Author: dawi

“The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:

16.92(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.

While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child.

The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.

This provision would prohibit courts from considering this question — or the parent’s response — if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.

Parliament’s explanation of s. 16.92(2) reflects the “classic double bind” that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a “lose-lose” situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent’s dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent’s representations about whether they will or will not move without the children: see, for example, Spencer v. Spencer, [2005] A.J. No. 934, 2005 ABCA 262, 371 A.R. 78, at para. 18; Hopkins v. Hopkins, [2011] A.J. No. 1413, 2011 ABCA 372, at para. 6; and Hejzlar, at paras. 24-27.”

         Bourke v. Davis, 2021 ONCA 97 (CanLII) at 43-46

“The court has an inherent jurisdiction to backdate an order, recognized by the doctrine of nunc pro tunc, Latin for “now for then”.  Whether a court exercises this jurisdiction is based on fairness and the interests of justice.  Typically, nunc pro tunc orders are used to relieve prejudice that results to the party seeking the order from delays that occur that are beyond the control of the party.  They are most often seen in the context of backdating orders so that a limitation period does not unfairly bar a claim if the party has acted prior to the expiration of the limitation period but been unable to secure an order in time due to no fault of its own.

In Hogarth v. Hogarth, 1945 CanLII 396 (ONSC), [1945] O.W.N. 448, Kelly J., at p.449 stated as follows:

There is inherent jurisdiction in the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom.

On my review of cases in which nunc pro tunc orders have been granted, the doctrine has been relied upon primarily to remedy procedural defects.  I am unaware of any cases in which the doctrine has been used to backdate an order for custody, as requested in this situation.  As noted, counsel for the applicants did not provide me with any cases on this issue.”

         Diehl et al v. Wierenga, 2021 ONSC 1170 (CanLII) at 22-24

“To conclude, federal legislation does not clothe the (Pension Benefits Division Act) administrator with the power to split pension payments as a method of dividing family property. Consequently, the administrator cannot be ordered to do so. Parliament could create such a power. It has chosen not to. Indeed, in the recent case of Francis, the federal Crown successfully argued that there is no jurisdiction to order the administrator to divide pension payments as family property under the PBDA. I agree with the analysis in that decision.

Part I of the (Family Law Act) addresses issues of family property. Section 5 creates a prima facie entitlement to an equal division of net family property. Section 9 empowers a court to order equalization payments, and to make collateral orders to secure their performance.

The interest of one spouse in another’s pension benefits has long been recognized as a matter of matrimonial or family property: see Clarke, at p. 824. In 2009, the FLA was amended (s. 2009, c. 11) to create specific rules, contained in s. 10.1, about the division of pension entitlements. Subsections 10.1(3), (4), and (5) provide:

(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. 1. 1. 1. 1. 1. 1. The nature of the assets available to each spouse at the time of the hearing.
                  2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
                  3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
                  4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
                  5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

(5) If payment of the first instalment of a spouse’s pension under a pension plan is due on or before the valuation date, an order made under section 9 or 10 may provide for the division of pension payments but not for any other division of the spouse’s interest in the plan. [Emphasis added.]

…

A broader interpretation s. 10.1(5) of the FLA is more compatible with the PBDA. Returning to the paramountcy jurisprudence, Gascon J. said in Moloney, at para. 27: “It is presumed that Parliament intends its laws to co-exist with provincial laws.” This presumption must also apply in reverse, and with at least equal force – it is presumed that the province intends its laws to co-exist with federal laws. I am unable to find that the Legislature intended to undermine or limit the operation of the PBDA.

When Ontario amended the FLA in 2009 to create s. 10.1, it would surely have known that the PBDA only provides for a lump-sum division: see Ontario Law Reform Commission, Report on Pensions as Family Property, at pp. 62, 171-172. See also, Law Commission of Ontario, Division of Pensions Upon Marriage Breakdown – Final Report (Toronto: Law Commission of Ontario, 2008). As noted in para. 18 above, the PBDA applies to pensions created by many federal statutes, no doubt affecting the pensions of countless Ontarians. I would avoid an interpretation of the FLA that frustrates the PBDA. A broader interpretation of s. 10.1(5) advances the goals of the FLA, while achieving harmony with federal pension legislation.

