Month: August 2025

“The governing test for determining decision-making responsibility, primary residence and parenting time is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s.24, as amended SO 2020, c.25, Sched 2, s.6 (“CLRA”).

Section 16(1) of the Divorce Act provides the court shall take into consideration only the best interests of a child when making a parenting order or a contact order. In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.), s.16(2) (“Divorce Act”); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) (“CLRA”).

Contact may be restricted if it conflicts with the children’s best interests. It is important to remember that parenting time is not the right of the parent but that of the child and when considering parenting time, it should be with a child-focused approach.

As set out by Pazaratz, J. in K.M. v. J.R., 2022 ONSC 111, at para 50, the court is required to look at and consider each child’s specific situation as follows:

a.    The list of best interests factors in the Actis not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ).

b.    None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching.

c.    No single criterion is determinative.

d.    The weight to be given to each factor depends on the circumstances of the particular child.

e.    The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480.  W.H.C. v. W.C.M.C., 2021 ONCJ 308 (OCJ); Harry v. Moore, 2021 ONCJ 341 (OCJ).

f.     An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

g.    The focus is on the child’s perspective.  Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child.  Young v. Young, 1993 CanLII 34 (SCC); E.M.B. v. M.F.B., 2021 ONSC 4264 (SCJ).

In addition, the court is required to consider whether there has been any family violence, and if so, the impact of the violence on the children, and on the ability and willingness of any parties to care for and meet the needs of the children, when assessing the best interests of the children. V.M.W. v. J. Mc.-M., 2021 ONCJ 441.

Section 16(4) sets out a further set of factors to consider when considering the impact of family violence. The definition of “family violence” in the Divorce Act is not limited to physical acts but also includes psychological and financial abuse. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615 (CanLII). This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199; V.R. v. S.R., 2024 ONCJ 262.

Courts allocating parenting time are required to consider that “a child should have as much time with each spouse as is consistent with the best interests of the child”: Knapp v Knapp, 2021 ONCA 305. It is important to acknowledge the starting point after separation is not equal parenting time, but rather what is in the best interests of the child.”

Riley v. Riley, 2024 ONSC 4583 (CanLII) at 30-37

“In some of choice of school cases, decisions that were made by parents prior to separation are a factor that has been considered: Askalan v. Taleb, 2012 ONSC 4746, at para. 32. This is so because such decisions may be considered evidence of what the parents thought was in the child’s best interest at the time: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 at 431.”

            Melbourne v. Melbourne, 2023 ONSC 4678 (CanLII) at 13

“In his Reasons, Faieta, J. set out that the test for an advance equalization payment, has been identified as the Zagdanski factors, arising from the decision of Zagdanski v. Zagdanksi, (2001), 2001 CanLII 27981 (ON SC), 55 O.R. (3d) 6 (Ont. S.C.J.) where a partial equalization payment was advanced. The Zagdanski factors are:

a)  There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

b)  There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of  an equalization payment;

c)  There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action;

d)  There may be other circumstances such that fairness requires some relief for the applicant: frequently, but not necessarily, there will have been den in the action, deliberate or otherwise, prejudicing the applicant by, for example, running of the cost.”

Eskandari v. Rowshani-Zafaranloo, 2021 ONSC 6083 (CanLII) at 30

“A hearing under the Hague Convention is not a custody hearing. It is aimed at “enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Balev, at para. 24; Hague Convention, art. 1. It is meant to restore the status quo that existed before the wrongful removal or retention. Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access: Balev, at para. 24.

Article 13(b) of the Convention sets out a narrow exception to the mandatory return of a wrongfully abducted child. The parent opposing return must establish “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” This grave risk analysis is not meant to become an in-depth analysis of the parties’ history. Nor is it a re-do of extensive court proceedings in the foreign state.”

          Leigh v. Rubio, 2022 ONCA 582 (CanLII) at 24-25

“An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration: s. 17(1) of the Arbitration Act. A party may apply under s. 17(8) of the Arbitration Act for review by the court to decide the matter.

A hearing to decide the matter of the arbitral tribunal’s jurisdiction is a hearing de novo: Hornepayne First Nation v. Ontario First Nations (2008) Ltd., 2021 ONSC 5534, at paras. 2-6, citing Russian Federation v. Luxtona, 2021 ONSC 4604 (Div. Ct.), at para. 22.

The standard to be applied on a question of the arbitrator’s jurisdiction is correctness: Smyth v. Perth & Smith Falls District Hospital, 2008 ONCA 794, at para. 17.”

