Category: Uncategorized

“Justice Pazaratz, who during the short period of time that the family courts have been faced with COVID-19 related custody and access issues has written extensively on the topic, directly advised the Applicant and Respondent in his triage endorsement in this proceeding of the general expectation on parents to honour parenting arrangements during the COVID-19 Health Crisis:

While COVID-19 is a relatively new and unheard of issue in our lives, during the past weeks our court system has devoted a lot of attention to parenting arrangements during these difficult times.  The caselaw is overwhelmingly clear in saying that there is a presumption that parenting and timesharing arrangements will continue – to be modified only as may be required to address health or safety issues in relation to the children and their households.  A complete suspension of timesharing is not the starting point – it is the last resort, to be considered only after every possible option has been thoroughly considered.   Every case that I’ve seen says that the objecting parent has to do a lot more than just say “I’m afraid of COVID-19” or “my child is afraid of COVID-19”.  We’re all afraid.  Fear is no excuse to abdicate parental responsibility.  Parents have an obligation to not only obey court orders but to facilitate and encourage children to accept and comply with arrangements which adults have determined to be appropriate. This is especially true in cases like this where the parties have joint custody.  That’s not an empty label.  It means both parents have been entrusted with an equal responsibility to work together in a mature, creative and child-focused manner: 2020 ONSC 2843 at para. 15.”

         Brazeau v. Lejambe, 2020 ONSC 3117 (CanLII) at 23

“Section 2 of the Divorce Act defines a child of the marriage to mean:

a child of two spouses or former spouses, who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

The law is well-settled that an adult child under the age of 24 who is regularly attending school and pursuing an education in the ordinary course designed to fit the child for the future constitutes an “other cause”: Tapson v. Tapson, 1969 CanLII 541 (ON CA), [1969] O.J. No. 1490 (ON CA).  See also Giorno v. Giorno, 1992 CanLII 2592 (NS CA), [1992] N.S.J. No. 94, 39 R.F.L. (3d) 345 (NS CA).”

         Gagne v. Mendoza, 2018 ONSC 3141 (CanLII) at 39-40

“Leave to appeal costs is granted rarely and only in “obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion’”: Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92.”

         Dancy v. Mason, 2019 ONCA 410 (CanLII) at 20

“A trial judge should consider the conduct of the proceedings and delays attributable to particular parties to those proceedings in determining the rate of prejudgment interest.  Prejudgment interest is not, however, intended as a means of punishing or rewarding parties for the manner in which they have conducted the proceedings.  Its role is compensatory.  I see no basis to interfere with the trial judge’s finding that Mr. Novakovic’s conduct of the claim should not deprive him of the compensation due him under the Courts of Justice Act provisions relating to prejudgment interest.

The appellant also argues that the rate of prejudgment interest should be modified to reflect the change in the rate between December 2000 and September 2005.  The rate fluctuated between a high of six percent in December 2000 and a low of 2.3 percent in 2002.  The average for the time period would appear to be about 3.4 percent.

Trial judges sometimes average prejudgment interest rates over the time period between the commencement of the action and the obtaining of judgment.  This is particularly appropriate where the prejudgment interest rates fluctuate widely.  The onus is, however, on the parties seeking a different rate than that imposed by the statute to justify the imposition of that different rate.  I do not think the fluctuations in issue in this case are sufficient to hold that some averaging of the prejudgment interest rates was essential.  Clearly, the trial judge could have averaged the rate but, in my view, she did not err in not doing so.”

         Novakovic v. Kapusniak, 2008 ONCA 381 (CanLII) at 42-44

“It is clear that since COVID-19 the court has found that there is no presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169, at para. 10.

In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz set out the following:

a)    In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing.

b)    A blanket policy that children should never leave their primary residence — even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

c)     In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day-period as a result of recent travel; personal illness; or exposure to illness).

d)    In some cases, a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

e)     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

f)     The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to — including social distancing; use of disinfectants; compliance with public safety directives; etc.

g)    Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

h)    Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

Although Ribeiro is not a child protection matter, the guidelines are applicable. See: Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, at para. 6.”

         C.A.S. v. J.N., 2020 ONSC 2999 (CanLII) at 61-63

“The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co‑operate and communicate effectively: see, for example, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at 4 (C.A.).”

