Author: dawi

“When considering the perspective of the Applicant, who saw herself as Luna’s “other mom”, it is frustrating to see how this situation has unfolded.  This is not, however, the criteria that is to be applied in deciding the Applicant’s motion for temporary access.  The Court’s focus must be on what is in Luna’s best interest while considering the criteria enumerated in para. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

There are a number of legal principles that I have considered in this matter:

a.  A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child.  The onus is on a non-parent seeking access to prove that it is in a child’s best interest to have such a relationship.  A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact with the stranger: see Farber v. Robitaille, 2004 CarswellOnt 5674 (Sup. Ct.).

b.  Courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with a custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs: see Gibson v. Emmons, 2015 ONSC 4458 (CanLII) at para. 24.

c.  “It may be convenient to lump decided cases into categories such as “grandparent cases” or “step-parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access.  A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child.  A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.

In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.” (Johnstone v. Locke, 2012 ONSC 719 (CanLII) at paras. 103-104).

d.  “In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.” (Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 141 O.A.C. 389 at para. 21.)”

Villeneuve v. Bell, 2018 ONSC 4518 (CanLII) at 20-21

“The mother and the Society both submit that the test to be applied on a status review application is set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at p. 200:

1. 1. 1. Does the child continue to be in need of protection?

1. 1. 2. Which of the available range of orders is in the child’s best interests?

That said, the mother and the Society disagree on the precise meaning of the test articulated in C.M.

On the mother’s interpretation, the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the CFSA.  According to the mother, the Society could not meet that test on the status review application based on the evidence adduced at the review hearing for two reasons.

We do not accept the mother’s interpretation of C.M., namely, that the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the CFSA. At p. 200 of its decision in C.M., the Supreme Court of Canada made it clear that, in addition to the factors enumerated in s. 37(2) of the CFSA, a finding of a continuing need for protection could also be premised on the need to protect a child from emotional harm arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents.”

Children’s Aid Society of Oxford County v. W.T.C, 2013 ONCA 491 (CanLII) at 28-30, 32.

“A resulting trust arises by operation of law. When a parent gratuitously transfers property to an adult child, the law presumes the child holds the property on a resulting trust for the parent. The presumption exists from an equity perspective because equity presumes bargains, not gifts.

In Kerr v. Baranow, the Supreme Court of Canada confirmed the view expressed in Pecore that where there is a gratuitous transfer, the actual intention of the transferor is the governing consideration. In a gratuitous transfer between parent and adult child, the burden of rebutting the presumption is on the child, who must produce evidence to establish, on a balance of probabilities, that the transferor intended a gift at the time of the transfer. In cases where a spouse of a transferee wishes to establish a beneficial interest in the transfer, the onus is on that spouse to establish a beneficial interest in the gratuitous transfer.

To rebut the presumption it must be shown that the transferor intended to transfer the beneficial interest to the transferee. The intention is a question of fact to be determined on the whole of the evidence. Evidence of intention may include such factors as the relevant conduct of the transferor and transferee, and control and use of the transferred property after transfer.”

Derbyshire v Derbyshire, 2016 ONSC 4740 (CanLII) at 69-71

“Second, to ignore or conflate the separate roles of trustee and beneficiary would be contrary to the fundamental nature of a trust and would render the trust unworkable.

A trust is a form of property holding. It is not a legal entity or person. A trust does not hold title to property nor can it. It is the trustee who holds legal title to the trust property.

A trust is also a type of relationship, namely, the fiduciary relationship that exists between trustee and beneficiary. The foundation of the trust relationship is the separation of roles between the trustee and beneficiary with the trustee being the legal owner of the trust property and the beneficiary being the equitable owner of the trust property. The trustee holds legal title to the trust property so that it can manage, invest and dispose of the trust property solely for the benefit of the beneficiaries. A trust can only exist when there is a separation between legal ownership in the trustee and equitable ownership in the beneficiaries.

If the court were to ignore or conflate the separate entities, it would destroy the foundation of the trust relationship. Put another way, absent the separate entities, there is no trust relationship and, therefore, no trust. That is not the case when the corporate veil is pierced. In that situation, the corporation as a separate legal entity remains — it is simply that the court can look through the veil, in very limited circumstances, to attribute ownership to the corporation’s alter ego.”

Spencer v. Riesberry, 2012 ONCA 418 (CanLII) at 52-55

“…the law is clear that a trial judge should not delegate decision-making to an assessor: Behrens v. Stoodley (1999), 1999 CanLII 1626 (ON CA), 128 O.A.C. 58, at para. 40.  An assessor’s evidence is but one piece of evidence to consider: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.), at p. 435.”

Mattina v. Mattina, 2018 ONCA 641 (CanLII) at 13

“The Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, 2005 CanLII 1625 (ON CA), 2005 CanLII 1625, [2005] O.J. No. 275, 2005 Cars­well­Ont 266, set out that one parent professing an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.  However, there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.  When the child is so young that he or she can hardly communicate her developmental needs, communication is even more important.”

