“The Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, 2005 CanLII 1625 (ON CA), 2005 CanLII 1625, [2005] O.J. No. 275, 2005 CarswellOnt 266, set out that one parent professing an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. However, there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. When the child is so young that he or she can hardly communicate her developmental needs, communication is even more important.”
Month: July 2019
July 16, 2019 – Children’s Evidence in Criminal Proceeding
“In Children’s Aid Society, Region of Halton v. J.O., 2013 ONCJ 191 (CanLII), the Society requested that the transcripts of the children’s evidence taken at the preliminary hearing in criminal proceedings be admitted for the truth of their contents. The Society relied on the affidavit evidence of the social worker from the OCL who stated they were “nervous and scared” about having to testify again (para. 39).
In not admitting the statements made by the child at the preliminary hearing, O’Connell J. found that the Society had not provided evidence that:
a. the children (17, 11, and 8 years old) were not able to testify;
b. the children would be psychologically harmed or traumatized if they were subject to cross-examination at the child protection trial;
c. the children had suffered any harm or traumatic setback after testifying at the preliminary hearing;
d. the 17-year-old child could not give coherent evidence; and
e. the 17-year-old child’s behavioral difficulties were a result of giving evidence at the preliminary hearing.
In addition, in the case at bar, the Society seeks to admit certain statements to show state of mind. This exception can include the children’s wishes and preferences and statements made by the children regarding their physical, emotional and mental state. As stated by Sherr J. in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 (CanLII), at para. 19: “The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion.”
In the leading case of R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, Iacobucci J. stated that an exception to hearsay was permitted regarding evidence of statements of intent or other mental state.
In Children’s Aid Society of Toronto v. G.S., at para. 18, Sherr J. referred to Parry J.’s comments regarding the statement of mind exception in Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852 (CanLII), 2017 ONC J 852, 4 R.F.L. (8th) 171, at para. 39. Parry J.’s comments are worth repeating here:
Declarations of the declarant’s contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore, there exists a circumstantial guarantee of the trustworthiness of the statement. The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial. In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant’s state of mind. In other cases, courts have ruled that the contemporaneous declarations of the declarant’s state of mind can be received as original evidence, as circumstantial evidence of the declarant’s state of mind, and thus not hearsay at all. However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.”
July 15, 2019 – Section 7 Expenses
“The governing principles applying to claims for special or extraordinary expenses brought under s. 7 of the Child Support Guidelines were usefully and comprehensively reviewed by O’Connell, J. in the case of Kloc v. Wozniak 2013 ONCJ 363 (O.C.J.) (CanLII) at paras 28-37. Some of the principles which have emerged from the case-law are as follows:
• An order for s.7 expenses involves the exercise of judicial discretion, considering the objectives of the guidelines, including section 1(a) which reads “to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation”;
• The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances;
• One of the factors to be considered is whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred;
• The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive and if a claim does not fall within any of the listed categories it must be dismissed;
• Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support;
• A court has a discretion to order that a payor contribute to an expense if the expense is extraordinary (that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient’s income), reasonable and necessary; and
• A custodial parent does not have a carte blanche to enrol a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs.”
July 12, 2019 – Obtaining Certificate of Pending Litigation
“The first part of the governing test on such a motion is the same as the test on a motion to discharge a CPL (Certificate of Pending Litigation) obtained on an ex parte motion under section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. 43 (“CJA”), namely the plaintiff must show only that there is a triable issue as to whether the plaintiff has a reasonable claim to an interest in the Property; see Hupka v. Aarts Estate, 2003 CanLII 49303 (ONSC) at paragraphs 45 and 46. This means that the plaintiff need not establish that she will succeed in her claim to an interest in the Property, but only that there is an issue worthy of a trial in that regard. The defendant has the higher onus, namely the onus of showing that there is no such triable issue.
In such a motion the court must review all of the evidence put forward by the parties in making its determination. Furthermore, the court need not accept the pleadings or the affidavit evidence uncritically; see Avan v. Benarroch, 2017 CanLII 4729 (ONSC) at paragraph 18.”
