Siegel's Family Court Calendar

“The test on the care and custody hearing under the Child, Youth and Family Services Act, is contained in s. 94(4), which provides:

(4) the court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

The onus is on the Society to demonstrate both that the child is likely to suffer harm and that a supervision order would not be adequate to protect her from that harm.

“Risk that the child is likely to suffer harm” means that it is more likely than not that the child will suffer harm if returned to the person who had charge of the child at the time of the Society’s intervention.

Because N. is an Indigenous child, however, there is a further, or different, test in this matter pursuant to An Act respecting First Nations, Inuit and Metis children, youth and families (Federal). Subsection 10(1) of that Act provides:

10(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration. (Emphasis is added).

Subsection 10(2) provides:

10(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Subsection 10(3) sets out the best interests factors to be considered when determining an Indigenous child’s best interests, and they include cultural, linguistic and spiritual upbringing, needs, including the need for stability, the nature and strength of the child’s relationships, the importance of preserving the child’s cultural identity, the child’s views and preferences, any plans for the child, and any family violence and whether the child is exposed to same.

Additionally, subsection 16(1) of the Federal Act provides:

16(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a)   with one of the child’s parents;

(b)   with another adult member of the child’s family;

(c)   with an adult who belongs to the same Indigenous group, community or people as the child;

(d)   with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or

(e)   with any other adult. (Emphasis is added).

In the case of Kina Gbezhgomi Child and Family Services v. J.M., 2023, ONCJ 93, Justice Wolfe addressed this very issue and found at paragraph 6:

[6] For reasons that follow, I find that An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (Federal Act) applies and alters the method of analysis at s. 94 hearings under the CYFSA given its paramountcy over provincial legislation. This method of analysis starts with the national standards as set out in sections 10 through 17 of the Federal Act, requiring first consideration of the parents, and so on, as set out in s. 16 as opposed to the person who had charge prior to the intervention as set out in the CYFSA. Further, to the extent that there is any conflict, best interests must be understood in accordance with the definition set out in s.10 of the remedial Federal Act, read mindful of its purpose and intent.

At paragraph 12, Justice Wolfe referenced section 4 of the Federal Act, which provides:

For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with or is not inconsistent with, the provisions of this Act.

After citing s. 4 of the Act, as well as paragraph 44 of Simcoe Muskoka Child, Youth and Family Services v. S.H. et al, 2022 ONSC 1868 and paragraph 17 of Children’s Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, the latter of which, in turn, cited paragraph 30 of Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251, Justice Wolfe stated the following at paragraph 15 of J.M.:

[15] The Court [in London and Middlesex v. T.E] agreed that the Federal Act applies at every stage of a child protection hearing including when the court is determining temporary orders under s. 94 of the CYFSA. I adopt the reasoning in these decisions and find that the national standards set out in ss. 10 to 17 of the Federal Act apply to and take priority to the extent that the provisions in the CYFSA are inconsistent with the Federal Act in temporary care and custody hearings under s. 94 of the CYFSA. (Emphasis is original)”

Children’s Aid Society of Ottawa v. T.C and K.J., 2025 ONSC 3633 (CanLII) at 30-39

“A remedial constructive trust is appropriate where: a) a monetary award would be insufficient for reasons which may include the probability of recovery or where there is a reason to grant a party additional rights that flow from a proprietary remedy; and b) where there is a “sufficiently substantial and direct link”, causal connection or nexus between the contributions and the acquisition, preservation, maintenance or improvement of the property in question: Kerr, at paras. 50, 52; Moore, at para. 91; and Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at pp. 988-89. Where such a link is shown, the court may impose a constructive trust over the plaintiff’s proportionate contribution: Moore, at para. 91; Kerr, at para. 53.”

          Aghdasi v. Asiyaban, 2024 ONSC 3472 (CanLII) at 121

“The case law in this area is now well-developed.  Despite the lack of expert evidence on the presence or absence of alienation, the court can make a finding of alienation based solely on an analysis of the facts.

Nicholson J. in Malholtra v. Henhoeffer, 2018 ONSC 6472 set out the following:

[108]  Experts have developed a list of factors to aid in identifying parental alienation.  Cases have cited these factors.  For example, when analyzing the issue of parental alienation in C.(W.), MacPherson J. qualified Dr. Fidler as an expert in alienation.  Dr. Fidler set out indicators of alienation; these have been cited in numerous cases: L.(A.G.) v. D.(K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042 (CanLII), at para. 134 [G.(J.M.)]; Maharaj, at para. 140.

