Author: dawi

“An offer has to be wholly equal to or better than the result achieved at trial: see Gurley v. Gurley, 2013 ONCJ 482 where Sherr J. stated at para. 9:

The offer included incidents of custody that were not included in the final order, including a term that the father could apply for the children’s identification, including passports, without the mother’s consent, and a term that the mother not expose the children to smoke or marijuana use. Close does not count when applying subrule 18(14). Its presumptive costs consequences were not triggered by this offer.

Even though the financial issues were settled in the present case rather than being adjudicated on, the same principle applies.  If the result at trial, through settlement or decision, is not the same as or better than all of the terms of the offer, the court cannot presumptively award the costs of a proceeding under Rule 18(14).  Nothing in that rule permits a court to presumptively award costs because the party making the offer bettered part of the offer.  Without the offer being severable, the Applicant is only entitled to partial recovery costs based upon his success in the proceedings, something the Respondent already acknowledges.

That might have been remedied had the offer stated that its terms were severable, which would have allowed me to award costs based only upon the major issue at trial, which was the mother’s claim for a change in custody.  Without a severability clause, the offer cannot be used to presumptively award full recovery costs because the financial provisions in that offer differed from the end result.  Wildman J. spoke to the issue of the severability of an offer in Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII), [2010] O.J. No. 1566 (S.C.J.) in a statement that is particularly applicable to the present case at para. 13 and 14:

13 Unfortunately, this offer was not severable. There would have been no disadvantage to the wife in making the custody offer, in particular, severable from the financial and property terms. Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues. Had the custody terms of the wife’s offer been severable from the other terms, I would have been prepared to consider ordering full recovery costs on the custody issue from the date of the offer forward. As this was the majority of the trial time, that would have been a significant cost advantage to the wife.

14 However, as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14). Since the husband got an additional week of access, as well as an order that spousal support would reduce from $1000 in three years, Ms. Nanayakkara did not do as well as or better than her offer in its totality.

Wildman J. goes on to state that this does not prevent the court from taking the offer into account when awarding costs under Rule 18(16).

            Meitine v. Grigoryan, 2020 ONSC 867 (CanLII) at 10-13

“It is essential that our courts remain open in order that members of the public and the media may observe, critique, publish or share information concerning the workings of the Justice system. The open court principle is a crucial aspect of our democracy and is protected by the right to freedom of expression under section 2(b) of the Charter.

The law does recognize rare occasions when the open court principle must give way to other important interests related to the administration of justice. The test for determining whether a sealing order should be granted was stated by the Supreme Court of Canada in Sierra Club of Canada versus Canada Minister of Finance, [2002] S.C.R. 522 at paragraph 46:

A publication ban should only be ordered when:

(a)  such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b)   the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.” 

Adler v. Thomson, Rogers, 2019 ONSC 801 (CanLII) at 79-80

“At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.

Parents are not required to do the impossible in order to avoid a contempt finding. They are however required to do all that they reasonably can: see Godard, at para. 29.”

            McCarthy v. Murray, 2022 ONSC 855 (CanLII) at 33-35

“As the parties were not married, the parenting issues in this case are governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). Section 29 of that Act states that the court shall not vary a parenting order unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child. Although the legislation itself does not set out a specific test to varying an interim order, the courts have held that the change must be one that results in a compelling reason to vary the previous order. See Radojevic v. Radojevic, 2020 ONSC 5868, 324 A.C.W.S. (3d) 233 – [2020] CarswellOnt 14013, where Kurz J. refers to para. 26 of Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.) and Justice Mitrow’s summary of the law:

A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

While Radojevic was decided under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) the same test applies under the CLRA. See: McIsaac v. Pye, 2011 ONCJ 816 CarswellOnt 15387.”

            Purvis-David v. Roussy, 2022 ONSC 793 (CanLII) at 9-10

“The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at Rule 16 of the Family Law Rules, O. Reg. 114/99 and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.

The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment.  In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted:

66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers.  There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.  Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

67  Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution.  As well, by first determining the consequences of using the new powers, the benefit of their use is clearer.  This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action.  This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate.  There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense.  In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases (see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52).  However, the test must be applied with an eye to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings (see L.M., at para. 52 and New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76). The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary.

However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner” (L.M., at para. 51).

