Month: November 2023

“First, this court will not typically hear an appeal by a party from an unopposed proceeding: Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418, at para. 56. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”

            Lamothe v. Ellis, 2022 ONCA 789 (CanLII) at 3

“The Divorce Act, R.S.C., 1985, c. 3. (2nd Supp.) governs foreign divorces in the following prescribed manner:

Recognition of foreign divorce

22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.

Recognition of foreign divorce

(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act

Faezeh and Alireza were not habitually resident in Iran for the year immediately preceding the commencement of divorce proceedings, and the divorce was not granted on the basis of Faezeh’s domicile of the granting authority.  Accordingly, the question of whether the divorce was valid falls to be determined under s. 22(3).  Here, the common law creates a presumption that a foreign divorce is valid.

Under subsection (3), the courts will recognize a foreign divorce in the following circumstances:

a)  where the jurisdiction was assumed on the basis of the domicile of the spouses;

b)  where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;

c)  where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;

d)  where the circumstances of the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;

e)  where the petitioner or Respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted, or

f)  where the foreign divorce is recognized in another foreign jurisdiction with which the petition or Respondent has a real and substantial connection.

     Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 14.

In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 32, the Supreme Court of Canada discussed the concept of a real and substantial connection to the granting jurisdiction:

The “real and substantial connection” test requires that a significant connection exist between the cause of action and the foreign court.  Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction.  A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction.  The connection to the foreign jurisdiction must be a substantial one.”

Ghandchi v. Falsafi, 2022 ONSC 6411 (CanLII) at 51-54

“A summary of the proper approach to be taken in summary judgment motions in child protection matters as directed by the Ontario Court of appeal in Kawartha [2019 ONCA 316] is set out in paragraph 80 of that decision as follows:

[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. 1. 1. 1. 1.   Hryniak’sfairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding.  In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
            2.    The burden of proof is on the party moving for summary judgment.  Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof.  Even if the respondent’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 has established that there is no genuine issue requiring a trial.
            3.    The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.  The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
            4.   Judicial assistance must be provided for self-represented litigants.   In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
            5.     The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”

CAS v. M., W., 2019 ONSC 6592 (CanLII) at 21

“The disposition of discovery and disclosure requests requires a preliminary identification of the triable issues in order to assess the relevance of the information or evidence sought.  However, it is not enough that information or evidence is technically or remotely relevant to an issue.  Other considerations such as proportionality, fairness, cost, delay and interference with the privacy interests of non-parties must also be taken into account.  Twenty years ago the Court of Appeal made this often quoted observation in addressing a request for production and discovery from non-parties:

The discovery process must also be kept within reasonable bounds.  Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment…unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy will just grow and grow.  The effective and efficient resolution of civil law suits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific law suit: Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. 3d 39 (Ont. C.A.).

One of the major reforms that followed the subsequent work of the Task Force on the Discovery Process in Ontario was an amendment to the Rules of Civil Procedure emphasizing the “proportionality principle” as an overarching and general operative element in those rules.  The proportionality principle was already enshrined in the Family Law Rules by Rule 2.  Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issue raised.  Comprehensive or exhaustive oral examination or production of documents may make access to justice unnecessarily expensive or protracted.  Merely proving the relevance of a document may be insufficient to warrant production.  To order production the court must be satisfied that it would be “unfair” to the party seeking production to go on with the case without the document or information.  In essence the document must be found to be important to a party’s case, especially in relation to the amount at stake:  see Himel v. Greenberg, 2010 ONSC 2325 (CanLII) at paras. 27 and 30 – 31.

