Author: dawi

“This Court has an inherent jurisdiction to set aside or change an order to prevent a miscarriage of justice: Neathery v. Cottle, 2012 ONSC 3403.  This is consistent with the primary objective of the Family Law Rules – to enable the Court to deal with cases justly.

It seems to me that the test to re-open this motion should be the same as the test to re-open a trial.  First, would the evidence, if presented at the motion, probably have changed the result?  Second, could the evidence have been obtained before the motion by the exercise of reasonable diligence?: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983.”

            Bors v. Bors, 2019 ONSC 1230 (CanLII) at 10-11

“Disagreements between parents about vaccinating children against COVID-19 have been considered by many courts of first instance.

Within limits, I can take judicial notice of some facts related to the issue. I think that I can go as far as to say the following:

a.   SARS-CoVi-2 has a low mortality rate, especially in children.

b.   The authorized vaccines are generally safe and have a low risk of harmful side effects, especially in children.

c.   The vaccines do not prevent infection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.

In the absence of evidence of any particular vulnerability, whether to the virus or to the vaccine, I would defer to the party who has decision-making authority. I do not think that whether to vaccinate a 12-year-old against COVID-19 is a question that justifies intervention by the court where decision-making authority has already been allocated.

Depending on the child, the question may be determined without reference to parental authority, as it was here in the case of Gabriel. He arranged his own vaccination. The Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A provides:

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.

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a)  he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b)  he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

15 (1) A person may be incapable with respect to some treatments and capable with respect to others.”

Warren v. Charlton, 2022 ONSC 1088 (CanLII) at 8-11

“We disagree with Mr. Merdad’s submission that all property claims between spouses or former spouses must necessarily be equalization claims. And it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct.

The FLA equalization provisions do not deal with property, per se, but, rather, with the equitable calculation, division, and distribution of the value of net family property. Here, Ms. Bakhsh brings forward an equitable trust claim and not a claim for equalization of the value of the parties’ net family property. A claim of ownership is distinct from a claim for a share in property value; an equitable trust claim addresses the former and the equalization regime of the FLA covers only the latter: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 59.

The equalization provisions of the FLA also do not preclude an equitable trust claim respecting property. Section 10(1) of the FLA expressly permits a court application for a determination between spouses or former spouses “as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties” and the court may “declare the ownership or right to possession”, as the respondent has claimed, among other remedies. Importantly, the two-year limitation period in s. 7(3)(a) of the FLA applies only to an application based on subsections 5(1) or (2) and not to the determination of a question of ownership between spouses set out in s. 10(1) of that Act.

The appellant’s reliance on the Supreme Court of Canada’s decision in Rawluk v. Rawluk, [1990] 1 S.C.R. 70, is, respectfully, misplaced. Rather, it supports Ms. Bakhsh’s position.

At issue in Rawluk was whether the doctrine of constructive trust could be applied to determine the ownership of assets of married spouses under the provisions of the FLA or whether the remedy was abolished and superseded by the equalization of matrimonial property and other provisions under the FLA. Mrs. Rawluk claimed a one-half interest in the matrimonial property by way of a remedial constructive trust.

The Supreme Court in Rawluk confirmed that the FLA incorporated the constructive trust remedy that could be used in the matrimonial property context to allocate proprietary interests and that the FLA did not constitute an exclusive code for determining the ownership of matrimonial property: at pp. 89-91, 93 and 97. While the doctrine of constructive trust can be used to settle questions of ownership for the purpose of determining the net family property of each spouse, this function is “totally distinct from the process of determining how the value of matrimonial property should be distributed under the equalization process”: at p. 93.”

          Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 14-19

“[in A.C.V.P. v. A.M.T., 2019 ONSC 1559, Justice Gordon discussed the importance status quo, a factor relevant to my analysis as well:

258      Status quo is always a relevant consideration, perhaps less so with the passage of time. Parents are presumed to have equal status and neither has the right to make unilateral changes, absent special circumstances, agreement or court order. See: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.J.). A.C.V.P. did act unilaterally at the time of separation and commencement of litigation. The circumstances had not changed prior to these events. But he was successful in obtaining the initial court order for custody in November 2014.

259      Status quo is neither a rigid concept nor a short term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey (1990), 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (Sask. Q.B.); Sodhi v. Sodhi, 2002 CarswellOnt 1050 (Ont. C.A.)], 2002 CanLII 41503; Izyuk v. Bilousov, 2011 ONSC 6451 (Ont. S.C.J.); Gebert v. Wilson, 2015 SKCA 139 (Sask. C.A.); and K.R. v. J.K., 2018 SKCA 35 (Sask. C.A.).

260      Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6^th) 229 (Ont. S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.

261      During the relationship, the family resided together in the matrimonial home. Each parent had child care duties. A.M.T., however, was the primary parent in day to day matters, arranging health care and activities and in homeschooling. The role of A.C.V.P. was secondary given his employment, providing child care subject to availability.

