Month: June 2022

“Section 17(5) of the Divorce Act requires that the court be satisfied that there has been a change in the circumstances of the child since the last order, before varying a parenting order. Section 2 of the Divorce Act defines a parenting order as an order made under subsection 16.1(1) of the Act. However, the court’s jurisdiction to make interim parenting orders is found in subsection 16(2), thus it opens to question whether the material change test applies to the variation of an interim order.

Neither party made submissions on the legal test to be met.  If a material change is required, it is not sufficient that both parents want the court to intervene, albeit for different reasons. The  Court of Appeal in Persaud v. Garcia-Persaud, 2009 ONCA 782, said even when both parties request a variation, the court must still make an explicit finding that a material change in circumstances has occurred since the previous order was made. The jurisdiction to make a variation order is dependent on it.

The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt.  It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

Neither party made submissions with respect to the material change test. It is not sufficient that they both ask the court to intervene and vary the interim order, albeit for different reasons. In Persaud, the Court of Appeal said even where both parties request a variation, the court must still make an explicit finding that there has been a material change in circumstances since the previous order was made. The jurisdiction to vary is dependent on it.”

            Chyher v. Al Jaboury, 2021 ONSC 4358 (CanLII) at 20-23

“Pursuant to Michel v. Graydon, 2020 SCC 24, child support can be recalculated retroactively even if a child has reached adulthood. In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada interpreted s. 15.1 of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp.), as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage”, as defined in the Divorce Act, when the application is made (para. [2]). After D.B.S., courts grappled with whether the same principle applies to provincial legislative schemes or to variation applications under s. 17 of the Divorce Act. In Michel v. Graydon, supra, the court confirmed that D.B.S. does not stand for the proposition that courts can retroactively vary child support only while the child beneficiary is a “child of the marriage” (at para [15]).”

         Outaleb v. Waithe, 2021 ONSC 4330 (CanLII) at 60

“The court has the authority to order a capacity assessment under s. 79(1) of the SDA [Substitute Decisions Act] which provides:

If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

In addition, the court has jurisdiction to require a party to undergo a mental examination under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.48. However, under s. 105(3) of the Courts of Justice Act, where the question of a party’s mental condition is first raised by another party, an order under s. 105 shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

Under r. 1.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a person is considered to be under a disability if they are mentally incapable within the meaning of ss. 6 or 45 of the SDA in respect of an issue in the proceeding. Under r. 7.01, a proceeding shall be commenced, continued or defended on behalf of a party under a disability by a litigation guardian.

In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, Stinson J. commented on the difference between the definition of disability in the Rules and in the SDA, noting, at para. 19, that r. 7 is designed to protect the integrity of the court’s process, while the focus of the SDA is solely on the protection of the individual. Proceedings under the SDA are not private litigation in the traditional sense. “The interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable”: see also Abrams v. Abrams, 2008 CanLII 67884 (Ont. S.C.J.), at para. 48.

Justice Stinson held that, in a non-SDA proceeding governed by the Rules, the definition of “disability” in r. 1.03(1)(b) should be read along with s. 6 of the SDA to mean that someone will be considered a person under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding: at para. 21.

A person who is 18 years of age or more is presumed to be capable: s. 2(1) SDA. Where capacity is in doubt or challenged, the moving party bears the onus of establishing that a party is a person under a disability: Kagan, Shastri at para. 23.

However, on either a motion to appoint or remove a litigation guardian, a mental examination is not the norm, and should not automatically be ordered under s. 105 of the Courts of Justice Act. As Stinson J. held in Kagan, Shastri at para. 40:

To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

In Abrams, at para. 53, Strathy J., as he then was, considered whether to order a capacity assessment under s. 79 of the SDA, or alternatively, a mental examination under s. 105 of the Courts of Justice Act. He laid out a list of factors to consider and balance to determine whether, in all the circumstances, the public interests and the interests of the party in question require that an assessment take place and justify the intrusion into their privacy. These include:

1. 1. 1. 1. 1. The purpose of the SDA;
            2. The terms of s. 79, that (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable;
            3. The nature and circumstances of the proceedings in which the issue is raised;
            4. The nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
            5. If there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
            6. Whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
            7. Whether the assessment will be necessary in order to decide the issue before the court;
            8. Whether any harm will be done if an assessment does not take place;
            9. Whether there is any urgency to the assessment; and
            10. The wishes of the person sought to be examined, taking into account his or her capacity.”

