Author: dawi

“To date the Superior Court of Justice has awarded monetary penalties against parties who are in breach of family court orders.

In each of Granofsky v. Lambersky, 2019 ONSC 3251, and Di Poce v. Di Poce, 2022 ONSC 2099, the courts relied on Rules 1(8) which provides that if a person fails to obey a court order, “the court may deal with that person’s breach by making any order that it considers necessary for a just determination of the matter.  Rule 1(8) then sets out a non-exhaustive list of enforcement remedies, including, on motion, contempt.

While the list of enforcement remedies do not expressly include the assessment of a monetary penalty for non-compliance with a court order (unless by motion for contempt which does provide for a monetary penalty), the court in these two decisions have in fact added a monetary penalty as part of the court order enforcement arsenal, without the need to bring a motion for contempt of court.

However, in Altman v. Altman, 2022 ONSC 4479, Faieta J. declined to impose a monetary penalty for breach of a family court order on the basis that ordering a monetary penalty payable to a party is expressly dealt with by Rule 31(5)(c) of the Family Law Rules as a remedy for contempt.  As noted by the Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, without deciding the issue, there are limits to the enforcement remedies a court can impose for non-compliance with court orders under r. 1(8) short of contempt.  Contempt, along with the sanctions that can be assessed for contempt, must be proven on the evidentiary standard of beyond a reasonable doubt.  Conversely, the remedies for non-compliance set out in Rule 1(8) must be proven on the lower threshold evidentiary standard of a balance of probabilities.”

          Nodder v. Wasserman, 2023 ONSC 6982 (CanLII) at 31-34

“A joint tenant has a prima facie right to partition or sale of land.  An exception is where the applicant has acted maliciously, oppressively or with a vexatious intent towards the respondent relating to the partition and sale issue itself (Silva v. Silva, (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 441).

The Applicant has proven that she is registered on title as a joint tenant.  The Respondent does not deny this.

Furthermore, there is no evidence that supports a finding that the Applicant has acted maliciously, oppressively or with a vexatious intent towards the Respondent as relates to the proposed partition and sale of the Property.

However, the Respondent asserts that placing the Applicant on title was gratuitous and therefore presumptively gives rise to a resulting trust in his favour.  He relies on Pecore v. Pecore, 2007 SCC 17 (CanLII).

A resulting trust arises when title to a property is in one party’s name, but that party is either a fiduciary holding it in trust for the transferor or gave no consideration for that property (Pecore, at para. 20).  If either situation is established, then it gives rise to a rebuttable presumption of a resulting trust (Pecore, at para. 22). As explained in Pecore, at paras 24-25, a rebuttable presumption of a resulting trust places the onus on the recipient or transferee to prove, on a balance of probabilities, that a gift was intended.

However, there is an exception to this general presumption of a resulting trust called a presumption of advancement. A presumption of advancement arises in two situations, one of which is a transfer between a husband and a wife (Pecore, at paras. 28).  The Respondent argues that since he and the Applicant were not married, therefore, this presumption of advancement does not apply.

I agree with the Respondent.  The Legislature had codified this presumption of advancement and did not include unmarried couples in s. 14 of the FLA.  This is in keeping with the exclusion of unmarried couples from the equalization and matrimonial home regimes under Parts I and II of the FLA.  It also codified the presumption of resulting trust in other situations under the same provision.”

            Hutton v. Wakely, 2023 ONSC 6964 (CanLII) at 40-46

“The Mother argues that for children under 3, parenting plans should be. incremental, slowly introducing longer periods of parenting time and monitoring the child’s adjustment to each step of the plan as new changes are implemented. She relies upon  Holtzhauer v. Murphy, 1996 CarswellOnt 1831 for the proposition, “nighttime in a strange bed and a strange place is a real vulnerability for a small child.”

However, the antiquated “tender years” principle no longer applies to determining the access schedule for a young child:   Botticelli v. Botticelli, 2009 ABQB at paras 15, 32 and 37.

