Month: February 2023

“The open court principle is a fundamental principle of law that is codified by s. 135 of the CJA.  Nevertheless, s. 137 of the CJA provides that a court may exclude the public from the hearing and may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.  Such order should be granted where: (1) it is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the order outweigh its deleterious effects: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 S.C.R. 522, para. 53.

The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding.  A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified.  Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim.  In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.”

            Fedeli v. Brown, 2020 ONSC 994 (CanLII) at 8-9

“In Brienza v. Brienza, 2014 ONSC 6942 (CanLII), Justice Perell indicated at paragraphs 22 through 25:

[22] Section 2 of the Partition Act states that a joint tenant or tenant in common may be compelled to make or suffer partition or sale. The general principles to determine when partition and sale should be granted were laid down in Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), where the Court of Appeal stated:

There continues to be a prima facie right of a joint tenant to partition of sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

[23] The onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal: Davis v. Davis, supra; Silva v. Bettencourt, [2002] O.J. No. 1878 (S.C.J.).

[24] In cases after Davis, the Act has been interpreted to mean that the court has a very limited discretion to refuse an application for partition or sale: Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183, supra; Hay v. Gooderham (1979), 1979 CanLII 1690 (ON SC), 24 O.R. (2d) 701 (Div. Ct.); Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 (CanLII), [2010] O.J. No. 2900 (Div. Ct.).

[25] Only in exceptional circumstances will a joint tenant or tenant in common be denied his or her request that the property be partitioned or sold. The court’s discretion to refuse partition and sale is narrow, and there must be malicious, vexatious or oppressive conduct to justify the refusal to grant partition and sale: Silva v. Silva, supra; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126 (C.A.), affg. [2001] O.J. No. 5291 (Div. Ct.); Fellows v. Lunkenheimer (1998), 21 R.P.R. (3d) 142 (Ont. Gen. Div.); Kalita v. Freskiw Estate, [1998] O. J. No 5180 (Gen Div.); Jakubiszyn v. Tekielak, [1991] O.J. No. 2362 (Gen. Div.); Garfella Apartments Inc. v. Chouduri, supra.

“No sufficient reason as to why such an order should not be made” has been provided in this case. Thus, there shall be an order for the sale of 153 Bandelier Way.”

            Vo v. Tran, 2021 ONSC 1075 (CanLII) at 36-37

“The father invokes the maximum contact principle to substantiate his clam for increased parenting time. As pointed out by counsel for the mother, recent revisions to family law legislation have revoked the maximum contact principle and the notion that the courts should support maximum contact between a child. The focus is instead on the child’s best interests; that a child should have has much time with each parent as is consistent with their best interests. As stated in T.P. v. A.E., 2021 ONSC 6022 at paras 150-151:

150 …. It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

151 While there is no presumption of equal parenting time, the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6); Bembenek v. Bembenek, 2019 ONSC 4050; Kirichenko v. Kirichenko, 2021 ONSC 2833.”

            Boucher v. Walker, 2022 ONSC 934 (CanLII) at 47

“Case law diverges on the issue of whether a private agreement between the parties to arbitrate future disputes that does not, itself, constitute a family arbitration agreement may be enforced by a subsequent court order. In Giddings v. Giddings, 2019 ONSC 7203, Justice Gray relied on the contractual obligation of good faith contractual performance, to enforce an agreement that took the form of minutes of settlement that were intended to be final but had not been made into a court order, and directed the parties to execute a formal, enforceable family law arbitration agreement.

In Magotiaux v. Stanton, 2020 ONSC 4049, Justice Mackinnon ruled that an interim parenting agreement was not a bar to a proceeding in court, stating at paras. 6, 7 and 8:

[6]        … I conclude that the Interim Parenting Agreement is not a bar to the applicant proceeding in court and that the stay motion should be dismissed.  Parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.

[7]               The situation might be different if the parties had expressly undertaken in their agreement to execute an arbitration agreement that complies with the governing Act and Regulation. In that situation, the court might order the party in breach to comply with their undertaking. The Interim Parenting Agreement does not include such an express provision.

[8]               Prudence dictates that family litigants wishing to provide for a potential future arbitration should append a detailed family arbitration agreement containing the mandatory terms to their settlement document and should agree to complete and execute the agreement in the form attached, at the appropriate time.

At paras. 22 and 30 in Magotiaux, Mackinnon J. distinguished Giddings from the case before her, as follows:

[22]      The agreement in Giddings specified that if the equalization issue was not resolved it would be arbitrated by a named arbitrator, that the parties would proceed to domestic violence screening and thereafter execute an arbitration agreement with the arbitrator to provide him with arbitral power.  The court relied on this provision to rule that the recalcitrant party was required to execute a family arbitration agreement as he had agreed to do and in accordance with his obligation of good faith contractual performance.

…

[30]      … I was not persuaded that case law provided a basis on which the court could read in the mandatory requirements to the Interim Parenting Agreement or imply a term to enter into a compliant arbitration agreement to give effect to its dispute resolution clause. I conclude that the Interim Parenting Agreement does not comply with the Regulation and the stay should be denied.