July 11, 2019 – Income Attribution and Adverse Inference
“Under s. 19(1)(f) of the Child Support Guidelines, income may be imputed to a party where the party “has failed to provide income information when under a legal obligation to do so”.
Moreover, there is ample case law confirming that the court may draw an adverse inference against a party where he or she has failed to make financial disclosure as required by either court order or by the Rules: See Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611 (CanLII) at para. 13, and Bardouniotis v. Trypis, 2010 ONSC 4466 (CanLII) at paras. 7 to 9.
The reason for this is clear. The income information for Radmilo is only available to him, and he therefore has a duty to provide full disclosure of his income in order to provide clarity to the court as to what he earns. If a payor fails to do so, he runs the risk of income being attributed to him, in the words of the Court of Appeal in Crosbie v. Crosbie, 2012 ONCA 516 (CanLII) at para. 20, “accurately or otherwise”. This is especially so where the payor’s lifestyle is inconsistent with his reported income without good explanation: See: Bak v. Dobell, 2007 ONCA 304 (CanLII) at paras. 41 to 43.”
Milutinovic v. Milutinovic, 2018 ONSC 4310 (CanLII) at 19-21
July 10, 2019 – Intervention of Trial Judge
“Where the welfare of children are concerned, a trial judge may intervene as much as is necessary in order to clarify the facts, confirm his or her understanding of expert testimony and generally make sure his appreciation of the evidence is correct. If necessary, he or she may intervene to keep the proceedings moving along efficiently, more necessary in child protection cases where the state with all the resources at its disposal is intervening in a substantial way in the relationship between children and their parents. See New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25, 552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, 1999 CanLII 653 (SCC), 1999 CanLII 653, [1999] S.C.J. No. 47, 1999 CarswellNB 305; Cundy v. Irving (1998), 106 B.C.A.C. 5, 48 B.C.L.R. (3d) 344, 172 W.A.C. 5, 37 R.F.L. (4th) 401, 1998 CanLII 4563 (BC CA), 1998 CanLII 4563, [1998] B.C.J. No. 754, 1998 CarswellBC 718 (B.C.C.A), at paragraph [4]; and, Gordon v. Gordon (1980), 23 R.F.L. (2d) 266, [1980] O.J. No. 1469, 1980 CarswellOnt 341 (Ont. C.A.), where Appeal Justice John W. Morden, referring to the trial judge stated (at page 271 [R.F.L.]):
| Generally, he should do what he reasonably can to see to it that his decision will be based upon the most relevant and helpful information available. | ||
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The trial judge has the right and a duty to intervene, to clarify and to ask questions in order to fully appreciate the evidence. He is to make a decision on the best evidence available. If not satisfied, he has available to him by statute, the right to call his own evidence. |
As held by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, 267 N.R. 386, 201 Nfld. & P.E.I.R. 1, 605 A.P.R. 1, 1999 CanLII 641 (SCC), 1999 CanLII 641, [2000] S.C.J. No. 1, 1999 CarswellPEI 87 (at paragraph [3]):
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True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind |
And stated by the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R. (2d) 257, 20 C.P.C. (3d) 27, 1993 CanLII 2884 (BC CA), 1993 CanLII 2884, [1993] B.C.J. No. 1846, 1993 CarswellBC 249 (B.C.C.A.), at paragraphs [10]-[11]:
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[10] As to the question of bias, Mr. Rankin pointed to in his opening and has reiterated in his reply many remarks which have been made by the learned trial judge over the course of these 60 days which some might think were rather sharper than they ought to have been. That is a matter of perhaps one would say taste. Some judges by nature are silent, some of us talk perhaps more than we should. Whether some one or all of these remarks might better not have been said I do not propose to discuss. Every experienced counsel has from time to time felt herself unfairly treated by receiving a lashing from the sharp edge of the tongue of a judge. I remember the feeling myself. |
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[11] As I believe the Chief Justice of this court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge’s mind a lack of professionalism. |
Although a judge must maintain an open mind, this does not mean that he or she cannot express disbelief of evidence being given by a witness or indicate a tentative view of how he or she is inclined to decide an issue in dispute. True impartiality does not require that the judge have no sympathies or opinions. It requires that the judge nevertheless act with an open mind. See Professor Philip Bryden, “Legal Principles Governing the Disqualification of Judges” (2003), 82 Can. Bar Rev. 555 at page 588.”