[109] The following are indicators of alienation:

Child Behaviours:

• • • • •    View of parents one-sided, all good or all bad; idealizes one parent and devalues the other
        •    Vicious vilification of target parent; campaign of hatred
        •    Trivial, false and irrational reasons to justify hatred
        •    Reactions and perceptions unjustified or disproportionate to parent’s behaviours
        •    Talks openly to anyone about rejected parent’s perceived shortcomings
        •    Extends hatred to extended family and pets (hatred by association)
        •    No guilt or ambivalence regarding malicious treatment, hatred, etc.
        •    A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
        •    Anger at rejected parent for abandonment; blames him/her for divorce
        •    Speed is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality
        •    Stories are repetitive and lacking in detail and depth
        •    Mimics what siblings report rather than own experience
        •    Denial of hope for reconciliation; no acknowledgement of desire for reconciliation
        •   Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent

Alienating Parent Behaviours: •      Allows and insists that child makes decisions about contact •      Rarely talks about the other parent; uninterested in child’s time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child’s return from visit. •      No photos of target parent; removes reminders of the other parent •      Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant •      No encouragement of calls to other parent between visits; rationalizes that child does not ask •      Tells child fun things that were missed during visit with other parent •      Indulges child with material possessions and privileges •      Sets few limits or is rigid about routines, rules and expectations •      Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child •      No concern for missed visits with other parent •      Makes statements and then denies what was said •      Body language and non-verbal communication reveals lack of interest, disdain and disapproval •      Engages in inquisition of child after visits •      Rejected parent is discouraged or refused permission to attend school events and activities •      Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain •      Distorts any comments of child that might justify accusations •      Does not believe that child has any need for relationship with other parent •      When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent •      Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child •      Exaggerates negative attributes of other parent, and omits anything positive •      Delusional false statements repeated to child; distorts history and other parent’s participation in the child’s life; claims other parent has totally changed since separation •      Projection of own thoughts, feelings and behaviours onto the other parent •      Does not correct child’s rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others •      Convinced of harm, when there is no evidence •      False or fabricated allegations of sexual, physical and/or emotional abuse •      Denigrates and exaggerates flaws of rejected parent to child •      Says other parent left “us”, divorced “us” and doesn’t love “us” •      Over-involves child in adult matters and litigation •      Child required to keep secrets and spy or report back on other parent •      Child required to be messenger •      Overt and covert threats to withdraw love and affection from child unless other parent is rejected •      Extreme lack of courtesy to rejected parent •      Relocation for minor reasons and with little concern for effects on child

Also in Malhotra v. Henhoeffer, 2018 ONSC 6472, at para. 104, the court stated: “where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.”

In Bors v. Beleuta, 2019 ONSC 7029, affirmed in Bors v. Bors, 2021 ONCA 513, Justice van Melle adopted a statement by the court-appointed assessor, Dr. Michael Stambrook, about the abusiveness of parental alienation:

“It is an abusive practice. It is child abuse when it occurs. It’s emotionally abusive. It cripples and stunts children’s development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.”

In case of severe irrational alienation, the alienated child must be removed from the favoured parent for a time.  S.G.B. v. S.J.L., 2010 ONSC 3717 (CanLII) at paragraph 65.

In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child. Children’s Law Reform Act, RSO 1990, c. C.12, s.24 (1).”

          Newton v. Grillo, 2025 ONSC 3565 (CanLII) at 87-92

“In quantifying retroactive spousal support, the ranges of support generated by the SSAGs have to be adjusted to account for the fact that the ranges are based on a payor making periodic payments that are presumed to be taxable in the hands of the recipient and tax deductible by the payor.

In Vanasse v. Seguin, 2008 CanLII 35922 (ON SC), [2008] O.J. No. 2832 (Ont. S.C.) [Vanasse], the court reduced the amount of retroactive spousal support owed by 30% as it would not be taxable in the recipient’s hands.  Similarly, in Bargout v. Bargout, 2013 ONSC 29, 35 R.F.L. (7th) 391 [Bargout], the court followed the approach in Vanasse and reduced the retroactive amount found owing by 30%, based on the fact the recipient would not pay tax on the retroactive spousal support award.  In Thompson v. Thompson 2013 ONSC 5500, the court wrote, at para. 75, that with respect to:

The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in the hands of the recipient and tax deductible by the payor. A retroactive award must be “nettled down” to account for its non-taxable status in the recipient’s hands, and its non-tax deductible status in the payor’s hands.

In Patton-Casse v. Casse, 2012 ONCA 709 (CanLII), the Court of Appeal considered how to quantify retroactive lump sum spousal support. McDermot, J. reasoned that since an order for retroactive spousal support is not deductible to the payor, the payor would pay more by way of lump sum than he would have, had the amounts been paid periodically and deductible in his hands (at para 22).

The appeal judge had to consider the fact that Patton had a lower marginal tax rate than Casse, and therefore, the value of Casse’s lost deduction exceeded that of Patton’s tax savings. As a result, the appeal judge recognized that there were no way to adjust the lump sum retroactive award in a way that would place both parties in the same position they would have been in had the payment been deductible and taxable. In taking a balanced approached, McDermot, J. considered both parties’ tax positions and awarded $177,000 of retroactive spousal support by using a 25% reduction in the support arrears.