Roy v. Roy, 2006 CanLII 15619 (ON CA) at 4

“Section 3(1) provides that the “amount of a child support order” for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The tables referred to in s. 3(1)(a) are the Federal Child Support Tables set out in Schedule I of the Guidelines. Section 7 allows a court to provide for an amount to cover all or any portion of special or extraordinary expenses. As I read s. 3(1), expenses ordered under s. 7 are not added to the amount of a child support order, but are part of it. I understand Laskin J.A.’s comment at para. 25 of Andrews v. Andrews (1999), 1999 CanLII 3781 (ON CA), 45 O.R. (3d) 577, [1999] O.J. No. 3578 (C.A.) to describe an expense under s. 7 as an “add-on” to the table amount. While the application of s. 3(1) is subject to the exception “[u]nless otherwise provided under these Guidelines“, there is a presumption in favour of the amount determined by s. 3(1): Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, [1999] S.C.J. No. 52, at para. 42.

Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.

Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. It is apparent that the word “approach” was chosen with care, as the word “amount” is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the “amount” determined under s. 3 where it considers that amount to be inappropriate. The words “that approach” refer to the technique dictated by s. 3(2) (a) — namely applying the Guidelines “as if the child were under the age of majority”. I will refer to that technique as the “standard Guidelines approach”. Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.”

            Lewi v. Lewi, 2006 CanLII 15446 (ON CA) at 126-129

“Rule 24 [of the Family Law Rules] created a new framework for determining costs in family law proceedings.  The presumptive nature of rule 24 has significantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party.  The Ontario Court of Appeal in MacDonald v. Magel, 2003 CanLII 18880, 67 O.R. (3d) 181, 176 O.A.C. 201, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149, [2003] O.J. No. 3707, 2003 Cars­well­Ont 3606, held that, while the rules have not completely removed a judge’s discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs.  Courts must not only decide liability for costs, but also the amount of those costs.

In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars­well­Ont 2475, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

	(1)	to partially indemnify successful litigants for the cost of litigation;
	(2)	to encourage settlement; and
	(3)	to discourage and sanction inappropriate behaviour by litigants.

The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees.  As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars­well­Ont 2521 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

In Delellis v Delellis and Delellis, 2005 CanLII 36447, 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars­well­Ont 4956, Justice David R. Aston states the following at paragraph [9]:

. . .  recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs.  . . .  Costs must be proportional to the amount in issue and the outcome.  The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant  . . .”

         Christie v. Christie, 2013 ONCJ 256 (CanLII) at 24-27

“The rule in Browne v. Dunn creates an obligation to give a witness, called by the opposite side, an opportunity to explain evidence which the cross-examiner intends to later use to impeach the testimony or credibility of the witness. This rule was expressly adopted in Canada in Peters v. Perras (1909), 42 S.C.R. 244.

…

Trial judges do have discretion as to the remedy to be afforded for a breach of the rule in Browne v. Dunn, if a breach has occurred. The effect that a court should give to a breach of the rule depends on a number of factors and the circumstances of the case: R v. Dexter, 2013 ONCA 744, 313 O.A.C. 266, at para. 20; R v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9. In Dexter, this court delineated two permissive options to rectify a breach of the rule. First, the trial judge can take into account the breach of the rule when assessing a witness’s credibility and deciding the weight to attach to that witness’s evidence: Dexter, at para. 21; Werkman, at para. 9; R v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124. Second, the trial judge can also allow counsel to recall the witness whose evidence was impeached without notice: Dexter, at para. 21; R v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (Ont. C.A.), at paras. 47-49.”

         Curley v. Taafe, 2019 ONCA 368 (CanLII) at 27 & 31

“In these motions, the parties both seek to vary an existing interim custody and access order made pursuant to section 16(2) of the Divorce Act.  The legislation does not set out a specific test for variation of interim custody and access orders.  Although section 17 (1)(a) of the Act authorizes the court to vary a custody order, and section 17(5) enumerates the factors that the court must consider in doing so, that section only applies to final custody and access orders (Brooks v. Brooks, 1998 CarswellOnt 3097 (C.A.); Lagrandeur v. Lagrandeur, 2017 ONSC 6967 (S.C.J.), at para. 41).  However, the court does have the jurisdiction to change interim custody orders made under section 16(2) of the Divorce Act in appropriate circumstances.  The Ontario Court of Appeal has held that typically, interim custody and access orders should not be changed unless there is a “manifest change in circumstances or any important new evidence to justify a change in the status quo” (Serruys v. Serruys, 1982 CarswellOnt 305 (C.A.), at para. 12).    It has emphasized the importance of minimizing interlocutory proceedings in custody and access matters, stating that any decision can generally be only “guess based” without the benefit of a full hearing with viva voce evidence and cross examination (Serruys, at para. 12).  Accordingly, there should be sound reasons that militate in favour of taking immediate action with respect to the parenting arrangements rather than waiting for a final hearing on the issues (see also F.(H.) v. G.(D.), 2006 NBCA 36 (C.A.), at para.  17).”

         Blythe v. Blythe, 2020 ONSC 2871 (CanLII) at 24