Month: October 2019

“Legislation, jurisprudence and the practice of family law have evolved over the last decades in an attempt to eradicate allegations of marital misconduct unrelated to financial consequences. Fault grounds for divorce are rarely used, having been replaced, in practice, with separation grounds. This approach recognizes that family litigation has the potential to leave families worse at the end of the case than they were at the beginning. It recognizes that resolution is the preferred outcome. Inflammatory allegations impede resolution.

The statements about the husband’s conduct are inflammatory. They are – in my view – there to provide a springboard to question the husband about his extra-marital conduct, not about his net family property. As Blair J.A. said in Serra v. Serra, 2009 ONCA 105(CanLII), 93 O.R. (3d) 161, at para. 58, it is the financial consequence of the conduct that is relevant, not the conduct itself. Extended questioning of the husband’s conduct (as described in paragraph 30) that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”

Frick v. Frick, 2016 ONCA 799 (CanLII) at 43-44

“Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.

Experts have developed a list of factors to aid in identifying parental alienation.  Cases have cited these factors.  For example, when analyzing the issue of parental alienation in C.(W.), MacPherson J. qualified Dr. Fidler as an expert in alienation.  Dr. Fidler set out indicators of alienation; these have been cited in numerous cases: L.(A.G.) v. D.(K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042 (CanLII), at para. 134 [G.(J.M.)]; Maharaj, at para. 140.

The following are indicators of alienation:

Child Behaviours:

• • View of parents one-sided, all good or all bad; idealizes one parent and devalues the other
  • Vicious vilification of target parent; campaign of hatred
  • Trivial, false and irrational reasons to justify hatred
  • Reactions and perceptions unjustified or disproportionate to parent’s behaviours
  • Talks openly to anyone about rejected parent’s perceived shortcomings
  • Extends hatred to extended family and pets (hatred by association)
  • No guilt or ambivalence regarding malicious treatment, hatred, etc.
  • A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
  • Anger at rejected parent for abandonment; blames him/her for divorce
  • Speed is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality
  • Stories are repetitive and lacking in detail and depth
  • Mimics what siblings report rather than own experience
  • Denial of hope for reconciliation; no acknowledgement of desire for reconciliation
  • Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent

Alienating Parent Behaviours: •  Allows and insists that child makes decisions about contact •  Rarely talks about the other parent; uninterested in child’s time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child’s return from visit. •  No photos of target parent; removes reminders of the other parent •  Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant •  No encouragement of calls to other parent between visits; rationalizes that child does not ask •  Tells child fun things that were missed during visit with other parent •  Indulges child with material possessions and privileges •  Sets few limits or is rigid about routines, rules and expectations • Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child •  No concern for missed visits with other parent •  Makes statements and then denies what was said • Body language and non-verbal communication reveals lack of interest, disdain and disapproval •  Engages in inquisition of child after visits • Rejected parent is discouraged or refused permission to attend school events and activities • Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain •   Distorts any comments of child that might justify accusations •   Does not believe that child has any need for relationship with other parent • When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent •   Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child •  Exaggerates negative attributes of other parent, and omits anything positive •  Delusional false statements repeated to child; distorts history and other parent’s participation in the child’s life; claims other parent has totally changed since separation •   Projection of own thoughts, feelings and behaviours onto the other parent •  Does not correct child’s rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others •    Convinced of harm, when there is no evidence •    False or fabricated allegations of sexual, physical and/or emotional abuse •    Denigrates and exaggerates flaws of rejected parent to child •    Says other parent left “us”, divorced “us” and doesn’t love “us” •    Over-involves child in adult matters and litigation •    Child required to keep secrets and spy or report back on other parent •    Child required to be messenger •    Overt and covert threats to withdraw love and affection from child unless other parent is rejected •    Extreme lack of courtesy to rejected parent •    Relocation for minor reasons and with little concern for effects on child

Once a finding of alienation is made, courts must then determine the appropriate order.  MacPherson J. in C.(W.) summarized the available orders, as articulated by Dr. Fidler, as the following:

1)  Do nothing and leave the child with the alienating parent;

2)  Do a custody reversal by placing the child with the rejected parent;

3)  Leave the child with the favoured parent and provide therapy; or

4)  Provide a transitional placement where the child is placed with a neutral    party and therapy is provided so that eventually the child can be placed with the rejected parent.”

Malhotra v. Henhoeffer, 2018 ONSC 6472 (CanLII) at 107-110

“Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes: Family Law Rules, r. 1(2); Selznick v. Selznick, 2013 ONCA 35 (CanLII).”

Mattina v. Mattina, 2018 ONCA 867 (CanLII) at 9

“Chapman v. Chapman 2001 CanLII 24015 (ON CA), 15 RFL (5^th) 46 (Ont. C.A.). Grandparents do not have a legal right of access to grandchildren. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children’s best interests. It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child’s best interests will rarely be served by a custody order.  Branconnier, 2006 Carswell BC (SC) – the wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991) 122 NBR (2d) 271 (NBQB).