The case law I have referenced (see: Vanasse; Bargout; Lalonde v. Lalonde, [2009] W.D.F.L. 297 (Ont. S.C.); Patton-Casse v. Casse, 2011 ONSC 6182, 8 R.F.L. (7th) 393; and Korkola v. Korkola, [2009] W.D.F.L. 1380 (Ont. S.C.)) demonstrate that the court has reduced the retroactive lump-sum payable for spousal support arrears, taking into consideration the approximate marginal tax rate of the payor, as opposed to adjusting the lump-sum payable based upon the Divorce Mate provisions for the “net” or “after-tax” amounts or “Net Disposal Income” NDI amount.  As noted, the SSAG’s software, Divorce Mate, addresses after-tax amounts for periodic support ordered rather than retroactive lump-sum payments.”

          Outaleb v. Waithe, 2021 ONSC 4330 (CanLII) at 105-109

“The experts do not agree on the tax rate for grossing up the expenses that are added back to income. Ms. Russell used the marginal tax rate and Ms. Silver used the applicant’s average tax rate. In this case, the marginal tax rate is 31%. The average tax rate varied every year from a high of 18.7% to a low of 14%.

The marginal tax rate is the rate on the last dollar of income earned. This is very different from the average tax rate, which is the total tax paid as a percentage of total income earned.

I accept that the marginal tax rate is proper approach in this case. The applicant’s income has been taxed. We are now adding expenses back to income and it makes sense that we should apply the marginal tax rate, which is the rate on the last dollar of income earned. Ms. Russell testified the marginal tax rate of 31% applies for each year.

I also accept that the marginal tax rate is the correct rate to use because it is the rate applied by Divorcemate. This program has a function that allows the user to enter any non-taxable income. Divorcemate will automatically gross up this income for the purposes of child and spousal support. When grossing up, the program uses the marginal rate. Divorcemate states as follows:

Note that the software will automatically gross up this income in the determination of the party’s Guidelines Income and child and/or spousal support. In other words, the software will determine how much gross employment income the party would have to earn at his/her current marginal income tax rate (including CPP and EI premiums if specified by you), in order to have this non-taxable income.”

          Bordin v. Bordin, 2015 ONSC 3730 (CanLII) at 89-92

“I can accept all, some, or none of the affidavit evidence of the respective witnesses.  When examining the credibility (and reliability) of a deponent’s evidence, I will consider whose evidence is in harmony with the surrounding circumstances, including documentary evidence, as well as the witness’ own internal consistency or lack thereof.  I will also consider the level of detail contained in the respective affidavits, the clarity of the affidavits, and any omissions that are material to the issues to be resolved.  While I did not have the benefit of hearing viva voce evidence from the witnesses, this is not unusual in the context of motions and I have a sufficient evidentiary basis to make this assessment.”

          Duffy v. Duffy, 2024 ONSC 3339 (CanLII) at 52

“There is no question that the applicant is entitled to her costs.  The only question is whether they should be allowed on a full recovery or a partial recovery basis.

Rule 24(10) provides as follows:

(10) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

In Scalia v. Scalia, 2015 ONCA 492 at para. 68, Epstein J.A., speaking for the court, defined the meaning of “bad faith”:

… The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, aff’d 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.), is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.”

          Scott v. Scott, 2025 ONSC 3456 (CanLII) at 10-12

“The doctrine of proprietary estoppel applies when the following conditions are present (Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 15):

1. 1. 1. 1. 1. a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;
            2. the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all of the circumstances; and
            3. the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word and insist on her strict legal rights.

Like all estoppels, proprietary estoppel protects against the “inequity of allowing the other party to resile from his statement where it has been relied upon to the detriment of the person to whom it was directed”: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, [2021] 3 SCR 490, at para. 16, quoting Fort Frances v. Boise Cascade Canada Ltd., 1983 CanLII 47 (SCC), [1983] 1 S.C.R. 171, at p. 202.”

          Metske v. Metske, 2025 ONCA 418 (CanLII) at 43-44

“A preliminary procedural question is whether this court has jurisdiction over the appeal or whether the orders were interlocutory, such that the appeal is to the Divisional Court under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). This is a perennially vexing question. Although an order appointing a litigation guardian is interlocutory, the weight of the authority suggests that this court has jurisdiction over appeals from the appointment of a guardian of property: see e.g., Roelandt v. Roelandt, 2016 ONCA 858; Public Guardian and Trustee v. Gaumont, 2018 ONCA 731. On the basis of Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9, we conclude that this court has jurisdiction over the final order, such that, to the extent that the other orders under appeal are interlocutory, it can address them as well under s. 6(2) of the CJA. No party argued to the contrary.”

Gefen v. Gefen, 2023 ONCA 406 (CanLII) at 5

“The Society has the onus to prove on a balance of probabilities that the child is in need of protection: see Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 24 R.F.L. (8th) 384, at para. 19. If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application: see Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.

Subsection 74(2)(b) of the Act provides as follows:

74(2) A child is in need of protection where,

…

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child

The risk of harm under s. 74(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours: see Children’s Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (Ont. S.C.).

Harm caused by neglect or error in judgment comes within the finding of harm: see Children’s Aid Society of the Niagara Region v. T.P., 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.).

Subsection 93(1) of the Act provides as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.”

The Children’s Aid Society of London and Middlesex v. P et al., 2025 ONSC 3344 (CanLII) at 29-33