Month: October 2021

“The respondent’s position is that the applicant is a special party as defined in Rule 2(1) of the Family Law Rules.  According to that rule, a special party is defined as follow:

“special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result requires legal representation but does not include a child and has to be, access, Child protection or adoption of child support case.

The definition of incapacity is found at s.6 of the Substitute Decisions Act (“SDA’). The test for incapacity is:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate reasonably foreseeable consequences of a decision or lack of decision.

According to Rule 4(3) of the Family Law Rules:

(3) If there is no appropriate person willing to act as a special party’s representative, the courts may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with the patient’s consent.

…

In Children’s Aid Society of the Niagara Region v. W. D. 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244, at para. 11, Quinn J. stated:

From what I am able to determine, one is mentally incapable in respect of an issue in a case where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issue.

In the same decision, Quinn J. also found that there is a presumption that one has capacity.  According to Quinn, J. the presumption applies unless there are reasonable grounds to believe that one is not able to understand and appreciate.  The burden of proof of incapacity is on a balance of probabilities.

In C.C. v. Children’s Aid Society of Toronto [2007] O.J. No. 5613, Backhouse J. found at para 34:

Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian:

(a)  medical or psychological evidence as to capacity;

(b)  evidence from persons who know the litigant well;

(c)  the appearance and the demeanour of the litigant;

(d)  the testimony of the litigant;

(e)  the opinion of the litigant’s own counsel.”

         Must v. Shkuryna, 2017 ONSC 6258 (CanLII) at 2-4 & 13-15

“The Court will not condone a game of “chicken” between Parties.

There must be consequences to a decision of a Party who is eminently able to comply with a court order to not do so.  An Order of the Court is not a suggestion.  It is not an invitation to a further negotiation.   The Respondent has no right to impose his own payment terms, because he is unhappy with the outcome of a motion.

As Howden J. noted in Lee v. Chang, 2013 CarswellOnt 18085 at para. 36,

A court order is not some invitation to dance which can simply be ignored or excused.  … Compliance with court orders is not optional.  Non-compliance with court orders, absent circumstances beyond the party’s control, must have consequences.  The court’s response to failure or refusal to comply without proper excuse must be strong and decisive.

In Levely v. Levely, [2013] O.J. No. 753, at paragraphs 12 and 13, Chappel J. made the following comments:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner.  Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial hardship for the other party. The frequency with which Family Law litigation degenerates into an abuse game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders.  Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice.  The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to a resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and children in their care.

The Rules referred to above are the main tools which a judge presiding over family law matters has in their toolbox to prevent a party from embarking on a game of litigation abuse.   The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner.   Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive.  The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

Holly v. Greco, 2018 ONSC 6219 (CanLII) at 28-31

“Our courts repeatedly have emphasized the challenging nature of making important parenting determinations on an urgent and interim basis, bearing in mind the potential for such “interim” decisions to assume, in practice and effect, more extended and lasting significance.  In particular:

a.    Frequently, the material filed by parties is hastily prepared, incomplete, and untested. Moreover, the facts are often still evolving.

b.    Already elevated emotions are heightened by the fact that the parties are in a state of transition; e.g., with one or both parties relocating to new homes. Even without ongoing custody litigation, that would be stressful for all concerned, including children.

c.    The obvious strategic dynamics associated with temporary motions cannot be ignored.  Counsel frequently embark on arguments based on preservation of a “status quo” even before there is agreement on what the status quo might be, and even “interim interim” orders, intended to have only temporary effect, often have significant long-term implications. Being fair to the parties as litigants is important. However, being fair to the children is even more important.

d.    In such a context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process, and quite often at a trial.

e.    To the extent it can be ascertained, the status quo ordinarily should be maintained until trial, unless there is material evidence that the children’s best interest demands an immediate change.

f.    Courts must be mindful of, and actively discourage, efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.

g.    Physical separation between parents usually entails some continuing geographic proximity, usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of “best interests” considerations, including maximizing contact between a child and both of his or her parents.

h.    Frequency of contact is particularly important for young children, and where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues.

