Siegel's Family Court Calendar

“The parties have several frozen embryos kept in storage at a facility operated by Boston Reproductive Medicine, PLLC, also referred to as “CCRM Fertility” or “CCRM Boston”. This facility is located in the area of Boston, Massachusetts. It is not disputed that CCRM Fertility requires both parties to consent, or a Court Order, before embryos can be destroyed or otherwise dealt with.

The father seeks an order for the destruction of the frozen embryos. The mother does not want the embryos to be destroyed, citing moral and religious concerns. Instead, she wishes to relocate the embryos to a more economically efficient facility for indefinite storage at her cost (it currently costs $1,000 U.S. to keep them stored at CCRM Fertility). After the deaths of one or both of the parties, the mother wishes to have the embryos donated to a credible facility to assist a family in reproduction.

The parties’ rights and obligations in relation to the embryos are governed by the detailed contract that they signed with CCRM Fertility. The law applicable to this contract is that applicable in the State of Massachusetts, not the Canadian Assisted Human Reproduction Act, S.C. 2004, c. 2. In my view, this Court does not have jurisdiction to make an order related to embryos that are located outside of Canada.

Therefore, I decline making any order in relation to the parties’ embryos.”

          Malone v. Cappon, 2023 ONSC 5365 (CanLII) at 2-5

“On August 12, 2024, counsel for the Respondent in the Appeal advised the Court that the Respondent in Appeal took the position that the Divisional Court did not have jurisdiction over the appeal since the final orders of MacPherson J. were made in relation to parenting time, child support and divorce under the Divorce Act, and therefore does not fall within the jurisdiction of the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

The relevant parts of s. 19(1) of the Courts of Justice Act provide:

19 (1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario;

(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,

(a) for a single payment of not more than $50,000, exclusive of costs;

(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;

(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or

(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b).

In light of this objection, on August 20, 2024, I invited the parties to file submissions to address the jurisdictional issues raised by the Respondent in Appeal, and directed them to consider this Courts decisions in C.C. v. J.B., 2021 ONSC 2174, at paras. 8 – 10;  Mattina v. Mattina, 2018 ONSC 1569; and, Young v. Vanleer, 2020 ONSC 3606.

The parties’ respective positions were received.

Since the trial judge severed the divorce from the corollary relief, the Appellant argues that no federal legislation or regulations were involved in the Order granted and under appeal.

The Respondent in Appeal takes the position that the final order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). The proceedings were brought in the context of divorce proceedings, and while divorce was severed from the corollary relief, the corollary relief dealt with by the judge included all of the other issues raised in the divorce proceedings: mobility, parenting and support. Since the parents were married, these orders were all made under the Divorce Act.

A review of the decision of the trial judge supports the position of the Respondent in Appeal.

In resolving the parties dispute in relation to “Decision-Making, Parenting Time and Mobility”, MacPherson J. expressly references s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp) when considering the best interests of the child at paras. 182 and 183 of his decision. Similarly, he relied on the definition of a “child of the marriage” in s. 2 of the Divorce Act at para. 229 of his decision.

With regard to the issue of the Appellant’s intention to move the children to Switzerland, MacPherson J.’s decision, at paras. 243-244, relies on s. 16.9 of the Divorce Act. MacPherson J. declined to authorize a relocation of the children, and this is one of the Appellant’s grounds of appeal.

Financial issues such as spousal support and child support were also dealt with pursuant to the applicable sections of the Divorce Act: see paras. 260 and 272-276.

While MacPherson J. does make reference to the Family Law Act and the Children’s Law Reform Act as interpretive aids, it is clear from his decision that his orders stemmed from the provisions of the Divorce Act.

