Author: dawi

“As a matter of law, the mother’s consent is not necessary for the children to be vaccinated if they so choose.

Section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (HCCA) does not provide any minimum age for capacity to make medical treatment decisions. It provides:

Capacity

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

Toronto Public Health, citing the HCCA, takes the position that youth age 12-17 do not require their parent or legal guardian’s consent to receive the COVID-19 vaccine if the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine, why it is being recommended and what will happen if they accept of refuse the vaccine.

This is consistent with the position taken by the Ontario Ministry of Health. The Ministry of Health’s COVID-19 Vaccine Youth (Age 12-17) Consent Form does not require a parent or legal guardian’s signature or consent (although this option is provided). The Ontario Ministry of Health website states:

COVID-19 vaccines are only provided if informed consent is received from the person to be vaccinated, including those aged 12 to 17, and as long as you have the capacity to make this decision. … Even if you are able to provide informed consent, it would be a good idea to talk about this decision with your parent/guardian or an adult you trust such as your principal or a teacher.

The Court does not, of course, simply defer to the government’s interpretation of the HCCA.

That said, I agree with this interpretation. While medical decision making is an incident of parental custody, if the minor is a “mature minor” and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health are provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.

In Gegus v. Bilodeau, 2020 ONSC 2242, Fowler Byrne J. considered the impact of the HCCA on the parents’ custodial right to consent to medical treatment. She stated, at paras. 48 – 51:

The HCCA requires the consent of a patient to any treatment. There are no age restrictions set forth in the Act. The sole determining factor is whether the party receiving the treatment consents to it…

Accordingly, if the health practitioner believes the child has the capacity to consent to his treatment, they will abide by the child’s wishes. If, on the other hand, the health practitioner determines the child is not capable of consenting, s. 20 [of the HCCA] outlines who may give consent on behalf of the child…

Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children’s Law Reform Act.

This view of a “mature minor’s” capacity to consent to medical treatment is also consistent with the common law in this area. In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, Abella J.’s majority decision explained the common law “mature minor” doctrine, at para. 47:

The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children.  However the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law “mature minor” doctrine… The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment.  It provides instead that the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

While the Ontario legislation does not use the words “mature minor”, s. 4 of the HCCA effectively incorporates certain aspects of this doctrine into the scheme of the Act. The Supreme Court’s decision in A.C. contains a thorough discussion of this doctrine, and the complexity of its application in particular cases.”

            A.C. v. L.L., 2021 ONSC 6530 (CanLII) at 34-42

“An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment:  Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.J. No. 36, 44 R.F.L. (3d) 329 (S.C.C.).

The common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships.  The remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing will not be presumed. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief: Kerr v. Baranow, [2011] S.C.J. No. 10, 2011 SCC 10.

In Martin v. Sansome, 2014 ONCA 14, the Court of Appeal for Ontario summarized the Supreme Court of Canada’s decision in Kerr v. Baranow as follows:

1. 1. 1. 1. 1.    The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-service approach.
            2.    Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
            3.    To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
            4.    Whether there was a joint family venture is a question of fact and may be assessed by having regard to all the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

In this way, the framework established in Kerr requires the court to ask the following questions:

i)              Have the elements of unjust enrichment-enrichment and a corresponding deprivation in the absence of a juristic reason-been made out?

ii)            If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?

iii)         If the answer to this second question is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis? and,

iv)      If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

A spousal relationship is not a legal prerequisite to finding a joint family venture: Derakhshan v. Narula, 2019 ONCA 742.

The absence of a juristic reason for the enrichment in question is a necessary prerequisite to any finding of unjust enrichment:  Chechui v. Nieman, 2017 ONCA 669.”

Washington v. Cesarini, 2022 ONSC 5574 (CanLII) at 18-22

“While more readily identified in criminal proceeding, the rule in Browne v. Dunn is equally applicable to family law trials.  Some examples of its application can be found in Liu v. Huang, 2020 ONCA 450 at para. 13-25 and Alajalian v. Alajajian, 2019 ONSC 4678 at para. 17.

The rule can be summarized as follows.  If a party intends to impeach a witness called by the opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence:  Browne v. Dunn, 1893 CanLII 65, at pp. 70-71; R. v. Quansah, 2014 ONCA 237 at para. 75.

The rule in Browne v. Dunn is a rule that ensures trial fairness. It ensures fairness to the witness whose credibility is attacked, fairness to the party whose witness is impeached, and fairness to the trier of fact. With respect to the last principle, it ensures that the trier of fact will not be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict:  Quansah, para. 77.

