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“In White Burgess Langille Inman v. Abbot v. Haliburton Co, 2015 SCC 23 [“White Burgess”], Cromwell J opened the judgment as follows:

Expert evidence can be a key element in the search for the truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. See para 1.

In the child protection context, and in particular in a case such as this where the Society seeks to permanently sever the legal relationship between the children and their parents while severely restricting contact, the dangers associated with admitting potentially unreliable experts are perhaps at their highest. As noted in the Report of the Motherisk Commission, losing one’s child to an Order for extended Society care is the “capital punishment of child protection law.” Thus, the import of rigorously scrutinizing proposed expert evidence can hardly be overstated.

Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.

Having reviewed the caselaw regarding expert evidence, it appears that in many of the reported family law cases where a participant expert is permitted to testify, it has been on consent, unopposed, or with brief consideration of the applicable principles. It seems to be generally accepted in the Ontario caselaw that in most cases, professionals such as treating physicians, treating psychologists, and treating pediatricians may testify as participant experts so long as they stay within a relatively narrow scope, that deriving directly from their involvement and the professional opinions arrived at based directly on that involvement. The court’s ongoing vigilance and gatekeeping is essential regarding the scope of testimony. Bruff-Murphy v. Gunawardena, 2017 ONCA 502; Parliament v. Conley, 2021 ONCA 261.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 17-24

“In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal observed that the Rules involving admissions are a “useful practice” purposed “to dispense with proof at trial and to minimize the cost of litigation and the areas of dispute between the parties”, and “[f]or legitimate policy reasons, these objectives are to be encouraged.”: Serra, at para. 109. In Norris v. Norris, 2016 ONSC 7077, a case upon which the wife relies, the wife in that case brought a summary judgment motion after serving a Request to Admit. After noting that “[t]he conduct of litigation requires strategic thinking”, Corthorn J. implicitly endorsed the Serra reference to encouraging these objectives so as “to enable the court to deal with cases justly”, which is the primary objective of the Family Law Rules: Norris, at paras. 66 and 71. Those are set out in Rule 2(3) and include the following:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

A fact deemed true may, in certain circumstances, be withdrawn. The scope of the court’s discretion over the deemed admissions to which effect should be given will vary according to the circumstances giving rise to a party’s failure to respond and whether the admission involves fact, mixed fact and law, or a question of law. For example, where the failure to respond is due to satisfactory evidence of inadvertence or a mistake, or where there is a reasonable explanation for the change in a party’s position, a deemed admission may be withdrawn: Forget v. Forget, 2001 CarswellOnt 3271 (Ont. S.C.J.), at para. 17.   Where a Request involves minute details of marginal value to the larger issues in the case, a court may refuse to consider the Request or any deemed admissions arising from it: Splett v. Pearo, 2011 ONSC 5329, at paras. 4-9. Serial Requests may amount to an abuse of process, being neither cost effective nor advancing the interests of the case. Admissions involving mixed fact and law, or a question of law are generally of little weight: Serra, at para. 111.

A Request to Admit will be most successful where it is crafted to avoid patently controversial facts or propositions involving law. It can be a useful strategic tool at any stage of a family law proceeding and is entirely consistent with the primary objective of the Family Law Rules. A party who ignores a Request does so at their peril.”

Iturriaga v. Iturriaga, 2023 ONSC 6368 (CanLII) at 9-11

“The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, General Matters Under the Authority of the Lieutenant Governor in Council under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. This definition reads as follows:

Interpretation, First Nations, Inuk or Métis child

1. 1. 1. 1. 1.    A child is a First Nations, Inuk or Métis child for the purposes of the Actif,

(a)   the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b)   the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c)   it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i)                 a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii)              there is a connection between the child and a band or a First Nations, Inuit or Métis community. (emphasis added)

In the present case, the children’s identification as Inuit meets the definition under s. 1(a) of the Regulation. I am mindful of the statements of Justice Bale in CCAS v. M.P. et al., 2021 ONSC 6788 wherein she joined with other justices in calling for a solid evidentiary basis before determinations of Indigenous identity are made. As Justice Bale stated:

It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share.  Surely, something more than a simple self-declaration of identity is needed: CCAS v. M.P. at para 49.”

