“An appeal from an interlocutory order of a judge of the Superior Court lies to the Divisional Court with leave as provided in the rules of court, in accordance with s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. A motion seeking leave to appeal must be brought by a notice of motion, which must be served within 15 days of the order: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 62.02(3).”
Author: dawi
February 2, 2022 – “Debts” To Family Members
“Family law judges are justifiably wary of claims, made after separation, that monies advanced to family members during the marriage are debts rather than gratuitous amounts. This is because acceding to such claims too readily would risk undermining the central purpose of the family property regime which is to equally divide the value of the property acquired by the marital partnership. Here, the evidence proffered by the appellant did not, in the trial judge’s view, support the submission that the monies were advanced during the marriage or that there was any expectation of repayment. The trial judge found that it was “clear from the evidence that they would never sue the respondent or take any action to collect upon the money”.”
February 1, 2022 – Hearsay and Children’s Views
“In Children’s Aid Society of Toronto v. G.S., 2018 ONC 12 (CanLII) the court found that the state of mind hearsay exception includes a child’s wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion. The court admitted child statements to show the child’s views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.
In D.D. v Children’s Aid Society of Toronto, 2015 ONCA 903 (CanLII), the Court of Appeal addressed the admissibility of hearsay statements made by a child and stated:
36 Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care:
Despite anything in the Evidence Act, in any proceeding under this Part [child protection],
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
37 Evidence about a child’s expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.
38 Statements about the child’s views and preferences set out in affidavits by Children’s Aid Society workers’ affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).
39 Statements that show the child’s state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.
40 In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.”
Children’s Aid Society (Ottawa) v. A.M., 2019 ONSC 694 (CanLII) at 85-86
January 31, 2022 – Ordering Life Insurance
“Pursuant to s. 34(1)(i) of the Family Law Act, a court may order that a paying spouse who has a policy of life insurance designate the other spouse or child as a beneficiary irrevocably. Pursuant to s. 34(1)(k), the court has the authority to order a paying spouse to obtain an insurance policy to secure payment of a support order following the payor’s death: Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, at para. 67. Both subsections may be applied on an interim basis.”
January 28, 2022 – The Tort of Harassment
“Except for the US, no other common law court has recognized the common law tort of harassment. Ontario does not have a comprehensive statute akin to the English, Manitoba and Nova Scotia legislation. There have been some developments, including recognition of the tort of intrusion upon seclusion: see, for example, Stinson J.’s decision in Doe 464533 v N.D., 2016 ONSC 541.
In Doe, Justice Stinson stated as follows:
In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.
Each year, criminal courts in Canada deal with an increasing number of these cases. Unlike past decades, many child pornography cases now involve same-aged peers who share nude photos or sex videos with each other. Adults also suffer great harm from these acts. In 2014, Parliament responded by amending the Criminal Code to include a new offence of “publication of an intimate image without consent”: Criminal Code, R.S.C., 1985, c. C-46, as amended, s. 161.1. Under this new provision, anyone who publishes an intimate image of a person without that person’s consent is guilty of an offence and can be sentenced to up to five years in prison.
In November 2015, the Province of Manitoba enacted legislation to create the tort of “non-consensual distribution of intimate images”: see The Intimate Image Protection Act, C.C.S.M. c. I87, s. 11, which came into force on January 15, 2016. No other legislature has so far passed similar legislation. This case, therefore, raises legal questions about the availability of a common law remedy for victims of this conduct, and the legal basis upon which such claims might be founded. Counsel for the plaintiff informed the court that she had been unable to locate any reported decision in Canada concerning a victim seeking civil damages on these or similar facts and my research has not revealed one. This case is possibly the first.
For the reasons that follow, I have concluded that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.
In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery. The social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas.
The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. The test is set out in Prinzo v. Baycrest Centre for Geriatric Care: 2002 CanLII 45005 (ON CA). The plaintiff must prove conduct by the defendant that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness. The third branch of the test must be understood in the context of the broad range of behaviour that may be caught by the first two branches of the test. It is not part of the test that the conduct be persistent and repetitive.
I do not have evidence that the plaintiffs have suffered visible and provable illnesses as a result of Atas’ conduct. One would hope that a defendant’s harassment could be brought to an end before it brought about such consequences. To coin a phrase from Sharpe J.A., quoted by the Court of Appeal in Merrifield, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.” The law would be similarly deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.
The plaintiffs propose, drawn from American case law the following test for the tort of harassment in internet communications: where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.
The facts of these cases clearly meet this stringent test.”
January 27, 2022 – COVID Beliefs & Custody
“It is clear that Darryl believes that the COVID-19 pandemic is a hoax and/or is being exaggerated by improvidently intentioned governments at all levels and by the media. He also believes masks are not only unnecessary but pose a greater health care risk.
Darryl is entitled to his opinions. He is entitled to express those opinions by lawful means. However, it is not Darryl’s opinions alone that are at issue before the court. Rather, at issue is whether Darryl’s conduct in public poses a risk to the best interests of his children.
Darryl is not only opposed to wearing masks but is boastful online about his anti-masking behaviour. As well, he has been in the public at rallies and in day-to-day activities not wearing a mask, or otherwise engaging in social distancing.
As a result of this information, Christina seeks to be awarded interim custody of the children. She claims Darryl’s conduct puts the children at risk of acquiring COVID-19.
She submits that the court should make an order limiting Darryl to only have access to the children at the Supervised Access Centre provided he agrees to COVID-19 protections. If that is ordered, Darryl and the children will be required to wear masks and maintain proper social distancing during access visits in order to minimize the risk of either child acquiring the COVID-19 virus.