As stated in Evidence in Family Law, by Harold Niman, at para. 7:15

If you intend to challenge the credibility of a witness you must put the disputed facts or documents to them in cross examination or run the risk of the ancient but still applied rule in Browne v. Dunne.

This is based upon the principle of fairness, so that every relevant witness shall have an opportunity to address important facts or documents. You are not permitted to “blindside” the other side of a case by remaining silent about an important and relevant fact or document which you intend to introduce in your part of the trial and thus rely upon as part of your own case. This is obvious if the “hidden” fact or document relates to credibility, but just as applicable to any other relevant portion of the case.

In this case, a number of violations have been admitted.  In these cases, I have the discretion to decide the remedy to be afforded for the breach.   The remedy should depend on a number of factors and the circumstances of the case.  These factors include the seriousness of the breach, the context of the breach, the timing of the objection, the position of the offending party, any request to recall a witness, and the availability of that witness for recall: Quansah, at para. 117.

In a family law proceeding, two remedies are available.  First, I could consider the breach of the rule when assessing a witness’ credibility and deciding the weight to attach to that witnesses’ evidence. Alternatively, I could allow counsel to recall the witness whose evidence was impeached without notice and allow them to give evidence on these narrow issues:  Curley v. Taafe, 2019 ONCA 368 at para. 31.”

            De Longte v. De Longte, 2023 ONSC 5512 (CanLII) at 9-14

“Ms. Shalaby submits that she was under undue influence and duress when she signed the Agreement, as well as that its terms were unconscionable.

In Berdette v. Berdette, 1991 CanLII 7061 (ON CA), 1991 CarswellOnt 280 (Ont. C.A.), Galligan J.A. set out the test for undue influence:

I adopt the definition of undue influence found in the judgment of Henry J. in Brooks v. Alker (1975), 1975 CanLII 423 (ON SC), 22 R.F.L. 260, 9 O.R. (2d) 409, 60 D.L.R. (3d) 577 (H.C.), at p. 416 [O.R., p. 266 R.F.L.]. There undue influence was defined as the “unconscientious use by one person of power possessed by him over another in order to induce the other to” do something.

[Emphasis added]

Finlayson J.A., speaking for the majority of this Court in Stott v. Merit Investment Corp. (1988), 1998 CanLII 192 (ON CA), 19 C.C.E.L. 68 said that in order for pressure to amount to duress it must be “‘a coercion of the will’, or it must place the party to whom the pressure is directed in such a position as to have ‘no realistic alternative'” but to submit to it.

[Emphasis added]

In Turk, Kitely J., at para. 93, accepted the Newfoundland and Labrador Supreme Court’s definition of duress from Keough v. Keough [2005] N.J. No. 327:

Duress is said to occur where there is such pressure placed on one of the parties that any consent by that party is not sufficient to uphold the agreement. There exists an absence of choice which in effect vitiates any ability to lawfully consent. However, duress sufficient to void an agreement does not arise based only upon a lack of will to proceed but rather it must be based upon a resolution on the part of the submitting party that there is no other practical choice but to perform the act in question. Duress can be established based upon actual or threatened violence or upon economic consideration.”

Shalaby v. Nafei, 2022 ONSC 5615 (CanLII) at 64-67

“Disparity between two spouses’ incomes, in and of itself, does not create an entitlement to spousal support (Lee v. Lee, 2014 BCCA 383; Berger v. Berger, 2016 ONCA 884).”

          Malone v. Cappon, 2023 ONSC 5365 (CanLII) at 21

“In my view, a marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was non-deliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married.”

            Lalonde v. Agha, 2021 ONCA 651 (CanLII) at 44

“The ISO is based on model, uniform legislation designed to streamline the process by which support orders are affected and enforced across provincial and national boundaries. It works in tandem with comparable legislation in reciprocating jurisdictions, including England.

Under the ISO, applications originating in certain jurisdictions require a “provisional variation order” to be made by a court in the jurisdiction where the applicant is ordinarily resident before the materials are sent to Ontario. Other jurisdictions do not involve securing a provisional order before materials are sent to Ontario and an application is made here.

