respective net worths.

It is important to note that generally parties cannot make an agreement for children that contract out of the Guidelines, however in this circumstance the agreement between the parties did not disadvantage the children, therefore in such circumstances the court may not interfere with the parties arrangements.

To conclude, Justice Blishen ordered that the set off approach continue. Ms. Volk was ordered to pay 86 percent of the children’s expenses and Mr. Miller was ordered to pay 14 percent based on their respective incomes.

In this case, the mother was asking the court to impute an income of $100,000.00 to the father for the purposes of determining temporary child support on a Motion.

According to his income tax returns, the father’s income left him well below the poverty line. However, he was a highly-skilled manager, financial advisor and insurance salesperson with years of experience who paid approximately $3,000.00 per month in expenses, who only applied for one job over the past six years, and who earned $150,000.00 in years prior to separation.

After determining that the father was intentionally underemployed and that he did not disclose his full income, Justice Sherr imputed him an income of $45,000.00.

In determining this amount, Justice Sherr allowed government reports that listed average salaries for different types of employment in as evidence. However, the father was imputed an income far below the reported average income for insurance salespersons and financial advisors because the father was 60 years old, had not worked for anyone other than himself for several years and, as such, would likely not earn as much as an average insurance salesperson or financial advisor as soon as he re-entered the job market.

Justice Sherr noted that the trial judge would likely attribute a higher income to the father after a full hearing of the facts and pointed out that this judgement might be difficult to enforce because the father was in breach of Support Orders made after the breakdown of a previous relationship.

This is an adoption case with very peculiar facts. Basically, the biological mother told the biological father that the child died shortly after birth. She then told him that the child was alive, but not his biological child. A paternity test determined that he was indeed the biological father. By the time this was determined, the biological mother had put the child up for adoption and, at the time of this Motion, the child was in the adoptive parents’ care.

According to legislation, adoption requires the consent of every parent of the child. So, after a determination that he was indeed the biological father, the adoption should have been invalidated because he did not consent to it. Unfortunately, the biological father did not meet any of the statutory definitions of ‘parent’ at the time of the adoption.

However, all was not lost for the biological father. Justice Mackinnon found that she could not allow the biological mother to benefit from her deception, so she used her inherent jurisdiction as a Superior Court Judge (or alternatively, parens patriae, a legal doctrine that allows courts to assume jurisdiction under circumstances that include finding a gap in legislation) to find the adoption placement invalid against the biological father. This means that Justice Mackinnon found that the biological father did not transfer his parental rights to the adoptive parents.

But, this was not the end of the story, or the decision, because the biological father’s interests were not the only ones relevant to this Motion. There were also the interests of the adoptive parents, who are also innocent parties to this case. The adoptive parents should not have their child taken away from them because of the biological mother’s lies. And, of course, there were the interests of the child to consider. It is not in the child’s best interest to be taken away from the only family she has ever known, nor is it in her best interest to be denied the opportunity to live with her biological father because of her biological mother’s lies.

To balance these competing interests, Justice Mackinnon held that the biological father’s custody application and the adoptive parents’ Motion to dispense with the biological father’s consent to the adoption be heard in one trial. This will ensure that the father’s claim for custody could not be made moot by a finding that his consent was not required for the adoption to proceed.

The case at bar is an appeal from the order of Justice Snowie, which arose out of two actions that were tried together. One action was a matrimonial proceeding between a husband and wife. The other action was in regards to two possible debts: one owed by the husband and wife to the wife’s brother and one owed to the wife by her mother. These actions were tried together because the determination on the debt issues would affect the amount of the equalization payment made in the matrimonial proceeding.

The ‘Debt’ Owed to the Brother: The trial judge found that the husband and wife owed the wife’s brother $200,000.00 because they gave him a promissory note promising to repay this amount. The husband argued that the trial judge erred in finding that there is a debt owing to the brother because the evidence indicated that there was no expectation that the $200,000.00 would ever be repaid.

The Court of Appeal agreed. It was held that the trial judge erred in failing to take into account the document evidence demonstrating the understanding between the parties involved. It was clear from this evidence that the brother would not make a demand on the promissory note and that the money was a gift and not a loan.

The court ruled that just because it looks like a promissory note, doesn’t mean it is one if there is proof that the parties agreed that this debt would never be paid. In this case the parties stated in the ‘promissory note’ “We are prepared to go along with the settlement because Robert Posa has assured us that he will never make a demand on the note,” as is the case here, then there is no promise. The brother even confirmed this assurance in a handwritten note indicating that the husband and wife do not have to pay him any interest or principal accrued on this amount.

The court set aside the trial judge’s order and dismissed the brother’s action against the parties finding that the brother had gifted the money to the wife.

The wife also submitted that two (2) documents titled ‘Instructions’ from 1996 and 1999 constituted domestic contracts, where the husband had agreed to release any claim he had to share in the monies from the promissory note. Section 55. (1) of the FLA establishes the requisite formalities for an enforceable domestic contract:

55.(1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

The parties did not meet this test and as such it was not an enforceable domestic contract.

This case deals with the imputation of income for child support. Imputing income is when the judge finds that the amount of income the payor parent is claiming is not a fair reflection of their income. As a result, the judge attributes income that is either based on an estimated income that reflects the payor’s capability of earning (which means the payor has the ability/skill to make this income, but deliberately chooses not to) or the Court will use actual figures if they exist (e.g. when the payor leaves a higher paying position for a lower paying position with no valid reason other than to evade paying higher support).

The Mother in this case was asking that the payor Father’s income be imputed at $90,000.00 per annum. However, the Father wanted to pay child support based on his actual income of $25,000.00 per annum. The Mother argued that the Father was purposely under-employing himself as he had earned a Software Engineering Degree and decided to work as a security guard instead. The Father argued that his actual income of $25,000.00 per annum should be used to determine his child support obligation.

According to Section 19(1)(a) of the Child Support Guidelines,
(1) the court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

The onus of establishing intentional unemployment or under-employment rests on the Mother (person requesting the imputation of income). In order to establish intentional under-employment or unemployment and impute income, there is a three part test to satisfy.

1. Whether the payor is intentionally under-employed or unemployed – for instance, if he or she chooses to earn less than what he or she is capable of earning. The Court must look at whether the act is voluntary and reasonable;
2. Whether there is a reasonable justification for the underemployment – If the payor is intentionally under-employed, is this by virtue of his/her reasonable educational needs, the needs of the child of the marriage or reasonable health needs; and
3. If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed? The court considers the payor’s capacity to earn income in light of their employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. Basically, the court looks at the amount of income the party could earn if he/she worked to capacity.

The defence available for avoiding an imputation of income is to show that the under-employment is reasonable. A parent is able to take a job with less income so long as the decision is reasonable. The ideal way of exemplifying reasonableness is through providing evidence that shows such under-employment is meant for

1. educational needs,
2. the needs of the child or
3. health needs.

The Father claimed he no longer pursed a career in software engineering because of his carpal tunnel syndrome. The problem with his claim is he lacked medical evidence to prove his health need. Also, the Father claimed he wanted to get a Master’s degree and a Ph.D. in software engineering, yet again, he lacked evidence to show that he would go through with this plan (e.g. registering for courses).

At the end of the day, the Court found that the three part test was satisfied. The Court decided that the best evidence to support the amount of imputation of income was presented by the Father. The Father stated that based on his training in software engineering being at entry-level, his education, and the job market for the computer industry, his income should be imputed at $45,000.00-$50,000.00 per annum and the court relied on this amount.