Author: dawi

“An interim support award is a temporary order only and inevitably imperfect. Cardoso v. Cardoso, 2013 ONSC 5092.  It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J.

The Spousal Support Advisory Guidelines are intended to apply to interim orders as well as final orders. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p. 15.

I adopt the following principles as set out by Vogelsang, J. in King v. King, 2016 ONSC 5264 (SCJ) at para. 11:

1. 1. 1. 1. 1.   On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
            2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
            3.   On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
            4.  The courts should not unduly emphasize any one of the statutory considerations above others;
            5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
            6.   Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
            7.    Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
            8.  Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

         Montoya v. Arroyo, 2019 ONSC 5335 (CanLII) at 2-4

“In concluding that the advances were by way of gift, the motion judge applied the correct legal test and considered the relevant factors. He began his inquiry with the presumption of resulting trust and then weighed all the evidence to determine the parents’ actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 5 and 44.

Here the motion judge considered factors listed as relevant in a number of cases concerning monies advanced by parents. These include the following factors identified in the context of a loan vs. gift analysis in Locke v. Locke, 2000 BCSC 1300 (CanLII), [2000] B.C.J. No. 1850 at para. 21, and Kuo v. Chu, 2008 BCSC 504 (CanLII) at para. 78, aff’d 2009 BCCA 405 (CanLII), 97 B.C.L.R. (4th) 203, at para. 9:

1. 1. 1. 1. 1. 1.    whether there [are] any contemporaneous documents evidencing a loan;
               2.    whether the manner for repayment is specified;
               3.    whether there is security held for the loan;
               4.    whether there are advances to one child and not others, or advances of unequal amounts to various children;
               5.    whether there has been any demand for payment before the separation of the parties;
               6.    whether there has been any partial repayment; and
               7.    whether there was any expectation, or likelihood, of repayment.

See also Barber v. Magee, 2017 ONCA 558 (CanLII), at para. 4.”

         Chao v. Chao, 2017 ONCA 701 (CanLII) at 53-54

“Sections 144(1) and (2) of the Bills of Exchange Act address the consequences when there is a material alteration to a bill, including a promissory note. Section 145 sets out five circumstances that constitute material alterations. These sections state:

144(1) Subject to subsection (2), where a bill or an acceptance is materially altered without the assent of all parties liable on the bill, the bill is voided, except as against a party who has himself made, authorized or assented to the alteration and subsequent endorsers.

(2) Where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder in due course, the holder may avail himself of the bill as if it had not been altered and may enforce payment of it according to its original tenor.

145 In particular, any alteration

(a) of the date,

(b) of the sum payable,

(c) of the time of payment,

(d) of the place of payment,

(e) by the addition of a place of payment without the acceptor’s assent where a bill has been accepted generally, is a material alteration.

These sections make it clear that a note can be altered with the assent of all parties, and the alteration will be binding as between them. However, by making a material alteration without the assent of all the parties to the note, the note becomes void against any party who did not assent to the material alteration: Ian F.G. Baxter, The Law of Banking, 4th ed. (Scarborough: Thomson Canada Limited, 1992), at p. 31. The only issue in this case was whether either Dennis or Anna Chedli had assented to the alteration of the notes. It was accepted that a note could be materially altered by an agreement or a letter. Baxter states, in the context of discussing s. 144 of the Bills of Exchange Act, that “[o]n principle a written agreement can be varied by consent, and even by a later oral agreement”: Baxter, at p. 31, fn. 189. He references Goss v. Nugent (1833), 5 B & Ad. 58, 110 E.R. 713 (Eng. K.B.).”

         James v. Chedli, 2021 ONCA 593 (CanLII) at 40-41

“We live in a world of such technological advance that every utterance and gesture is increasingly open to digital capture, whether at a street corner or in a private conversation in one’s home. Privacy experts and advocates are increasingly concerned about the deleterious effects of the unrestrained monitoring of our utterances and behaviour. On the internet, it is said that anything captured can never be forgotten. Provincial and federal legislation has been passed to try to find a reasonable meeting point between the right to information and the rights of privacy, security and free expression.  It would be fair to say that the present legislative balance is continually subject to review.

