Month: November 2023

“Res judicata, or cause of action estoppel, was recently described by the Court of Appeal in Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141.  The four criteria were listed by the Court as follows:

[13]      The motion judge applied the test for cause of action estoppel set out recently by this court in The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284. She stated:

There is a specific test that has to be met to establish this type of estoppel and it has four requirements to it as follows:

There is a final decision of a court of competent jurisdiction in a prior action. This is conceded by the responding parties and is not at issue here;

The second requirement is the parties to the subsequent litigation were parties to, or in privy with the parties to the prior action;

The third requirement, the cause of action in the prior action is not separate and distinct and;

Fourthly, the basis of the cause of the action and the subsequent action was argued or could have been argued in the prior action, if the parties had exercised reasonable diligence. [Emphasis in original.] 

All four of these criteria must be satisfied for res judicata to apply.”

            Bacchus v. Munn, 2022 ONSC 6745 (CanLII) at 32-33

“JDR is a court process that is intended to provide separated families with a faster, simpler, less acrimonious and more cost-effective way of resolving family law issues, as compared with a trial. In the Ontario Superior Court of Justice, JDR is currently being offered as a pilot program in certain courts, operating under local Practice Directions. This endorsement arises from the first JDR in the Kitchener Unified Family Court.

A JDR hearing combines initial settlement discussions with the benefit of a decision-making component by the presiding judge about any issues that the parties are not able to resolve on consent.

The process has been designed to be practical and efficient, and to help families craft their own resolutions if at all possible. It is more interactive and less adversarial than a trial. The intention is that the parties, counsel and the judge work together to craft a consent final Order, that day. Because the parties have the benefit of receiving input from the presiding judge about the outstanding issues, most parties resolve their issues themselves without a ruling. Any remaining issues are likely to be narrow, so that the adjudication stage of the hearing is relatively focused.

The JDR process is voluntary, and accessible only where a judge agrees that the case is appropriate. This could be determined at any court attendance, such as a case or settlement conference, trial management conference, or by 14B motion. Initially, the process is being introduced for cases with only a few issues and which are not complex, where credibility is not a significant concern, and where disclosure is complete. Cases that lend themselves will include parenting arrangements, select child support issues, or select property issues.

If a judge gives the “green light”, the parties then file a signed “Consent” document to the court in which they request participation in JDR. That document provides, among other things, that the parties:

a.   commit to keeping their financial disclosure up to date;

b.   agree to provide to the other party and the court a comprehensive settlement proposal in the form of a draft Order, that can be used during the JDR process;

c.   agree to have their case decided without a trial, in an expedited and less formal manner;

d.   waive any right to the strict application of the rules of evidence;

e.   acknowledge that the court may rely on reports prepared by professionals including agents of the OCL, without the attendance of those individuals at the JDR; and

f.   agree and request that the same judge will preside over both portions of the process.

Parties must each serve and file brief affidavits, to which they may attach exhibits. In addition, all statements made during the process, whether during the settlement discussions or the adjudication phase of the hearing, are evidence that may be relied on if the court is required to adjudicate. Parties are sworn in, or affirm, at the outset of the process.

In Kitchener, JDR’s are presently scheduled for a half day, with the afternoon available for the preparation of a brief decision if necessary. Locally, the intention is that between 90 minutes and two hours be allocated to the negotiation phase, during which the judge helps the parties identify their interests, consider options, and reach resolution. The judge may express opinions, and this does not preclude determination of the issues. In fact, this is one of the main benefits of the JDR process. Parties have an opportunity to discuss with the judge who is deciding their case, what that judge’s approach to the issues will be, and to receive guidance regarding the strengths and weaknesses of their respective positions. Equipped with that information, parties can usually craft their own resolution.

If an adjudication phase becomes necessary, that too would be allocated between 90 minutes and two hours. There is no formal procedure required, but the judge would usually provide each party with an opportunity to supplement the information and evidence already before the court, and give the parties or counsel an opportunity to present their arguments about why the orders requested by the party should be made. The judge may elicit further information directly from the parties and, although there is no formal right of cross-examination, the parties may raise questions that they think would be helpful for the judge to ask the other party before making a final decision.

The process is flexible, so the judge may reallocate the negotiation and adjudication time as she or he finds most helpful to the parties.