As well, in this case the Father has been spending significant time bonding with the Child. The Child knows and loves him and there is no time required for the Child to get used to the Father as is required in some cases where there has been the complete absence of one parent in the child’s life.

In Holomey v. Hills, the Father sought overnights with the 18 month old child.  His current schedule included parenting time every other day, for two hours from 10: am to 12 pm. The Father faithfully availed himself of that time.  The Mother’s evidence was that the Father was a barely competent parent, that he had been abusive during the relationship and that she was still breastfeeding, so overnight access was not practical.  The Court stated that the Mother’s resistance to an increased schedule appeared to be punitive.  It also stated that breastfeeding is a factor, but one amongst many.  The Court cited caselaw stating that regular contact should exist between access parents and young children, which should include regular overnight visits. Holomey v. Hills, 2020 ONSC 6299, at paras 8-10, 13-14, 17-21.

In Cavannnah v. John, 2008 CarswellOnt 7455, the Mother claimed the Father could not have reasonable access with the parties’ 2 year old child because the child was breastfeeding. The court recognized that the importance of the child having a relationship with his father superseded the importance of a child continuing to breastfeed at his age.  The Court found that the father had shown patience with the mother’s desire to breastfeed the child, patience that restricted his time with the child.  The Court held that the mother was using breastfeeding as an excuse, and not considering the totality of the child’s needs when she restricted the Father’s access due to unclear and unspecific evidence about the benefits of breastfeeding.

See also S.D.G. v. D.K.N., [2017] B.C.J. No. 422 the court accepted the following statement regarding the importance of a young child bonding with both parents:

It is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened.  In the absence of such opportunities for regular interaction across a broad range of contexts, infant-parent relationships fail to develop and may instead weaken.

The evening and overnight periods (like extended days with nap times) with nonresidential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight period provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hours visits cannot provide.”

Kelly, Joan and Lam, Michael, “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children”, Family and Conciliation Courts Review, July 200, 4 of 14.

In my view, the fact that the Child is breastfeeding is only one consideration and should not be a bar to overnight parenting time for the Father if that is in the Child’s interests.”

Di Iorio v. Tropea, 2021 ONSC 8575 (CanLII) at 19-25

“All levels of government in Canada have issued health guidelines strongly urging people to become fully vaccinated – to protect themselves and to protect others in the community from contracting COVID-19. Vaccination is now the most important public health measure in fighting the pandemic. All levels of government have placed restrictions on the activities of persons who are unvaccinated to protect the general public – including requiring persons who work for the government to be fully vaccinated.

There is no question that the children are at a higher risk of contracting COVID-19 while in the father’s care because he is unvaccinated and that they have increased exposure to dangerous health consequences that can arise from contracting this virus.

In A.G. v. M.A., 2021 ONCJ 531, a mother sought to suspend the father’s in-person parenting time with their child because the father had only had a single vaccination. Following B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, (affirmed on appeal, 2021 ONSC 6294), Justice Robert Spence took judicial notice that the harm to a child flowing from contracting a vaccine-preventable disease may include death. He found that the father not being fully vaccinated increased his risk of infection for COVID-19 and potentially exposed his child to an increased risk of infection.

A.G. was followed by this court in L.S. v. M.A.F., 2021 ONCJ 554. The court will follow it again here.”

            S.W.-S. v. R.S., 2021 ONCJ 646 (CanLII) at 31-33

“The jurisprudence has provided a series of factors to be considered in determining whether or not to make a joint custody order, now termed a decision-making responsibility order, such as:

(a)   The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620(Ont. C.A.), at para. 11.

(b)   Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must consider the nature, extent and frequency of conflict. If conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate: see Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.).

(c)   One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation: see Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 15.

(d)   Where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436 and Fraser v. Fraser, 2016 ONSC 4720.

(e)   In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436.”

Zychla v. Chuhaniuk, 2022 ONSC 6884 (CanLII) at 33

“Rule 24(18) of the Family Law Rules, O. Reg. 114/99, allows the court to “make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees”.

