Siegel's Family Court Calendar

“The presumption of capacity is only rebuttable under precise conditions and with clear evidence: Ohenhen (Re), 2018 ONCA 65, 140 O.R. (3d) 616, at para. 82; Royal Bank, at para. 18. Those requirements are necessary to protect the autonomy of the person whose capacity is in issue. As Major J. acknowledged in Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722, at para. 75, “Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination.”

Further, the question of capacity is nuanced. There are varying levels of capacity – a person can be capable of making a basic decision and not capable of making a complex decision or capable of making decisions about personal matters such as where or with whom to live and not decisions regarding financial matters: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.), at pp. 293-94, aff’d 1998 CanLII 3001 (ON CA), [1998] 37 O.R. (3d) 221 (C.A.), leave to appeal refused, [1998] S.C.C.A. 161; Ohenhen (Re), at paras. 79-80; and Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 86, leave to appeal refused [2020] S.C.C.A. No. 409. In other words, the fact that a person is incapable of making decisions regarding property does not mean that they are incapable of making decisions regarding personal care. Further, a person may be capable of making decisions regarding some aspects of property and personal care, for example, one’s residence, but not others. In sum, capacity is on a spectrum and is not “an all-or-nothing proposition”: Ohenhen (Re), at para. 79.

The onus on the party alleging incapacity and the high burden of proof required to displace the presumption of capacity serve to safeguard the important right of self-determination. So too does the low threshold set by the courts for the determination of capacity. As Benotto J. (as she then was) stated in Calvert, a case under the Act involving the capacity of a spouse living with Alzheimer’s disease to separate and divorce, at p. 294: “The courts are slow to take away a person’s right to decide. This is reflected in the low threshold the courts have set for the determination of capacity.” This is because “[a] person’s right of self-determination is an important philosophical and legal principle”: Calvert, at p. 293. Jamal J.A. (as he then was), relying on Calvert and Ohenhen (Re), further explained in Carmichael, at para. 85: “Capacity is linked to personal autonomy and a person’s self-determination and ability to make important life choices.

Against the backdrop of the right to be heard and legal presumption of capacity, I turn to interpret ss. 2(1)(b) and 16(1) of the Act. Legislation that imposes limitations on an adult person’s decision-making rights must be interpreted in a way that minimizes intrusiveness: Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12, [2005] 1 S.C.R. 177, at para. 23. The determination that an adult person is a “child of a marriage” may diminish that person’s right to function autonomously, including, as here, deciding where, when, and with whom they will live.

Issues of capacity for dependent adults living with disabilities are commonly but not exclusively decided in proceedings brought for guardianship orders under the SDA. However, given the equally serious consequences to an adult’s autonomy that may flow from orders made under the Act, there is no reason to treat issues of capacity that arise under the Act any differently than they are treated in other proceedings. In consequence, s. 2(1)(b) of the Act must be interpreted and applied in the context of the common law presumption of capacity and the high burden of proof required to displace it.”

J.F.R. v. K.L.L., 2024 ONCA 520 (CanLII) at 27-31

 “Family Law Rule 14(19)(d) allows the court to change an order that “was made without notice” [emphasis added]. FLR 14(19)(e) allows the court to change an order “made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present” [emphasis added]. Which subrule is most applicable is debatable in this case because the respondent had notice of the proceeding, but not the hearing where the order was granted. Either way, the test to be applied in deciding the issue is settled. In similar circumstances, the Court of Appeal stated in Zia v. Ahmad, 2021 ONCA 495, at para. 4, that the court is to consider the following factors:

a.   whether the moving party moved promptly, after learning of the order, to have it set aside;

b.   whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;

c.   whether the moving party has established an arguable case on the merits;

d.   whether the moving party is acting in good faith and with “clean hands”;

e.   the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,

f.   whether, in the final analysis, the interests of justice favour setting aside the judgment.

This description of the test mirrors the applicable test in civil cases set out by the Court of Appeal in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 47 to 49. In that case, the Court of Appeal added, at para. 50, that these factors are not treated as rigid rules. The factors are not a series of hurdles for the responding party but rather factors to be weighed in the exercise of discretion: D’Alessio v. D’Alessio, 2010 ONSC 321, at para. 6; Lucreziano v Lucreziano, 2021 ONSC 4106, at para. 42.”

          Phelan v. Givlin, 2023 ONSC 3917 (CanLII) at 6-7

“In her application, Ms. Kennedy has put her state of mind in issue by claiming duress, undue influence and unconscionability as a reason to set aside the Marriage Contract. In her application and affidavit on this motion, she alleges that:

• • • • •      She signed the Marriage Contract under duress.
        •      Mr. Bowen exerted undue influence on her.
        •    The circumstances surrounding the negotiation and signing of the Marriage Contract were unconscionable.
        •      She had limited contact with Ms. Klukach during negotiations because she was travelling with Mr. Bowen and often had no internet access.
        •    She “did not understand the process of negotiating a marriage contract”.
        •     She “had limited opportunity to discuss the proposed contract” with Ms. Klukach, and she “believed she had no choice but to sign the contract”.
        •      She had no opportunity to read the Marriage Contract before signing.
        •    She received inadequate disclosure from Mr. Bowen during negotiations.
        •    There was no independent legal advice document signed. The Affidavit and Certificate of Solicitor that was attached to the Marriage Contract was not signed. She implies that because the certificate was not signed, she did not receive independent legal advice from Ms. Klukach.