To the extent that the court is required to decide some or all of the issues, it is the intention that reasons be brief and focused, and the goal is that whether through settlement or a decision, parties have an “answer” to their issues by the end of the day or shortly thereafter.

The goal is to help the parties achieve resolution efficiently, and the court therefore discourages adjournments. As a significant block of court time has been set aside for the hearing, it should be treated with the same respect as a trial. Parties should be prepared and ready to proceed on all issues to achieve a final completion of their matter on the scheduled day.”

            M.D. v. C.S., 2022 ONSC 6671 (CanLII) at 4-14

“One of the objectives of abuse of process is to protect the integrity of the court’s process by preventing a party from relitigating matters that have already been finally determined. As the Supreme Court of Canada held in Toronto (City) v. C.U.P.E., Local 79, 2023 SCC 63, [2003] 3 SCR 77, at paras. 35-55, the doctrine is related to the common law doctrines of res judicata, issue estoppel and collateral attack, but is more flexible because it is available even where, as in this case, one or more parties to the action were not parties to the underlying action. The doctrine of abuse of process also applies to prevent re-litigation of previously decided facts, namely, whether O.G. was brainwashed by her mother: Winter v Sherman Estate, 2018 ONCA 703, at para. 8.”

            Flores v. Glegg, 2022 ONCA 825 (CanLII) at 24

“Where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to children’s lifestyle and circumstances on an interim basis: Kennedy v Hull, 2005 ONCJ 275, at para 9.”

            Li v. Wu, 2020 ONSC 7329 (CanLII) at 35

“Motions to change support are governed by subsection 37(2.1) of the Family Law Act which reads as follows:

37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

The court’s authority to make a retroactive support order on a Motion to Change is contained in clause 34(1)(f) of the Family Law Act. This clause reads as follows:

Powers of court

34   (1) In an application under section 33, the court may make an interim or final order,

(f) requiring that support be paid in respect of any period before the date of the order;

As income was imputed to the father by Justice Sherr, the father must start by demonstrating that circumstances have arisen since the date of the previous order such that it is no longer appropriate to impute income to him or at least that it is no longer appropriate to impute income to him in the amount previously determined by the court: Trang v. Trang, 2013 ONSC 1980 (CanLII).

In paragraph 52 of Trang v. Trang, 2013 ONSC 1980 CanLII, the court wrote,

A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income.  They must address why income had to be imputed in the first place.  They must present evidence of changed circumstances which establish that either:

a.   It is no longer necessary or appropriate to impute income.  The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

               Or,

b.    Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.”

            Hutchinson v. Crooks, 2022 ONCJ 620 (CanLII) at 18-21

“Section 29(1) of the Children’s Law Reform Act (CLRA) provides:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

This section prohibits a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order. Section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary Orders (See: BRM v MAEM, 2021 ONSC 2791 at para 39).

If the Court finds that a material change has occurred:

1. 1. 1. 1. 1.       The Court should consider the matter afresh, without defaulting to the existing arrangement;
            2.   The Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;
            3.      The Court must be guided by the statutory criteria set out in section 24 of the CLRA;
            4.    Both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
            5.        The Court should limit itself to whatever variation is justified by the material change in circumstance.

(See: BRM v MAEM, 2021 ONSC 2791 at paras 41-42)

A breach of supervision terms of an access order by a parent and grandparents can constitute a material change.  In  LW-A v. JC 2017 ONCJ 741 the Honourable Justice Sherr held that because the grandparents breached the supervision terms of the access order by failing to supervise the father’s visits with the child, they were not reliable and trustworthy. The Court held that “the child’s safety requires that his access with the father be fully supervised by an independent third party” (at paras 114-118).

As per section 24 of the CLRA, the court is required to consider only what is in the best interests of the child in making a parenting order or a contact order. In determining the best interests of a child, I am to consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being including those factors set out in section 25(3) of the CLRA.

Pursuant to section 34 of the CLRA, the court may give such directions as it considers appropriate for the supervision, by a person, a Children’s Aid Society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. The person, society or body must consent to provide supervision.

Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: VSJ v LJG, 2004 CanLII 17126 (ON SC), [2004] OJ No 2238).

In BRM v MAEM 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child’s views and preferences are in favour of supervision.”

            Maloy v. Pantalone, 2021 ONSC 7734 (CanLII) at 33-40

“In Richardson v Richardson 2019 ONCA 983 (ON CA) the Ontario Court of Appeal discussed the discretion which judges have when presented with terms of settlement, particularly in relation to parenting issues.