Moreover, as the Respondent in Appeal notes, once divorce proceedings are commenced, the provisions of the Divorce Act govern. Any claims relating to decision making, parenting time, mobility and support are dealt with under the Divorce Act and can be addressed even if the divorce is severed from the corollary relief and dealt with at a later date. See Bridgeman v. Balfour, 2012 ONSC 6583, at paras. 9-10:

The Parliament of Canada has been granted the power to deal with divorce pursuant to section 91(26) of the Constitution Act, 1867. This power allows Parliament to legislate respecting the issues of custody and access when these matters are raised in the context of divorce.  The final order of Lafrenière, J. dated February 16, 2006 as it related to the custody and access issues was not made pursuant to the CLRA, but rather pursuant to section 16 of the Divorce Act, in the context of a divorce proceeding in which the Applicant also requested corollary relief.  This is apparent from paragraph 9 of the order, which refers to the divorce being dealt with at a later date on an uncontested basis.

Although the February 16, 2009 order of Lafrenière, J. was made prior to the divorce being granted, this does not alter the fact that the order was made pursuant to the Divorce Act.  Section 16 of the Divorce Act provides that a court may make an order respecting custody of or access to a child on application by either or both “spouses.”  It is significant that this provision does not refer to “former spouses,” as in section 17 dealing with variation proceedings, or in section 4 dealing with jurisdiction in separate corollary relief proceedings.  The use of the term “spouses” in section 16 reflects an intention that custody and access orders can be made pursuant to the Divorce Act in the context of a divorce proceeding prior to the divorce being made, provided that a divorce order is in fact subsequently granted.

See also: Mattina v. Mattina, 2018 ONSC 1569, at paras. 37-38:

When a divorce is claimed, as in this case, the federal statute prevails. The Divorce Act governs and claims for custody and access under the Children’s Law Reform Act are stayed as set out in s. 27 of the Children’s Law Reform Act:

27 Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court.

In Bridgeman v Balfour 2012 ONSC 6583 at paras. 8-11, the court correctly concluded that when parties seek claims under the Children’s Law Reform Act and the Divorce Act, the custody and access claims are governed by the federal act. Claims for custody and access are stayed pursuant to s. 27.

In this case, it is clear that the order was made under the Divorce Act and as a result the appeal must be heard by the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act: Mattina, at paras. 37-38; C.C. v. J.B., 2021 ONSC 2174, at paras. 8-10; Young v. Vanleer, 2020 ONSC 3606, at para. 4. See also: Janzen v. Cook, 2024 ONCA 654.”

Buhlmann v. Buhlmann-Miyake, 2024 ONSC 5265 (CanLII) at 4-17

“A constructive trust operates with the same force as an express trust. The difference is that one arises from circumstance, whereas the other is created by deed or another formal instrument. Ultimately, the facts must establish a compelling equitable justification for deeming someone’s property the property of another, in the absence of express settlement of a trust. In Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 33, the Supreme Court cautioned:

[A] proper equitable basis must exist before the courts will impress certain property with a remedial constructive trust. The cause of action in unjust enrichment may provide one such basis, so long as the plaintiff can also establish that a monetary award is insufficient and that there is a link between his or her contributions and the disputed property. … Absent this, a plaintiff seeking the imposition of a remedial constructive trust must point to some other basis on which this remedy can be imposed, like breach of fiduciary duty.”

Kimberley Jackson et al. v. Steven Jackson, et al., 2025 ONSC 4703 (CanLII) at 31

“In Anderson v. Anderson, 2023 SCC 13, the parties signed a simple Separation Agreement, which essentially provided that each party would keep the property held in their name and gave up all rights to the other’s property, except for the family home and household goods.  The agreement had been prepared by the wife, and signed at a meeting with two friends as witnesses.  There was no financial disclosure between the parties, and neither had the benefit of independent legal advice before signing it.  Nearly 17 months after the wife petitioned for divorce, the husband counter-petitioned and sought corollary relief, arguing that the agreement was signed without legal advice and under duress.

