Author: dawi

“When it comes to deciding children’s lives, doing it cheap is no substitute for doing it right.

Endless motions to re-argue temporary parenting orders – with no apparent inclination to ever seek a final order at a trial – do a disservice to children who deserve proper consideration of all the best interest factors, based upon a thorough presentation and testing of all relevant evidence at an oral hearing.

a.      For parents: Motions – even an endless succession of temporary motions — may seem quicker and cheaper than trials.

b.      For lawyers: Motions are less work than trials.  Less disruptive to busy caseloads.  Motions let the lawyer multi-task, servicing multiple clients on the same day.  In contrast, trials require the lawyer’s undivided attention, sometimes for days or weeks at a time.  So motions are often a better business model than trials.

c.      But for judges: Complex, bitterly contested motions based on incomplete and untested affidavits usually make it impossible to make necessary credibility and factual determinations — let alone fully understand the personal situation and needs of each parent and each child.  Affidavits simply don’t give us all the information we need to make proper determinations.

In the early stages of a family dispute, motions are often unavoidable.

a.      Time is limited.

b.      Things are in flux.

c.      Children are disrupted.  Often in despair.  Sometimes in danger.

d.      Emotions are high.

e.      Decisions have to be made.

f.      Finances and parenting issues need to be stabilized.

Judges do the best they can with imperfect affidavit evidence on crowded motions lists — because something has to be done.  Quickly.

But once a temporary order is in place, that should be the end of the “motion stage.”

a.      The focus should switch to achieving a finalresolution for the family.  That’s why we offer comprehensive case management.

b.      The best result for everyone is usually a negotiated settlement.  A consent order.  And that’s how most cases conclude.

c.      But in a small number of cases, an oral hearing will be required.  Where witnesses will testify and be cross-examined.  Where all the issues will be thoroughly reviewed and a decision will be made, once and for all.

Except an increasing number of litigants appear to have no interest in a once and for all resolution.

a.      They don’t want to settle.

b.      But they don’t want to go to trial either.

So our court system gets bogged down with people engaging in half-hearted litigation.

a.      They keep talking tough about all the things they’re going to do at trial – except they never seem to want to get to trial.

b.      They pretend they want to advance the file to a final resolution.  But in reality they allow the file to languish.

c.      Adjournments become the litigation strategy of choice.  Preferably sine dieadjournments.   (In Latin sine die means “no definite date or period to resume”, but in family court it could easily be mistaken to mean “I hope this doesn’t come back for a long time.”)

d.      They ignore the Rules and court-ordered deadlines.

e.      They allow months – even years – to go by with little or nothing being accomplished.

f.      They complain the court system is too slow – but refuse to schedule next steps in the process.

And then suddenly – often when they discover their case is about to be dismissed — one of the parties will bring an “urgent” motion seeking yet another temporary order.  And so it starts again.

a.      More affidavits (often asking the judge to refer back to earlier affidavits as well).

b.      More cross-motions.

c.      More allegations (and blame-shifting for the delay).

d.      More unsworn exhibits and attachments.

e.      More untested evidence. 

f.        More impossible demands on the motions judge.

There is absolutely no excuse for this.

a.      There is generally a finite period of time within the early stages of a family court file when motions for temporary orders are appropriate.

b.      In some instances – where litigants are actually paying attention– there might even be justification for subsequent motions pending an anticipated trial.  Sometimes new information or disclosure becomes available.  Sometimes things change.

c.      But the older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit.

d.      Particularly where children’s issues are involved, it’s unfair to keep asking motions judges to struggle with incomplete, untested, and highly conflictual affidavit evidence.  We’ll do it at the beginning, when there’s no alternative.  But there’s a tipping point where you can no longer ask judges to struggle through repetitive volumes of imperfect materials – for the sake of yet another temporaryorder — when in reality the parties could have already had (or at least scheduled) their trial.

e.      On financial issues, this lackadaisical approach is a wasteful nuisance.

f.      On parenting issues, asking judges to engage in guesswork because you’ve neglected your file is unconscionable.”

