Month: December 2025

“There is no established test under r. 2(5) of the FLR, or by analogy under r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which must be applied in considering requests for leave required by court orders made pursuant to these provisions.

The Respondent correctly identifies that he has never been declared a vexatious litigant, pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). As such, the test found in s. 140(c), of the CJA, which provides that “leave shall only be granted if the court is satisfied that the proceeding is sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”, is informative in nature only: see Huang v. Braga, 2020 ONCA 645, at para. 16.

Courts tasked with determining leave motions, hold a gate-keeping function. In the context of limitations placed on litigants pursuant to procedural powers under r. 2(5) of the FLR, leave motions should be viewed as screening mechanisms – alive to the important balance between the right to be heard and the prevention of misuse of the court process. Leave should be granted where it is in the overall interests of justice to do so. Determination of the interests of justice should include consideration of the context and merits of the motion, and an overall balancing of interests. More specifically, the court should consider:

1.      The offensive or targeted litigation conduct that compelled the requirement for leave and the need to discourage that conduct;

2.      A preliminary or threshold assessment of the merits of the relief sought by the moving party; and

3.      A balancing of the individual interests of the litigants and the interests of public.”

          Kim v. McIntosh, 2024 ONSC 7257 (CanLII) at 12-14

“During the father’s cross-examination, the mother sought to introduce a series of cheques and other financial records.  The father objected to this evidence as the mother failed to give the required 7-day notice under ss. 35(3) of the Evidence Act, RSO 1990, c. E.23 for this evidence to be adduced at trial.  I reserved my decision on the objection and heard evidence for this objection on a blended voir dire with the evidence at trial.  As set out below, I find that this evidence should be admissible.

Both sides acknowledge that the mother gave no notice as required under ss. 35(3) of the Evidence Act.

Despite a party’s non-compliance with the requirement under ss. 35(3) for notice to introduce business records, the court may, in the circumstances of a trial, exercise its discretion to admit this evidence: Kumsathira v. Pembridge Insurance Company, 2007 ONCA 53 at para 3.  The purpose of the notice requirement under ss. 35(3) is to avoid surprises at trial and ensure that a party knows the case they need to make in preparing for trial.  I add that the most basic obligation in family law is the duty to disclose financial information, and that a party’s failure to abide by this fundamental principle impedes the progress of family litigation, causes delay, and generally acts to the disadvantage of the other party and the administration of justice: Roberts v. Roberts, 2015 ONCA 450 at paras 11-12.  I acknowledge the importance of having relevant and probative evidence before the court so it has the best possible evidentiary record for its consideration.”

          Anthony v. Ogunbiyi, 2024 ONSC 7287 (CanLII) at 8-10

“Section 21.1 of the SLRA allows the court to validate a document that is not a properly signed will. The court can order that the improperly made document is nevertheless valid and effective as the will of a deceased person. The section says:

Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5.

Transition

(3) Subsection (1) applies if the deceased died on or after [January 1, 2022] the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.

This section allows the court to recognize as a valid will a document that, “sets out the testamentary intentions of a deceased.”

The only limitations on the face of the statute are that the deceased must have died after January 1, 2022 and that the document sought to be recognized as a will cannot be in electronic form.  Counsel did not discuss the effect of s. 21.1(2) or s. 31 of the Electronic Commerce Act, 2000, SO 2000, c 17. The latter section provides that the ECA does not apply to wills. Section 5 of the ECA says that:

A legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference.

Without the recognition provided by s. 5 of the ECA, it seems that notes or a draft will stored on counsel’s computer system or a later printout of such an electronic file may not be a “document or writing” for the purpose of s. 21.1. While that issue is not directly before me today, I do need to consider whether I should be granting access to the lawyer’s computer files if the contents of those files are not capable of being recognized as wills under s. 21.1.

No one knows with certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply.

In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that the deceased person prepared as a will but failed to have witnessed. The deceased person knew that witnesses were required, but he thought they could sign on later. The document had been carefully kept as the deceased’s will.

In Vojska v Ostrowski, 2023 ONSC 3894 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that had been prepared as a formal will by a lawyer. It was signed by the deceased person in a formal signing ceremony with the lawyer and another witness. By mistake, the lawyer did not sign the will however.

In Groskopf v. Rogers et al., 2023 ONSC 5312 (CanLII), Hilliard J. recognized as a valid will under s. 21.1 of the SLRA, a “fill-in-the-blanks” form of will document that the deceased person signed but did not date or have witnessed. She kept it in a lock box with other notes about the distribution of her estate.