In Moncur, Justice Laliberte described this area of the law as unsettled, however, there does not appear to be divergent case law on the point of whether the court may enforce its own order by requiring parties to execute a compliant family law arbitration agreement.”

            Fekete v. Brown, 2022 ONSC 903 (CanLII) at 21-24

“An offer has to be wholly equal to or better than the result achieved at trial: see Gurley v. Gurley, 2013 ONCJ 482 where Sherr J. stated at para. 9:

The offer included incidents of custody that were not included in the final order, including a term that the father could apply for the children’s identification, including passports, without the mother’s consent, and a term that the mother not expose the children to smoke or marijuana use. Close does not count when applying subrule 18(14). Its presumptive costs consequences were not triggered by this offer.

Even though the financial issues were settled in the present case rather than being adjudicated on, the same principle applies.  If the result at trial, through settlement or decision, is not the same as or better than all of the terms of the offer, the court cannot presumptively award the costs of a proceeding under Rule 18(14).  Nothing in that rule permits a court to presumptively award costs because the party making the offer bettered part of the offer.  Without the offer being severable, the Applicant is only entitled to partial recovery costs based upon his success in the proceedings, something the Respondent already acknowledges.

That might have been remedied had the offer stated that its terms were severable, which would have allowed me to award costs based only upon the major issue at trial, which was the mother’s claim for a change in custody.  Without a severability clause, the offer cannot be used to presumptively award full recovery costs because the financial provisions in that offer differed from the end result.  Wildman J. spoke to the issue of the severability of an offer in Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII), [2010] O.J. No. 1566 (S.C.J.) in a statement that is particularly applicable to the present case at para. 13 and 14:

13 Unfortunately, this offer was not severable. There would have been no disadvantage to the wife in making the custody offer, in particular, severable from the financial and property terms. Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues. Had the custody terms of the wife’s offer been severable from the other terms, I would have been prepared to consider ordering full recovery costs on the custody issue from the date of the offer forward. As this was the majority of the trial time, that would have been a significant cost advantage to the wife.

14 However, as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14). Since the husband got an additional week of access, as well as an order that spousal support would reduce from $1000 in three years, Ms. Nanayakkara did not do as well as or better than her offer in its totality.

Wildman J. goes on to state that this does not prevent the court from taking the offer into account when awarding costs under Rule 18(16).

            Meitine v. Grigoryan, 2020 ONSC 867 (CanLII) at 10-13

“It is essential that our courts remain open in order that members of the public and the media may observe, critique, publish or share information concerning the workings of the Justice system. The open court principle is a crucial aspect of our democracy and is protected by the right to freedom of expression under section 2(b) of the Charter.

The law does recognize rare occasions when the open court principle must give way to other important interests related to the administration of justice. The test for determining whether a sealing order should be granted was stated by the Supreme Court of Canada in Sierra Club of Canada versus Canada Minister of Finance, [2002] S.C.R. 522 at paragraph 46:

A publication ban should only be ordered when:

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

(b)   the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.” 

Adler v. Thomson, Rogers, 2019 ONSC 801 (CanLII) at 79-80

“At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.

Parents are not required to do the impossible in order to avoid a contempt finding. They are however required to do all that they reasonably can: see Godard, at para. 29.”

            McCarthy v. Murray, 2022 ONSC 855 (CanLII) at 33-35

“As the parties were not married, the parenting issues in this case are governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). Section 29 of that Act states that the court shall not vary a parenting order unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child. Although the legislation itself does not set out a specific test to varying an interim order, the courts have held that the change must be one that results in a compelling reason to vary the previous order. See Radojevic v. Radojevic, 2020 ONSC 5868, 324 A.C.W.S. (3d) 233 – [2020] CarswellOnt 14013, where Kurz J. refers to para. 26 of Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.) and Justice Mitrow’s summary of the law:

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.

While Radojevic was decided under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) the same test applies under the CLRA. See: McIsaac v. Pye, 2011 ONCJ 816 CarswellOnt 15387.”

            Purvis-David v. Roussy, 2022 ONSC 793 (CanLII) at 9-10

“The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at Rule 16 of the Family Law Rules, O. Reg. 114/99 and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.

The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment.  In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted:

66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers.  There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.  Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

67  Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution.  As well, by first determining the consequences of using the new powers, the benefit of their use is clearer.  This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action.  This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate.  There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense.  In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases (see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52).  However, the test must be applied with an eye to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings (see L.M., at para. 52 and New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76). The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary.

However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner” (L.M., at para. 51).

The proper approach to summary judgment in child protection proceedings was usefully summarized by the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, as follows:

1. 1. 1. 1. 1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
            2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
            3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
            4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
            5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”

Children’s Aid Society of Ottawa v. K.D. et al., 2022 ONSC 709 (CanLII) at 9-13