          Sham v. Lee, 2024 ONSC 6598 (CanLII) at

“Chappel J. in McBennett v. Danis, 2021 ONSC 3610 (CanLII), undertook a review of the caselaw relating to decision-making determination and set out a helpful list of guiding factors that have been identified over time, particularly in relation to joint decision-making.  They include:

1. 1. 1. 1. 1.          In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties;
            2.          The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.”  (Lafrenière J. in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.));
            3.          There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;
            4.          Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;
            5.          In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child.  The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement;
            6.          The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered.  The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;
            7.          The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children.  The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord;
            8.          In assessing the level of conflict and cooperation the question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children;
            9.          In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict;
            10.      Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party;
            11.      Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions;
            12.      Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents;
            13.      The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.

Chappel J. also discussed the body of caselaw relating to “divided decision-making” regimes and observed:

The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party.  These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement.  These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests.  Courts have recognized there are many merits to these types of regimes in appropriate cases.  They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship.   In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, at para. 69).”

            Vieira v. Bettencourt, 2022 ONSC 6584 (CanLII) at 50-51

“The draft Cohabitation Agreement recites that the parties started to cohabit in 2011. It does not state that the cohabitation was continuous.  What is clear is that the parties could not agree upon the terms of the draft Cohabitation Agreement. I am not persuaded that this unsigned agreement referring to the commencement of the cohabitation assists the Applicant.  The reason is that if the Applicant relies on this recital, the rest of the draft Cohabitation Agreement provided that the Applicant would not be entitled to any support or the Respondent’s assets upon the end of their relationship. A not surprising term sought by the Respondent – a wealthy, successful businessperson with a family from a prior marriage, might want the benefits of such an agreement particularly, where the Applicant did not have any substantial financial assets or means and where the relationship had been what the Respondent alleges was a sporadic, noncontinuous romantic relationship. The release of any support claim would be a significant bar to the Applicant’s claim.

In any event, the draft Cohabitation Agreement was never executed by the parties.  As such, it is difficult to put too much weight on this document.”

            Cevallos v. Lambden, 2023 ONSC 6670 (CanLII) at 22-23

“The Respondent Father’s affidavit does not comply with the Consolidated Provincial Practice Direction for Family Proceedings in the Superior Court of Justice.  It is not double-spaced.  The Father’s affidavit also includes argument with quotes and citations from caselaw.  Affidavits are to contain facts, not argument or legal authorities.”

            Bah v. Diallo, 2024 ONSC 6500 (CanLII) at 14

“Section 9 does not automatically lead to the court reducing the child support payable by the higher earning parent by the amount of support owing by the lower earning parent. The courts have found that the simple set-off approach is the preferable starting point, but it must be followed by an examination of all the factors, including assessing whether the support-receiving parent will be able to continue to meet the needs of the child. The court tries to avoid a significant variance in the standard of living between households for the child of the relationship. Contino v. Leonelli-Contino, 2005 SCC 63.”

            M.D. v. N.P., 2024 ONSC 6479 (CanLII) at 50

“The test for a reasonable apprehension of bias on the part of an arbitrator is objective – like the legal test for disclosure, it considers the relevant circumstances from the standpoint of a fair-minded and informed observer, applied against the backdrop of a strong presumption that an arbitrator is impartial.”

Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 (CanLII) at 13

“The seminal cases in Canada on spousal support are Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R., 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. Although both were decided in the 1990s, the principles they enunciate have continued to resonate in the case law since then.  First, in Moge, the court noted, at pp. 848-849, “the purpose of spousal support is to relieve economic hardship that results from ‘marriage or its breakdown’.  Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.”

