Month: August 2020

“That the mother would be reluctant to allow her children to spend more time with a man who betrayed both her and the community’s trust by committing an armed robbery is understandable. There is also evidence that the father’s access to date has not been without its problems and that he has difficulty controlling anger.

That said, I find the position taken by the mother to be somewhat contradictory; she says that because the father had planned the bank robbery for several weeks in advance, she does not accept his evidence that he did it because he was having a mental breakdown. At the same time, the mother says that she is concerned that the father may have a mental breakdown when the children are with him.

There is a presumption that regular access by a non-custodial parent is in the best interests of children and the right of children to visit with a non-custodial parent and to know and maintain or form an attachment to a non-custodial parent is a fundamental right. (Montgomery v. Montgomery (1992), 1992 CanLII 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (C.A.))

There are good reasons to increase this father’s access to the children. The father was very involved in the upbringing of the children before he was incarcerated. For a time, he was at home with the children while the mother worked. The father has submitted evidence that he is now gainfully employed and that his mood has been stable. The father is living with his mother at present, which means that if the children were to have increased access to him, they would frequently also have increased access to a member of their extended family; they would also have twice the amount of adult attention.

There was no evidence before me to support the mother’s submission that the grandmother has mental health issues that would affect her ability to spend time with and help care for the children.

I acknowledge that there is an unfortunate level of animosity between the mother and the grandmother.  The father’s crime divided camps, damaged relationships and took a heavy toll on those around him. It does not mean, however, that his children should be deprived of the opportunity to spend more meaningful time with him.

I am also not concerned that appropriate space could not be found in a two-bedroom apartment for two young children to sleep overnight.

The mother expressed concern about overnight access visits on school nights, given the distance between the children’s school and the grandmother’s home. There was no evidence before me about the distance between the school and the home but so as not to set up an access schedule for potential failure, overnight access on school nights will be avoided at this time.”

McAlpine v. McAlpine, 2019 ONSC 4771 (CanLII) at 10-17

“A request for an order sealing the entire motion record or, in the alternative, for an order prohibiting the publication of any information that would identify the applicant by name was considered by the Ontario Court of Appeal in M.E.H. v. Williams, 2012 ONCA 35 (CanLII). That case involved an application for a divorce and corollary relief brought against David Russell Williams (“Williams”). Williams was a colonel in the Canadian Forces and was charged with first-degree murder, sexual assault and forcible confinement, and 82 counts of break and enter. The court described the allegations as “stunning in their depravity.” Williams pleaded guilty to the charges and was sentenced to life imprisonment.

There was widespread public interest in the criminal charges and prosecution of Williams. That interest generated intense media coverage. Williams’ criminal acts and the charges came as a shock to the applicant who learned for the first time that her husband was “a sexual predator and cold-blooded serial murderer.”

In the Williams application to seal the court file, the court was provided with an affidavit from the applicant’s treating psychiatrist who identified a “real and substantial risk” to the applicant’s mental well-being if the media was allowed to identify her by name or to publish details of financial and personal information routinely found in divorce proceedings. The application granted by the trial judge was considered by the Court of Appeal.

The motions judge made a sealing order and followed the two-step approach set out in a series of cases from the Supreme Court of Canada commonly referred to as the “Dagenais/Mentuck Test” and is stated as follows:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. (R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 at para. 32)

In Williams the applicant put forth evidence that pubic access to the court file could pose a risk to her mental health. Despite that evidence, the Court of Appeal granted the appeal from the order made by the lower court. In its reasons, the Court of Appeal referred to the analysis made by the lower court which recognized that the order sought was “an extraordinary one” which, if granted, would compromise the open court principle which the lower court described as “one of fundamental importance… to our democratic society.”

Williams expanded upon the important features of the first branch of the Dagenais/Mentuck Test and the court stated that for a publication ban and related relief to be ordered: i) there must be a public interest at stake: the order must be necessary to prevent a serious risk to the proper administration of justice; and ii) the court must assess whether the serious risk to a public interest can only be addressed by some form of non-publication or sealing order.

Williams requires that before applying the second part of the test, the court must be satisfied that there is, in fact, a serious risk. In assessing the seriousness of the risk, the appellate court stated:

In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested. Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access. Access to the courts at that cost would be more illusory than real.

The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction. [citations omitted] (M.E.H. v. Williams at paras. 29-30)”

Alsaid-Ahmad v. Jibrini, 2019 ONSC 4633 (CanLII) at 14-20

“Many practicing lawyers may be unaware of the provisions of the statute which was first introduced by an individual Member of the Provincial Parliament.

The full text of a 2009 article by Yvonne Diedrick, a claims counsel with LawPro, can be found at www.LawPro.ca/magazinearchives.

In part, the article observes:

As lawyers, we tend not to think of apologizing as a method of dispute resolution. Thanks to new legislation recently passed by the Ontario government, and to borrow from Elton John, saying sorry no longer has to be the hardest word.

The Apology Act came into force on April 23, 2009. The legislation was introduced by David Orazietti, an MPP from Sault Ste. Marie, as a private members bill. The Act allows the communication of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court.

