Month: March 2020

“Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where:

a)      it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return.

There are limited defences to the operation of Articles 3 and 12. For instance, where the habitual residence of the child has changed, a defence against an application for his or her mandatory return to the former habitual residence will be available. Further, Article 13(a) of the Hague Convention provides that the mandatory return of the child is not required where the person having the care of the child had consented to or subsequently acquiesced in the removal or retention of the child.”

Unger v. Unger, 2017 ONCA 270 (CanLII) at 2-4

“When the Court grants an order for Crown Wardship, there is presumption in the legislation against access.  The onus is then on the party seeking access to demonstrate that the criteria under s. 59(2.1) [of the Child and Family Services Act (Ontario)] are fulfilled to rebut the presumption against access. The presumption will not be rebutted unless the party seeking access can show that access would be meaningful and beneficial to the child. In addition, the party seeking access must demonstrate that an access order would not interfere with the child’s opportunity for a permanent placement.

In Children’s Aid Society of Niagara Region v. V.J.(M.), (2004), 2004 CanLII 2667 (ON SC), 4 R.F.L. (6th) 245 (ON SC), the CAS obtained a crown ward status for six children.  Access was found not to be beneficial or meaningful to three of the youngest children and termination of access would not have a negative impact on them.

On p. 9, para. 45, Justice Quinn indicates the following:

A beneficial relationship is one that is advantageous.  A meaningful relationship is one that is significant.  Consequently, even if there are some positive aspects to the relationship, that is not enough.  It must be significantly advantageous to the child.

Justice Quinn speaks of:

…an existing relationship between parent and child and not a future relationship as it precludes the Court from considering whether a parent might cure their shortcomings as to create, in time, a relationship that may be beneficial and meaningful to the child.  This accords with common sense for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

In Native Child and Family Services of Toronto v. K.W.H., 2007 ONCJ 169 at paras. 40-43, Justice Murray stated that “case law has observed that the fact that a relationship is pleasant is not sufficient for it to be beneficial and meaningful.  The relationship must be significantly advantageous to the child.”

In Children and Family Services for York Region v. J.E., [2008] O.J. No. 3948, Justice Graham noted at paras. 174-180:

Some evidence indicates that access visits with Ms. E are meaningful to child P. In particular, P has stated that Ms. E is special to her.  P enjoys the visits and is sad when they do not occur. On the other hand, as noted by Ms. Sheehan, the degree of attachment demonstrated by P towards Ms. E is limited and as noted by Ms. W, P is easily consoled when visits are cancelled.  Further simply enjoying visits and having an emotional bond with the visitor are not sufficiently significant to be meaningful.

At para. 179, he was noted as follows:

Ms. E has shown only a limited commitment to P.  Although her attendance and her conduct at access has improved, she has not had sufficient commitment to P to complete an anger management course or parenting course prior to trial despite having had 3 ½ years to do so.” Further, her access continued to be supervised at the Society. The Court found that “Ms. E had not met her burden of proving on a balance of probabilities that her relationship with P is meaningful and beneficial to P within the meaning of s. 59(2)(a) of the CFSA.”

In Catholic Children’s Aid Society of Toronto v. S.R.M, [2006] O.J. No. 1741, Justice Zuker interpreted s. 59(2) at para 168 and added at paras 169 and 170:

I read s. 59(2) as speaking of an existing relationship between the person seeking access and the child and not a future relationship…

Even if the relationship is beneficial and meaningful as a final precaution I think that there must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

In Children’s Aid Society of Hamilton, (supra), Justice Gordon concluded at para. 242:

There is some attachment or bond established over time; however it appears to be done out of routine and not from parenting. D.H. enjoys time with his parents and there is obviously some benefit to him.”

The Children’s Aid Society of Ottawa v. T-L.L, 2016 ONSC 2128 (CanLII) at 320-327

“The trial judge concluded that the mortgage was a sham. He found that the mortgage was put in place to “trick” third party claims, or to recover only from the wife if the marriage failed.