Recently, in Kertesz v. Kertesz et al., 2023 ONSC 7055 (CanLII) I recognized as a valid will under s. 21.1 of the SLRA, a note prepared by a deceased person who knew his death was imminent. The note was unsigned. But it demonstrated on its face that the deceased person intended it to be a will; that he understood the scope of his assets; he understood the pool of possible beneficiaries; and that he understood how each of the foregoing interrelated.

In each of these cases the court also found that the document being recognized was a “fixed and final” expression of the deceased person’s testamentary intentions as at the time of its creation. In each, there was an imperfectly prepared will. To date, I am unaware of any Ontario decision that goes beyond fixing or ignoring execution errors on documents that, if properly signed, would have been wills.”

          White v. White, 2023 ONSC 7286 (CanLII) at 30-38

“Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585. The parties concede that LDGL by its correspondence of October 2004 did just that.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]

In Chitty on Contracts, 28th ed. (London: Sweet and Maxwell, 1999), Vol. 1, at p. 25-012, the authors write:

Acceptance of a repudiation must be clear and unequivocal and mere inactivity or acquiescence will generally not be regarded as acceptance for this purpose. But there may be circumstances in which a continuing failure to perform will be sufficiently unequivocal to constitute acceptance of a repudiation. It all depends on the “particular contractual relationship and the particular circumstances of the case.”

This commentary was accepted by this court in Brown v. Belleville, at para. 48, and by the Nova Scotia Court of Appeal in White v. E.B.F. Manufacturing Ltd., 2005 NSCA 167, 239 N.S.R. (2d) 270, at para. 91.”

Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 (CanLII) at 29-32

“Although Jessica abandoned the argument that the higher income in the unanswered Request to Admit should prevail, it is instructive to site the law on point. In Children’s Aid Society of Algoma v F.M., 2021 ONCJ 184 at paragraphs 26-27 the court held:

The Request to Admit is only a litigation device that opens the evidentiary gate to allow entry to the fact that is either admitted or not denied. This is only entry to the pool of potentially admissible evidence however, the fact still has to pass other evidentiary tests to have evidentiary value. It must be relevant. It must be factual. It must be reliable. In this case, there is also the determination of against whom the fact is to be waived. However, those are matters for the trial judge to deal within his or her ultimate decision. From the standpoint of the ruling on admissibility, it is a very easy matter. Any fact on which any denial or refusal to admit is made, regardless of who made it, does not meet the requirement that leads to a deemed admission of the truth of the fact for any evidentiary purpose. The fact will have to be proven to be true by the party seeking its admission into evidence in some other manner, not by way of Request to Admit. [Emphasis added in the original]

Likewise, in Jama v. Basdeo, 2020 ONSC 2922,  where the respondent also failed to respond to the Request to Admit,  the  court concluded:  

 Whenever Ms. Jamas’ own evidence (which is not restricted to her testimony, but includes any evidence adduced by her counsel during trial) contradicts facts set out in Request to Admit, I have not deemed those facts to be admitted by Mr. Basdeo. In those instances, I have made factual determinations based on the totality of the relevant evidence.

The underlying principle in both these cases is well established beyond the context of the operation of this subrule; any finding of fact must be made on the totality of the evidence before the court at trial, including undefended trials.”

              Laundry v. Greystock-Wood, 2023 ONSC 7047 (CanLII) at 36-37

“In Minish v. Timmons, 2021 ONSC 7622, Justice Lacelle refers to the direction provided by the Court of Appeal in Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 as it relates to the application of the Child Support Guidelines for children at the age of majority as follows:

46 I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:

• • • • • The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
        • It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
        • Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
        • Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
        • While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute (para. 159);
        • As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
        • Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
        • The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
        • In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions (para. 157).

47 Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn–Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”

Moore v. Lemmon, 2023 ONSC 6735 (CanLII) at 41

“The rules of court set out the procedural jurisdiction for the granting of orders on a case conference.  Subrule 17(8) contains the following paragraphs relevant to the issue raised by the applicant:

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i)  an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii)  an order preserving assets generally or particularly,

(iii)  an order prohibiting the concealment or destruction of documents or property,

(iv)  an order requiring an accounting of funds under the control of one of the parties,

(v)  an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi)  an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

(c)  make an unopposed order or an order on consent;

Beginning with para. (b.1), the requirement of notice appears to have been satisfied by the service of the Case Conference Brief, paragraph 13 of which listed the interim remedies.  The court has commented in the past that the rule does not state what form the notice must take: Hoque v. Mahmud, 2007 CanLII 39366 (ON SC), at para. 15.