The purpose of an award for interim disbursements is “to level the playing field to ensure that meritorious claims in the family law context are not abandoned or forfeited by those who lack financial resources and, as a result, are at a significant financial disadvantage relative to the other party in the proceeding”: Morton v. Morton, 2015 ONSC 4633 (Ont. S.C.J.), at para. 98.

Rule 24 evidences a less stringent approach in the family law context than is the case in public interest litigation. Consistent with the primary objective, r. 24 seeks to ensure the just determination of the issues between the parties, and recognizes that there may be circumstances where one party cannot afford to seek justice on meritorious claims given the disparity in financial resources available to that party: Morton, at para. 99.

On a motion seeking interim disbursements, the moving party must demonstrate:

a.   The interim disbursements for which an advance payment is requested are important to matters in issue in the proceeding as a whole;

b.   The disbursements are necessary and reasonable given the needs of the case and the funds available. If the disbursements are for payment of an expert, the moving party must demonstrate a clear need for the services of the expert;

c.   The moving party is incapable of funding the requested amounts;

d.   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 request for disbursements; and

e.   The imposition of the payment on the responding party will not cause undue hardship to the payor: Morton, para. 97, citing Stuart v. Stuart, [2001] O.J. No. 5172(Ont. S.C.J.), at paras. 7, 11-13.

It is no longer necessary to find exceptional circumstances to order interim disbursements under the Family Law Rules. The order is a discretionary one. The court must ensure the primary objective of fairness under the Family Law Rules is met: Ludmer v. Ludmer, 2012 ONSC 4478 (Ont. S.C.J.), at para. 15.

The court’s discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial — in other words, to level the playing field: Stuart, at para. 8; Ludmer, at para. 16.

An order for interim disbursements should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate: Stuart, para. 8; Ludmer, para. 16.”

            Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074 (CanLII) at 11-15

“Family Law Rules 18 and 24 are most pertinent to a costs determination. Rule 18 relates to offers to settle. Rule 24 lists the factors that a judge must consider when determining costs.

While these rules have not eliminated judicial discretion, they nonetheless circumscribe the broad discretion previously granted to the courts in setting costs: Jackson v. Mayerle (2016), 2016 ONSC 1556 (CanLII), 130 O.R. (3d) 683 at para. 19 (S.C.J.).

Rule 24(1) is the starting point in a costs analysis: Scipione v. Del Sordo, 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 at para. 18 (S.C.J.). It provides that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal. The presumption in Rule 24(1) can, however, be rebutted if the successful party has behaved unreasonably during the case or if success is divided: Wylie v. Leclair, 2003 CanLII 49737 (ON CA), [2003] O.J. No 1938, at para. 24 (C.A.).

Consequently, Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate: Arthur v. Arthur, [2019] O.J. No. 3494 at para. 14 (S.C.J.)

Justice Pazaratz wrote at paragraph 66 in Jackson v. Mayerle that, “[d]ivided success” does not necessarily mean “equal success.” And “some success” may not be enough to impact on costs.”

Justice D. Chappel articulated the court’s task at this point at paragraph 14 of Arthur v. Arthur:

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239 (CanLII), [2012] O.J. No. 1830 (O.C.J.))

Determining Success

Justice Pazaratz wrote the following about this process at paragraph 22 of Jackson v. Mayerle:

“To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made (Lawson v. Lawson, [2008] O.J. No. 1978, 2008 CanLII 23496 (S.C.J.)).

Therefore, to determine which of the parties has been successful or, if both were to some extent, I begin by comparing the order I made to the parties’ settlement offers.”

            MacGougan v. Bill, 2023 ONSC 6823 (CanLII) at 17-24

“The principles governing a bare trust are not in dispute.   They are set out in Rubner v. Bistricer, 2019 ONCA 733.

Those requirements are: (1) the parties have capacity; (2) there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; (3) the trustee must hold legal title to the trust property; and (4) the required formalities must be met.  The trustee holds the property without any active duties to perform other than to convey the trust property to the beneficiaries on demand.”

