Month: June 2023

“In determining Sharon’s entitlement to interim spousal support, this Court must first consider whether the Marriage Contract is a bar to the relief sought?

The Court of Appeal has made it clear that courts should strive to uphold domestic contracts. Courts should treat the parties’ reasonable best efforts to deal with their affairs as reflected in an agreement as presumptively dispositive. This is particularly so where the agreement at issue was negotiated with independent legal advice (see Dougherty v. Dougherty, 2008 ONCA 302, paras 9-10; Butty v. Butty, 2009 ONCA 852 at para 50).

Notwithstanding the direction of the Court of Appeal, Justice Fryer notes in Balsmeier v Balsmeier that

.. there are still too many cases brought before the court wherein one party attempts to set aside an otherwise valid contract in the hopes of shaking loose a more favourable resolution from the wealthier party (2016 ONSC 3485, at para 37).

Having said that, as noted by Justice Monahan in her recent 2021 decision in Gordon v. Zuckerman,

Interim support pursuant to the Divorce Act is not necessarily barred by the waiver of spousal support in an agreement if, on the evidence filed on the motion for temporary support, there is a triable issue as to the enforceability of the waiver. This is particularly the case in circumstances where, if the enforceability of the contract were to be upheld at trial there are assets in the recipient’s name that can be used to compensate the payor for any overpayment of support (2021 ONSC 4576 at para. 19).

In their argument both counsel for Sharon and James agree that in order for Sharon to be awarded temporary spousal support in the face of the Marriage Contract, she must address the two-stage analysis stipulated by the Supreme Court of Canada in Miglin v Miglin, 2003 SCC 24 (CanLII), [2003] 1 SCR 303.

In Gordon, Justice Monahan succinctly describes the two stage Miglin analysis as follows:

Stage one requires a consideration of the circumstances in which the agreement was negotiated and executed, in order to determine whether there is any reason to discount it on that basis. This first stage also considers the substance of the agreement to determine whether its terms are in substantial compliance with the objectives of the Divorce Act.

Assuming the contract satisfies the analysis at stage one, stage two of the Miglin test considers the current circumstances of the parties to determine whether the agreement still reflects their original intentions, as well as the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act (at para. 21).

Where counsel for Sharon and James disagree, however, is the appropriate burden that Sharon must meet before an award of interim spousal support is to be granted.

Counsel for Sharon submits that she need only demonstrate on this interim motion that there is triable issue respecting:

a)  the circumstances in which the agreement was negotiated and executed;

b)  whether the Marriage Contract is in substantial compliance with the DivorceAct; or

c)  whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the DivorceAct.

In support of his submission, counsel relies on the decisions of this Court including Chaitas v. Christopoulos, 2004 CanLII 66352, LaFrance v. Charbonneau, 2011 ONSC 6462, Pate v. Pate, 2015 ONSC 2024, Schulman v. Ganz, 2015 ONSC 3254 and Gordon v. Zuckerman. In all of these decisions the Court found that the contract between the parties did not constitute a bar to an order for temporary spousal support pending trial on the basis of a triable issue as to the enforceability of the limitation on spousal support.

On the other hand, James’ counsel argues that if the two-stage analysis as set out in Miglin is to have any meaning and the direction of this province’s Court of Appeal regarding the presumptively dispositive nature of agreements is to be respected, Sharon’s burden must be significantly greater than the establishment of a triable issue.

Counsel relies on the 2005 decision of this Court in Jones v. Murray in which Justice Wood found that interim relief should be granted in the face of a separation agreement only where the moving party can successfully demonstrate:

a)  a substantial likelihood of success at trail with respect to one or more of the factors stipulated in the Miglintwo stage analysis;

b)  that the failure to grant interim relief will cause irreparable harm to the party seeking the relief; and

c)  that granting the relief will not cause harm to the other party which cannot be compensated (2005 CanLII 23318 at paras 9-10).

Counsel for James did not, however, direct me to any subsequent decision that imposed the “substantial likelihood of success” test where interim spousal or child support (as in the case of Jones) was sought in the face of a contract limiting support.

For this reason, I am not prepared to require that Sharon demonstrate a substantial likelihood that she can meet the Miglin test at trial. I prefer to follow the “triable issue” test imposed in Chaitas and consistently followed since 2004 and as recently as last year by Justice Monahan in Gordon.

Having said that, I do note that in each of the above referenced decisions where the Court applied the “triable issue” test, the Court found there was a triable issue of some significance. In both Chaitas and Gordon, for example, Justices Sachs and Monahan specifically found that there was a “serious issue” as to whether the limitation on spousal support should be set aside on the basis of the Miglin analysis (see Chaitas at para 25 and Gordon at para 30). Therefore, I am of the view that not any triable issue will open the door for interim relief to be granted in the face of an agreement limiting support but rather interim relief is to be granted in those circumstances only where there is a significant or serious issue as to whether the agreement would pass the Miglin test.”

