Month: August 2023

“Given that B.K.’s therapeutic relationship with Ms. Shapiro lasted only one session, the Respondent submits that their therapeutic relationship should attract a lesser expectation of privacy under the Wigmore test than longer or more established relationships.  No authority was cited for this proposition.  Respectfully, I am not persuaded by this reasoning.  B.K. required therapy and attended a session with Ms. Shapiro to improve her health and wellness.  I see no basis to find that B.K. reasonably expected that her private thoughts and feelings shared in therapy would later be disclosed.  In my view, B.K.’s therapeutic relationship with Ms. Shapiro was clearly private and confidential regardless of its length or duration.

Therapy is extremely important, particularly for children coping with dysfunction caused by family conflict.  On this point, I share the view expressed by Boswell J. in L.H. at paras 30-31 that public interest strongly supports the protection and fostering of therapeutic relationships to help children attend therapy to address their mental health.  It is generally understood that children in high conflict family situations who go untreated may well suffer mental health issues that may last a lifetime.  Without privacy and confidentiality, children may be less likely to try counselling or therapy, let alone speak openly and candidly about their thoughts and feelings during therapy to properly benefit from therapeutic treatment.  Indeed, B.K. herself has candidly acknowledged that she has begun to modify her behaviour to be less open and forthcoming in therapy for fear that her private thoughts and feelings may be revealed by a disclosure order.  A failure to uphold the private and confidential nature of therapy may well cause a serious chilling effect for B.K.’s future therapeutic treatment and potentially cause her therapy to become ineffective.”

            G.L.K. v. C.L.K., 2021 ONSC 5843 (CanLII) at 90-91

“Income may be imputed to a payor who is incarcerated as a result of their own unlawful conduct: Khentov v. Bieler, 2007 CarswellOnt 1832, Cran v. Huynh 2008 NWTSC 69, Billingsley v. Billingsley, 2010 ONSC 3381, Zapreff v. Zegarac, 2015 ONCJ 243, S.H. v. R.A.A., 2016 ONCJ 255.”

            Hohmeier v. Caputo, 2022 ONSC 4925 (CanLII) at 19(o)

“Section 94(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, states:

Custody during adjournment

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

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

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

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

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

AND

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

AND

(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

At a temporary care and custody hearing, the onus is on the Society to establish on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondent, it is more probable than not that he or she will suffer harm.  The onus is on the Society to establish the child cannot be adequately protected by terms and conditions of an interim supervision order: see CAS v L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8th) 48, at para 32.

A court must choose the order that is the least disruptive placement consistent with adequate protection of the child. The degree of intrusiveness of the Society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk.  The Act gives priority to the person who had charge of the child prior to Society intervention: see CAS v L.L. and J.G., 2019 ONSC 853, 20 R.F.L (8th) 48, at para 32.”

Halton Children’s Aid Society v. M.A.R., 2022 ONCJ 420 (CanLII) at 72-74

“In Cameron, I considered the right of a spouse in a relationship that closely approached the SSAG 20 year definition of long-term marriage, to share in any post-separation increases in income of their spouse. I wrote:

66      Professors Rogerson and Thompson, writing in the SSAG, tie the claim to post- separation increases in income to “some rough notion of causation”. They write at para. 14.3:

Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).

67      In the RUG [SSAG Revised User’s Guide], Professors Rogerson and Thompson make clear that “some rough notion of causation” is not to be taken as requiring a clear line of causation between the relationship and the income increase. They state:

It would be better to describe it as a “link” or “connection”, between the marriage and the increase after separation. That has certainly been the approach of most courts, especially those in B.C. and Ontario.

68      Professors Rogerson and Thompson add that, strictly speaking, a finding of compensatory entitlement is not a prerequisite to a spouse sharing in post-separation income increases, particularly in long-term marriages. They say:

The basis of entitlement has a significant impact upon the degree of sharing of increases, with compensatory claims more likely to result in sharing than non-compensatory claims, but not exclusively so. There can be sharing — partial, or even full — in non-compensatory cases too, especially after long marriages.

69      The authors add that practically speaking, cases regarding post-separation income increases are “complex … involving a mix of facts and legal factors, with a strong discretionary element to the final judgment.””