Hameed v. Hameed, 2006 ONCJ 274 (CanLII) at 16

“In Children’s Aid Society, Region of Halton v. J.O., 2013 ONCJ 191 (CanLII), the Society requested that the transcripts of the children’s evidence taken at the preliminary hearing in criminal proceedings be admitted for the truth of their contents.  The Society relied on the affidavit evidence of the social worker from the OCL who stated they were “nervous and scared” about having to testify again (para. 39).

In not admitting the statements made by the child at the preliminary hearing, O’Connell J. found that the Society had not provided evidence that:

a.      the children (17, 11, and 8 years old) were not able to testify;

b.   the children would be psychologically harmed or traumatized if they were subject to cross-examination at the child protection trial;

c.  the children had suffered any harm or traumatic setback after testifying at the preliminary hearing;

d.  the 17-year-old child could not give coherent evidence; and

e.  the 17-year-old child’s behavioral difficulties were a result of giving evidence at the preliminary hearing.

In addition, in the case at bar, the Society seeks to admit certain statements to show state of mind.  This exception can include the children’s wishes and preferences and statements made by the children regarding their physical, emotional and mental state. As stated by Sherr J. in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 (CanLII), at para. 19: “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.”

In the leading case of R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, Iacobucci J. stated that an exception to hearsay was permitted regarding evidence of statements of intent or other mental state.

In Children’s Aid Society of Toronto v. G.S., at para. 18, Sherr J. referred to Parry J.’s comments regarding the statement of mind exception in Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852 (CanLII), 2017 ONC J 852, 4 R.F.L. (8th) 171, at para. 39.  Parry J.’s comments are worth repeating here:

Declarations of the declarant’s contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule.  In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind.  Therefore, there exists a circumstantial guarantee of the trustworthiness of the statement.  The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial.  In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant’s state of mind.  In other cases, courts have ruled that the contemporaneous declarations of the declarant’s state of mind can be received as original evidence, as circumstantial evidence of the declarant’s state of mind, and thus not hearsay at all.  However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.”

 CAS v. M.S.,2018 ONSC 4276 (CanLII) at 37-41

“The governing principles applying to claims for special or extraordinary expenses brought under s. 7 of the Child Support Guidelines were usefully and comprehensively reviewed by O’Connell, J. in the case of Kloc v. Wozniak 2013 ONCJ 363 (O.C.J.) (CanLII) at paras 28-37. Some of the principles which have emerged from the case-law are as follows:

•   An order for s.7 expenses involves the exercise of judicial discretion, considering the objectives of the guidelines, including section 1(a) which reads “to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation”;

•   The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances;

•   One of the factors to be considered is whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred;

•   The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive and if a claim does not fall within any of the listed categories it must be dismissed;

•   Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support;

•   A court has a discretion to order that a payor contribute to an expense if the expense is extraordinary (that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient’s income), reasonable and necessary; and

•    A custodial parent does not have a carte blanche to enrol a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs.”

Smith v. Smith, 2016 ONSC 4622 (CanLII) at 13

“The first part of the governing test on such a motion is the same as the test on a motion to discharge a CPL (Certificate of Pending Litigation) obtained on an ex parte motion under section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. 43 (“CJA”), namely the plaintiff must show only that there is a triable issue as to whether the plaintiff has a reasonable claim to an interest in the Property; see Hupka v. Aarts Estate, 2003 CanLII 49303 (ONSC) at paragraphs 45 and 46. This means that the plaintiff need not establish that she will succeed in her claim to an interest in the Property, but only that there is an issue worthy of a trial in that regard. The defendant has the higher onus, namely the onus of showing that there is no such triable issue.

In such a motion the court must review all of the evidence put forward by the parties in making its determination. Furthermore, the court need not accept the pleadings or the affidavit evidence uncritically; see Avan v. Benarroch, 2017 CanLII 4729 (ONSC) at paragraph 18.”

Dela Vega v. Pineda, 2018 ONSC 4327 (CanLII) at 20-21

“Under s. 19(1)(f) of the Child Support Guidelines, income may be imputed to a party where the party “has failed to provide income information when under a legal obligation to do so”.

Moreover, there is ample case law confirming that the court may draw an adverse inference against a party where he or she has failed to make financial disclosure as required by either court order or by the Rules:  See Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611 (CanLII) at para. 13, and Bardouniotis v. Trypis, 2010 ONSC 4466 (CanLII) at paras. 7 to 9.

The reason for this is clear.  The income information for Radmilo is only available to him, and he therefore has a duty to provide full disclosure of his income in order to provide clarity to the court as to what he earns.  If a payor fails to do so, he runs the risk of income being attributed to him, in the words of the Court of Appeal in Crosbie v. Crosbie, 2012 ONCA 516 (CanLII) at para. 20, “accurately or otherwise”.  This is especially so where the payor’s lifestyle is inconsistent with his reported income without good explanation:  See:  Bak v. Dobell, 2007 ONCA 304 (CanLII) at paras. 41 to 43.”

Milutinovic v. Milutinovic, 2018 ONSC 4310 (CanLII) at 19-21