Although this case was dealt with under Saskatchewan’s legislation, and although one of the issues before the Court was whether the framework in Miglin v. Miglin, 2003 SCC 24 applied (it did not strictly apply), the Supreme Court articulated the following principles, or policy objectives behind paying deference to domestic contracts, at ¶ 33:

(a)   The proper interpretive framework for assessing a domestic contract is statute-specific;

(b)   Useful principles still emerge from Miglin and subsequent jurisprudence;

(c)   Domestic contract should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement;

(d)   Deference flows from the recognition that self-sufficiency, autonomy and finality are important objectives in the family law context;

(e)   The parties are better placed than courts to understand what is fair within the context of their relationship; and

(f)   The private resolution of family affairs outside the adversarial process avoid the costs and tumult of protracted litigation.

The Supreme Court went on to find at ¶ 34 that balanced against those principles, courts should recognize that negotiations take place in a “singularly challenging environment, often at a time of acute emotional stress, in which one or both of the parties may be particularly vulnerable”.  Judges should balance contractual autonomy and certainty, with concerns of fairness, sensitive to the vulnerabilities that can arise in the family law context, but without presuming that spouses lack agency because of the stressful context in which negotiations occur.

At ¶ 35-37, and 42 the Supreme Court wrote that concerns about vulnerabilities may be countered by the presence of procedural safeguards, including full and frank disclosure and professional assistance.  The rigor of a court’s review of a domestic contract though, depends on the statute.  Under Ontario’s legislation, there are minimum requirements that a domestic contract must be in writing, signed by the parties and witnessed:  see section 55(1) of the Family Law Act.  Beyond that, in general a court will look at the circumstances surrounding the contract’s execution and the substance of the agreement, where authorized by the legislation, and by reference to the governing legislative regime.  The purposes and criteria of the governing statute provide an objective yardstick against which to assess the parties’ subjective understanding of what is fair, and they limit the risk that parties will depart significantly from public policy goals expressed by the legislature.”

G.P.R. v. A.K., 2025 ONSC 5398 (CanLII) at 334-337

“In R.L. v. M.F., 2023 ONSC 2885, I recently set out the applicable authorities regarding the imputation of income to a spouse at paras. 337 – 345 as follows:

337  The jurisdiction which allows a court to impute income to a spouse on the basis of intentional underemployment, as the Father claims, is found in s. 19(1)(a) of the CSG, which reads as follows:

Imputing income

19(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a)   the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

…

338  The leading case regarding the imputation of income to a support payor remains the decision of the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711. At paragraph 32 of that decision, the Court described the imputation of income as:

 … [O]ne method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

339  In Szitas v. Szitas, 2012 ONSC 1548, at para. 56, Chappel J. explained the meaning of intentional underemployment, citing Drygala v. Pauli, as follows:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

340  In reviewing the caselaw at para. 57, Chappel J. cites the following seven principles that apply to the imputation of income to a support payor:

1. 1. 1. 1. 1. 1. 1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.
                  2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.
                  3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.
                  4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations.
                  5. When a parent experiences a change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.
                  6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.
                  7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[Citations omitted.]

341  While Chappel J.’s seven principles speak to intentional unemployment by support payors, they nonetheless remain relevant to a claim that a spousal support recipient is intentionally underemployed. While payors are required to maximize their income to support their dependants to the extent possible, as set out in CSG s. 19(1)(a), a person seeking to receive support from that payor should have a concurrent obligation (whether to support themselves or their children). While that factor is always relevant, it is even more material when the claim has a non-compensatory or mixed basis for support.

342  Further, while I have broad discretion to impute income to a payor, that discretion is not absolute. As Gillese J.A. wrote for the Court at para. 44 of Drygala v. Pauli:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence.

343  At para. 23, the Court set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

[1]   Is the party intentionally under-employed or unemployed?

[2]   If so, is the intentional under-employment or unemployment required by the needs of any child or by the reasonable educational or health needs of the parent or spouse?

[3]   If not, what income is appropriately imputed?

344  The Court was clear in Drygala v. Pauli that the test for imputing income is the same for both child and spousal support.