The Children’s Society of Ottawa v. N.D., 2024 ONSC 6200 (CanLII) at 11-12

“At the close of the trial, the mother asked the court to order, as part of the final divorce order, the father to provide the mother with a religious divorce within 90 days of this decision. The mother did not give me any legal authority to make such an order. The only evidence at trial that pertains to this request was that the parties are Muslim, and the mother’s religion is very important to her. There was no evidence at trial that the mother had requested a religious divorce from the father or that the father had refused to provide it.

I find that the court does not have jurisdiction to make such an order at this time and dismiss this claim for the following reasons:

   The mother has not included a claim for a religious divorce in her pleadings. It is not in her Answer. While this is not necessarily fatal to her request, the fact that I did not have any evidence that the father was on notice that she was seeking such an order from the court means that I cannot find that, despite not being in her pleadings, it is otherwise just and in accordance with the court’s primary objective under Rule 2 to allow this claim to be raised at the end of the trial.

   The mother has not given me any authority in support of the court having jurisdiction to make the requested order.

   The process provided for under s.21.1 of the Divorce Actaddresses removing barriers to remarriage, but that process has not been followed here. Under s.21.1, the court has discretion to refuse to hear a party who fails to eliminate barriers to the remarriage of the spouse entitled to a divorce in Canada (see Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 448; Salehi v. Tawoosi, 2016 ONSC 54; Schiewitz v. Shiewitz, 2018 ONSC 3864). Usually, the s.21.1 process is initiated well before trial because the remedy provided under the Divorce Act is to strike pleadings if the barriers are not removed, not to make an order requiring a party to grant a religious divorce.

   Even if I were to attempt to use s.21.1 to grant some similar order to the one sought, the mother has not provided evidence at the trial of the barriers to remarriage or steps taken to obtain a religious divorce or the information otherwise required under s.21.1.”

          Sablani v. Sablani, 2023 ONSC 6288 (CanLII) at 13-14

“As provided in s. 17(4.1) of the Divorce Act, an order for spousal support made under the Act may be varied where there has been a “material change in circumstances”.  A “material change in circumstances” is a “substantial” change.  There is a wealth of jurisprudence respecting this concept, which need not be reviewed here in detail: it is sufficient to note that a change must be substantial before the court will vary the order.

The phrase “catastrophic change in circumstances” is not a term of art under the Divorce Act and is not a settled concept in Canadian family law.   In Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC), Mazza J. finds (at para. 13):

By the use of the phrase “catastrophic change”, the parties have agreed that it is not enough for the change to be substantial, a term that would define “material” but it must be “disastrous” or “devastating”, terms that would clearly describe “catastrophic”: Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995).  The question to be determined is whether or not the evidence supports the latter definition.

In Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 RFL (6^th) 62 (Ont. SCJ), para. 83, Linhares de Sousa J. found as follows:

With respect to whether this would constitute a “catastrophic change in circumstances”, the parties have not defined this phrase in their Separation Agreement.  One is therefore left to be guided by how the jurisprudence has defined that phrase.  There is no question that the threshold is high.  The cases use such words as “drastic”, “dramatic”, “radical”, and “gross” (see Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 SCR 801; Bradley v. Bradley, [1997] OJ No 2349, 1997 CanLII 15689 (ON SC); and Ouellette v. Ouellette, [1994] NWTJ No. 47).

In the recent case of Roberts v. D’Amico, 2021 ONSC 707, Kimmel J. found that the effects of measures taken in response to the COVID-19 pandemic did constitute a “catastrophic change in circumstances” for the payor husband, whose employment at Air Canada was affected profoundly by the reduction in air travel during the pandemic.”

Rokach v. Rokach, 2021 ONSC 7361 (CanLII) at 28-29

“It is appropriate for the court to rely on hindsight evidence, but only in certain circumstances.

In Best v. Best, 1997 CanLII 576 (ON CA), [1997] O.J. No. 4007 (Ont. C.A.), the court grappled with the evaluation of a party’s pension which depended on when that party retired.  The husband had not retired as of the date of trial and the trial decision.  The court stated that post valuation date facts can sometimes be relevant in determining such things as a retirement date assumption.  If subsequent events could reasonably be contemplated on the valuation date, these events may be relevant since the issue to be determined is the probable age of retirement as contemplated by the pension plan holder on the date of valuation.  Facts that were unknown to, or not within the contemplation of the pension holder on the valuation date are not relevant: Best at paras. 20-21.  Given that the eventual retirement age was neither known nor contemplated at the time of the trial, hindsight evidence was not permitted.

