Month: April 2023

“Incomplete documentation about the status of the mother’s partner’s criminal charges was initially placed before the Court.  Pursuant to section 24(3)(k) of the Children’s Law Reform Act, any civil or criminal proceeding, order, condition or measure that is relevant to  the safety, security and well-being of the child is a factor related to the child(ren)’s circumstances that the Court is to consider.  Furthermore, pursuant to section 33.3(2) of the Children’s Law Reform Act, the Court has a duty to consider if “a child protection order, proceeding, agreement or measure” and “an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature” are “pending or in effect in relation to any party to a proceeding under this Part”.  Pursuant to section 33(3), to carry out its duty, the Court may make inquiries of the parties or review information that is readily available and that has been obtained through a lawful search.

Although documentation detailing the mother’s partner’s criminal matter is not strictly about the mother, it is clearly relevant and important to the Orders I am being asked to make, and to the children’s best interests.  Section 33.3(1) of the Children’s Law Reform Act states that the purpose of section 33.3, is to facilitate “the identification of orders, undertakings, recognizances, agreements or measures that may conflict with a parenting order” and to facilitate “the co-ordination of proceedings”.  With that purpose in mind, I read the words “in relation to any party to a proceeding under this Part” in section 33.3(2) to be sufficiently broad as to include the mother’s partner.  He is residing with the mother, who is a party, and he is having contact with the children.”

            B.R.M. v. M.A.E.M., 2021 ONSC 2791 (CanLII) at 83-84

“The 2021 amendments to the Divorce Act and the Children’s Law Reform Act introduced new provisions for parenting plans. The goal of a modern parenting plan is to craft a child centred schedule, an approach that has been extensively researched and advanced within the AFCC Parenting Guidelines. In the past, the use of a detailed parenting schedule was generally limited to the most difficult parenting relationships: those in which multidirectional Orders were necessary to remove as much discretion – and therefore potential conflict – as possible. The modern approach to parenting plans is to move beyond the baseline of conflict reduction and as much as practical, to map out the best childhood possible for children growing up in two (or more) homes.

The AFCC Parenting Guidelines were prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) to assist parents and their professional advisors in specifically developing the best, child-focused, and realistic parenting plans. As set out in its preamble,

         This Guide combines knowledge gained from developmental research on the impact of parental separation and divorce on children, with practical insights about the needs of children with parents living apart.  This Guide is intended to be used in conjunction with the AFCC-Ontario Parenting Plan Template, which offers suggestions for specific clauses that can be used or adapted for a parenting plan.

I agree with Justice Chappel in McBennett v. Davis 2021 ONSC 3610 when she states in paragraph [92] that:

         “The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”

And as further stated by Justice Kraft in H. v. A., 2022 ONSC 1560:

          The parenting plan guide produced by the Association of Family and Conciliation Courts – Ontario (“AFCC-O”) has been found by many courts to be of great assistance in determining parenting schedules that are in a child’s best interests, depending on the age of the child and his/her developmental stage. While not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significant of current child development research for post-separation.

There are two suggestions within the AFCC Parenting Guidelines for young children that I find to be useful within this decision:  that transitions occur at a neutral location such as a daycare or school (to which the parents have already agreed), and that the number of transitions for a child be minimized while ensuring that she is able to spend as much time with each parent as is in her best interests.

Transitions are stressful for children. There is a change in expectations and relationships every time that a child moves from one home to another. There are few, if any constant objects. Some of the child’s belongings or a favourite activity or a pet will be left behind. Each transition requires an adjustment, the length and quality of which will depend on the child’s individual temperament, the stability of the pattern of care and the demonstrated empathy of her parents. Should the parenting schedule be uneven, or not allow enough time for adjustment before the next transition, a child may never truly settle in either home, or perhaps, even be fully present.”

            Melbourne v. Melbourne, 2022 ONSC 2299 (CanLII) at 18-23

“Should the court make a temporary order which would implement some of the recommendations made by an assessor in her parenting assessment or defer consideration of those recommendations until trial?  The question arises in the context of parenting problems that have attracted eleven contacts by the Children’s Aid Society and thirteen by local police services since the parents separated in September 2019.

…

This court has recently reviewed the law on the use of an assessment on a motion before trial. In J.D. v. N.D., 2020 ONSC 7965 the court stated at paras 17 to 19, 21 to 23:

[17]           The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v Genovesi, 1992 CanLII 8562 (ON SC), [1992] O.J. No. 1261. While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (child significantly impacted by parents’ inability to make timely decisions for child’s mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (S.C.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved.  In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:

[23]         …  In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.  In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi.  …

[27]       It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo.  Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

[18]           The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:

a.   How significant is the change that is being proposed as compared to the interim status quo?

b.   What other evidence is before the court to support the change?

c.   Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?

d.   Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?

[19]    Other decisions agreeing with Bos include Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951; and Calabrese v. Calabrese, 2016 ONSC 3077.