            Hutton v. Hutton, 2022 ONSC 3918 (CanLII) at 45-58

“Rule 16 of the Family Law Rules governs summary judgment in cases other than divorce. In Hryniak v. Mauldin, 2014 SCC 77 (CanLII), [2014] 1 S.C.R. 87, the Supreme Court of Canada said the following about summary judgment:

(a) undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.  See ¶ 24; and

(b) the Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. See ¶ 43.

Pursuant to rules 16(1) and 16(4), to obtain summary judgment, the moving party must set out specific facts showing that there is no genuine issue requiring a trial.  Pursuant to rule 16(4.1), the responding party may not rest on mere allegations or denials.  He or she must set out in his or her evidence specific facts showing that there is a genuine issue for trial.  In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that have to be tried.  See Karlovic v. Karlovic, 2018 ONSC 4233 at 39.

But even if the responding party’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 filed has established that there is no genuine issue requiring a trial. See Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 80.

Pursuant to rule 16(6), if the Court finds that there is no genuine issue requiring a trial of a claim or defence, then the Court shall make a final order accordingly.  There are additional fact-finding powers set out in rules 16(6.1) and 16(6.2) to which the Court may have resort under appropriate circumstances, to determine whether there is a genuine issue requiring a trial.

There is a two-step process for determining whether summary judgment should be granted.  First, the judge must determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16(6.1).   If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.  See ¶ 49 of Hryniak v. Mauldin.  As the Supreme Court said in Hryniak v. Mauldin, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute.  See ¶ 50 of Hryniak v. Mauldin.

If there appears to be a genuine issue requiring a trial, based on the record before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, and drawing inferences.  The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests 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.  See ¶ 66 of Hryniak v. Mauldin.

If there are concerns about credibility or clarification of the evidence, then those issues can also be addressed by calling oral evidence on the motion itself. See ¶ 51 of Hryniak v. Mauldin.  This is the mini-trial procedure set out in rule 16 (6.2). This power should be employed when it allows the Court to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure.  See ¶ 63 of Hryniak v. Mauldin.”

         Lindsay v. Lindsay, 2021 ONSC 4674 (CanLII) at 25-32

“The parties agree that the general law of contracts applies in the family law context such that settlement agreements are generally enforceable where there is a meeting of the minds: Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.) (CanLII) at paras. 32-42; see also Gorman v. Gorman, 2021 ONSC 2577 (CanLII) at paras. 64-69.

Here, the Mr. Humphrey says that the Agreement should not be enforced because Mr. Williams repudiated the Agreement thereby depriving Ms. Williams of its benefit, and that Ms. Williams accepted Mr. Williams’ termination. Mr. Humphrey points to the emails as evidence that Mr. Williams repudiated the Agreement after retaining Mr. Cohen because Mr. Cohen refused to confirm the Agreement prior to the offer’s expiry on September 17th, and because a Settlement Agreement was not signed in a timely manner.

The law of repudiation is summarized by the Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 at paras. 29-32:

Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 2000 SCC 25 (CanLII), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]”

Williams v. Williams, 2022 ONSC 3867 (CanLII) at 16-18

“As explained by Justice Aston in Osmar at para 5, there is a large body of case law on the interpretation of s. 19 of the Guidelines, not all of which his consistent. Hence, judicial discretion makes the determination of income in this area more of an art than a science. This was further explained by Justice Chappel in Kinsella v. Mills, 2020 ONSC 4785, 2020 CarswellOnt 12428 at para 167:

…The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete (Valley, at para. 10). In Korman, at para 51, the Ontario Court of Appeal held that the court may impute income to a spouse in excess of their presumptive section 16 income where the imputed amount is supported by the evidence, and is consistent with the Guidelines objectives of establishing fair support based on the financial means of the parties “in an objective manner that reduces conflict, ensures consistency and encourages resolution.” The overall goal is to determine a figure that fairly reflects the parties financial circumstances….”

            Leal v. Leal, 2022 ONSC 3813 (CanLII) at 40

“The appellant also seeks to appeal the decision to make the entirety of the costs award enforceable as support by the Family Responsibility Office, as opposed to only that part of the costs award attributable to the issue of support.

As set out in s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a discretionary order of costs may not be appealed without leave. Leave to appeal a costs order will not be granted save where there are strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion: Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21. An appellate court should set aside a costs order only if the trial judge has made an error in principle or if the costs award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27.”

Knight v. Knight, 2019 ONCA 538 (CanLII) at 14-15

“The appellant failed to make out a proper foundation for the bias allegation. Inevitably, in ongoing proceedings between parties that are heard by the same judge, comments are necessarily going to be made by the judge disposing of a particular step in the proceeding that a party may not like. That reality does not establish bias on behalf of the judge concerned. An informed person, viewing the matter realistically and practically, would not conclude that unfavourable comments of the type involved here would amount to a showing of bias by the presiding judge: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.”

