Author: dawi

“The Hague Convention sets out the rules that apply to the parental abduction of a child across international borders and seeks to remedy the serious harms caused by international child abduction: Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 23-24. The Hague Convention is aimed at enforcing custody rights and securing the prompt return of children to their country of habitual residence.

Articles 3 and 4 of the Hague Convention require the Applicant/Mother to satisfy three conditions prior to me ordering the mandatory return of the child, namely, that:

a.   the child was habitually resident in a contracting state immediately before any breach of custody or access rights;

b.   she has custody rights to the child; and

c.   the child was wrongfully removed or retained.

If those 3 conditions are satisfied, Article 12 of the Convention mandates an order for the return of the child forthwith to the place of his or her habitual residence (save for the enumerated and narrow exceptions that are not applicable on the facts of this case).

While “habitual residence” is the sole connecting factor triggering the child’s return, the term is not defined in the Convention. The Supreme Court of Canada in Office of the Children’s Lawyer v. Balev and Baggott, 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398, held that “habitual residence” should be determined through a hybrid approach that considers “all relevant considerations” including but not limited to the parents’ intentions and the child’s interests: Balev, para. 42. The judge must determine the focal point of the child’s family and social environment immediately prior to the removal:” Balev, paras. 43 and 67. Indeed, the Court cautioned against “over-reliance” on parental intention.

The Court of Appeal for Ontario recently had an opportunity to weigh in on the proper interpretation and application of Balev in Ludwig v. Ludwig, 2019 ONCA 680. The Court of Appeal endorsed a two-step approach to determining habitual residence: first, the Court must determine the date of alleged wrongful removal; then, it must go on to consider where the child was habitually resident immediately before the date of the alleged wrongful removal.

In Ludwig, the Court of Appeal reiterated that Court may consider a variety of factors when determining habitual residence, such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on.  The Court of Appeal emphasized that there is no one dominating factor and the judge must consider the “entirety” of the child’s situation.”

            Miklendova v. Kadlcik, 2021 ONSC 577 (CanLII) at 22-27

“Where a litigant lacks mental capacity, the Court may designate them a special party and appoint the OPGT as his or her representative.  The cases recognize that the definition of a “special party” under the FLRs is broader than that of a party “under disability” pursuant to Rule 7 of the Rules of Civil Procedure Zabawskyj v. Zabawskyj, 2007 CanLII 51349 (SCJ), para. 13.

Rule 2(1) of the FLRs provides that a “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection or child support case.

If there is no appropriate person willing to represent a special party, rule 4(3) provides that the Court may authorize the Office of the Children’s Lawyer or the OPGT to act as representative, but only with that official’s consent.

Section 6 of the Substitute Decisions Act, 1992, defines “incapacity” as a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In Constantino v. Constantino, 2016 ONSC 7229, at paras. 36-37, Price J. confirms that the appointment of a litigation guardian is meant to protect not only the person suffering from a disability but the integrity of the judicial process for all participants in the litigation, including the Court.

When incapacity if raised as a concern, it must be proven by a moving party on a balance of probabilities: Constantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309.

The test for incapacity is an objective test. Capacity must be determined on the basis of “the evidentiary record, not subjective assessments.”: Chai v. Law, 2020 ONSC 6998, paras. 33-38.

The concept of mental incapacity under the Substitute Decisions Act, 1992, is “quite broad”.  The question is whether the person is able to understand information that is relevant to making a decision in the management of his/her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  On the basis of that definition, a “special party” is “a person who is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue”: Zabawskyj, para. 13; Chai, paras. 33-38.

In Costantino v. Costantino, Price J. noted, at para. 40, that “[t]he test for appointment of a litigation guardian is a functional one.  It relates to the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation.”

As set out in Y.S. v. J.Y., 2021 ONSC 5736, at para. 16 and Constantino, at para 57, the following factors should be considered when determining whether a party is under disability and requires a litigation guardian:

a.   A person’s ability to know or understand the minimum choices or decisions required and to make them;

b.   An appreciation of the consequences and effects of his or her choices or decisions;

c.   An appreciation of the nature of the proceedings;

d.   A person’s inability to choose and keep counsel;

e.   A person’s inability to represent him or herself;

f.   A person’s inability to distinguish between relevant and irrelevant issues; and,

g.   A person’s mistaken beliefs regarding the law or court procedures.”

