In May 2023, DSF published a blog discussing the approach taken by Ontario courts regarding pet ownership disputes and the then-proposed amendments to British Columbia’s Family Law Act. Specifically, the BC government sought to clarify what kinds of decisions its courts can make regarding pets and the processes in arriving at those decisions.

A New Approach to Pet Custody

As of January 15, 2024, these amendments are now law in BC. Section 97 now includes subsections (4.1) and (4.2), as follows:

(4.1)         In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:

1. the circumstances in which the companion animal was acquired;
2. the extent to which each spouse cared for the companion animal;
3. any history of family violence;
4. the risk of family violence;
5. a spouse’s cruelty, or threat of cruelty, toward an animal;
6. the relationship that a child has with the companion animal;
7. the willingness and ability of each spouse to care for the basic needs of the companion animal;
8. any other circumstances the court considers relevant.

(4.2)         An order respecting a companion animal must not

1. declare that the spouses jointly own the companion animal, or
2. require the spouses to share possession of the companion animal.

The factors listed under s. 97(4.1) are based on the factors that courts across the country use to determine what is in the best interests of a child when making an order pertaining to parenting time and decision-making responsibility (i.e., child custody). This approach is very different from Ontario’s “contemporary approach” to determining pet ownership. Despite being called “contemporary”, Ontario’s approach – developed in Coates v Dickson – characterizes pets as property, rather than as a family member over which an individual can have custody.

Applying the Amendments: Bayat v Mavedati

On March 13, 2024, the Supreme Court of BC (their equivalent of Ontario’s Superior Court) delivered the province’s first judgment pursuant to the new s. 97(4.1). In Bayat v Mavedati, Ms. Bayat sought exclusive care of a golden retriever named Stella following her separation from Mr. Mavedati after three years of cohabitation.[1]

The couple had brought Stella home in August 2020.[2] Justice Nielsen found that the parties had evenly split the cost of purchasing Stella, and had also shared the responsibility for her care over the years that they lived together with her.[3] However, many of the facts were in dispute. Ms. Bayat alleged on several occasions that Mr. Mavedati was negligent and even abusive as an owner. Ms. Bayat went so far as to allege that Mr. Mavedati hit Stella after she had an accident in the home.[4] Justice Nielsen disagreed with Ms. Bayat’s evidence, though, in large part due to the fact that Mr. Mavedati is a veterinarian and displayed his love and good intentions toward his dog during his testimony.[5]

Ultimately, Justice Nielsen ordered that the parties were to equally share custody of Stella on an interim basis, following a “week-on/week-off” schedule.[6] Further, the parties were to have an equal say in the decision-making process as it relates to Stella’s care.[7]

An Illegal Order?

While the prospect of joint pet custody is encouraging, recall what subsection 97(4.2) says about this kind of arrangement:

(4.2)         An order respecting a companion animal must not

1. declare that the spouses jointly own the companion animal, or
2. require the spouses to share possession of the companion animal.

Based on the statute’s wording, it appears that Justice Nielsen made an order contrary to subsection 97(4.2). Notably, Justice Nielsen did not reference this subsection in the decision, focusing instead on the factors in subsection 97(4.1). Consequently, joint custody of Stella may not be permissible under the new law. Clarification is needed on whether the Court can indeed grant shared possession of a companion animal and whether this authority is limited to interim orders.

What Comes Next?

Despite the controversial shared custody order, the decision in Bayat v Mavedati offers hope for the future of Canadian caselaw surrounding pet ownership. As Justice Nielsen remarked: “The recent amendments to the [BC Family Law Act] put the ownership of a companion animal…in the context of something that goes beyond ownership of [goods].”[8] These amendments recognize that companion animals are not objects; rather, they are sentient beings capable of experiencing love.

This article was co-authored by articling student Rachel Weitz.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1] Bayat v Mavedati, 2024 BCSC 619 at paras 1-2 [Bayat].

[2] Ibid at para 4.

[3] Ibid at paras 4, 7, 15.

[4] Ibid at para 12.

[5] Ibid at paras 8-12.

[6] Ibid at para 15.

[7] Ibid at para 18.

[8] Ibid at para 14.

Proper estate planning requires effectively communicating the intentions of the deceased. In doing so, even simple words can create significant interpretation issues in the administration of an estate and lead to long and costly court battles. One very common issue faced in Estates Law is the definition of a “child” in a will or under the Succession Law Reform Act (SLRA).[1]

While general definitions are outlined in most will templates to provide guidance for executors and solicitors, a definition as simple as “child” or “issue” has caused significant confusion over the years.

Children Conceived and Born After Parent’s Death

The SLRA was amended in 2017 to expand the definition of a child to include a child that was conceived and born after a parent’s death:

1(1) In this Act,

“child” includes,

(a)  a child conceived before and born alive after the parent’s death, and

(b)  a child conceived and born alive after the parent’s death, if the conditions in subsection 1.1 (1) are met;

Section 1.1(1) outlines the conditions that must be met for a child conceived and born alive after a person’s death to be considered a “child” under the Act:

1.1 (1) The following conditions respecting a child conceived and born alive after a person’s death apply for the purposes of this Act:

1. The person who, at the time of the death of the deceased person, was his or her spouse, must give written notice to the Estate Registrar for Ontario that the person may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent.
2. The notice under paragraph 1 must be in the form provided by the Ministry of the Attorney General and given no later than six months after the deceased person’s death.
3. The posthumously-conceived child must be born no later than the third anniversary of the deceased person’s death, or such later time as may be specified by the Superior Court of Justice under subsection (3).
4. A court has made a declaration under section 12 of the Children’s Law Reform Act establishing the deceased person’s parentage of the posthumously-conceived child.