345  In Lavie v. Lavie, 2018 ONCA 10, the Court appears to have gone a step further in refining the test for imputing income to a spouse. There, Rouleau J.A., speaking for the Court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment, (and by extension, unemployment) are not relevant. He wrote at para. 26:

There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.”

Gilmore v. Gilmore, 2023 ONSC 5333 (CanLII) at 49

“The net family property approach taken by the Family Law Act is not a perfect system.  It is, however, our system legislated to be applied under these circumstances.  It reflects the values of our culture in a marriage relationship which is one of equal sharing.  That equal sharing is only disturbed if that result is “unconscionable”.  Only then is the court to deviate from an equal sharing of net family property.  It has been interpreted in case law as requiring something more than simply an unfair result.  It must be a result that shocks the conscience of the court.

It is also a reflection of our cultural values that marriage is much more than a business arrangement.  It is a commitment to another person to work together for mutual benefit and recognizes that at times that will include personal sacrifice by putting the other person’s interests ahead of your own.  That sacrifice, in many cases, is much better than “unfair”.  It is priceless.  The Supreme Court of Canada decision of Kerr v. Baranow, 2011 SCC 10 makes it clear that there is a distinction in which property matters are to be dealt with for married and unmarried parties.  Justice Cromwell states as follows at paragraph 1:

In a series of cases spanning 30 years, the Court has wrestled with the financial and property rights of parties on the breakdown of a marriage or domestic relationship.  Now, for married spouses, comprehensive matrimonial property statutes enacted in the late 1970s and 1980s provide the applicable legal framework.  But for unmarried persons in domestic relationships in most common law provinces, judge-made law was and remains the only option.  The main legal mechanisms available to parties and courts have been the resulting trust and the action in unjust enrichment.

Section 5(6) the Family Law Act, R.S.O. 1990, Chapter F.3 reads as follows:

Variation of share

(6)        The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a)        a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b)        the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c)        the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d)      a spouse’s intentional or reckless depletion of his or her net family property;

(e)      the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f)        the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g)        a written agreement between the spouses that is not a domestic contract; or

(h)       any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5(6).

It is clear then from this legislation than an unequal division of net family property is allowed if such a division would be unconscionable having regard to the eight criteria set out and, in our case, particularly, subsection (h).  The wording, “any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property”, is very broad.  Every family situation must be analyzed, when dealing with the net family property scheme, within that context.  It does not require the strict analysis as set out in cases of unmarried parties in rulings on unjust enrichment, constructive trust or proprietary estoppel.  Those considerations may have certain similarities, but the Family Law Act paints with a somewhat broader brush stroke than those equitable reliefs.”

            Calver v. Calver, 2019 ONSC 5418 (CanLII) at 63-66

“The father in this case submitted that the psychotherapist’s letter should be approached with caution as it was not in affidavit form, its’ contents hearsay and it was devoid of helpful details such as the date when the mother began consulting him and her complaints (such as an assault, as opposed to marital unhappiness, depression). I agree with the father. In Lucreziano v Lucreziano, 2021 ONSC 4106, Nakonechny J. reflected on the caution that the court must adopt when dealing with untested doctor letters:

[49]           Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report. [Citations omitted].

            Aslam v. Janakovic, 2024 ONSC 5135 (CanLII) at 27

“The foregoing review of some of the noteworthy cases dealing with the issue of need arising post separation since Bracklow reveals that the courts have been struggling with the issue, attempting to balance considerations respecting the expectations that arise within marriage with the concern that a spouse should not become an insurer for life for their former spouse’s future misfortune that is unconnected to the marriage or its breakdown.  Based on the fundamental principles which the Supreme Court of Canada set out in Moge and Bracklow, and a review of the factors and considerations which have figured prominently in the relevant case law since those decisions were released, I conclude that the following general principles and guidelines for dealing with these cases have emerged:

a.    The starting point for analyzing non-compensatory support claims based on need arising post separation is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. Where there is no evidence to rebut this presumption, it may be reasonable to expect that the parties will support each other for a reasonable period of time in the event of need that does not exist at the time of separation but that arises at a later date.

