Month: October 2019

“For there to be a finding of contempt, the Order must be a valid and existing Order and must be clear and unequivocal and the alleged contemnor must have willfully disregarded the Order.

The Supreme Court in Carey v. Laiken 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79 set out the three requirements for civil contempt to be established:

 32  Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2006),2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para. 71; Bhatnager v. Canada (Minister of Employment and Immigration), 1990 CanLII 120 (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112 (CanLII), 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105 (CanLII), 196 N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54 (CanLII), 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11 (CanLII), 298 N.S.R. (2d) 303, at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11.

33     The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., 2004 CanLII 32262 (ON SC), 2004 CanLII 32262 (Ont. S.C.J.), at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151 (CanLII), 326 D.L.R. (4th) 463, at para. 21.

34     The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).

35     Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels:Sheppard v. Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8. The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily.”

Quattrociocchi v. Quattrociocchi, 2018 ONSC 6068 (CanLII) at 9-10.

“The Supreme Court of Canada has recently considered and provided direction about applications pursuant the Hague Convention in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII).

The majority of the court noted, at para. 28, that,

the heart of the Hague Convention’s prompt return mechanism is Article 3….Crucially…the concept of habitual residence is not defined in the treaty,

and further, at para. 29,

If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply.  These exceptions can be summarized as follows:

1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2) There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3) The child of sufficient age and maturity objects to being returned (Article 13(2));

4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and

5)  The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

The majority considered three different approaches for determining a child’s habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.

With respect to “the parental intention approach”, the majority noted that this approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.

In relation to “the child-centred approach”, the majority observed, at para 41, that,

The child-centred approach determines a child’s habitual residence Article 3 by the child’s acclimatization in a given country, rendering the intentions of the parents largely irrelevant.  It is backward-focused, looking to the child’s connections with the state, rather than the more forward-looking parental intention model.

Concerning “the hybrid approach”, which was adopted, the majority stated,

[The] hybrid approach holds that instead of focusing primarily or exclusively on the either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case (para. 42).

[The] application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention…The judge must consider all relevant links and circumstances – the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B (para. 43).

Considerations include “the duration, regularity, conditions and reason for the [child’s] stay in the territory of [a] Member State” and the child’s nationality…No single factor dominates the analysis, rather, the application judge should consider the entirety of the circumstances…Relevant considerations may vary according to the age of the child concerned: where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of” (para. 44).

The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children…However, recent cases caution against over-reliance on parental intention…parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence”…It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child…but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”…The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case” (para. 45).

The majority added,

It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child.  Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal (para. 46).

The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions…It requires the application judge to look to the entirety of the child’s situation.  While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.  The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted (para. 47).

[As to] the question of whether under the hybrid approach a child’s habitual residence can change while he or she is staying with one parent under the time-limited consent of the other…Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement.  But the judge also considers all other evidence relevant to the child’s habitual residence.  The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot shift the child’s habitual residence.  The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court.  Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence.  But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal (paras. 72 and 73).

The majority also stated,

The hybrid approach favours choice of the most appropriate forum.  It focuses on the factual connection between the child and the countries in question, as well as the circumstances of the move – considerations that “mirror the closest connection test often used in determining the forum conveniens”…This allows for custody and access disputes to be adjudicated in the most convenient forum with the best available evidence…The hybrid approach thus avoids the problem that a child may be found to be habitually resident in a country with which the child has little or no connection (para. 64).

There is no conflict between the hybrid approach and the “settled in” exception under Article 12…[which] comes into play only after habitual residence is determined, and functions to provide a limited exception to the requirement that a child wrongfully removed or retained be returned to his or her habitual residence.  It may be that the hybrid approach habitual residence favours returning the child, but that the one year period and settling in indicate that the child should not be uprooted and returned to his or her place of habitual residence (para. 66).

Nor does the hybrid approach “ignor[e] the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention”…Habitual residence is determined immediately prior to the wrongful removal or retention… Subsequent links are relevant only to the exception under Article 12 (para. 67).

The majority concluded,

In sum, the hybrid approach represents a principled advance on the parental intention and child-centred approaches.  It recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary to consider parental intention in order to properly assess the child’s connections to a country (para. 68).

The application judge is best placed to weigh the factors that will achieve the objects of the Hague Convention in the case at hand.  In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi-factored hybrid approach (para. 70).

Thus, this court has been instructed to take the hybrid approach to the determination of habitual residence by means of a factual contextual analysis.”