In essence:

1. The child’s parent must have been the married spouse of the deceased, as the SLRA does not recognize common law spouses;
2. The spouse must give notice of their intention to use the reproductive material of the deceased to the Estate Registrar for Ontario no later than six months after the deceased’s death;
3. The child must be born within three years of the deceased’s death, unless the court orders otherwise; and
4. The spouse must obtain a declaration from the court under Section 12 of the Children’s Law Reform Act (CLRA) that the deceased is a parent of the child.

Special Relationship

In Ksianzyna Estate v. Pastuszok [2], Justice Brown was tasked with analyzing whether the court should expand the definition of “child” in subsection 1(1) of the SLRA to minors who enjoy a “special relationship” with a testator. While Part V of the SLRA, which governs dependant support claims, expands the definition of “child” to include those who the deceased “has demonstrated a settled intention to treat as a child of his or her family,”[3] this broader definition does not apply to the rest of the Act. Justice Brown declined to expand the general definition of “child” under the SLRA, as “the power to expand the scope of familial terms or social concepts beyond their plain and ordinary meaning is one that rests with the legislatures, not with the courts.”[4] As such, someone who enjoyed a “special relationship” with a testator or deceased will not be considered a “child” under the SLRA for testate or intestate succession but may be considered a child for the purposes of dependant support.

Foster Children

The Ontario Superior Court of Justice recently re-examined the definition of a child under the SLRA in Estate of Sydney Monteith v Monteith et al.[5] In this case, the applicant was a foster child seeking to receive a share of her foster father’s estate under the rules of intestate succession after he died without a will. However, the court affirmed the decision in Ksianzyna and found that:

…the harsh, but inescapable, reality is that she does not qualify because she is a foster child who has never been adopted.  This is a matter of statute, the plain language of which I find to be very clear, and which is binding and determinative.  I am not disposed to ignore the statutory provisions discussed above in the guise of “doing justice”.[6]

Accordingly, like children who enjoy a “special relationship” with the testator, a foster child is not considered a “child” for the purposes of testate or intestate succession under the SLRA but may be able to make a dependant support claim if they fall within the expanded definition of “child” under Part V of the Act.

“Settled Intention” of the Deceased

As noted above, while the definition of a child is strictly interpreted under subsection 1(1) of the SLRA, there is a broader definition of “child” under Part V of the Act which addresses the support of dependants. An application for support under Part V of the Act is distinct from a claim of inheritance under a Will or on intestacy. Under subsection 57(1) a “child” includes “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.” In that same section, a “dependant” is defined as the spouse, parent, child, or sibling of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”[7] As such, if the deceased was providing support to a person who was not their biological or adopted child, but to whom they had demonstrated an intention to treat as their child, then that person could make a dependant support claim against their estate.

The term “settled intention” has been the topic of much debate in the courts. In Pigott Estate v Pigott, the court held that at least one of the following factors must be present to establish a settled intention between the deceased and the applicant:

1. Cohabitation with the child;
2. Treatment of the child on equal footing with their own child(ren);
3. Decision-making power with respect to the child’s name, schooling, discipline, and so on;
4. Continued access or visitation with the child; or
5. Financial contributions to the daily needs of the child. [8]

While one of these factors must be present for the courts to find that the deceased had a “settled intention” to treat a person as their child, the existence of one of these factors will not be determinative in showing that a settled intention exists. For instance, in Stajduhar v Wolfe,  Justice Dunphy concluded that the deceased had no settled intention to treat his girlfriend’s daughter as his child, even though he provided her with financial support while at university.[9] In reaching this conclusion, Justice Dunphy also considered that the deceased never introduced the applicant to any of his family, including his two children; never characterized applicant as his daughter to his friends or family; did not provide for the applicant in his will, even though he specifically provided for his own two children; and that none of the deceased’s writings indicated that he intended to treat the applicant as his child.[10]

Impact on Estate Planning

Under the general definitions section of the SLRA, a “child” is limited to biological or adopted children of the deceased. Foster children, stepchildren, and others who the deceased intended to treat as their child do not fall within this definition; as such, they have limited recourse in the courts, unless they are applying for dependant support.

If you are planning your estate, it is important to be aware of these definitions and consider their implications.  If your child is not your adopted or biological child but you still want them to benefit from your estate, then you must plan your estate accordingly, given that they will have no rights on if you pass away without a Will. Moreover, it is important to ensure that the definition of “child” in your Will is broad enough to include anyone that you consider to be your child, or that you specifically refer to your child by name in your bequests.

If you would like more information regarding estate planning, please contact experienced Wills and Estates Lawyer, Jillian Bowman, of Devry Smith Frank LLP at (249) 888-4639 or at jillian.bowman@devrylaw.ca

This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.