b.    The existence of mutuality and interdependence prior to separation is not, however, a determinative factor favouring a spousal support obligation in the event of need arising post separation.  As the Supreme Court of Canada stated in Moge and Bracklow, all of the objectives underlying a spousal support order must be considered, including the objective of promoting self sufficiency within a reasonable period of time.  The question that must be determined is whether, taking into account all of the circumstances of the particular case, it is reasonable on an objective analysis to expect the parties to continue to be “safety nets” for each other in the event of post separation need, and if so, for how long.

c.    The passage of time may be an important consideration, particularly where the parties both take steps post separation to unravel their interdependencies and to effect a clean break from each other.   In these circumstances, the mutual obligation of support arising from the marriage itself may wane with the passage of time, and the objective of promoting self sufficiency within a reasonable time frame may come more to the forefront of the analysis.  This would include an expectation that former spouses implement plans for their own care in the event of possible disability in the future.

d.    On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence.  In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.

e.    Where the marriage was short lived, the objective of promoting self sufficiency may be given greater weight when considering the expectations of the parties.

f.      Situations where a spouse has been awarded time limited compensatory support, and then suffers an unexpected disability which creates need on their part may need to be approached with a somewhat unique lens.  In such cases, the passage of time from the date of separation may not be as compelling a consideration as in cases where no entitlement to support exists at the time of separation.  Time limited compensatory awards are intended in part to provide the recipient with an opportunity to regroup and recover from the economic consequences of the marriage.  If an intervening disability impedes their ability to do so, the objectives of the award are undermined, and the claimant spouse may remain disadvantaged as a result of the marriage.  In these circumstances, the objectives set out in section 15.2(6)(a) and (b) of the Divorce Act may weigh more heavily than the objective of promoting self sufficiency.”

            Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII) at 54

“Civil contempt is a quasi-criminal proceeding. To find a party in contempt of court, the leading cases advise that three elements must be found:

(1)   The order that was breached must state clearly and unequivocally what should and should not have been done;

(2)   The party who disobeys the order must do so deliberately and willfully;

(3)   The breach of the order must be proven beyond a reasonable doubt; Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35.

An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language, or if external circumstances have obscured its meaning: Ruffolo v. David, 2019 ONCA 385 (CanLII), [2019] O.J. No. 2427 (Ont. C.A.).

The contempt remedy is one of last resort. It should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Contempt findings should only be made sparingly where conferences to try to resolve access problems or motions for enforcement have failed. The remedy is not available where clear routes were available to the moving party to seek to vary or enforce terms of the order: Hefkey v. Hefkey, 2013 ONCA 44 (CanLII), [2013] O.J. No. 1697 (Ont. C.A.).

Within the context of a family law dispute, the court should also take into account and exercise its discretion based on the best interests of the child. Any ambiguity in the text of the order should be resolved in favour of the person accused of contempt. A failure to comply with an order of the court will not be contempt if there are genuine, unresolved issued between the parties with respect to the manner in which it is to be carried into operation. Ruffolo v. David, 2019 ONCA 385 (CanLII), [2019] O.J. No. 2427 (Ont. C.A.).

After the three criteria from Carey v. Laiken are established beyond a reasonable doubt, the judge must then consider whether she should exercise her discretion to decline to make a finding of contempt. A judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case. It is especially important for course to consider the discretion to impose a contempt finding in high-conflict matrimonial cases: Chong v. Donnelly, [2019] O.J. No. 5048, 2019 ONCA 799 (Ont. C.A.)”.

Townsend v Marti, 2023 ONSC 5223 (CanLII) at 23-27

“It is worth reiterating at this juncture that the role of the court under s. 23 [of the Children’s Law Reform Act] is to determine whether the party invoking the section has established, on a balance of probabilities, that a child will suffer serious harm if an Ontario court does not assume jurisdiction. For the law of the UAE 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.”

            N. v. F., 2021 ONCA 614 (CanLII) at 79