The disposition of these motions must temper full disclosure of relevant information with the proportionality principle.  In Saunders v. Saunders 2015 ONSC 926 (CanLII), Kiteley J. addressed motions very similar to those now before this court.  I agree with, and adopt, her general comments in Saunders and in particular paragraphs 13 and 14 of that decision which read as follows:

Fourth, disclosure is not a weapon and is not intended to overreach.  As is clear in this case and too many others before the court, the process of disclosure has become an independent battle within the overall litigation campaign: Fuda v. Fuda, 2010 ONSC 5698 at para. 4.  As Perell J. held in Boyd v. Fields, [2006] O.J. No. 5762 at para. 12:

Full and frank disclosure is a fundamental tenet of the Family Law Rules.  However, there is also an element of proportionality, common sense, and fairness built into these rules.  A party’s understandable aspiration for the utmost disclosure is not the standard.  Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors.  I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.

I agree as well with the observation by Harper J. in Berta v. Berta, 2014 ONSC 3919 (CanLII) at para. 53:

The duty of all experts to the court to be neutral and objective in providing their evidence and opinions is extremely important.  Being neutral and objective does not mean an expert cannot be critical and seek out relevant documents sufficient to perform their task.  They must diligently review those documents and arrive at their considered opinion based on that thoughtful analysis.  That does not mean that the expert starts out with the presumption that he or she will unearth every single document that in any way might tie into another document in order to conduct a “forensic type of review” in all cases.  Experts must approach their task with thoroughness without having a complete disregard to the proportionality of the task the issues and the costs.”

            Kochar v. Kochar, 2015 ONSC 6650 (CanLII) at 4-5

“An important consideration in determining both liability and the quantum of costs is whether any party has served or accepted an offer to settle. As indicated above, Rule 24(5) specifically requires that in assessing whether parties have behaved reasonably or unreasonably, the court must consider whether they have made offers to settle, the reasonableness of any such offers, and any offers that they withdrew or failed to accept.  In addition, Rule 18(14) establishes costs consequences for failing to accept an offer to settle that complies with the specific requirements of that Rule, as follows:

Costs Consequences of Failure to Accept Offer

 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. 1. 1. 1. 1.    If the offer relates to a motion, it is made at least one day before the motion date.
            2.    If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
            3.    The offer does not expire and is not withdrawn before the hearing starts.
            4.    The offer is not accepted.
            5.    The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

In order for these costs consequences to come into play, the offer to settle must be signed by the party making the offer and their lawyer (Rule 18(4)).  Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)).

The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied.  The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate based on all of the circumstances of the case (M.(C.A.), at para. 43).  With respect to the requirement that the order obtained be as or more favourable than the offer to settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms.  Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Jackson, at para. 47; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 21).

Rule 18(16) directs that in exercising its discretion over costs, the court may also take into consideration any written offer to settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply.  The court may in the exercise of its discretion compare portions of any offer to settle dealing with discrete issues to the terms of the order that was made.

A party’s failure to serve an offer to settle is also a relevant factor in determining both liability for costs and the appropriate amount of a costs award (M.(J.V.) v. P.(F.D.), 2011 CarswellOnt 13510 (O.C.J.), at para. 5; Menchella v. Menchella, 2013 ONSC 368 (S.C.J.), at paras. 19-21). As Zisman J. stated in Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.), at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute.  Offers to settle are therefore important in any consideration of the issue of costs.  In my view, it is unreasonable behaviour for a party not to make an offer to settle.

Notwithstanding the foregoing principles, the absence of an offer to settle should not be used against a party in determining costs if the situation is one where it is unrealistic to expect offers to settle to be made.  For instance, this factor should not play a material role in determining liability or the appropriate quantum of costs if there was no realistic way of compromising on the central issue(s) in dispute (Beaver, at para. 15).

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 22-27

“Parallel parenting is a form or sub-category of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict.  Despite the Court of Appeal’s judgment in Kaplanis (supra), some courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation.  The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.