This blog was co-authored by Summer Law Student, Jason Corry, and Articling Student, Leslie Haddock.

[1] RSO c S 26 [SLRA].

[2] 2008 CanLII 59321 (ON SC) [Ksianzyna].

[3] SLRA, supra note 1, s 57(1).

[4] Ksianzyna, supra note 3 at para 12.

[5] 2023 ONSC 7246 [Monteith].

[6] Ibid at para 24.

[7] SLRA, supra note 1, s 57(1).

[8] Pigott Estate v Pigott, 1998 CarswellOnt 2875 at para 14.

[9] Stajduhar v Wolfe, 2017 ONSC 4954 at para 154, aff’d Kerzner Estate, 2018 ONCA 258, refused leave to appeal to the Supreme Court of Canada [Stajduhar].

[10] Ibid at para 153.

In a 2022 Ontario Superior Court of Justice decision Ahluwalia v. Ahluwalia,[1] Justice Mandhane created a new tort of family violence.

Facts

The parties married in November 1999 and separated in July 2016. This marriage was anything but typical. Rather, it was characterized by abuse and sixteen years of coercion and control from the father. During the course of their marriage the parties had two children together. However, since separation, the children refused to see their father aside from a few visits.

Trial Decision

Justice Mandhane awarded the mother $150,000 in damages for emotional, physical, and financial abuse. The trial judge also recognized a new tort of family violence, arguing that this would effectively address prolonged abuse that existing torts do not fully capture.

This new tort would provide survivors of domestic abuse with a more practical legal avenue, consolidating their claims in a single proceeding rather than multiple lawsuits. This could increase financial independence for survivors and help them leave abusive relationships.

Further, this new tort remedy would provide survivors of domestic abuse an avenue to pursue accountability and provide financial independence by attending a single proceeding rather than multiple, which is often required with other tort actions. This could potentially make it more realistic for women to leave violent relationships. [2]

Justice Mandhane set out a three part test to establish the defendant’s liability where their conduct is:

• is violent or threatening, or
• constitutes a pattern of coercive and controlling behaviour, or
• causes the plaintiff to fear for their own safety or that of another person.[3]

The trial judge acknowledges that these three steps overlap with existing torts, however, notes that the existing torts “do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases”.[4] The tort of family violence would allow consideration of, and compensation for, the pattern of violence,[5] not just the individual incidents as seen with alternate tort actions.

Ontario Court of Appeal

Shortly after, the Ontario Superior Court of Justice’s decision was appealed to the Ontario Court of Appeal.[6]  Here, Justice Benotto rejected the creation of the new tort of family violence on multiple grounds.

First, Justice Benotto notes that common law change is slow and incremental rather than quick and dramatic.[7] Thus, suggesting that this change would be significant and best left to the legislature as opposed to the court system.

Second, Justice Benotto suggests that existing tort remedies effectively address family violence and the creation of a new tort is therefore unnecessary. In the present case, Justice Benotto notes that the father’s abusive conduct satisfies the requirements for the tort of battery, assault, and intentional infliction of emotional distress.[8] Justice Benotto states that these tort actions adequately address the potential issues that would arise under the novel tort remedy.

National Importance

The Court of Appeal’s decision has now been appealed to the Supreme Court of Canada. This decision has yet to be heard.

The rejection of the tort of family violence from the Ontario Court of Appeal can be disappointing to survivors of family violence, but a positive decision may come about from the Supreme Court of Canada.

Multiple not for profit foundations such as Barbra Schlifer Commemorative Clinic and Luke’s Place have intervened to provide a more nuanced and intersectional perspective to the court about the prevalence and nature of family violence and the experience of survivors of patterns of abuse. These foundations argue that the tort of family violence is an important and necessary step for the evolution of common law. They note that existing torts do not properly capture and compensate the true nature of family violence that is a pattern of coercive and controlling behaviour.

Statistics Canada further exemplifies the magnitude of domestic violence in Canada and illustrate the need for the new tort of family violence. In 2022 alone, there were 129,876 victims of police-reported family violence and 117,093 victims of intimate partner violence.

Domestic Abuse Services Oxford demonstrates that family violence can lead to extreme circumstances, such as homicides. They note that spousal homicides account for 15% of all homicides in Canada. Women are at greatest risk and are nine times more likely to be murdered by an intimate partner than by a stranger.

Given the national importance of this case, the Supreme Court of Canada’s ruling will be crucial in determining whether Canadian law evolves to explicitly recognize family violence as a distinct tort. A positive ruling could provide stronger legal protections and ensure adequate compensation for survivors.

This blog was co-authored by Summer Law Student, Adriana Piccolo

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1]  2022 ONSC 1303 [Ahluwalia].

[2] Ahluwalia v. Ahluwalia, 2023 ONCA 476.

[3] Ahluwalia, supra note 1 at para 52.

[4] Ibid at para 54.

[5] Ibid at para 23.

[6] Ahluwalia, supra note 2.

[7] Ibid at para 50.

[8] Ibid at para 52.

