Author: dawi

“Courts have repeatedly said that joint custody (when that terminology was used) requires “a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own differences behind those of the child’s best interests”: Giri v. Wentages, 2009 ONCA 606, at para. 10; see also Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.).

In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at paras. 11-12, the Court of Appeal stated:

[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.  On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.  There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. […]

[12] Insofar as the ability of the parties to set aside their personal differences and work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration.

In L.B. v. P.E., 2021 ONCJ 114, at paras. 95-97, the Court summarized the additional applicable case law as follows:

[95] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.

[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict.  A standard of perfection is not required and is obviously not achievable.  See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ).  The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

[97] Financially supporting one’s children in a responsible manner is an important part of being a parent.  The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests.  Jama v. Mohamed, 2015 ONCJ 619.

[98] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate.  Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents’ conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent.  Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a joint custody order can be a recipe for disaster.  It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.”

            T.P. v. A.E., 2021 ONSC 6022 (CanLII) at 131-133

“On the other hand, I am of the view that the CAS records are significantly more reliable. CAS records can be admitted as business records in some circumstances, even if the author is not called as a witness. Sears v. Corstine, 2020 ONSC 7968. How reliable those records are well be determined on whether the CAS records record something that was directly said by a witness, or whether they record second- or third-party opinions. O.G. v. A.M., 2022 ONSC 2478. Finally, CAS records are subject to more scrutiny in a case where the CAS is a party. The Children’s Aid Society of Carleton v. V.M., 2020 ONSC 221.”

          Lopatowski v. Lopatowski, 2024 ONSC 3833 (CanLII) at 48

“The principles for the creation of a new tort were discussed by this court in Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494. There, the trial judge had recognized the new tort of harassment. This court cautioned that common law change is evolutionary. It happens slowly and significant change is best left to the legislature. At paras. 20-21:

Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically, as McLachlin J. explained in Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, [1989] S.C.J. No. 94, at p. 760 S.C.R.:

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.

When remedies already exist, a new tort is not required. As stated in Merrifield, “legal remedies [are] available to redress conduct that is alleged to constitute [the new tort.]. The tort of [intentional infliction of emotional distress] is one of these remedies…” (at para. 42).

A new tort is not required when the only difference from established torts is the quantum of damages. In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, the court explained, at para. 27, that the tort of sexual battery was not necessary because the harms suffered by the plaintiff were addressed by the established tort of battery and the sexual component only went to damages.

Merrifield left open the possibility that there could be a situation arising where existing torts do not address the impugned conduct. This is what occurred in Caplan v. Atas, 2021 ONSC 670, where the tort of internet harassment was recognized. Corbett J. concluded that existing torts did not adequately respond to the extraordinary behaviour before him. The conduct spanned over 20 years and went beyond the bounds of decency and tolerance. Yet, the plaintiff had not established injury, so intentional infliction of emotional distress was not available. At paras. 168-170, he explained:

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.

…

The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. …

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.

          Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII) at 50-53

“The Court of Appeal has repeatedly cautioned against granting motions for partial summary judgment where there is a risk of re-litigation of issues and inconsistent outcomes: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at paras. 33-35.  The Court of Appeal has ruled that courts should only grant partial summary judgment “in the clearest of cases”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 26-29; Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497, at para. 17.”

          Docherty v. Catherwood, 2024 ONSC 3824 (CanLII) at 78

“Consequently, unless the parties agree explicitly, impliedly or by the acquiescence of one parent in favour of the other, or a court orders otherwise, separated parents remain equally entitled to participate in and make fundamental decisions about their children’s education and religion. (CLRA, s. 20(4))

While such a statement is not made expressly in the Divorce Act, I find that it applies there equally because, until a court makes an order thereunder, some regime must exist for the making of significant decisions about the children of separated and divorcing or divorced parents. A test based on the principle specifically enumerated in s. 20(4) of the CLRA seems the most logical to apply.”

          Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII) at 37-38

“Sharon claims retroactive spousal support from the date of separation. This amount, on a net of tax basis, Sharon proposes be in the sum of $547,899.50.

