Month: June 2019

“The term “custody” refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)).  The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term well-being, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26;  Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.);  Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.);  Chou v. Chou, 2005 CanLII 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.);  Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.));  Scott v. Chenier, 2015 ONSC  7866 (S.C.J.) (CanLII);  Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.) (CanLII);  Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.) (CanLII)).  The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit.  Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child.  It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at 185 (S.C.C.);  Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 132 (S.C.C.)).

The term “access” refers to the rights of a party in circumstances where the other party is granted sole custody. Access rights include not only visitation privileges, but also the right to make inquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.”

Roloson v. Clyde, 2017 ONSC 3642 (CanLII) at 42-43

“While in most situations there is an obvious physical separation of the parties, case law has recognized that it is possible for parties to be living apart with no reasonable prospect of resuming cohabitation even while maintaining the same address.  The court must look at the specific facts related to each situation as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship.  Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.

Both counsel have directed the Court to Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117, affirmed at [1992] O.J. No. 3563.  This case provides a list of indicia for the Court to consider when determining a valuation date, a list that has been used in many cases since.  While it is appropriate as a starting point to look at the indicia indicated in that case, it must be remembered that the final determination will be based on the specifics of the case being considered.  This approach recognizes that what is acceptable for one family unit may be quite different for another.

The list set out in Oswell, provides the following considerations for the Court to take into account:

1.     Is there a physical separation?

2.     Has one (or both of the spouses) taken steps to demonstrate his or her intent to destroy the matrimonial consortium?

3.     Is there an absence of sexual relations that should be factored in?

4.   What is the level of discussion of family problems and communication between the parties?  Are there joint social activities? What is the meal pattern?

5.     Are household tasks being performed?

Additional indicia may be found in other cases as well.  For example, do the family finances reflect separated persons (Newton v. Newton, [1995] O.J. No. 519) and how are the parties presenting themselves to others, including to the CRA?

The court must always be vigilant of the significance of the valuation date and guard against any party attempting to manipulate the facts in order to protect their own interests, whether that be to include or exclude any equalization claim.”

Hogarth v. Hogarth, 2018 ONSC 3580 (CanLII) at 9-12

“First, a fundamental purpose of the appellant’s fresh evidence is to explain her absence at trial and her motion. In order to succeed on her appeal, her explanation must be sufficiently cogent that it credibly excuses her absence and such that it would be procedurally unfair to allow the trial and motion orders to stand. The level of her inability to attend must obviously be serious to reasonably explain her absence. However, there is no requirement that she prove a certain level of incapacity including one that rises to the definition under the Substitute Decisions Act, S.O. 1992, C.30 or the Mental Health Act. We also note that incapacity for the purposes of the representation of a person under a disability under r. 7.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, speaks to a person who is “mentally incapable … in respect of an issue in the proceeding” [emphasis added], not necessarily for all purposes in all aspects of her life.”

         Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539 (CanLII) at 18

“Allowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition. This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples.

Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same- sex marriage. Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views.

In our view, the opposite-sex requirement in the definition of marriage does not minimally impair the rights of the claimants. Same-sex couples have been completely excluded from a fundamental societal institution. Complete exclusion cannot constitute minimal impairment.”

Halpern v. Canada (Attorney-General),2003 CanLII 264037 (ON CA) at 137-139

“Only in the rarest of cases should a court grant a solicitor’s removal Order: Best v. Cox et al, 2013 ONCA 695.  In Kaiser (Re), 2011 ONCA 713 (CanLII) at 21, Cronk J.A. stated:

As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause…”  For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel.  Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused.  The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice… [Citations omitted.]

As noted by Kiteley J. in Zaldin v. Zaldin, 2014 ONSC 6504 (CanLII) at 13:

There does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test.  This is particularly true when the litigation involves a family dispute.

The leading solicitor’s removal case is MacDonald Estate v. Martin: 1990 CanLII 32 (SCC).  As stated by Sopinka J. [at paras 47-48], the test for determining whether there is a disqualifying conflict of interest is whether “the public, represented by the reasonably-informed person would be satisfied that no use of confidential information would ever occur.”  Two questions require answer:

1. 1. 1. 1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
         2. Is there a risk that it will be used to the prejudice of the client?”

