Month: September 2023

“Optiva relies on s. 26 of the Act. For convenience, I repeat the terms of that provision:

26(1) The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument; however, the tribunal shall hold a hearing if a party requests it.

As I understand Optiva’s submission, the phrase “may hold hearings for the presentation of evidence and for oral argument” refers exclusively to a proceeding in which evidence is presented viva voce, subject to viva voce cross-examination, and oral argument is made. Optiva submits that any departure from that kind of hearing requires the consent of the parties.

Neither the word “hearing”, nor the phrase “presentation of evidence” are defined in the Act. In the context of civil or administrative proceedings, a “hearing” refers to a proceeding which does not necessarily involve the presentation of viva voce evidence: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1), 15(1); Rules of Civil Procedure, s. 1.03. For example, in civil proceedings, a “hearing” includes applications and motions. In the vast majority of those “hearings”, while oral argument is made, evidence is not presented viva voce. There is no reason why the term should have a different meaning in the context of commercial arbitration.

Similarly, the phrase “presentation of evidence” does not connote viva voce evidence only. Counsel who offer a motion record or application record containing affidavits and transcripts of cross-examinations are clearly presenting evidence at the hearing of the motion or application.

The manner in which evidence is presented at a hearing is ultimately a procedural question. While under s. 26 a party has a right to make oral argument, that party has no right to present its evidence in a particular manner. Under the terms of the arbitration agreement Optiva and Tbaytel chose to enter into, it fell to the arbitrator to decide procedural questions, including how evidence should be presented. The arbitrator chose a method routinely and effectively used in civil litigation involving issues and evidence like those raised in this proceeding.”

            Optiva Inc. v. Tbaytel, 2022 ONCA 646 (CanLII) at 44-48

“The purpose of a return order under the Hague Convention has been described by the Supreme Court in two cases: Thomson and Balev.

In Thomson, the court stated that the Hague Convention seeks to enforce custody rights and protect children internationally from the harmful effects of their wrongful removal or retention by providing procedures to return children promptly to the situation they were in immediately before their wrongful removal: Thomson, at pp. 578-79. The harm that the Hague Convention seeks to prevent was also summarized in Balev, at para. 23:

The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

The harms to a child from a wrongful removal or retention were further described by this court in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 16: “Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child”: see also, M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at para. 38, leave to appeal refused, [2020] S.C.C.A. No. 402.

In Balev, the court stated that the prompt return of wrongfully removed or retained children serves three purposes: (i) it protects against the harmful effects of wrongful removal or retention; (ii) it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody; (iii) finally, it is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: at paras. 25-27.

Against this background, the court in Balev went on to describe, at para. 24, the nature of a return order made under the Hague Convention:

The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.

A return order made under CLRA s. 40(3) shares the same purpose as one made under the Hague Convention. The Preamble of the Hague Convention and CLRA s. 19 display a commonality of purpose. The Preamble expresses the desire “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.” On its part, s. 19 of the CLRA seeks “to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process” and to ensure Ontario courts refrain from exercising jurisdiction where a more appropriate forum exists in which to determine decision-making responsibility.

In M.A.A., this court recognized the commonality of purpose of return orders made under the Hague Convention and CLRA s. 40, stating, at para. 38: “With respect to non-signatory countries, the CLRA applies and reflects the Hague Convention’s goals of discouraging child abductions by confining Ontario jurisdiction over custody to limited circumstances.”

In Kovacs, a Hague Convention case, Ferrier J. noted the common purposes of the return provisions under the Convention and the CLRA, stating, at paras. 140-41, that “in making an order that a child be returned to its habitual residence without a determination of the custody issue, [the court] is making an order considered to be in the best interests of the welfare of the child”, a jurisdiction that clearly is one of provincial power. See also: Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para. 37, quoted above at para. 57.

This commonality of purpose was also recognized by Professor Nicholas Bala in his article, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 Can Fam LQ 301, at p. 308:

Provincial legislation like Ontario’s Children’s Law Reform Act adopts a statutory regime for enforcement of custody rights of parents from non-Hague countries that is based on the same basic principles and concepts as apply when there is a wrongful removal or retention of a child to Ontario from a Hague Convention country. Like the Hague Convention, the CLRA is intended to discourage forum shopping and deter international abduction of children, and to avoid exercise of concurrent jurisdiction by Ontario courts where courts of another state have a closer connection to the child.

