Author: dawi

“Second, the appellant submits that the trial judge did not have the authority to order a review with respect to custody and support.  The challenged portion of the trial judge’s Order is:

7. There shall be a review of the issue of custody, access and child support after December 31^st, 2012; either party may bring a Motion after that date, returnable before me by arrangement with the trial coordinator at Milton; each party shall file an Affidavit on which he or she may be cross-examined at the hearing.  In her Affidavit the Applicant shall disclose the school attendance records for the children to the date of the review, and any report cards for them.  Any absences from school for more than two days must be supported by a medical certificate.  The Respondent in his Affidavit shall disclose the efforts he has made to secure employment, and in particular at the highest rate or pay that he can secure.

We do not accept this submission.  The trial judge had genuine concerns about the children’s school attendance when they resided with their mother pursuant to the separation agreement and the father’s efforts to find employment in Sudbury.  It was reasonable for him to order the parties to return to court several months later so that these issues could be reviewed.  We note, with approval, that similar orders have been made by several superior court judges: see, for example, Andrade v. El Kadri, [2009] O.J. No. 2423 at para. 47; Filaber v. Filaber, 2008 CanLII 57449 (ON SC), [2008] O.J. No. 4449 at para. 58; and Johnstone v. Locke, [2012] O.J. No. 406 at para. 128.”

Noah v. Bouchard, 2013 ONCA 383 (CanLII) at 10-11

“Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, remains the seminal authority regarding constitutional remedies. Lamer C.J.C. identified the court’s obligation to fashion a remedy for a constitutional breach and the scope of such remedies, at p. 695 S.C.R.:

Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in.

Lamer C.J.C. set out three steps to be followed in determining the appropriate remedy for a Charter breach. First, the court is to define the extent of the impugned law’s inconsistency with the Charter. Second, it should select the remedy that best corrects the inconsistency. Third, the court should assess whether the remedy ought to be temporarily suspended.

Turning to the first step, we hold that the common law definition of marriage is inconsistent with the Charter to the extent that it excludes same-sex couples.

With respect to the second step, in our view the remedy that best corrects the inconsistency is to declare invalid the existing definition of marriage to the extent that it refers to “one man and one woman”, and to reformulate the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”. This remedy achieves the equality required by s. 15(1) of the Charter but ensures that the legal status of marriage is not left in a state of uncertainty.”

Halpern v. Canada (Attorney-General), 2003 CanLII 264037 (ON CA) at 145-148.

“What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.”

Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII) at 44-45

“In the Orders under Appeal, the appellant was given supervised access to the children only if she “provides a psychiatric report…satisfactory to [the respondent]”.  The appellant submits that the determination of access is a judicial function and was improperly delegated.

I agree.

In M.(C.A.) v. M.(D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), this court emphatically stated that the court cannot delegate to a third party its power to determine access.  At paras. 20-24 of M.(C.A.), Rosenberg J.A., writing for the court, gives four reasons why delegation is improper.  All four reasons apply in the present case.

First, it is unclear what the psychiatric report would have to demonstrate in order for the appellant to have access to the children.  Second, the appellant’s mental health is not the only consideration as to whether she should have access.  If access is in the children’s best interests, should it be denied absent the report?  And if access is not in their best interests, should a report entitle the appellant to have access?  Third, there is no statutory authority to delegate decision-making as to access to a third party.  Fourth, such a delegation improperly fetters the appellant’s access to the court on the question of access.”

D.D. v. H.D., 2015 ONCA 409 (CanLII) at 90-93

“In respect of the first part of the [Contino] two-stage analysis, our Court of Appeal in Froom v. Froom, 2005 CanLII 3362 (ON CA) and other appellate courts in British Columbia (Maultaud v. Blair, 2009 BCCA 102 (CanLII) and elsewhere, have held that there is no universally accepted method for determining whether the 40 per cent threshold created by s.9 (of the Guidelines) has been crossed.

The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year: L.(L.) v. C.(M.), 2013 ONSC 1801 (CanLII).

Cases decided after Froom have highlighted that the method chosen for calculating the 40 per cent threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.(L.) v. C.(M.), Czutrin J. (as he then was) concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. Justice Czutrin noted that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis: Scott v. Chenier, 2015 ONSC 7866 (CanLII) citing L.(L.) v. C.(M.) at 23-39.

That said, in Froom, our Court of Appeal held that the trial judge there did not err in approach in choosing to calculate the amount of time that the child was in the general care and control of the parent on the basis of days and not hours.”

         Skaljac v. Skaljac, 2018 ONSC 3519 (CanLII) at 68-71

“In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:

1. 1. 1. 1. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available;
         2. The claimant must demonstrate that he or she is incapable of funding the requested amounts;
         3. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.

The court in Stuart added that:

9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

However:

10) An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

Regarding Part 1 of the test, the court in Stuart said at paragraph 11:

11) Certainly the proof of the necessity of interim disbursements would be critical  to  the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:

1. 1. 1. 1.    There was no affidavit from counsel regarding outstanding fees;
         2.    There was no evidence of the prospective costs of the case.”

