Month: September 2021

“As discussed previously, the respondent’s motion was brought ex parte.  The Court of Appeal for Ontario, in a family law case, has made clear that an ex parte motion is to be used only in exigent circumstances, that the party bringing the motion must make full and fair disclosure of all material facts, including facts that may not be helpful to that party, that an ex parte order obtained without full and fair disclosure may be set aside even if the lack of full disclosure was unintended, and that the foregoing principles, well known to lawyers, apply equally to self-represented parties:  see M.(A.) v. M.(J.), 2016 ONCA 644, at paras. 26-30, reproduced below:

ANALYSIS

Issue 1: Did the appeal judge err by upholding the trial judge’s finding that the father obtained an unlawful status quo on the ex parte motion?

(1) Ex Parte Orders

26      Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if “there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.” If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.

27      These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

28      Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368 (Ont. S.C.J.).

29      Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

30      That requirement is well-known to lawyers. It applies equally to self-represented parties.

The foregoing discussion in M.(A.) v. M.(J.), supra, also focusses on r. 14(12) of the Family Law Rules, O. Reg. 114/99, which deals with circumstances in which an ex parte motion may be brought.  That rule makes clear that an ex parte motion is generally restricted to situations where there is immediate danger of a child’s removal from Ontario, or immediate danger to the health or safety of a child or the party making the motion and where, in those circumstances, any delay in serving the motion would probably have serious consequences.  The respondent’s decision to proceed ex parte did not come within any of the circumstances itemized in r. 14(12).”

            Campbell v. Campbell, 2019 ONSC 5493 (CanLII) at 53-54

“To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein.”

         Gray v. Canonico, 2020 ONSC 5885 (CanLII) at 45

“The court has a broad discretion to find value, even in the absence of solid valuation evidence: McLean v. McLean, [2004] O.T.C. 904 (Ont. S.C.J.), at para. 49, citing Tremblay v. Tremblay, 2002 CarswellOnt 484 (Ont. S.C.J.). In Felte v. Felte (2004), 3 R.F.L. (6th) 37 (Ont. C.A.) the Court of Appeal stated that where the evidence is unsatisfactory and incomplete, a trial judge must use the evidence he or she does have, in attempting to come to a reasonable and fair result.”

Shah v. Shah, 2018 ONSC 5784 (CanLII) at 85

“A party cannot establish a new habitual residence by surreptitiously removing the child to another country.  A relocation by self-help will not establish jurisdiction: Carter v. Brooks (1990), 30 R.F.L. (3d) 52 (Ont. C.A.).  However, where the other parent consents to the move, or takes no steps when made aware of the move, either agrees or acquiesces in the child moving, as provided in section 22(2)(b), a new habitual residence is created: A.M. v. D.L., 2019 ONCJ 155 (CanLII) at 44-45.”

         Z.A. v. A.A., 2019 ONSC 5601 (CanLII) at 33

“A trial judge’s findings of fact, including credibility assessments, are entitled to substantial deference on appeal “especially in family law cases”: Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. Moreover, the imputation of income for support purposes is a discretionary and fact-specific exercise: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 73, aff’d in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at paras. 49 and 51.”

         Levin v. Levin, 2020 ONCA 604 (CanLII) at 12

“Numerous cases since the advent of the COVID-19 pandemic have recognized that parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives. The jurisprudence that has developed since the beginning of the COVID-19 pandemic may be summarized as follows:

i.     There is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child.

ii.     While there is a presumption that existing parenting arrangements and schedules should continue, both custodial and access parents and members of their households are obliged to strictly adhere to COVID-19 safety protocols, including social distancing, hand washing, use of face masks and compliance with all public safety measures. They must also ensure that their children comply with these protocols while in their care.

iii.     A parent concerned about the other parent’s adherence to COVID-19 safety protocols cannot unilaterally deny the other parent’s court ordered access or parenting time, but must bring a motion to seek a variation. The parent initiating such a motion is required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

iv.     The parent responding to such a motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

v.     Both parents will be required to provide very specific and realistic proposals which fully address all COVID-19 considerations, in a child-focused manner.

vi.     A parent cannot unilaterally impose on the other parent conditions in addition to the safety precautions required by government and public health officials. If one parent is of the view that additional precautions are required, and the other parent does not agree to follow them, the parent seeking to impose additional requirements must bring a motion to request the court to add such conditions to the parenting schedule. Any such motion must be accompanied by medical evidence to support the request.

See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; Almadi v. Kalashi, 2020 ONSC 2047, at paras. 7-8; Skinner v. Skinner, 2020 ONSC 3226, at para. 35.

Finally, the courts have recognized that some circumstances may exist where parenting arrangements and schedules will have to be altered as a result of one parent’s refusal or inability to comply with government mandated COVID-19 safety protocols. In Ribeiro, Pazaratz J. stated, at paras. 13-14:

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.”

         J.F. v. L.K., 2020 ONSC 5766 (CanLII) at 20-22

“Both parties in this motion agree that the court is generally very cautious in granting an interim order seeking a change in mobility or relocation given the summary nature of interim motions. The reported Ontario case of Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), makes the following statement at paragraph 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 that might dictate that a judge 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.”

         Tower v. Lebrun, 2020 ONSC 5723 (CanLII) at 16

“Where parties are married and on separation one spouse claims an equalization of net family property, the court has jurisdiction under s. 12 of the Family Law Act to make an order for the preservation of the spouses’ property pending a determination of the claim.  The jurisdiction includes an order “for the possession, delivering up, safekeeping, and preservation of the property”:  see s. 12(b).  What is the jurisdiction where the parties were not married?

