Month: March 2024

“There is, of course, nothing inappropriate about citing academic legal scholarship and much to be gained when it comes to better understanding legal concepts that may be relevant to judicial reasoning. But whether academic commentary or scholarship purports simply to describe the law or to explain it, it is not properly the subject of judicial notice – that is, it cannot be accepted as fact without proof. It is not subject to the sort of constraints that govern the use of evidence in the litigation process, and there is a risk that reliance on it may result in evidence being imported into judicial proceedings indirectly, bypassing the relevant evidentiary safeguards. See the helpful discussion of judicial notice by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 29-38.

Academic arguments should be assessed with the same sort of critical detachment as submissions from counsel. To the extent that academic arguments have a normative purpose – to the extent they are concerned with what the law ought to be rather than what it is – they are inherently controversial and properly subject to critique and challenge from other scholars. Their significance and shortcomings cannot be understood without placing them in this context. But whether scholarship is ostensibly descriptive or normative, it is improper to take judicial notice of the facts asserted or the conclusions reached.”

Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172 (CanLII) at 42-43

“The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.”

          A.V. v. C.V., 2023 ONSC 1634 (CanLII) at 16

“I also do not accept the father’s counsel’s argument that notice was not required. First, it is contradictory for the father and Ms. Del Villano to testify that they did not inform the mother because they thought she already knew from A.L. and then turn around and argue, they did not have to inform her because the legislation did not require them to do so. Second, counsel’s argument that the move to Smith Falls was a “change in residence” rather than a “relocation” does not preclude the legislative requirement for notice. Both terms, as addressed in the CLRA, require a parent who has shared parenting to communicate in advance in writing any intended change in residence and set out the new address. A “relocation” is defined as a move that has significant impact on the child’s relationship with the other parent and requires 60 days’ notice whereas a “change in residence” is considered a move that is not significant. While a change in residence does not require 60 days notice, it requires nonetheless some “advanced” notice in writing: ss. 18(1), 39.1, and 39.3 CLRA; S.C. v. J.C., 2022 ONSC 4146 at para 10.”

          Jacques v. Leblanc, 2023 ONSC 1689 (CanLII) at 96

“Counsel in any case must be mindful of the obligations that the Law Society of Ontario’s Rules of Professional Conduct impose on them with regard to their client’s disclosure obligations.  Those rules outline specific steps that counsel must take in advising clients on matters of disclosure.  Rule 5.1-3 states that where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate, must advise his/her client to comply with their disclosure obligations, and must not make frivolous requests or demands for information or the production of documents.”

            McDowell v. McDowell, 2021 ONSC 1954 (CanLII) at 15

“In determining whether to grant an extension, the overarching consideration is whether the justice of the case requires the extension. The well‑established criteria that inform this consideration include: a continuing intention to appeal; the length and reason for the delay; the prejudice to the respondents; and the merits of the appeal: Issasi v. Rosenzweig, 2011 ONCA 112, at paras. 4-5. While the right of appeal is an important one, a request to extend the timeline for perfection is fundamentally a request for the court’s indulgence: Howard v. Martin, 2014 ONCA 309, at paras. 53-54. Consequently, the justice of the case may also require an examination of the appellant’s conduct, including the appellant’s willingness to comply with established processes and prior court orders: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 18.”

          Jex v. Jiang, 2021 ONCA 160 (CanLII) at 5

“The respondent mother (“the mother”) sought to file audio recordings and doorbell video recordings (from the family’s front door) with the Court as evidence to support her allegations regarding the father’s drinking, driving while impaired, admissions regarding caregiving to the child, and weapons threats. The father states he was not aware he was being recorded and objected to the admission of these video recordings because they are not probative.

Two recordings had not been provided to the father in advance of the hearing date. I stood the matter down for 20 minutes to allow the father and his counsel to review the recordings prior to argument on admissibility.

There is a general principle that audio/video recordings between parents should be strongly discouraged and generally inadmissible: Whidden v. Ellwood, 2016 ONSC 6938, Hameed v. Hameed, 2006 ONCJ 274, Turk v. Turk, 2015 ONSC 3165.  In Van Ruyen v. Van Ruyven, 2021 ONSC 5963, at para. 41, Justice Kurz writes:

The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.

The recordings were attached as exhibits to a stand-alone affidavit sworn by the mother in support of a motion seeking to admit them.  This affidavit referred to paragraph numbers in her responding affidavit matching the recording with the event attested to.  However, the paragraph numbers were incorrect.  During argument, counsel walked the Court through each recording and which paragraph in the responding affidavit to which it related.  I note, however, that none of the paragraphs in the mother’s responding affidavit adequately lay the necessary foundation for the recordings.  Despite this lack of foundation, I am considering the recordings because of the seriousness of the allegations and because the father, in submissions, acknowledged the recordings were made as the mother purports them to have been made.”

            Dieffenbacher v. Baril Dieffenbacher, 2023 ONSC 1597 (CanLII) at 4-7

“At ¶ 47 of Sattva Capital Corp.v. Creston Moly Corp., 2014 SCC 53, the Supreme Court succinctly set out the principles of contractual interpretation.  The Court adopted the “modern approach” holding that the interpretive process involves reading the agreement “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.”  There need not first be a finding of ambiguity in the contract, before the Court can consider surrounding circumstances.

Also at ¶47 of of Sattva Capital Corp.v. Creston Moly Corp., the Court recognized the difficulty of ascertaining contractual intention when looking at the text alone, because words alone do not have an “immutable or absolute meaning”.  The Court quoted a passage that contracts are not made in a “vacuum”, and must be placed in context of the setting in which they are made.