Liddell-MacInnis v. MacInnis, 2023 ONSC 513 (CanLII) at 5-14

“In Kerr v. Baranow, 2011 SCC 10, at para. 87, Cromwell J. explained that when parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.  Obviously, in order to apply this approach, it is necessary to first determine whether the parties have, in fact, been engaged in a joint family venture.

Cohabiting couples are not a homogenous group.  The analysis must take into account the unique circumstances of each particular relationship. There is no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives.  A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.  The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so: Kerr v. Baranow at para. 88.

Cromwell J. directed trial judges undertaking this analysis to consider the evidence under four main headings:  mutual effort, economic integration, actual intent and priority of the family.  Cromwell J. further observed that there is inevitably overlap among factors that may be relevant under these headings and that there is no closed list of relevant factors: Kerr v. Baranow at para. 89.”

            Hurdon v. Crooks, 2023 ONSC 481 (CanLII) at 54-56

“Essentially, in asking for the net proceeds of sale, less $200,000, to be held in trust, Mr. Zadeh seeks a preservation order. Section 12 of the Family Law Act provides that if the court considers it necessary for the protection of the other’s spouse’s interest under this Part, the court may make an interim or final order a) restraining the depletion of a spouse’s property; and b) for the possession, delivering up, safekeeping and preservation of the property.

If a spouse resists the release of funds under s. 12 of the Family Law Act, where title to a property is held in the name of both spouses, that spouse has the onus to show why a preservation order should be made: Godfrey v. Godfrey, 2019 ONSC 3093, at para. 15. Again, in this case, Ms. Zadeh is the sole legal owner of the matrimonial home and is presumptively entitled to 100% of the proceeds, but agrees to hold 50% of the net proceeds in trust until Mr. Zamani’s claims can be heard at trial.

The test the Court applies in determining whether to grant a preservation order was set out in Price v. Price, 2016 ONSC 728, as follows:

a.    The onus lies on the party asserting that a preservation order is necessary to protect his or her interests under Part I of the FLA, or that his or her claim for support under Part III of the Act would be impaired or defeated unless a preservation order was made, to demonstrate that on the balance of probabilities.

b.    The standard that the court should apply is not the high threshold required for the granting of a Mareva injunction.

c.    Different decisions apply different standards.  Some consider whether there is “a real risk that assets could be dissipated before the equalization claim is determined”: Davis v. Tangredi, 2006 CanLII 44269 (ONSC), at para. 23; others suggest that an order should be made “out of an abundance of caution”: Barbini v. Edwards, 2014 ONSC 6762, at para. 91. The correct standard is the same one to be applied when determining whether to grant an interim injunction:

 i.     Is there a serious issue to be tried?

 ii.     Will the moving party suffer irreparable harm if relief is not granted? And

 iii.      Which party will suffer the greater harm from granting or refusing the remedy pending a decision of the merits?”

          Zadeh v. Zamani, 2023 ONSC 522 (CanLII) at 36-38

“Section 53(2) of the Family Law Act provides that regardless of whether contemplated at the time, when parties to a cohabitation agreement marry, the agreement shall be deemed to be a marriage contract.

Per section 56(4):

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract: Hartshorne v. Hartshorne, 2004 CarswellBC 603 (S.C.C.)

It is desirable that parties settle their own affairs: Farquar v. Farquar (1983), 35 R.F.L. (2d) 287 (Ont. C.A.) and courts are generally loathe to set aside domestic contracts. See page 297:

the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts … as a general rule … courts should enforce the agreement arrived at between the parties…. The parties to the agreement need to be able to rely on [them] as final in the planning and arranging of their own future affairs

Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure: Clayton v. Clayton, 1998 CarswellOnt 2088 (Ont. Gen. Div.).

A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other, or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 3 R.F.L. (4^th) 267 (Ont. C.A.)