This is not say that it will always be appropriate to order a lump-sum division of a pension in pay. It will depend on the nature of the underlying pension legislation, the application of the criteria listed in s. 10.1(4) of the FLA, and “such other matters as the court considers appropriate” to achieve a just result in the case: see VanderWal v. VanderWal, 2015 ONSC 384, 54 R.F.L. (7th) 410, at para. 9.”

         Fawcett v. Fawcett, 2018 ONCA 150 (CanLII) at 27-29, 34-36

“The importance of hearing, and placing appropriate weight on, the views of the child is a critical development in family law.  Article 12 of the Child Convention provides:

1. 1. 1. 1. 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
            2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Hearing the child’s views and preferences and incorporating those views in judicial decision-making about matters affecting a child’s best interests dovetails with section 24(2)(b) of the CLRA.  It is important to recognize the agency of children, and where possible, to hear their voice before making custody and access decisions which have a profound effect on the life of a child.

The benefits to judicial decision-making of hearing a child’s voice were set out by Martinson J. in G. (B.J.) v. G. (D.L.), 2010 YKSC 44 as follows at paras. 21-22:

[21] Obtaining information of all sorts from children, including younger children, on a wide range of topics relevant to the dispute, can lead to better decisions for children that have a greater chance of working successfully.  They have important information to offer about such things as schedules, including time spent with each parent, that work for them, extra-curricular activities and lessons, vacations, schools, and exchanges between their two homes and how these work best.  They can also speak about what their life is like from their point of view, including the impact of the separation on them as well as the impact of the conduct of their parents.

[22] Receiving children’s input early in the process, and throughout as appropriate, can reduce conflict by focusing or refocusing matters on the children and what is important to them.  It can reduce the intensity and duration of the conflict and enhance conciliation between parents so that they can communicate more effectively for the benefit of their child.  When children are actively involved in problem solving and given recognition that their ideas are important and are being heard, they are empowered and their confidence and self-esteem grow.  They feel that they have been treated with dignity.  In addition, children’s participation in the decision-making process correlates positively with their ability to adapt to a newly reconfigured family.”

         J.J.S. v. P.P., 2020 ONSC 1038 (CanLII) at 31-33

“Marriages are like balloons. Sometimes they deflate immediately with a single puncture. But often the air escapes slowly as one or both parties withdraw physically, emotionally and financially. In these latter situations, separation is a process rather than an event, and it is difficult to assign a single date as the “date of separation”. Nevertheless, the law requires that a date be chosen for the purposes of valuation and equalization of net family property.”

         Cheng v. Sze, 2020 ONSC 937 (CanLII) at 3

“There is clear jurisdiction under the Partition Act, R.S.O. 1990, Chapter P.4 to order the sale of jointly owned property prior to trial. However, an order for directing the sale of a matrimonial home before trial should only be made where, in all the circumstances, it is appropriate to do so. Additionally, an application for partition and sale should not proceed where it would prejudice the rights of either spouse under the Family Law Act (Martin v. Martin, 1992 CanLII 7402 (ON CA); Silva v. Silva, 1990 CanLII 6718 (ON CA)).

In this case, 153 Bandelier Way is neither a jointly owned property nor is it the matrimonial home. Nevertheless, Ms. Vo seeks an order for the sale of the Bandelier property based on her 50% interest arising from the Trust Agreement entered into the parties on August 28, 2018, a copy of which is attached as Exhibit “K” to Ms. Vo’s affidavit sworn on October 13, 2020.

The “Acknowledgement of Trust” provides that the transferee of 153 Bandelier Way, Mr. Tran, is holding the property in trust for the beneficial owners, Minh Thein Tran (50%) and Kim Vo (50%). Handwritten next to the named beneficiaries are the words “AS JOINT TENANTS”, however, this addition is not initialed by the parties. The Acknowledgement nevertheless goes on to state:

1. 1. 1. 1. 1.  I hereby acknowledge and confirm that the interest in the said lands is held for and solely on behalf of the beneficiaries.
            2.  I covenant and agree not to do any act or thing, or institute any action or proceedings of any nature, without having first obtained the consent and authorization of the beneficiaries herein.
            3.  This Acknowledgement of Trust shall be binding upon and enure to the benefit of the respective heirs, executors, administrators, successors and assignees of the beneficiaries and myself.