            Anthony v. Vinczer, 2022 ONCA 493 (CanLII) at 6

“The Supreme Court of Canada recently wrote in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), [2021] S.C.J. No. 101, that its decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 has, for over 25 years, “been the governing authority for mobility applications.”

In Gordon, the Supreme Court “set out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances.” (Barendregt, para. 106)

The Supreme Court further wrote in Barendregt that when mobility issues are raised at first instance, as in this case, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”

As the Supreme Court also noted in Barendregt, since the decision in Gordon, both the Divorce Act and relevant legislation in several provinces had been amended to provide a statutory regime governing relocation applications.

That is the case in Ontario, where the statutory provisions concerning relocation contained in the Children’s Law Reform Act are, for all intents and purposes, identical to those set out in the Divorce Act, with the exception being that the Children’s Law Reform Act contains a provision allowing the service of a notice objecting to a proposed relocation.

Maria’s application seeks relief under both the Divorce Act and the Children’s Law Reform Act.

Neither the requirement to give notice of an intent to relocate nor the ability to object to the proposed relocation are in issue in this case. Accordingly, the provisions that are in the Divorce Act shall be those to which I refer in the balance of this endorsement.

Legislation

Section 16.9 of the Divorce Act provides:

Relocation

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

…

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

(a) the relocation is authorized by a court; or

…

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s  life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Section 16 of the Divorce Act provides:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

The effect of s. 16.92(1) is that, in deciding whether to authorize C.’s relocation with Maria, I must consider both the relevant statutory factors pertaining to C.’s best interests, as set out in ss. 16(3), (4) and (6) of the Divorce Act, as well as the factors related to the proposed relocation set out in s. 16.92(1) thereof.

Onus

Before doing so, however, I must consider the issue of onus in this case, as it is specifically addressed in s. 16.93 of the Divorce Act, which provides:

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

The parties disagree on the issue of onus.

It is clear that there is no order or arbitral award in place at this time. So, the question becomes, is there an agreement to which one can look for guidance on which subsection of s.16.93 applies.

It is Maria’s position that the parties are governed by s.16.93(2) because they are substantially complying with an agreement which provides that C. spends the vast majority of her time in her  care. She is the party who intends to relocate. Accordingly, Maria submits that under s.16.93(2), Jeffrey, as the party opposing the relocation, has the burden of proving that it would not be in the best interests of C.

Maria’s counsel submits that there is an agreement that has C. substantially in her care because the parties have incrementally increased Jeffrey’s parenting time with C. since the separation, which left C. primarily in Maria’s care. In Maria’s submission, each incremental increase in Jeffrey’s parenting time is the result of an agreement, the underlying core of which has C. in Maria’s primary care.

Jeffrey takes the position that s. 16.93(1) applies. He submits that Maria bears the onus of establishing that the relocation would be in the best interests of C. since Maria is the proponent of the relocation.

Jeffrey’s position is that he has been trying to secure a 50/50 parenting agreement since virtually the moment of the parties’ separation, only to be met by either express or passive resistance by Maria to his proposals. As he sees it, he has been compelled, reluctantly, to accept the incremental increases which have been doled out to him.

Jeffrey’s submission in favour of relying on s. 16.93(1), if one is to find an “agreement” in existence, is that the agreement to be relied upon is that which underlay the status quo which existed before the parties separated. That status quo had C. residing with both parents, with each having a hand in her care. As parents each having equal parenting rights with respect to their child, it is Jeffrey’s position that any tacit agreement arising from that status quo contemplated C. spending “substantially equal time in the care of each” of him and Maria, as he has also claimed in his evidence.

Counsel cited, in support of this submission, the decision in Balke v. O’Connor, [2017] O.J. No. 2500 where Justice W.D. Newton wrote, at para. 14, quoting the decision in Batsinda v. Batsinda, 2013 ONSC 7869:

[28]… In my view…the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.

Were the debate to end there, there is authority for recognizing that the situation which exists at the time that the court is faced with the question of whether there is an agreement in place for the purposes of s. 16.93 and, if so, in whose favour does it operate, is that which applies when answering both questions and that which governs with respect to onus.

Justice  L. Ricchetti addressed this issue in Tariq v. Khan, [2022] O.J. No. 827, writing:

71  The Father submits that the onus in s. 16.93(2) does not apply in this case. The Father submits that the section only applies where there is a court order, arbitral award or a written agreement.

72  I disagree.

73  Had the legislators wanted to limit the application of the subsection to situations where there existed “written agreements” on the primary care (or vast majority) of C.’s care, they could have easily done so. There is no limitation or constraints as to what type of “agreements” are caught by this subsection.