However, at para. 14, the court stated it was less clear whether the rule conferred authority to grant relief on substantive issues.  The ambiguity can be resolved readily by assuming the drafters followed the usual rules of legislative construction.  On first impression, it would appear that para. (b.1) is limited by subject matter to preservation orders and maintenance of financial status quo.  However, the specific list of preservation mechanisms follows a general phrase “any temporary order” (emph. added) and is connected by the word “including.”  This grammatical structure takes the meaning outside the ejusdem generis rule (limited class interpretation) and protects the generality of the antecedent.  See: Sullivan, The Construction of Statutes, Seventh Ed. (Toronto: LexisNexis, 2022), at p. 242, citing National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 SCR 1029, at 1040-41.  It therefore follows that the case conference judge is authorized to grant any temporary orders, if satisfied that the other party has been given due notice.

While is does not appear necessary to interpret para. (c), specifically “unopposed order,” this concept is analogous to the unopposed order on a motion in the Civil division of the court, specifically subrule 37.12.1(1) of the Rules of Civil Procedure, O. Reg. 1990, Re. 194 (RCP), providing for unopposed motions.  Under that provision, the moving party must file a notice from the respondent stating that the party does not oppose.  I do not infer from this requirement of an affirmation of a negative to change the nature of an unopposed motion as one in which there is no position or interest adverse to the proponent.  The failure to respond to a motion or to appear at the hearing places the respondent in substantive jeopardy, provided notice has been given (RCP, r. 37.07).

I conclude from the foregoing that subrule 17(8) of the FLR confers jurisdiction on a case conference judge to award interim relief of the kind sought by the mother, provided notice is clearly given and stated in the Case Conference Brief and the relief is an appropriate remedy in the circumstances.  This interpretation of the rule places the burden on the erstwhile non-participatory spouse/parent to bring a motion to set the order aside, instead of requiring the presumed recipient of support to bring a separation motion.  This would have the effect of reducing steps in most cases and promoting general principles of the FLR in streamlining cases, getting payor spouses used to the idea of paying support, and of rounding up recalcitrant parties into the precinct of the court.”

            Laxmikantha v. Adapa, 2023 ONSC 7151 (CanLII) at 5-9

“Given the frequency with which improper motion materials are filed in family proceedings, it is worth reminding counsel in this case and the profession more generally of what is appropriate in support of a family motion.

a.   A Notice of Motion should succinctly set out the relief sought and may cite the statutory basis for the relief.  However, it is not appropriate to recopy the text of rules or statutory provisions or cite and re-copy portions of caselaw within a Notice of Motion.

b.   Evidence on a motion may be given by way of affidavit or other admissible evidence in writing, a transcript of questions and answers from questioning under rule 20, or with the court’s permission, oral evidence: R. 14(17) Family Law Rules.

c.    An affidavit should contain only relevant facts that are material to the issues raised in the motion.  The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy.  It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties.  The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought.  It creates an irrelevant distraction.

d.    An affidavit should contain detailed facts in support of an allegation or position taken on the motion.  For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence.

e.    An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts.  These matters should be in a factum.

f.     An affidavit must contain admissible evidence.  In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies.  However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations.  Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits than are permitted under the Court’s Practice Direction.

g.    In family cases, opinions of doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists are often relevant to the outcome of a case.  Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit.  It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.

Instead, the purported expert who is expressing an opinion should prepare their own affidavits.  If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met.  It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination.  If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.

However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: Evidence Act, RSO 1990, c. E.23, s. 35.  Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker. See Catholic Children’s Aid Society of Toronto v. L. (J.), 2003 CanLII 57514 (ON CJ), 2003 39 RFL (5^th) 54 (ON CJ), at paras. 10 – 11; Dworakowski v. Dworakowski, 2022 ONCSC 7209 at para. 52.

h.    Only necessary, relevant and material exhibits should be attached to an affidavit.  The exhibit must be legible.  The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate.

i.     Counsel have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court.  A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered.  Counsel may also consider, within the text of the affidavit, explaining the context in which the message was sent or received.  If not readily apparent, the text message should make clear who is saying what.

j.      It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently.  Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit.

k.    Font, spacing and page limits prescribed in the Practice Direction must be followed.

l.      It is improper to attach as an exhibit to an affidavit an affidavit of a different person to overcome the restriction in the Practice Direction that only one primary affidavit may be filed for a motion or cross-motion.

m.    It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit.  If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, Noshina Ashmeade” or “she”).  Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it.

n.    An affidavit should be reviewed by a party’s lawyer for proper spelling and grammar prior to the party swearing an affidavit.  While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used.

o.    It is improper to mention the substantive contents of an Offer to Settle when the substance of the Offer is the subject of the motion.  Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case.

p.     Factums should be laser-focussed.  In numbered paragraphs and in an organized manner with subheadings, they should:

i.   Identify the relief that is sought as set out in the Notice of Motion;

ii.   Provide a brief factual background of the case that is relevant to the motion;

iii.     Identify the issues to be decided on the motion;

iv.    Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw;

v.    Pinpoint the paragraphs within the affidavit evidence that establish the facts relevant to the legal test to be applied. Parties should not simply cut and paste an affidavit into a factum.  The facts should be synthesized and applied to the legal test; and

vi.    Conclude by explaining how the legal test has been met and what orders should be granted.”