The parties acknowledged on the document that they waived independent legal advice, understand their respective rights and obligations, understand the nature and effect of the agreement, understand that the provisions of it are equitable and are signing voluntarily. The document is signed by both parties, whose signatures are witnessed.

Although Mr. Tran has requested an order in his Notice of Cross-Motion “declaring that the real property owned by the Respondent being 153 Bandelier Way, Kanata, Ontario, belongs solely to the Respondent and removing the Trust Agreement signed by the parties at the time of purchasing the real property, being legally described as Part Block 260, Plan 4M1597, Part 4 on Plan 4R-31308”, he does not provide any evidence to the court in relation thereto, nor has he provided any legal argument to support his request for this relief. To “remove” or essentially set aside the trust agreement, which Mr. Tran acknowledged was voluntarily entered into, would require both evidence as to why it should be set aside, and some basis in law to do so. Having neither, I dismiss Mr. Tran’s request for such a declaratory order.

Sections 2 and 3(1) of the Partition Act, R.S.O. 1990, Chapter P.4 provide, under the title “Who may be compelled to make partition or sale”:

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

By virtue of the Acknowledgement of Trust dated August 28, 2018, Ms. Vo is most definitely a “person interested in” 153 Bandelier Way, and is a person who, by virtue of that interest, has the ability to bring an application to the court to have the property listed for sale.”

            Vo v. Tran, 2021 ONSC 1075 (CanLII) at 29-35

“It has always been a rule of common law that a parent’s right to custody will not be enforced against a child’s will once the child has reached the “age of discretion”: Rex v. Greenhill (1836), 4 A. & E. 624 (K.B.); Reg. v. Howes (1860), 3 E. & E. 332 (Q.B.). Historically, this meant that the child had the right to withdraw from parental control and the court would not force the child to return to a custodial parent, but would allow the child to live where he or she chose. The age at which a child has the right to withdraw from parental control is codified in s. 65 of the CLRA:

Where child is sixteen or more years old

Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.

Once a child declares an intention to withdraw from parental control, her independence may — as it was here — be recognized by the police and the schools. There is no formal court process for a child to withdraw. This was recognized by the application judge at para. 13 when she said of O.G:

She did not require a court order or a declaration permitting or enabling her to withdraw from parental control. She did not require a court order to protect her privacy at her school in Oakville because, after informing the principal in writing by letter dated April 22, 2016, the principal respected her instructions and did not provide information to her father. She did not require a court order to prevent the police from apprehending her and taking her back to her father’s home because she informed the police that she had withdrawn from her father’s control and the police respected her right to do so.

Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there is a distinction between the fact of withdrawing from parental control and an application to court for a declaration that a child has withdrawn from parental control. The former is a right that is exercised unilaterally. The latter engages the court’s jurisdiction with respect to declaratory relief.”

G.(R.) v. G.(K.), 2017 ONCA 108 (CanLII) at 43-46

“It is useful to review the purpose behind limitations statutes. In Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447 at para. 80, the Court of Appeal said:

[80]      Traditionally, limitation periods were seen as having three purposes, known as the certainty, evidentiary, and diligence rationales. The certainty rationale seeks “to promote accuracy and certainty in the adjudication of claims”; the evidentiary rationale seeks “to provide fairness to persons who might be required to defend against claims based on stale evidence”; and the diligence rationale seeks “to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.”

[81]      In Novak, McLachlin J. (as she then was) observed that the three traditional rationales for limitation periods generally reflect the interests of potential defendants, based on the idea that they should not have to respond to stale claims brought by persons who have not asserted their rights diligently. But as legislatures have modernized their limitations statutes, they have increasingly focussed on the need to treat plaintiffs fairly and to account for their interests as well. Today, therefore, a limitations statute “must attempt to balance the interests of both sides.” [Citations omitted.]

The Family Law Act has a specific provision which addresses the balancing of interests, tailored specifically to family law disputes. Subsection 2(8) of the Family Law Act states:

The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

a)    there are apparent grounds for relief;

b)    relief is unavailable because of delay that has been incurred in good faith; and

c)   no person will suffer substantial prejudice by reason of the delay.”