The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 3 R.F.L. (4^th) 267 (Ont. C.A.).

The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v. LeVan, 2008 CarswellOnt 2738 (Ont. C.A.).

A finding that a party violated a provision of s. 56(4) of the FLA does not automatically render the contract a nullity. Rather, a trial judge must determine whether it is appropriate, in the circumstances, to order that the contract be set aside. It is a discretionary exercise: LeVan paragraph 33.

The lack of independent legal advice is not by itself determinative. It is only one factor: Dougherty v. Dougherty, 2008 CarswellOnt 2203 (Ont. C.A.); Raaymakers v. Green, 2004 CarswellOnt 2712 (Ont. S.C.J.)”

          Harnett v. Harnett, 2014 ONSC 359 (CanLII) at 85-96

“I note that there are strong policy reasons discouraging the use of surreptitiously recorded interactions in family law litigation, except in cases where the probative value of the evidence is compelling: Turk v. Turk, 2015 ONSC 3165 (SCJ). See generally, Martha Shaffer, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly 259. Courts have found that the admission of surreptitiously obtained evidence tends to undermine the goals and values of family law, since the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future: DeGiorgio v. DeGiorgio, 2020 ONSC 1674 at para 12. Courts have also found that admitting evidence obtained through surreptitious practices sends the wrong message by appearing to reward the behavior, whereas such practices should be discouraged: Seddon v. Seddon, [1994] BCJ No, 1729 (BC SC) at para 26. Because the introduction of such material will generally be contested, it is likely to unnecessarily prolong the case, with added costs to the parties as well as to the administration of justice generally.”

          Arbitman v. Lee, 2021 ONSC 315 (CanLII) at 18

“Whether a solicitor-client relationship exists is a question of fact. A formal, written retainer agreement is neither necessary nor determinative. The issue is “whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd v General Motors of Canada Ltd, 2015 ONSC 3824 at para 413, citing Jeffers v Calico Compression Systems, 2002 ABQB 72 at para 8.

In determining whether a solicitor-client relationship exists, the following indicia are considered, although not all indicia need be present:

(a) the existence of a contract or retainer;

(b) a file opened by the lawyer;

(c) meetings between the lawyer and the party;

(d) correspondence between the lawyer and the party;

(e) a bill rendered by the lawyer to the party;

(f) a bill paid by the party;

(g) instructions given by the party to the lawyer;

(h) the lawyer acting on the instructions given;

(i) statements made by the lawyer that the lawyer is acting for the party;

(j) a reasonable expectation by the party about the lawyer’s role;

(k) legal advice given;

(l) any legal documents created for the party;

(m) the party’s vested interest in the outcome of the proceeding; and

(n) the belief of other parties to the litigation that the party was represented by the lawyer.

See Jeffers, supra at para 8; Trillium, supra at para 412; Rye & Partners v 1041977 Ontario Inc., [2002] OJ No. 4518 at paras. 13-14.”

          Zarabi-Majd v. Levitt LLP, 2021 ONSC 135 (CanLII) at 33

“With respect to the Ontario Court’s jurisdiction to make a chasing order, the mother relies on Articles 14 and 15 of the [Hague] Convention, which provide that:

“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

The mother also relies on the decision of Thomson v. Thomson, 1994 CanLII 26 (SCC), para 44 whereby the Supreme Court of Canada defined a chasing order as an order “made solely to bolster an application under the Hague Convention.”  The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful.

In her article, The Application of the Convention – From the Practitioner’s Perspective on the Hague Convention, 23 CFLQ 219 (2004), Phyllis Brodkin, provides the following list of reasons for obtaining a chasing order:

a.    A chasing order gives an unequivocal message to the judge hearing the Hague Application in the requested state. Counsel in the requested state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the requested state for such a declaration;

b.    A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child’s return. On the other hand, it will delay the return if counsel is forced to obtain such an order as a condition precedent to the return, after the application has been heard;

c.    Seeking a chasing order in the requesting state creates a proceeding in which to obtain custody when the child is returned; and

d.    A chasing order enables the parent seeking the child’s return to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction.”

