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  “Forget spiders or heights.  What’s really scary is having to appear in front of the same family court judge you recently misled on an ex parte motion.

 a.     Last time, you went behind the father’s back and complained dad was about to unilaterally change a long-standing status quo.

b.      Turns out, youwere the one secretly changing a long-standing status quo.

c.      You didn’t tell the judge you had already hatched a plan to move to another city with your kids, to live with your boyfriend.  You were selling your house.  Registering the kids in a new school, in the middle of the school year.  You’d be reducing the father’s time.

d.      You didn’t mention that you were doing all this despite a separation agreement which specifically said you couldn’t do what you were doing.

e.      You certainly didn’t give the father notice of relocation as required by law.

f.      You went ahead with your plan.   It was a “done deal” and the father would just have to live with it.

g.      Except he’s brought a motion – on notice– to stop you.

h.      So now you’re in front of the same judge.  Trying to explain why maybe last timeit was a mistake to trust you.  But this time you should be believed.

That’s a kind of scary even Stephen King wouldn’t mess with.”

          Lang v. Qureshi, 2025 ONSC 585 (CanLII) at 1-2

“During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering.  This behaviour culminated in one of them leaning back in his chair, throwing both hands in the air and laughing in a gleeful moment of triumph during a particularly engaging exchange between opposing counsel and the bench.  Apparently, applicant’s counsel felt that he had scored some major point during my questioning of the respondent’s counsel and wanted to ensure that everyone else was aware of that victory.

I addressed this misconduct at the applicable time during the hearing and, on my insistence, the once-exultant counsel apologized to his colleague.  However, the ignoble display continued – albeit mutedly and intermittently – for the rest of the hearing.

Unfortunately, the behaviour engaged in by applicant’s counsel is neither a new nor a rare phenomenon.  Too often, counsel seem to believe that enthusiastically attempting to disrupt and/or demean opposing counsel during the latter’s oral submissions is one of the hallmarks of an effective advocate.  It is not.  Too often, counsel seem to believe that “rolling eyes, dancing eyebrows and other mannerisms” (See: The Honourable Justice Joseph W. Quinn. (February 12, 2012). A judge’s view: things lawyers do that annoy judges; things they do that impress judges [paper presentation]. 2012 Family Law Institute, Toronto, Ontario, Canada.) whilst opposing counsel is making submissions to the court constitute proper critique or response to those submissions.  They are not.

Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument.  No proper submissions are made by way of emanations from counsel (be they oral, non-verbal, audible or inaudible) when another justice participant is speaking.  Indeed, during a court hearing, there should be nothing from counsel but complete oral and non-verbal silence while someone else “has the floor”.  Anything other than such complete silence is not only distracting to the court, but is also profoundly disruptive, disrespectful and demeaning to everyone in that courtroom.

I fully acknowledge that, in the “heat of battle”, human emotions run high and can sometimes get the better of even the most seasoned advocate.  However, I am unable to countenance any circumstances under which the type of sophomoric behaviour too often demonstrated by counsel could possibly be excusable, let alone acceptable.  It is not only discourteous and disruptive, but is also antithetical to the peaceful and orderly resolution of disputes and undermines procedural and substantive fairness (see: R. v Beals, 2023 ONSC 555, at para. 148).

The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law.  The parties, counsel, other justice participants, the public and the administration of justice deserve far better than what too many counsel seem to have to offer.

Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without in-person human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide.

It has long been a tradition and requirement of etiquette in our courts that counsel refer to their counterpart as their “friend”.  While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility.  All counsel would be well advised to always keep this top of mind, lest the already threadbare state of professionalism and civility between them deteriorate into the irremediable.”

China Yantai Friction Co. Ltd. v Novalex Inc., 2024 ONSC 608 (CanLII) at 20-27

“Under s. 22 of the CLRA, an Ontario court can assume jurisdiction over a mater with respect to a child if the child was habitually resident in Ontario at the commencement of the application for the order, or if all of the conditions under s. 22(1)(b) are met.

22(2) defines “habitual residence” as follows

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. 1. 1. 1. 1.    With both parents.
            2.    If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
            3.    With a person other than a parent on a permanent basis for a significant period of time, whichever last occurrred.
            4.    22(3) provides that the removal of the child from the jurisdiction in which he or she is habitually resident, or withholding return of the child to the jurisdiction without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

In determining the child’s habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis (see: Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII).  Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction (see: Hibbert v. Escano, 2010 ONSC 1445 at para 21).

In Korenic v DePotter, 2022 ONSC 3954, Dubé J. stated at para 22 that s. 22(1)(a) does not require the court to find a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Habitual residency is deemed under paragraph 1 of s. 22(2) when the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.”

            Barakat v. Andraos, 2023 ONSC 582 (CanLII) at 62-66

“The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

a)         to partially indemnify successful litigants;

b)         to encourage settlement;

c)         to discourage and sanction inappropriate behaviour by litigants and;

d)         to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), 2003 S.C.C. 71, paragraph 25.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.”

            McGuire v. Tyrell, 2025 ONCJ 43 (CanLII) at 5-8

“This court has jurisdiction to make therapeutic orders involving children: s. 16(6) DA and A.M. v. C.H., 2019 ONCA 764 at paras 49 to 51. Section 10 of the Health Care Consent Act, which prohibits a health practitioner from administering treatment to a capable person without that person’s consent, does not preclude this Court from ordering an unwilling child from attending therapy if the Court determines it is in the child’s best interests. However, the Court must give greater weight to a child’s wishes as the child matures: A.M. at para 71. In considering whether to make such an order, the Court should assess the child’s maturity.”