Mr. Franks wrote to Ms. Klukach in November 2016 asking her to preserve her file. Ms. Klukach advised that she had left the file with Cassels Brock when she departed that firm in 2013. When Cassels Brock was asked to preserve the file, Mr. Franks learned that that file had been delivered to Ms. Kennedy in the spring of 2016 (before the date of separation).

Ms. Kennedy’s current counsel have had the Klukach file since February 2017. Since at least May 2017, Mr. Franks has been asking for Mr. Niman’s firm to produce the Klukach file. On June 20, 2017, the day before the hearing of the motion, Mr. Niman finally replied. He sent a brief letter to Mr. Franks stating that the file would not be produced because there is “no foundation” for the request “at this time”. The letter did not assert privilege as a reason for refusing to produce the file.

Stating that there was no foundation for requesting the file is contrary to the law.  Ms. Kennedy’s application puts her state in issue and does lay the foundation for the request. The law in this area is well known. When a party places her state of mind in issue with respect to her claim and has received legal advice to help form the state of mind, privilege will be deemed to be waived with respect to such legal advice (Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 at para. 26).”

            Kennedy v. Bowen, 2017 ONSC 3977 (CanLII) at 9-12

“In Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 37, Audet J. stated that when parents disagree, the decision with respect to the choice of school is ultimately a matter of judicial discretion. Her Honour summarized a number of general principles that have emerged from the case law to assist the court in making a decision that is in the child’s best interests. These include:

a.    In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child must be taken into account;

b.    When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program;

c.    The emphasis must be placed on the interests of the child and not on the interests or rights of the parents;

d.    The importance of a school placement or educational program to promoting the child’s linguistic and cultural heritage;

e.    Whether there is any prospect of one of the parties moving in the near future and whether a move will mean new childcare providers or other unsettling features;

f.      The court will look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;

g.    Any problems with the existing or proposed school will be considered;

h.    Proximity to the residence of one parent or the other or their convenience are not determinative. A decision as to the choice of school should be made on its own merits and the child’s needs;

i.      Third-party ranking systems should not factor into the court’s decision because these systems do not take into account the best interest of a particular child;

j.      If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason to do so. Before a court will order a child to transfer schools, there must be convincing evidence that the change is in the child’s best interests.

Any change of school must be considered from the child’s perspective. A school-age child will likely have already formed attachments to the school he or she attends. Continuing the child’s existing school placement promotes stability in the child’s life: Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at para. 32.

A child’s need for stability, consistency and familiar supportive relationships is often heightened during the emotionally stressful period of parental separation: Lang v Qureshi, 2025 ONSC 585, at para 37.”

R.J.P. v. L.A.K., 2025 ONSC 3828 (CanLII) at 12-14

“I therefore begin with a broad consideration of the scheme of the CYFSA and its object.

A requirement of the CFSA was that the Minister publicly review the Act, or specified provisions of it, every five years. These reviews were to be conducted by the Ministry of Children and Youth Services to enable the government to better understand how its laws, programs and policies are experienced on the ground. The information gathered as part of these reviews provided an opportunity for learning and change, and also supported the Ministry and its partners to provide high-quality services for children, youth and families in Ontario. In September 2014, the third legislative review of the CFSA was announced.

The 2015 review stressed the need for change for children in protection proceedings. It recommended a change in the language to reflect the realities of families and also recommended a change to the test for access to “Crown wards”. The CYFSA achieved both these objectives.

As this court said in Kawartha–Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4^th) 497, and in L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, the new Act reflected a significant change for children in care. The age for protection was raised from 16 to 18. The archaic and stigmatizing term “Crown ward” was replaced with “extended society care”. Other key changes included:

• • • • •  Making services more culturally appropriate for all children and youth in the child welfare system, including First Nations, Inuit, Métis, to ensure that they receive the best possible supports;
        • Focusing on early intervention, to assist in preventing children, youth and families from reaching crisis situations in the home; and
        • Improving review of service providers to ensure that children and youth receive consistent, high-quality services across Ontario.

The paramount purpose of the Act remained as it had been: “to promote the best interests, protection and well-being of children” (s. 1(1)). Other purposes in s. 1(2) emphasize the best interests of children:

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. 1. 1. 1. 1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
            2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
            3. Services to children and young persons should be provided in a manner that,

i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,

iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. takes into account a child’s or young person’s cultural and linguistic needs,

v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and

vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’sextended family and community, where appropriate.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child’s “best interests” predominant in determining access. As stated by this court in Kawartha and repeated in Peel, the change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include:

• • • • • The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities.
        • When the court undertakes a best interests analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant;
        • There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access. and
        • While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.

