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Family - Child - 'Best Interests'. Agboola v. Unoh
In Agboola v. Unoh (Div Court, 2024) the Ontario Divisional Court considers the 'best interests' of the child, here in a parenting order context [CLRA s.24]:[27] Turning then to the factors affecting best interests, at pp. 26-27 of his reasons, the trial judge identified the factors listed in s. 24 [SS: CLRA s.24 'Best interests of the child']that he was required to consider. The trial judge then referenced each of those factors in his analysis of the evidence before him. The trial judge did not reference all the evidence before him, but he was not required to do so.
[28] The Supreme Court of Canada in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 10, said:In preparing reasons in custody cases, a trial judge is expected to consider each of these factors in light of the evidence adduced at trial; however, this is not to say that he or she is obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another. This would indeed be an unreasonable requirement at the end of a 26-day trial. Because of this, trial judges might sometimes appear to stress one factor over another and, in fact, it may be said that this is inevitable in custody cases which are heavily dependant on the particular factual circumstances at issue. This situation does not open the door to a redetermination of the facts by the Court of Appeal. . Shipton v. Shipton
In Shipton v. Shipton (Ont CA, 2024) ththe test for 'relocation'e Ontario Court of Appeal allowed an appeal from a family law application, here "from an order denying a mother permission to relocate her three-year-old daughter from Toronto to Ennis, Ireland".
Here the court considers the test for 'relocation', which is heavily influenced by the 'best interests of the child' doctrine:v. THE LEGAL FRAMEWORK
[21] The appropriate test to apply in relocation cases is not controversial. It is set out in the Act and was revised in 2021. It requires the court to determine what is in the child’s best interests and sets out an extensive open list of factors that the court is required to consider at ss. 16(1)-(6) and s. 16.92:Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. ....
(1) ISSUE 1: Errors in Best Interests of the Child Analysis
[25] The fundamental issue before the trial judge was whether relocation was in the best interests of the child. He concluded that it was not. However, his reasons reveal material errors and serious misapprehensions of the evidence. On its own, any single error may not have warranted this court’s intervention. In deciding whether to change an existing parenting order, however, the court must engage in a “full and sensitive inquiry into the best interests of the child”: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 52. Taken together, the trial judge’s errors in this case infect the “best interests” analysis to such an extent that this court must intervene.
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(a) Material Error Regarding Coercive Control: Relevant to s.16(3)(j) of the Act
[27] The term “coercive control” does not appear in the Act. However, when determining the impact of any family violence within the “best interests” analysis, a judge is bound to consider “whether there is a pattern of coercive and controlling behaviour in relation to a family member”: s. 16(4)(b). Where allegations of family violence are raised it is, of course, incumbent on the trial judge to carefully evaluate them and to take a dispassionate approach to the evidence tendered to support and rebut the allegations. Moreover, a trial judge must approach these allegations with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 144. The judge must also be attentive to the harm a child may experience through indirect exposure to domestic conflict: Barendregt, at para. 143.
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(b) Improper Attribution of a Motive to Erase the Child’s Indian Heritage: Relevant to s. 16(3)(f) of the Act
[42] Under s. 16(3) of the Act, a child’s cultural, linguistic, religious and spiritual upbringing and heritage must be considered to determine what is in the child’s best interests. Accordingly, the child’s biracial identity and her Indian and Irish heritage were highlighted at trial. ... . Jurrius v. Rasulli
In Jurrius v. Rasulli (Div Court, 2024) the Divisional Court accepts that domestic violence naturally has a negative effect on children:[18] ... While the trial judge made findings about these two incidents, these findings were made in the context of evidence, accepted by the trial judge, regarding the Father’s attempts to dominate the Mother during their relationship and evidence of violence towards the Mother. The trial judge found as fact that “there has been domestic violence by the Respondent father toward the Applicant mother.” This is a recognized aspect of how harm can be done to children, directly or indirectly, “if the victimized parent's physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child's physical and emotional needs.”: McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at para. 85. This issue was squarely before the trial judge and he was entitled to give this evidence due consideration as it affected T’s best interests. . LeGrand v. LeGrand
In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court explains why it allows an appeal for contempt sanctions, here addressing the role of suspending child support as such sanction:[48] While appreciating the sentencing challenges facing the motions judge, I conclude that the current sanctions cannot stand for two reasons. First, it was an error in principle to suspend child support as a contempt sanction. Second, it was an error in principle to set an unbounded sanction. A contempt sanction fashioned as a penalty or a fine must be an amount that can be discharged. Each of the two sanctions is set aside.
