Month: July 2019

“In my view, the parties do not need a custody order going forward. In M. v. F., 2015 ONCA 277 (CanLII), a case involving a claim for custody of a six-year-old boy in the context of an extremely acrimonious parental relationship, at paras. 38-40, Benotto J.A. stated:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: the court… By order may grant the custody of or access to the child to one or more persons (emphasis added).

For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” connotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

I also note that section 16(1) of the Divorce Act uses the word “may” in relation to an order that the court may make respecting the custody of or access to children of a marriage.”

McKenzie v. McKenzie, 2018 ONSC 4651 (CanLII) at 16-17

“Recognition of the tort of intrusion upon seclusion is a recent development in the common law in this province. In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal set out a three-part test for establishing intrusion upon seclusion:

a. the defendant’s conduct must be intentional or reckless;

b. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

c. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

Filbey v. Ashe, 2018 ONSC 4615 (CanLII) at 82

“Pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2^ndSupp.), the court cannot vary a custody order on the application of the parties in the absence of “a change in the condition, means, needs or other circumstances of the child” since the making of the order. There must be a material change in the circumstances of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed circumstances, the court’s inquiry can proceed no further: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239.”

Easson v. Blase, 2016 ONCA 604 (CanLII) at 3

“Although the term “gift” is not defined in the Family Law Act, a gift, generally speaking, is a voluntary transfer of property to another without consideration: Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999), at p. 696; Birce v. Birce (2001), 2001 CanLII 8607 (ON CA), 56 O.R. (3d) 226, [2001] O.J. No. 3910 (C.A.), at para. 17. A transfer of property by contractual agreement involves a mutual exchange of obligations (“consideration”), but a transfer by way of gift involves a gratuitous, unilateral transaction: Mary Jane Mossman and William Flanagan, Property Law: Cases and Commentary, 2nd ed. (Toronto: Emond Montgomery Publications, 2004), at p. 439. As McLachlin J. observed in Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36, at p. 991-92 S.C.R., “[t]he central element of a gift [is the] intentional giving to another without expectation of remuneration”.

The essential ingredients of a legally valid gift are not in dispute. There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration, (2) an acceptance of the gift by the donee and (3) a sufficient act of delivery or transfer of the property to complete the transaction: Cochrane v. Moore (1890), 25 Q.B.D. 57 (C.A.), at pp. 72-73 Q.B.D.; Mossman and Flanagan, supra, at p. 441, Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at p. 157.”

McNamee v. McNamee, 2011 ONCA 533 (CanLII) at 23-24

“There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

However, the case of J.C.M. v A.N.A., 2012 BCSC 584 (CanLII) is nonetheless instructive as it involved a dispute over gametes that the parties did not have a biological connection to. In that case, a couple purchased 13 sperm straws, and the court held that the sperm straws were property. They were subsequently divided between the parties, with one party receiving 7 straws and the other receiving 6 straws and $125 for her interest in one-half straw. See also C.C. v A.W., 2005 ABQB 290 (CanLII), 50 Alta. L.R. (4th) 61.

In the present case, the parties agreed that the embryos would be treated as property in their contracts with both the ISIS Regional Fertility Clinic and the Biology Associates. Neither party contests that the embryos should be treated as property. Accordingly, they must be divided as such. However, there is only one embryo.

The Family Law Act contains a comprehensive scheme for equalizing and determining ownership of marital assets. Both parties are listed on the contracts, and there was a clear intention that they would jointly own the embryos, regardless of their unequal financial contributions. Section 14(a) specifically states that: “the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants”.

As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions. It is illegal to purchase and sell gametes and embryos, according to the Assisted Human Reproduction Act, S.C. 2004, c. 2:

Purchase of gametes

7 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.

Purchase or sale of embryos

(2) No person shall

(a) purchase, offer to purchase or advertise for the purchase of an invitro embryo; or

(b) sell, offer for sale or advertise for sale an in vitro embryo.

With this legislation, one must determine the legality of the contracts and whether they take precedence over the legislation. However, this was not argued before me and I do not plan on dealing with the conflict of laws issue arising on the facts.”

