Month: September 2020

“Where a court is asked to consider whether a child should change schools, the following considerations apply:

a. The best interests of the child governs the decision;

b. The parent suggesting the change must demonstrate that the change will be in the best interests of the child;

c. Factors which may be taken into account include a review of how many years the child has been at the current school; whether there is any prospect of one of the parties moving in the near future; whether a move will mean new child care providers or other unsettling features; any problems with the present school or proposed school; and the child’s views and preferences if they can be determined.

While the case before me is not pleaded as a mobility case – the determination of the issue necessitates findings that may directly affect mobility and existing custody and parenting arrangements.

The Supreme Court of Canada in Gordon v. Goertz [1996] 2 S.C.R. is the leading authority in mobility cases.

The focus of any motion concerning choice of school and mobility is the best interests of the child and not the interest and rights of the parents. Additionally, the following considerations are paramount to any decision rendered:

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. Disruption to the child of a change in custody; and

e. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.”

         Lackey v. Treiguts, 2017 ONSC 5493 (CanLII) at 8-11

“In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 (Ont. C.J.) (CanLII), Justice Stanley Sherr provided a neat synthesis of the Bradshaw reorganization of hearsay statements. At paragraph 16 of G.S., Justice Sherr stated:

The following statements made in Bradshaw are pertinent to the hearsay analysis:

a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. – Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. – Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30) – Bradshaw at para. 27.

d) Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 55). – Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other”. – Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). – Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. – Bradshaw at para. 41.

Bradshaw, supra, makes it clear that in determining whether a statement is inherently trustworthy, the trial judge need not conclude that reliability be established with absolute certainty. However, the threshold reliability must be sufficiently high to overcome the dangers ordinarily presented by hearsay evidence.¹⁰

The essence of Khelawon, supra, and Bradshaw, supra, and the principled approach to admitting otherwise inadmissible hearsay evidence is that hearsay evidence will be admitted if it has been made in circumstances which substantially negate the possibility that the declarant was untruthful or mistaken. The circumstances must be sufficiently trustworthy such that even a sceptical caution would look at the statement as being trustworthy; and so trustworthy that it is unlikely that evidence would change even under cross-examination.” 

Macarthur v. Remani-Macarthur, 2018 ONCJ 637 (CanLII) at 59-61

“The Court of Appeal for Ontario, in Manchanda, supra [2016 ONCA 909] teaches lower courts that willful non-compliance must be considered egregious and exceptional.  Although that case dealt with financial disclosure, there is nothing to suggest that willful non-compliance with support and/or costs orders should be treated differently.  In Holly v. Greco, 2019 ONCA 464, the Court of Appeal for Ontario endorsed this analysis for a  child support order, upholding the motion judge’s analysis in striking the appellant’s answer and claim on the basis that the appellant’s failure to pay child support was “flagrant and willful” and that this conduct was one of the exceptional and egregious cases that fit within the test for striking pleadings:  paras. 7 and 10.

…

Considering all the evidence on the motion, the respondent’s failure to comply with the orders rises above fecklessness.  I find that the respondent’s conduct is contumacious and that his failure to comply with the two orders is willful, deliberate and flagrant.

In considering the sanction to be imposed having regard to r. 1(8) and (8.4), I find that the appropriate consequence is to strike the respondent’s answer, but with an opportunity to avoid that consequence by paying all arrears within a specified time.  The only exception would be the preservation of the respondent’s claim for divorce.”

Hall v. Hall, 2019 ONSC 5195 (CanLII) at 59, 61-62

“Where a married or formerly married spouse seeks spousal support in the face of a separation agreement waiving such support, either or both of two statutes may be engaged: the provincial FLA (Family Law Act), which addresses domestic contracts as a provincial property and civil rights matter; and the federal DA (Divorce Act), which confers authority on the court to award support as corollary relief to a divorce: Myers v. Hawco, 2005 NLCA 74, 252 Nfld & PEIR 121, at para. 15; Zimmerman v. Shannon, 2006 BCCA 499, 62 B.C.L.R. (4th) 255, at para. 36.