Justice Nelson set out a three part test in Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ):

One: Does a positive grandparent-grandchild relationship already exist?

Two: Does the parent’s decision imperil this relationship?

Three: Has the parent acted arbitrarily? Court sets out that deference to parents may not be as strong when one of the parents has died and that parent’s family seeks access.

In determining whether there was “positive relationship” at all, court summarized the following four elements from case law in Torabi v. Patterson, 2016 ONCJ 210 (CanLII):

(a)	There must generally be substantial pre-existing relationship between relative and child.  Strong loving ties must exist based on time spent with each other.
(b)	That relationship must be constructive one for child in sense that it is worth preserving.  If relations between parties are too poisoned, previously positive relationship may not be capable of preservation.
(c)	This determination must include consideration of child’s age and time since child last saw relative.
(d)	If young child has lost parent, existence of strong pre-existing relationship may not be necessary when it is relative of lost parent who applies for access.”

Hameed v. Hameed, 2018 ONCJ 749 (CanLII) at 45-46.

“An unenforceable agreement may have some effect.  For example, had the parties gone ahead and transferred title to the Respondent’s name, the court might not unwind that transaction simply because it was based on an unenforceable agreement.  An unenforceable agreement might be given some weight if a court is asked to make related discretionary decisions, such as for spousal support or an unequal division of net family property.  No such claims were made here.  An unenforceable contract may be of some legal use, but it nonetheless lacks the vital characteristic of enforceability.

The Respondent provided two cases where judges of this court have purported to exercise discretion to enforce an unenforceable domestic contract, despite the clear wording of s. 55(1) of the FLA. The cases were: Sessions v. Froude, 2010 ONSC 2010 (Sup. Ct.) (CanLII) and Lecot v. Lecot, 1995 CarswellOnt 1396, 19 R.F.L. (4th) 14 (O.C. J. Gen. Div.).  With respect, I do not agree that any such free standing discretion exists.

There is a well recognized exception to compliance with the formal requirements set out in s. 55(1); namely, for settlement agreements negotiated under legal advice.  The leading case in Ontario is Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.).  The Court of Appeal, at para. 15, upheld a settlement agreement that was reached through the exchange of lawyers’ letters that “was complete, definite and intended to be binding.”  Geropoulos relied upon the policy of encouraging settlements and the importance of preserving valid settlements that have been freely and properly entered into with legal advice.

Harris v. Harris, [1996] O.J. No. 2430 (O.C.J. Gen. Div.) is another case that has been cited as an example of a freestanding discretion to enforce an agreement despite its noncompliance with s. 55(1).  In Harris, discretion is said to be exercisable on a case-by-case basis.  Harris was relied upon in Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), [2007] O.J. No. 2851, 48 R.F.L. (6th) 94 (Sup. Ct.), to extend the Geropoulos principle to a situation where Minutes of Settlement were negotiated freely, with legal advice, but before litigation was commenced.  The facts in Harris emerge from paras. 11, 12 and 15:

In the case at Bar the parties and their respective counsel at a meeting in the offices of the plaintiff’s solicitor negotiated terms of a proposed settlement. By doing so it is obvious to me that unless one of the parties was not bona fide, the purpose of the meeting was to finalize some or all of the outstanding issues in the presence of and with guidance from legal counsel. Both parties solicitors are experienced and well respected and, from the evidence, can be taken to have advised the parties as to the purpose of the meeting which was to attempt to finalize issues and avoid litigation. It cannot be said that either party was at any disadvantage at the meeting or thereafter.

Counsel for the defendant, during the meeting, prepared a handwritten summary of matters that were agreed to and confirmed them in a letter the following day. Indeed, counsel begins his letter by stating: “I confirm the basis on which the parties are prepared to settle all matters”, and then sets out in more detail the content of the handwritten notes. He concludes the letter with:

I trust that the above reflects the results of our four way meeting. I shall proceed to prepare a draft agreement for your consideration. In the meantime, the proceedings may be adjourned to Tuesday, May 21st, 1996, as I may wish to have some of the terms of agreement incorporated into an order.

                        …

The essence and meaning of the correspondence is clear. The parties intended to settle matrimonial issues in dispute and believed they had done so. On my reading of the correspondence of defendant’s counsel, if his secretary had not been ill the formal agreement incorporating the terms of settlement would probably have been completed and may very well have been signed. The evidence does not support the view of the defendant that “there was no ‘backing out’ of the agreement as there never was an agreement ‘back out from’” (sic). What is clear to me is that the Respondent concluded an agreement, had second thoughts about it later, and then relied on the provisions of subsection 55(1) of the Family Law Act in an attempt to vitiate it.”

Zheng v. Jiang, 2012 ONSC 6043 (CanLII) at 29-32.