The United Kingdom requires applicants for support variation orders first to obtain provisional variation orders in their own jurisdiction: see, Mathers v. Bruce, 2005 BCCA 410, 51 BCLR (4th) 54 at paras. 24-26. In such a case, an applicant brings a court application in the jurisdiction in which they ordinarily reside, without giving notice to the respondent. If the provisional variation order is made, both it and the support variation application are sent to the court in the reciprocating jurisdiction where the respondent ordinarily resides. When the Ontario court receives the provisional order, the respondent is served with a copy of the application and notice of hearing: see ISO, s.33(1).

Rule 37 of the Family Law Rules, O. Reg. 114/99 deals with proceedings pursuant to the ISO. Rule 37(7) requires an application pursuant to ISO to be dealt with on the basis of written material without the need of the parties or their lawyers having to appear.  However, a responding party may request an oral hearing by filing a form 14B motion within 30 days of being served with the notice of hearing (r. 37(8)), or the court may order an oral hearing (r. 37(9)).  Neither David nor the court requested an oral hearing.”

            Hickling v. Coates, 2022 ONSC 5455 (CanLII) at 32-35

“As stated in Manchanda v. Thethi, 2016 ONSC 3776 (CanLII), 2016 CarswellOnt 8951 (S.C.J.) “Without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.”  The Court of Appeal held that striking of pleadings is not reserved for drastic and extreme cases” (2016 ONCA 909).

In Lamothe v. Ellis (2021 ONSC 4883, at para 42), the court struck the Respondent’s pleadings due to his chronic and persistent disregard of court orders.  Chozik J. considered the following five factors in determining whether it was appropriate to strike the Respondent’s pleadings:

(a)               That the Respondent’s non-compliance is extensive and persistent;

(b)              That his non-compliance is willful in nature;

(c)            That the Respondent has not made any reasonable efforts to comply with the court orders and is unable to provide acceptable explanations for the breaches;

(d)              That in claiming that he is financially unable to pay the costs awards and minimal child support, the Respondent has not provided adequate financial disclosure to the Applicant or the underlying documentations that would allow her (and the court) to make adequate determinations as to his income and employment; and

(e)               That the remedy must not go beyond that which is necessary to express the court’s disapproval of the conduct in issue and must be proportionate to the issues in question and the conduct of the Respondent: Lamothe v. Ellis, 2021 ONSC 4883, at para 42.”

Raisfirooz v. Dajmar, 2022 ONSC 5382 (CanLII) at 12-13

“For article 3 of the Hague Convention to apply, I would have to find that the children were habitually resident in Florida immediately before the wrongful retention, which was June 6, 2022, according to the mother. The father challenges the application of the Hague Convention on the basis that the separation agreement dictates that the children were to be returned to Toronto if by the review date the mother had not met certain conditions. While the mother maintains that Florida was the children’s habitual residence, the father submits that the children’s habitual residence was Toronto and their time in Florida was always intended to be temporary unless and until the conditions were met by the mother.

The Balev decision sets out how an application judge should determine the question of a child’s habitual residence. The three possible approaches were discussed: the parental intention approach, the child-centered approach, and the hybrid approach. Until Balev, the parental intention approach dominated Canadian jurisprudence. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The hybrid approach is fact-bound, practical and unencumbered with rigid rules, formulas, or presumptions: Balev, at paragraphs 45-47.

In Balev, at para. 37, the Supreme Court of Canada held:

The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.

The Court endorsed a hybrid approach to determining a child’s habitual residence, which tasks the court with determining the “focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to the removal or retention”: Balev, at paras. 40-43.

The judge considers all of the child’s relevant links to and circumstances in country A, the circumstances of the child’s move from country A to country B, and the child’s links to and circumstances in country B: Balev, at para. 43. These considerations include the duration, regularity, conditions, and reasons for the child’s stay in the territory of a member state, and the child’s nationality.

The task of determining the children’s habitual residence is to consider how connected the children are to the jurisdictions involved, in this case both Florida and Ontario: K.F. v. J.F., NLCA 33, at para. 60. Such an inquiry must look at all relevant factors. Habitual residence is a question of fact. As set out in Bearisto v. Cook, 2018 NSCA 90, at paragraph 110, in relying on A.R. v. R.N. (2015), [2015] UKSC 35 (U.K.S.C.),

…It is the stability of the residence that is important, not its length or permanency…habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”

The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. However, the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: Balev, at para 45, also see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.”

            Thompson v. Thompson, 2022 ONSC 5474 (CanLII) at 59-65

“Any party seeking equitable relief in an action must be open to an examination of their own conduct and ethics throughout the relevant time period and transactions.”

            Calver v. Calver, 2019 ONSC 5418 (CanLII) at 56