Siegel's Family Court Calendar

“I turn first to the law respecting the assessment of credibility and reliability, which I reviewed in detail in M.A.B. v. M.G.C., 2022 ONSC 7207 (S.C.J.), at paras. 48 to 49.   The concepts of credibility and reliability are related but distinct.  Shergill J. provided an excellent description of the differences in Lawson v. Hartt, 2022 BCSC 2087 (S.C.), as follows:

9      Credibility and reliability are related but distinct concepts. Reliability relates to the accuracy of the testimony of a witness. It engages consideration of the ability of a witness to accurately observe, recall, and recount the events in issue. Credibility centers on the honesty of the witness. It involves an assessment of the trustworthiness of their evidence, based on their veracity or sincerity: Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, leave to appeal to SCC ref’d, [2012] S.C.C.A. No. 392 (7 March 2013).

10      A witness who is not telling the truth is not providing reliable evidence. However, the reverse is not the case – a credible witness may still give unreliable evidence: R. v. H.C., 2009 ONCA 56 at para. 41, referencing R. v. Morrissey, [1995] O.J. No. 639 (QL) at para. 33, 1995 CanLII 3498 (O.N.C.A.).

11      Sometimes an honest witness will be trying their best to tell the truth, and will believe the truth of what they are relating, but nevertheless be mistaken in their recollection: H.C. at para. 43.

Assessing the credibility and reliability of witnesses is not an exact science; rather, it is a challenging and holistic undertaking, the outcome of which is often difficult to explain in precise terms (R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20).  The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness’ testimony in its entirety.  On the contrary, they may accept none, part or all of a witness’ evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at para. 93; R. v. Boutros, 2018 ONCA 275 (C.A.)).  Notwithstanding these challenges, the caselaw has identified numerous factors as being helpful in weighing and assessing the credibility and reliability of witnesses.  These considerations include the following:

1. 1. 1. 1. 1.    Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not?  Inconsistencies on minor matters are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.)(1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21).
            2.    Was there a logical flow to the evidence?
            3.    Were there inconsistencies between the witness’ testimony and the documentary evidence?
            4.    Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
            5.    Is there other independent evidence that confirms or contradicts the witness’ testimony?
            6.    Did the witness have an interest in the outcome, or were they personally connected to either party?
            7.    Did the witness have a motive to deceive, fabricate evidence or embellish upon it?
            8.    Did the witness have the opportunity and ability to observe the factual matters about which they testified?
            9.    Did they have a sufficient power of recollection to provide the court with an accurate account?
            10. Were there any external suggestions made at any time that may have altered the witness’ memory?
            11. Did the evidence appear to be inherently improbable and implausible?  In this regard, the question is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna v. Chorny, 1951 CanLII (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9).
            12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
            13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they generally self-serving?
            14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language.  However, this should be done with caution.  As the Ontario Court of Appeal emphasized in R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah, 2002 NSCA 99 (C.A.), at paras. 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness’ poor presentation as deceptive (R. v. Jeng, 2004 BCCA 464 (C.A.), at paras. 53-54).”

            Khan v. Khan, 2024 ONSC 4045 (CanLII) at 7-8

“The court was concerned the Society did not mention in their most recent application that their June 24, 2022 application had been denied and for what reason(s). The court should have a reasonable expectation that the Society has provided full and fair disclosure upon all applications. It needs to be appreciated that although this application is at a warrant phase, and not before a Family Court Justice, this is still a court with the same expectations of fair and full disclosure. This expectation is laid out in the 2009 case of Children’s Aid Society of Hamilton v. O. (E.) 2009 CanLII 72087 (ON SC), 2009 Carswell Ont 8125, [2009] O.J. No. 5534, specifically, at paragraph 21:

“The disclosure obligation is comparable to that of Crown counsel in criminal proceedings, as set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.). The obligation includes all information gained in the course of an investigation and involvement with the family: see for example, Children’s Aid Society of Cape Breton-Victoria v. M. (L.), [2007] N.S.J. No. 349 (N.S. S.C.); and K. (S.D.) v. Alberta (Director of Child Welfare), 2002 ABQB 6` (CanLII), [2002] A.J. No. 70 (Alta. Q.B.)”.

And further at paragraph 22,

“Disclosure does not simply involve delivery of case notes to parents’ counsel. The duty extends to disclosure to the court. After all, the Society and the court are guided by the paramount purpose in the C.F.S.A. The Society, as with Crown counsel in a criminal case, is not to focus on winning the case, but, rather, to seek a determination that is in the best interests of the child. Further, the court has the responsibility of making that determination and is not to simply “rubber stamp” decisions of the Society.”

Without a sincere application and full and fair disclosure, the best interests of the child, and whether they are in need of protection, cannot be properly weighed on a balance of probabilities by the court of this jurisdiction. This court by no means suggests that the Society was withholding that information intentionally, but believes, it is a practice that is unfortunately common when Societies are seeking warrants to apprehend children where they were denied in the past.”

