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“When there is a dispute about a parenting order, all parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782; A.E. v. A.E., 2021 ONSC 8189, at para. 89; and K.M. v. J.R., 2022 ONSC 111, at para. 71.

As stated in Barendregt v. Grebliunas, 2022 SCC 22, at para. 8, the inquiry “is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult – the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.”

The best interests inquiry is highly contextual because of the numerous factors that may impact the child’s well-being. The considerations that the court should focus on in carrying out the assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case: Van de Perre v. Edwards, 2001 SCC 60, at para. 13; Barendregt, at para. 97; and B.J.T. v. J.D., 2022 SCC 24, at para. 55.

The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 99, 117; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 28, 37, and 50; and F. v. N., 2022 SCC 51, at para. 61.”

          Tsiriotakis v. Rizzo, 2024 ONSC 2339 (CanLII) at 96-99

“Parties must earn what they are reasonably capable of earning.  Otherwise, we risk harm to children in that the parties are failing to adhere to their responsibilities to support their children.  One way in which we determine income is by imputing an income to the payor.  We do that after a consideration of three questions:

i.        is the payor intentionally unemployed or, in the case of this father, under-employed;

ii.         if so, is the intentional unemployment or under-employment by virtue of the payor’s reasonable education or health needs; and

iii.            if not, then what income is appropriately imputed to the payor?

Gordon v. Wilkins, 2020 ONCJ 115, at paragraphs 23-24, citing Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.).

The burden of proof on this motion rests with the mother – the party seeking to have income imputed to the other side.  The standard of proof is on a balance of probabilities.  An evidentiary basis is required to be put forward by the moving party, although the responding party’s failure to disclose their finances may mitigate that obligation to some degree.  Once a prima facie case for imputation of income has been established, then the onus shifts to the responding party to defend the income position that they are taking.  Gordon, supra, at paragraphs 25-26, citing Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552 (C.A.), Graham v. Bruto, 2008 ONCA 260, Lo v. Lo, 2011 ONSC 7663, and Charron v. Carriere, 2016 ONSC 4719.

If a party, like the father in our case, chooses to pursue self-employment as an alternative income earning path, the question becomes whether that choice was reasonable in all of the circumstances.  If not, imputation of income to that party may be the result.  Reasonableness is the key theme – parents are required to act responsibly when making decisions that may impact on the level of child support available.  Tillmanns v. Tillmanns, 2014 ONSC 6773, at paragraphs 77 and 81, citing various authorities including Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.).”

          A.I. v. J.R., 2024 ONSC 2328 (CanLII) at 5-8

“Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(I)      that the child is physically present in Ontario at the commencement of the application for the order,

(II)     that substantial evidence concerning the best interests of the child is available in Ontario,

(III)   that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(IV)   that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(V)     that the child has a real and substantial connection with Ontario, and

(VI)   that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [Emphasis added.]

As this court said in Wang v. Lin, 2013 ONCA 33, 358 DLR (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.

…

 Section 23 provides:

Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i)        the child remains in the custody of the person legally entitled to custody of the child,

(ii)        the child is returned to the custody of the person legally entitled to custody of the child, or

(iii)        the child is removed from Ontario.

Because the Ojeikeres’ three children are physically present in Ontario, under s. 23(b) an Ontario court can exercise jurisdiction over their custody or access if satisfied that the children would, on a balance of probabilities, suffer “serious harm” if they were sent back to Nigeria.

Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22’s aim of discouraging child abduction becomes secondary to s. 23’s aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.”

Section 23 of the CLRA is discretionary. Under s. 25, a court with jurisdiction over custody or access may decline to exercise its jurisdiction where it is of the opinion that another jurisdiction is more appropriate. Although s. 25 could potentially qualify the court’s discretion under s. 23, I find it hard to conceive that an Ontario court would decline jurisdiction under s. 23 if satisfied a child would suffer serious harm if removed from the province.”

          Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 27-28, 37-40

“The Applicant requests the consent final order be made “nunc pro tunc”, or retroactive to September 8, 2023, the date it was signed by the parties. The Applicant acknowledged this is a discretionary power of the Court.

The Supreme Court of Canada, in Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 (para. 86) explained:

The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.

Similarly, in circumstances where courts have made errors through an oversight or a “slip”, orders have issued retroactively. These are not the only circumstances where the doctrine of nunc pro tunc may be applied but serve only as examples.

Prior to courts exercising its inherent jurisdiction, the following factors must be considered: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. This list is not meant to be exhaustive. (Ibid, para 90).”

          B.A. v. I.K., 2024 ONSC 2225 (CanLII) at 10-13

“The narrow and determinative issue before this court is whether the fact that the father’s pleadings have been struck precludes his right to appeal.

This court in Lamothe [v. Ellis, 2022 ONCA 789] at para. 3, held that it “will not typically hear an appeal by a party from an unopposed proceeding” because “[p]articipation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”

The court in that case recognized, at para. 3, that there may be exceptions to this rule where the issues raised in the appeal have clear merit or show that an injustice has been done.”