Sharon relies on the decision of this Court in Bensky v Bensky, 2012 ONSC 4029 to advance her claim for retroactive support. In Bensky, the Court held:

The obligation to pay support commences from the date of separation. On an interim motion, the court may provide retroactive support to compensate for any deficit. The factors to be considered are the reasonableness of any delay in seeking support, the conduct of the payor, the circumstances of the payee spouse and hardship occasioned by a retroactive award (at para. 32)

Based on the record before me, I do not find that there has been undue delay on the part of Sharon in bringing her claim for support. On the other hand, considering James’ voluntary non characterized monthly payments of $10,000.00 since separation together with the Marriage Contract and the circumstances in which it was signed by Sharon, I cannot attribute blame to James in not voluntarily agreeing to pay spousal support apart from the agreed $100,000 lump sum settlement. I also note that in note that in neither of the cases upon which Sharon relies to advance her claim for retroactive spousal support was the Court faced with an agreement limiting support.

While I acknowledge that Courts have indeed awarded retroactive support on the interim motions, in this instance, I prefer to follow those cases that defer the issue of retroactive support to the trial judge: See for example, Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273; Brandl v. Rolston, 2012 BCSC 902; Ryan v. Ryan, 2018 ONSC 6468. By definition, interim motions are designed to put in place temporary measures pending settlement or trial. Interim motions are not meant to determine the ultimate issues and they should not because the Court generally has an incomplete and often contradictory record before it without the benefit of cross-examination.”

            Hutton v. Hutton, 2022 ONSC 3918 (CanLII) at 87-90

“Section 15.1 of the Divorce Act states:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Section 1(d) of the Child Support Guidelines states that the objectives of the guidelines are:

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

Pursuant to section 16 of the Child Support Guidelines, the starting point in determining income for support purposes is the payor’s line 150 of their Income Tax Return.

The Child Support Guidelines provide for different methods of determining income when the starting point is not the “fairest determination of that income” (Section 17 of the Child Support Guidelines), does “not fairly reflect all the money available to the parent or spouse” (Section 18 of the Child Support Guidelines) or when a court “imputes such amount of income to a spouse as it considers appropriate (Section 19 of the Child Support Guidelines).”

            E.B. v. G.B.-M., 2024 ONSC 3475 (CanLII) at 272-275

“N. began to attend university in person in the fall of 2021.  That September, he began to live in St. Catherines for eight months of the year.  As a result, Mr. Niro moved to vary the child support for N. based on decisions such as Coghill v. Coghill, 2006 CanLII 28734 (Ont. S.C.) and Liscio v. Avram, 2009 CanLII 43640 (Ont. S.C.).  The approach in those cases was summarized by Price J. in Liscio, at para. 36:

The proper approach, in these circumstances, is the one taken by this Court in Coghill v. Coghill, at paras. 44 to 53. In that case, Justice Wright calculated the child’s expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, apportioned the net expenses between the parents in proportion to their respective incomes and required them to pay their respective shares directly to the child. He then calculated the table amount of the non-residential parent’s obligation to pay child support for the four summer months, when the child was living with the residential parent, as if the child were a minor, based on the income imputed to the non-residential parent and required him to pay that amount to the residential parent. [Citations omitted.]”

            Craig v. Niro, 2023 ONSC 3792 (CanLII) at 6

“I do not agree with the motion judge’s conclusion that a cohabitation agreement does not apply to the parties after a separation followed by reconciliation unless the agreement expressly provides to the contrary.

It is well-established that, at common law, a separation agreement becomes void upon reconciliation of the parties, subject to any clause in the separation agreement overriding the common law rule or which would imply that the intent of the parties was that terms of the separation agreement would be carried out notwithstanding any subsequent reconciliation: see Ernikos v. Ernikos, 2017 ONCA 347, at para. 11; Sydor v. Sydor (2003), 2003 CanLII 17626 (ON CA), 178 O.A.C. 155 (C.A.), para. 22; Bailey v. Bailey (1982), 1982 CanLII 1760 (ON CA), 37 O.R. (2d) 117 (C.A); Bebenek v. Bebenek (1979), 1979 CanLII 1861 (ON CA), 24 O.R. (2d) 385 (C.A.).

