Cliff’s Notes – May 2020

Most of you have read that there are sharp increases in domestic violence cases in Ontario – abuse against both women and children – during the pandemic. This spike is related to the fact that families are forced to spend most of their time at home.  Information about the increase in cases has been obtained from police, women’s shelters and children’s aid societies. Strangely, some places are noting a decrease in calls. Those who are in a position to know say that this is equally, if not more of a concern, because it points to the possibility that cases are not being reported.

So far, in Ontario, I have not been able to find any reports of urgent applications to Family Court in which domestic violence has been raised as the pivotal issue. I am told that this is because self-represented litigants have considerable trouble determining how to bring on an urgent application given the closure of the courts. Once the courts reopen the situation may change dramatically. Regrettably, domestic violence is a problem which has not gone away. One need only look to the recent tragedy in Nova Scotia which began, it is reported, with an act of domestic violence. 

However, the volume of access emergencies brought to our courts has increased dramatically since I last wrote about them. To meet the publishing deadline for the April Newsletter I was able to track down six or seven cases and reported on just a few. By the time that Newsletter came out there were over 40 cases reported. By May the number of emergencies will likely have increased exponentially. There are now a number of services publishing many of these decisions. An excellent chart of cases is available through the Franks Family Law Newsletter which can be accessed in Westlaw.

A case in which the issue of domestic violence played a small role has come to my attention. In Grant v. Grant 2020 ONSC 2455, Madsen, J., in ordering that a wife’s motion met the test of urgency for monetary relief, found as a fact that the husband had previously been arrested for assaulting her and had committed violent acts in breaching his conditions of bail. That certainly did not help his case.

Please note that urgent applications under the Covid-19 protocol are not limited to custody/access disputes; there are also a number of cases concerning support. For instance, inL.B-M v. M.M. 2020 ONSC 2238, Justice Kitely made an award of spousal support in a high-income case of $43,437.00 a month, and an additional amount of $16,663.00 a month for child support for one of the parties’ two children who was living with the applicant wife. Kitely J. made the temporary award based on the low range of the guidelines after agreeing with the applicant wife that the husband’s income was over two million dollars a year and not close to the $1.1 million which was his estimate of current income.

Kitely, J. noted also that while the first protocol, dated March 15, 2020, allowed only cases with “dire financial circumstances to proceed”, the April 2, 2020 Notice to the Profession softened that Practice Directive by allowing “urgent family events as determined by the discretion of the presiding judge” to proceed.

By contrast, Diamond, J. dismissed a wife’s motion for temporary child support as not being urgent, in circumstances where the husband was paying for most of the expenses of the matrimonial home, and where the amount he was paying far exceeded his notional obligation under the Child Support Guidelines.  See Sapiera v. Vlasiv 2020 ONSC 2301.

InRoberts v. Roberts ONSC 2935 Justice Hebner, operating under the first Covid-19 protocol which defined urgency as a “dire issue regarding the parties’ financial circumstances”, allowed a payor’s motion to proceed because the payor’s income had dropped from over $600,000.00 a year to just over $100,000.00 a year (disability payment) for medical reasons which prevented him from working. The Court made it clear that the finding of urgency was without prejudice to the parties’ eventual motion positions.  

Justice Breithaupt Smith sets out a concise review of when the court should conclude that an emergency exists under the March 15, 2020 Notice to the Profession. See Jefic v. Grujicic 2020 ONSC 2340.

Moving to a different issue, in the case of Peerenboom v. Peerenboom 2020 ONCA 240,  the Ontario Court of Appeal dealt with the enforcement of a writ of execution against a matrimonial home that was obtained on a default basis by the appellant husband’s father. I am drawing it to your attention with respect to the more common issue of striking pleadings. Those interested in the enforcement issue can read the case.

In this case, the husband’s pleadings were struck, at the outset of the matrimonial trial, because of the husband’s non-compliance with fairly substantial costs orders and his breach of disclosure obligations. The Court of Appeal pointed out that striking of pleadings is a remedy of last resort. It may be utilized when there is no other remedy that is appropriate, especially in circumstances where the breaches are significant and willful. Trial judges should take into account efforts made in situations where there is an inability to pay or where good faith efforts were attempted. The Court of Appeal also upheld the trial judge’s finding that the husband was not justified in refusing to value a certain property on the basis that it was excluded under a domestic contract. While I do not expect that mediators will ever be called upon to deal with procedural enforcement remedies, I think it is a good idea to be aware of some of the tools available to judges, should a matter you are working on not settle, but proceed to trial.

If you are interested in the differences in approach between the application of the Hague Convention and the law as applied provincially, under The Children’s Law Reform Act, please see the case of Geliedan v. Rawdah 2020 ONCA 254. Not only does the Court of Appeal discuss the differences but it also sets out the rationale for the different approaches.

In April, the Ontario Court of Appeal also weighed in on the effect of a typical reconciliation clause, in a domestic contract, on the value of included property. The issue concerned the wife’s ability to include the value of the husband’s pension at its more valuable later date of separation, after a reconciliation lasting a number of years. The husband argued the clause served as a release. He lost. 

See Miaskowski v. MacIntyre 2020 ONCA 178.

Until next time…..