Author: dawi

“I adopt the reasoning and guidelines set out by Hardman J. in Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, at paras. 10-40, regarding the importance of exploring and determining at the earliest opportunity whether a child is a “First Nations, Inuk or Métis child” under the Act and Regulations and, in the case of a connection with a First Nation, the need for service on any identified band.  The band name of the Algonquins at the G[…] reserve is the Algonquins of P[…].  This is the band that must be served with notice of these proceedings and given the opportunity of being a party to these proceedings in accordance with s. 79(1) of the Act.

The Society urged me not to make a finding that the children in this case are First Nations children.  Given the uncontroverted evidence before me, I could not accede to this request.  The Society’s counsel then urged me to continue with the trial while notice is being given to the Algonquins of P[…], even though they would not initially be present at the trial.  Clearly, that would not have been appropriate.  I shared the Society’s concern that this late development will result in further delay in a final decision being made to further the children’s best interests through a permanent and stable plan for their care.  The two girls have been in care for a period way beyond that statutory timelines.  Nevertheless, the Legislature has made it clear that it is of great importance in our quest for reconciliation with our First Nations peoples to protect their right to participate in decision-making regarding the welfare of First Nations children.

Section 79(7) of the Act allows the court to dispense with notice to a person where the court is satisfied that the time required for notice to that person might endanger the child’s health or safety.  No evidence was provided on the motion as to how the health and safety of any of the children currently in care would be negatively impacted by a further delay in these proceedings.  In saying that, I do not want to be seen as ignoring the harm that can be caused through a delay in creating a permanent, healthy, stable home environment for children.  However, in the balancing act required in applying this legislation, significant weight must to be given to the rights of our First Nations communities to further the welfare of their people.”

Children’s Aid Society of Ottawa v. M.G., 2019 ONSC 6142 (CanLII) at 14-16

“Terms may be implied in a contract based on the presumed intention of the parties, “where the implied term is necessary to give “business efficacy” to the contract; or where the implied term otherwise meets the “officious bystander” test – that is, a term that the parties would say, if questioned, “of course”” that would be understood to be a term of the contract.”; As stated by the Ontario Court of Appeal in Rankin Construction Inc. v. Ontario, 2014 ONCA 636 at para. 29:

Terms may be implied in a contract based on: (1) custom or usage; (2) legal incidents of a class or type of contract; or (3) the presumed intention of the parties, where the term is necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed”: Canadian Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC), [1987] 1 S.C.R. 711, at p. 775; see also M.J.B. Enterprises, at para. 27; Double N Earthmovers, at para. 30; Martel, at para. 81. Any implied terms must fit and be the necessary implication of the express terms; if there is any evidence against the proposed term, it cannot be implied: M.J.B. Enterprises, at para. 29.

Also see, Packall Packaging Inc v Ciszewski, [2016] OJ No 31 at para. 13 and Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252 (CanLII), [2012] O.J. No. 834 at para. 448-459.”

         Bilotta v. Booth, 2019 ONSC 5956 (CanLII) at 17

“The court can consider the necessity to vary the custody and access arrangements if the parents’ relationship has deteriorated to the point where they can no longer cooperate. Tu v. Tu (2000) 2000 CanLII 22591 (ON SC), 7 R.F.L. (5th) 178. However, just because the parents have some disagreements over childcare decisions, the court should not for those reasons alone vary a joint custody order. Cabral v. Cabral [2000] O.J. No. 1092.

In particular, the decision of St. Pierre v. St. Pierre 2005 CanLII 14007 (ON SC), [2005] O.J. No. 1669 confirms that where joint custody of the child had worked for three years, the breakdown in communication between the parties was not a ground for varying the joint custody order to provide sole custody to the mother. In that case the children enjoyed an exceptionally close relationship with the father.

The court must consider all relevant factors and the relationship of the parents to ensure there is no power imbalance or other factors which would make joint custody unworkable.

An ongoing dispute between parents and their chronic difficulties in resolving parenting issues causing emotional and physical stress on the child can be grounds for varying the joint custody order made to provide for sole custody to one parent.  Sterling v. Sterling [2005] O.J .No. 1936. Griffin v. Bootsma [2004] O.J. No. 2781 varied 2005 CanLII 35095 (ON CA),[2005] O.J. No 4112 (Ont. C.A.).”:

Williamson v. Massinger, 2014 ONSC 6063 (CanLII) at 17-20

“The importance of timely and full financial disclosure by a parent paying child support was emphasized by the Supreme Court of Canada in  Colucci v. Colucci, 2021 SCC 24:

[49]    The pivotal role of disclosure comes as no surprise since the premise underlying the Guidelines “is that the support obligation itself should fluctuate with the payor parent’s income” (D.B.S., at para. 45). The structure of the Guidelines thus creates an informational asymmetry between the parties. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would thus be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.