        Pardy v. Kelly, 2021 ONSC 1029 (CanLII) at 8-9

“I start with whether a “clinical issue” is required before an order for an assessment [under s. 30 of the CLRA] is made. In my view, it is not for four reasons.

First, there is no such criterion in the statute. Nor is there any other part of the Children’s Law Reform Act on which such a prerequisite could be based.

Second, while the Divisional Court in Linton was clear that a clinical issue was a requirement, one must look closely at the facts of the case. That decision is notable for the following features. The action was on the list for trial. An order for an assessment would result in the delay of an imminent trial. Furthermore, it would result in an unusually long hiatus because the father lived in Montreal. The Children’s Law Reform Act was proclaimed in force December 31, 1991. In the period between then and December 1994 when the Divisional Court made its decision, there seemed to be judicial resistance to what appeared to be the pervasive phenomenon of ordering assessments frequently and the concern that that trend had to be reversed. There was consensus amongst the four judges involved that the trial judge was in the best position to decide whether an assessment ought to be ordered, without regard to the delay that that would entail at a critical point in the proceedings. There also appeared to be an expectation that the father could engage his own assessor without court order, an anomaly that is not explained. Interestingly, there was expert evidence available from treating professionals as to the clinical issues that the children demonstrated. Although those clinical issues were not described, it stands to reason that the children would not have been involved with the CPRI if they were not experiencing clinical issues. Although the Divisional Court held that clinical issues were a prerequisite, the court nonetheless upheld the motions judge without regard to those very clinical issues.

Third, in the recent decision of the Court of Appeal in Ursic, the Court made no reference to Linton or to the question of a clinical issue. The Court of Appeal accepted an endorsement made by Gillese J. on the stay motion in which she observed that the failure on the part of the trial judge to have responded to the parents’ request at the outset of the trial for an assessment may have been an error. Furthermore, the Court of Appeal found that the assessment reports prepared between the trial and the hearing of the appeal were of “great assistance in deciding the appeal”. The Court had an opportunity to address the long standing discussion about the necessity for a clinical issue as a pre-requisite and chose not to do so. I infer from its silence on that issue, that it does not consider a “clinical issue” as a pre-requisite.

The fourth reason has to do with the identification of a clinical issue. I note that Master Nolan (as she then was) provided a definition in Tamm v. Oddy²² as follows:

I am unaware that there has been any judicial interpretation of the meaning of “clinical issues”. In the ordinary sense, clinical issues would appear to refer to those behavioural or psychological issues about which the average reasonable person would need assistance in understanding. The professional knowledge and skill of an assessor, usually a psychologist or a social worker, could assist the court in understanding the unusual behaviour of the children or the parents involved. “Clinical issues”, in my view, are not limited to psychiatric illness or serious psychological impairment of any of the parties or children involved.

As indicated above at paragraph 37, P.W. Dunn J. provided his own definition of “clinical issues”. At paragraph 38 above, Perell J. also addressed that term.

With due respect to those suggestions, none provides a basis upon which a judge could determine if there was a “clinical issue”. Furthermore, judges are not trained to identify “clinical issues”. No doubt we have views based on the evidence that a family is dysfunctional. A judge might suspect that one of the parents is paranoid or depressed. But judges have no expertise in determining when dysfunction becomes “clinical” or in identifying clinical features of mental illness. I share the view expressed by Gary W. Austin and Peter G. Jaffe (then both at the London Family Court Clinic) in the annotation that appears in the reasons for decision of Linton in which they query whether judges can agree on what a clinical reason might be.

For all of those reasons, I find that the presence of a “clinical issue” or “issues of pathology” is not a pre-requisite for the making of an order pursuant to s. 30 of the Children’s Law Reform Act.”

Glick v. Cale, 2013 ONSC 893 (CanLII) at 40-46

“I echo the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 ONSC 846 (Ont. S.C.J.) at 19 to the effect that a party who has chosen to raise numerous serious allegations which are ultimately determined to be unfounded cannot then complain about the resources that were found necessary in order to rebut the claims. As Gray J. noted:

The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.”

         Fielding v. Fielding, 2019 ONSC 833 (CanLII) at 80