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“The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate. The amendments to the Children’s Law Reform Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of a child, the court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well being: s.24(2).

The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

a.   There must be evidence of historical communication between the parents and appropriate communication between them.

b.   Joint custody cannot be ordered in the hope that it will improve communication.

c.   Just because both parents are fit does not mean that joint custody should be ordered.

d.   The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

e.   No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f.   The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (CA).

Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child.  A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ).  The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop 2009 CanLII 6423 (ON SC).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 CanLii 19764 (ON SC).

A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody.  The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.

Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.”

            Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 81-87

“Well aware that Geropoulos involved settlement negotiations in the midst of active litigation, and thus that he was extending an existing principle, [in Pastoor v. Pastoor, 2007 CarswellOnt 4661 (Ont. S.C.J.) Justice Perrell] His Honour wrote: “it is arguable that what Robins, J.A. was saying … is that the formalities of s. 55(1) of the Family Law Act are not necessary when a settlement is negotiated freely and properly entered into with lawyer’s advice whether or not there was pending litigation.” His Honour went on to quote extensively from Scherer v. Paletta a well-known decision of the Court of Appeal addressing the ability of retained counsel to compromise a client’s position in reaching a binding settlement of active personal injury litigation.

For clarity, Justice Perell was being asked to cure the absence of the signature of one party and a witness on a half-signed domestic contract. His Honour did so on the basis that the terms of settlement had been negotiated freely and with the benefit of legal advice. I am being asked to extend that judicial involvement even further. I am being asked to deem an exchange of correspondence between counsel, pre-litigation, to be a valid and enforceable domestic contract. I conclude that I cannot do so for the following reasons:

a. Statutory Construction

A first principle of statutory construction is the presumption that the parliamentary body enacting the legislation crafted its language carefully.

Section 55(1) of the Family Law Act is clearly exclusive in nature. It provides three requirements that must be met in order for a document to be a “domestic contract.” The three requirements are that the document be in writing, signed by the parties and witnessed. In the absence of these three requirements, the document is not a domestic contract.

Further, section 56(4) sets out three situations in which a domestic contract may be set aside:

56.  (4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Notably, there is no mention of legal advice being a necessary prerequisite to the existence of a contract or of its absence being a trigger for the setting aside of a domestic contract.

b.  Scope of Retainer – Negotiation vs. Litigation

There is an important distinction between the involvement of counsel retained to negotiate pre-litigation and counsel retained to conduct litigation. This distinction is evident in the rules of court in all areas of practice. Litigation counsel are served with court documents and regularly attend court in the absence of their clients. This is true even in serious criminal matters, where a Designation of Counsel form may be filed with the Court under section 650.01 of the Criminal Code of Canada which alleviates the need for the accused to be present at all court appearances.

c.  Requirement of Legal Advice

In my view, relaxing the Family Law Act formalities to deem an exchange of pre-litigation correspondence to be a domestic contract as a result of the availability of legal advice actually exacerbates the uncertainty in family litigation. The foundation upon which such a principle would be based – the availability of legal advice – is unstable. Questions come to mind such as:

(1) What does “legal advice” look like, exactly? Is there a demarcation point compelling the announcement of the involvement of the advising lawyers if parties are otherwise negotiating smoothly between themselves? Do the advising lawyers have to communicate with one another in writing? Will this cause a chilling effect on the provision of “unbundled” legal services?¹²

(2) Are retainer agreements regarding the scope of pre-litigation counsel to automatically become material evidence when an alleged correspondence-based settlement is disputed? Does this mean that pre-litigation counsel must refer the client to another lawyer in every case of failed settlement negotiation lest he or she become a potential witness in the litigation?

(3) What if only one party has legal advice? What is the assessment process around the other party’s need for legal advice?

(4) What if a party’s unique vulnerabilities are not compensated for by legal advice?

(5) What if a party alleges that he or she received bad advice?