In K. (V.) v S. (T.) (supra), Chappel J. discussed the concept of parallel parenting:

77          As noted previously, in recent years, the concept of “parallel parenting” has developed in Family Law practice and in the case-law. This phrase has been used to describe various types of parenting arrangements, and in fact there is some dispute in the academic literature about the precise definition of parallel parenting.  (Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.).   In some circumstances, parties and the courts have used the phrase “parallel parenting” to describe what is essentially a joint custody regime with additional, more specific terms to address particular areas of decision-making. In other cases, parallel parenting is described as a “sub-category of joint custody” which involves granting each party separate, defined areas of parental decision-making authority independent of each other. For ease of reference, I will refer to this latter concept as “divided parallel parenting.” This form of parallel parenting has been described by Rachel Birnbaum and Barbara J. Fidler, as quoted by Smith, J. in Hensel, in the following terms:

Parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making.   (Rachel Birnbaum and Barbara Jo Fidler, “Commentary on Epstein and Madsen’s Joint Custody with a Vengeance: The Emergency of parallel Parenting Orders.”).

78          In other cases, parallel parenting has taken the form of both parents being independently granted the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without consent from the other parent.   (See Mol v. Mol 1997 CarswellOnt 3693 (Ont. Gen. Div.); Ursic v. Ursic, (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6^th) 23 (Ont C.A.)  I will refer to this as “full parallel parenting” for ease of reference.

79          Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child’s best interests.  (M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.).  There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above timesharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

80          The Ontario Court of Appeal has to date not dealt comprehensively with the concept of parallel parenting. As in the case of joint custody, the jurisprudence on this topic will likely evolve over the years as the Court of Appeal is required to deal with specific fact situations that come before it. Unfortunately, however, some comments made in the Court of Appeal jurisprudence to date have generated uncertainty about the availability of parallel parenting in high conflict situations where joint custody is not a feasible option. This uncertainty is significant, given that in practice, both in negotiated settlements and in courts across the country, parallel parenting has been welcomed as a valuable solution in high conflict cases for achieving solutions that are in the best interests of children.

When the concept emerged, parallel parenting was seen as an appropriate disposition where, notwithstanding the fact that the parents were uncooperative, joint custody was in the best interests of the child.  In M (TJ) v M (PG), (supra) Aston J. stated at paragraph 20:

… “parallel parenting” orders have become a form of joint custody, a sub-category if you will, which does not depend upon co-operative working relationships or even good communication between the parents. The concept (consistent with subsection 20(1) of the Children’s Law Reform Act) is that the parents have equal status but exercise the rights and responsibilities associated with “custody” independently of one another. Section 20(7) of the Children’s Law Reform Act, RSO 1990, c. C.12 provides clear authority for the court to deal separately and specifically with “incidents of custody”. The form of a “parallel parenting” order addresses specific incidents of custody beyond a mere residential schedule for where children will reside on a day-to-day basis.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 508-509

“In this case the parties did not incorporate the terms of the Separation Agreement into a court order. As a result, the issue of spousal support is governed by s. 15.2(4) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) that states:

…the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a)   the length of time the spouses cohabited;

(b)  the functions performed by each spouse during cohabitation; and

(c)  any order, agreement or arrangement relating to support of either spouse.

The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependants, and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment, and any other source from which the spouse derives gains or benefits: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at pp. 440-442; Smith v. Smith, 2012 ONSC 1116, at para. 69.

Section 15.2(6) of the Divorce Act provides that an order concerning spousal support should consider the objectives of spousal support as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a)   recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b)  apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c)  relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d)     in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time.

No single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective based on the circumstances of the parties. One of the purposes of spousal support is to relieve economic hardship that results from marriage or its breakdown: Moge v. Moge, [1992] 3 S.C.R. 813, at pp. 848; Bracklow, at p. 440.

[258]   As stated in Moge, at pp. 848-849:

. . . [T]he purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown.” Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.

This approach is consistent with both modern and traditional conceptions of marriage in as much as marriage is, among other things, an economic unit which generates financial benefits…The Divorce Act reflects the fact that in today’s marital relationships, partners should expect and are entitled to share those financial benefits.