In Canada, individuals married in India can apply for a divorce if one spouse has resided in a Canadian province for over a year. This process is recognized by both Canada and India, though the legalities and implications differ significantly between the two countries. Understanding these differences is crucial for couples going through the process of international divorce.

Legal Jurisdiction and Criteria for Filing for Divorce in Canada

The Divorce Act governs divorce proceedings across Canada, although provincial regulations may also apply. To initiate a divorce, one spouse must reside in the province where the application is filed. Couples must meet certain conditions to file for divorce in Canada. The most common ground is a one-year separation, during which the couple has lived apart (whether in the same home or separately) and ceased acting as a married couple. Exceptions to the one-year separation include cases of adultery or cruelty, which require substantial proof. There are three types of divorces in Canada: joint, uncontested, and contested, each with its own procedural nuances. Consulting a family lawyer is advisable to navigate the specific legal requirements and ensure a smooth process.

Impact of International Marriages on Divorce Proceedings

Indian couples in Canada face unique challenges when seeking a divorce due to differences in legal frameworks. In India, divorces can be either mutual or contested. A mutual divorce involves a six-month waiting period, while contested divorces require prolonged court proceedings. In Canada, joint divorces allow couples to file a notice of family claim together, potentially avoiding court if uncontested. Contested divorces, however, can be lengthy and complex, necessitating court involvement. For a marriage from India to be recognized in Canada, it must comply with Canadian legal standards. This often involves validating the marriage through documentation and ensuring it adheres to both Indian and Canadian laws.

Divorce can also affect immigration status. Permanent residents generally remain unaffected unless the marriage is proven fraudulent. Divorce might impact citizenship applications, potentially delaying or affecting the outcome. Engaging a family lawyer and immigration lawyer knowledgeable in international marriages is beneficial to avoid legal complications during divorce proceedings.

Recognizing Foreign Marriages under Canadian Law

Marriages conducted legally in another country are typically recognized in Canada. This means that for couples married in India, their marriage is considered valid, allowing them to seek a divorce in Canada without first divorcing in India. One spouse must have lived in a Canadian province for at least a year to apply for divorce under Canadian jurisdiction.

Procedure to File for Divorce in Canada

Initiating a divorce in Canada involves several steps including filing a divorce application, serving the application to the other spouse, waiting for their response, attending court hearings if necessary, and obtaining the divorce order. Proper documentation is essential, including the divorce application, a Notice of Family Claim, and potentially financial statements or affidavits. Consulting a family lawyer ensures all necessary documents are correctly prepared and submitted.

Comparing Divorce Laws: Canada vs. India

Key differences between divorce laws in Canada and India include types of divorce, waiting periods, and duration. Canada offers joint, uncontested, and contested divorces, while India provides mutual and contested divorces. India requires a six-month waiting period for mutual divorces, whereas Canada generally mandates a one-year separation. Contested divorces in India can take years, whereas in Canada, contested cases might be resolved more quickly, sometimes through desk order divorces. Canadian law permits divorce primarily due to marriage breakdown, evidenced by a one-year separation, adultery, or cruelty. In India, divorce grounds include adultery, cruelty, desertion, religious conversion, and mental instability. The Hindu Marriage Act and the Special Marriage Act govern these proceedings, with mutual petitions simplifying the process compared to contested cases.

Conclusion

Proceeding with a divorce across international boundaries requires a comprehensive understanding of applicable laws and meticulous preparation. Engaging experienced family lawyers helps both parties adhere to procedures and protect the individual rights of those involved, making the process more manageable. Whether the marriage took place in India or another country, consulting a lawyer and ensuring all documentation is in order before initiating divorce proceedings is crucial. Each situation is unique, so obtaining tailored legal advice is the best way to safeguard one’s interests during this challenging time.

When two parties have dependant children, they may be required to pay special or extraordinary expenses alongside their basic monthly child support obligations. The definition of these expenses are outlined in Section 7 of the Child Support Guidelines.

Section 7 reads that in an order for the support of a child, the court may, on request of either parent or spouse provide for an amount to cover all or any portion of applicable expenses. What is qualified as a “section 7 expense” is determined based on various considerations. The court will take into account the necessity of the expense in relation to the child’s best interests,  the reasonableness of the expense in relation to the means of the parents or spouses, and those of the child with respect to the family’s spending pattern before separation. Applicable expenses may include child care expenses, health-related expenses such as braces, expenses for post-secondary education (tuition, meal plans, textbooks) and extraordinary expenses for primary or secondary school education or extracurricular activities.

The Guidelines lay out what falls under applicable extraordinary expenses. Extraordinary expenses are expenses that exceed the amount that the requesting parent or spouse could reasonably cover, while taking into account the parent or spouse’s income and the amount that would be received for child support. The court also considers expenses to be extraordinary by considering various other factors including but not limited to: the nature and number of the educational programs and extracurricular activities, and any special needs and talents of the child.

Determining a Section 7 Expense

A common question is what exactly may be considered an extraordinary section 7 expense. As discussed above, the court will consider many factors and it is not just the expense alone that is considered. For example, in the case of Craig v. Niro, 2022 ONSC 5178, the question of whether the daughter’s hockey equipment and the son’s moving expenses were an extraordinary expense were considered.