For authority emphasizing the considerations set out in this particular paragraph, see in particular Coe v. Tope, 2014 ONSC 4002, at paragraph 25, and the numerous authorities cited therein.”

Medeiros v. Butterworth, 2020 ONSC 6202 (CanLII) at 33

“In Laamanen v. Laamanen, 2005 CanLII 50808 (ON SC), [2005] O.J. 5823 (Ont. S.C.J.) at paras. 12 to 15 Justice Karakatsanis, as she then was, discussed the principles which should govern an advance of funds based on an equalization claim:

12  Although the husband characterized the request for a partial advance on an equalization payment as a motion for partial summary judgment, I prefer not to consider the request on that basis. The construct of a Rule 20 motion does not fit this context. The motion would raise issues of res judicata and would not resolve any issues or shorten the time at trial. The Ontario Court of Appeal in Ford Motor Company of Canada Limited v. Ontario Municipal Employees Retirement Board et al (1997), 1997 CanLII 1302 (ON CA), 36 O.R. (3d) 384, held that parties cannot move for partial judgment as soon as they can prove a minimum recovery, especially where it does not resolve an issue, or shorten trial time. Rule 20 does not involve any consideration of need for the funds or an ability to pay.

13  I prefer the approach of Lane J. in Zadanski v. Zadanski (2001), 2001 CanLII 27981 (ON SC), 19 R.F.L. (5^th) 458, Lane J. referred to the difficulties in proceeding under Rule 20 for partial summary judgment and canvassed the cases where the Court had ordered partial advances on equalization. He found that the Court had jurisdiction in a proper case to make an interim order for the payment of an advance on the equalization payment. Although leave to appeal to Divisional Court was granted, [2002] O.J. No. 3415, the appeal was not pursued. By granting leave to appeal, one Superior Court Judge had some reservations about the correctness of that decision; however, numerous other judges of this Court have ordered advances, either as an advance on equalization payment, or for interim disbursements, or to be characterized by the trial judge. Where a minimum equalization payment is conceded, an advance can avoid an interim judicial determination on issues best dealt with at trial, thus avoiding the need for interim support determinations and interim disbursements.

14  In Haroun v Haroun, 2001 CanLII 28128 (ON SC), [2001] O.J. No. 2575 (S.C.J.), the motions judge refused to grant an advance on equalization because she was unable to determine a minimum equalization payment. In Armstrong v. Miller (11 January 2001, 5 April 2001) Toronto 00-GL-907 Toronto (S.C.J.) at paras 26 and 19 to 20 respectively, the motions judge refused to grant summary judgment where there was a great deal of confusion about fiscal issues; he was not prepared to accept an answer on cross-examination regarding a minimum payment as anything more than an estimate pending determination by fiscal and accounting experts. In this case, the minimum equalization payment was conceded by counsel.

15  The cases show that the Court may use its discretion to order an advance on equalization where 1) there is a reasonable requirement for the funds; 2) there is little doubt that the person will receive an equalization payment of at least that amount; and 3) it is just to do so in the circumstances, including the payor’s ability to pay.”

Gangodawila v. Fernando, 2020 ONSC 6219 (CanLII) at 6

“In Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, Deschamps J., speaking for the majority of the Supreme Court, articulated a general rule, at para. 84: “I would lay down a general rule that in any case involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator.” This has become known as the “competence-competence principle”. The exception is where a “challenge to the arbitrator’s jurisdiction is based solely on a question of law, or one of mixed fact and law that requires for its disposition ‘only superficial consideration of the documentary evidence in the record’” (Dell Computer, at para. 84).  See also Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 4.

This court most recently discussed the “competence-competence” principle in Ciano Trading & Services C.T. & S.R.L. v. Skylink Aviation Inc., 2015 ONCA 89, stating “where it is unclear if the arbitrator has jurisdiction, it is preferable to leave the issue to the arbitrator pursuant to the competence-competence principle” (at para. 7). In Dancap Productions Inc. v. Key Brand Entertainment, Inc., 2009 ONCA 135, 246 O.A.C. 226, at paras. 32-33, Sharpe J.A. explained:

It is now well-established in Ontario that the court should grant a stay under art. 8(1) of the Model Law where it is “arguable” that the dispute falls within the terms of an arbitration agreement. In Dalimpex Ltd. v. Janicki (2003), 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737 (C.A.), at para. 21, Charron J.A. adopted the following passage by Hinkson J.A. in Gulf Canada Resources Ltd. v. Arochem International Ltd. (1992), 1992 CanLII 4033 (BC CA), 66 B.C.L.R. (2d) 113 (B.C.C.A.), at paras. 39-40, as “the proper approach” to art. 8(1):

it is not for the court on an application for a stay of proceedings to reach any final determination as to the scope of the arbitration agreement or whether a particular party to the legal proceedings is a party to the arbitration agreement because those are matters within the jurisdiction of the arbitral tribunal. Only where it is clear that the dispute is outside the terms of the arbitration agreement or that a party is not a party to the arbitration agreement or that the application is out of time should the court reach any final determination in respect of such matters on an application for a stay of proceedings.

Where it is arguable that the dispute falls within the terms of the arbitration agreement or where it is arguable that a party to the legal proceedings is a party to the arbitration agreement then, in my view, the stay should be granted and those matters left to be determined by the arbitral tribunal.

As Charron J.A. explained in Dalimpex, at para. 22, “a deferential approach” allowing the arbitrator to decide whether the dispute is arbitrable, absent a clear case to the contrary, “is consistent both with the wording of the legislation and the intention of the parties to review their disputes to arbitration.”

Haas v. Gunasekaram, 2016 ONCA 744 (CanLII) at 14-15

“The motion judge did not give Mr. Hill leave to amend the answer in relation to the constitutional claim, presumably on the basis that she had dismissed it. In the circumstances of this case, this was an error in principle. There is a general right to amend pleadings absent non-compensable prejudice: r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; r. 11 of the Family Law Rules, 0. Reg. 114/99. Even where the motion is to strike the pleading for failure to disclose a cause of action, the court should consider whether an amendment could remedy the deficiency: Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296 (CanLII), 348 O.A.C. 330, at para. 37.”

Beaver v. Hill, 2018 ONCA 816 (CanLII) at 20

“The issue of in person versus online education has been the subject of recent jurisprudence in this Court. In Chase v. Chase, 2020 ONSC 5083, Himmel, J. found that the provincial government along with the health authorities are best able to assess and address school attendance and associated risks. At para 45, the Court stated:

[45]          There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parent’s need for childcare. There is no end in sight to the pandemic and, as such no evidence as to when it will be 100 percent safe for children to return to school. The Ontario Government has determined that September of 2020 is an appropriate time to move on to a “new Normal” which includes a return to school.

In Zinati v. Spence, 2020 ONSC 5231, Akbarali, J dealt in dealing with an issue of whether a six-year-old child should attend school either in person or online, set out a number of factors for the Court to consider. At paragraph 27 of the decision, the Court states the following:

27.   In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a.   It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b.   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 pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c.   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 limited to:

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

ii.   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 risk factors;

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

iv.   Any proposed or planned measures to alleviate any of the risks noted above;

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

vi.   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 other demands.

In Chase, the Court indicated that if an unreasonable risk of harm existed, circumstances may warrant online education versus in class. The issue of unacceptable risk of harm was a determining factor in Joachim v. Joachim, 2020 ONSC 5355 where Summers, J. was provided with detailed medical evidence that the mother was at high risk of complications if she became infected and ill with COVID-19. The risk to the mother’s household outweighed the children attending school in person.

I agree with the jurisprudence which directs that the Courts are not to determine whether or not a school remains open. That issue is best reserved for the provincial government in consultation with the relevant school boards and medical authorities based on the best information available. In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus.

Kaszap v. Volk, 2020 ONSC 6129 (CanLII) at 24-27

“The law to be applied during temporary care and custody hearings is set out in subsections 94(2), (4) and (5) of the Child, Youth and Family Services Act (the CYFSA):

94(2) where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

a)     Remain in or be returned to the care and custody of the person who had charge of the child immediately before the intervention under this Part;

b)    Remain in or be returned to the care or custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

c)     Be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

d)     Remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

The criteria to be considered is set out in subsection 94(4) and provides the following:

94(4) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Subsection 94(5) sets out the following:

94(5) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

In CAS v. L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8^th) 48, Justice Bennett sets out the s.94 analysis at paragraphs 24-32:

[24] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm.  Further, the onus is on the Society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision Order.  See: Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.).  simply stated, this is a two-part test that the Society has to meet.

