Siegel's Family Court Calendar

“Canada is a signatory to the Hague Convention on the Civil Aspects of Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”). The Hague Convention is incorporated into Ontario law through s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). The Hague Convention has two goals: (a) to secure, subject to very limited exceptions, the prompt return of children wrongfully removed from or retained in any contracting state; and (b) to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.

Courts have a duty to resolve applications quickly and efficiently for the return of a child under the Hague Convention. Delay imposes hardship on the child, frustrates appellate review, and breaches our international obligations. To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called “parenting orders” under Canadian and Ontario law) are for another day.

…

Article 11 of the Hague Convention requires Canada to “act expeditiously in proceedings for the return of children.”

The importance of this principle was definitively stated in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 23:

The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues: Balev, at paras. 25-27.

Although the application judge referred to Balev, the conduct of the application and hearing did not comply with this directive.

…

When, as here, there is a delay, the abducting parent gains an advantage. Not only does the child develop ties to the new jurisdiction, but appellate review is impeded. The child will soon have been in Canada for nearly three years – this is a third of his life. He is now estranged from his father.

The standard of review for Hague Convention decisions was set out by this court in Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, [2013] W.D.F.L. 3318, at para. 5:

An appeal to this court in a Hague Convention [sic] is not a rehearing or a trial de novo review of the evidence, and the application judge’s findings are entitled to considerable deference. They will not be interfered with – notwithstanding the hearing is based on affidavit, not viva voce, evidence – unless they are unreasonable in the sense that they amount to “palpable and overriding error” or “manifest error” or “clear error”.

While the credibility findings are entitled to deference, the process followed here is not in accordance with the court’s obligation under the Convention for prompt resolution. The application judge has responsibility to comply with the timeline requirements in the Convention; see Balev, at paras. 84, 87. The delay not only contravenes the court’s obligation, it precludes meaningful appellate intervention. The delay itself amounts to a manifest or clear error.”

            Leigh v. Rubio, 2022 ONCA 582 (CanLII) at 1-2, 18-19, 31-33

“Of course, I am mindful that forcing the parents to make decisions jointly could inflame their conflict which is not in the daughter’s best interests. Therefore, the parties shall immediately retain and participate in parent coaching services, and shall provide proof of the same before seeking any relief before this court. A parenting coach can provide guidance on the selection of the family therapist, on parenting challenges, and can help with managing conflict. The parents shall provide the parenting coach with a copy of the OCL Report, the endorsements and orders in this matter, and a copy of this decision. The parents shall share the cost of the parent coaching proportionally.”

S.M. v. J.M., 2025 ONSC 4648 (CanLII) at 64

“The test for unjust enrichment requires me to consider the following:

(1) whether Sukhminder was an enriched;

(2) whether there was a corresponding deprivation to the Parminder and Amandeep; and

(3) whether there was a juristic reason for the benefit and corresponding detriment: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303 at paras. 35 to 59, 63, and 83; Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 SCR 269 (S.C.C.) at paras. 30-31.

The question is largely economic at the first and second stage, while the third stage engages relevant legal and policy issues: Moore v. Sweet, at para. 41.

The requirement to show an enrichment and a corresponding deprivation are closely related, being “the same thing from different perspectives” and “essentially two sides of the same coin”: Moore v. Sweet, at para. 41. The Supreme Court of Canada has been clear that the acid test is whether the defendant becomes richer in circumstances where the plaintiff becomes poorer: Moore v. Sweet, at para. 44. The concept of “loss” therefore captures a benefit that was never in the plaintiff’s possession but that the court finds would have accrued for their benefit had it not been received by the defendant instead: Citadel General Assurance Co. v. Lloyds Bank Canada, 1997 CanLII 334 (SCC), [1997] 3 S.C.R. 805, at para. 30.”

            Sidhu v. Sidhu, 2023 ONSC 4618 (CanLII) at 23-24

“When considering the duration of spousal support claims once entitlement is established, the court should consider the objective of self-sufficiency set out in s. 15.2(4) of the Divorce Act.

In Fisher v. Fisher, 2008 ONCA 11 (CanLII), 2008 232 O.A.C. 213, at para. 53, the Court of Appeal observed:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation…. Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

The Court of Appeal in Reisman v. Reisman, 2014 ONCA 109 at para 28 discussed the objective of self-sufficiency:

… However, promoting self-sufficiency cannot be the only consideration that determines the duration of a support order. The court also has to take into account the recipient spouse’s age, skills, education, opportunities for retraining and, importantly, her realistic prospects of being able to find a job that enables her to become self-sufficient.”

Osmond v. Osmond, 2024 ONSC 4398 (CanLII) at 61-63

“For the legal system in Iran to qualify as “serious harm”, that harm would have to be clearly established on the evidence. It is not enough to point to differences in the law and suggest that a parent may have different rights in a foreign jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the CLRA, which was implemented to protect the safety of children, must not be reduced to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety: See N. v. F., at para 79. Accordingly, the fact that the law in Iran may not be as child-focussed or based on the children’s best interests as it is in Ontario does not equate to the children suffering “serious harm” if the court in Iran has jurisdiction over parenting matters, as contemplated by s.23 of the CLRA.”

Sajjadi v. Forootan, 2025 ONSC 4570 (CanLII) at 42

“Second, the appellant asserts that the trial judge erred by failing to address concerns about the respondents’ reliability, focusing only on their credibility.