In Dimartino v. Dimartino, 2016 ONSC 7461, the parties were married for 45 years and had two adult children.  The husband was in the business of buying and selling properties.  The wife claimed that the husband had transferred a property to his son, who was also in the building business, for nominal consideration.  The wife claimed that the transfer was fraudulent.  She brought a motion for a preservation/non-dissipation order against the son.

Charney J. confirmed that the Family Law Act, s. 12(b), does not permit the court to make an order against a third party to the proceeding.  The express language of s. 12 of the Family Law Act is directed to property owned by a spouse and not property owned by a third party.  The wife had to rely on the equitable jurisdiction of the court to grant a Mareva injunction.  In para. 32, Charney J. articulated the test relating to Mareva injunctions by reference to a 2014 decision of Perell J. as follows:

In O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 (Ont. S.C.J.) (CanLII), at para. 67, Perell J. summarized the law relating to Mareva injunctions as follows:

For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment.  A Mareva injunction should be issued only if it is shown that the defendant’s purpose is to remove his or her assets from the jurisdiction to avoid judgment.  The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction.  Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.

Although the facts in Dimartino are different than the facts before me, the analysis is the same.  The Family Law Act, Part One, applies only to spouses who were married.  As the applicant cannot request a preservation order under s. 12 of the Family Law Act, he is limited to requesting relief in the form of a Mareva injunction.

The test for a Mareva injunction presents a higher hurdle than the test for a non-dissipation order: see Price v. Price, 2016 ONSC 728, and there is good reason for that. A Mareva injunction is akin to execution before judgment.  A Mareva injunction is exceptional relief and can only be granted in extraordinary circumstances.  When ordered, such extraordinary relief ties up the assets of the respondent before there has even been a determination on the merits of the case and before any judgment adverse to the respondent has been rendered.  A request for such extraordinary relief imposes a considerable burden on the moving party.”

         Crouchman v. Garant, 2020 ONSC 5693 (CanLII) at 13-17

“This court proceeding was commenced by the Society on February 1, 2018 under the Child and Family Services Act, R.S.O. 1990, c. c.11 (“CFSA”).  On April 30, 2018, the CFSA was replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). A transitional regulation, O.Reg. 157/18, required that all cases not concluded at the date the CYFSA came into force would be continued as a proceeding commenced under the CYFSA rather than the CFSA. (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.)

Accordingly, the issue of access must be determined pursuant to the CYFSA.  This is significant as the CYFSA provides for a new expanded test for access to children in extended society care.  Justice Benotto of the Ontario Court of Appeal in the Kawartha case stated in paragraph 31:

Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community.”

Highland Shores Children’s Aid Society v. J.G. and R.D.F., 2019 ONSC 5476 (CanLII) at 120-121

“The law on this subject has evolved rapidly, but now is relatively clear.

The law is, and always has been, that the best interests of the child govern the issue of where the child goes to school.

The Covid-19 pandemic does not change the focus of the analysis. Rather, it adds certain other factors to consider as set out in Himel J.’s decision in Chase v Chase, 2020 ONSC 5083, Akbarali J.’s decision in Zinati v. Spence, 2020 ONSC 5231, and my decision of Amin v. Kabir, 2020 ONSC 5245, (to all three of which I directed Counsel during or Zoom Videoconference of 4 September).

The Court should exercise caution in cases such as this where there has been no determination as to custody and access, and the issue of custody is hotly contested. However, the child’s interest requires that the Court take on this issue squarely.

Most of the “where does the child go to school” motions, such as this case, are really requests by the parties to break the deadlock between parents who share decision making for their children but cannot come to a decision.

In Zinati v. Spence, Akbarali J., said that:

1. Courtsmust pay deference to government plans for a safe return to school. It has access to experts in the Ministry of Health and Departments of Public Health, to advise it on the changing pandemic landscape. The court is not in a position, without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that the government will modify its plans as circumstances require, or as new information becomes known.”

2. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemiceither.

3. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limitedto:

a.  The education plan that the parent putsforward;

b.  The risk of exposure to COVID-19that the child will face if she or he is in school, or is not in school;

c.  Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other riskfactors;

d.  The risk the child faces to their mental health, social development, academic development or psychological well-being from learningonline;

e.  Any proposed or planned measures to alleviate any of the risks notedabove;

f.  The child’s wishes, if they can be reasonably ascertained;and

g.  The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or otherdemands.

  In Amin v. Kabir, after incorporating the factors in Chase and Zinati, I said that:

1. Courts should consider further factors including the child’s connections to school, socially or athletically, and whether it is in the child’s best interests to be removed from them? Are there alternatives outside ofschool?
2. Everychild in Ontario has the right to receive educational services, but also has the obligation to attend a school for the year as defined by the Ministry of Education. Parents must take steps to ensure that their child fulfills his obligation to attend school. It is only in exceptional circumstances that a child will be exempt from this obligation.
3. TheCovid-19 pandemic is an extraordinary situation calling for exceptional measures. But these are only temporary measures which do not modify the provisions of the Education Act. Even though the return to school might not be mandatory, this does not necessarily take away the right of children to receive educational services nor mandate them in one form or another.
4.    In order to justify removing children from school, parents must establish thatthey have and can take the means necessary to achieve the standards set out in the Education Act other than in-class attendance. If one of the parents in a shared custody situation cannot establish that he or she can offer his child the proposed alternative to attendance at school for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.
5.    The Covid-19 pandemic landscape during the pandemic is made of sand, not stone, and is ever-shifting. The current situation may not be much different next September.

In Amin, I was referring to the mandatory attendance at school. The Education Act provides that school is mandatory for children only over 6. My comments in Amin, however, apply equally to children under 6 years of age, subject to the fact that school for them is not mandatory.”

         Sirhindi v. Qayyum, 2020 ONSC 5590 (CanLII) at 18-25