Child and Family Services of Grand Erie v. S.S., 2022 ONCJ 332 (CanLII) at 9

“Even if I had found that Domenic had proven the existence of an oral agreement for the sale of Bruno’s interest in the Property, that agreement would still, in my view, have been unenforceable.

Oral agreements for the purchase and sale of land are presumptively unenforceable under section 4 of the Statute of Frauds, R.S.O. 1990, c. S.19. That provision, rooted in the need to protect against fraudulent oral claims in respect of land, states that no action for an interest in land is enforceable “unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party.”

As discussed above, the Agreement is not written. Nor is there any memorandum or note in respect of it. In the result, the Agreement is an oral agreement and is presumptively unenforceable under the Statute of Frauds.

An oral agreement may fall outside the operation of the Statute of Frauds, and hence be enforceable, where the equitable doctrine of part performance applies (Xynos v. Xynos, 2023 ONSC 830; Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69).  The doctrine of part performance “allows the court to enforce an oral agreement in cases where it is unconscionable to apply the Statute of Frauds to render a contract unenforceable” (Xynos, at para. 107).

There are two requirements for the doctrine of part performance to apply (Xynos, at para. 108; 2730453 Ont. Inc. v. 2380673 Ont. Inc., 2022 ONSC 6660, at para. 119; Deglman v. Guaranty Trust Co. of Canada and Constantineau, 1954 CanLII 2 (SCC), [1954] S.C.R. 725, at pp. 732-734). There must be some acts of part performance that are “unequivocally referable in their own nature to some dealing with the land,” such that the acts indicate the existence of the alleged contract. There must also be detrimental reliance.”

Rosso v. Rosso, 2025  ONSC 4177 (CanLII) at 34-38

“It was not sufficient then, nor is it now, for the mother to assert that she was only required to bring the children to the access transfer, and that she was not responsible for their refusal to transition to their father’s care. Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. Ontario courts have consistently held that a parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568 at para. 28.”

            Bors v. Bors, 2021 ONCA 513 (CanLII) at 28

“Denigrating one’s intimate partner in front of one’s child, as the respondent does in the second video, fits within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204; McIntosh v. Baker, 2022 ONSC 4235.”

          Kidd v. Mokrenko, 2024 ONSC 4002 (CanLII) at 42

“Parties seeking to annul their marriage can do so on the basis of the Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14 (“AMAO”). This statute provides that the law of England on July 15, 1870 relating to the annulment of marriages is the law in Ontario. It also establishes that this court has jurisdiction for all purposes under the AMAO.

The AMAO does not set out the circumstances under which an annulment can be granted.  This has been developed by the common law: Lowe v. A.A. and Lowe v. M.P., 2018 ONSC 3509, 294 A.C.W.S. (3d) 115, at para. 33.

The common law establishes that annulment and divorce are two different ways of ending a marriage. In Lowe, at para. 34, the court cites Professor H.R. Hahlo, “Chapter 10: Nullity of Marriage” in Studies in Canadian Family Law (Toronto: Butterworths, 1972) p. 651, for an explanation as to the distinction between divorce and nullity:

Whereas a divorce is based on a cause arising after a valid marriage has come into existence (e.g. adultery, cruelty, supervening insanity, or marriage breakdown), a decree of nullity is based on a cause existing at the time of the marriage (i.e.. a prior existing marriage, relationship within the prohibited degrees, insanity at the time of marriage). And while a decree of divorce dissolves the marriage as from the date when the decree becomes absolute (ex nunc), a decree of nullity, depending on the ground of annulment, either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc).

Annulment does not necessarily leave parties without the legal protections on relationship breakdown that would otherwise have been afforded to them by marriage: Lowe, at para. 46. The Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), extends the definition of “spouse” under s. 1(1) to include two persons who have “together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.” In other words, a party who enters a marriage that is annulled may still make claims for support or equalization of net family property under the FLA, if they entered the marriage in good faith: Lowe, at paras. 46-49.”

S.M. v. R. F., 2025 ONSC 4155 (CanLII) at 88-91

“A court may also impute income where it finds that a party has hidden or misrepresented relevant information respecting a person’s income, either to the other party or to the authorities.  This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes, see: Kinsella v. Mills, 2020 ONSC 4785. For this reason, I am also prepared to impute an additional amount to Mr. Williams for his earnings as a repair technician, as well as factoring in the receipt of cash.

When additional income is imputed to a parent who engages in cash, the undeclared income is “grossed up” to take account of its tax-free nature, notwithstanding the payor’s liability to be reassessed by CRA, see Ali v. Williams-Cespedes, 2015 ONSC 3590.”

