Author: dawi

“Courts are generally cautious about implementing assessment reports or OCL recommendations on an interim basis. It is usually preferable for the status quo to continue until trial, unless there is a “compelling reason” to change the arrangement in the best interests of the child: Benko v. Torok, 2012 ONCJ 401. See also, Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (Ont. S.C.J.) at para 15 and Daniel v. Henlon, 2018 ONCJ 122.

In general, interim implementation of OCL reports and assessments should be discouraged. There is usually no opportunity at the motions stage to undertake a full analysis and evaluation of all aspects of the report. It is preferable for disputed facts to be resolved in a trial setting with the benefit of cross-examination: Batsinda v. Batsinda 2013 ONSC 7869, per Chappel J., at para. 32 and JLM v. PDAB, 2012 ONSC 4696 per Pazaratz J.

However, there are cases in which a parent has been found to be engaging in potentially alienating behaviour and parenting arrangements have been varied on an interim basis: See, for example, WDC v. JLM, 2012 ONCJ 700 per Tobin J. See also O’Connor v O’Connor, 2017 ONCJ 48 in which the court implemented recommendations of the OCL pending trial.

While many cases refer to the requirement that there be “compelling circumstances” or “exceptional circumstances” to change the status quo pending trial, in Bos v. Bos, 2012 ONSC 3425, at para 26, Mitrow J. listed the following factors for consideration when a court is asked to change temporary parenting arrangements, based on an assessment report, without a finding of “exceptional circumstances:”

(a)   How significant is the change that is being proposed as compared to the interim status quo?

(b)   What other evidence is before the court to support the change?

(c)   Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

(d)   Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

There should not be an “inflexible blanket prohibition” against considering any aspect of an assessment report on an interim motion, especially when that is the only independent evidence before the court. Taylor v Clarke, 2017 ONSC 1270, 2017 CarswellOnt 3586.”

            Denomme v. Denomme, 2022 ONSC 5205 (CanLII) at 22-26

“The motion judge observed, in my view correctly, that “[f]rom the standpoint of attempting to ascertain the intention of the parent making the advances, the issue is whether the parent intended to retain a hold on the amounts advanced, regardless of whether that be by way of a resulting trust or a debt obligation” (at para. 77). Considering the relevant factors, the motion judge found that the evidence supported the conclusion that the monies were provided by way of gift by the husband’s parents. He concluded that “the reality of the situation [was] that there never was any expectation, prior to the parties’ separation, on the part of Lillian Chao that the respondent and the applicant would be required to repay any portion of the funds advanced by her and her husband” (at para. 85).

The legal test is intent at the time of the transfer. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. The court must assess the reliability of such evidence and determine what weight it should be given, guarding against evidence that is self-serving or tends to reflect a change in intention: Pecore, at paras. 44 and 59; Andrade v. Andrade, 2016 ONCA 368 (CanLII), 131 O.R. (3d) 532, at para. 63.”:

Chao v. Chao, 2017 ONCA 701 (CanLII) at 55-56

“In Roberts v. Roberts, 2015 ONCA 450, it was held that the power to strike pleadings is to be used “sparingly and only in exceptional circumstances”:  para. 15.

Other decisions of the Court of Appeal for Ontario also have emphasized the necessity of exceptional circumstances before pleadings are struck.  In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the court stated, at paras. 31-32:

31      In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

32      Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. For example, in Kim v. Kim, 2001 CarswellOnt 502 (Ont. S.C.J.), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v. Costabile, 2004 CarswellOnt 4860 (Ont. S.C.J.), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.

In Manchanda v. Thethi, 2016 ONCA 909, relied on by the applicant, the court held, in the context of non-compliance with financial disclosure obligations, that “willful non-compliance must be considered egregious and exceptional,” at para. 13:

13      Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6 (Ont. C.A.), at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

I concur with Moore J.’s conclusion in Peerenboom v. Peerenboom, 2018 ONSC 5796 (Ont. S.C.J.), relied on by the applicant, as to the effect of Manchanda, supra, that earlier statements of the Court of Appeal for Ontario as to finding exceptional circumstances prior to striking pleadings for non-compliance with orders or disclosure obligations must be read with the more recent interpretation in mind: paras. 15, 16 and 22-24.”

         Hall v. Hall, 2019 ONSC 5195 (CanLII) at 44-47

“The law on the equalization of net family property begins with sections 4 and 5 of the Family Law Act, R.S.O. 1990, c. F.3, which provide the framework for settling property issues between married persons.  The steps involved in this framework were summarized by Justice Barnes in Perri v. Perri, 2016 ONSC 5833 at para. 90:

Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:

• • • • • • What property did each spouse own on valuation day?
          • What is the value of that property after making deductions and allowing exemptions permitted under section 4?

Step 2: Determine whether one spouse’s net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3

Step 3: Before making an order under Step 2, the court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6)”

            Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 28

“The intent of s. 5(6) of the Family Law Act “is not to alleviate every situation that may be viewed as in some ways unfair or inequitable”: Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25.  As the Court of Appeal stated in Ward, at para. 25:

Equal sharing should occur in most cases. The Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims.

…

The next issue for me to determine is whether equalization of the parties’ net family properties is unconscionable, having regard to these circumstances.  Matrimonial misconduct is not a factor justifying a variation of shares under s.5(6) of the Family Law Act.  The fact that Mr. Bandyopadhyay committed adultery is irrelevant to the analysis.  But fault-based conduct relating directly to the parties’ net family properties (e.g. diverting or depleting assets, disposing of property or acquiring debt) is a relevant consideration.