Suspending Ongoing Child Support is Not an Available Contempt Sanction
[49] Rule 31(5) of the Family Law Rules provides that a court may order a person found in contempt to (a) be imprisoned for any period and on any conditions that are just, (b) pay a fine in any amount that is appropriate, (c) pay an amount to a party as a penalty, (d) do anything else that the court decides is appropriate, (e) not do what the court forbids, (f) pay costs in an amount decided by the court; and (g) obey any other order.
[50] Subsection 31(5)(d) confers a broad discretion on the court to fashion an appropriate contempt sanction; but that discretion is not unbounded. When fashioning a contempt sanction in parenting cases, the court must also consider the impact of the sanction on the best interests of the children.
[51] Traditionally, courts have drawn a “bright white line” around ongoing child support, considering it the right of the child, and thus unaffected by any outstanding debts between the parties. For example, it has long been held that the conduct of a custodial (decision making) parent, or a parent exercising parenting time is not relevant to the determination of child support. Court of Appeal Justice Frederick G. MacKay wrote in Carwick v. Carwick (1972), 1972 CanLII 1875 (ON CA) that “[r]eprehensible conduct by the custodial parent of a child respecting access may be the subject matter of removing the child from the custody of the offending parent, but it cannot be the basis of causing the child to suffer financially because of the interference of access rights by the custodial parent.”
[52] In reviewing the history of child support pre-dating both federal and provincial guidelines, the Supreme Court observed in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, that child support is the right of the child, stating at para 14 that a parents’ obligation to support their child is a legal right that exists independently of any court action taken.
[53] That “bright white line” has dimmed over time with respect to child support arrears, which in some cases have been used to offset a debt between the parties, such as an award of costs: S. v. A., 2023 ONSC 4719. In M.A.B. v. M.G.C., 2023 ONSC 3748, Justice Chappel summarized the law respecting the set-off of child support as against costs between the parties, concluding at para 86 that “ [t]he determination of whether it is appropriate to set off costs against child support arrears or an ongoing child support obligation is ultimately a matter of judicial discretion that involves a careful consideration of the facts of each case, and a delicate balancing the interests of the parties involved, the best interests of any children in the support recipient’s care, all of the objectives of costs awards and the importance of ensuring that costs awards are in fact paid.”
[54] In Rego v. Santos, 2015 ONCA 540 (C.A.) which builds on the reasoning in D.B.S. v S.R.G, the Ontario Court of Appeal upheld a set-off of child support arrears against a penalty ordered as a contempt sanction, owed by a mother to the father. The court acknowledged that, although it was unusual to do so, they were prepared to uphold the motion’s judge decision because he considered the evidence as a whole: including the amount of parenting time that had been withheld, the mother’s unreasonable litigation behaviour and the need to treat the breaches seriously, while keeping the children’s bests interests foremost in the analysis. At paragraph 14 the court found that the motion judge “was sensitive to the concern that the child should not suffer undue economic consequences and he structured the set-off accordingly,” see paragraph 14.
[55] The “bright white line” has not been dimmed with respect to ongoing child support. Ongoing child support is not a fixed debt between the parties that can be measured. It is a dynamic amount that is based on the payor parent’s income in real time. Ongoing child support and section 7 obligations change as the parents’ incomes change.
[56] It is not in a child’s best interests to lose their independent right to ongoing support from a parent within a court sanction purposed to coerce their parent’s compliance with a past court Order, or a court sanction fashioned to deter and denounce a parent’s wrongful behaviour for two reasons.
[57] First, as set out in D.B.S. supra, the child’s legal right to financial provision exists independently of any court action taken between their parents, or guardians, or a child protection society. It is a right that can be asserted by the child herself.
[58] Second, the purposes of child support and a contempt sanction are incompatible. As set out in the objectives of the Federal Child Support Guidelines the purposes of table child support are to (a) establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[59] A contempt sanction is a penalty imposed in response to a finding that a party has deliberately disobeyed or disrespected a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. As summarized in Kronberger v. Kudrocova, 2023 ONSC 2326, at paras. 44-49, the applicable sentencing principles for contempt of court in the context of family law proceedings include:Sentencing should be restorative to the victim and punitive to the contemnor. To accomplish the former requires that the sentence correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Cassidy v. Cassidy, 2010 ONSC 2707, 85 R.F.L. (6th) 148, at para. 10 [Cassidy].
The primary objective in sentencing civil contempt is to coerce the offender into obeying the court judgment or order: Cassidy, at para. 12; Kopaniak v. MacLellan, 2002 CarswellOnt 1309, [2002] 212 D.L.R. (4th) 309, (O.C.A.) at para. 28, citing Nigel Lowe and Brenda Sufrin, Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56, and Jeffrey Miller, The Law of Contempt in Canada (1997) at pp. 13 - 17.
Punishment must be in proportion to the breach or breaches of the order. The court must consider aggravating or mitigating factors: Carroll v. Richardson, 2013 NSSC 187, 331 N.S.R. (2d) 129, at para. 20 [Carroll].