74  It makes no sense that, where there has been a de facto agreement that a child spends the vast majority of their parenting time in the care of one parent, even if existing for years, that parent would not benefit from the reverse onus in this subsection.

75  In this case, there clearly was an “agreement” for the current “care time” by the parents. It is also clear that the Mother has to date had de facto decision making for Zahida. More importantly, there is no agreement on where Zahida was to reside.

76  In my view, the onus provision in the Divorce Act applies.”

Wu v. Yu, 2022 ONSC 3661 (CanLII) at 99-119

“Pursuant to s. 194(4) of the CFSA, an openness order may be made by a court if the court is satisfied that:

(a)   the openness order is in the best interests of the child;

(b)   the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

(c)   the following entities and persons have consented to the order:

(i)      the Society,

(ii)    the person who will be permitted to communicate with or have a relationship with the child if the order is made,

(iii)    the person with whom the Society has placed or plans to place the child for adoption, and

(iv)     the child if they are 12 or older.

The CFSA recognizes that an openness agreement may be reached by adoptive parents, before or after an adoption, regarding children and sets out the parameters for any such agreement to include the following:

a)  an openness agreement may be made by an adoptive parent of a child and, in this case, a birth relative. s. 212 (1)

b)  an openness agreement may be made at any time before or after an adoption order is made. s. 212 (2)

c)  an openness agreement may include a process to resolve disputes arising under the agreement or with respect to matters associated with it. s. 212 (3)

d)  where the views and wishes of the child can be reasonably ascertained, they shall be considered before an openness agreement is made. s. 212 (4)

In Native Child and Family Services of Toronto v. W. H. (K.)., 2007 ONCJ 169, the court made an order for Crown Wardship of a child and determined that there would be no order for access. The court noted in paragraph 57, footnote 7 the following:

[7]  An openness order may be varied or terminated before an adoption upon application by the Society or the respective adoptive parents, and after an adoption, upon application by the Society, the adoptive parents, order, with leave of the court, by the person permitted to communicate with the child. See 145.2(1) and 153.1(1). The Act contains no provision for a court to enforce, vary or terminate the provisions of an openness agreement, although the agreement can provide provisions for alternative dispute resolution.

In J.A. v J.B., 2011 ONCJ 726, the birth parents had brought a motion for access, which was denied in child protection proceedings where their children were made Crown Wards without access after the children had been adopted. The court stated at paragraph 44:

[44] “Openness agreements are apparently more user-friendly for the birth parent. They may be entered into before or after adoption. However, the agreement is not ostensibly enforceable as a court order is enforceable”.

In Children’s Aid Society of Toronto v. D. D., 2018 ONSC 4743, the court stated at paragraph 27:

[27] There is a provision in the CFSA governing openness agreements (s. 153.6(1)), which are not court orders, but rather agreements which are voluntarily entered into by the parties: K.F. v. Children’s Aid Society of Ottawa 2018 ONSC 364 at paragraph 12. However, the birth mother has no right to apply to any court for an openness agreement after adoption, and the issue is not before the application judge.

The purpose of an openness agreement is to facilitate communication and to maintain existing relationships. An openness agreement is not a court order and is not enforceable as a court order. It is a voluntary agreement entered into by the adoptive parents with specifically designated individuals to ensure the connection between the children and, in this case, the maternal grandmother. The applicant had 30 days from August 23, 2017, to file an application for openness. She failed to do so. Her request to extend the timeline was denied by Justice Audet. The applicant did not appeal that decision. Now, more than four years after her initial request was denied, the applicant again seeks to extend the timelines.”

            L.F. v. Children’s Aid Society of Ottawa, 2022 ONSC 3682 (CanLII) at 18-23

“Before I set out the provisions at issue, it is important to note that, like most settlements, there was considerable give and take in achieving the “eve of trial” settlement. The parties agreed on values, and equalization payment, a lump sum support payment, repayment of money from a joint bank account, transfer of property ownership and so forth.

Trying to set aside one paragraph of the Minutes of Settlement (and replacing it with another) would clearly upset the balance the parties (with the benefit of counsel) agreed upon.   It would, in my view, result in the court revising, not interpreting nor enforcing, the Minutes of Settlement.  In addition, to set aside one paragraph and replacing it with another entirely different paragraph is even more troubling legally where the parties have already complied with the other terms in the Minutes of Settlement.”

            Carducci v. Carducci, 2022 ONSC 3683 (CanLII) at 11-12

“An allegation of judicial bias should not be made lightly because, by definition, it challenges the integrity of the judge in relation to the core of the judicial function – to preside impartially over the case before the judge: see R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 31-32.”

            Neufeld v. Neufeld, 2020 ONCA 395 (CanLII) at 19