On a review and assessment of the evidence, I have concluded that the respondent’s behaviour is dictated by his world view. Everything else is subordinate to that view, including, but not limited to, his love for his children. He makes repeated assertions that they need to be permitted to spend more time with him and that time should not be supervised. However, he is not prepared to take steps to protect himself in public at all times; not only is he not taking precautionary steps, by his own evidence, he is attending public protests, unmasked, and taking other inappropriate steps. He readily admits, and is active online, confirming, even bragging, that he is engaging in actions and behaviours in the community while unmasked.
During the hearing of these motions, Darryl indicated to the court that he had a “medical reason” for not wearing a mask. When the court inquired as to the nature of that medical exemption, he indicated that the reason was private, medical information, that he did not have to disclose.
If Darryl has a bona fide medical reason to be exempt from wearing a mask, that is one thing. However, it is evident from his online postings that his purported medical exemption is not the product of a medical diagnosis, but rather convoluted logic based on belief. As he indicated when he posted about his maskless attendance at Zehrs – “I have this pre-existing condition for standing up for rights.” In effect, he has characterized his personal opposition to wearing a mask to a form of medical pre-existing condition. I do not accept this as in any way constituting the type of bona fide medical exemption currently recognized in Ontario.
At this time of a serious health crisis, the best interests of Andrew and Gloria demand that their mother, Christina, be awarded sole custody on an interim and without prejudice basis.
There are many reasons for awarding Christina custody in this respect. One reason is that should medical issues arise, Christina must have the ability to make decisions with the advice of physicians, and other medical personnel, that are in the best interests of the children. This is a reason that has come to play because Andrew has recently suffered an injury. Another reason is when a COVID-19 vaccine is made available, Christina must have the sole decision-making authority and responsibility with medical advice in this regard.
Darryl’s opinions and amplification of those views are one thing. His conduct requires that Christina temporarily have sole custody to make all necessary decisions relating to, but not limited to, health care, schooling, and receiving a vaccine- when they are eligible.
It is noteworthy, this is a temporary order. It is fully related to the ongoing COVID-19 pandemic and the respondent’s public behaviour. The issues of custody, residency, access, and responsibility for decision-making can be revisited once the myriad of health concerns arising from the COVID-19 pandemic subside.”
January 26, 2022 – Enough is Enough
“For reasons that are unclear to me the parties are engaging in an expensive and litigious process in what should be a straightforward case. I query whether the fees they have incurred will significantly exceed whatever costs may be ordered at some point down the road.
…
The case is indicative of the culture of unreasonableness that plagues the Court. This culture is particularly problematic given the current challenges and delays faced by litigants in gaining access to justice. Other flagrant examples include:
(a) failing to file any conference materials and/or Confirmation notices;
(b) ignoring the line spacing and font size so as to “comply” with the page limits;
(c) circumventing page limitations by directing the judge to earlier affidavits;
(d) bringing “urgent” motions that are not urgent, and attempting to squeeze long motions into one hour slots;
(e) seeking last minute adjournments based on information known weeks in advance;
(f) failing to advise the Court until the morning of a matter that the case has settled when the Minutes of Settlement were executed days before;
(g) using the Court’s limited resources to further the delay, delay, delay game;
(h) seeking costs in amounts that are unreasonable and not proportionate;
(i) requesting relief that is extreme, not child-focused and unrealistic; and
(j) playing “good cop, bad cop” with the judge delivering the unfavourable opinion rather than the client’s legal advisor.
It seems that, for some counsel, the days of valuing one’s reputation over success in any particular file may be gone. Given the current state of rapid transformation of the Court, coupled with additional unspecified future changes, that is unfortunate.
Civility inside and outside of the courtroom, and respect for colleagues and the Court, are vitally important to the successful functioning of the Family Justice system.
Enough is enough.”
January 25, 2022 – Respecting “Creative” Orders By Motion & Trial Judges
“The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.
Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court’s injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices.
There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.”
January 24, 2022 – Variation Orders
“This is a case involving a variation under the Family Law Act (the parties never having divorced). As Justice MacLeod found in Charleton vs. Coburn, 2016 ONSC 5415 at paragraph 32:
[32] While L.M.P. v. L.S. dealt with variation under the Divorce Act, the principles are similar under the Family Law Act. The Supreme Court has said that on a variation of a spousal support order, the objective is to determine the appropriate change required as a result of the material change. It is not a review of support de novo. The Court adopted the analysis in Miglin that judges making variation orders limit themselves to making the appropriate variation but do not weigh all of the factors required by s. 15. Moreover, the analysis is the same whether the original order was the result of adjudication or of a settlement. In either case, unless a party is seeking rescission, there is a presumption that the original order was correct and in accordance with the objective of the Act. There is no reason not to apply the same analysis to an order under the Family Law Act.”
January 21, 2022 – Virtual Cross-Examinations
“The risk of mischief on a virtual examination is an area which has yet to be fully explored, although the possibility has been adverted to. Myers, J. in Arconti et al. v. Smith et al, 2020 ONSC 2782, did not disallow the use of a virtual examination just because of the risk of mischief, but was certainly aware of the possibility when he said, at para. 25:
I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.
It is clear that the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues.
Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system.
…
The integrity of the fact-finding process must be maintained. This includes the fact-finding process on virtual cross-examinations. This mischief could only have happened on a virtual examination. In a face-to-face examination, examining counsel has control over who is and is not present at the examination.”
Kaushal v. Vasudeva et al, 2021 ONSC 440 (CanLII) at 54-56 & 60