The Joseph Lebovic Charitable Foundation et al. v. Jewish Foundation of Greater Toronto, 2024 ONSC 4400 (CanLII) at 17-19

“Section 16 of the Divorce Act governs the imposition of parenting orders and the relocation of children.  Sections 16(1) and 16(2) of the Divorce Act provide the general framework for the imposition of parenting orders:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 16(3) lists non-exhaustive factors that a court can consider when making a parenting order:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Section 16(4) of the Divorce Act discusses the impact that family violence has upon such orders:

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Section 16(5) of the Divorce Act describes the proper use of past conduct in making any determination:

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Section 16(6) of the Divorce Act describes the principle regarding maximum contact with each parent:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

With respect to relocation, section 16.9 of the Divorce Act governs the form of notices and other such procedural issues.  Sections 16.92(1) and 16.92(2) of the Divorce Act outlines the non-exhaustive factors to be considered by the court in making such a relocation decision, and factors that may not be considered:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Finally, section 16.92(3) describes the burden of proof in relocation cases:

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

Application to This Case

Burden of Proof

In this case, section 16.92(3) of the Divorce Act is applicable as the current parenting order does not mandate that the Daughter spend “substantially equal time” with both parents and the parent with whom the child “spends the vast majority of their time” is not looking to relocate.  Accordingly, neither sections 16.92(1) nor 16.92(2) of the Divorce Act apply.

Both parties therefore have the burden of proof that the relocation is or is not in the best interests of the Daughter.”

T.W. v. C.B., 2024 ONSC 4169 (CanLII) at 74-82

“Expert witnesses are firmly part of Ontario’s justice system and have been so for several decades.  Expert witnesses provide invaluable assistance for parties and the Court.  Based on their unique expertise, they can assist in uncovering and analyzing relevant facts related to matters in dispute.  They can advise parties on appropriate factual inquiries to make of the opposing party which can inform the expert’s opinion.  Those opinions can assist parties in reaching settlement.  An expert’s evidence can provide tremendous help to the trier of fact in understanding the facts and in making factual findings.

It can be fairly stated that with the proliferation of expert evidence, an industry of experts in various fields now exists.  For example, in family law, the use of chartered business valuators, is now commonplace. They are very helpful in resolving family disputes, particularly ones involving litigants with business income or corporate assets.

With this proliferation of experts, there was a common complaint that too many experts were “no more than ‘hired guns’ who tailor their reports and evidence to suit the client’s needs.”: The Hon. Coulter A. Osborne, Report of the Civil Justice Reform Project: Findings and Recommendations (November 2007).  In fact, this was a principal objective behind amendments to the Rules of Civil Procedure and the Family Law Rules, that introduced new duties on experts, and required expert witnesses to attest to those duties, namely to provide opinion evidence that is fair, objective and non-partisan: see r. 20.1(2) and (3), Family Law Rules.

The duty to provide objective and non-partisan opinions is one trait that distinguishes experts from lawyers, who advocate for one party’s interests and who are clearly partisan.  The solicitor/client relationship, which is fiercely protected, is also manifestly different than the relationship between a party and a retained expert.  As such, the ruling in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, relied upon by the Respondent, is not dispositive.

In MacDonald Estate, a junior lawyer worked at a law firm for the appellant.  He switched to a new law firm that acted for the respondent.  The Supreme Court held that the respondent’s law firm was disqualified from acting for the respondent.  It set a test to determine when a law firm is disqualified to act by reason of conflict of interest.

In McDonald Estate, the Court was concerned with three competing values that are unique to the practice of law, and not applicable or of negligible relevance to whether an expert witness should be disqualified to be a witness: the concern to maintain high standards of the legal profession and the integrity of our justice system; that a litigant should not be deprived of their choice of counsel without good cause, and; desirability of permitting reasonable mobility in the legal profession.

I accept that expert witnesses are sometimes engaged in litigation planning and can provide strategic advice to parties. In such a case, does the analysis of whether a conflict of interest exists for an expert witness elevate to that used for a lawyer?”

Lecker v. Lecker, 2024 ONSC 4413 (CanLII) at 19-25

“The appellant’s claim that the trial judge’s management of the trial was unfair and favoured the respondent does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect: R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 15-17, aff’d 2022 SCC 9. The trial judge was patient with the parties and counsel, allowing the trial to stretch well beyond the estimated schedule. We will not criticize her modest efforts to corral counsel. Those efforts were balanced and reasonable.”

            Kahsai v. Hagos, 2022 ONSC 576 (CanLII) at 4

“Assessing the credibility of family violence allegations presents significant challenges.  Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179      The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180      Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella; A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29).”

            Malone v. Cappon, 2023 ONSC 4344 (CanLII) at 122