25        There is no dispute about the importance of settlements in family law. Settlements are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.

26        Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.

27        If a judge rejects a settlement, the reasons for rejecting the settlement should be provided. Moreover, if the judge does not take any steps to facilitate settlement — such as sending the parties away with some direction as to the aspects of the agreement that are of concern, or arranging a settlement conference either with him or her or with another judge — the reason for this should also be provided. Without explaining the basis upon which the parties’ settlement is rejected, the judge leaves the parties with no way of knowing, what, if anything, they could do to address the court’s concerns. The concerns may have been of a nature that could be addressed, but in the absence of reasons the parties will have no opportunity to address them.”

Nuell v. Guay, 2021 ONSC 7700 (CanLII) at 32

“The Consolidated Provincial Practice Direction governs the release of digital court recordings. Under the Consolidated Provincial Practice Direction:

C-68. The release of digital recordings will be at the court’s discretion and the use of all digital recordings will be subject to any court order and any common law or statutory restriction on publication applicable to the particular proceeding.

In particular, the section on “Restrictions on Access to Digital Recordings from DRDs” makes clear that unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in respect of “civil and family motions and applications.”

Restrictions on Access to Digital Recordings from DRDs

1. 1. 1. 1. 73. All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
            74. Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings:

(a)     in camera proceedings or any portion of a proceeding that is heard in camera;

(b)      private or closed hearings (e.g. pursuant to ss. 87 of the Child, Youth and Family Services Act);

(c)      proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding (e.g., pre-trial conferences held in court with self-represented accused, pursuant to rule 28.05(4) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario), proceedings under the Youth Criminal Justice Act); and,

(d)     case, settlement and trial management conferences pursuant to rule 17 of the Family Law Rules; and,

(e)      civil and family motions and applications (e.g. civil motions and applications under rule 37 and rule 38 of the Rules of Civil Procedure, family motions under rules 14 and 15 of the Family Law Rules).

Accordingly, digital recordings of family motions are not available unless a judge orders otherwise. Also see Mother Doe v. Havergal College, 2020 ONSC 5550.”

            Punit v. Punit, 2022 ONSC 6530 (CanLII) at 15-17

“The Supreme Court of Canada in Bracklow (1999) set out three conceptual bases for entitlement to spousal support, namely, compensatory, contractual, and non-compensatory: 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at 442. The Court distinguished the compensatory from the non-compensatory basis as follows:

39   …Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation“, which may support the same argument. …

40   …To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

41      Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives — to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments — are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. “[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6)(c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), “the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage”, as an explicit recognition of “non-compensatory” support (“Spousal Support After Moge”, supra, at pp. 371-72).

42   Similarly, the fourth objective of s. 15.2(6) of the Divorce Act — to promote economic self-sufficiency — may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health. [Emphasis added.]”

Hardayal v. Asrula, 2018 ONSC 6948 (CanLII) at 500

“Settlements do not attract costs consequences in the same manner as argued matters; in the case of an agreed-upon result, the concept of success is different.  The case law indicates that the success of a negotiated settlement must be much clearer and more substantial than in the case of an argued matter to attract costs.  The issue of success must indicate, in the wording of one case, a “clear capitulation” by one party to another:  see Atkinson v. Houpt, 2017 ONCJ 316.  Other cases have said that the measure of success for costs consequences must be “overall success”:  Scipione v. Del Sordo, 2015 ONSC 5982.

The reason for this is clear as pointed out in the latter case:  in the course of negotiating a settlement, costs should not be permitted to hijack the process.  If a party is negotiating while keeping his or her eyes on the terms of their offer, this impedes settlement for obvious reasons.  A party conducting himself in this manner puts the cart before the horse and to place costs at the forefront of negotiations is an impediment to settlement and to be discouraged.  As noted by Kurz J. in Frape v. Mastrokalos, 2017 ONCJ 915 adopting the words of Starr J. in Shute v. Shute, 2017 ONCJ 533:

Where a matter settles, the success and/or reasonableness of the conduct of the parties is a consideration but not the most important one. In such cases, the emphasis should be on discouraging inappropriate conduct and promoting settlement. Thus, instead of identifying a reason not to award costs, the court must identify a compelling reason to make an award.”

            Lailey v. Lailey, 2022 ONSC 6458 (CanLII) at 16-17