Catholic Children’s Aid Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 126-129
July 9, 2019 – Reopening a Case
“Natalia submits the trial judge did not apply a sufficiently detailed test when considering her request to reopen her case. The trial judge relied on the decision in Scott v. Cook, 1970 CanLII 331 (ON SC), [1970] 2 O.R. 769 (H.C.), which held that on a motion to reopen trial proceedings, the requesting party must show that the evidence sought to be adduced is such that, if it had been presented during the trial, it probably would have changed the result.
Natalia contends the more appropriate test to be applied in the context of family law proceedings is that set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762 (CanLII), 64 R.F.L. (7th) 470. In that case, as in the present one, the request to reopen the case was made before the judge had given reasons for judgment, in contrast to Scott where the request was made after reasons for judgment had been delivered but before formal judgment had been entered.
In Catholic Children’s Aid Society of Toronto, the court stated, at para. 17:
Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:
• At what stage of the trial is the motion made?
• Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
• What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
• Can any prejudice be remedied in costs?
• How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point? Does it merely “shore up” evidence led in chief?
• Is the proposed new evidence presumptively credible? [Footnotes omitted.]
We agree that the Catholic Children’s Aid Society of Toronto case provides a helpful list of factors for a trial judge to consider when entertaining a party’s request to reopen her case.”
July 8, 2019 – Limitation Periods
“In accordance with R. v. Guerin, [1984] 2 S.C.R. 335 at paras. 98-99, the limitation period did not start to run until the respondent “discovers the fraud, or until the time when, with reasonable diligence, she ought to have discovered it.”
July 5, 2019 – Delay In Bringing Claim
“It has been oft repeated that there is no limitation period for an application for spousal support. However extreme delay in bringing the application can defeat or diminish such a claim. As Chappel J. of this court put it in Fyfe v. Jouppien, following an exhaustive review of the relevant factors in determining whether delay should defeat or reduce a spousal support claim:
…excessive delay in seeking spousal support by a party may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse.
Chappel J. set out a number of important factors that a court must consider in the face of extreme delay. They include financial need arising after separation, financial interdependence, both before and particularly after separation, and the length of the delay in making the claim.
While delay may indicate that the parties have taken steps to unravel their financial interdependence, that is not always the case. As Chappel J. stated at para. 54(d):
On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.”
July 4, 2019 – Acting Like a Parent
“First, I considered the ability, willingness and plan of each parent to provide the Child guidance, education, and the necessities of life. In essence, this is an analysis of each parent’s ability to act as a parent.
Today, some may view the concept of “acting like a parent” as a moving target. Our culture is undergoing a moral revolution such that those who suggest there are right and wrong answers to the questions of life, and an ultimate truth to be discovered, are viewed as intolerant and/or delusional. It is my view, however, that acting like a parent involves creating rules, establishing boundaries, and providing moral guidance about these truths for our children.
I agree with Beckett J. in DiMeco v. DiMeco, [1995] O.J. No. 3650 (Ont. Gen. Div.) at para. 36:
The parent is a role model for the child. Children learn their behaviour from their parents. Surely it is in the best interest of every child that he or she learn the values of love, caring, honesty, integrity, understanding, gentleness to others, and should be shielded from violence and dishonesty.
If a parent’s own life is characterized by dishonesty, deception and violence, then he or she will likely be incapable of modeling positive behaviour for the child.”
LW v. SW, 2018 ONSC 4197 (CanLII) at 53-56