Malette v. Malette, 2019 ONSC 3448 (CanLII) at 68-72

“Counsel for the wife referred me to the case of Ganie v. Ganie, 2019 ONSC 1128, in which Justice L. Shaw summarized the principles applicable to claims for occupation rent.  At para. 287 and 288, the court stated:

287      In Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49-50, Osborne J.A. held that a judge has jurisdiction to order that occupation rent be paid if it is reasonable and equitable to do so. The relevant factors to be considered will vary from case to case. However, in a family law context, some factors are consistently taken into account such as: (a) the timing of the claim for occupation rent; (b) the duration of the occupancy; (c) the inability of the non-resident spouse to realize on his or her equity in the property; (d) any reasonable credits to be set off against occupation rent; and (e) any other competing claims in the litigation. The weight to be given to these and other relevant factors is a matter for the judge to determine.

288      In Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.J.), Quinn J., after reviewing the jurisprudence, stated at para. 53, that the following factors must be considered in making an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) the conduct of the occupying spouse, including the failure to pay support;

(c) delay in making the claim;

(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f)  whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) whether the occupying spouse has increased the selling value of the property; and

(i)  ouster is not required.”

Armstrong v. Armstrong, 2019 ONSC 3227 (CanLII) at 22.

June 2, 2020 – Joint Custody & Parallel Parenting

“The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.

Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.”

Ursic v. Ursic, 2006 CanLII 18349 (ON CA) at 25-26

“The Family Responsibility Office asks for an order that the Respondent be incarcerated for failing to comply with a final default order of September 23, 2015.  He was served with a notice of motion dated October 20, 2016 seeking a warrant of committal.  Even with certain credits, FRO says there is still more than $4,000.00 owing.  Today is the 11^th appearance of the motion for warrant of committal.

…

The Respondent is self-represented.  Sometimes he misses court, but on those occasions when he has attended he has previously been assisted by duty counsel.

Today however, he was able to get some advice from duty counsel in the duty counsel office.  However, he was advised that duty counsel would not be attending with him in the courtroom, during the hearing to determine whether he is to be incarcerated.

I stood the matter down and invited duty counsel Mr. Mitrinandan to attend to explain Legal Aid’s position.  He spoke to his supervisor and confirmed that Legal Aid’s policy is not to represent parties in court during hearings to determine whether they are to be incarcerated, even if (as was the case with this Respondent) they otherwise qualify financially for duty counsel assistance.

Mr. Mitrinandan was quite respectful and cooperative and indicated that he would assist the Respondent if the court ordered him to do so.  I indicated that I was not ordering duty counsel to participate.  I was requesting it because I thought it was the right thing to do.

Accordingly, we have a policy issue which takes me by surprise.

Legal Aid routinely has duty counsel assist parties in criminal court to try to get them out of jail, at bail hearings.

Legal Aid routinely has duty counsel assist parties in family court, for contested motions and for conferences dealing with sometimes extremely trivial and superficial matters.

It seems inconsistent – and grossly unfair – that when the Respondent in this case is facing the possibility of incarceration – the most drastic step the state can take – Legal Aid suddenly says he’s on his own.  I would have thought that dealing with someone’s liberty is probably the most important type of case where Legal Aid should be involved.

The lawyers before me today didn’t create this mess, and apparently they don’t have the ability to resolve it.

But this court has to ensure that the process is fair.  And I don’t think it is fair to have the Respondent represent himself (without proper legal advice which is readily available) at a hearing where the state is asking to put him in jail.

The matter will have to be adjourned while Legal Aid Ontario (hopefully) reconsiders its policy.”

         FRO v. Wilson, 2018 ONSC 3494 (CanLII) at 1, 4-14

“The court in Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117 (Ont. H.C.), aff’d [1992] O.J. No. 3563 (Ont. C.A.), set out principles to consider when the date of separation is disputed (paras. 6-8):

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (S.C.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium (Dupere) or of repudiating the marital relationship: Mayberry v. Mayberry, 1971 CanLII 717 (ON CA), [1971] 2 O.R. 378, 3 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).

(3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere; Cooper; Mayberry.

(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: Cooper; Mayberry; McKenna v. McKenna (1974), 19 R.F.L. 357, 10 N.S.R. (2d) 268 (C.A.); Vogel v. Vogel (1988), 18 R.F.L. (3d) 445 (Ont. H.C.).

(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna.

1. 1. 1. 7. Under the Family Law Act, the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent: Czepa v. Czepa(1988), 16 R.F.L. (3d) 191 (Ont. H.C.); Vogel v. Vogel; Caratun v. Caratun (1987), 1987 CanLII 4094 (ON SC), 61 O.R. (2d) 359, 9 R.F.L. (3d) 337, 28 E.T.R. 59, 43 D.L.R. (4th) 398 (H.C.). An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns: Czepa. If a mediator is consulted, the purpose for which the mediator was consulted may also be of assistance: Garnick v. Garnick, [1988] W.D.F.L. 150 (Ont. H.C.).
         8. When a spouse makes plans for his or her assets as a separated person the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act. “One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”: Caratunat p. 364….”

T.N.F. v. M.J.V.A., 2018 ONSC 3310 (CanLII) at 15