The most commonly cited definition of the sham doctrine is that of Lord Diplock in Snook v. London & West Riding Investments Ltd., [1967] 1 All E.R. 518 (C.A.). He stated, at p. 528, that a sham means:

[A]cts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties the legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create… [F]or acts or documents to be a “sham”, with whatever legal consequences follow from this, all parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

This definition of a sham has been cited many times by all levels of Canadian courts, including the Supreme Court of Canada. In Stubart Investments Ltd. v. The Queen, 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536, 1984 CarswellNat 222, at para. 51 (WL Can), Estey J. described the element of “deceit” as being at the heart of the sham doctrine. In discussing the required level of deceit in Antle v. Canada, 2010 FCA 280, 413 N.R. 128, at para. 20, Noël J.A. held that it suffices that the parties to a transaction present it as being different from what they know it to be. The majority of cases involving the sham doctrine arise in the tax context, but the doctrine has been used in appropriate cases to strike down mortgages: see Moghimi v. Dashi, 2016 ONSC 2580.”

S.A. v. A.A., 2017 ONCA 243 (CanLII) at 35-37

“Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice: Surgeoner v. Surgeoner (1991), [1992] O.J. No. 299, 6 C.P.C. (3d) 318, 31 A.C.W.S. (3d) 1247 (Ont. Gen. Div.); Ricafort v. Ricafort, [2006] O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 16.

The wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice: Kassay v. Kassay, 2000 CarswellOnt 3262, 11 R.F.L. (5th) 308, [2000] O.J. No. 3373 (Ont. S.C.J.), para 15.

The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a parent to believe that she “knows what is right,” even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, supra.

The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it: Ricafort v. Ricafort, [2006] O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554, 171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 18.”:

Peers v. Poupore, 2012 ONCJ 306 (CanLII) at 21-24

“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.).

The Ontario Court of Appeal in Drygala, set out the following three questions that should be answered by a court in considering a request to impute income:

1.Is the party intentionally under-employed or unemployed?

2.If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3.If not, what income is appropriately imputed?

In answering the first question in Drygala, the court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.

The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (Canlii) (CanLII).

When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23.  It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (Ont. S.C.J.), at paragraph 19.”

Bennett v. Reeves, 2014 ONCJ 145 (CanLII) at 19-23

“It has always been accepted that on occasion it is not only desirable but necessary that the trial judge question a witness for the purpose of clarification of the evidence. However, it is appropriate to recall the words of this court in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (C.A.), where the court addressed the issue of interventions by a trial judge.  At p. 205, the court stated:

When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants.  His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”.  Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction.  The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

In the present case, the trial judge crossed the line set out in Majcenic.  The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel’s conduct of the trial.  The trial judge effectively took the case into his own hands and out of the hands of counsel: see J.M.W. Recycling Inc. v. Attorney-General of Canada (1982), 1982 CanLII 1947 (ON CA), 35 O.R. (2d) 355 at p. 362 and Farrar v. Farrar (2003), 2003 CanLII 15943 (ON CA), 63 O.R. 141 (C.A.) at paragraph 25.

This court has stated on numerous occasions that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed: see for example Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 1995 CanLII 1069 (ON CA), 23 O.R. (3d) 362 (C.A.).  This is such a case.

 Ross v. Hern, 2004 CanLII 16950 (ON CA) at 11-13

“In my endorsement dated December 18, 2017, I indicated that I intended to strike the respondent’s pleadings if he had not paid the cost award by January 31, 2018.  However, on January 16, 2018, the respondent made an assignment in bankruptcy.

The legal effect of the respondent filing an assignment in bankruptcy is that all enforcement of the cost decision of Justice Sheard is stayed by the operation of section 69.3(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, which provides that, on bankruptcy, no creditor has any remedy against the debtor or the debtor’s property or shall commence or continue any action for the recovery of a claim provable in bankruptcy until the trustee has been discharged.

Section 69.4 of the Bankruptcy and Insolvency Act reads as follows:

69.4    A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied:

(a)  that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or

(b) that it is equitable on other grounds to make such a declaration.

The stay of enforcement by the operation of the Bankruptcy and Insolvency Act can be lifted where a creditor or other person is likely to be materially prejudiced by the continuous operation of section 69.3 or where it is equitable on other grounds.  There is no application for stay before me.