“The husband also asks this court to set aside the costs order of Snowie J. dated February 1, 2013, which ordered costs in favour of the wife on a full indemnity basis in the amount of $90,616.91 for fees and $10,724.89 for disbursements. The wife argues that this court cannot consider the costs order of Snowie J. without leave to appeal. However, the general principle is that, when an appeal is allowed, the order for costs below is set aside and the costs below and the costs of the appeal are awarded to the successful appellant: St. Jean (Litigation Guardian) v. Cheung, 2009 ONCA 9 (CanLII); Hunt v. TD Securities Inc. (2003), 2003 CanLII 48369 (ON CA), 43 C.P.C. (5th) 211 (Ont. C.A.). Leave to appeal is not required if the substantive disposition is different from that of the decision under appeal: Dines v. Harvey A. Helliwell Investments Ltd., [1992] O.J. No. 2107 (Ont. C.A.).”

Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII) at 41.

“The motion judge also gave undue weight to the respondent’s offer to settle, along with the appellant’s failure to make an offer to settle.  Although I accept that the presence or absence of offers to settle can properly be taken into account in fixing costs, it remains the fact that the appellant was not under any obligation to proffer an offer to settle.  Further, before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made.  The case here was not a situation where the issues could have been settled in any practical way.  Either the appellant was going to be able to proceed with his constitutional claim or he was not.  There was no way of compromising on that central issue.  Consequently, this was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs.

That salient point also impacts on the respondent’s offer to settle.  Her offer to settle does not reflect a compromise, given that it included a requirement that the appellant completely abandon his constitutional argument.  It is recognized that the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs.  In addition, judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged.  Even under r. 24(5)(a) of the Family Law Rules, it is but one factor that is to be considered.”

Beaver v. Hill, 2018 ONCA 840 (CanLII) at 15-16.

“In summary, as a matter of statutory interpretation, the Divorce Act mandates that, in decisions of custody and access, the sole consideration be the best interests of the child.  The focus must remain at all times on the child, not the needs or interests of the parents, and parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child.

The custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well‑being of the child.  Parental authority rests with the custodial parent, not for his or her own benefit, but in order to enable that parent to discharge effectively the obligations and responsibilities owed to the child.

As set out in the Act, maximum contact between the child and the non‑custodial parent is a worthwhile goal which should be pursued to the extent that it is in the best interests of the child.  Generous and unrestricted access, which is the norm, should be favoured except when such access would not be in the best interests of the child.  However, ongoing conflict between parents which adversely affects the child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce.

The best interests of the child must be approached from a child‑centred perspective.  It is not simply the right to be free of significant harm.  It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.

Where the question of restrictions on access arises, the best interests of the child must be determined by considering the “condition, means, needs and other circumstances of the child” as required by the Act.  The totality of these circumstances must be considered.  Nothing in the Act suggests that harm should be the controlling factor.  To adopt the harm standard would be to invert the focus of the best interests test and place the risk of error on the child, contrary to the objectives of the Act.”

Freedom of religion and expression are fundamental values protected by the Charter.  However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter.  The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access.  While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”

Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé.

“In hockey, repeatedly “ragging the puck” will garner a penalty for delay of game. Ignoring the officials will also accrue negative consequences to the offending player.  In family law litigation, some parties regrettably choose to engage in similar tactics.  But family disputes are not a game.  They involve the lives and vital interests of real people.  This concern becomes particularly acute when there are children involved.

The Family Law Rules are intended to promote fairness and efficiency in dealing with disputes that come before the Courts.  The Parties are often given multiple chances to do what they ought to have done in the first instance.  Sometimes failure to comply with orders of the Court arises because one of the parties struggles with very limited financial resources. In other cases, however, Parties who are possessed of financial means that would be the envy of the great majority of persons who come before the Court in family law cases choose to cynically game the system.

Judges are (rightly) patient.  They are slow to invoke the more drastic remedies provided for in Rule 1(8). The appellate jurisprudence understandably counsels patience and caution in this regard.

However, there comes a time when judicial patience cannot be infinite.  This is particularly so when it is evident that one of the parties is acting in cynical noncompliance with court orders, or is banking on judicial patience and indulgence to “rag the puck” and conduct a campaign of attrition against the other party.   That is the case in this case.”

Holly v. Greco, 2018 ONSC 6219 (CanLII) at 1-4

“In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, the court must consider whether the alleged change was “significant and long lasting; whether it was real and not one of choice” (Brown v. Brown, 2010 NBCA 5 (CanLII), 2010 CarswellNB 30 (C.A.); Haisman v. Haisman, 1994 ABCA 249 (CanLII), 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)).  Furthermore, as in the case of variation of spousal support, the change must be material, and must have been unforeseen when the existing order was made (Willick v. Willick, (1994), 1994 CanLII 28 (SCC), 6 R.F.L. (4^th) 161, [1994] S.C.R. 670 (S.C.C.);  Stevenson v. Smit, 2014 CarswellOnt 9001 (C.A.)).  The exception to the requirement that the change be unforeseen is where the request is for a termination of child support based on a loss of entitlement to support.  In those circumstances, the proceeding is essentially a matter of giving effect to the intent that the original order would only continue for so long as entitlement existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)).”

Meyer v. Content, 2014 ONSC 6001 (CanLII) at 21