262      The situation changed on separation. From May to November 2014, A.C.V.P.’s role diminished. He became an access parent with limited child care responsibilities. A further change, dramatic in nature, occurred in November 2014. A.C.V.P. became the primary parent by court order. A.M.T.’s role was reduced significantly, now only seeing the children on a limited basis.

263      The passage of time, despite being unnecessary and unreasonable, must be considered from the children’s perspective. Both parties are responsible for the delay. In this regard, I am not persuaded the status quo during the relationship is determinative. Nor do I conclude a new status quo was created. Nevertheless, the four plus years in the care of A.C.V.P. is a factor under section 24 (2) (c).”

            D.D. and F.D. v. H.G., 2020 ONSC 889 (CanLII) at 510

“The applicant referred to the decision of D’Amico v. D’Amico, 2011 ONSC where the Court treated a deposit payment made by the husband before the date of marriage for the purchase of their matrimonial home as a credit to him on the date of marriage.

However, the Ontario Court of Appeal in Michalofsky v. Michalofsky (1992), 1992 CanLII 14023 (ON CA), 39 R.F.L. (3d) 356 (Ont. C.A.) confirmed that a spouse was not entitled to deduct the $17,000 she contributed before her marriage to the cost of a dwelling that became their matrimonial home after marriage. The Court affirmed the decision of Saunders J in the Divisional Court (1989) 1989 CanLII 8766 (ON SCDC), 25 R.F.L. (3d) 316 who held that the monies paid was an investment in the property that was the matrimonial home at the time of separation and as such was not deductible in calculating her net family property.

The Court in D’Amico did not appear to have been referred to this decision or the law that the payment in effect meant that the husband had an equitable interest in the matrimonial home. In addition there is an issue that need not be decided of whether the respondent wife because of the joint purchase of the matrimonial home also had an equitable interest in it to the extent of that deposit paid to the vendor/builder.

Accordingly, based on the binding decision of Michalofsky and given the circumstances of this case, the deposit funds of $18,393 paid by the applicant do not constitute property owned by him other than the matrimonial home on the date of marriage and are not to be deducted from his family property on the date of separation.”

          Zheng v. Xu, 2019 ONSC 865 (CanLII) at 23-26

“Under s. 21(1) of the CLRA “A parent of a child or any other person” can apply for access to a child.  Mr. McKenzie as a stepparent to Onyx qualifies as “any other person”.

In this case, the issue involves the doctrine of “parental autonomy”.  The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren.  Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship.  She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.

The ratio of this decision has been summed up in several cases (see Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.)) as an inquiry as to the following questions:

a.   Is there a positive relationship between the Respondent and the child?

b.   If there is a positive relationship, has the parents’ decision imperiled that relationship?

c.   Has the parent acted arbitrarily?

In the present case, the Respondent is now enjoying overnight access to his natural child, Bronx.  There is no question that the decision to differentiate Onyx’s access from Bronx’s was a decision made by the Applicant.  The real issue is whether there is a positive relationship between Mr. McKenzie and Onyx, and whether the mother’s position was arbitrary in nature or with a view to preserving the best interests of the child.

It is to be noted as well that there is authority that the parental autonomy argument may fail where the access seeker has had a “settled intention” to treat the child as his or her own.  In Agmon v. James, [2018] O.J. No. 59 (C.J.), Sherr J. gave access to a stepmother over the parents’ objections.  At para. 58, he stated that “the court finds that the [parental autonomy] line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family.  Their status is different than family or community members who have not formed the requisite settled intention.”  This decision was cited with approval (although not followed) by Boswell J. in Laye v. Brisebois, 2020 ONSC 4439.

In making his determination regarding parental autonomy, Sherr J. relied upon s. 62(3)(b) of the CLRA which requires any person demonstrating a settled intention to treat the child as a member of his or her own family to be named as a party to custody proceedings.  Parties who can demonstrate settled intention enjoy a status beyond that of a person having a relationship with the child which does not meet the “settled intention” test such as a relative or grandparent.

Finally, it is to be noted that, in examining the provisions concerning best interests of a child as set out in s. 24(2) of the CLRA, only one of those criteria is related to the blood relationship between the party and the child.”

          Ball v. McKenzie, 2021 ONSC 1150 (CanLII) at 12-18

“The father retained his present counsel last fall, after being represented by what I have been told was seven previous lawyers. In late September 2021, the father, through his current counsel, booked a long motion, returnable March 28, 2022. That motion was ostensibly intended to deal with parenting arrangements. I use the term “ostensibly” because the father has yet to serve a notice of motion on Ms. Thomas in the almost five months since booking the motion. That failure violates the requirements of the Central West Notice to the Profession Regarding Long Motions.