The applicant submits that this matter is akin to the situation in Carpenter v. Carpenter, 2016 ONCA 313, where the Court of Appeal upheld the striking of a party’s pleadings for non-payment of costs.  This case is distinguishable from Carpenter on its facts.  The difference in that case was that the defaulting party went bankrupt after the decision to strike pleadings was made.  In this case, the bankruptcy occurred before this motion to strike his pleadings was decided

The actions of the respondent, in making an assignment in bankruptcy when he had consented to the costs of $6,500, are highly suspicious.  He never advised the applicant of his intention to make an assignment but the effect of the bankruptcy is that the enforcement of the cost award of Justice Sheard is stayed.

However, the applicant may participate in the respondent’s bankruptcy and oppose his discharge.  Where costs survive a bankruptcy, courts have ordered the discharged bankrupt to pay the outstanding costs and/or deposit a security for costs on new applications (see Martin (Shore)  v. Shore, 2004 CanLII 5060 (Ont. S.C.), Kordic v. Bernachi, 2006 CanLII 38875 (Ont. S.C.), Backman v. Backman (1998), 7 C.B.R. (4th) 55 (Ont. Gen. Div.)).”

Clark v. Moxley, 2018 ONSC 1948 (CanLII) at 19-25

“In Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722 (CanLII), at paras. 31-32, the Court of Appeal discussed the matters that a court should consider in deciding whether to exercise its discretion to hear a moot case:

31     The formulation of guidelines for the exercise of discretion in departing from the usual practice is informed by an examination of the rationalia underlying that practice. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reasons for adherence to the practice disappear or diminish. An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

32     Three basic rationalia underpin the mootness doctrine:

i) that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii) the concern for judicial economy; and

iii)  the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

At paragraph 36, the Court went on to state that consideration of these factor is not mechanical, rather “a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present”.

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 (CanLII) at 42-43

“In Cardinal Meat Specialists Ltd. v. Zies Foods Inc., 2014 ONSC 1107, Ricchetti J., in addressing the requirements of a Mareva injunction, wrote the following at paras. 50 and 51:

There are five requirements for a Mareva injunction:

(a) the plaintiff must make full and frank disclosure of all material matters within his or her knowledge;

(b) the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim and the amount thereof, and the points that could be fairly made against it by the defendant;

(c) the plaintiff must give grounds for believing that the defendant has assets in the jurisdiction;

(d) the plaintiff must give grounds for believing that there is a real risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded to him or her; and

(e) the plaintiff must give an undertaking as to damages.

A Mareva injunction grants the plaintiff a far reaching remedy and causes financial upheaval to the defendant(s) by tying up assets indefinitely, before the plaintiff’s claim has been determined on its merits. I recognize that a Mareva injunction should only be granted in exceptional and limited circumstances.  See: Aetna Financial Services v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 SCR 2.”

         Asselin-Kowalsky v. Kowalsky, 2019 ONSC 1767 (CanLII) at 10

“…In resolving disputes arising from the interpretation of contracts, the objective is to protect the reasonable expectations of the parties, as set out in the language of their agreement. In the absence of ambiguity in the words of the contract, parole evidence of the subjective intention of the parties has no place in the interpretive exercise: see Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, at paras. 54-56. The trial judge found that the Agreement reflected the DiDonatos’ expectations in a clear and unambiguous manner — neither party has challenged that conclusion before this court. On the contrary, in advancing her own interpretation of the Agreement, Ms. Turner maintains that it is not ambiguous. She thereby implicitly acknowledges the irrelevance of extrinsic evidence in this case.

Further, para. 28 of the Agreement sets out what is commonly referred to as an “entire agreement” clause. It provides as follows:

28. GENERAL

(1) There are no representations, collateral agreements, warranties or conditions affecting this Agreement

As Professor Swan states in Canadian Contract Law, 1st ed. (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 515:

The likelihood that a document will be held to be the final, integrated expression of the parties’ agreement will be increased if the document contains an “integration clause” or an “entire agreement” clause . . . . Where the parties have been advised by their solicitors and the agreement has been carefully negotiated, such a clause should be conclusive evidence that the document is the final and sole expression of the parties’ agreement. (Footnotes omitted)”

Turner v. DiDonato, 2009 ONCA 235 (CanLII) at 44-46