Haq v. Malik, 2018 ONSC 6047 (CanLII) at 63-72

“On the authority of the Supreme Court of Canada’s decision in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285 and its progeny, neither this court nor the application judge in this case have authority to make any order concerning possession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. c. I-5.

Accordingly, to the extent that paragraph 7 of the application judge’s order dated October 14, 2011 is intended to address ownership or possession of the former matrimonial home, this part of his order cannot stand.  For the same reasons, all other aspects of the relief sought by the appellant must be denied.”

Syrette v. Syrette, 2012 ONCA 693 (CanLII) at 4-5

“With the greatest of respect, I do not agree that Kaplanis v. Kaplanis, stands for the principle that therapeutic orders should not be made without the parties’ consent. In Kaplanis, and while the court acknowledged that the legislation did not specificallyauthorize the making of a therapeutic order, it recognized that some trial judges had found inherent jurisdiction to do so without stating whether or not it agreed with their conclusion. In that case, the Ontario Court of Appeal found that the trial judge had erred in ordering the parties to attend counselling, not on the basis of lack of jurisdiction, but based on the absence of evidence that would support a finding that the parties would be able to carry out the order (no evidence that the parents would cooperate in the process, no stated process for the appointment of a counselor in case of disagreement, etc.).

Although the issue of jurisdiction was not specifically discussed by the Ontario Court of Appeal in Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5(Ont. C.A.), it is important to note that the court found no error in the trial judge’s decision to limit the alienating mother’s access to weekly therapy sessions with a psychologist in a severe alienation case.

There is a wide variety of orders that courts routinely make in the context of adjudicating on custody and access matters, the nature of which is not specifically set out in the CLRAor the DA. For instance, orders requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; whether a child will be allowed to travel to a specific country; or whether a child will be raised in a particular faith or educated in a particular language. The courts have always relied on the wide powers granted to them pursuant to sections 28 of theCLRAand 16 of the DA, and rightly so in my view, as authority for them to craft the order (including multi-directional orders) that meets the best interest of a particular child when parents cannot agree.

Rule 31(5) of the Family Law Rulesalso gives the court the power to make a therapeutic order if appropriate in the context of a contempt motion to force a non-compliant and/or alienating parent to change his or her ways as it relates to the well-being of a child (see Starzycka v. Wronski, 2005 ONCJ 329(Ont. C.J.)).

In addition to the above, rule 17(8)(b) of the Family Law Rulesspecifically confers upon the court the power to make an order at a case conference, settlement conference or trial management conference, requiring a party to attend a program offered through a community service or resource. While one may question whether the term “program” includes therapy or counselling, in light of the court’s duty to promote active management of family cases, which includes encouraging and facilitating the use of alternatives to the court process (rule 2(5)), I am of the view that a large and liberal interpretation of the word “program” so as to include some forms of therapeutic intervention is warranted and appropriate in a family law context.

A large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting, including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children. As is the case here, there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.”

Leelaratna v. Leelaratna, 2018 ONSC 5983 (CanLII) at 47-52.

“It was never put to Mr. Haifang Zhang that Ms. Huang told him that: she was afraid of Mr. Liu; was looking for a safe way to let him see CL; that Mr. Liu pushed her and physically assaulted her; and that Mr. Liu threatened her and said he would make a false allegation against her.

Given the gravity of these allegations and the clear contrast between what Mr. Haifang Zhang alleges was said to him and what Ms. Huang now says she told him regarding the assault on the date of separation, it was imperative for counsel to put these allegations to Mr. Haifang Zhang on cross-examination. Counsel failed to do so. Mr. Liu’s counsel objected to admitting Ms. Huang’s evidence on the basis of the no-ambush rule in Browne v Dunn, which requires that if a party intends to impeach a witness called by an opposite party, the party must give the witness an opportunity, while testifying, to provide any explanation the witness may have for the contradictory evidence. I find the failure here breached the rule in Browne v. Dunn. Watt, J.A. held in R. v. Quansah, 2015 ONCA 237 (CanLII) at para. 81:

Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted…It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness…(internal citations omitted).

The remedy is discretionary. As stated by the Alberta Court of Appeal in R. v. Werkman, 2007 ABCA 130 (CanLII) at para. 11: “A trial judge has a number of remedies available when the rule has been breached. One is taking into account the failure to cross-examine in assessing the witness’ credibility, and another is granting leave to call witnesses in reply.””

Liu v. Huang, 2018 ONSC 3499 (CanLII) at 60-62

“Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 confirms that different standards of review apply depending on the nature of the issue. For a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings).

For a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.

An appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law. An appeal court is not entitled to overturn a trial judge’s decision simply because it would have made a different decision or balanced the factors differently. (See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 per L’Heureux-Dubé J.; Van de Perre v. Edwards, 2001 SCC 60 (CanLII), [2001] 2 S.C.R. 1014 at paras. 11 and 12 per Bastarache J.) Bastarache J. in Van de Perre, supra, went on to state (at para. 15):

… the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6 (CanLII), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [1999] S.C.C.A. No. 117, [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.”

Children’s Aid Society v. REA, 2009 CanLII 55338 (ON SC) at 67-69

“Supervised access is not intended to be a long-term arrangement for a child.  It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm.  See Najjardizaji v. Mehrjerdi, 2004 ONCJ 374(CanLII), 136 A.C.W.S. (3d) 493, [2004] O.J. No. 5472, 2004 Cars­well­Ont 5656 (Ont. C.J.).

The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position.  The greater the restriction sought, the more important it becomes to justify that restriction.  See Margaret A. v. John D., 2003 CanLII 52807 (ON CJ), 2003 CanLII 52807, 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 Cars­well­Ont 2793 (Ont. C.J.).”

Burnett v. Ffrench, 2011 ONCJ 527 (CanLII) at 17-18

“The suggestion was raised that the finding of contempt may be an interlocutory order rather than a final order in which case this court would be without jurisdiction to entertain this appeal.

We disagree. This court has consistently held that a finding of contempt is a final order. See Bassel’s Lunch Ltd. v. Kick et al., 1936 CanLII 104 (ON CA), [1936] O.R. 445; International Beverage Dispenser’s Union Local 280 v. Kilgoran Hotels Ltd.(c.o.b. Brunswick Hotel), [1970] O.J. No. 389.”

Bush v. Mereshensky, 2007 ONCA 679 (CanLII) at 9-10

“The mother’s substantive ground of appeal is that Ferguson J. should have given effect to Article 13(b) of the Hague Convention and refused to enforce the Georgia court’s order.

Article 13(b) of the Hague Convention, upon which the mother relies, does not directly apply to the proceedings. Article 13(b) provides:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

…

b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

As can be seen, Article 13(b) constitutes an exception to the obligation of a requested state to order the return of the abducted child. In this case, there was no request for the return of the child under the Hague Convention. The father’s motion was to enforce the order of the Georgia court under s. 41 of the Children’s Law Reform Act. He did not invoke the Hague Convention. The Supreme Court of Canada in Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] S.C.J. No. 6 at para. 93 made it clear that domestic legislation and the Hague Convention operate independently of one another.

In any event, the mother can rely on s. 43 of the Children’s Law Reform Act. Section 43 provides:

43.  Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if,

(a) the child remains in the custody of the person legally entitled to custody of the child;

(b) the child is returned to the custody of the person entitled to custody of the child; or

(c) the child is removed from Ontario.

Decisions of the lower courts are conflicting as to whether the Children’s Law Reform Act applies when the states involved are signatories to the Hague Convention. In my view, the rationale of the Thomson case – that the two regimes operate independently – leads to the conclusion that the mother can invoke s. 43. In any event, as the court stated in Thomson at para. 93, in cases involving domestic legislation “it may not be improper to look at the Convention in determining the attitude that should be taken by the courts” and at para. 79, that “the inconsistencies between the Convention and the [Manitoba] Act are not so great as to mandate the application of a significantly different test of harm.” The Manitoba provision before the court in Thompson is in substance much the same as Ontario’s s. 43.”

Ireland v. Ireland, 2011 ONCA 623 (CanLII) at 42-46

“The wife alleges that the trial judge erred in upholding the cohabitation agreement because the release of support does not meet the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) She also submits that he erred in calculating income for child support.

In Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, the Supreme Court of Canada set out a two-stage analysis to be applied in dealing with initial applications for spousal support in the face of a release. The first stage considers the circumstances at the time the agreement was created. This stage of the analysis is subdivided into two parts:

(1) A consideration of the circumstances surrounding negotiation and execution of the agreement to determine whether there is any reason to discount it.

(2) A consideration of the substance of the agreement to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time of its formation.

The second stage of Miglin requires the court to consider, at the time of the application for spousal support, whether 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 Divorce Act.

The objectives of the Divorce Act include “certainty, finality and autonomy”: Miglin at para. 4. Subsection 15.2(6) of the Divorce Act states that a spousal support order should:

(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Smith v. Smith, 2017 ONCA 759 (CanLII) at 6-9