Dupont-Goode v. Ashmeade, 2024 ONSC 7092 (CanLII) at 10

“AN seeks a restraining order against IF and BOF, based on his fear that they will continue to engage in spiteful, accusatory and abusive behaviour against him. The authority on which AN relies on for the court to make a restraining order is set out in s. 46(1) and (2) of the Family Law Act, R.S.O. 1990, c. F.3., which provides as follows:

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

I find that s.46 of the Family Law Act only permits the court to make a restraining order against a spouse, or a former spouse of someone who has cohabited with AN for a period of time. Since AN is seeking a restraining order against IF and BOF, the maternal grandparents, the authority for the restraining order he seeks is s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which allows AN to ask for a restraining order against any person. Section 35 provides as follows:

35(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

For me to grant AN the restraining order he seeks against both IF and BOF, I must be satisfied that AN has reasonable grounds to fear for his safety or the safety of E.: s. 35(1).

In Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), the Court held that the onus of proof is on the person asking for a restraining order and that the standard of proof is on a balance of probabilities: at para. 36.

A person’s fear sufficient to justify a restraining order may be entirely subjective, so long as it is reasonable and legitimate.

In R.K.K. v. J.L.M., 2007 ONCJ 223, Dunn, J. held at paras. 33-34:

When a court grants a restraining order in an applicant’s favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.

In McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order:

What I take from these cases is:

• • • • • •  The fear must be reasonable;
          •  The fear may be entirely subjective so long as it is legitimate; and
          •  The fear may be equally for psychological safety, as well as for physical safety.

The above analysis from McCall, supra, was adopted by Kiteley J. in Lawrence v. Bassett, 2015 ONSC 3707 (Ont. S.C.J.). Kiteley J. underscored the point that the fear may be equally for psychological safety as well as physical safety.

In Bedzow-Weisleder v. Weisleder, 2018 ONSC 1969, one of the issues at trial was whether a permanent restraining order ought to be issued. The evidence in support of the restraining order centered around communications from Ms. Bedzow consisting of e-mails, texts and Instagram posts. These were found to be “harassing, abusive, vulgar, and hateful”: at para. 13. Akbarali J. also found that a legitimate fear for one’s psychological safety and not just physical safety is sufficient to conclude that the grounds for a permanent restraining order were made out since Ms. Bedzow’s communications engendered a legitimate fear in Dr. Weisleder for his psychological safety, were emotionally abusive and that Dr. Weisleder should not be subject to them: at paras. 34-35.”

            B.F. v. A.N., 2022 ONSC 7125 (CanLII) at 171-179

“A section 30 assessment has already been ordered, so the court need not reconsider the issue. But the court must consider whether Ms. Lieberman should be appointed. Ms. Lieberman is highly qualified, and has been appointed as a s. 30 assessor before. She has consented to the appointment, and would complete the assessment in three months. The mother has agreed to pay for the assessment, subject to reallocation at trial.

The father objects to the appointment of Ms. Lieberman on the grounds that she is Jewish, like the mother. His objection is that his daughter is Black. And that only an assessor who is Black would be appropriate. He later stated that the assessor must specifically be “Black Caribbean,” like him, or “Black Chinese Caribbean,” like him.

The court does not appoint, or refuse to appoint, professionals based solely on their race. And it would be improper for a court to do so. Section 30 assessors are experts, appointed by the court, because of their technical and professional skills, to report on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child. Assessors may use several methods to learn about the parents and the child, including interviews with the parents, observations of parent-child contact, interviews with third parties who have had significant involvement with the child, a review of records or reports about the child or the parents, and psychological tests.

Given Canada’s diverse and multicultural society, assessors are called on to provide parenting assessments for parents and children with diverse cultural, linguistic, religious, and spiritual upbringing and heritage. There is, and should never be, a requirement that an assessor share the same upbringing or heritage. But being alert to what a child’s upbringing and heritage mean, in the context of parenting, is part of the technical and professional skills that will inform the recommendations. Both the Divorce Act and the CLRA require judges to determine parenting issues based on the best interests of the child, which includes a consideration of the child’s cultural, linguistic, religious, and spiritual upbringing and heritage. If the father participates in the parenting assessment, the father will be able to bring forward the issues important to him based on what he told the court is his identity as a Black Caribbean man.”

            Trotta v. Chung, 2023 ONSC 7080 (CanLII) at 5-8