(6) Is there a strong public policy reason to add a legal advice factor to alleged settlements when Courts routinely uphold fully-compliant domestic contracts where no legal advice was obtained?

d.   General Uncertainty

Separation and divorce are characterized by uncertainty at the outset and often by a continuing absence of closure as the litigation unfolds. This can be the case even where spouses understand themselves to be bound by Court Orders, which may be appealed or subsequently altered due to a material change in circumstances. If Court oversight is not a guarantee of closure, it is essential to avoid any confusion regarding the specific requirements of pre-litigation settlement so as to allow separating spouses to move forward with their lives. To raise an exchange of correspondence to the level of a binding domestic contract, absent clear legislative authority, would be to extend judicial involvement too far and contribute to increased uncertainty in matrimonial settlement negotiations.”

            Greve v. Shaw, 2022 ONSC 2598 (CanLII) at 22-23

“The Applicant requests an order for the payment of interim disbursements in the amount of $152,657.34.  The disbursements represent the estimated costs of a responding income valuation, a vocational assessment and Ms. Vohra’s costs of her lawyer conducting the arbitration, the arbitration appeal as well as the trial and questioning.

The jurisdiction for an order for interim disbursements can be found in r. 24(18) which reads as follows:

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.

The leading case on issues of interim disbursements in Ontario remains Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.) despite the fact that the case is more than 20 years old.  Rogers J. decided the case and conducted a comprehensive review of the case law, determining at para. 8 of the case certain “themes” regarding cases under the then r. 24(12) (now r. 24(18)):

1)  The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.); Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).

2)  A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement: Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.).

3)  It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837 (S.C.J.).

4)  Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 (Ont. S.C.J.) and Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).

5)  The exercise of discretion should be limited to exceptional cases: Organ v. Barnett (1992), 1992 CanLII 7433 (ON SC), 11 O.R. (3d) 210 (Gen. Div.).

6)  Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle (1999), 1999 ABQB 954 (CanLII), 3 R.F.L. (5th) 139 (Alta. Q.B.).

7)  Monies might be advanced against an equalisation payment: Zagdanski v. Zagdanski, 2001 CanLII 27981 (ON SC), 2001 CarswellOnt 2517 (S.C.J.)

She notes later in the case that the suggestion that interim disbursements only be granted in “exceptional” cases was tempered, to some extent:

The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

In Rea v. Rea, 2016 ONSC 382, Douglas J. followed both Stuart and British Columbia (Minister of Forests) v. Okanogan Indian Band, [2003] S.C.C. 71 in suggesting the following three criteria for an award of interim disbursements and costs:

(a) The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;

(b) The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and

(c) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

In Rea, Douglas J. surveyed a number of cases in which interim disbursements were awarded in a range of between $100,000 to $500,000.

What is also clear from the caselaw is that a party’s case must have sufficient merit to obtain an award for interim disbursements.  As stated by Rogers J., the award of interim disbursements should not give someone a license to litigate.

It is to be noted that the party who is requesting interim disbursements does not have to prove that he or she is impecunious.  That party just has to show that they are incapable of funding the litigation from any other source.  In Woodburn v. Woodburn, 2016 ONSC 6694, Emery J. suggested [at para. 29]:

Although the moving party need not provide evidence that she or he could not carry the case but for the financial assistance requested, the court should have evidence that there is a risk that the moving party who has a meritorious case worthy of pursuit will not have the resources to pursue the claim without that financial assistance.”

            Vohra v. Vohra, 2023 ONSC 2443 (CanLII) at 65-72

“Recent amendments to the Divorce Act and provincial family legislation have highlighted the importance of taking into consideration the presence of family violence in any family matter dealing with the parenting of children: See also Barendregt v. Grebliunas, 2022 SCC 22. The Divorce Act specifically recognizes that findings of family violence are a critical consideration in the best interest analysis: see ss. 16(3)(j) and (4).

Family violence is broadly defined in s. 2(1) of the Divorce Act as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person”. In the case of a child, family violence includes “the direct or indirect exposure to such conduct”. Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse, and financial abuse.