[25] A court must choose the Order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 (CanLII).

[26] The degree of intrusiveness of the Society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk: CCAS of Toronto v. J.O.., 2012 ONCJ 269 (CanLII).

[27] Subsection 94(10) of the act permits the Court to admit and act on evidence that the Court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence: Family and Children’s Services v. R.O. , [2006] O.J. No. 969 (OCJ).

[28] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence: Children’s Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).

[29]  Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children:  Children’s Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).

[30]  The act gives priority to the person who had charge of the child prior to society intervention underpart three of the act (subsection 51 (2) of the Act).  There can be more than one person in charge of the children.  See: Children’s Aid Society of Toronto v. A.(S.) and R.(M.) 2008 ONCJ 348 (OCJ)(CanLII).

[31]  The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6^th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.).  The Burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R. 2011 ONCJ 652 (CanLII).

[32]  It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a young mother, provided that the standard used is not contrary to the child’s best interests: Children’s Aid Society of Toronto v. B.H.(R.), 2006 ONCJ 515 (CanLII).”

 CAS v. T.C. and R.H., 2020 ONSC 6104 (CanLII) at 41-44

“A person is under “disability” under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if he or she is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding…” [Emphasis added.]

The case law is clear that in assessing disability for litigation purposes the issues are somewhat wider than the considerations before the Consent and Capacity Board under the Substitute Decisions Act, 1992. Capacity “in respect of an issue in the proceeding” involves an assessment of capacity addressed in the context of the administration of justice. In Huang v Braga, 2016 ONSC 6306 (CanLII) Archibald J. summarized the state of the case law and held:

[19]   The jurisprudence has established the following additional factors should be considered when determining whether a party is under disability and requires a litigation guardian:

(a)    The person’s ability to know or understand the minimum choices or decisions required and to make them;

(b)   An appreciation of the consequences and effects of his or her choices or decisions;

(c)    An appreciation of the nature of the proceedings;

(d)    A person’s inability to choose and keep counsel;

(e)    A person’s inability to represent him or herself;

(f)    A person’s inability to distinguish between relevant and irrelevant issues; and

(g)   A person’s mistaken beliefs regarding the law or court procedures.

W. M. v Office of the Public Guardian and Trustee, 2017 ONSC 5887 (CanLII) at 9-10

“The Court’s discretion to choose a child’s school informed by the principles adopted by Justice Spies in Askalam v Taleb, 2012 ONSC 4746, at para. 32:

Where a court is asked to consider whether or not a child should change schools, the following considerations may be drawn from the case law:

(a) In situations of joint custody, the court is most reluctant to dictate where a child should go to school and the parents should be encouraged to resolve this matter amongst themselves. If they cannot agree the best interests of the child will govern.

(b) In the event a parent suggests changing schools, it must be demonstrated the change will be in the best interests of the child.

(c) While each instance is very fact specific, factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining how many years the child has attended his or her current school; whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling. Any problems with the present school will be considered.

In addition to the above principles, the onus is on the parent seeking the change on an interim basis to present “compelling and cogent evidence” that the change of schools is in the child’s best interests given the need for stability in a child’s life.  In Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178, at para. 32, the Ontario Court of Appeal addressed whether it was in the best interests of a 4-year-old who had almost completed junior kindergarten to change schools:

..  I think it is fair to provide that Jacob should continue to go to Northridge Public School unless both parties agree to send him to another school, or unless either parent brings forward compelling and cogent evidence showing a change of schools is in Jacob’s best interest. I would so provide for these reasons: Mr. Reid [a social worker who prepared a parenting plan] recommended that Jacob go to Northridge; Jacob will likely already have formed attachments to the school; and, continuing at the school promotes stability in Jacob’s life. [Emphasis added]”

J.E.S. v. S.S., 2020 ONSC 6064 (CanLII) at 36-37