Where a spouse seeks to set aside provisions in a separation agreement regarding the spouses’ property, s. 56(4) of the FLA is engaged.  Section 56(4) of the FLA provides that,

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Section 33(4) of the FLA, which was neither argued nor considered by the trial judge in this case, provides additional circumstances under which the court may set aside a provision for, or waiver of, support:  where the waiver leads to unconscionable circumstances, the waiver is by or on behalf of a dependant who qualifies for support out of a public allowance, or if there is a default in a payment under the contract at the time the application is made.

The DA, for its part, does not confer authority to set aside agreements per se, but does confer authority to make spousal support orders as corollary relief to a divorce. Under s. 15.2 of the DA, as interpreted in Miglin, a valid separation agreement is but one factor to consider in determining whether the court should exercise its authority to award corollary spousal support:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

…

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a)    the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c)    any order, agreement or arrangement relating to support of either spouse.

Section 56(4) of the FLA deals with intrinsic flaws in the formation of a contract that nullify the apparent consent between the parties and invalidate the agreement, allowing a court to set aside the contract. Section 15.2 of the DA permits a court, looking at both the formation of the contract and all the circumstances at the time of the application, to override the support provisions of an agreement and order support contrary to the agreement: see James McLeod’s annotation on Murray v. Murray (2003), 2003 CanLII 64299 (ON SC), 66 O.R. (3d) 540 (S.C.) (W.L.), rev’d (2005) 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147 (C.A.). 

In this case, since the father sought relief under both the FLA and the DA, the trial judge appropriately conducted both analyses.”

Faiello v. Faiello, 2019 ONCA 710 (CanLII) at 14-18

“There is no dispute about the law of civil contempt, which is comprehensively set out by Justice Chappel in Jackson v. Jackson, 2016 ONSC 3466.  For a summary I adopt the following comments by Justice Charney in Kokaliaris v. Palantza, 2016 ONSC 198 (paragraphs 24 to 26 combined, citations omitted):

Contempt is a serious remedy and is not to be granted lightly.  It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. …  [T]he civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party.  Any doubt must be exercised in favour of the person alleged to be in breach of the order.  … [T]o make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt: (a) the order must be clear and not subject to different interpretations; (b) the acts [or failures to act] stated to constitute the contempt must be wilful [also referred to as “intentional” or “deliberate” in the caselaw] rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt.  Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.  Notwithstanding the court’s reluctance to exercise it[s] contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.

It goes without saying that the purpose of a Notice of Motion, critical for the principles of natural justice, is to give the opposite party and the court notice of what relief the moving party is seeking: Kenora-Patricia Child and Family Services v. M.(A.), 2004 CanLII 56654 (ON SC), [2004] O.J. No. 673 at paragraph 44.  This is especially important for a contempt motion, and it has therefore long been held that “[t]he notice of motion must specify the person against whom the order is sought, and state the date, place, and other facts sufficient to identify the particular acts alleged to constitute contempt”: Toronto Transit Commission v. Ryan, 1998 CanLII 14635 (ON SC), [1998] O.J. No. 51 at paragraph 29.

The requirement that the Notice of Motion for contempt contain the clearly articulated particulars of the charge was relaxed somewhat in the case of Follows v. Follows, 1998 CanLII 4629 (ON CA), [1998] O.J. No. 3652 (C.A.) at paragraph 3.  It created what has been described as a “very limited exception” where the particulars are readily ascertainable from a single paragraph in the supporting affidavit and no objection is raised: Rocca Dickson Andreis Inc. v. Andreis, [2013] O.J. No. 4071 (Div. Ct.) at paragraph 21.  Since the Follows case, the importance of strict compliance with formal procedures has been reemphasized in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), [2009] O.J. No. 356 (Ont. C.A.), and Morasse v. Nadeau-Dubois, 2016 SCC 44.”