That Notice to the Profession requires a moving party who has secured a long motion hearing date from the court to “serve the Notice of Motion and motion materials forthwith on all parties with an interest in the long motion.” [Emphasis added]. The Notice to the Profession further clarifies the meaning of the term “forthwith” as being ten days. It states that “[p]roof of Service of the Notice of Motion and Motion Record must be filed within 10 days from the date the long motion date is obtained from the Trial Coordinator’s Office. Subject to an order from a judge, failure to do so will result in the long motion hearing date being vacated.” No such order has been requested or obtained.

I add that the ten-day requirement is set out in the Family Motions Information for Central West, which is posted in the SCJ website. It states that for long motions in the Milton Superior Court, the “Notice of Motion, with payment, must be filed within 10 days of booking the long motion with the Trial Coordinator’s office”.

Further, the Notice to the Profession Regarding Long Motions requires:

After the motion materials have been served on all interested parties, all counsel and the litigants must agree in writing upon a timetabling schedule for completion of all steps necessary for the long motion to proceed on the scheduled date.

Counsel and litigants must file the written timetable scheduling agreement along with their Confirmation Sheet.

This too has not occurred. The failure to obey the Notice should have led to the long motion booking being cancelled.”

          Thomas v. Wohleber, 2022 ONSC 1258 (CanLII) at 8-12

“However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.

That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog: King v. Mann, 2020 ONSC 108, at para. 71; Warnica v. Gering, [2004] O.J. No. 5396, at paras. 25-28. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership. Although Warnica was upheld on appeal, the appeal was focussed primarily on whether the hearing judge was entitled to decide the case based on written materials filed during a case conference or whether a trial was needed: 2005 CanLII 30838 (ON CA), [2005] O.J. No. 3655 (C.A.).

The broader, more contemporary approach looks at the relationship between the parties and the dog. This approach has been adopted in many (but not all) Small Claims Court decisions, which is where these claims are frequently heard given their relatively modest monetary value. The principles are well summarized by Adjudicator W.A. Richardson in MacDonald v. Pearl, 2017 NSSM 5, at para. 25:

a.   Animals (including dogs) are considered in law to be personal property;

b.   Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c.   Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;

d.   Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i.   Whether the animal was owned or possessed by one of the people before their relationship began;

ii.   Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii.   The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv.    Who purchased and/or raised the animal;

v.   Who exercised care and control of the animal;

vi.   Who bore the burden of the care and comfort of the animal;

vii.  Who paid for the expenses related to the animal’s upkeep;

viii.  Whether at any point the animal was gifted by the original owner to the other person;

ix.    What happened to the animal after the relationship between the litigants changed; and

x.   Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

That list is not exhaustive; depending on the case, there may be other relevant factors.

In recent years this broader approach has continued to find favour in various courts: Eggberry v. Horn et al., 2018 BCCRT 224, at para. 31; Oh v. City of Coquitlam, 2018 BCSC 986, at paras. 50-53; Delloch v. Piche, 2019 BCPC 369, at paras. 19-24; and Almaas v. Wheeler, 2020 BCPC 51, at paras. 6-18 and 63-74.

Those two competing approaches collided in a case that was heard by three successive courts in Newfoundland: Baker v. Harmina, 2018 NLCA 15. Only one dog was in issue there. The trial judge, hearing the matter in Small Claims Court, took the narrow approach, and granted ownership to Mr. Baker, because he paid for the dog.”

          Coates v. Dickson, 2021 ONSC 992 (CanLII) at 6-11

“I have considered the best interest factors set out in ss. 24 and 39.4(3) CLRA. While it has long been established that the best interest considerations as set out in the CLRA is not an exhaustive list, the considerations provide significant guidance in this case.

While considering factors set out in the legislation, the court is required to take a holistic look at the child, their needs, and the people around them: see Phillips v. Phillips, 2021 CanLII ONSC 2480, at para. 47.

At para. 17, in Reeves v. Brand, 2018 ONCA 263, Laskin J.A. wrote:

17     Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

With the recent amendments to the CLRA, a more detailed procedural and substantive structure has been established to govern relocation cases. Even with these amendments, the challenges recognized in Reeves remain. See Zorab v. Zourob, 2021 ONSC 6552, at para. 4.”

          Lepine-Maynard v. Majstrorovic, 2022 ONSC 656 (CanLII) at 205-208

“Compensatory support is based on the roles of the spouses during the relationship; specifically where the recipient has lost career advantages in order to support the other spouses’ career or the children.

The legal considerations for the entitlement to compensatory support was reviewed by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500 (CanLII), at paras. 55-59.

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experience throughout the relationship as a result of the marital union.

Compensatory support ought not to be varied (unless there is an inability to pay) since it will have been awarded to recognize the length of the marriage and the roles adopted throughout the marriage. These factors are retrospective.”

         S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 37-41