The proper approach to summary judgment in child protection proceedings was usefully summarized by the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, as follows:

1. 1. 1. 1. 1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
            2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
            3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
            4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
            5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”

Children’s Aid Society of Ottawa v. K.D. et al., 2022 ONSC 709 (CanLII) at 9-13

“The decision of the Ontario Court of Appeal in Bogue v. Bogue, 1999 CanLII 3284 (ON CA), [1999] O.J. No. 4310, is instructive on the legal issues raised in this motion. The court stated at para. 12:

It is an over-simplification to say that there cannot be an agreement to agree. The true legal position was explained by Robins J.A., in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103-04:

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself . . . [Emphasis added]

And at p. 105:

If no agreement in respect to essential terms has been reached or the terms have not been agreed to with reasonable certainty, it can only be concluded that such terms were to be agreed upon at a later date and until that time there would be no completed agreement.

More recently in Bouchard v. Poulin, 2017 ONSC 3328, Justice Shelston applied Bogue, and held at paras. 16, 17 and 33-35:

[16]      In the Bogue decision, Justice Rosenberg finds that there was evidence to determine that there was a final settlement, there was no expressed discussion about the extraordinary release sought by the husband and that the parties had agreed to bind themselves to a settlement and what remained was for the lawyers to reduce that settlement to a formal document. He did not find that that was an agreement to agree. At paragraph 15 of the decision, Justice Rosenberg states:

Generally speaking, litigation is settled on the basis that a final agreement has been reached which the parties intent to record informal documentation and “parties reach a settlement should usually be held to their bargains”.

[17]           If the court finds that at the end of negotiations where the litigants had agreed to bind themselves to a settlement and it only remained for the lawyers to draft a formal document, the parties have entered into a contract and not “an agreement to agree”. For there to be a binding contract, all the basic and essential components of the creation of the contract must be present. (Volmer v. Jones, 2007 CanLII 7999 ONSC).

. . .

[33]     I find that at the meeting of December 22, 2016, the parties agreed in principle to the applicant transferring her share of the Company to the respondent. I accept the evidence of Mr. Ranger and his client that they had an agreement on specific terms. However, I do not accept their evidence that the December 22, 2016 agreement contained all the essential terms of a binding contract. I accept the evidence of the applicant that she had to consider other essential terms that required a complete and all-encompassing agreement that covered not only the Company but the matrimonial home.

[34]           I find when one considers the multitude of issues that had to be addressed in the transfer of the applicant’s interest in the Company as well as dealing with the sale of the matrimonial home, it is not realistic to believe that such a contract would be restricted to the terms contained in one short as alleged by the respondent.

[35]           Further, if the parties had reached a contract on the single paragraph as alleged by the respondent, then why wasn’t the contract prepared by hand or typed at the meeting before anyone left the meeting. I conclude that the reason it was not so prepared was because only general terms had been agreed to and a complete contract had to be drafted. To accept the respondent’s position would ignore the other issues that he himself has raised in his redrafted agreement of January 5, 2017.”

            Hamilton v. Hamilton, 2022 ONSC 724 (CanLII) at 10-11

“The obligation to pay support commences from the date of separation.  The court may provide retroactive child support to compensate for any deficit where a parent has failed to assume his or her fair share of the child support obligation, particularly where there is no evidence to indicate that the payor did not have the ability to pay during the relevant period. (Schmuck v. Reynolds-Schmuck (1999), 1999 CanLII 15000 (ON SC), 50 R.F.L. (4^th) 429).

The factors to be considered by the court in ordering a retroactive support award, are the reasonableness of delay in seeking support, conduct of the payor, circumstances of the child and hardship occasioned by a retroactive award. (D.B.S. v. F.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Heimstra v. Heimstra, 2006 SCC 37 (CanLII), [2006] S.C.J. No. 37)).” 

Turk v. Turk, 2008 CanLII 3420 (ON SC) at 55-56

“The general principles guiding the exercise of the court’s discretion when dealing with support pending trial were summarized by Penny J. in Knowles v. Lindstrom, 2015 ONSC 1408 (CanLII):

It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case.  Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.  These tasks are for the trial judge.  Orders for interim support are based on a triable or prima facie case.  An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (CanLII), 2012 CarswellOnt 14841 (ONSC) at para. 24.