          Mar v. Wu Wu, 2023 ONSC 281 (CanLII) at 13-15

“Mrs. Sinclair relied heavily on the early case of Reddick v. Reddick, [1997] O.J. NO. 2497 (Gen. Div.) in which surreptitious recordings made by the mother were admitted as the court found that they were relevant, reliable, and they had probative value relating to the best interests of the children.

Since the decision in Reddick, however, the case law has developed to support a more robust general exclusionary discretion wherein the court can exclude surreptitious recordings where the probative value is not outweighed by the significant, presumptive prejudice to the administration of justice:  Sordi v. Sordi, 2011 ONCA 665; Turk v. Turk, 2015 ONSC 3165; De Giorgio v. De Giorgio, 2020 ONSC 1674; Van Ruyven v. Van Ruyven, 2021 ONSC 5963.

As Sherr J. stated in the oft cited case of Hameed v. Hameed, 2006 ONCJ 274, at para. 13: “The party seeking [to admit surreptitious recordings] should establish a compelling reason for doing so”.

In De Giorgio, MacKinnon J. referred to an article written by Professor Martha Shaffer which speaks to the wide-ranging impact that the admission of this evidence can have on the parties, their children and the administration of justice as a whole:

12      Building on Professor Rollie Thompson’s statement of three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present in relation to the admission of surreptitiously obtained evidence in family cases, since its admission “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.” In her article, Professor Shaffer elaborates that:

• • • • • • the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
          • surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
          • admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.

13      Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:

• • • • • • large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
          • infliction of emotional trauma to a parent or child; and
          • potential detriment to specific relationships in the family.

14      Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.

The basic test for admitting this evidence has not changed.  Rather, since the decision in Reddick, the court has placed a greater emphasis and weight on the presumptive, significant prejudice that must be overcome by a party seeking to admit surreptitious recordings.  See Scarlett v. Farrell, 2014 ONCJ 517.

I concur with Kurz J. when he states:  the “presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children”:  Van Ruyven, at para. 41.

This presumption is arguably and appropriately even more difficult to rebut when the recordings are of professionals working with the family.  I also concur with Zisman J. in L.R. v. Children’s Aid Society, 2020 ONCJ 22 (OCJ), aff’d at 2020 ONSC 4341 (Div. Crt.) when she held:

[53]        The systematic harm to the administration of justice and to the family law system in general of permitting a party to secretly record a third party professional who is attempting to help a child and parents far outweighs any probative value that the admission of such evidence could possibly provide.

See also:  Fattali v. Fattali 1996 CanLII 7272 (ON SC), [1996] O.J. No. 1207 (Gen. Div.); F.(J.) v. C.(V.), (2008), 2000 CanLII 22521 (ON SC), 8 R.F.L. (5^th) 45 (Ont. SCJ).”

          Wilson v. Sinclair, 2021 ONSC 8345 (CanLII) at 14-20

“The father also relies on Bouchard v. Sgovio, 2021 ONCA 709 (Ont.C.A.), where the court dismissed an appeal from an order granting the mother temporary custody of two  children until further order of the court to permit the mother to enroll the children in the “Family Bridges” program, said order being based on the father’s conduct that included failure to participate in court-ordered parenting time with the mother and efforts to sabotage or actively undermine court-ordered therapy; at the time of the appeal decision the children were ages 12 and 15.

Before a court can find parental alienation, it is necessary to examine whether there has been “realistic estrangement” and whether a rejected parent’s behaviour is a contributing factor to a damaged parent-child relationship; even where a favoured parent engages in problematic behaviour, a child may not be “alienated” where there are independent reasons to explain the child’s feelings.  The foregoing is set out in the following trial decisions relied on by the OCL: W.A.C. v. C.V.F., 2022 ONSC 2539 (Ont.S.C.J.) at para. 509; and Supple (Cashman) v. Cashman, 2014 ONSC 3581 (Ont.S.C.J.) at paras. 3, 18, 23.”

            C.T. v. M.M.M., 2023 ONSC 7247 (CanLII) at 81-82