Coercive control as a form of family violence is a pattern of intimate partner abuse which has been the focus of much academic research over the past several years, and has been exposed increasingly in recent court’s decisions, including by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22. In a very recent research study commissioned by the Department of Justice Canada, the authors described coercive control as a pattern of abusive behaviours used to control or dominate a family member or intimate partner. They explain the following at p. 18:

The behaviours that are the spokes and rims of the wheel, such as economic abuse, intimidation, minimizing, denying, blaming and physical and sexual abuse, are used by the abusive person to maintain the pattern of coercive control. Understanding patterns of abuse is also an important counter to “gaslighting” (extended psychological manipulation of a victim that leads them to question the validity of their own thoughts and reality) by perpetrators of abuse, who often embrace an incident-based definition of domestic violence to disconnect their actions from one another in time and space, thereby allowing them to minimize their violence as “not that bad” and to support victim-blaming.

Coercive control may involve a range of behaviours during a relationship, and following separation, including the following:

–   Intimidation, making threats to harm the victim or themselves (self-harm, suicide);

–    Minimizing and denying the abuse;

–    Isolating the victim from friends, family, or work/school;

–    Emotional abuse such as constant criticism and degrading verbal abuse;

–    Economic abuse and control; and

–    Stalking and monitoring.

Coercive and controlling behaviour has been found to encompass the following types of behaviours as well:

–   Making numerous unsubstantiated allegations against the other party;

–   Unilaterally changing court-ordered parenting time terms without justification; and,

–    Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent: M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187.”

Ginese v. Fadal, 2024 ONSC 2427 (CanLII) at 121-125

“With respect to items #5 and #6, first, I cannot make an order for a finding of contempt with respect to alleged lies told to a judge at a conference or for allegedly bribing or influencing witnesses.  The first requirement for proving contempt is that it must be contempt of a court order.  The Applicant has not referred to court orders.  There may be different routes to address her concerns about items #5 and #6, but it is not by bringing a motion for contempt of a court order.  Further, conferences are confidential. Statements made at conference cannot be disclosed to any other judge except in very limited circumstances.  Rule 17(23) states:

(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a)  an agreement reached at a settlement conference; or

(b)  an order. O. Reg. 114/99, r. 17 (23). [emphasis added]”

          Shaganenko v. Shaganenko, 2021 ONSC 3042 (CanLII) at 8

“Arbitrators, like judges, are required to follow the law of the land. Section 31 of the Arbitration Act, 1991 provides:

Application of law and equity

31 An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.

In Omers Realty Corp. v. Sears Canada Inc. (2005), 2005 CanLII 3983 (ON SC), 74 O.R. (3d) 423 (S.C.), at para. 22, aff’d (2006), 2006 CanLII 16477 (ON CA), 80 O.R. (3d) 561 (C.A.), Pepall J. (as she then was) explained at para. 22:

Section 31 of the Arbitration Act, 1991 provides that an arbitral tribunal is to decide a dispute in accordance with the law. The arbitration represents a process to address a dispute; it does not confer jurisdiction to ignore or rewrite the law and established legal principles. Put differently, the arbitration provision does not confer on the arbitrators the ability to do what they please unencumbered by applicable legal principles.

There are many sources of law. The courts do not have a monopoly on establishing the content of the law. But the Arbitration Act, 1991 creates a hierarchy that feeds into the judicial hierarchy and attracts the doctrine of stare decisis. Section 37 of the statute provides:

Binding nature of award

37 An award binds the parties, unless it is set aside or varied under section 45 or 46 (appeal, setting aside award).

Subsection 45(5) of the Arbitration Act, 1991 provides,

Idem

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

The effect of these provisions is that once an arbitrator’s decision is set aside, it no longer binds. The court is expressly provided with the authority to opine on questions of law and to give directions to the arbitrator in consequence. It is implicit in the section and consonant with stare decisis and common sense, that the court’s determination of the law and the court’s directions do indeed bind the arbitrator as they bind the parties.”

Eyelet Investment Corp. v. Song, 2024 ONSC 2340 (CanLII) at 31-35

“When there is a dispute about a parenting order, all parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782; A.E. v. A.E., 2021 ONSC 8189, at para. 89; and K.M. v. J.R., 2022 ONSC 111, at para. 71.

As stated in Barendregt v. Grebliunas, 2022 SCC 22, at para. 8, the inquiry “is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult – the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.”