In the evidentiary sphere, the general rule is that if it is relevant, it is admissible, provided that it is not hearsay. But that rule is as often honoured in the breach as it is in its fullest expression. The rules of evidence have evolved to balance various interests in ensuring that the court’s process and its search for truth works towards justice and the public’s interest despite the classical rules of evidence.  Further, under r. 14(18) and (19), certain hearsay is admissible in family law motions.

One iteration of the evolution of evidentiary rules in family law is the reluctance to allow surreptitious recordings made by spouses of each other and their children. The reasons for that stance were articulated by Sherr J. in Hameed v. Hameed, 2006 ONCJ 274. There, Sherr J stated at paras. 11-12:

[11] … Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 CanLII 14087 (ON SC), 1998 CanLII 14087, 1998 CarswellOnt 4374 (Ont. Fam. Ct.):

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court.

The rule is not an absolute one.  As Sherr J. noted, the court retains some discretion to determine whether the probative value of secretly recorded evidence outweighs the strong policy factors set out above.

The court’s discretion to exclude or allow secret recordings in family law matters was confirmed by the Court of Appeal for Ontario in Sordi v Sordi, 2011 ONCA 665. There, Epstein J. A., writing for the court, upheld the trial judge’s exercise of discretion to exclude the recordings.  She referred at para. 12 to “the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings”.

In Scarlett v Farell, 2014 ONCJ 517, Spence J. of the Ontario Court of Justice, reviewed a number of cases that had been decided to date regarding the admission of surreptitious recordings into evidence. Those cases included  Hameed, as well as Seddon v. Seddon, [1994] B.C.J. No. 1062 (B.C. S.C.), Toope v. Toope, 2017 CarswellNFld 185 (Nfld U.F.C.) and Reddick v. Reddick, [1997] O.J. No. 2497 (OC (GD)). Spence J. helpfully concluded that these cases, which offered differing results regarding the admission of such recordings contained a common seed of principle, which he set out at para. 31 as follows:

31      Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

Spence J. admitted into evidence the recordings in the case before him, finding that they had probative value. But he was also clear that the recordings were not surreptitiously made. Had they been secretly recorded, Spence J. was clear that he would not have allowed them into evidence.

In F.(A.) v. A.(B.J.), 2017 ONCJ 108, Sager J. of the Ontario Court of Justice considered the authorities cited above. She allowed recordings made and transcripts created by one party into evidence, finding that the recordings were not secretly made. Moreover, even absent such a finding, she stated that she would have allowed them into evidence. In one of the recordings, the mother could be heard threatening to kill herself, disparaging the father and the child, “using racial slurs and profanity in excess”. Sager J. stated that the issues raised by the recordings were “of sufficient importance” to the determination of the issues before her that they should be admitted into evidence.

In L.R. v. Children’s Aid Society, 2020 ONSC 4341, Horkins J. of this court affirmed a ruling of Zisman J. of the Ontario Court of Justice (2020 ONCJ 22), extending the general prohibition on the admission of surreptitious recordings to child protection professionals and a reunification therapist.

In the years since Hameed was first decided by Sherr J., the attempt to admit secretly made recordings by one parent of another and/or the child/ren has surged from a trickle to a gusher. I find that I am regularly provided with secret recordings that one party has made of the other, which the recording party asks me to then consider in order to prove the instability or perfidy of the other. Most of the times, the recording is an edited or selectively recorded version of a highly contentious argument between the parties.

It is dangerous to the state of family law and more importantly, to the parties and children governed by it, to treat their dealings as if they were living under the Stasi in East Germany.  Not everything is public and not every utterance or gesture needs to be recorded.  To the contrary, routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.

The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That 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 children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.”

            Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII) at 30-41

“When dealing with a finding of imputed income at trial, as in this matter, the   court in Colucci commented as follows, at para. 63:

Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34).  This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).

         Jamil v. Iqbal, 2021 ONSC 5952 (CanLII) at 63

“At para. 100 [of Kerr v. Baranow], Cromwell J. offered the following summary regarding “quantum meruit versus constructive trust”:

I conclude:

1. 1. 1. 1. 1.       The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.
            2.       Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
            3.       To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
            4.       Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

In determining the appropriate remedy, it is also necessary to consider the conferral of mutual benefits.  This is where the work done and expenses incurred by both parties in renovating the property have the most relevance.  Cromwell J. said the following, at paras. 101 -102:

As discussed earlier, the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits; each party in almost all cases confers benefits on the other: Parkinson, at p. 222. Of course, a claimant cannot expect both to get back something given to the defendant and retain something received from him or her: Birks, at p. 415. The unjust enrichment analysis must take account of this common sense proposition. How and where in the analysis should this be done?