The threshold of unconscionability is high: Ward, at para. 33. It is not sufficient for equalization to be merely unfair or inequitable. There must be circumstances that shock the conscience of the court; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.”

Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (CanLII) at 104, 119-120

“I adopt the reasoning of Lemon, J. in Kraemer v. Kraemer 2019 ONSC 944 and Akbarali, J. in Laurent v. Laurent, 2019 ONSC 3535 (S.C.J.), citing Menage and Conway v. Conway (2005), 2005 CanLII 14136 (ON SC), 16 R.F.L. (6th) 23 (Ont. S.C.): Parties have the onus to provide credible, authentic evidence of the accurate value of their assets and liabilities on the date of marriage and the date of separation. While disclosure must be relevant and proportional, where the value cannot be readily determined or there is serious dispute, an independent valuation may be required.”

            Witkin v. Storm, 2022 ONSC 6221 (CanLII) at 17

“Changing a child’s name is not a mere administrative act. See: Herniman v. Woltz, 1996 CanLII 8087 (ON SC), [1996] O.J. No. 1083 (Ont. Gen. Div.). A child’s surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court); Belisle v. Poole (1994), 2 R.F.L. (4^th) 165 (Ont. Gen. Div.).

The court should be mindful of the parties’ agreement about what to name a child at birth. See: Hill v. Shimla, supra.

The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests. These factors include:

a)  Whether the proposed name change will exclude the name of the non-custodial parent. 

b)  The length of time a custodial parent has had sole custody of the child.

c)  Whether there is a continuing close relationship between the child and the non-custodial parent.

 d)  Whether there would be any serious effect on the non-custodial parent.

 e)  Whether either parent has displayed any malice or improper motivation.

 f)  The age of the child and the weight to be given to the child’s wishes, in light of that age.

 g)  The length of time the child has had its name.

 h)  The surnames of any siblings.

See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery (1989), 1989 CanLII 7405 (MB QB), 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.”

Hermanson v. Kiarie, 2017 ONCJ 598 (CanLII) at 20-22

“Rule 25(19) of the Family Law Rules O. Reg. 114/99 reads as follows:

The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

The definition of “change” is broad and provides the judge with the jurisdiction to set aside an order made by a judge of the same court. This broad interpretation is consistent with Rule 2 of the Family Law Rules that requires the court to deal with cases justly and recognizes that family law proceedings are different than other judicial proceedings: Gray v. Gray, 2017 ONCA 100.

It is the father’s onus to demonstrate on the balance of probabilities that the mother committed fraud on the court at the uncontested trial. The fraudulent acts must be material and go to the foundation of the case: Dodge v. Dodge, 2007 CanLII 80075 (ON SC), 2007 CarswellOnt 6477 at para. 57.

The Court of Appeal listed five factors the court should consider in determining whether to set aside a default judgment in Mountain View Farms, Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 as follows:

1. 1. 1. 1. Whether the motion was brought promptly after the defendant learned of the default judgment
         2. Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules
         3. Whether the facts establish that the defendant has an arguable defence on the merits
         4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed
         5. The effect of any order the motion judge may make on the overall integrity of the administration of justice

“These factors are not to be treated as rigid rules”: Mountain, at para 50. The court must determine whether it is just to relieve the father from the consequences of his default based on the circumstances in this case.”

            Saeed v. Khalid, 2022 ONSC 5012 (CanLII) at 14-18

“Given that B.K.’s therapeutic relationship with Ms. Shapiro lasted only one session, the Respondent submits that their therapeutic relationship should attract a lesser expectation of privacy under the Wigmore test than longer or more established relationships.  No authority was cited for this proposition.  Respectfully, I am not persuaded by this reasoning.  B.K. required therapy and attended a session with Ms. Shapiro to improve her health and wellness.  I see no basis to find that B.K. reasonably expected that her private thoughts and feelings shared in therapy would later be disclosed.  In my view, B.K.’s therapeutic relationship with Ms. Shapiro was clearly private and confidential regardless of its length or duration.

Therapy is extremely important, particularly for children coping with dysfunction caused by family conflict.  On this point, I share the view expressed by Boswell J. in L.H. at paras 30-31 that public interest strongly supports the protection and fostering of therapeutic relationships to help children attend therapy to address their mental health.  It is generally understood that children in high conflict family situations who go untreated may well suffer mental health issues that may last a lifetime.  Without privacy and confidentiality, children may be less likely to try counselling or therapy, let alone speak openly and candidly about their thoughts and feelings during therapy to properly benefit from therapeutic treatment.  Indeed, B.K. herself has candidly acknowledged that she has begun to modify her behaviour to be less open and forthcoming in therapy for fear that her private thoughts and feelings may be revealed by a disclosure order.  A failure to uphold the private and confidential nature of therapy may well cause a serious chilling effect for B.K.’s future therapeutic treatment and potentially cause her therapy to become ineffective.”

            G.L.K. v. C.L.K., 2021 ONSC 5843 (CanLII) at 90-91

“Income may be imputed to a payor who is incarcerated as a result of their own unlawful conduct: Khentov v. Bieler, 2007 CarswellOnt 1832, Cran v. Huynh 2008 NWTSC 69, Billingsley v. Billingsley, 2010 ONSC 3381, Zapreff v. Zegarac, 2015 ONCJ 243, S.H. v. R.A.A., 2016 ONCJ 255.”

            Hohmeier v. Caputo, 2022 ONSC 4925 (CanLII) at 19(o)