The changes referred to in Peel include:

• • • • • Highlighting in the first statement of the Preamble that children are “individuals with rights to be respected and voices to be heard” and ensuring that children’s wishes are considered and given due respect when any decision is made that affects their lives;
        • Confirming that the aim of the CYFSAis to be consistent with, and build upon, the principles expressed in the United Nations Convention on the Rights of the Child;
        • Expanding the protections and unique considerations for all First Nations, Inuit and Métis children;
        • Expanding the age of “protection” to include 16 and 17 year olds; and
        • Specifically referencing siblings in the non-exhaustive list of persons who may seek access. This inclusion was made to specifically “promote the consideration of [sibling] access application[s], and as part of efforts to promote the rights and voice of children throughout the Act.”

Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (CanLII) at 32-37

“When children are being raised by both parents and the test for contact is met, one visit per month may be reasonable or even less. In some instances, grandparent contact may mimic the type of contact that often follows an adoption – perhaps only two, four or six times a year.

The goal is to maintain the positive connection between grandparents (or other family members) through to young adulthood.  Care must be taken to maintain these bonds in a way that does not interfere with the parents’ ability to raise their children free from interference, and as they see fit.”

Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896 (CanLII) at 165-166

“Child support for adult children comes with strings attached. The recipient parent, often with the assistance of the dependant children, is obliged to provide disclosure to confirm that each child continues to qualify as a child of the marriage as defined by the Divorce Act.”

C.Z. v. J.Y., 2025 ONSC 3729 (CanLII) at 1

“Sections 21(1) and 23 of the Family Law Act provide as follows:

21(1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,

(a) the other spouse joins in the instrument or consents to the transaction;

(b) the other spouse has released all rights under this Part by a separation agreement;

(c) a court order has authorized the transaction or has released the property from the application of this Part; or

(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.

23 The court may, on the application of a spouse or person having an interest in property, by order,

(a) determine whether or not the property is a matrimonial home and, if so, its extent;

(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,

(i) cannot be found or is not available,

(ii) is not capable of giving or withholding consent, or

(iii) is unreasonably withholding consent,

subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;

(c) dispense with a notice required to be given under section 22;

(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and

(e) cancel a designation made under section 20 if the property is not a matrimonial home.

There is case law supporting the proposition that these provisions are used when one spouse is the title owner, and the non-titled spouse refuses to consent to a disposition. Section 23(b)(iii) has been held not to be broad enough to dispense with the consent of a spouse who is a joint owner of the matrimonial home: Sullivan v. Sullivan, 1986 CanLII 6333 (ON SC), [1986] O.J. No. 1896, 2 R.F.L. (3d) 251 (Ont. Dist. Ct.)).; Flores v. Flores 2020 CarswellOnt 13748, 2020 ONSC 5809, 325 A.C.W.S. (3d) 183 at para. 49; Nani v. Nani 2021 CarswellOnt 2714, 2021 ONSC 1368, 334 A.C.W.S. (3d) 155 at para. 97. Rather, “[w]hen it comes to spouses who jointly own the matrimonial home, the Partition Act … gives the court jurisdiction to deal with a proposed sale by one spouse where the other objects”: Nani at para. 98. Other case law relies upon both the Partition Act and s. 23 of the Family Law Act to effect a sale in appropriate circumstances: Bailey-Lewis v. Lewis 2020 CarswellOnt 17755, 2020 ONSC 7525, 328 A.C.W.S. (3d) 795.

Section 2 of the Partition Act provides as follows:

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

The court in a family law proceeding may grant a joint tenant an order for partition and sale under s. 2 of the Partition Act unless:

a.   an interim sale will prejudice a substantial right of one of the parties under the Family Law Act(Silva v. Silva 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436, [1990] O.J. No. 2183 para. 23) or

b.   the responding partydemonstrates that the applicant’s conduct in seeking the order is malicious, vexatious or oppressive (Latcham v. Latcham 2002 CanLII 449060 (ON CA), [2002] O.J. No 2126 para. 2).”

Arafat v. Arafat, 2023 ONSC 3889 (CanLII) at 13-16

“Jurisdiction to award retroactive original child support in this circumstance is found in s. 15.1 of the Divorce Act which allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage.”  There is no restriction in the Divorce Act as to the date from which the court may order that the award take effect: at para. 81.

However, at paras. 88-89 of DBS, the court confirmed that pursuant to the definition of “child of the marriage” in section 2(1) of the Divorce Act, a court only has jurisdiction to make a retroactive original child support award if the child in question is a “child of the marriage” when the application is made – “child support is for children of the marriage, not adults who used to have that status.”

In its preamble to the discussion of the factors to be considered in determining when the discretion to award retroactive original child support should be exercised, the court in DBS, at para. 97, emphasized that retroactive original child support awards should not be considered exceptional:

It cannot be exceptional that children are returned the support they were rightly due.  Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself.  A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.

At para. 99, the court added that none of the factors to be considered before awarding retroactive child support are decisive.  A trial court is required to conduct a holistic view of the matter and decide each case based on its particular factual matrix.”

          Abraham v. Levesque, 2024 ONSC 3534 (CanLII) at 52-55

“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