                                ….

[21]           The mother accurately submits that there are many factual disputes between the parties reflected in the assessment.  The question for the motion court ought not to be whether it can determine all the factual disputes between the parties, but whether it can determine essential facts showing whether or not a temporary change in the children’s living arrangements is in their best interests.

[22]           Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner can be the better option. Courts have found this to be true in parental alienation cases. In Hazelton v. Forchuk, 2017 ONSC 2282 (CanLII) the court said:

[75]     However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately.  If they are not, the situation will only get worse.  If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue.  At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

See also Ma. M. v. A.W.M., 2019 ONSC 2128 (CanLII) where a finding of alienation was made at the interim stage and residential changes were made to address it.

[23]       In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and / or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial.  A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.

In Matsinda v. Batsinda, 2013 ONSC 7689, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:

32 The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties, and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 CarswellOnt 7442 (Ont. S.C.J.)”

            Jonczyk v. Tilsley, 2021 ONSC 2546 (CanLII) at 1, 10-11

“The Court of Appeal in Kaplanis held that carrying out an order for counselling requires the co-operation of the parents and, where the parents cannot agree on counselling, it is an error to order that they must nevertheless attend counselling and appoint a counsellor to resolve their dispute.”

Barrett v. Huver, 2018 ONSC 2322 (CanLII) at 47

“The court is reluctant to interfere in a situation where the parties have purported to conclusively settle their financial issues: see Quinn v. Epstein Cole LLP, 2008 ONCA 662, 92 O.R. (3d) 1 at paras. 3-4. In this case, the parties’ Agreement specifically states in para. 7 that it is “in full and final satisfaction” of all outstanding claims between the parties, and acknowledges in para. 10.10 that the appellant and respondent “have sufficiently disclosed their income, assets and other liabilities existing at separation and the date of this Agreement”. In these circumstances, even if there was non-disclosure it was not material.”

         Tozer v. Tassone, 2019 ONCA 285 (CanLII) at 9

“In Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at paras. 46-49, the Ontario Court of Appeal stated:

46      The words “consent” and “acquiescence” as used in Article 13(a) of the Hague Convention should, in my view, be given their ordinary meaning so that they will be consistently interpreted by courts of Hague Convention contracting states. In any case, I can see no logical reason not to give those words their plain, ordinary meaning.

47      “Consent” and “acquiescence” are related words. “To consent” is to agree to something, such as the removal of children from their habitual residence. “To acquiesce” is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.

48      Subject to this observation, I agree with Lord Brown-Wilkinson’s approach and analysis in H (Minors), Re. When Lord Brown-Wilkinson said that “[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world’s perception of his intentions”, he was, it seems to me, really speaking of the wronged parent’s consent to a child’s removal or retention based on evidence falling short of actual stated consent. That is what acquiescence is — subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child’s removal or retention.

49      To establish acquiescence in the Article 13(a) Hague Convention context — “subsequently acquiesced in the removal or retention” — the mother must show some conduct of the father which is inconsistent with the summary return of the children to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence. In my opinion, the evidence on which the mother relies does not meet that test.”

            Harper v. Smith, 2021 ONSC 2504 (CanLII) at 77

“In the recent decision of McBennett v. Danis 2021 ONSC 3610, Chappell J. sets out an excellent and comprehensive summary of the law with respect to credibility:

[40]  Dealing first with the law respecting the assessment of credibility and reliability, as I recently discussed in Kinsella v. Mills, 2020 ONSC 4785 (S.C.J.), the caselaw has established that this process is not an exact science;  rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms.  As the Supreme Court of Canada stated in R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100 (C.A.), at paras 18-19).   The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, they may accept none, part or all of a witness’ evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93;  R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paragraphs 51-56;  R. v. Boutros, 2018 ONCA 275 (C.A.);  McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).

[41]           Despite the challenges inherent in the task of assessing reliability and credibility, the caselaw has articulated numerous factors that the courts may consider in weighing and assessing the credibility and reliability of witnesses.  Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9;  R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.);  R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23;  R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75;  R. v. Jeng, 2004 BCCA 464 (C.A.);  Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff’d 2012 BCCA 296 (C.A.); Brar v. Brar, 2017 ABQB 792 (Q.B.), at paras. 9-16; R.v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21 and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538 (S.C.), at paras. 34-40, these considerations include the following:

1. 1. 1. 1. 1.    Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not?  Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.);  R. v. D.A.).
            2.    Was there a logical flow to the evidence?
            3.    Were there inconsistencies between the witness’ testimony and the documentary evidence?
            4.    Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
            5.    Is there other independent evidence that confirms or contradicts the witness’ testimony?
            6.    Did the witness have an interest in the outcome, or were they personally connected to either party?
            7.    Did the witness have a motive to deceive?
            8.    Did the witness have the opportunity and ability to observe the factual matters about which they testified?
            9.    Did they have a sufficient power of recollection to provide the court with an accurate account?
            10. Were there any external suggestions made at any time that may have altered the witness’ memory?
            11. Did the evidence appear to be inherently improbable and implausible?  In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10).
            12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
            13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?
            14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language.  However, this should be done with caution.  As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mahat paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness’ poor presentation as deceptive (R. v. Jeng, at paras. 53-54).”

