The Status Quo in Ontario Family Law

When a custody dispute arises under Ontario family law, the child’s status quo becomes an important consideration for the family court. All judicial decisions affecting a child are determined by the best interest of the child. One factor in ascertaining the child’s best interest is the status quo. Parties to a family law dispute must therefore carefully contemplate not only the child’s best interest but also their strategic bargaining position when entering a temporary agreement or consent order changing the child’s residence.

Sometimes parents unilaterally change the status quo, as the mother did in Cosentino v. Consentino, 2016 ONSC 5621 (CanLII). Here, mother entered a custody and access agreement with father and then unilaterally decided to move the child from Hamilton to Niagara-on-the-Lake, Ontario. Not surprisingly, father brought a motion in the Superior Court of Justice for various relief including sorting out the access and custody arrangement now that mother changed the status quo.

The family court took quite a dim view of mother’s actions. Justice Pazaratz opened his judgment with a warning: “Parents should think twice about trying to move a child to another city in the middle of a custody dispute. In any contest between ‘best interests of the child’ and ‘fait accompli’- best interests will always prevail”. Mother was ordered to transport the child to and from school and access with father, both in Hamilton, from her residence in Niagara-on-the-Lake as required by the circumstances. This was a temporary order and the parties were required to return to court to canvass the child’s best interest more fully.

Justice Pazaratz’s message is clear: the status quo matters and often has a long lasting effect. It is therefore important for parents involved in custody and access disputes under Ontario family law to contact a Toronto family lawyer before making such an important decision.

Jeffrey L. Hartman 

Tis the Season – Motions to Change a Child’s School

A new school year is around the corner. For Ontario family lawyers, this means disputes over where a child will attend school are brewing .

The chief objective in these cases is to determine which school will go furthest in promoting the child’s best interests.  Hamid v. Hamid, 2010 ONSC 2013 (CanLII) confirms the current analytical approach to evaluating various schools.

The Superior Court in Hamid starts with Asklan v. Taleb, [2012] ONSC 4746, which outlines seven focal points for consideration, including:

1)      Assessment of any impact on the stability of the child;

2)      Consideration of how many years the child has attended his or her current school;

3)      Whether there is any prospect of one of the parties moving in the near future;

4)      Where the child was born and raised;

5)      Whether a move will mean new child care providers or other unsettling features;

6)      Decisions that were made by the parents prior to the separation or at the time of

separation with respect to schooling;

7)      Any problems with the present school.

This is a non-exhaustive list. Factors such as proximity to the parents’ residences and convenience to the parents are not relevant, per Wilson v. Wilson, [2015] ONSC 479, as the analysis focuses on the child’s best interests, not the parents’. To that end, the overarching consideration is what school will give the child the best competitive advantage, go furthest in promoting their confidence and motivation, and facilitate important relationships the best. See Schloegel v. McCroary, [2012] BCSC 1606 for further information.

Jeffrey L. Hartman



Legal Framework for Supervision Orders in BC

In British Columbia, access with a child can subject to supervision when unsupervised parenting time is contrary to the child’s best interest. Access can be supervised by a trusted third party including family, friends, social workers, and so on.

This article outlines the legal framework governing orders for supervised access.

According to F.K. v. M.K., 2010 BCSC 563, supervision orders aim to:

  • Protect children from risk of harm;
  • Continue or promote parent-child relationships;
  • Encourage or compel parents to undergo counselling or treatment to deal with parenting issues;
  • Create a bridge between no relationship and a normal parenting relationship; and
  • Avoid or reduce family conflict that impacts upon the children.

In V.S.J. v. L.J.G., [2004] O.T.C. 460 (S.C.J.), the Court stated that when terminating or restricting access, it is essential to weigh and balance the factors affecting the child’s best interest, including:

  • The maximum contact principle;
  • The right of a child to know and have a relationship with each parent;
  • A limitation of a consideration of parental conduct to that conduct which impacts on the child;
  • The risk of harm including emotional, physical and sexual harm;
  • The nature of the relationship between the parents and its impact on the child;
  • The nature of the relationship and attachment between the parent and the child; and
  • The commitment of the parent to the child.

The Court in F.K. also advised that evidence of exceptional circumstances is usually required to obtain a supervision order because it is one step away from complete termination of the parent child relationship.

The above cases were decided under the Family Relations Act which has been replaced by the Family Law Act. However, as noted in Q.B. v. W.I.M., 2014 BCSC 219, the same principles continue to apply under the new law.

For a recent decision applying these principles, please see J.J.T. v. J.A.S., 2015 BCSC 628.

Jeffrey L. Hartman

Thinking of Barring Review of Child Support?

Cantlon v. Folk-Klein, 2016 BCSC 868 is an interesting decision because it discusses, among other things, barring review of a child support obligation until a future date.

The parties obtained a previous order which barred review of the payor’s child support obligation until 2019, despite any material change in circumstance. In 2016, the payor brought an application to vary child support and the payee relied on the provision barring review.

On application, the provision was found to improperly impede the court’s ability to assess the children’s best interests, which seems like the right result. The bar also seems manifestly unfair to the payor and one wonders why it was ordered in the first place.

The take away point is, if you are thinking about barring a review despite a material change, think twice.

Jeffrey L. Hartman

Resulting Trusts & Credible Witnesses – A remedy for unmarried spouses’ property disputes

This article was written by Cristina P. Baer of Henderson Heinrichs LLP.