During submissions, the meaning of prima facie was discussed.  Counsel for the Applicant argues that it is a lessor standard than balance of probabilities.  Counsel for the Respondent argues that it is higher.

Prima facie is defined in the Blacks Law Dictionary as: “At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.”  Accordingly, prima facie is a standard higher than balance of probabilities.”

            Norouzi v. Bokharaei, 2022 ONSC 615 (CanLII) at 24-26

“The CFA [contingency fee agreement] crafted by SK required Mr. Lima to pay a percentage fee based on the amount he recovered and, in addition, authorized payment of costs to SK. Sections 28.1(8) and (9) of the Solicitors Act, when read together, provide that a contingency fee agreement, which includes both a fee payable under the agreement and an amount “arising as a result of an award of costs or costs obtained as part of a settlement”, is unenforceable unless that agreement is approved by a justice of the Superior Court. Approval is granted only if the lawyer and client make a joint application for approval of the contingency fee agreement, and satisfy the justice there are “exceptional circumstances” warranting including payment of costs to the lawyer as part of the fees owed under a contingency fee agreement. SK knew an application to the court for approval was necessary, but did not make any application. SK did not tell Mr. Lima court approval was required.

Sections 28.1(8) and (9) are consumer protection legislation. The requirements of a joint application for approval and judicial approval predicated on exceptional circumstances protect clients from excessive fees and fees determined, according to contractual terms, lacking in transparency and predictability: Almalki v. Canada (Attorney General), 2019 ONCA 26, at paras. 47-50. The lack of transparency is apparent from a review of the CFA entered into by SK and Mr. Lima. Under the terms of that agreement, it was left to SK to unilaterally attribute an amount from the settlement amounts to costs. Mr. Lima could not know, from the terms of the CFA, what amount from any settlement SK would attribute to costs paid by the defendant, and therefore ultimately payable to SK as part of its total fee.”

            Lima v. Kwinter, 2021 ONCA 47 (CanLII) at 22-23

“[Grandmother’s] counsel suggested that the recent amendments to the Children’s Law Reform Act in Ontario, in particular the insertion of the word “grandparent” into section 21(1) and section 24(2)(a)(i), fundamentally changed the law on grandparent access in Ontario. Multiple decisions of this court, however, have been clear that the amendments create no new rights or enhanced standing for grandparents. In M.R. v A.L., 2017 ONSC 85, Justice McGee stated that the amendments simply “further articulate the class of persons who may seek an order for custody or access, but do not extend, or give them any special standing.” See para. 34, FN 5. See also Whitteker v. Legue, 2018 ONSC 1557 at para. 15; Capone v. Pirri, 2018 ONSC 6541 at para. 8; Tzvetkova v. Petrova, 2018 ONSC 2899 at para. 4 and Botelho v. De Medeiros, 2017 ONCJ 463 at para. 17.

In the result, notwithstanding the amendments, there is no presumptive legal right of access by grandparents to their grandchildren. The onus remains upon a grandparent seeking access to show that this is in the best interests of the child.

In the oft-quoted case of Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), 2005 CarswellOnt 3290 at para.18, Justice Nelson 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:

a.   Does a positive grandparent-grandchild relationship already exist?

b.   Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and,

c.   Has the parent acted arbitrarily?

In Capone, Justice Jarvis considered what constitutes a “positive relationship” under the first branch of the Giansante test, stating that a positive relationship generally requires “time and depth.” He cited Sproule v. Sproule, 2012 O.J. No. 6423 in which the court stated that:

…to be a positive relationship, there must exist something more than an occasional pleasant experience with the children. 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. See para. 15.

In Capone, Justice Jarvis 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.” The court found in that case that given the young age of the child (six months when the application was heard), it was impossible to determine how positive the relationship between the child and the grandmother was.

In Torabi v. Patterson, 2016 ONCJ 201 at para. 74, Justice Kurz also considered what constitutes a positive relationship setting out a four-part test as follows:

a.   There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;

b.   The relationship must be constructive for the child in the sense that it is worth preserving. If relations are too poisoned, a previously positive relationship may not be capable of preservation;

c.   The determination must include the age of the child and the time since the child last saw the relative; and,

d.   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.”

         Ninkovic v. Utjesinovic, 2019 ONSC 558 (CanLII) at 61-66