            Wilson v. Sinclair, 2022 ONSC 2154 (CanLII) at 18

“Section 31(1) of the FLA provides that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who

(a)   is a minor;

(b)   is enrolled in a full time programme of education; or,

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents

The Family Law Act was amended by Bill 113 2017 “An Act to amend the Family Law in respect of support for adult children”, effective December 14, 2017. This amendment broadened the definition of a child entitled to support in the FLA to accord with the definition of “child of the marriage” in s. 2(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).

The previous version of s. 31 read:

            Obligation of parent to support child

      31(1) Every parent has an obligation to provide support for his or her child who is a minor or is enrolled in a full time programme of education, to the extent that the parent is capable of doing so.

      31(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Counsel for the Respondent argued that cases decided prior to the amendment should be distinguished. These cases had developed a reading of s. 31(1) which allowed that a “full time programme of education” included part time programmes, as long as the child was diligently pursuing studies to the best of the child’s abilities. Counsel argued that the courts in these cases were “shoe-horning” children who should have been entitled to ongoing support on the basis of their disability into the category of children who were entitled on the basis of enrollment in a “full-time programme of education” because that was the only ground for ongoing entitlement for children over the age of majority recognized by the FLA at the time. As the FLA now provides for entitlement for a child who cannot withdraw due to illness or disability, counsel argued this line of cases should no longer apply.

Counsel for the Applicant submitted that the cases decided prior to the amendment remain good law and that the court must recognize that some children occupy a middle ground between being unable to withdraw from their parents’ charge by reason of illness or disability and being capable of enrollment in a full-time program of education.

In M.P.A.N. v. J.N., 2018 ONCJ 769, Finlayson J. considered the impact of the amendment to s. 31(1) of the FLA, and whether it changed the approach to be taken by the court to entitlement: “While the new section 31 broadens the bases of entitlement to child support, I note that the amendment did not abandon the old statutory language about enrollment in a full time program of education in the predecessor to section 31. Therefore, the case law decided under the previous section remains applicable in cases where dependency flows from an adult child’s continued educational path”: para. 69.

Other cases decided since the amendment, Teston v. Sooley, 2018 ONCJ 756 and Laramie v. Laramie, 2018 ONSC 4740, applied the case law decided prior to the amendment in determining what constitutes a full time programme of education to entitle a child over the age of 18 to ongoing support.

I am of the view that the cases decided prior to the amendment to the FLA are relevant to the facts of this case. S.H.’s dependency arises from her enrollment in post secondary education. She has physical and mental health challenges that affect her ability to take a full time course of study. In determining whether she is entitled to support on an interim basis, I find it is appropriate to look at the test in the cases regarding enrollment in a full time program of education prior to the amendment to the FLA, as well as those decided subsequently.”

            M.M.D. v. J.A.H., 2019 ONSC 2208 (CanLII) at 70-77

“Interim support motions are not meant to take the place of a trial. Instead, they are meant to allow the parties to maintain a reasonable lifestyle until the full merits of a case can be determined at trial: Charbonneau v. Charbonneau 2004 CanLII 47773 (ON SC), [2004] O.J. No. 5059 (SCJ). Even when, as here, there is no issue of entitlement, courts generally do not engage in a detailed examination of the merits of a case at the interim motion stage: ibid.  While a court is not precluded from making temporary retroactive support orders where merited, particularly in the face of blameworthy conduct, it should be cautious in making such an order since there has been no questioning. The trial judge is in the best position to conduct the necessary holistic analysis of the D.B.S. factors: Palaganas v. Marshall, 2016 ONCJ 445, at para. 57-60 (see below for citation of the D.B.S. case).

That being said, it is  open to a motions court to make an interim retrospective or even a retroactive support order when there is clear entitlement and blameworthy conduct that benefits the payor to the disadvantage of the recipient: Palaganas v. Marshall, at para 60-61, citing  Samis (Guardian of) v. Samis, 2011 ONCJ 273 (CanLII), [2011] O.J. No. 2381 (OCJ), at para. 91.”

         McConkey v. McConkey, 2022 ONSC 4600 (CanLII) at 5-6

“The final version of the Guidelines was published in July 2008. As described in their Executive Summary, they were developed to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. The Guidelines have not been formally enacted by any level of government. They are, however, a very valuable tool for assessing a reasonable range of spousal support and should not be departed from lightly.”

         Slongo v. Slongo, 2017 ONCA 272 (CanLII) at 81