At ¶48 of of Sattva Capital Corp.v. Creston Moly Corp., the Court found that the meaning of words is derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.  The meaning which a document would convey to a “reasonable man” is not necessarily the same thing as the meaning of the words used in the contract, themselves.  In this case before me, the parties have to some extent made statements about their subjective intentions in making and accepting the Offer to Settle, but the goal in contractual in contractual interpretation is to ascertain the objective intent of the parties:  see ¶ 49 of of Sattva Capital Corp.v. Creston Moly Corp.

Although the surrounding circumstances may be considered, they should not be allowed to overwhelm the words of the agreement.  Rather, they should “deepen the decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract”.  The interpretation must be grounded in the text,and read in light of the entire contract:  see ¶57 of of Sattva Capital Corp.v. Creston Moly Corp.

What the surrounding circumstances may be, will vary.  They should consist of objective evidence of background facts known at the time of execution of the contract.  That knowledge must have either been, or reasonably ought to have been within the knowledge of both parties at or before the date of contracting.  Surrounding circumstances can be “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”:  see ¶58 of of Sattva Capital Corp.v. Creston Moly Corp.”

          S.C.H. v. S.R., 2023 ONSC 1549 (CanLII) at 51-55

“Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.

While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status: See Ontario Child Welfare Secretariat Policy Development and Program Design Division, “Ontario Kinship Service Standards”, online: <oacas.libguides.com/ld.php?content_id=34692073> ; Ontario Association of Children’s Aid Societies, “Kin-based care”, online: <oacas.libguides.com/family-engagement/kin-care>. Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.

Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:

“foster care” means the provision of residential care to a child, by and in the home of a person who,

receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added]

The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.

Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.

As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:

… the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that “to express one thing is to exclude another” and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, “legislative exclusion can be implied when an express reference is expected but absent”. [Citations omitted.]”

Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 (CanLII) at 40-45

“On January 26, 2010, the applicant commenced the within application pursuant to the Hague Convention. He claims that the child was wrongfully removed from her place of habitual residence by the respondent in breach of his custody rights, and applies for the return of the child to Latvia, as well as for a declaration that Latvia is the proper jurisdiction to deal with issues of custody and access. The respondent asks the court to refuse to order the child’s return. In the event the application is dismissed, the respondent asks the court to grant her custody of the child under the Children’s Law Reform Act.

In her defence to the application, the respondent invokes Articles 13(b) and 20 of the Hague Convention. Relying on the decision in A.M.R.I. v. K.E.R., she asks that Articles 13(b) and 20 be construed in a manner that takes into account the principle of non-refoulement arising from the child’s status as a refugee.

The principle of non-refoulement arises from Canada’s obligations under international treaties and domestic law, and is codified in section 115(1) of Canada’s Immigration and Refugee Protection Act. In the case of Németh v. Canada (Justice), 2002 NSCA 127 at par. 31, Cromwell, J., describes the principle of non-refoulement:

Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope. (par. 19)

In Németh, this principle is described as “a cornerstone of refugee protection.””

Borisovs v. Kubiles, 2013 ONCJ 85 (CanLII) at 4-6

“In J.N. v. C.G. [2022 ONSC 1198], Pazaratz J. noted that the objecting mother in that case, like the mother in this case, pointed to Pfizer-published guidance that the safety and effectiveness of the Covid-19 vaccine had not been established (it is the mother’s “strongest concern” in this case”). But notwithstanding that Court’s consideration of the risks associated with applying judicial notice to cases where expert opinion is unclear or in dispute (and may never be free from doubt) and speculating on the evidence, or lack of evidence, about the wisdom of mandatory child vaccination, the decision in that case really pivots on the rationality of each parent’s position and the facts unique to that family. Distinguishing J.N. from the case before this Court are the principal facts, as found, that the children had “very specific, strongly held and independently formulated views about Covid vaccinations” those views being “verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference” of which there was no evidence in that case. There is no evidence in this case of AD’s views about vaccination and none about parental manipulation. There is no evidence either that the child has any health issue that contraindicates vaccination. The father relies on Health Canada guidance whereas the mother relies on her research. While the mother also raised the issue of AD’s consent to treatment under s. 11 of the Health Care Consent Act, 1996, S.O. c. 2, Sched. A.it is not relevant given that the child functions at a Grade 1 level of learning and understanding.

The mother challenges this father’s reliance on Health Canada and other government guidance on vaccination and the degree to which this Court should apply, if at all, judicial notice. In R.S.P. v. H.L.C., 2021 ONSC 8362, a case to which the Court in J.N. referred, Breithaupt Smith J. noted the definitive decision of judicial notice by the Supreme Court of Canada in R. v. Find, 2001 SCC 32 (CanLII). In R. v. J.M., 2021 ONCA 150 the Ontario Court of Appeal elaborated on Find in describing that facts of which a Court could take judicial notice included:

“(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy… The sources may include both large bodies of scientific literature and jurisprudence”: ibid, para 31(v).

So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:

(a) The Covid virus kills;

(b) The virus is transmissible;

(c) The virus can, and has, mutated;

(d) Variants of the virus are more transmissible than others;

(e) Asymptomatic carriers of the virus can infect other people;

(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;

(g) The virus does not discriminate;

(h) There is no known immunity to contracting the virus;

(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;

(j) Vaccines work;

(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children: Warren v. Charlton, 2022 1088, at para 9(b);

(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes; ibid, at para 9(c).

This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.”

          D. Jr. v. T, 2022 ONSC 1441 (CanLII) at 20-23