Unmarried people in domestic relationships are not afforded the same statutory property rights as are married spouses. The property consequences of the breakdown of common law relationships are instead governed by the common law- namely the principles of resulting trusts and remedial constructive trusts.

The recent case of Chechui v Nieman, 2016 ONSC 1905 dealt with resulting trust claims to a jointly owned home and a joint investment account, brought by the respondent. The applicant claimed half interest in both. While both assets were held jointly, Justice Hood found that equal ownership only applied to one – the home.

Equity presumes bargains, not gifts.  The applicant did not rebut the presumption that the respondent did not intend to gift half the value of the $800,000 transferred into an investment account jointly held by the parties. This investment came from the net proceeds the respondent received from the sale of the couple’s previous home, owned by him and his late mother. Importantly, citing Pecore v Pecore, 2007 SCC 17, the Court emphasized that the transferor’s actual intention is the only consideration in the analysis. In Kerr v. Baranow, 2011 SCC 10, the SCC declared that the “common intention resulting trust” was doctrinally unsound and that it should have no continuing role in the resolution of domestic property disputes. The SCC did not, however, preclude “traditional resulting trust principles” from having a role in the resolution of property disputes.

It followed in this case then, that  Justice Hood only analyzed the evidence that pointed to the transferor’s actual intention behind the investment account, rather than the irrelevant evidence) surrounding the common intention of both parties. So, no more confusing use of “common intention resulting trust” doctrine.

Ascertaining the transferor’s intention, on a balance of probabilities, was challenging for Justice Hood who made clear that he had difficulty in accepting the respondent’s evidence as credible and reliable.  In sum, he saw through the respondent’s evidence and found him to be more of an argumentative advocate than a forthcoming, balanced witness. He did not buy the respondent’s assertions that he signed the investment account documentation without understanding what it meant or without reading it because he trusted an investment advisor. However, just because he didn’t believe the respondent, the credibility of the evidence given by his investment advisor was, fortunately for the respondent, not harmed. Relying on this evidence only, the Court was satisfied that the main objective in setting up the investment account as it was, jointly, was to benefit the applicant as a beneficiary should something happen to the transferor respondent.  The intention to gift 50% of the investment account was not found and the presumption was not rebutted.

In contrast, a trust claim could not be made against the home held in joint tenancy. Again, third party evidence (the real estate agent, real estate lawyer, and the applicant) was relied upon to ascertain the intention of the respondent, rather than his own evidence.  The Court found that the presumption of resulting trust did not apply to the payment of a million dollar line of credit towards the house by the respondent. Citing Dale v Salvo, (2005) OJ No 3111 (SC), mortgage payments after purchase are irrelevant to resulting trust claims. However, even if it were to apply to the payment, the Court found that he had gifted this amount. The home was ordered to be sold and divided.

Chechui v Nieman is a useful case for illustrating when resulting trust claims can succeed, and when they cannot, as a remedy for property disputes between common law spouses.

Cristina P. Baer




Offers to Settle under Ontario Family Law

A major objective of the Ontario family law system is out of court settlement. Rule 18 of the Family Law Rules provides a code for offers to settle and Ontario family lawyers obviously must be familiar with those technical requirements.

The recent decision of Hoadley v. Hoadley, 2016 ONSC 3083 teaches Ontario family lawyers how to handle offers to settle that are non-compliant with Rule 18. In these circumstances, offers to settle are still valid and capable of acceptance under the rules of contract law (Smith v. Smith, [2007] O.J. No. 1947). Settlements are binding at contract law if there is agreement on all essential terms; in other words, if there is consensus ad idem (Chan v. Lam, 2002 CanLII 44912 (ON CA)). The court must make three inquiries (Swift v. Swift, 2010 ONSC 6049):

  1. Is there a consensus ad idem that is manifest to a reasonable observer?
  1. Is there consensus on all essential terms?
  1. Is the agreement conditional upon and subject to the execution of a formal offer?

Ontario family lawyers must be familiar with cases like Hoadley in order to understand not only how to effectuate settlement but also when a settlement occurs.

Jeffrey L. Hartman

Ontario Judge orders costs against the Province

Deficiencies in the funding of Ontario’s legal system are well known and widely written upon. Black v. Black, 2016 ONSC 1984 is an important addition to that discussion.

The facts of Black are straight forward. While Justice Thompson was away from the courtroom, a court staff member was assigned to another court room, causing a one hour delay upon Justice Thompson’s return. This cost $300 in legal fees to Ms. Black and $100 to Mr. Black. Justice Thompson ordered costs payable by Ontario without notice to the province.

Ontario succeeded on appeal as the costs award should not have been made without notice.

Black is one of those interesting cases in which the subject matter is irrelevant but the principle is vital. Ontario no doubt spent more than $400 in legal fees to overturn the award, but it could not afford to have this precedent on the books. As a matter of policy, it is difficult to support Ontario’s position as it caused the delay and saddled individual litigants with the burden. On the other hand, Ontario’s court system is plagued by delay (which has many causes) and it is against the public interest to allow litigants to take potshots against the province.

Mr. & Ms. Black took no position on the appeal, no doubt because fighting to uphold the award would, at best, result in a pyrrhic victory. Their submissions would have been interesting to consider. It would also be interesting to see what would have happened if Justice Thompson adjourned the matter to give Ontario notice and an opportunity to make submissions.

These and the numerous other hypotheticals raised by Black highlight its significance and indicate why Ontario moved to overturn the costs award.

Jeffrey L. Hartman