The court considered the factors outlined in the Guidelines and determined that the daughter’s hockey equipment was not an extraordinary expense but the son’s moving expenses were considered to be an expense under section 7. The parents in this case had an order in place that the mother pay 36% and the father pay 64% of section 7 expenses. The mother and daughter contributed to the daughter’s hockey equipment. Considering these contributions and the father’s income, the remaining hockey expenses were considered modest and within the amount of child support set off against the amount that the father would otherwise pay. He was not required to make additional contributions towards hockey. The son’s moving expense; however, was determined to be a post-secondary education expense and therefore a section 7. To qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In this case it was concluded that the expenses associated with the purchase of furniture, appliances, food, toiletries and even “shower flip flops” are properly characterized as post-secondary education expenses for a temporary residence being shared while at university. Even the hotel room and restaurant meals while a student’s belongings are being moved into a temporary residence was deemed to be covered as a section 7 expense.

In certain circumstances, an adult child will be responsible for contributing toward section 7 expenses, which is discussed further below. However, in Craig v. Niro, many of the expenses were incurred because the mother refused to assist with the physical move of the son’s items that did not fit in the father’s vehicle. As a result, it was found to be unfair that the son be required to contribute to these moving expenses. Whether or not an expense is found to be extraordinary and how section 7 is inferred is discretionary to the courts. It is helpful to consult with a family law lawyer about any questions related to section 7 expenses as every situation varies.

Children’s Contributions to Section 7 Expenses

The case of Lewi v. Lewi, 2006 CanLII 15446 (ON CA) raised the issue of children’s contributions to post-secondary education expenses, specifically, adult children who attend post-secondary studies. Whether the parents should be solely responsible for their children’s post-secondary education when the child has a job or in the case of Lewi, had significant capital assets as a result of gifts from their grandfather, was discussed extensively.  The Court of Appeal in Lewi considered that as a general rule, adult children should be required to make reasonable and meaningful contributions toward post-secondary education expenses. The amount they should contribute is dependent on the circumstances and will consider the means of both the parents and the children. In this specific case, one of the sons attended post-secondary studies out of town and at a much greater cost than his brother, which therefore required a greater contribution from him.

Ultimately, the determination of section 7 contributions and extraordinary expenses are extremely fact-dependent. Should you require more information regarding section 7 expenses and/or family law-related topics, please contact our family law department.

This blog was co-authored by Articling Student, Samantha Lawr

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

If you find yourself in a situation where your ex-spouse has experienced a substantial increase in income since the time of your separation, you may be wondering whether you are entitled to a reassessment of spousal support.

What is Spousal Support? 

Spousal support is financial assistance that one spouse may be required to pay to the other spouse after a separation or divorce, ensuring the recipient’s financial stability. Spousal support is usually paid on a monthly basis; however, it can also be paid as a lump sum.

According to section 15.2 of the Divorce Act and further discussed in the Supreme Court of Canada case, Bracklow v. Bracklow, there are three reasons a spouse would be entitled to spousal support:

1. Compensatory spousal support, which is meant to compensate the lower-income earning spouse for sacrifices and contributions made during the marriage;
2. Non-compensatory spousal support, which is meant to allow the recipient spouse to enjoy a similar lifestyle as they did while married; and,
3. Contractual.

In determining whether to award spousal support, a judge must consider many factors, including:

1. The parties’ financial situations;
2. The length of time the spouses cohabited;
3. The roles of each spouse during the marriage;
4. The impact of the breakdown of the marriage on each party’s financial situation;
5. The ongoing responsibilities for the care of children; and,
6. Any previous arrangements made regarding spousal support.

The Spousal Support Advisory Guidelines provide parties and the Court with some guidance in determining the quantum and duration of when calculating reasonable spousal support. It is important to remember, however, that the Court retains discretion and the Guidelines are advisory only – they are not law.

Are you entitled to increased spousal support if your former partner’s income increases? 

If one party experiences a significant change in their income after a spousal support arrangement has been made, it may constitute grounds for seeking a variation in spousal support, and the receiving party may be eligible for a reassessment of spousal support amounts.

Whether you are entitled to an increase in spousal support if your former partner’s income increases is largely discretionary and is dependent on the circumstances and basis of the entitlement to spousal support. A spousal support order would not change automatically, and it is the responsibility of the recipient spouse to apply to vary the order.

According to section 17(4.1) of the Divorce Act, before the court varies a spousal support order, it must be satisfied that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the making of the spousal support order. For example, since non-compensatory spousal support is intended to allow the lower-income earning spouse to enjoy a similar lifestyle as they did while married, an increase in income would usually not be relevant. A recipient’s entitlement to post-separation increases in income is more likely to be found in cases of compensatory support.

Chapter 14.3 of the Spousal Support Advisory Guidelines discusses that “a rough notion” of causation is applied to post-separation income increases for the payor when determining if the income increase should impact spousal support entitlements. As such, it will depend on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the income increase, and the reason for the income increase.

