“The test for adducing additional evidence after a Court has reserved its decision is very high. The test is set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd. (2001 SCC 59, [2001] 2 S.C.R. 983). In that case, the Court set out the following test:
a) Would the evidence have affected the outcome of the hearing?
b) If so, was the evidence discoverable prior to the hearing?”
“Where the parties wish to engage a joint expert but do not agree on a matter relating to the engagement, either of them may apply to the court for directions: Family Law Rules, r. 20.2(9). In my view, that provision includes disagreements that arise after the expert has been engaged and before his or her report is complete.
To ensure the efficacy and reliability of the jointly retained expert evidence, the parties are required to “cooperate fully with the expert and make full and timely disclosure of all relevant information and documents to the expert”: r. 20.2(12). The court may draw any reasonable inference against any party that fails to do so: r. 20.2(12).
The predominant purpose of retaining a joint expert is to avoid the battle of competing experts. That usually means a savings of time and expense, and often aids in resolution of some or all issues.
A neutral, independent, jointly retained expert investigates the issue(s), sets forth the facts on which his or her opinion is based, sets out the documents he or she relied on, and provides an opinion and the rationale for that opinion: r. 20.2(2),(3), and (5). The expert owes a duty to the court to be fair, objective and non-partisan. That duty to the court trumps any obligation owed by the expert to a party: r. 20.1(3).
Where the parties have engaged a joint expert, no other litigation expert may present opinion evidence on that issue unless the court orders otherwise: r. 20.2(13). Thus, once the expert report is finalized and absent a supplementary report, the parties are not permitted to adduce other expert evidence on the issue without leave of the court.”
“In Children’s Aid Society of Toronto v. G.P., 2019 ONCJ 365, Zisman J. lays out the following applicable legal principles with respect to a finding of need of protection at paras. 71-75:
The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.
The risk of harm must be real and likely and not speculative.
Harm caused by neglect or error in judgment can come within a finding of risk of physical harm.
With respect to the timing of the protection finding, I adopt the analysis of Justice Czutrin in the case of Children’s Aid Society of Hamilton-Wentworth v. R. (K.) (footnote omitted), wherein he states:
the court should be free to consider whether the child is in need of protection at the commencement of the proceeding or at the hearing date, or for that matter some other date depending on the circumstances. There cannot be an absolute rule as to the relevant date.
In adopting this “flexible approach” Justice Carolyn Horkins recently explained in the case on [sic] Children’s Aid Society of Toronto v. RM (footnote omitted):
The type of risk that can lead to a child protection order is set out in s. 74(2) of the CYFSA. It was also defined in the predecessor Act. It is obvious from the legislation that “risk” can be caused by a variety of different circumstances and conduct.
In many protections matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.
The finding that a child is in need of protection is an essential stage of a child protection proceeding, and if the court finds that the child is not in need of protection that is the end of the matter.”
“Punitive damages are appropriate where the conduct of a defendant has been especially egregious and deserving of denunciation. This would include conduct which is arbitrary, callous, contumelious, fraudulent, highhanded, malicious, outrageous, reprehensible, or wanton, shows a contempt of the plaintiff’s rights, departs significantly from ordinary standards of decent behavior, or offends the court’s sense of decency.
There are two basic principles guiding the quantification of punitive damages:
(1) punitive damages must be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant having regard to any other fines or penalties suffered by the defendant for the misconduct in question; and
(2) where compensatory damages are insufficient to accomplish the objects of retribution, deterrence of the defendant and others from similar misconduct in the future and the community’s collective condemnation or denunciation of what has occurred, punitive damages will be given in an amount that is no greater than necessary to accomplish these objectives rationally.
Underlying these principles must also be recognition of the exceptional nature of punitive damages and the need to be fair to both sides: Estate of Pate v. Township of Galway-Cavendish (2013), 2013 ONCA 669 (CanLII), 117 OR (3d) 481 (CA) at para 200.”