[50]  This is why frank disclosure of income information by the payor lies at the foundation of the child support regime. In Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law” (para. 11). A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and “the processes that have been carefully designed to achieve those policy goals” (Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44). Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach (Michel, at para. 32, per Brown J.; Brear, at para. 19, per Pentelechuk J.A.).

[51]  Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.

[52]  In line with these realities, courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income (Brear, at paras. 19 and 69, per Pentelechuk J.A.; Roseberry v. Roseberry, 2015 ABQB 75, 13 Alta. L.R. (6^th) 215, at para. 63; Cunningham v. Seveny, 2017 ABCA 4, 88 R.F.L. (7th) 1, at paras. 21 and 26). As explained by Brown J., speaking for the full Court in Michel, payor parents “are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations” (para. 33, referencing Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 47-49). Courts and legislatures have also implemented various mechanisms to incentivize and even require regular ongoing disclosure of updated income information by the payor, along with tools to move proceedings forward in the face of non-disclosure. Those mechanisms include imputing income to payors who have failed to make adequate disclosure, striking pleadings, drawing adverse inferences, and awarding costs. By encouraging timely disclosure, these tools reduce the likelihood that the recipient will be forced to apply to court multiple times to secure disclosure.  [Emphasis added]”

         Mohamed v. Dick, 2021 ONSC 6860 (CanLII) at 7

“The test for access to a child in extended society care has changed under the new CYFSA (Child Youth and Family Services Act, 2017) to be focused on a determination of what is in the child’s best interest.  The case law since the CYFSA was enacted indicates that following regarding the new test under s. 105(5) and (6):

1. While the revised legislation gives the court more flexibility and discretion in determining the issue of access to a child in extended society care, it is important to be mindful of the following:

(a)         There is still a presumption against access to a child in extended society care.

 (b)         It is still mandatory for the court to consider whether the relationship is beneficial and meaningful to the child in some way.

(c)          The court still has discretion to consider whether access will impair future adoption opportunities.

(d)          While the overall legal test is less rigidly defined, nonetheless the onus remains entirely on the person seeking access to a child in extended society care to establish on a balance of probabilities that access would be in the best interests of that particular child: Children’s Aid Society of Niagara Region v. B.P. [2018] O.J. No. 3792 (Ont. S.C.).

2. There is no longer a “formal” requirement that both considerations of beneficial and meaningful, and impairing adoption be demonstrated to satisfy the court that an access order should be made. The enactment of the CYFSA has arguably lessened the onus on the access applicant.  It may not have completely done away with the reverse onus that was implicit in s. 59(2.1) of the CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H. [2018] O.J. No. 3675 (Ont. C.J.).
3. The person seeking access must prove that access is beneficial to the child on a balance of probabilities.  While this is now a consideration under the Act,it is an important one, perhaps more important than any other.  The evidence must show that the relationship is beneficial and meaningful to the child now and not in the future: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
4. The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made.  The extended care order presumes that the child and the access seeker will not be re-united in one family.  In fact, the permanency plan for such child is necessarily with someone else.  So why have an access order?  The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful.  It is a child focused inquiry.  It matters only a little, if at all, what the relationship may be for the access seeker: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.H., supra.
5. The case law under s. 59(2.1) of the CFSA with respect to the interpretation of “beneficial” and “meaningful” remains relevant under s. 105(6) of the CYFSA: Children’s Aid Society of Niagara Region v. B.P., supra.”

The Children’s Aid Society of the Regional Municipality of Waterloo v. J.J., 2018 ONCJ 750 (CanLII) at 27

“Since Darryn turned eighteen years of age on June 16, 2011, it is necessary to consider the law respecting entitlement to support for children of the relationship who have acquired adult status.   The onus is on the party seeking support for an adult child to demonstrate entitlement to support (Rebenchuk v. Rebenchuk, 2007 MBCA 22 (CanLII); 2007 CarswellMan 59 (C.A.);  Olson v. Olson, 2003 ABCA 56 (C.A.) (CanLII);  MacLennan v. MacLennan, 2003 NACA 9 9 (C.A.) (CanLII);  Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.)).  Where the claim for ongoing support under the Family Law Act is based on the child’s enrolment in a full time program of education, the party seeking support must provide tangible evidence of the child’s enrolment and attendance in the program, and has the onus of satisfying the court that the child’s level of participation in the program meets the requirements of section 31(1) of the Act (Vohra v. Vohra, 2009 ONCJ 135 (CanLII), [2009] O.J. No. 1446 (Ont. C.J.)).  Enrolment in a full time program of education requires more from the child than simply being registered in a full time program (Figueiredo v. Figueiredo (1991), 1991 CanLII 4204 (ON SC), 33 R.F.L. (3d) 72 (Ont. Gen. Div.)). Furthermore, the policy of the applicable educational institution as to what constitutes enrolment in a full time program is not determinative of whether the child’s involvement in the program meets the requirements of section 31(1) of the Act (Cava v. Cava, 2005 CanLII 19815, 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316, [2005] O.T.C. 430, 2005 CarswellOnt 2287 (S.C.J.)).