The likelihood of full or substantial sharing becomes more likely with child support cases, given the fact that there is a strong compensatory nature of the claim. If there is no child support in question, the Court will consider the following:

• long traditional marriages;
• medium-length and longer marriages;
• strong compensatory claims where there is primary responsibility for child-rearing;
• strong compensatory claims in longer marriages;
• prior agreements discussing future increases in income;
• support/cohabitation while in school;
• payor spouse continuing in the same job or area of work post-separation
• claims that were impacted by an inability to pay; and,
• income increases shortly post-separation.

Varying the Spousal Support Order

If the payor spouse does not consent to vary the spousal support order, it may be necessary to commence a Motion to Change. If applying for a variation, the applicant must meet the threshold to prove that there is a material change in the circumstances. The material change must be substantial and continuing, and if known at the time of the initial order, would likely have resulted in a different order. Determining what constitutes a material change is up to the court’s discretion.

Conclusion

Navigating the complexities of spousal support in the face of a significant increase in your ex-spouse’s income requires a careful understanding of the legal framework due to its highly discretionary nature.

For more information regarding spousal support and/or family law-related topics, please contact Laura Dyke at Devry Smith Frank LLP at (416) 446-3327 or laura.dyke@devrylaw.ca

This blog was co-authored by Articling Student, Toni Pascale.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

Base, or table, child support is based on the payer’s income. As the payer’s income goes up, the table amount keeps going up along with it – even for high income earners. That can result in the table amount of support being tens of thousands of dollars in child support a month. Will Family Court Judges order more child support than a parent could ever spend on the child? This blog looks at some factors the court may consider in setting child support for high-income earners.

To start, Canadian courts have long held that child support is the right of the child; both parents have an obligation to financially support their child, based on their income, and this obligation cannot be waived by the payee parent and is not destroyed by the breakdown of the parents’ relationship. Moreover, child support should, as much as reasonably possible, provide children with the same standard of living that they were accustomed to when their parents were together.[1]

However, there is a limit to how much support a child needs and there are some factors that courts are willing to consider adjusting the amount of child support. But there are also factors that judges will not consider and raising them will just get a parent on the judges’ bad side.

The Starting Point: What the Child Support Guidelines Say About High Incomes

The first step to calculating the child support owed by you or your child’s parent is to determine the proper “table amount.” These amounts are prescribed by regulation under the Federal Child Support Guidelines and the Ontario Child Support Guidelines. The amounts are the same under both tables; however, if you are applying for child support under section 15.1 of the Divorce Act, you should refer to the federal guidelines and if you are applying for child support under section 33 of the Family Law Act, you should refer to the provincial guidelines. You can only apply under the Divorce Act if you were married to your child’s parent; otherwise, you must apply under the Family Law Act.

The regulations provide a set amount of child support depending on the payor parent’s income and the number of children that the payor parent is obligated to support. The highest income on the table is $150,000 but that does not mean the tables stop there. At the end of every table, there is a percentage of the payor’s income that should be paid as child support. That percentage goes up with the number of children. With that percentage, the amount of child support continues to grow indefinitely as the payor’s income goes up. Even if the payor’s income is in the billions of dollars, the formula gives a table amount.  For an income over a billion dollars per year, the child support would be over a million dollars each year.

Section 4 of both the federal and provincial guidelines explain the procedure for determining the child support obligation for a payor parent who earns more than $150,000:

Incomes over $150,000

4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7. 

Section 3 of the federal and provincial guidelines provides that:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

As such, there are two options to determine the amount of child support owed by payor parents who earn over $150,000:

1. The Table Amount

For a payor parent who earns more than $150,000, the table amount would be the set amount for $150,000 plus a percentage of any of the payor parent’s income over $150,000. For example, take a payor parent who has two children and earns $400,000. Under the federal and provincial guidelines, the base amount for two children for the first $150,000 of income, as of the writing of this article, is $2,077 per month. Additionally, the payor parent owes a prescribed percentage of any of their income over $150,000. Here, the prescribed 1.2% of the remaining $250,000 would be $3,000. As such, according to the table, the payor parent would owe $5,077 per month for their two children.

2. An Amount the Court Considers Appropriate

However, per section 4(b) of the federal and provincial guidelines, these amounts may not always be appropriate and can be varied by the courts if necessary. To do so, the payor parent must establish that the amount is in excess of the child’s reasonable needs that it is inappropriate or unsuitable.

If so, the payor parent will be responsible for paying the table amount, depending on the number of children, for their first $150,000 of income, and an additional amount which the court finds appropriate. Here, courts will consider:

1. the condition, means, needs and other circumstances of the children who are entitled to support; and
2. the financial ability of each parent or spouse to contribute to the support of the children.[2]

When Can Child Support Be Varied Under Section 4?

In general, courts are highly reluctant to depart from the table amount of child support. Likewise, there is a strong presumption towards using the table amount for all incomes over $150,000. This presumption can only be rebutted by the payor spouse with clear and compelling evidence.[3] The closer that a payor parent’s income is to $150,000, the more likely it is that the table amount will be upheld.[4]

In general, the table amount will not be varied under section 4 for the following reasons:

1.      Lower Child Support Payments Made to Other Children of the Payor

In Pakka v Nygard, the payor parent had an income of $2.2 million, owed $15,091 per month in child support per the table amount, and was only paying $3,000.[5] The payor had several children with different women; some lived in Canada and some in the United States. In an effort to treat all of his children fairly, he sought to pay only $3,000 in support for each child. Justice Kitelely rejected this argument; parents cannot unilaterally determine what is “fair and equal treatment” and the payor was acting contrary to the laws of Ontario.[6]

2.      The Proposed Budget for the Child is Lower than the Table Amount and Includes a High Amount of Discretionary Spending

The fact that the table amounts exceed the budget prepared by the payee parent is not determinative and courts have awarded table amounts which allow for a large amount of discretionary spending.