“As to the Applicant’s argument that this is electronic information was surreptitiously obtained without the Applicant’s knowledge or consent, the case law directs that that relevant evidence, even improperly obtained, is admissible: Grech v. Scherrer, 2018 ONSC 7206 at paras 30 and 32-34; Garrett v. Oldfield, 2014 ONSC 508 at paras 29-34.
In Gonzalez v. Gonzales, 2016 BCCA 761 a computer was purchased for the family, the complainant used it only casually when in the matrimonial home and documents in question were readily accessible because the home computer did not have a password. The Court of Appeal held that “any expectation of privacy” which the complainant would have would be slight.”
Similarly in Greenhalgh v. Verwey, 2018 ONSC 3535, the Court held that where a party takes no steps to resrict access to a computer and does not seek the computer’s return at any point, that party has a lessened expectation of privacy.”
“In Davis v. Crawford (2011 ONCA 294), the Court of Appeal has held that lump sum awards of spousal support are not to be limited to only “very unusual circumstances”. The Court of Appeal also observed that both the Family Law Act R.S.O.1990 c. F.3 and the Divorce Act R.S.C. 1985 c. 3 (2nd Supp) permit lump sum awards of spousal support to be made.
In Davis, the Court set out the advantages and disadvantages of a lump sum award of spousal support as follows (paras 67 and 68):
It is also appropriate for a judge to award a lump sum spousal support where there was a high level of animosity between the parties (Racco v. Racco 2014 ONCA 330), or where it was appropriate to facilitate a ‘clean break’ between the parties (Greenberg v. Daniels (1995) 2005 CanLII 456 (ON CA), 194 O.A.C. 115 (C.A.)).”
“The parents’ inability to engage in effective communications is a serious consideration. In Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 2005 CanLII 1625 (Ont. C.A.), at para. 11, the court noted that “no matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise and the changing development needs of a child must be addressed on an ongoing basis”. Disagreements over decision-making can make life miserable for children and feed into their insecurities, disillusionment and unhappiness.
That said, even where joint decision-making is neither practical nor realistic, courts have examined various models of decision-making that would still promote the parents shared involvement in every aspect of their children’s lives.
One option is to identify one of the two parents as the final decision-maker coupled with a requirement that there be full information sharing between the parents on all matters relating to a child’s welfare and well-being and with a view to working towards an agreement. Where the parents are unable to reach an agreement and the decision-making parent makes a decision, he or she must be able to demonstrate that the decision made took into account the concerns of the other parent. Depending of the nature of the decision at stake, the decision-making parent may also have to demonstrate the reasonableness of his or her preferred approach. That might require input from third-party arm’s-length advisors, as the case may be. Apart from the overriding concern that a child’s best interests be met, the rationale behinds such an approach is to avoid shutting one parent out of the overall parental relationship: see Leeming v. Leeming, 2015 ONSC 3650, 2015 CarswellOnt 8636; and Goyal v. Goyal, 2014 ONSC 3026 (CanLII).
A variation to the first option might be to separate out the decision-making subjects such that one parent has the final decision-making power over one aspect of a child’s life while the other has that authority over a different subject. Decision-making may also be linked to the parent with whom a child resides, or the decisions may be divided between day-to-day decisions and longer-term decisions: see: M.B. v. D.T., 2012 ONSC 840 (CanLII). These options lend themselves to situations where, although there might be conflict between the parents, one is not more responsible over the other, or one is not more prone to disagreement or unilateral action.
Underpinning these basic principles is the reminder from the Ontario Court of Appeal, in M. v. F., 2015 ONCA 277 (CanLII) that the Ontario legislation does not require a trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory. At paragraph 39 of the same decision, the ONCA cautioned that the subject of custody not be considered in terms of winners and losers:
[39] For twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”
“Mr. Kinnear suggests that the maximization of contact between the children and their mother is in their best interests. He says that the maximum contact principle would presume at least shared care of the children rather than the present primary residence arrangement.