            Jamieson v. Jamieson, 2020 ONSC 5173 (CanLII) at 11

“Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, provides that a testator may make a valid will, wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

In Bennett v. Gray, 1958 CanLII 49 (SCC), [1958] S.C.R. 392, the Supreme Court of Canada said that to be a valid holographic will, the person propounding the document must satisfy the court that it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death” and that the propounder may rely on extrinsic evidence:

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature. (Bennett, at p. 396.)

Not every note written in hand before death will be found to be a will. It is necessary that the testator intends the document to be a testamentary document. According to Feeney’s Canadian Law of Wills (4^th Edition) at p. 1.4, para. 1.7, “[a] testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then—the gift is said to be “dependent on death for its vigour and effect.’” (Atherton Estate, Re, 2006 CanLII 30580 (Ont. S.C.), at paras. 11-12.)”

            McKenzie v. Hill, 2022 ONSC 4881 (CanLII) at 22-24

“I start with some general, well-established principles. The maximum length of appellate facta is 30 pages: “Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario”, (March 1, 2017), at 11.7(4). The 30-page limit is not a suggestion or a starting point. It “has been set with a view to reasonably complex cases – simpler cases can often be dealt with adequately in much shorter factums”: Chief Mountain v. Canada (A.G.), 2012 BCCA 69, 317 B.C.A.C. 50, at paras. 6-7; R. v. Van Wissen, 2016 MBCA 108, at para. 5. These rationales are reflected in the provisions of rr. 61.11 and 61.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that stipulate the need for concise statements of the facts and law in the facta submitted by appellants and respondents. The purpose of the 30-page limit is “to focus counsel on the issues and not have a factum that goes on, and in fact, wanders”: Brown v. Lowe, 2000 BCCA 635, at paras. 1, 4. See also: R. v. Port Chevrolet Oldsmobile Ltd., 2008 BCCA 443, 262 B.C.A.C. 51, at para. 5; Saint John (City) v. Saint John Firefighters’ Association, International Association of Fire Fighters, Local 771 (2010), 2010 CanLII 39428 (NB CA), 362 N.B.R. (2d) 327 (C.A.), at para. 10.

Relief from compliance with the 30-page limit for appellant and respondent facta requires leave of the court: Rules of Civil Procedure, rr. 61.09(4), 61.12(8); “Practice Direction”, at 11.7(5). Leave is exceptional and granted sparingly in special circumstances: Saint John Firefighters’ Association, at paras. 12-13; Canada v. General Electric Capital Canada Inc., 2010 FCA 92, 403 N.R. 114, at para. 5. While a party must be permitted to present its whole case effectively, this does not take away from the requirement of conciseness and the duty of efficiency to the court: General Electric Capital Canada Inc., at para. 5. As Paciocco J.A. observed in Michail v. Ontario English Catholic Teachers’ Assn. (4 September 2018), Toronto, M49554 (Ont. C.A.), at para. 15, “[T]he 30-page limit for facta is imposed to keep appeals manageable, efficient and cost-effective for the litigants and the court” (cited by Brown J.A. in Michail v. Ontario English Catholic Teachers’ Association, 2018 ONCA 950, at para. 6.).

The overarching question is whether the extension is required in the interests of procedural fairness and justice “to advise the other side of the issues in dispute so it can prepare properly for the appeal and to assist the division of the Court that hears the appeal to deal effectively with the issues”: Port Chevrolet Oldsmobile Ltd., at para. 5; Saint John Firefighters’ Association, at para. 10. See also: JJM Construction Ltd. v. Sandspit Harbour Society, [1998] B.C.J. No. 3383 (B.C.C.A.), at para. 6.

The fact that the appeal raises important and complicated questions of fact or law, there are numerous grounds of appeal, the underlying proceedings have been ongoing for many years, or the trial was lengthy, does not automatically justify an extension of the page limit. These circumstances inform many appeals that are nevertheless contained within the 30-page factum limit: General Electric Capital Canada Inc., at para. 5; Talwar v. Grand River Hospital Board of Directors, 2018 ONSC 6112 (Div. Ct.), at para. 36; Van Wissen, at para. 5.”