         Saing v. Saing et al, 2021 ONSC 4287 (CanLII) at 11-18

“The case-law that has addressed the meaning of the phrase “material change in circumstances” in the context of child and spousal support variation proceedings has also established that a change will only be considered “material” if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5 (CanLII), 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249 (CanLII), 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation (Haisman; Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 46 R.F.L. (4^th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)). These principles apply equally to the threshold test in a custody and access variation proceeding.  The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64;  Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.) (CanLII)).  Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application.  As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.)(CanLII), at para. 62, aff’d 2014 ONCA 225 (C.A.) (CanLII), “[p]arents are not perfect and they will make mistakes.  The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

In this case, the Applicant’s position is based largely on allegations that the Respondent has repeatedly breached numerous terms of the April 2, 2007 order.  A party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.) (CanLII);  Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.) (CanLII); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.);  V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.)).

Both parties also base their custody and access claims to a large extent on the conflict that has developed between them since the April 2, 2007 order was made.  The Ontario Court of Appeal has held that incidents of conflict between parties will not meet the threshold material change in circumstances test if the same level of conflict existed between the parties when the existing order was made (Litman v. Sherman, 2008 ONCA 485 (C.A.) (CanLII); Goldman v. Kudelya, 2017 ONCA 300 (C.A.) (CanLII)).  However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made, resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman).”

            Roloson v. Clyde, 2017 ONSC 3642 (CanLII) at 49-51

“On a more positive note, it is a pleasure for me to listen to the voice of the child delivered through the adults who have been asked to explore it. How often I have experienced the sweet insight of a child who can so easily see what is going on between their warring parents because they have lived in the war zone. How poignant it is to listen to a child who wants the love of both parents, a child with their own sense of justice and fairness, try to maneuver their way through the treacherous mine field of their parents’ anger, vindictiveness, hyper-vigilance, manipulation and over-reaction.

Sometimes a child simply longs for one parent at a particular point in their life. Sometimes a child simply needs to align with one parent because the stress of the battle is too much to bear. Sometimes going back and forth between houses is just too complicated. Sometimes a child needs to find a way to get people to listen so escalates a small complaint into a reason when really all he wants is to have his feelings heard.

Of course a 10 year old child is not free of influence! His parents are still, in some ways, his whole world. What the OCL evidence states is that because they have not been able to solve his problem, Kayne has been forced to choose, knowing full well the position of each parent.

I hear him.

Once you have asked a child for his views, and you hear him, what message does it give to the child if you ignore him?

How, or why, would he trust his parents, the court’s investigators, his therapist, the judge or, perhaps, anyone again with his true feelings?

Rhetorical question: he would not. Rendering a child unable to trust is not in his best interests.

That said, I do not relinquish my responsibility to create workable strategies to maintain relationship between Kayne and his mother. It is naive to say “whenever I want – dad will let me” in the context of this conflict. A firm schedule is required.”

         Lawrence v. Moll, 2021 ONSC 7338 (CanLII) at 16-23

“An order of discharge in a bankruptcy proceeding does not release a bankrupt from a debt respecting child support:  Bankruptcy and Insolvency Act s. 178(1)(c).

Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 provides:

 In this Act,

 “support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

The advantages of an order under this provision are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy and Insolvency Act: Wildman v. Wildman, 2006 CanLII 33540 (ON CA), 2006 CarswellOnt 6042, at para. 55.  As a result, the party owed the award can collect on at least some of it.”

         Hutchinson v. Ross, 2021 ONSC 4128 (CanLII) at 16-18

“The test for a stay of an order involving the parenting of a child is not in dispute. The overarching consideration in whether to grant a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the child would suffer irreparable harm if the application were refused; and, (3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the remedy pending a decision on the merits: Lefebvre v. Lefebvre (2002), 2002 CanLII 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6; Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at paras. 8-9.”

         K.K. v. M.M., 2021 ONCA 407 (CanLII) at 17

“A person commits battery when they intentionally inflict unlawful force on another person: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at p. 246.  The court must conclude that the defendant intended to, and did in fact, make physical contact.  The contact must be either physically harmful or offensive to the victim’s reasonable sense of dignity: Linden and Feldthusen, Canadian Tort Law, 8^th ed. (Markham, Ont.:  LexisNexis Butterworths, 2006) (“Canadian Tort Law”), at p. 44; Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, at paras. 142-43.

Ana and Ilinca allege that Liviu spanked, hit, beat, slapped, pinched or choked them or dragged them by their hair and that these acts constituted battery.  To succeed in this claim, they must prove not only that Liviu committed some or all of these physical acts, but that he did so intentionally and that the contact was harmful or offensive.

Assault

A civil assault is a threat, through words or conduct, to commit battery.   The tort of assault exists to protect individuals not only from actual physical harm but from the fear of physical harm: Canadian Tort Law, at pp. 46-47.   To prove assault, a plaintiff must show that the defendant intentionally created the apprehension of imminent harmful or offensive contact: Canadian Tort Law, at pp. 46-47; Costantini v. Costantini, 2013 ONSC 1626, 28 R.F.L. (7^th) 356 (“Costantini”), at para. 30.