The maximum contact principle originally arose from s. 16(10) of the Divorce Act, R.S.C. 1985 c. 3 (2d Supp.) which provided that contact between children and their parents should be maximized “as is consistent with the best interests of the child”. That provision has been repealed as of March, 2021 and replaced by s. 16(6) of the Divorce Act which reads as follows:
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
This provision is now echoed in s. 24(6) of the CLRA which is, of course, applicable to this case as the parties never married.
The fact that there is still a “maximization of contact” principle was reviewed by the Court of Appeal in Knapp v Knapp, 2021 ONCA 305. In that case, the appellant mother made submissions that the maximization of contact principle meant that the onus was on the party who was objecting to shared care. The answer of the Court of Appeal was an unequivocal no:
The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
This was confirmed in Brown v. Fagu, 2021 ONSC 4374 where Mandhane J. confirmed [at para. 34] that, “Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s best interests.” She stated that, at best, “all things being equal, the child deserves to have a meaningful and consistent relationship with both parents.” In other words, as suggested in the section, the time-sharing arrangement should only be ordered in accordance with the best interests of the children according to the particular circumstances before the court.
Applicant’s counsel cited Bazinet v. Bazinet, 2020 ONSC 3187 as authority for the proposition that shared care would be presumptively in the best interests of the children and that the court should ensure that parenting time is maximized. However, this case is clearly distinguishable as it was decided under s. 16(10) of the Divorce Act which provided for maximization of contact and which has now been repealed. At para. 192 of the decision, Petersen J. says that, “whatever stability is offered by the status quo parenting schedule cannot displace the statutorily mandated principle of maximum parental contact unless the evidence establishes that maximum contact would conflict with MA’s best interests.” If that statement means that maximum contact between both parents overrides the other factors concerning the children’s best interests, I do not believe that is now the law. In fact, s. 24(6) of the CLRA makes it clear that the quantity of a party’s parenting time must be “consistent with the best interests of the child.””
“Part V of the Insurance Act recognizes two types of beneficiary designations: those that are revocable and those that are irrevocable. A revocable beneficiary designation is one that can be altered or revoked by the insured without the beneficiary’s knowledge or consent (s. 190(1) and (2)). An irrevocable beneficiary designation, by contrast, can be altered or revoked only if the designated beneficiary consents (s. 191(1)). When a valid irrevocable beneficiary designation is made, s. 191 of the Insurance Act makes clear that the insurance money ceases to be subject to the control of the insured, is not subject to the claims of the insured’s creditors and does not form part of the insured’s estate.
It is clear that the interest of an irrevocable beneficiary is afforded much more protection than that of a revocable beneficiary; the former has a “statutory right to remain as the named beneficiary entitled to receive the insurance monies unless he or she consents to being removed” (Court of Appeal decision, 2017 ONCA 182 (CanLII), 134 O.R. (3d) 721, at para. 82). The legislation contemplates only one situation where insurance money can be clawed back from a beneficiary, regardless of whether his or her designation is irrevocable: to satisfy a support claim brought by a dependant against the estate of the now-deceased insured person (Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 58 and 72(1)(f)).”
“Although the Minutes were received by the court on October 12, 2021, no final order has been issued or entered.
a) A judge is not functus until a court order has been issued and entered. Iredale v. Dougall2021 ONSC 4572 (SCJ); Metropolitan Toronto Condominium Corp. 626 v. Bloor/Avenue Road Investment Inc., [2009] O.J. No. 1205 (SCJ).
b) An order can be withdrawn, altered or modified by a judge on his/her own initiative or an application of a party until such time as the order has been entered. Montagne v. Bank of Nova Scotia2004 CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.); Holmes Foundry Ltd. v. Village of Point Edward; Caposite Insulations Ltd. v. Village of Point Edward 1963 CanLII 197 (ON CA); N.S. v. R.M. 2020 ONSC 3359 (SCJ); Wharry v. Wharry, 2019 ONSC 2895 (SCJ); Clement v. Clement, 2015 ONSC 5654 (SCJ).
c) A judge can reconsider their decision until the order is drawn up and entered. Scott v. McGrail2018 ONSC 720 (SCJ).”