The answer is fairly straightforward when the essence of the unjust enrichment claim is that one party has emerged from the relationship with a disproportionate share of assets accumulated through their joint efforts. These are the cases of a joint family venture in which the mutual efforts of the parties have resulted in an accumulation of wealth. The remedy is a share of that wealth proportionate to the claimant’s contributions. Once the claimant has established his or her contribution to a joint family venture, and a link between that contribution and the accumulation of wealth, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share. While determining the proportionate contributions of the parties is not an exact science, it generally does not call for a minute examination of the give and take of daily life. It calls, rather, for the reasoned exercise of judgment in light of all of the evidence.”

         Kamermans v. Gabor, 2018 ONSC 5241 (CanLII) at 52-53

“In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a.    It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b.    When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c.    When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i.     The risk of exposure to COVID-19 that the child willface if she or he is in school, or is not in school;

ii.    Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii.     The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.     Any proposed or planned measures to alleviate any of the risks noted above;

v.    The child’s wishes, if they can be reasonably ascertained; and

vi.     The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.”

         Zinati v. Spence, 2020 ONSC 5231 (CanLII) at 27

“The court should exercise caution in ordering the sale of a matrimonial home before trial and before the resolution of the property equalization issues: Martin v. Martin 1992 CanLII 7402 (ON CA):

Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

The principles applicable to the judicially ordered sale of a matrimonial home were summarized by Pazaratz J. in Dhaliwal v. Dhaliwal, 2020 ONSC 3971 (CanLII), at para. 16. Out of the many factors discussed by Pazaratz J., the following are relevant:

(l)        The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing.  Delongte v. Delongte 2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ).  The availability and affordability of alternate housing must be considered.  As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

(m)      Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.  Fernandes v Darrigo 2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.  Kereluk v. Kereluk, 2004 CanLII 34595 (SCJ).

In Hutchison-Perry v. Perry, 2019 ONSC 4381 (CanLII), Faieta J. held:

[37]      Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA“).  In such case, an application under the Partition Act should not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23)”

Fernando v. Fernando, 2021 ONSC 5851 (CanLII) at 10-12

“In addressing the non-party disclosure motion as it relates to the decision-making and parenting time issues in dispute, I am guided by the underlying requirement to consider the best interests of the children: Divorce Act, RSC 1985, c. 3 (2^nd Supp), ss. 16(1); Vecchio v. Abdelgawad, 2017 ONSC 5815 at para 3.  In determining the parenting-related issues based on the children’s best interests, the court should have the best available information for everyone involved in the children’s care and upbringing:  Noel v. Noel, 2015 ONSC 4561 at para 38.

Rule 19(11) (Document in non-party’s control) of the Family Law Rules provides for the production of documents from a non-party as follows:

If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) Order that a copy be prepared and used for all purposes of the case in stead of the original.

Deciding a motion for non-party production calls for a multi-step analysis.

a)     Relevance

The threshold issue for a production order is relevance.  As stated in M.M-A., P.A., M.D. and A.D. v. E.L., Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 at para 22:

The preliminary question to be determined when considering a production order is relevance. Rule 19(11) does not specifically refer to relevance; it is necessarily implied. See   Catholic Children Aid Society of Toronto v. K. (T.) 2004 CanLII 16117 (ON CJ), [2004] O.J. No 61, 50 R.F.L. (5^th) 285 OCJ. If relevance is challenged, then the inquiry begins there. Since the particular contents of the records are not yet known, the assessment of relevance often entails a degree of speculation, but more than mere speculation is required to prevent unwarranted so-called fishing expeditions.  The question then becomes what threshold of relevance pertains?

As the non-party records at issue contain private or highly sensitive information, I accept that the “likely relevant” threshold should apply in deciding relevance: Kunuwanimano at para 24; Children’s Aid Society of Brant v. P.(N.M.), 2016 ONCJ 266 at para 38.

b)      Privilege

Rule 19(11) requires the court to consider any legal privilege that might apply to exclude the non-party production sought.