I understand that the original proponents of the legislation came from the health care field. Historically health care professionals have avoided apologizing to patients for mistakes out of fear the apology would be considered an admission of guilt in civil proceedings. Over time, thinking has changed. Many doctors, nurses and other health care providers felt that apologizing would initiate the healing process by acknowledging to a patient that harm had been done and by promoting open communication and accountability between patient and health care provider.

…

As a result, the Act provides that an apology, made by or on behalf of a person:

• does not constitute an admission of fault or liability by the person:

• does not affect any insurance coverage or indemnity available despite any wording to the contrary in the contract of insurance or an act or law:

• shall not be taken into account in determining fault or liability in the matter: and

• is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of fault or liability in the matter.

In her article. Ms. Diedrick observes:

“No doubt the legislation was intended to encourage the early resolution of disputes by providing the protection of the Act if the apology is given before reaching costly out-of-court examinations such as discovery, or matters escalate to an arbitration or trial.”

Simaei v. Hannaford, 2015 ONSC 5041 (CanLII) at 24-27, 32-33

“Counsel for the applicant Penny Dorka, respondent on the motion, argued emphatically that in law a dog is equivalent to a chattel such as a “toaster”, and that there is no basis for this court to direct that such a chattel be returned from one party to another on an interim basis.

I disagree. Under the Family Law Rules, courts are required to promote resolution of cases in a manner which fair, just, and proportionate to the issues between the parties.”

Dorka v. Kumar, 2016 ONSC 8226 (CanLII) at 4-5

“The relevant provisions of the Partition Act and the FLA must be read together. Where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for sale, the matter should be deferred until the issues are decided under the FLA.  However, if the sale will not prejudice either spouse’s claim with respect to the home under the FLA, there is no reason to delay a sale: Silva v. Silva, 1990 CanLII 6718 (ON CA); 1 O.R. (3d) 436: 75 D.L.R. (4th) 415.

An owner of a home has a prima facie right to sale: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Brienza v. Brienza, 2014 ONSC 6942 (CanLII), at para. 22. A matrimonial home may be sold without spousal consent when the evidence does not support a realistic need to maintain the house as a home for the benefit or stability of the children pending trial: Jiang v. Zeng, 2019 ONSC 1457 (CanLII), at paras. 50 and 51.

In Jiang McGee J. stated, at paras. 36 – 38:

Exclusive possession is an Order only available pending the sale of a matrimonial home.  An Order for exclusive possession cannot be used to frustrate an owner’s prima facie right to the sale of the home.  The sale of the matrimonial home can be ordered prior to Trial on a motion, or at Trial.

The sale of a matrimonial home will generally be ordered on a motion unless there are children residing in the home, per section 24(3)(a) of the Family Law Act, or, an entitlement under the Act that would be otherwise defeated.

The purpose of section 24(3) is to preserve stability and continuity in the lives of children while their parents’ legal issues are determined.”

Khan v. Khan, 2019 ONSC 4687 (CanLII) at 10-12

“There is strong support in Ontario case law for the proposition that a change of custody may be the appropriate response to findings of pure alienation, even when the alienated child opposes the change and is of an age where, in general, his/her wishes would receive significant weight: see for example, Reeves v. Reeves, 2001 CarswellOnt 277 (Ont. S.C.J.); B.(S.G.) v. L.(S.J.), 2010 ONSC 3717 (Ont. S.C.J.); L.(A.G.) v. D.(K.B.) 2009, 93 O.R. (3d) 409 (Ont. S.C.J.).  I also accept that parental alienation is a form of emotional abuse with potential long term negative repercussions for the child.  A recognized Ontario authority on the subject of parental alienation has referred to some of Dr. Baker’s interesting longitudinal research to this effect in A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. Sup. Ct.) at paras. 97 and 98:

97   Dr. Fidler testified that long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70% of the individuals studied. Two thirds of the same population became divorced themselves — a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives and difficulties trusting other people. One third were reported to have substance abuse problems. Fifty percent of this group in this study became alienated from their own children.

98   Dr. Fidler also testified that the study in question found that the bulk of those involved had wished that “someone had called them on their strong wishes and statements not to see the other parent”, but that they could not do it themselves. They could not reverse their public stance against the alienated parent, but wished someone else would make the decision for them that they had to see that parent. This way, the child could “save face”.”

Fielding v. Fielding, 2013 ONSC 5102 (CanLII) at 165

“The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. 1. 1. There must be evidence of historical communication between the parents and appropriate communication between them.
      2. It can’t be ordered in the hope that it will improve their communication.
      3. Just because both parents are fit does not mean that joint custody should be ordered.
      4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
      5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
      6. The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260 (CanLII); Roy v. Roy 2006 Canlii 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CanLII 6423 (Ont. SCJ.).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour.  However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb 2008 CanLII 19764 (ON SC), 2008 CanLII 19764 (Ont. S.C). 

In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship:  See:  Garrow v. Woycheshen, 2008 ONCJ 686 (CanLII), 2008 ONCJ 686, (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).” 

G.T.B. v. Z.B.B., 2014 ONCJ 382 (CanLII) at 23-27

“Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. Sup.Ct.).”

Godard v. Godard, 2015 ONCA 568 (CanLII) at 28