Accordingly, the nature and purpose of a return order made under CLRA s. 40(3) is the same as one made under the Hague Convention: to protect a child from the harmful effects of their wrongful removal or retention and to return a child wrongfully removed or retained to the jurisdiction which is most appropriate for the determination of custody and access.”

         N. v. F., 2021 ONCA 614 (CanLII) at 122-131

“Courts are generally cautious about implementing assessment reports or OCL recommendations on an interim basis. It is usually preferable for the status quo to continue until trial, unless there is a “compelling reason” to change the arrangement in the best interests of the child: Benko v. Torok, 2012 ONCJ 401. See also, Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (Ont. S.C.J.) at para 15 and Daniel v. Henlon, 2018 ONCJ 122.

In general, interim implementation of OCL reports and assessments should be discouraged. There is usually no opportunity at the motions stage to undertake a full analysis and evaluation of all aspects of the report. It is preferable for disputed facts to be resolved in a trial setting with the benefit of cross-examination: Batsinda v. Batsinda 2013 ONSC 7869, per Chappel J., at para. 32 and JLM v. PDAB, 2012 ONSC 4696 per Pazaratz J.

However, there are cases in which a parent has been found to be engaging in potentially alienating behaviour and parenting arrangements have been varied on an interim basis: See, for example, WDC v. JLM, 2012 ONCJ 700 per Tobin J. See also O’Connor v O’Connor, 2017 ONCJ 48 in which the court implemented recommendations of the OCL pending trial.

While many cases refer to the requirement that there be “compelling circumstances” or “exceptional circumstances” to change the status quo pending trial, in Bos v. Bos, 2012 ONSC 3425, at para 26, Mitrow J. listed the following factors for consideration when a court is asked to change temporary parenting arrangements, based on an assessment report, without a finding of “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?

There should not be an “inflexible blanket prohibition” against considering any aspect of an assessment report on an interim motion, especially when that is the only independent evidence before the court. Taylor v Clarke, 2017 ONSC 1270, 2017 CarswellOnt 3586.”

            Denomme v. Denomme, 2022 ONSC 5205 (CanLII) at 22-26

“The motion judge observed, in my view correctly, that “[f]rom the standpoint of attempting to ascertain the intention of the parent making the advances, the issue is whether the parent intended to retain a hold on the amounts advanced, regardless of whether that be by way of a resulting trust or a debt obligation” (at para. 77). Considering the relevant factors, the motion judge found that the evidence supported the conclusion that the monies were provided by way of gift by the husband’s parents. He concluded that “the reality of the situation [was] that there never was any expectation, prior to the parties’ separation, on the part of Lillian Chao that the respondent and the applicant would be required to repay any portion of the funds advanced by her and her husband” (at para. 85).

The legal test is intent at the time of the transfer. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. The court must assess the reliability of such evidence and determine what weight it should be given, guarding against evidence that is self-serving or tends to reflect a change in intention: Pecore, at paras. 44 and 59; Andrade v. Andrade, 2016 ONCA 368 (CanLII), 131 O.R. (3d) 532, at para. 63.”:

Chao v. Chao, 2017 ONCA 701 (CanLII) at 55-56

“In Roberts v. Roberts, 2015 ONCA 450, it was held that the power to strike pleadings is to be used “sparingly and only in exceptional circumstances”:  para. 15.

Other decisions of the Court of Appeal for Ontario also have emphasized the necessity of exceptional circumstances before pleadings are struck.  In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the court stated, at paras. 31-32:

31      In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

32      Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. For example, in Kim v. Kim, 2001 CarswellOnt 502 (Ont. S.C.J.), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v. Costabile, 2004 CarswellOnt 4860 (Ont. S.C.J.), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.

In Manchanda v. Thethi, 2016 ONCA 909, relied on by the applicant, the court held, in the context of non-compliance with financial disclosure obligations, that “willful non-compliance must be considered egregious and exceptional,” at para. 13:

13      Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6 (Ont. C.A.), at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

I concur with Moore J.’s conclusion in Peerenboom v. Peerenboom, 2018 ONSC 5796 (Ont. S.C.J.), relied on by the applicant, as to the effect of Manchanda, supra, that earlier statements of the Court of Appeal for Ontario as to finding exceptional circumstances prior to striking pleadings for non-compliance with orders or disclosure obligations must be read with the more recent interpretation in mind: paras. 15, 16 and 22-24.”