Newstead v. Hachey, 2019 ONSC 5213 (CanLII) at 2-4

“The legal principles applicable to interim motions on mobility are well settled.  In Plumley v. Plumley, 1999 CanLII 13990, the court stated at par. 7:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3.  Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

In Datars v. Graham, 2007 CanLII 34430, 41 R.L.F. (6th) 51, the court stated at par. 16:

The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, 2006 ONCJ 490 (Ont. C.J.); Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (Ont. C.J.).”

Geoffrion v. Belanger, 2017 ONSC 5349 (CanLII) at 4-5

“It is accepted that a judge is permitted to ask questions in order to clarify evidence that has been given by a witness or witnesses. The appellant submitted that the trial judge here went well beyond those well-established bounds. In questioning Dr. Pickup and Dr. Jaffe, the trial judge appeared to make negative findings of credibility against the wife, and put those findings to the witnesses by way of cross-examination. In the course of questioning these witnesses, he also appeared to be filling holes in the husband’s testimony.

It is crucial for trial judges to maintain their independence and impartiality throughout; the process depends upon it. When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging.”

Clayson-Martin v. Martin, 2015 ONCA 596 (CanLII) at 107-108

“Clearly it is within the court’s jurisdiction to order a support payee to be designated as the beneficiary under the payor’s life insurance policy to provide interim security for the payment of interim spousal support: Family Law Act, RSO 1990 c. F. 3, s. 34 (1) (i) and (k); Katz v. Katz, 2014 ONCA 606; Dagg v. Cameron Estate, 2017 ONCA 366.”

Malik v. Malik, 2019 ONSC 5118 (CanLII) at 28

“The Family Court judge presiding at a case conference rendered judgment dismissing this application brought under the Family Law Rules for shared joint custody of a pet dog named Tuxedo under subrule 2(3) of the Family Rules and subrule 1.04(1) of the Rules of Civil Procedure.

The application as first issued on June 25, 2004, alleged that the parties had “dated during the period June 1993 to in or about February 2004.”  The respondent issued an answer/claim on July 16, 2004, denying she cohabited with the applicant and claiming custody of the dog.

Confronted with the objection that Family Court would only have jurisdiction in this case if the claim alleged cohabitation and constructive trust, the applicant amended his application to allege that the parties had dated and cohabited and that the respondent held possession of Tuxedo on a constructive trust for the two of them in equal shares.

The case conference judge reviewed the file and expressed his concerns as to jurisdiction and whether this case deserved a full hearing in the Family Court.  He gave the parties two weeks to make submissions.  After receiving the submissions, he dismissed the application on the basis that the parties “deserve a just procedure; one that is fair to both parties; one that saves time and expense; one that is appropriate to the importance and complexity of the case and one that devotes appropriate court resources.”  He added “three judges have now spent time in this file.  That is sufficient.  Short of a full-blown trial with contradictory oral evidence and findings of fact by a trial judge, nothing more can be added to allow the court to determine ownership.”

In his reasons, the judge alluded to paragraph 16 (12) (c) (iv) of the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.”  While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.

We agree and on the basis of the trial judge’s findings we would dismiss the claim under rule 16 (12) (c) (iv) of the Family Rules.  Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail both on jurisdiction and on the merits, and that in view of the pressing workload of the Family Court the case did not warrant a full trial.”

Warnica v. Gering, 2005 CanLII 30838 (ON CA) at 1-6

“Counsel for the appellants also argued that counsel for the respondent’s closing address at trial was inflammatory and misstated the evidence.  None of the several specific objections raised on appeal were raised at trial.

There will seldom be a closing address by counsel that is not open to some criticism.  Where an objection to a closing argument is taken for the first time on appeal, however, counsel must demonstrate that any shortcomings or improprieties in counsel’s address were sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt.”

Rogacki v. Belz, 2004 CanLII 21439 (ON CA) at 21-22