The best interests inquiry is highly contextual because of the numerous factors that may impact the child’s well-being. The considerations that the court should focus on in carrying out the assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case: Van de Perre v. Edwards, 2001 SCC 60, at para. 13; Barendregt, at para. 97; and B.J.T. v. J.D., 2022 SCC 24, at para. 55.

The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 99, 117; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 28, 37, and 50; and F. v. N., 2022 SCC 51, at para. 61.”

          Tsiriotakis v. Rizzo, 2024 ONSC 2339 (CanLII) at 96-99

“Parties must earn what they are reasonably capable of earning.  Otherwise, we risk harm to children in that the parties are failing to adhere to their responsibilities to support their children.  One way in which we determine income is by imputing an income to the payor.  We do that after a consideration of three questions:

i.        is the payor intentionally unemployed or, in the case of this father, under-employed;

ii.         if so, is the intentional unemployment or under-employment by virtue of the payor’s reasonable education or health needs; and

iii.            if not, then what income is appropriately imputed to the payor?

Gordon v. Wilkins, 2020 ONCJ 115, at paragraphs 23-24, citing Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.).

The burden of proof on this motion rests with the mother – the party seeking to have income imputed to the other side.  The standard of proof is on a balance of probabilities.  An evidentiary basis is required to be put forward by the moving party, although the responding party’s failure to disclose their finances may mitigate that obligation to some degree.  Once a prima facie case for imputation of income has been established, then the onus shifts to the responding party to defend the income position that they are taking.  Gordon, supra, at paragraphs 25-26, citing Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552 (C.A.), Graham v. Bruto, 2008 ONCA 260, Lo v. Lo, 2011 ONSC 7663, and Charron v. Carriere, 2016 ONSC 4719.

If a party, like the father in our case, chooses to pursue self-employment as an alternative income earning path, the question becomes whether that choice was reasonable in all of the circumstances.  If not, imputation of income to that party may be the result.  Reasonableness is the key theme – parents are required to act responsibly when making decisions that may impact on the level of child support available.  Tillmanns v. Tillmanns, 2014 ONSC 6773, at paragraphs 77 and 81, citing various authorities including Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.).”

          A.I. v. J.R., 2024 ONSC 2328 (CanLII) at 5-8

“Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(I)      that the child is physically present in Ontario at the commencement of the application for the order,

(II)     that substantial evidence concerning the best interests of the child is available in Ontario,

(III)   that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(IV)   that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(V)     that the child has a real and substantial connection with Ontario, and

(VI)   that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [Emphasis added.]

As this court said in Wang v. Lin, 2013 ONCA 33, 358 DLR (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.

…

 Section 23 provides:

Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i)        the child remains in the custody of the person legally entitled to custody of the child,

(ii)        the child is returned to the custody of the person legally entitled to custody of the child, or

(iii)        the child is removed from Ontario.

Because the Ojeikeres’ three children are physically present in Ontario, under s. 23(b) an Ontario court can exercise jurisdiction over their custody or access if satisfied that the children would, on a balance of probabilities, suffer “serious harm” if they were sent back to Nigeria.

Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22’s aim of discouraging child abduction becomes secondary to s. 23’s aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.”

Section 23 of the CLRA is discretionary. Under s. 25, a court with jurisdiction over custody or access may decline to exercise its jurisdiction where it is of the opinion that another jurisdiction is more appropriate. Although s. 25 could potentially qualify the court’s discretion under s. 23, I find it hard to conceive that an Ontario court would decline jurisdiction under s. 23 if satisfied a child would suffer serious harm if removed from the province.”

          Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 27-28, 37-40

“The Applicant requests the consent final order be made “nunc pro tunc”, or retroactive to September 8, 2023, the date it was signed by the parties. The Applicant acknowledged this is a discretionary power of the Court.

The Supreme Court of Canada, in Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 (para. 86) explained:

The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.

Similarly, in circumstances where courts have made errors through an oversight or a “slip”, orders have issued retroactively. These are not the only circumstances where the doctrine of nunc pro tunc may be applied but serve only as examples.

Prior to courts exercising its inherent jurisdiction, the following factors must be considered: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. This list is not meant to be exhaustive. (Ibid, para 90).”

          B.A. v. I.K., 2024 ONSC 2225 (CanLII) at 10-13