         Hall v. Hall, 2019 ONSC 5195 (CanLII) at 44-47

“The law on the equalization of net family property begins with sections 4 and 5 of the Family Law Act, R.S.O. 1990, c. F.3, which provide the framework for settling property issues between married persons.  The steps involved in this framework were summarized by Justice Barnes in Perri v. Perri, 2016 ONSC 5833 at para. 90:

Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:

• • • • • • What property did each spouse own on valuation day?
          • What is the value of that property after making deductions and allowing exemptions permitted under section 4?

Step 2: Determine whether one spouse’s net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3

Step 3: Before making an order under Step 2, the court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6)”

            Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 28

“The intent of s. 5(6) of the Family Law Act “is not to alleviate every situation that may be viewed as in some ways unfair or inequitable”: Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25.  As the Court of Appeal stated in Ward, at para. 25:

Equal sharing should occur in most cases. The Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims.

…

The next issue for me to determine is whether equalization of the parties’ net family properties is unconscionable, having regard to these circumstances.  Matrimonial misconduct is not a factor justifying a variation of shares under s.5(6) of the Family Law Act.  The fact that Mr. Bandyopadhyay committed adultery is irrelevant to the analysis.  But fault-based conduct relating directly to the parties’ net family properties (e.g. diverting or depleting assets, disposing of property or acquiring debt) is a relevant consideration.

The threshold of unconscionability is high: Ward, at para. 33. It is not sufficient for equalization to be merely unfair or inequitable. There must be circumstances that shock the conscience of the court; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.”

Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (CanLII) at 104, 119-120

“I adopt the reasoning of Lemon, J. in Kraemer v. Kraemer 2019 ONSC 944 and Akbarali, J. in Laurent v. Laurent, 2019 ONSC 3535 (S.C.J.), citing Menage and Conway v. Conway (2005), 2005 CanLII 14136 (ON SC), 16 R.F.L. (6th) 23 (Ont. S.C.): Parties have the onus to provide credible, authentic evidence of the accurate value of their assets and liabilities on the date of marriage and the date of separation. While disclosure must be relevant and proportional, where the value cannot be readily determined or there is serious dispute, an independent valuation may be required.”

            Witkin v. Storm, 2022 ONSC 6221 (CanLII) at 17

“Changing a child’s name is not a mere administrative act. See: Herniman v. Woltz, 1996 CanLII 8087 (ON SC), [1996] O.J. No. 1083 (Ont. Gen. Div.). A child’s surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court); Belisle v. Poole (1994), 2 R.F.L. (4^th) 165 (Ont. Gen. Div.).

The court should be mindful of the parties’ agreement about what to name a child at birth. See: Hill v. Shimla, supra.

The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests. These factors include:

a)  Whether the proposed name change will exclude the name of the non-custodial parent. 

b)  The length of time a custodial parent has had sole custody of the child.

c)  Whether there is a continuing close relationship between the child and the non-custodial parent.

 d)  Whether there would be any serious effect on the non-custodial parent.

 e)  Whether either parent has displayed any malice or improper motivation.

 f)  The age of the child and the weight to be given to the child’s wishes, in light of that age.

 g)  The length of time the child has had its name.

 h)  The surnames of any siblings.

See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery (1989), 1989 CanLII 7405 (MB QB), 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.”

Hermanson v. Kiarie, 2017 ONCJ 598 (CanLII) at 20-22

“Rule 25(19) of the Family Law Rules O. Reg. 114/99 reads as follows:

The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

The definition of “change” is broad and provides the judge with the jurisdiction to set aside an order made by a judge of the same court. This broad interpretation is consistent with Rule 2 of the Family Law Rules that requires the court to deal with cases justly and recognizes that family law proceedings are different than other judicial proceedings: Gray v. Gray, 2017 ONCA 100.

It is the father’s onus to demonstrate on the balance of probabilities that the mother committed fraud on the court at the uncontested trial. The fraudulent acts must be material and go to the foundation of the case: Dodge v. Dodge, 2007 CanLII 80075 (ON SC), 2007 CarswellOnt 6477 at para. 57.

The Court of Appeal listed five factors the court should consider in determining whether to set aside a default judgment in Mountain View Farms, Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 as follows:

1. 1. 1. 1. Whether the motion was brought promptly after the defendant learned of the default judgment
         2. Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules
         3. Whether the facts establish that the defendant has an arguable defence on the merits
         4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed
         5. The effect of any order the motion judge may make on the overall integrity of the administration of justice

“These factors are not to be treated as rigid rules”: Mountain, at para 50. The court must determine whether it is just to relieve the father from the consequences of his default based on the circumstances in this case.”

            Saeed v. Khalid, 2022 ONSC 5012 (CanLII) at 14-18