Siegel's Family Court Calendar

“The test at a Temporary Care and Custody Hearing is that the Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to her parent (in this case, the mother), it is more probable than not that the child will suffer harm. Further, the Society must establish that the child cannot be adequately protected by the terms and conditions of an interim supervision order to the parent.

However, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“the Federal Act”) is paramount to the CYFSA and applies if a child is found to be an Indigenous child for the purpose of the Federal Act.

The Federal Act establishes national minimum standards for child and family services delivery for all Indigenous children and families. The Act has three purposes, as set out in s. 8:

a.    affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;

b.    set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and

c.    contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

The key principles of the Federal Act, set out in s. 9, are the best interests of the child, cultural continuity, and substantive equality. The Act provides, at s. 4, that “[f]or 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”.

In Children’s Aid Society of Ottawa v. T.C and K.J., 2025 ONSC 3633, Justice Engelking found that, under the Federal Act, the test applicable to a temporary care and custody motion within a Protection Application is a “straightforward best interests test”.

The best interests test under the Federal Act is the best interests of the Indigenous child (s.10), which considers several expanded factors. To the extent that it is consistent with the child’s best interest, s.16 provides for priority of placement, the highest priority being with the child’s parents.”

Children’s Aid Society of Ottawa v. K.L.C., 2025 ONSC 6581 (CanLII) at 14-19

“Ms. Balmir has a prima facie right to an order for partition and sale of the matrimonial home pursuant to sections 2 and 3 of the Lands Act , RSO 1990, c P.4 . I am required to order the sale unless Mr. Balmir demonstrates that such an order should not be made and that there has been malicious, vexatious, or oppressive conduct on the part of Ms. Balmir in relation to the sale: Marchese v. Marchese, 2019 ONCA 116, para. 5.  The prima facie right to partition or sale should not be impeded lightly: Arlow v. Arlow (1991), 1991 CanLII 12940 (ON CA) , 33 RFL (3d) 44 (Ont. CA), aff’g 1990 CanLII 12267 (ON SC) , 27 RFL (3d) 348 (Ont. Dist. Ct).

In Sanvictores v. Sanvictores, 2022 ONSC 2673, this court provided the following helpful guidance regarding the sale of the marital home in paragraph 13:

The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act , RSO 1990, c. P.4, is governed by the following principles:

1) A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5.

2) There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”. “Malice” arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as “vexatious” when it is taken to harass or oppress others rather than to assert a legitimate right. The sale of a matrimonial home is “oppressive” when the co-tenant who opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald (1976), 1976 CanLII 845 (ON SC) , 14 OR (2d) 249 (Div. Ct.), at p. 254.

3) Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, RSO 1990. c. F.3, (“FLA”). In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 OR (3d) 436 (CA), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 OR (3d) 41 (CA), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley , [1988] OJ No. 414 (CA), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).

4) The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property: see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 RFL(6th) 15;

Also see Howard v. Howard , 2022 ONSC 6915, Dhaliwal v. Dhaliwal, 2020 ONSC 3971, 42 RFL (8th) 321; and, RL v. MF, 2022 ONSC 1677.

The courts have rejected provisional motions for pretrial sale when there are circumstances such as the possibility of a trial within a short time (Walters v. Walters, 1992 CanLII 8599 (ON SCDC), prejudice on equalization payment (Kereluk v. Kereluk, 2004 CanLII 34595 (ON SC)), or the need to preserve the residence of a spouse or vulnerable child who might well retain the home in the case (Stothers v. Kazeks, 2023 ONSC 5021).

Where a partition and sale order is likely to affect substantial rights in jointly owned property, an application under the Partition of Lands Act should be deferred until the matter is decided under the Family Law Act : Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 OR (3d) 436 (CA), at page 445; Martin v. Martin (1992),1992 CanLII 7402 (ON CA), 8 OR (3d) 41 (CA), at para. 26.

Balmir v. Balmir, 2023 ONSC 5903 (CanLII) at 12-15

“MacPherson J. in C.(W.), supra summarized the available orders once alienation is found, as articulated by Dr. Fidler, as the following:

a.   Do nothing and leave the child with the alienating parent;

b.   Do a custody reversal by placing the child with the rejected parent;

c.   Leave the child with the favoured parent and provide therapy; or

d.   Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.”

            Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII) at 40

“In 2008, the authors of the SSAG, Professors Rogerson and Thompson, noted that cases involving disability are “hard” cases because “need” looms large. “Disability will be an important factor in locating the amount and duration within the ranges in these cases”: SSAG, s. 12.4. They said:

Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.

(i) Lower Amount, Extend Duration: most courts will extend duration, even to be “indefinite”, while keeping the amount within the range, at or near the low end;

(ii) No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;

(iii) Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration.

In the SSAG Revised User’s Guide, 2016, Professors Rogerson and Thompson noted that courts continued to struggle with cases involving the disability of a spouse. They said, at s. 12(d), p. 62:

The law in these cases is particularly uncertain and confused, as the courts have not yet been able to work out a consistent approach. …

Cases involving permanent illness or disability in short and medium length marriages are “hard” cases and they are often litigated because they are difficult to settle. We thus have many reported decisions, but even with some appellate court rulings on the issue no clear approach has developed. … to a large degree the cases involve competing ideas about entitlement that are still being worked out in the courts.

These 2016 remarks continue to be applicable. In the same document, at p. 64, Rogerson and Thompson also said:

Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue. As for us, we stated in the SSAG, “Our preference would be the … ‘no exception’ approach, which seems more consistent with the modern limits of spousal support as a remedy.” We will have to await further developments in the law. [Emphasis added.]

          W.G. v. K.G., 2024 ONSC 5716 (CanLII) at 32-34

“In order to succeed in a defamation action, a plaintiff must prove, on a balance of probabilities, that:

a.   That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person,

b.   That the words in fact referred to the plaintiff, and

c.   That the words were published, meaning that they were communicated to at least one person other than the Plaintiff.

If these elements are proven, then falsity and damage are presumed.  The Plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless.  This tort is one of strict liability (See Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.J. No. 61 at paragraph 28).”

Belliveau v Quinlan, 2025 CanLII 110494 (ON SCSM) at 14-15

“The case law establishes that the threshold to prove that an agreement was made under duress is high.   In Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, Penny J. states at para. 53:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure.  There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract.  To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind.  There must be something more than stress associated with a potential breakdown in familial relations.  There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.”

            Widdifield v. Hunter, 2023 ONSC 6522 (CanLII) at 116

“Partial summary judgment “should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings”: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 428 D.L.R. (4th) 113, at para. 54. Further, partial summary judgment should not be granted where there is a real risk of inconsistent or duplicative facts in the context of the litigation as a whole: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at para. 38.

That does not mean, however, that partial summary judgment should never be granted. It is appropriate to grant partial summary judgment where three conditions are established:

(i)           The determination of the case in several parts will prove cheaper for the parties;

(ii)         Partial summary judgment will get the parties’ case in and out of the court system more quickly; and

(iii)        Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

(Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62)

Appellate courts must be cautious in reviewing orders for partial summary judgment. In Malik, for example, it was likely that the claims involved in the partial summary judgment motion would not result in inconsistent findings, but the motion would increase both costs and delay. However, at para. 67, the court noted that setting aside partial summary judgment for adding cost and delay would only add further cost and delay, and dismissed the appeal. Additionally, in VP Auto Sales & Service Ltd. v. Ahmed Inc., 2024 ONCA 507, at para. 26, this court has previously found no error in granting partial summary judgment where the adjudicator instructed himself properly on the principles of trial efficiency and proportionality.

Motion judges in family law matters must consider the factors that weigh for and against granting partial summary judgment. As a matter of best practices, they should explain why they find it appropriate.

I would also note that when unrepresented parties are involved, as in this case, concerns about the efficiency of the process may take on particular importance. In such matters, however, it may be particularly important to narrow the issues for trial, particularly where one or more parties are self-represented.”

          Le v. Norris, 2024 ONCA 741 (CanLII) at 22-26

“Court orders are not optional.  Non-compliance must have consequences: Gordon v. Starr, 2007 CanLII 35527 (ONSC), at para 23; Taylor v. Taylor, 2005 CanLII 63820 (ONSC), at para 3; Levely v. Levely, 2013 ONSC 1026, at paras. 12 and 13.