I do not accept this submission. A trial judge’s determination to accept a witness’s evidence includes an implicit assessment of its accuracy or reliability. The trial judge is presumed to have correctly applied the law in accepting a witness’s evidence, including the relationship between credibility and reliability: G.F., at para. 82. Assessing reliability is “within the province of the trial judge” who has “the opportunity to hear and observe all of the witnesses”: R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 118, per Pepall J.A. (dissenting), aff’d 2020 SCC 36. If the trial judge was alive to reliability concerns, considered those concerns, and assessed the witness’s reliability and credibility, the trial judge’s assessment attracts deference: R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, at para. 82, per Laskin J.A. (dissenting), aff’d, 2013 SCC 4, [2013] 1 S.C.R. 54.”

            Calin v. Calin, 2021 ONCA 558 (CanLII) at 21-22

“An order to strike a party’s pleadings is a drastic remedy that should only be granted in exceptional circumstances and when no other remedy would suffice: Chiaramonte v. Chiaramonte, 2013 ONCA 641, para. 31.   In determining whether to strike the pleadings of non-complaint party, a court must (i) consider the substantial disclosure already made; (ii) itemize what disclosure the party had failed to provide; (iii) make a finding of willful disobedience of the order; and (iv) consider proportionality: Manchanda v. Thethi, 2016 ONCA 909, para. 31.

In any event, regardless of the complexity of a spouse’s financial situation, a repeated failure to comply with an order compelling financial disclosure may, even if there is partial compliance, amount to a deliberate attempt the to frustrate the determination of a spouse’s claims for support and equalization: Mullins, supra.”

Altman v. Altman, 2022 ONSC 4479 (CanLII) at 26-27

“In McConnell v. Huxtable, 2014 ONCA 86, the Ontario Court of Appeal held that in family law cases, the two-year limitation period set out in the Ontario Limitations Act, 2002, typically commences on the date of separation.  Justice Rosenberg stated at para. 52:

Generally speaking, a claim of unjust enrichment requires that the defendant retain a benefit without juristic reason in circumstances where the claimant suffers a corresponding deprivation. In other words, the relevant act of the defendant is simply the act of keeping the enrichment (or the omission to pay it back) once the elements of the unjust enrichment claim have crystallized. In the family law context, this may typically occur on the date of separation, when shared assets, including real property, are divided and the possibility therefore arises of one party holding onto more than a fair share.

 Justice Rosenberg further clarified the analysis at para. 54:

I would think that ordinarily the claim should be taken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation: see Maddaugh and McCamus, The Law of Restitution, looseleaf, release no. 11 (Toronto: Canada Law Book, 2013), at 3:500.30; and Wilson v. Fotsch, [2010] B.C.J. No. 850, 2010 BCCA 226, at para. 10).”

            Mirshahi v. McCarthy et al, 2025 ONSC 4473 (CanLII) at 28-29

“An order that terminates parenting time or requires long-term supervision is rare because it is an extreme remedy. In some cases, such orders are necessary to protect the child.

In Jennings v. Garrett (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), Justice Blishen provided a list of the factors that have led courts to terminate access. Most of these factors are also relevant to the question of long-term supervision. At para. 135, the Court states:

1. 1. 1. 1. 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M. (B.P.) v. M. (B.L.D.E.), supra; Stewart v. Bachan, [2003] O.J. No. 433 (Ont. C.J.); Studley v. O’Laughlin, [2000] N.S.J. No. 210 (N.S. Fam. Ct.); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707 (Ont. C.J.).
            2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B. Q.B.); Abdo v. Abdo(1993), 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d) 1 (N.S. C.A.); Studley v. O’Laughlin, supra.
            3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay(1987), 1987 CanLII 147 (AB KB), 10 R.F.L. (3d) 166 (Alta. Q.B.); Reeves v. Reeves, [2001] O.J. No. 308 (Ont. S.C.J.).
            4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra.
            5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O’Laughlin, supra; M. (B.P.) v. M. (B.L.D.E.), supra.
            6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
            7. Older children’s wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Ont. C.J.).

[Emphasis added.]”

            N.S. v. A.N.S., 2021 ONSC 5283 (CanLII) at 407-408

“The current statutory scheme governing default hearings is found in section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act) and rule 30 of the Family Law Rules (FLR). The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The payor is usually asked to provide proof of income. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See: Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, paragraph 17.

At the hearing, the amount of arrears owed and the payor’s ability to pay are the central issues. Subsection 41 (9) of the Act puts the onus on the payor, as follows:

                           Presumptions at hearing

(9)  At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office.

Subsection 41 (10) of the Act sets out the powers of the court on a default hearing as follows:

                  Powers of court

(10)  The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,

(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;

(b) discharge the arrears in full by a specified date;

(c) comply with the order to the extent of the payor’s ability to pay;

(d) make a motion to change the support order;

(e) provide security in such form as the court directs for the arrears and subsequent payment;

(f) report periodically to the court, the Director or a person specified in the order;

(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;

(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and

(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.

Subsection 41 (11) of the Act states:

No effect on accruing of arrears or other means of enforcement

(11)  An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order.

Subsection 41 (17) of the Act reads:

Imprisonment does not discharge arrears

(17)  Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.”

Ontario (Director, Family Responsibility Office) v. Burke, 2025 ONCJ 402 (CanLII) at 47-51