Month: April 2019

“Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.

At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283 (CanLII), 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611 (CanLII), 13 C.R. (7th) 396, at para. 72.

At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways.  In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the exert evidence”: para. 76.”

White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, 2015 SCC 23 (CanLII) at 22-24

“Rule 39(9) lists the functions of a case management judge, who is required to supervise the progress of the case, to conduct conferences and to hear motions. Rule 39(9) is seen as the gold standard of case management, but it only applies to cases in unified Family Court jurisdictions. Since this case was not decided at a unified Family Court site, the more sparse case management provisions of r. 41 apply. This rule does not explicitly list the functions of a case management judge. This distinction in the Rules reflects the fact that unified sites historically had more judicial resources and therefore could provide more active case management.

However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).”

D.G. v. A.F., 2015 ONCA 290 at 12-13

“The motions judge dealt with this first condition as follows [at p. 391 R.F.L.]:

Section 2(8) of the Act sets out three conditions which must be met before a Court will exercise its discretion to extend the limitation period. The first is whether there are apparent grounds for relief. Based on the materials filed on this motion, I am satisfied that this threshold has been met. Mr. Scherer has attested to several reasons why he did not assert this claim prior to the expiration of the limitation period.

(Emphasis added)

It appears from these reasons that the motions judge was of the view that the first condition under s. 2(8)(a) established an initial “threshold” that required the moving party to show apparent grounds for obtaining an extension of time. However, the “relief” under s. 2(8)(a) (and under s. 2(8) (b)) is not referable to the extension of time sought by the moving party on the motion but to the relief sought on the prescribed claim. The “relief” in question here is the equalization payment sought by the appellant in his Counterpetition. It is incumbent upon the appellant to show that he has apparent grounds for making that claim.”

Scherer v. Scherer, 2002 CanLII 44920 (ON CA) at 15-16

“To have custody of a child is to have decision-making responsibilities in relation to the child’s care and upbringing.  Good communication between parents is relevant to the appropriateness of a joint custody order. In our view, the trial judge, who had the benefit of seeing and hearing the parties over the nine-day trial, gave adequate reasons for refusing to order joint custody. He found, at paras. 58-60 of his reasons:

This is not an appropriate case for an order for joint custody. As noted by the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106 (C.A.), a mere hope for better communications between parents after the litigation has ended is not a sufficient basis to order joint custody.

Based on the evidence before me, there is no indication that the parties could effectively co-parent the children. This is a case rife with conflict between the parents and with serious allegations levelled against each other.

In my view, an order for joint custody would not be in the children’s best interests and would only lead to further conflict between the parents.”

B.V. v. P.V., 2012 ONCA (CanLII) at 9

“And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 (Ont. S.C.J.) as accurate statements of the law:

[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]”

Balke v. O’Connor, 2017 ONSC 2491 at 14

“Subsection 19(1) [of the Child Support Guidelines] is clearly intended to capture cases that, in fairness, require an adjustment to the payor’s presumptive income and, for this purpose, it provides a court with the discretion to impute income when it is “appropriate [to do so] in the circumstances”.

The list of circumstances in s. 19(1) is not exhaustive: the legislature only provides that the list “include” items (a) – (i).  Further, there is nothing in the provision that suggests other appropriate circumstances must be analogous to those specifically enumerated, although similarity of circumstance to one listed in s. 19(1) would support the imputation of income, simply because such a circumstance would be consistent with legislative intention.  The absence of analogy to a listed circumstance is simply a factor to be considered in interpreting the provision.

Some cases have held that there must be similarity between a new appropriate circumstance and the listed circumstances.  However, Riel v. Holland, [2003] O.J. No. 3901 (C.A.) makes it clear that the listed circumstances are simply examples and it is open to find new circumstances in which to impute income, provided that the new ground is consistent with the purpose of s. 19(1) and the Guidelines generally.  Writing for this court in Riel, MacPherson J.A. concluded at para. 36:

The wording of s. 19 of the Guidelines is open-ended (“which circumstances include”), thus indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can, and should, be imputed.

If appropriate circumstances arise, particularly ones unforeseen by the legislature, a court has the discretion, to be exercised on a principled basis, to impute income to a payor parent.  When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

Bak v. Dobell, 2007 ONCA 304 (CanLII) at 33-36

“In our view, there is no conflict between s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Properly interpreted, harmonious effect can be given to both.

In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. As we will explain in the reasons that will be subsequently provided, no meaningful risk assessment was or could have been undertaken in the circumstances of this case at the time the motion was heard. As a result, the Order cannot stand; this court stands in the shoes of the motion judge.”

Issai v. Rosenzweig, 2011 ONCA 302 (CanLII) at 8-9

“As we explain below, we believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s. 15.2, but also certainty, finality and autonomy. Second, the court would ask whether, viewed from the time the application is made, the applicant has established that the agreement no longer reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the Act.”

Miglin v. Miglin, [2003] 1 SCR 303, 2003 SCC 24 (CanLII) at 4

“Strictly speaking, the term retroactive support” connotes support owing from a date prior to the issuance of a support application, while support owing from the date of the issuance of an application is retrospective rather than retroactive.”

Cameron v. Cameron, 2018 ONSC 2456 (CanLII) at 9

“Where there has been a delay of twenty-four years in pursuing a claim for spousal support, there must also be a consideration of the intervening factors as well as the reasons for the delay in pursuing such a claim (see Howe v. Howe, [2012] O.J. No. 2031).

Time delay does not bar a claim for support provided that there is reason for the delay and events that have transpired since the delay (see Albert v. Albert, 2007 CanLII 29972 (ON SC), [2007] O.J. No. 2964, Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074 (CanLII), [2014] O.J. No. 5828 and Norbega v. Norbega, [2007] O.J. No. 1134).

There is no requirement to demonstrate a material change in circumstances where there is an initial application for spousal support under s. 15(2) of the Divorce Act after a prior release of spousal support.  The prior release is simply a factor to be considered (see Miglin, supra).

…

There is no limitation period for a spouse to make a claim for spousal support; however, the courts still retain a residual discretion to dismiss an application for spousal support due to delay (see Walker v. Greer, 2003 CanLII 64331 (ON SC), [2003] O.J. no 3396).

In deciding whether to dismiss a spousal support application for delay the court will consider whether the explanation for the delay was reasonable and any blameful conduct by the payor spouse causing the delay such as failure to disclosure increased income and any prejudice to the payor spouse caused by the delay including lack of notice and any obligation the payor has assumed in the meantime (see Hillhouse v. Hillhouse, 1992 CanLII 5983 (BC CA), [1992] 43 RFL 3d 266 (BCCA), A.M. v. R.P.K., 2010 ONSC 930 (CanLII), [2010] O.J. No. 807 and Philp v. Philp, [1997] O.J. No. 3415 Ontario General Division).”

A.P. v. F.D., 2016 ONSC 2566 (CanLII) at 62-64 & 67-68