         Junger v. Portugese, 2018 ONSC 3376 (CanLII) at 9-11

“I will deal with the criteria in ss. 24(3)(a) – (f) [of the Family Law Act] together. Violence referred to in s. 24(3)(f) is not restricted to physical violence. It includes a “psychological assault upon the sensibilities of [another] to a degree which renders continued sharing of the matrimonial dwelling impractical.”  Where the conduct is “calculated to produce and does in fact produce an anxiety” state which puts a person in fear of the other’s behaviour and impinges on that person’s mental and physical health, violence has been done to his or her emotion equilibrium as if he or she had been struck by a physical blow. (Hill v. Hill, [1987] O.J. No. 2297 at paras. 25).”:

Leckman v. Ortaasian, 2013 ONSC 3324 (CanLII) at 31

“The most comprehensive analysis of the issue in our court appears to be the decision of Mackinnon J. in Gauthier v. Hart, where the court conducted an extensive review of the authorities, including the decision in Chickee and the other cases referenced above from Saskatchewan and Nova Scotia, and concluded that the more appropriate interpretation of s. 9 requires a calculation of time over a calendar year: 2011 ONSC 815 (CanLII) at 65-76. The decision in Gauthier was adopted in Thompson v. Thompson, where Chappel J. observed that “it has been held that the appropriate time for the calculation of time spent with each parent is the calendar year.”: 2013 ONSC 5500 (CanLII) at 40.

While I acknowledge that the language of s. 9 is, arguably, capable of supporting more than one interpretation, in my view, the better interpretation is to read s. 9 as requiring a calculation that demonstrates whether the parent had the child for not less than 40 per cent of the time over the course of a calendar year, as Mackinnon J. concluded in Gauthier and Chappel J. concluded in Thompson.

In my view, such an interpretation more closely accords with the text of the language of the Guidelines, which, it is worth noting, does not say “for not less than 40 per cent of the time over the course of any contiguous 12-month period.” If Parliament had intended to permit “any 12-month period,” it could have expressly said so.”

         Skaljac v. Skaljac, 2018 ONSC 3519 (CanLII) at 78-80.

“Courts in the past have dealt with R.E.S.P.s on a motion and I find sufficient precedent for this court to deal with the issue of the R.E.S.P.s on this temporary motion.

As cited in McConnell v. McConnell, paras. 146-148, the court noted as follows:

[146]   There is precedent for the court, on the application of one spouse, to remove the other as the co-title-holder of an R.E.S.P.  In Vetro v. Vetro, the Court of Appeal dismissed an appeal from a motion judge’s decision to strike the father’s pleading on the ground, among others, that he had failed to comply with an order requiring him to repay funds that he had removed from his children’s R.E.S.P.  The Court stated:

In addition, the appellant took money from the children’s R.E.S.P. for his own purposes and although he agreed to repay the money he had only repaid $2,000 of the $5,500 he took. Irrespective of the issues of disclosure, the motion judge struck the pleadings on the basis of the appellant’s non-compliance with prior court orders and, having regard to the history and circumstances of the case, he was entitled to do so without giving the appellant any further opportunity to correct or explain his defaults.

[147]   In Maimone v. Maimone, Fragomeni J. ordered that the husband be removed as administrator of the R.E.S.P.s and that the R.E.S.P.s be transferred to the wife, on the ground that the husband had not demonstrated any financial responsibility and had made “less than frank and truthful disclosure” throughout the proceedings.  Similarly, in Borisoff v. Borisoff, Dillon J. of the B.C. Supreme Court ordered the R.E.S.P. be transferred

[148]   For the foregoing reasons, this court is invoking its inherent jurisdiction to remove Mr. McConnell as trustee of the children’s R.E.S.P.  He and Ms. McConnell will both benefit by the payments made from the R.E.S.P. as a result of the expenses to which they are required to contribute being reduced by payments being made from the fund.  Ms. McConnell will therefore be required to account to Mr. McConnell for any disbursements she makes from the R.E.S.P.  This will enable both parties to calculate the net s.7 expenses of each child and their own respective proportionate contributions, at the hearing on April 22^nd.

My conclusion, therefore, is that this court has jurisdiction to deal with the children’s R.E.S.P. accounts.”

         Elias v. Elias, 2018 ONSC 3466 (CanLII) at 21-23.