[259] As stated in Moge v. Moge and Bracklow v. Brackow, there are three conceptual bases for entitlement to spousal support.  First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage.  Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation.  Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of the spouse. This ground for spousal support establishes that a spouse may be obliged to pay support based on the other spouse’s economic need, even if that need does not arise as a result of the roles adopted during the marriage. This basis for spousal support is founded on the view that “marriage is a relationship involving mutual obligations and interdependence that may be difficult to unravel when the marriage breaks down”: Moge, at pp. 864-865; Bracklow, at pp. 444, 448; C.Z., at para. 241).

[260]   As the court emphasized in Bracklow, at pp. 450-451, “[a]t the end of the day …, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.”

          D.A.S. v. P.S., 2021 ONSC 7358 (CanLII) at 254-260

“Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. See: C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus, 2008 CanLII 53970 (ONSC). They can also be reflective of the status quo – an important best interests consideration. See: B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.

The court has no jurisdiction to vary a separation agreement about custody. However, under section 56 of the Family Law Act, it can disregard any provision in the agreement and make an order, if it is in the child’s best interests. Paulo v. Yousif 2011 ONCJ 841.

From: P.D. v. M.C., 2020 ONCJ 323:

14      A separation agreement does not have the effect of an order and no material change is required. The court has no authority to vary a separation agreement about custody but can under the Family Law Act disregard any provision in an agreement and make an order if it is in the best interests of the children.

15      The court must consider first and foremost the best interests of children, while being mindful of the importance of parents’ autonomy in making their own arrangements to resolve their parenting issues. Blois v. Gleason, 2009 CanLII 23109 (ON S.C.).”

            M.E. v. K.K., 2022 ONCJ 509 (CanLII) at 136

“A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22.  The mother issued her application on March 6, 2019. Accordingly, her claim for retroactive support covers the period from January 1, 2017 until March 2019 – 2 years and 2 months.

The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

None of the above factors are decisive or take priority and all should be considered in a global analysis.  In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. par. 97).

The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice (D.B.S., par. 101).

The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor’s own interests over the child’s right to an appropriate amount of support (D.B.S., par. 106). The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations. (D.B.S., par. 108).

Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5), but where the payor engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum. (D.B.S. par. 134)

Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121). In this case, the date of effective notice is the same as the date of formal notice – when the application was issued on March 6, 2019.

It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. See: D.B.S., pars. 95 and 96); Titova v. Titov, 2012 ONCA 864, par. 37; Baldwin v. Funston, 2007 CarswellOnt 3168 (C.A.)

Courts should attempt to craft the retroactive award in a way that minimizes hardship. Hardship to the payor parent may be mitigated by a judgment which allows for payment of an award in instalments: See: D.B.S., at para. 116; Connelly v. McGouran, 2007 ONCA 578.”

            James v. Hutchinson, 2019 ONCJ 801 (CanLII) at 26-35

“Credibility assessment is not an exact science. In Baker-Warren v. Denault, 2009 NSSC 59 (N.S.S.C.) Forgeron J. noted that,

“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.”  R. v. Gagnon, 2006 SCC 17, para. 20.  I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”  R v. R.E.M., 2008 SCC 51, para. 49.”

In Christakos v. De Caires, 2016 ONSC 702 at para. 10,  Nicholson J. adopted as helpful MacDonald J.’s following outline in Re Novak Estate, 2008 NSSC 283 (CanLII), 269 N.S.R. (3d) 84:

[36] There are many tools for assessing credibility:

a)  The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c)  The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d)  It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99 (CanLII) [at paras.] 70-75).

e)  Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.   v. J.H.2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

[37]   There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra).  [Emphasis in original.]

In Ouellette v. Udin, 2018 ONSC 4520 at para. 9, Shelston J. described credibility assessment as a “holistic undertaking incapable of precise formulation”. In Al-Sajee v Tawfic, 2019 ONSC 3857 at paras. 41 and 42, Chappel J. described assessing credibility as a complex task and provided a comprehensive summary listing what courts should consider in weighing and assessing the credibility and reliability of witnesses.”

            A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 86-88