          Lokhandwala v. Khan, 2021 ONSC 7974 (CanLII) at 18-19

“The Mother is right to say that the lower courts were bound to apply the principle of the best interests of the child to the problem at hand and to do so from the child’s‑eye point of view. But she misconstrues, in my respectful view, how the Ontario legislature has directed courts to apply the best interests principle to the question of jurisdiction over children who are wrongfully retained in Ontario.

Section 19 sets the objectives for the law relating to decision‑making responsibility and parenting time in Part III of the CLRA, including applications for the return of wrongfully removed children to countries party to the Hague Convention (s. 46(2)) and non‑Hague Convention countries (s. 40). In addition to discouraging child abduction, the legislature seeks to ensure that the child’s best interests are paramount to the making of ultimate parenting orders and that parenting determinations be made in the place to which the child has the closest connection, barring exceptional circumstances.

The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests. The analysis of the jurisdictional questions contemplated in s. 40, including the risk of serious harm in s. 23, starts from this ordinary alignment of best interests and focuses on factors that would tend to establish, as an exception, serious harm if the child was returned. Contrary to the Mother’s position, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based best interests test as is conducted for a parenting order on the merits.

The approach advocated for by the Mother risks conflating decisions on jurisdiction with custody decisions on the merits and would encourage forum‑shopping in future cases. This would reduce these decisions, as Hourigan J.A. wrote in the Court of Appeal, “to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety” (2021 ONCA 614), 158 O.R. (3d) 481, at para. 79). Worse still, it would invite wrongful abductions to the province for the purpose of grounding jurisdiction there which, as Chamberland J.A. once wrote in a Quebec case, would encourage parents [translation] “to take the law into their own hands and go to another jurisdiction in the hope, whether conscious or not, that the courts there will be more receptive” (Droit de la famille — 3451, [1999] R.D.F. 641 (Que. C.A.), at p. 647, cited with approval in a non‑Hague Convention abduction case in Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849, at para. 46). While the trial judge did not find in this case that the Mother’s disinclination to return was itself the cause of serious harm, it bears recalling that, in both Hague and non‑Hague Convention settings, the courts recognize that a parent should not be allowed to create a situation that is potentially harmful to the child and then rely upon it to establish a risk of harm to the child (see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 91). Finally, the Mother’s characterization of UAE law as an inherent source of serious harm must be rejected. Expert evidence accepted by the trial judge led him to conclude that the best interests principle would apply to the ultimate custody decision before a UAE court. As Hourigan J.A. observed, “the rather provincial view that unless Ontario law is applied, children will suffer serious harm” could have the unwitting effect of turning Ontario into a haven for child abduction (para. 83; see also para. 136, per Brown J.A., concurring).

The trial judge was called upon to decide the fact‑specific, highly individualized question as to whether these two children would suffer serious harm if removed from Ontario. He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm. Based on expert evidence relating to the differences between Ontario and UAE law, the judge determined the best interests of the two children will be the paramount consideration for determining custody in a UAE court. In the absence of a reviewable error, his decision that the serious harm threshold was not met is entitled to deference, as explained by the majority of the Court of Appeal. The custody dispute — undecided here — should be resolved by the courts in the UAE, where the children have their closest connection.”

            F. v. N., 2022 SCC 51 (CanLII) at 7-11

“The assessment of witness credibility and reliability is not an exact science.  There are many considerations relevant to the weighing and assessment of these matters.  These include a consideration of the witness’s coherence and logic, corroborating testimony by other witnesses, and corroborating documentary evidence.  Other considerations include a witness’s willingness or disinclination to make admissions and the extent to which they are clear or evasive.  In addition, the witness’s relationship to one or both parties and whether the witness has a vested interest in the case are also relevant considerations: see for example, Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII), at para. 28.”

          Faizian v. Ashouri, 2023 ONSC 6703 (CanLII) at 16