          Matos v. Driesman, 2024 ONCA 271 (CanLII) at 16-18

“Section 31 of the Marriage Act authorizes a court to validate a marriage entered into in good faith. The section reads:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

Put simply, the following four elements must be applied for a marriage to be deemed valid under the Marriage Act:

The marriage must have been solemnized in good faith;

The marriage must have been intended to be in compliance with the Marriage Act;

Neither party was under a legal disqualification to contract marriage; and,

The parties must have lived together and cohabitated as a married couple after solemnization.”

          Swinden and Crowell, 2023 ONSC 2310 (CanLII) at 17-22

“It is well-established in caselaw that a child may have more than one payor parent if a non-biological parent stood in loco parentis (See Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242; see also Wright v. Zaver, 2002 CanLII 41409 (ON CA), 59 OR (3d) 26 [2002] (ONCA)).”

          Thompson v. Thompson, 2024 ONSC 2121 (CanLII) at 25

“Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the court “shall make a final order” if there is no genuine issue of a claim or defence requiring trial. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.

Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; see also Phillion v. Phillion, 2015 ONSC 4255.

In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.”  The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences to resolve claims without the need for a trial.

The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.

The determination of a motion for summary judgment involves a two-step approach. The judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. However, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.

On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. Both parties must put their “best foot forward”, and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

In this case, the Respondent must establish that there is no genuine issue requiring trial in relation to the Applicant’s claim that the Separation Agreement ought to be set aside in its entirety, or in part. If he does, then the onus shifts to the Applicant to demonstrate that there is a genuine issue requiring a trial based on competing evidence that throws material facts into dispute, the assessment of which should be deferred to a trier of fact because, for example, assessment of credibility is warranted.”

          Haier v. Haier, 2024 ONSC 2102 (CanLII) at 22-28

“The change of a child’s name is dealt with in s. 5 of the [Change of Name, R.S.O. 1990, c. C.7] Act. The Act allows a person with “lawful custody” to apply to the Registrar General for a name change. Subsection 5(2) states who must consent to the application. Subsection 5(4) provides that if the required consent cannot be obtained or is refused, the person seeking the change can apply to the court for an order dispensing with that consent.

The relevant parts of s. 5 are set out below.

5 (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,

(a)  the child’s forename or surname or both; or

(b)  the child’s single name, if the child has a single name.

(1.1) Subsection (1) applies to a person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b)  a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made.

 (2) The application under subsection (1) requires the written consent of,

(a)  any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

(c)  the child, if the child is twelve years of age or older.

…

(4) If the required consent cannot be obtained or is refused, the person seeking to change the child’s name may apply to the court for an order dispensing with that consent.

(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child.

(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child.

…

The Act does not provide the father with a statutory pathway for changing the child’s surname. Under the Vallee order, the mother has sole custody of the child. While she is required to consult with the father on all major decisions, her decision prevails. Of note, the father is not seeking to change the Vallee order.

Under the Act, only a person with “lawful custody” can apply to the Registrar General for a change of name. The father does not have custody nor any decision-making power under the Vallee order. As an access parent, he cannot rely on this Act to seek a name change.

As stated in Felix v. Fratpietro (2001), 2001 CanLII 37828 (ON SC), 13 R.F.L. (5th) 54 (Ont. S.C.) at para. 22: “[t]he cases are clear that a name change is an incident of custody. That is made abundantly clear by virtue of the Change of Name Act itself which requires consent from a custodial parent, but only notification to an access parent.”

Furthermore, the father is not a person whose consent is required under s. 5(2), assuming the mother had applied for a name change.

The only reference in s. 5 to an access parent is found in s. 5(6). This subsection provides that the access parent has a right to be given notice of any application for a change of name.”

          Bova v. Vandervliet, 2021 ONSC 2524 (CanLII) at 13-19

“As is often observed, the assessment of credibility is not an exact science: Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8^th) 269, at para. 42.  In M.K.-C. v. C.C., 2023 ONSC 7097: also Smith v. Noel, 2023 ONSC 6682, at para.12., McGee J. dealt with credibility where there were suggestions that evidence was tailored, ignored or unreliable.

[55] Credibility and reliability are related but distinct concepts. Reliability speaks to the accuracy of the witness’ ability to accurately observe, recall and recount the events in issue.  Credibility centres on a witness’s genuine efforts to tell the truth in a wholesome manner, not leaving out details that could mislead the listener. An honest witness endeavors to tell the truth as they experienced it, acknowledging that some of their perceptions may have been flawed.

[56] One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting certain events at one time while referring to them on other occasion. [Citation omitted]

[57] A dishonest witness is not a reliable witness absent corroboration, but it does not automatically follow that a credible witness gives reliable evidence. To provide honest and reliable evidence, a witness must be truthful and alive to their limitations. They must be open to the possibility of alternative perceptions. A credible witness without such insight may inadvertently give unreliable evidence because they are rash, overconfident, or reckless in their pursuit of an outcome.

[58] Ultimately, a court must consider all the relevant factors that go to the believability of the evidence in the factual context of the case.

Credibility assessment is not all or nothing. As noted in Re Novak Estate,

[37] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. [Citation omitted]”

Najm v. Najm, 2024 ONSC 2053 (CanLII) at 15-16