            K. v. B., 2025 ONSC 6003 (CanLII) at 26

“In the leading Supreme Court of Canada decisions of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.

In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.

On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.

Moge and Bracklow set out the following examples of compensatory support:

a) A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:

a) A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;

b) A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;

c) A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;

d) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

The Spousal Support Advisory Guidelines (“SSAG”) set out following examples of economic disadvantage:

1. 1. 1. 1. 1. Home with children full-time or part-time;
            2. Secondary earner;
            3. Primary caregiver of the children after separation;
            4. Moving for payor’s career;
            5. Support for payor’s education or training;
            6. Working in family business.

In Bracklow (para 32), the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court also stated that marriage is an “economic partnership” based on mutual support.” The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court”.

Further, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” (see:Bracklow, para 40).

Therefore, all of the statutory objectives must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances.

In Moge (para 870), the court stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.”

            G.E. v. J.E., 2023 ONSC 563 (CanLII) at 105-113

“Cases interpreting s. 56(4) of the FLA confirm that the analysis requires two steps. First, the party seeking to set aside the contract must demonstrate that one or more of the provisions in (a) – (c) has been engaged. If that hurdle is overcome, the court must consider whether it is appropriate to set aside the agreement (LeVan v. LeVan, 2008 ONCA 388 at para. 51; Toscano v. Toscano, 2015 ONSC 487 at para. 43; and Hashemi v. Alanimehr, 2021 ONSC 8569 at para. 14). The burden is on the party seeking to set aside the agreement to bring themselves within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement (Faiello v. Faiello, 2019 ONCA 710, 438 D.L.R. (4^th) 91, at para. 20).

In general, the cases confirm that the court will respect the rights of individuals to enter into separation agreements and the associated expectation that the parties do so in order to achieve certainty and to avoid having their disputes adjudicated before the courts (Goulding v. Keck, 2014 ABCA 138, 572 A.R. 330, at paras. 26-27; Nisbett v. Nisbett, 2010 ONSC 4381, at para. 51; and Carvalho v. Couto, 2023 ONSC 4975 at para. 20).

The latest word on this topic, strongly reinforcing the respect to be given to agreements negotiated between parties, comes from the Supreme Court of Canada’s recent decision in Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4^th) 1.  In that decision, in holding that an agreement resolving property issues which did not satisfy Saskatchewan’s statutory requirements for interspousal contracts was nonetheless enforceable, Karakatsanis J. said at para. 8 that “Given the respect for spousal autonomy reflected in both the legislation and the jurisprudence, unless the court is satisfied that the agreement arose from an unfair bargaining process, an agreement is entitled to serious consideration.”

In considering whether to uphold a domestic agreement or individual terms of such an agreement, it is reasonable for the court to rely on a plain reading of the contract (Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4^th) 418 and Hartstein v. Ricottone, 2016 ONCA 913).”

            Yin v. Feng, 2024 ONSC 455 (CanLII) at 73-76

“Accordingly, my conclusion is that this matter must proceed to a focussed Motion to Change which will review the Final Order in light of what has transpired in the past two years. I have already expressed my view to the parties that the contempt motion process is not to be used as a Motion to Change. It is not for this court to start tinkering with the Final Order despite the fact that the record before the court provides ample evidence for a judge to proceed with the Motion to Change.

In the meantime, the Applicant’s conduct and contemptuous behaviour merits a finding that it is not in the child`s best interest that the Applicant move on to Stage 2 of the parenting time provisions of the Final Order. His contemptuous behaviour and obvious desire to undermine the Respondent’s role as the decision-making parent must be considered in a Motion to Change prior to the Applicant having unsupervised parenting time.”

G.S. v. S.B., 2025 ONSC 280 (CanLII) at 34-35

“An order that is not stayed automatically may be stayed pursuant to r. 63.02(1) of the Rules of Civil Procedure. The test for staying an order pending appeal is established in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to determine whether a stay is in the interests of justice considering the following three factors:

(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;

(2) whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

The relative strengths of these factors need not be equal, but all three factors must be satisfied for the court to grant a stay: Carvalho Estate v. Verma, 2024 ONCA 222, at para. 5; R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12. I will analyze each factor in turn.

First, when making a preliminary assessment of the merits, the court must keep in mind the standard of review on appeal: Carvalho Estate, at para. 8. Absent an error of law or a palpable and overriding error of fact, the trial judge’s decision will be upheld on appeal: Carvalho Estate, at para. 8; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 104. However, the threshold for finding a serious issue is low: Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. The Supreme Court of Canada in RJR-MacDonald Inc., at p. 337-38, noted:

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.”

…

Second, irreparable harm is characterized by its nature, rather than its magnitude. In other words, it is usually harm that cannot be quantified or cured: RJR-MacDonald Inc., at p. 341. Although Michael spoke about his ongoing financial difficulties, he did not demonstrate that paying child support would result in “permanent and non-compensable harm”: Temagami, at para. 11.

Finally, when assessing the balance of convenience, the court on a stay motion must recognize that the matter was previously adjudicated and the order must be regarded as prima facie correct: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 678, citing Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127 (C.A.), at p. 132. The interests of third parties might also be relevant at this stage: Ducharme v. Hudson, 2021 ONCA 151, at para. 25. In staying the child support order, the parties who would suffer are the children.”

De Longte v. De Longte, 2025 ONCA 30 (CanLII) at 7-9, 11-12

“Relocation cases are tough enough.  Life-altering decisions about infants shouldn’t be left to the randomness of which subsidized housing authority happens to have an opening at any given time.”

Little v. Poyton-Skevington, 2025 ONSC 305 (CanLII) at 1