Levy v Williams, 2023 ONSC 4164 (CanLII) at 36-37

“I will begin by reaffirming that “the scope of appellate review in family cases is narrow”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 100; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1013, at para. 11. This is because finality and expedition are of heightened importance in family law matters, and multiple court hearings, which can drain family resources, should not be encouraged. Moreover, most determinations are driven by factual decisions, and trial judges who have a close opportunity to consider the complete evidentiary record first-hand and to assess the credibility of witnesses are best situated to determine the facts. Therefore, an appellate court is not to interfere “[a]bsent an error of law or an overriding error of fact”, including a “serious misapprehension of [material] evidence”: Hickey. v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12; Barendregt, at paras. 101-104; Calin v. Calin, 2021 ONCA 558, at para. 16. As a result, a factual error will not support a successful appeal unless the error is clear and had an important bearing on the decision, and even a misapprehension of evidence will not ground an appeal unless it is a serious misapprehension relating to a material issue in the case.”

Jasiobedzki v. Jasiobedzka, 2023 ONCA 482 (CanLII) at 7

“The Family Law Rules serve to provide consistency in the production of financial disclosure and to curtail demands that are unreasonable and disproportionate.  There is no question that full and frank financial disclosure is required in family law matters.  However, with ever-expanding requests for disclosure in family law matters, proportionality has become a fundamental principle that cannot be ignored. No procedural decisions should be made without specifically addressing the principle of proportionality, and without first considering whether the request is a deviation from the requirements of r. 13 of the FLR.

The FLR already mandate significant mandatory disclosure obligations. The pursuit of additional disclosure by regular motion is expensive and the costs of the motion may be disproportionate to the probative value of the disclosure that is obtained. Once comprehensive disclosure has been provided, the FLR were designed to address ongoing disclosure that is either irrelevant or disproportionate to the issues before the court.

In Boyd v. Fields 2006 CarswellOnt 8675 Justice Perell made the often-quoted statement “the fundamental question is whether the various items of information are relevant or whether they have a semblance of relevance having regard to the material issues in this case” (see para. 11).

More importantly, Justice Perell provided the following:

Full and frank disclosure is a fundamental tenant of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention to the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial (see para.12).

The words of Justice Perell are to be used in conjunction with the primary objective rule under r. 2 (2)(2) to (5) of the FLR. The primary objective rule is to ensure that all cases are to be addressed justly including saving expense and time and dealing with the case in ways that are appropriate to its importance and complexity.

Rule 30.10 (1) of the Rules of Civil Procedure provides that the court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

a)                  The document is relevant to a material issue in the action; and

b)                  It would be unfair to require the moving party to proceed to trial without having discovery of the document.

Rule 19 (11) of the FLR provides as follows:

Document in Non-Party’s Control – If a document is in a non-party’s control, or is available only to the non-party, and is not protected by legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

a)      Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

b)      Order that a copy be prepared and used for all purposes of the case instead of the original.

Rule 20 (5) permits a court to order disclosure from a non-party by questioning, affidavit, or by another method, if:

1. 1. 1. 1. 1.       It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
            2.       The information is not easily available by any other method.
            3.       The questioning or disclosure will not cause unacceptable delay or undue expense.

The Family Courts have adopted, to a large extent, the jurisprudence of r. 30.10 (1) of the Rules of Civil Procedure.  (see: Himel v. Greenberg, 2010 CarswellOnt 8261, 2010 ONSC 2325).  The factors to be considered in determining whether production should be ordered from non-parties under r. 30.10 (1) was set out by the Ontario Court of Appeal in Ontario (Attorney General) v. Stavro, CanLII 3509 (ONCA);

a)         The importance of the documents in the litigation;

b)        Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the applicant;

c)         Whether the discovery of the defendant with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;

d)        The position of the non-parties with respect to production;

e)         The availability of the document of their informational equivalent from another source which is accessible to the moving parties;

f)         The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.  Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true stranger to the litigation.

g)        Relevance alone is insufficient to warrant production.  To order production, the judge must be satisfied it would be “unfair” to the moving party to go on with the case without the document.

The onus is on the party requesting the non-party disclosure to establish that it would be unfair if he/she does not obtain the disclosure requested.

The rules are discretionary, and require the Court to consider the interests of all concerned in the exercise of its discretion, while being mindful that the underlying objective of the Family Law Rules is to resolve matters in the least contentious, least litigious manner possible. (see: Himel v. Greenberg at para. 25)

Filoso-Baglione v. Lawson, 2024 ONSC 3900 (CanLII) at 10-19

“With respect to Mr. Safieh’s motion pursuant to r. 61.16(5) to set aside the order administratively dismissing his appeal, the merits of the appeal is one of the primary considerations: Sickinger v. Sickinger, 2017 ONCA 760, at para. 13. Consideration must also be given to: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the responding party: Hoffelner v. Whiteley, 2024 ONCA 753, at para. 10. The inquiry into the merits of the appeal cannot be exacting at this stage in the litigation given the incomplete record available and the consequence of denying the motion, which is the loss of the right to even argue the appeal. As Gillese J.A. stated in Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, 1 C.B.R. (7th) 1, at para. 28: “I need only determine whether the Appeal has so little merit that the court could reasonably deny the important right of an appeal”.

Safieh v. Hamza, 2025 ONCA 496 (CanLII) at 4