Faced with a party’s failure to respect court processes, judicial responses should be “strong and decisive”: Levely, supra.

The Court must be alive to the risk that proceedings can be “hijacked by a party and transformed into a process for further victimizing the other party and the children in their care”: Levely, supra.

Rule 1(8) of the Rules states that where a party has failed to comply with a Court Order, the Court may make any Order it considers necessary for a just determination of the matter, including an Order striking a party’s pleadings pursuant to Rule 1(8)(c).

The Court also has inherent jurisdiction to make an order that it considers appropriate to address a party’s failure to respect the Court process, including breach of an order.  This authority includes the jurisdiction to strike pleadings: Hughes v Hughes, 2007 CanLII 10905 (ON SC), [2007] OJ No 1282 (QL); CanLII 10905 (ON SC) at para 27.

Under Rule 1(8.4), the striking of a party’s pleadings denies the party any further notice of the steps in the case (except service of an Order), disentitles them to participate in a case, the case may be dealt with in the party’s absence, and the matter may proceed to an uncontested trial. These consequences are automatic unless the Court orders otherwise.

The Ontario Court of Appeal has upheld striking pleadings in cases of a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court”: Hill v Gregory, 2018 ONSC 6847 at paras 69-70; Ablett v Horzempa, 2011 ONCA 633 at para 7.

Courts are rightly cautious about striking pleadings in family matters involving parenting. Nevertheless, such a remedy may be appropriate: Purcaru v Purcaru, 2010 ONCA 92.  Where a parent is unlikely to contribute in a productive manner to the trial and their past behaviour warrants striking their pleadings, that may justify a loss of the right to participate: Kim v McIntosh, 2023 ONSC 356; Holden v Ploj, 2023 ONSC 1287.

When considering Rule 1(8), courts often apply a three-stage process:

a.   First, ask whether there is a triggering event that allows the Court to consider the wording of Rule 1(8);

b.   Second, if the answer to (a) is yes, consider whether it is appropriate to exercise its discretion to not sanction a non-complying party; the onus is on the non-complying party to persuade the Court why it should escape a sanction;

c.   Third, if the Court decides against exercising the discretion noted in (b), it retains very broad discretion as to the appropriate remedy.

Ferguson v Charlton, 2008 ONCJ 1 at para. 64

When deciding whether to strike pleadings, a court must consider if there are other remedies in lieu of striking pleadings that would suffice: Van v Palombi, 2017 ONSC 2492 at para. 30; Giavon v Giavon, 2020 ONSC 21 at para 69.”

Allard v. Cho, 2025 ONSC 5719 (CanLII) at 11-20

“Duress is the “coercion of a person’s will through illegitimate pressure, with one party dominating the will of another at the time that a contract is executed.” See Ramdial v Davis, 2015 ONCA 726, at para 42. Duress can include “coercion, intimidation or the application of illegitimate pressure”. See Albaum v Albaum, 2024 ONSC 1595, at para 76.”

          Zunnurain v. Chowdhury, 2024 ONSC 5552 (CanLII) at 66

“At trial, the father sought to lead evidence about how the child support term in the Joint Agreement was negotiated, and what the parties intended. Although he gave evidence that was relevant to the interpretation of the terms of the agreement which was admitted for the purpose of explaining the surrounding circumstances to the agreement, his subjective evidence of the parties intentions in negotiations was contrary to the parol evidence rule and inadmissible for this purpose: Sattva at paras 59-61; 2356802 Ontario Corp. v. 285 Spadina SPV Inc., 2022 ONSC 7318 at para 53. The purpose of the parol evidence rule is to achieve finality and certainty in contractual obligations, and to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract: Sattva at para 59, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316 at 341-42.  Applying the parol evidence rule, the father’s evidence of the surrounding circumstances could not add to, subtract from, vary, or contradict the words of the written agreement: Ibid; 235 Ontario Corp. at para 53.”

          McPherson v. McPherson, 2023 ONSC 5643 (CanLII) at 67