Bracklow requires the court to consider all the factors and objectives set out in the Divorce Act. The Court said, however, that no single objective is paramount. All must be borne in mind since “[t]he objectives reflect the diverse dynamics of the many unique marital relationships”: at para. 35.  The uniqueness of marital relationships means that each case will be fact-driven to a large degree.

Since Moge and Bracklow were decided, the Spousal Support Advisory Guidelines (SSAGs), although not law, have often been relied on by judges in determining the quantum and duration of a spousal support order, once a party has established his/her entitlement to spousal support. Unlike the Divorce Act, the SSAGs are not statutory authority. They are guidelines designed to advise on a reasonable range of spousal support and a reasonable duration for spousal support in various circumstances.  While the SSAGs are advisory only, courts are required to consider them where they have been addressed by the parties: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.

The following is a quote taken from Moge, at p. 870:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra).  Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party.  As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at pp. 174-75).”

            Ramezani v. Najafi, 2021 ONSC 7638 (CanLII) at 320-323

“As Justice Kiteley has already dismissed the applicant’s request for production of the Decentral Server, the respondent takes the position that the motion before this Court must be dismissed by reason of issue estoppel, res judicata, abuse of process and/or collateral attack.

As held by the Court of Appeal for Ontario in Kendall v. Sirard 2007 ONCA 468, an interlocutory order is still nevertheless binding on the parties, and “it is not open for the Court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal”.

Notwithstanding, as Justice Kiteley’s decision is not final, the doctrine of issue estoppel and res judicata would not “forever preclude” the applicant from bringing a motion for the same relief.  However, as held in M. B.-W. v R.Q. 2015 NLCA 28 (CanLII), such a motion could only be considered, and potentially granted, by the Court if the applicant could demonstrate the presence of new, material facts, or material facts which were previously not discoverable by the applicant through the exercise of reasonable diligence.”

            Wu v. Di Iorio, 2023 ONSC 6417 (CanLII) at 15-17

“Ms. Enei’s motion for summary judgment is brought pursuant to Rule 16 of the Family Law Rules O. Reg. 114/99, s. 16, (“FLR”). Rule 16 was amended in May 2015 to broaden the powers of the court on a summary judgment motion.

In Gough v. Gough, 2019 ONSC 5441, I summarize the legal principles applicable to summary judgment motions as follows:

31      Summary judgment motions are governed by Rule 16 of the Family Law Rules.

32      The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

33      Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children’s Aid Society of Toronto v. T. (K.), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.)).

34      Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, No. 2 of para. 80).

35      Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

36      Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. 1. 1. 1. 1. 1. 1. Weighing the evidence
                  2. Evaluating the credibility of a deponent.
                  3. Drawing any reasonable inference from the evidence.

37      Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

38      In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

39      Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

40      There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak — para. 49). As the Supreme Court stated at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, para. 63).”

            Enei v. Enei, 2024 ONSC 6323 (CanLII) at 23-24

“There are four circumstances in which a court in Ontario has jurisdiction to make a parenting order under the Children’s Law Reform Act.  They are:

(a)   First, under section 22(1)(a), an Ontario court may make a parenting order where the child is “habitually resident” in Ontario;

(b)   Second, under section 22(1)(b), where the child is not habitually resident in Ontario, the Court may nevertheless exercise jurisdiction if the child is physically present in Ontario, and other requirements are met;

(c)   Third, a court has jurisdiction to make a parenting order where the child is physically present in Ontario and the Court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in section 23 of the Children’s Law Reform Act; and 

(d)   Finally, the Court may exercise its parens patriae jurisdiction, which is specifically preserved by section 69.

See Los v. Ross, 2024 ONCA 122 ¶ 29. 

It is the father’s onus to demonstrate that a parenting Order should be made on one of these bases.  If not, the Court should decline to exercise jurisdiction:  see F v. N., 2022 SCC 51 ¶ 59.”

            Pengelly v. Lynas, 2024 ONSC 6269 (CanLII) at 12-13