I would not extend the common law rule to cohabitation agreements.

The common law rule is ancient. In Nicol v. Nicol (1885), 30 Ch. D. 143, at p. 145, North J. of the Chancery Division explained the rationale for the common law rule that reconciliation brings a separation agreement to an end:

I think it clearly established by numerous authorities (no case in any way conflicting with them), that where a separation arrangement is made pure and simple, that arrangement is for the term of the separation, and for no longer. It comes to an end when the separation ends, not because the fact of reconciliation or recohabitation makes it void, but it dies a natural death. The agreement was to provide for a state of things which has come to an end, the state of things being that the parties were living separate although married. When they live together again as man and wife the state of things is totally different, and the arrangement comes to an end.

The rule was not absolute and depended on an interpretation of the parties’ intentions, as evinced by the whole of the agreement. For example, where a separation agreement had separation for one of its objects but also other matters within its purview, such as settlement of property issues, those aspects of the agreement may continue despite a return to cohabitation. As described by Montague Lush and Walter Hussey Griffith in Law of Husband and Wife within the Jurisdiction of the King’s Bench & Chancery Divisions, 3rd ed. (London: Stevens and Sons, Limited, 1910), at pp. 461-463:

[I]t is a well-established principle of law that a separation deed properly so called—i.e., a separation deed whose only object is to provide for the parties living apart from one another—is ipso facto put an end to for all future purposes if the parties subsequently become reconciled and return to cohabitation.

This principle is too well known and too plain to require observation. For the very nature and object of the instrument is to provide for a state of circumstances which comes to an end on a cesser of the separation.

…

But a separation deed the primary object of which is to provide for the parties living apart may have also a secondary object—viz., that of effecting a permanent settlement of property to continue not only during the separation but in any event.

…

The question whether a deed is a separation deed which will be avoided upon a return to cohabitation or a post-nuptial settlement which will continue valid notwithstanding a return to cohabitation turns upon the intention of the parties to be gathered from the terms of the deed. [Emphasis added. Internal citations omitted.]

The common law rule dates from a time when views about marriage, cohabitation, separation, and divorce were very different. At one time, separation agreements were considered “contrary to public policy.” To cohabit without the benefit of marriage was “to live in sin.” The courts of equity would not enforce an executory separation agreement, i.e. one entered before the separation, though in contemplation of a future separation. Cohabitation for even a short time after execution of the agreement rendered the deed of separation void: see Law of Husband and Wife, at p. 457.

Today, marriage contracts, cohabitation agreements, and separation agreements are all part of the legislative landscape: Family Law Act, R.S.O. 1990, c. F.3, ss. 52–54. Parties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.

Notwithstanding the sea change in family law over the past century, the common law reconciliation rule remains a part of Canadian common law and continues to make some sense. Where the raison d’être of the agreement is separation and parties reconcile, the foundation for the separation agreement dissolves. I see no basis to extend this logic so as to void a cohabitation agreement following reconciliation of the parties. Under such circumstances, the reconciled parties have returned to the very state contemplated by the cohabitation agreement.

In Langdon v. Langdon, 2015 MBQB 153, 321 Man. R. (2d) 52, Little J. remarked, in obiter, that he was “far from certain” that reconciliation should affect a cohabitation agreement in the same manner as a separation agreement. He explained, at paras. 138-140:

I do not think it a proper inference or presumption to say that a resumption of cohabitation nullifies [a cohabitation agreement] concerning a property and support regime. Renewed cohabitation in that context is more reflective of an intention to return to a relationship where one’s rights were formerly delineated by the agreement. It does not seem to me to be at all reflective of an intention to enhance one party’s rights or to impose greater obligations on the other, something that will inevitably result when the cohabitation agreement no longer exists.