There are two broad classes of privilege, namely “class” privilege and “non-class” or “case-by-case” privilege.  Class privilege is well-established and commonly refers to solicitor-and-client communications and settlement discussions between parties to litigation.  Non-class or case-by-case privilege arises from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist.  The onus is on the person claiming a privilege to demonstrate that the communications should not be disclosed: Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (ONSC) at para 19; Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69 at para 42.

The common law permits the court to consider whether privilege exists where “reason, experience and application of the principles that underlie the traditional privileges so dictate” on a case-by-case basis: M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 at para 20.  In Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 SCR 254 at 260, the Supreme Court approved the following four-part criteria set out in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285 to establish a case-by-case privilege:

a.    The communication must originate in a confidence;

b.    The confidence must be essential to the relationship in which the communication arises;

c.    The relationship must be one which should be “sedulously fostered’ in the public good;

d.    If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correction of the litigation.

If all four (4) of the Wigmore criteria are met, a privilege may be said to exist to prevent the disclosure of the subject records or information.

The Supreme Court of Canada affirmed the Wigmore test in Ryan at para 20.  In that case, the victim of a sexual assault by a psychiatrist brought a civil action for damages.  The former psychiatrist sought disclosure of the victim’s new psychiatrist’s reports and notes.  In describing the Wigmore test, the Supreme Court in Ryan at para 37 rejected a blanket approach to privilege and held that a court may determine that psychiatrist-patient records are privileged in appropriate circumstances by carefully considering the issue of privilege on a case-by-case basis:

My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances.  Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head.  A document  relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential.  On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged.  The result depends on the balance of the competing interests of disclosure and privacy in each case.   It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production.  Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage.  Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.  [Emphasis added]

A production order should not permit “fishing expeditions” where a compelling privacy interest is at stake, even at the discovery stage: Ryan at para 37.

The law of privilege is applied to reflect the social and legal realities of our time.  This includes addressing the concerns over the wrongs perpetrated by sexual abuse, the serious effect of such abuse on victims, and the importance of supporting victims with care and treatment to address the aftermath of such abuse: Ryan at para 21.

The court may flexibly craft production orders to safeguard privacy concerns and ensure that relevant disclosure is available to the parties: Ryan at paras 33 and 37; Kunuwanimano at paras 38 and 48.  The goal is to allow for proportionate and efficient production while guarding against the injustice of cloaking the truth.  This may be accomplished by disclosing a limited number of documents, removing non-essential materials, limiting the dissemination or copying of records, and otherwise minimizing any damage to protected relationships: Ryan at para 33.

c.                Fairness

Once the issue of privilege has been determined, the court must still decide the second part of the Rule 19(11) test, namely whether it would be unfair for a party to proceed to trial without the documents sought.

In determining this second part of the Rule 19(11) test, the factors established by the Court of Appeal in Attorney General for Ontario v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 OR (3d) 39 (CA) are considered. These factors include the following:

a.    The importance of the documents in the litigation;

b.    Whether disclosure or production can be postponed until trial; is it necessary to have production at the discovery stage to avoid unfairness;

c.    The position of the non-parties with respect to production;

d.    The availability of the documents or their informational equivalent from some other source; and

e.    The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.

See also: Kunuwanimano at paras 42-43; Girdlestone v. Bentley, 2020 ONCJ 444 at para 26.”

         G.L.K. v. C.L.K., 2021 ONSC 5843 (CanLII) at 18-32

“Prior to the Supreme Court’s decision in Balev, Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132, a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev. v. Baggott, 2016 ONCA 680 (CanLII), 133 O.R. (3d) 735, at paras. 39-40, 42, rev’d 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398.

In Balev, the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev. Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev, at para. 41.

Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention: at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65.

The aim of the hybrid approach is to determine the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:

1)   The child’s links to and circumstances in country A;

2)   The circumstances of the child’s move from country A to country B; and,

3)   The child’s links to and circumstances in country B.

The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.”

         Ludwig v. Ludwig, 2019 ONCA 680 (CanLII) at 27-31