Deterrence and denunciation are also important objectives of sentencing: Carroll, at para. 21. The purpose of penalties is not to compensate the wronged party, per se. It is to punish the wrongdoer: Roby v. Roby, 2003 CanLII 2111 (ON SC), [2003] 48 R.F.L. (5th) 389, at para. 30 [Roby]. [60] Even when the sanction to be determined concerns access to children, the paramount consideration remains the best interests of the children: see Moncur v. Plante, 2021 ONCA 462, at para. 10, Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19 and Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), 2021 ONCA 366, at para. 27.
[61] Here, there was no consideration of the children’s best interests in suspending the mother’s obligation for child support, nor was there an adequate record on which to attempt such an analysis. The July 3, 2019 final Order was resolved on 2018 disclosed and imputed income. There was no evidence before the motion judge as to the parents’ current incomes.
[62] In summary, while it was open to the motion judge to fix a penalty with a view to the financial circumstances of the parties, it was not open to her to make a potentially indefinite order suspending the mother’s ongoing obligation for child support.
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[65] The amount of a penalty or a fine payable imposed pursuant to Rule 31 (b) and (c) of the Rules can be substantial, provided that it is reasonable and proportionate to the nature of the contempt and its mitigating and aggravating circumstances.
[66] At the same time, it must not markedly deviate from a sanction imposed in like circumstances, see Stone v. Stone, 2019 ONSC 3214. In Cassidy v. Cassidy, 2010 ONSC 2707, starting at para. 13, the court sets out the principles of sentencing in on a finding of civil contempt in a family law proceeding as a consideration of (a) the available sentences, (b) the proportionality of the sentence to the wrongdoing, (c) the similarity of sentences in like circumstance, (d) the presence of mitigating factors, (e) the presence of aggravating factors, (f) deterrence, (g) the reasonableness of a fine, and (h) the reasonableness of a proposed period of incarceration.
[67] The Ontario Court of Appeal has since emphasized the additional principle of restraint in sentencing, see Gagnon v. Martyniuk, 2020 ONCA 708, at para. 25, and that judicial discretion in sentencing be informed by the best interests of the child(ren): Moncur v. Plante, supra, at para. 10, Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), supra, at para. 27; Chong v. Donnelly, supra, at para. 11; and Ruffolo v. David, supra, at para. 19.
[68] The effect of the second term of the motion judge’s contempt sanction – that the father is precluded from bringing a further proceeding before the court while he remains non-compliant – created a sanction that was unbounded.
[69] An unbounded contempt sanction is an error in principle when the effect is to create a penalty or a fine that can never be discharged. Moreover, it renders the sanction unmeasurable and immune from an analysis of proportionality.
[70] This is not to say that a coercive penalty cannot accrue over time. The motion judge imposed such a remedy initially ($1,000 per month, to a total of $12,000). That order was not appealed, and it does not disclose an error in principle. See, for example, King v. Cameron, 2020 ONCJ 548, where Parent J. ordered graduated access with a fine against the mother of $500 for every missed visit during a specified period of adjournment. . Walsh v. Tober
In Walsh v. Tober (Div Court, 2023) the Divisional Court considers the 'best interests' of a child, and here particularly factors to be assessed when determining 'decision-making authority and parenting time':[54] In the SJ reasons, at paras. 17-18, 24-30, the motion judge considered the relevant facts and law when making her order with regards to decision-making power and parenting time. The motion judge reviewed s. 24 of the CLRA and noted case law that supports the paramountcy of the child’s best interests over the need or wants of a parent: see Gordon v Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 20, 24; Cox v. Stephen (2002), 2002 CanLII 78080 (ON SC), 30 R.F.L (5th) 54 (Ont. S.C.), at para. 45. In applying the best interests test, the motion judge properly considered the child’s views and preferences as required by s. 24(3)(e) of the CLRA. By giving effect to the views of a child who was nearly 16 years old, the motion judge also recognized that the importance of the child’s input is commensurate with his age: A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at paras. 92-93.
[55] Other factors that are relevant in assessing the significance of the child’s views and wishes include (i) how clear and unambivalent the wishes are, (ii) how informed the expression is; (iii) the strength of the wish, (iv) the length of time the preference has been expressed for, (v) the overall context, and (vi) the circumstances of the preferences from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42.
[56] In this case, the child has made clear his preference that he remain living with his mother, and that his parenting time with Mr. Tober be in accordance with the child’s wishes. He deserves to have his views respected by the court. I see no palpable and overriding error in the motion judge’s decision to give effect to the child’s wishes. The motion judge’s decision also provides stability by preserving the status quo, which is desirable in this case, given the child’s anxiety disorder.
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