It seems to me that if there is to be an inference or a presumption at all it ought to be (barring other evidence of intention) that the resumption of cohabitation returns you to the position you held in the relationship to which you have now chosen to return. Presuming the termination of the cohabitation agreement on resumption of cohabitation could lead to strategic separations and reconciliations designed to nullify cohabitation agreements. It also results in a policy requiring redocumentation on resumption of cohabitation.

I do not regard the first as good policy; the second is impracticable and is not in keeping with the way people typically lead their lives.

I agree with the views expressed in these passages, although I would not go so far as to say there is a presumption in favour of the cohabitation agreement’s continued validity following reconciliation. The applicability of a cohabitation agreement to the circumstances of the parties will depend on the interpretation of that agreement and the light it sheds on the intentions of the parties.”

          Krebs v. Cote, 2021 ONCA 657 (CanLII) at 13-22

“In F.S. v. N.J. and T.S., 2024 ONCJ 199, [2024] O.J. No. 1792, Sherr J. summarized the current state of grandparent contact following a recent decision of the Ontario Court of Appeal.

I agree (and adopt) Sherr J.’s interpretation of the law, as follows:

[68] Grandparents do not have a legal right of contact with their grandchildren. The onus is on the grandparents to show contact is in the children’s best interests. The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child. See: Chapman v. Chapman, 2001 CanLII 24015 (ONCA).

[69] It is always important to defer to the decisions of parents regarding their children. However, deference is only accorded when those decisions are reasonable, and they are acting in the child’s bests interests. See: McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.

[70] In Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ), the court reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

One: Does a positive grandparent-grandchild relationship already exist?

Two: Does the parent’s decision imperil this relationship?

Three: Has the parent acted arbitrarily?

[71] The Ontario Court of Appeal in B.F. v. A.N., 2024 ONCA 94 set out that there is now a two-part test to determine contact cases. The three questions posed in Giansante are now the first part of the test to determine if the court will defer to the parent’s wishes.

[72] The court in B.F. stated that if the court determines it will not defer to the parent’s wishes, the second part of the test requires a best interests analysis taking into account many factors, including the following: the nature and strength of the child’s relationship with the grandparent and the history of the child’s care; the child’s needs, her special needs; the grandparent’s willingness and ability to meet the child’s needs; their willingness and ability to co-operate with the child’s parent and other caregivers; the child’s cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child.

[73] In Capone v. Pirri, 2018 ONSC 6541, the court considered that to be a positive relationship, there must exist something more than an occasional pleasant experience with the child. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties, deserving of preservation in order to displace the principle of parental autonomy. The court held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one”.

[74] In Torabi v. Patterson, 2016 ONCJ 210, Justice Marvin Kurz set out the following factors in determining whether the court should defer to the parent’s decision:

1. 1. 1. 1. 1. 1. 1. There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
                  2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
                  3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
                  4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.

[75] Acting arbitrarily, under the test set out in Giansante, means to make decisions about contact that are based on considerations other than the best interests of the child. As stated in that case, “this is consistent with section 24(1) of the Act which provides that decisions about access must be based on the best interests of the child.” See: Giansante, paragraph 27.

[76] The determination of whether the parent is acting reasonably in denying contact must be approached from the standpoint of the child’s best interests. See: Arbuzova, supra, par. 26.

[77] In Simmons v. Simmons, 2016 CarswellNS 1017 (NSCA), the court wrote at paragraph 41:

In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5.

[78] In Ninkovic v. Utjesinovic, 2019 ONSC 558, Justice Lene Madsen drew a parallel with the unavailability of a parent who was in jail to a child having lost a parent, in assessing whether the court should defer to a parent’s decision not to permit contact.

[79] Justice Madsen also set out the following factors to consider in engaging with the best interests analysis in the second part of the test at paragraphs 72 to 74 of her decision in Ninkovic:

In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.

See also MacDonald v. MacDonald, CanLII 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.

A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.”

          Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896 (CanLII) at 142-143