Ana and Ilinca allege that Liviu assaulted them on March 26, 2005 and on other occasions, by threatening to kill them or seriously hurt them.  If they prove that these incidents took place, and that they reasonably feared that he would harm them, then Liviu would be liable for assault.

Breach of fiduciary duty

Parents are obliged to act in their children’s best interests and not exploit the power and authority they hold over them: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 (“M v. M.”), at pp. 62-63. They have a wide discretion in the performance of their duties as parents, but this does not extend to willfully inflicting personal injuries beyond the limits of reasonable parental discipline.  Physical abuse of a child is a breach of the parent’s fiduciary obligation to protect and care for their children: M. v. M., at p. 67.

Ana and Ilinca allege that Liviu physically, verbally and emotionally abused them, and that this constituted a breach of his fiduciary duty to them as a father. To succeed in this cause of action, they must prove that he committed the acts alleged and these acts did not fall within the range of reasonable parental discipline.

Negligence

A person is negligent if they owe a duty of care to another person, they act or fail to act in accordance with that duty, and the other person suffers harm as a result: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13.

Ana and Ilinca allege that Liviu breached his duty of care towards them, as a parent, through acts of verbal, physical and emotional abuse, and that this caused them both physical injuries and psychological harm.  To succeed in this cause of action, they must again prove the acts they allege, that these acts breached Liviu’s duty of care toward them, and that the acts caused them injuries that may and should be compensated through an award of damages.

Intentional infliction of mental distress

The tort of the intentional infliction of mental distress arises when a defendant engages in flagrant and outrageous conduct calculated to produce harm, which results in a visible and provable injury such as a recognized psychiatric illness McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, 344 O.A.C. 5, at paras. 29-30.

Ana and Ilinca allege that Liviu terrorized them and isolated them from their extended family and their peers and that, as a result, they suffer from depression, anxiety and post-traumatic stress disorder (“PTSD”).  If they can prove that this conduct occurred, that it was intentional, and that it caused them to have a recognized psychiatric illness, then they will have made out a claim for intentional infliction of mental distress.

Wrongful imprisonment

A person wrongfully imprisons another if they deprive them of liberty against their will, either through physical or psychological means: Sankreacha v. Cameron J. and Beach Sales Ltd., 2018 ONSC 7216, 51 C.C.E.L. (4th) 264, at para. 233.

Ana and Ilinca allege that they did not feel safe in the Calin home, yet felt compelled to remain because Liviu isolated them socially and undermined their sense of self-worth.  To prove that this amounted to unlawful imprisonment, they would have to show that the acts they alleged occurred and that the situation led them to be deprived of their liberty.”

Calin v. Calin, 2019 ONSC 3564 (CanLII) at 18-29

“In the case of Hansen Estate v. Hansen, 2012 ONCA 112 (CanLII), 109 O.R. (3d) 241, at para. 32, the Ontario Court of Appeal endorsed three ways in which a joint tenancy may be severed, referring to the classic statement by Vice-Chancellor Wood in Williams v. Hensman (1861), 70 E.R. 862, (Eng. Ch.), at p. 867:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund — losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 Ir. Eq. R. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Chancellor)].

Chief Justice Winkler continued in Hansen Estate at para. 34:

The three modes of severance referred to in Williams v. Hensman have come to be known as the “three rules” … [which] may be summarized as follows:

Rule 1:  unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and

Rule 3:  any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

For the purpose of these applications, the parties agree that the potentially relevant mode of severance is by a “course of dealing.”

The equitable principle underlying the rule is to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties in cases where there is no explicit agreement to sever the joint tenancy.”

         Marley v. Salga, 2019 ONSC 3527 (CanLII) at 19-22

“The Applicant attaches what appear to be parts of a series of text messages and emails directed at her by a Dufferin Child and Family Services case worker which she characterizes as supportive of her theory.

I have on more than one occasion been critical of the local agency knowingly or otherwise allowing themselves to be made a catspaw by one or the other party to a domestic family law proceeding.  Those parties seek to use the agency as an ally to advance their position – albeit usually not as baldly as the Applicant here.  It is unclear whether the CAS was aware that the private communications of the Applicant with their worker would be used in this forum.

To be clear, agencies such as the local CAS have an essential role to play in the welfare of children and young adults in this province that is defined by legislation.  This role engages child welfare options and counselling and supportive children’s mental health options, among other tasks.  If there are child protection concerns apparent the agency must by law take steps to try to address those concerns including in a formal way if necessary.  This may include in extremely serious cases by removing children to a place of safety with or without a warrant.

It is not one of the legislative roles of a child welfare agency to act behind the scenes to manipulate or steer a domestic action currently before the courts in one direction or another although that route may seem to be easy and cost effective.”

         Hillyer v. Pulver, 2021 ONCJ 317 (CanLII) at 11-14