S.H. v. D.H.,2018 ONSC 4506 (CanLII) at 17-22

“When considering the perspective of the Applicant, who saw herself as Luna’s “other mom”, it is frustrating to see how this situation has unfolded.  This is not, however, the criteria that is to be applied in deciding the Applicant’s motion for temporary access.  The Court’s focus must be on what is in Luna’s best interest while considering the criteria enumerated in para. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

There are a number of legal principles that I have considered in this matter:

a.  A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child.  The onus is on a non-parent seeking access to prove that it is in a child’s best interest to have such a relationship.  A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact with the stranger: see Farber v. Robitaille, 2004 CarswellOnt 5674 (Sup. Ct.).

b.  Courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with a custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs: see Gibson v. Emmons, 2015 ONSC 4458 (CanLII) at para. 24.

c.  “It may be convenient to lump decided cases into categories such as “grandparent cases” or “step-parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access.  A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child.  A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.

In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.” (Johnstone v. Locke, 2012 ONSC 719 (CanLII) at paras. 103-104).

d.  “In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.” (Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 141 O.A.C. 389 at para. 21.)”

Villeneuve v. Bell, 2018 ONSC 4518 (CanLII) at 20-21

“The mother and the Society both submit that the test to be applied on a status review application is set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at p. 200:

1. 1. 1. Does the child continue to be in need of protection?

1. 1. 2. Which of the available range of orders is in the child’s best interests?

That said, the mother and the Society disagree on the precise meaning of the test articulated in C.M.

On the mother’s interpretation, the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the CFSA.  According to the mother, the Society could not meet that test on the status review application based on the evidence adduced at the review hearing for two reasons.

We do not accept the mother’s interpretation of C.M., namely, that the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the CFSA. At p. 200 of its decision in C.M., the Supreme Court of Canada made it clear that, in addition to the factors enumerated in s. 37(2) of the CFSA, a finding of a continuing need for protection could also be premised on the need to protect a child from emotional harm arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents.”

Children’s Aid Society of Oxford County v. W.T.C, 2013 ONCA 491 (CanLII) at 28-30, 32.

“A resulting trust arises by operation of law. When a parent gratuitously transfers property to an adult child, the law presumes the child holds the property on a resulting trust for the parent. The presumption exists from an equity perspective because equity presumes bargains, not gifts.

In Kerr v. Baranow, the Supreme Court of Canada confirmed the view expressed in Pecore that where there is a gratuitous transfer, the actual intention of the transferor is the governing consideration. In a gratuitous transfer between parent and adult child, the burden of rebutting the presumption is on the child, who must produce evidence to establish, on a balance of probabilities, that the transferor intended a gift at the time of the transfer. In cases where a spouse of a transferee wishes to establish a beneficial interest in the transfer, the onus is on that spouse to establish a beneficial interest in the gratuitous transfer.

To rebut the presumption it must be shown that the transferor intended to transfer the beneficial interest to the transferee. The intention is a question of fact to be determined on the whole of the evidence. Evidence of intention may include such factors as the relevant conduct of the transferor and transferee, and control and use of the transferred property after transfer.”

Derbyshire v Derbyshire, 2016 ONSC 4740 (CanLII) at 69-71

“Second, to ignore or conflate the separate roles of trustee and beneficiary would be contrary to the fundamental nature of a trust and would render the trust unworkable.

A trust is a form of property holding. It is not a legal entity or person. A trust does not hold title to property nor can it. It is the trustee who holds legal title to the trust property.

A trust is also a type of relationship, namely, the fiduciary relationship that exists between trustee and beneficiary. The foundation of the trust relationship is the separation of roles between the trustee and beneficiary with the trustee being the legal owner of the trust property and the beneficiary being the equitable owner of the trust property. The trustee holds legal title to the trust property so that it can manage, invest and dispose of the trust property solely for the benefit of the beneficiaries. A trust can only exist when there is a separation between legal ownership in the trustee and equitable ownership in the beneficiaries.

If the court were to ignore or conflate the separate entities, it would destroy the foundation of the trust relationship. Put another way, absent the separate entities, there is no trust relationship and, therefore, no trust. That is not the case when the corporate veil is pierced. In that situation, the corporation as a separate legal entity remains — it is simply that the court can look through the veil, in very limited circumstances, to attribute ownership to the corporation’s alter ego.”

Spencer v. Riesberry, 2012 ONCA 418 (CanLII) at 52-55

“…the law is clear that a trial judge should not delegate decision-making to an assessor: Behrens v. Stoodley (1999), 1999 CanLII 1626 (ON CA), 128 O.A.C. 58, at para. 40.  An assessor’s evidence is but one piece of evidence to consider: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.), at p. 435.”

Mattina v. Mattina, 2018 ONCA 641 (CanLII) at 13