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532 (CanLII) at 4-7

“The Mother referred to the decision of Justice McGee in Melbourne v. Melbourne, 2022 ONSC 2299, 72 R.F.L. (8^th) 84, where support and weight is given to the “extensively researched” AFCC Parenting Guidelines.  Specifically, at para.19:

[19] 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…

[20] 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 the children.

[21] 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.

In considering the AFCC-O Guide, Benjamin would be considered a toddler (18-36 months).  While I do not feel bound by the Guide, I too find it contains helpful information in understanding a child’s developmental stage and schedules.  For toddlers, “if parents have fully shared in the caretaking arrangements before the child has reached this age, and the child has an easy temperament, parenting time can be shared equally as long as the separations from each parent are not too long (no more than two to three days or two nights for example).””

            Czyzewski v. Fabro, 2022 ONSC 4883 (CanLII)

“FLRs  20(4) and (5) permit the questioning of a third party provided that the conditions in (5) have been met:

(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(a) with the other party’s consent; or

(b) by an order under subrule (5).

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. 1. 1. 1. 1. 1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
               2. The information is not easily available by any other method.
               3. The questioning or disclosure will not cause unacceptable delay or undue expense.

• • • Would it be unfair to proceed without questioning?

To test unfairness, the Court must review the materiality of the information sought by questioning. Here, the relevant and material evidence that can be sought from Dr. Ricci deals with the allegations of abuse by the Applicant during the marriage.

Regarding “unfairness”, Justice Brown stated in Tsakiris v. Tsakiris (2007), 2007 CanLII 44184 (ON SC), 161 A.C.W.S. (3d) 221, 45 R.F.L. (6th) 186 (Ont. Sup. Ct.)  at paras. 14-15:

[14] I see this as permitting questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion.

[15] How should the court assess “unfairness”?  At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding.  If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial?  Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?”

Evans v Evans, 2017 ONSC 5232 (CanLII) at 52-54

“Where the court concludes that success was divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate, having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239 (CanLII), [2012] O.J. No. 1830 (O.C.J.)).

…

The court must step back and exercise a judgment, having regard to all the circumstances as to what a fair and reasonable amount should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant is. See: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON C.A.), (2004) 71 O.R. (3d) 291 (C.A.)

The ultimate costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred for which reimbursement is sought and the importance or monetary value of the issues at stake. The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: O’Brien v. O’Brien, 2017 ONSC 402 (CanLII).”

         Ziten Lyons v. Lyons, 2020 ONSC 4971 (CanLII) at 31-32, 34.

“Second, Mr. Logan relies on Kong v Song, 2019 BCCA 84 at paras 72-75, from the B.C. Court of Appeal which stands for the proposition that this Court must look at the statutory definition when determining the habitual place of residence of children, and also the parties’ intention.  He was not able to point to appellate authority from Ontario for the same proposition.  He argues that the evidence shows that the parties’ intention was that the children would return to Victoria, and that British Columbia would remain their habitual place of residence.

Ms. Logan’s counsel referred the Court to Korenic v DePotter, 2022 ONSC 3954 for the proposition that it is not necessary to examine the parties’ settled intention – all that is necessary is to meet the deeming provision for habitual residence as defined in s. 22(2) of the CLRA.  In Korenic, Dubé J. stated at para 22:

The respondent argues that paragraph 1 of s. 22(2) requires a settled intention to reside for an appreciable period of time. I do not agree. The plain wording of paragraph 1 of s. 22(2) defines the term “habitually resident”: see Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), 2004 ONCA 5548, 188 O.A.C. 376, at paras. 8-9; Markowski v. Krochak, 2022 ONSC 2497, at paras. 62-66. That definition does not require a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Simply put, habitual residency is deemed under paragraph 1 of s. 22(2) when, as in this case, the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.

I agree with Dubé J.’s reasoning in Korenic.  In this case, it is not necessary to examine the parties’ settled intention because paragraph 2 of s. 22(2) deems the children to be habitually resident in Ontario because they are residing in Ontario with Ms. Logan pursuant to a separation agreement that did not conclude, with certainty, that the children would return to Victoria in July 2022.”

            Logan v. Logan, 2022 ONSC 4927 (CanLII) at 26-28