The word “enrolled” refers to the child’s participation in the program.  In order to remain eligible for support, the child’s participation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be “consistent with the program’s purposes and objectives” (Giess v. Upper, 1996 CanLII 8102 (ON SC), 1996] O.J. No. 5600 (Gen. Div.))  From a quantitative standpoint, while a child need not have stellar attendance in programming in order to meet the test, there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges.  From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program taking into account their overall level of functioning.  The determination of whether a child’s participation in an educational program in question is sufficiently meaningful to secure ongoing entitlement to support must take into consideration the particular circumstances of the child.  A standard of perfection in terms of attendance and success in the program is not required.  The wording of section 31(1) must be construed flexibly and for the benefit of children, so as to ensure that children enrolled in an educational program have “easy access to the fruits of this section” (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v. Wilson, 2002 CanLII 2824, 117 A.C.W.S. (3d) 945,  [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.)).  Accordingly, a child may remain entitled to support on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances. (Copeland v. Copeland, Supra;  Vohra v. Vohra, Supra.;  Sullivan v. Sullivan (1999), 126 O.A.C. 292,  50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 CarswellOnt 3340 (Div. Ct.);  Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.);  Vivian v. Courtney (November 17, 2010), Doc. D3067/93 (Ont. S.C.J.);  Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.)).”

         Meyer v. Content, 2014 ONSC 6001 (CanLII) at 29-30

“Nothing in the FLA precludes a litigant from entering into a domestic contract without full financial disclosure.  Where a spouse, chooses not to pursue further disclosure, with the benefit of independent legal advice, the litigant cannot resile from the consequences of that decision unless he demonstrates that the other spouse’s financial disclosure was inaccurate, misleading or false: Quinn v. Epstein, Cole LLP, 2008 ONCA 662, paras. 3-4.

…

In any event, in Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228,  at para. 54, the Ontario Court of Appeal stated that “.. a party to a marriage contract cannot enter into it knowing of shortcomings in disclosure and then rely on those shortcomings as the basis to have the contract set aside”.  Thus, given that Mr. Kruger was of the view that there had been “no disclosure at all”, it is too late for the Respondent to complain when the need for disclosure could have been addressed at the time that the terms of the marriage contract were negotiated.”

         Gorman v. Sadja, 2020 ONSC 6192 (CanLII) at 29 & 38

“As held by Justice Curtis in Tameanko v. Goldman 2014 ONCJ 580 (CanLII), where a party does not raise the existence or effect of an arbitration clause and its possible impact upon a legal proceeding, that party acquiesces to a waiver of the arbitration clause.  Such a result is even more obvious when that party not only fails to raise the existence or effect of the arbitration clause, but then takes active steps in the legal proceeding to pursue his/her rights, interests and claims.  This is exactly what the respondent did in this proceeding.”

         George v. Wang, 2020 ONSC 6175 (CanLII) at 25

“It is axiomatic that a person who has a constitutional right has the right to assert it in ordinary legal proceedings subject to the limitations in the jurisprudence to which I will refer later.

The constitutional issue to which Mr. Hill’s claim gives rise is whether s. 35 of the Constitution Act, 1982, together with any applicable treaties, completely displace or otherwise modify the application of the FLA, the CLRA and associated rules to this family law dispute between Indigenous parties who live in Ontario. This is a complex legal issue with serious implications for the immediate parties and more broadly.

The Superior Court of Justice has jurisdiction to decide the constitutional issue. It is a court of inherent and plenary jurisdiction, and has authority over disputes between citizens and residents subject to the provisions of legislation and the Constitution, with associated rights of appeal: Canada (A.G.) v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307 at pp. 326-27.”

Beaver v. Hill, 2018 ONCA 816 (CanLII) at 9-11

“All parties agree that a judge’s decision to adjourn or not adjourn a trial is highly discretionary. In Ariston Realty Corp. v Elcarim Inc. 2007 CanLII 13360 (ONSC), Justice Perell set out a helpful list of factors and principles for the Court to consider when exercising its discretion to grant or refuse an adjournment:

“Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:

• • • • • the overall objective of a determination of the matter on its substantive merits;
        •  the principles of natural justice;
        •   that justice not only be done but appear to be done;
        •  the particular circumstances of the request for an adjournment and the reasons and justification for the request;
        • the practical effect or consequences of an adjournment on both substantive and procedural justice;
        •  the competing interests of the parties in advancing or delaying the progress of the litigation;
        • the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
        • whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
        • the need of the administration of justice to orderly process civil proceedings; and
        • the need of the administration of justice to effectively enforce court orders.”

         Konstan et al. v. Berkovits et al., 2021 ONSC 6749 (CanLII) at 14