In Pakka, as discussed above, the payee parent prepared a budget for the child of $6,545 per month, and was awarded the full table amount of $15,091, resulting in $8,000 a month in discretionary spending. Justice Kiteley found that the needs of the child, as expressed in the budget, was only one factor in the court’s analysis and the size of the table amount is not a sufficient reason to vary it.[7] Also relevant to this case was the $300,000 that the payor owed in child support arrears.

In cases involving very wealthy payor parents, reasonable amounts of child support often include high amounts of discretionary spending.[8] Moreover, it is reasonable for the payee parent to incur similar discretionary expenses as the payor parent to ensure that the child enjoys a similar standard of living in both households.[9]

3.      The Payor Has High Debts

Courts are generally unsympathetic to payors who attempt to vary the table amount based on their debt. In Sordi v Sordi, the payor parent argued that it would be unconscionable for him to pay the table amount of child support for his full income because of his high debt load. If the children’s needs could not be met, then the payee should move to cheaper accommodations or sell the former matrimonial home. At the time of the trial, the payor had spent $1.5 million in legal and expert fees; both Justice Timms and the payee parent considered this debt to be self-imposed and unnecessary.[10]

In Ridley v DeRose, the payor parent included a $6,000 loan repayment to his mother in his monthly expenses. Justice Tobin ruled that the payor had not established that the table amount was inappropriate; he could support himself, his wife and her children, accumulate assets, pay an “apparently arbitrary amount of the monthly debt payment”, and has discretionary spending.[11]

4.      The Payor has a Higher Cost of Living

In McGouran v Connelly, Justice Feldman rejected the payor parent’s argument that the higher costs of living in the United Kingdom compared to Canada made the table amounts in appropriate. He recognized the slippery slope of such a recognition:

…if one were to begin to recognize and adjust for discrepancies in the cost of living just to calculate income, such discrepancies would not be limited to countries, but could extend to cities or even smaller areas, and would require extensive evidence in each case. The inquiry would become cumbersome, expensive and potentially unworkable.[12]

5.      When the Payor Parent Has an Uncertain Income

In Simon v Simon, the Court of Appeal considered whether the table amount should be ordered for a professional hockey player, who earned $1.4 million, but worked in a career characterized by uncertainty and risk. Justice MacPherson declined to vary the amount and held that child support payments should not be varied in anticipation of a decreased future income.[13] However, the table amount will not be retroactively awarded when the payor parent has a single year of extraordinarily high income which will likely not be repeated.[14]

However, the table amount will likely be varied in the following circumstances:

1.      When the Table Amount Constitutes a Wealth Transfer Between Parents

Francis states that “…at a certain amount, support payments will meet even a wealthy child’s reasonable needs” and that table amounts can be “so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.”[15]

Courts have often found that the table amounts of child support constitutes a wealth transfer when the payee parent includes in their proposed budget funds for future expenses which do not meet the current needs of the child.[16]

2.      In Accordance with the Family’s Established Lifestyle and Pattern of Expenditures

The purpose of the provincial and federal Guidelines is to establish fair levels of support in a predictable and consistent manner and to ensure that the dissolution of the parents’ relationship affects the children as little as possible.[17] As such, the established lifestyle and pattern of expenditures of the family unit prior to the separation is a relevant consideration.

In R v R, the payor parent earned $4.1 million, and the payee parent sought the table amount of $65,000 for the parties’ four children. The Court of Appeal only awarded $32,000 due to the family’s modest lifestyle during the parties’ relationship. Justice Laskin held that:

If the children’s reasonable needs, including reasonable discretionary expenditures, are being met by the parties’ pre-separation lifestyle — even if that lifestyle is comparatively modest — and the paying parent’s income does not increase after separation, I do not think it is for the court to award child support that reflects a different, more lavish lifestyle. The Guidelines are meant to ensure fair levels of support, but to repeat Bastarache J.’s words in Francis v. Baker, also to ensure “that a divorce will affect the children as little as possible”.[18]

3.      When the Payee Parent Seeks a Higher Standard of Living

When the payor parent can prove that a child’s needs have been adequately met with a lower amount of child support, then the courts are more likely to stray from the higher table amount. However, Justice Cleghorn held that the payee parent cannot use the table child support amounts to make the child’s standard of living higher in their home than the standard of living in their payor parent’s home.[19]

This does not mean that child support payments can never be used to increase the child’s standard of living; courts have allowed this when the payor parent’s income increases dramatically post-separation. In R, the payor parent earned $1.4 million during the relationship, and his income skyrocketed to $4.1 million post-relationship. Justice Laskin found that in these cases, the children are entitled to benefit from their parent’s increase in income:

It is one thing for the family to live modestly and save money while together; it is quite another, and seemingly unfair, for the paying parent to hold his children to the family’s pre-separation lifestyle while saving the increase in his post-separation income, but now for his benefit alone.[20]

Even in this case, as noted above, the Court of Appeal only ordered half of the table amount of child support. This also does not apply when the payor parent’s increase in income is only temporary; the court rejected a payee parent’s application for $650,000 a year in child support (or $55,000 a month) for the payor parent’s one-time annual income of $7.5 million, followed by $445,000 and $236,000 in subsequent years. Here, the court found that the payee parent would not be able to sustain the child’s higher standard of living on the payor parent’s dwindling income.[21]

It may seem that some of these considerations are contradictory. When parent’s incomes are high, or complex, child support issues can be complicated. It is no longer a case of taking a figure off a tax return and plugging it into an online calculator or cross-referencing it on a child support table.  There are additional considerations and opportunities that make it worthwhile to speak to an experienced family law lawyer.

If you have more questions about your family law matter, please contact Certified Specialist in Family Law, John P. Schuman at Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] For example, see DBS v SRG, 2006 SCC 37 at para 38.

[2] See sections 4(b) of the Federal Child Support Guidelines, SOR/97-175 and the Child Support Guidelines, O Reg 391/97.

[3] Francis v Baker, 1999 CanLII 659 (SCC) at paras 42-43 [Francis].

[4] Deslauriers v Pommainville, 2017 ONSC 3162 at para 77 [Deslauriers].

[5] Pakka v Nygard, 2002 CanLII 62431 (ON SC).

[6] Ibid at para 51.

[7] Ibid at para 66.

[8] Tauber v Tauber, 2000 CanLII 5747 (ON CA) at para 40; Jung v Johnson, 2015 ONSC 6734 at para 30 [Jung].

[9] Deslauriers, supra note 4 at paras 59 and 81-82.

[10] Sordi v Sordi, 2010 ONSC 2344 at paras 226-227.

[11] Ridley v DeRose, 2017 ONCJ 877 (CanLII) at paras 162-163.

[12] McGouran v Connelly, 2006 CanLII 7668 (ON CA) at para 29.

[13] Simon v Simon, 1999 CanLII 3818 (ON CA) at para 27.

[14] Tamo v Husband, 2023 ONCJ 233 (CanLII) where the payor parent earned $7.5 million in one year due to the exercise of stock options and sale of shares [Tamo].

[15] Francis, supra note 3 at para 41.

[16] Tamo, supra note 14 at para 73; Jung, supra note 8 at para 30.

[17] Francis, supra note 3 at para 39.

[18] R v R, 2002 CanLII 41875 (ON CA) at para 51 [R].

[19] Tamo, supra note 14 at para 63.

[20] R, supra note 18 at paras 57-58.

[21] Tamo, supra note 14 at para 63.

Defining a Spouse Under the Family Law Act

Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties.

Equalization of Net Family Properties

Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other’s is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated.

The Push for Common Law Partners’ Entitlement

Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement.

British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses. For more information on this issue or other Family Law topics, please contact Kenna Bromley at Devry Smith Frank LLP at (249) 888-6641 or kenna.bromley@devrylaw.ca

This blog was co-authored by law student Samantha Lawr.

We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.^[1] 

This is not an easy task; the Ontario Court of Appeal acknowledged that:

It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.^[2]

The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports.

What is a Voice of the Child Report?

A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time.

This report is often only completed for children over the age of seven, as it can be difficult for children under that age to meaningfully communicate their views. A VOC does not include:

• formal interviews of the parents;
• observation visits of the child and parents;
• gathering of information from third parties, such as teachers and family doctors;
• disclosure meetings; or
• recommendations

Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.”^[3] Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.^[4]

A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment.^[5] In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC.

How do I Obtain a VOC?

To obtain a VOC from the OCL, you must complete the following steps:

1. Request from the Court

You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form.

2. Complete Intake Form

Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together.

3. Acceptance of Case by OCL

When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case.
If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself.

4. Contact from Clinician

After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child.

5. Interviews with Child

The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views.

6. Notification of Final Report

The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end.

Who Can Write a VOC?

If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict.

You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.^[6]

Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski,^[7] after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report.^[8] Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs.

When Should I get a VOC for My Child?

A VOC may be appropriate in the following circumstances:

6. 6. • When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity.^[9] A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.^[10]
      • When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved.
      • When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side.

While VOCs may be less useful in cases where there are issues of parental alienation^[11] or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process.

If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

^[1] For example, see Children’s Law Reform Act, RSO 1990, c C12, ss 24(3)(e) and 64(1) and Divorce Act, s 16(3)(e).

^[2] Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65.

^[3] Byers v Byers, 2023 ONSC 297 at para 21 [Byers].

^[4] Ibid at para 22.

^[5] This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1).

^[6] See Svirsky v Svirsky, 2013 ONSC 5564 at para 27 and Religa v Nesrallah, 2017 ONSC 1491 at paras 16-18.

^[7] Stefanska v Chyzynski, 2020 ONSC 3048.

^[8] Ibid at para 93.

^[9] See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child.

^[10] In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother.

^[11] For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23.