At the SCC, this finding was upheld with respect to the use of hindsight evidence, but the SCC opined that a different result may have prevailed had the parties chosen a different method of pension valuation: 1999 CanLII 700 (SCC), [1999] S.C.J. No. 40 (QL) at paras. 104-105.

This limited use of hindsight evidence was further supported in MB v. SBB, 2018 ONSC 4893.  In that case, McGee J. reviewed the caselaw and concluded that the court is generally reluctant to rely on hindsight evidence unless a subsequent change was reasonably foreseeable.  She states at para. 302:

One is to rely exclusively on information available at the time of valuation (whether date of marriage or date of separation), but that information may include realistic outcomes of future events already in the process of unfolding.

Based on the foregoing, hindsight evidence cannot be used to establish an actual value on the date of separation unless there are facts that are known or within the contemplation of the party on the date of separation, which facts are born out by future events.”

            Le v. Nguyen, 2022 ONSC 6265 (CanLII) at 24-28

“It is, perhaps, counter-intuitive that fostering a healthy relationship with the other parent may enhance the likelihood of a relocation Order being made. In O’Brien v. Chuluunbaatar, 2021 ONCA 555, the Court of Appeal upheld a trial judge’s Order permitting a mother to relocate to Mongolia with the parties’ seven-year old son, born and raised in Ontario. Pivotal to the best interests’ analysis were the benefits to the child of the mother’s enhanced emotional, psychological, social and economic well-being if relocation was permitted, and the trial evidence that

“…even with the relocation, the mother would facilitate the relationship between the child and the father, which the mother recognized as important. On the trial judge’s findings, the mother has always followed the court ordered access; been generous with additional access; encouraged telephone access between the father and the child even when they were in Mongolia; and, allowed the father to attend her residence for access in a period when the father had mental health difficulties.”: Ibid at para. 26.

In Bourke v. Davis, 2021 ONCA 97, also a relocation case, the trial judge allowed the mother of the parties’ two young children born and raised in Kitchener, Ontario, to move with her to Redmond, Washington where her new husband had found employment. A s.112 OCL report had recommended against the move because it would adversely impact the father’s involvement in the children’s health, education and religion. In upholding the move, the Court of Appeal observed that the trial judge had found that

“… there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their dental care, additional access time for the [father], education issues, and the arrangement of events such as birthday parties.” Ibid, at para. 23.

          A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 138-139

“Counsel points to the comments of Justice Jain at paragraph 25 of Simcoe Muskoka Child, Youth and Family Services v. J.K et al, 2021 ONSC 1855, in which Her Honour confirmed that a temporary mental health breakdown does not pose a risk to the children if: concerns are being appropriately addressed; the parent is able to care for the child safely; and there is a safety plan in place.  I agree with this analysis.”

The Children’s Aid Society of the Regional Municipality of Waterloo v. P.S. and K.K., 2024 ONSC 6053 (CanLII) at 18

“The court notes the special provisions in subsection 24(4) of the Act relating to family violence. The following paragraphs provide further commentary about this significant issue.

The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. 1. 1. 1. 1.   The recent amendments to the Divorce Actrecognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
            2.   The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
            3.   Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children.  These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate.  A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private.  Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.

Financially controlling your spouse by deliberately making inadequate support payments can constitute family violence. See: N.M. v. S.M., 2022 ONCJ 482; F.S. v. M.B.T., 2023 ONCJ 102.

Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim.  See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.”

          N.K.M. v. K.E., 2024 ONCJ 551 (CanLII) at 15-24

“Non-compliance with a page, spacing, or font requirement of the Practice Direction undermines the direction given by the Chief Justice of this Court, interferes with the administration of justice because of the workload problems it creates for judges, and can result in unfairness to an opposing party who does comply with the Practice Direction.

…

It appears to me that an express rule in both the Family Law Rules and the Rules of Civil Procedure, that conferred authority on the Court to hold lawyers to account for obvious breaches of the Practice Directions issued by the Chief Justice is the most practical solution.  Given the frequency with which there is non-compliance with the Practice Direction, I would suggest this is a necessary rule amendment and recommend that the respective rules committees consider such an amendment.”

          Ramdoo v. Houlden, 2024 ONSC 5994 (CanLII) at 4, 13