Month: October 2024

“Just because the Court can vary a temporary order on a temporary basis prior to trial, or just because the Court can make an initial order for temporary decision-making that would disturb a status quo, does not necessarily mean that it should do so.  Temporary orders are by their nature imperfect solutions, based on limited evidence, typically in affidavit form.  They are meant to provide a “reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLii 66352 (Ont. S.C.J.) ¶ 17.  The maintenance of the status quo is a heavy factor on a motion of this kind.  That principle applies equally respecting motions to vary temporary orders on a temporary basis pending trial, and first time temporary orders that would result in a change to the status quo.  The preferable approach is usually to get the matter on for trial.

At ¶ 49 of K.A.C. v. P.P., 2007 ONCJ 217, Murray J. wrote about that the reasons why courts place emphasis on the status quo at the interim stage of a cases, saying they “…flow from two concerns:  a concern for fairness to the parties and a concern for the child’s best interests.  Generally it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”

Nevertheless, the Court is not powerless to act, where a child is in danger, or where there is some other compelling reasons to do so in a child’s best interests:  see Grant v. Turgeon, 2000 CanLii 22565 (Ont. S.C.J.) ¶ 15;  see also Kimpton v. Kimpton, 2002 CanLii 2793 (Ont. S.C.J.) ¶ 1, 2;  see also K.A.C. v. P.P.  And if the Court is inclined to consider a change on this more stringent test, a best interests’ analysis is still undertaken:  see F.K. v. A.K., 2020 ONSC 3726.   Section 16(1) of the Divorce Act makes a child’s best interests the only consideration.  According to section 16(2), the child’s physical, emotional and psychological safety, security and well-being are the primary consideration when considering the statutory factors in section 16(3).

Finally, additional considerations when deciding to intervene or not, are about the calibre of the evidence before the Court, and how quickly the case is likely to go to trial:  see K.A.C. v. P.P. ¶ 51.

With the above all being set out, I nevertheless note that in J.D. v. N.D., 2020 ONSC 7965, MacKinnon J. recently wrote about the applicability of the compelling circumstances test.  At ¶ 17-18, MacKinnon J. set out some alternative factors that might apply rather than a compelling circumstances test.  She wrote that these might include a consideration of the magnitude of the change sought, compared to the status quo, and the assessment of other evidence that might support (or not) the change sought.  While some of the considerations at ¶ 17-18 are unique to motions requesting the implementation of assessment reports prior to trial, which issue is not directly before me in this case, MacKinnon J. nevertheless identified a possible shift in the jurisprudence respecting the proper approach at the interim stages of a parenting case more broadly.

In particular, MacKinnon J. called for a reconsideration of a more stringent analysis in  appropriate cases.  Writing about the facts of the case before her, she found at ¶ 12, 13, 14, 16, 17 and 22:

(1)     Judicial notice may be taken that over the past twenty years the knowledge of the risks for children exposed to parental conflict and family violence has expanded.  Evidence of actual harm, ongoing risks and long term consequences is also before the Court;

(2)     On at least three occasions, the Children’s Aid Society of Ottawa verified protection concerns relating to the children’s exposure to adult conflict, as did an assessor (in that case before MacKinnon J.);

(3)     Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes, aggravated by the delay that it can take to get a case to trial;

(4)     The legal landscape since Grant v. Turgeon has changed.  While the traditional test (compelling circumstances) is still applied in some cases, other cases say the jurisprudence has evolved.  For example, at ¶ 23 and 27 of Bos v. Bos, 2012 ONSC 3425, Mitrow J. said that the test was not so “rigid and inflexible” as to preclude a court from considering prior to trial, probative evidence, such as that in an assessment report; and

(5)      Delaying a change in residential arrangements until trial is not always appropriate.  Making a change sooner is sometimes the better option.

Concluding at ¶ 23, MacKinnon J. wrote:

In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial.  A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”

            G.R.G. v. S.G., 2023 ONSC 6162 (CanLII) at 127-133

“The test for determining whether a therapeutic order, such as reunification therapy, is appropriate is whether such an order would be in the best interests of the child.  Within this analysis, there are other specific factors that inform the best interests test within the context of a therapeutic order as will be discussed below.

Mr. Grossi relies on A.M. v. C.H., 2019 ONCA 764.  At paras 48 – 54 of A.M., the court affirmed the jurisdiction of this court to make therapeutic orders such as an order requiring the parties and child to participate in reunification therapy, based on subsections 16(1) and (6) of the Divorce Act and sections 28(1) (b), and (c) of the Children’s Law Reform Act with the support of section 17(8)(b) of the Family Law Rules.  See also Audet J.’s detailed analysis in Leelaratna v. Leelaratna, 2018 ONSC 5983, accepted in A.M., at paras 40-52, outlining this court’s jurisdiction to make, and the rationale underlying, therapeutic orders that are in the best interests of the child.

The Ontario Court of Appeal in A.M. upheld the trial judge’s imposition of a reverse custody and no contact order in favour of the father, given the extreme findings of fact made against the mother based on an analysis of the best interests of the child.  The trial judge had found that the mother and child were unwilling to participate in reconciliation therapy due to the mother’s persistent pattern of alienation.

It should be noted that in A.M., the Court of Appeal was hearing an appeal from a trial decision, not a motion, and found that the trial judge had not made a palpable and overriding error.

In my view, the evidence adduced for this motion falls short of the facts established in A.M.

Neither Mr. Grossi nor Ms. Da Torre raised the issue of the Health Care Consent Act in this motion.  In any event, I agree with Justice Audet’s observations at para. 66 of Leelaratna that “most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA”.  This observation was also cited favourably by the Court of Appeal in A.M.

At para. 69 of Leelaratna, Audet J. listed the factors that are generally relevant to a consideration as to whether a therapeutic order, such as the request for reunification therapy, is in the best interests of the child:

a)      Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clearly based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?

b)      Is there compelling evidence that the counselling or therapy would be beneficial to the child?

c)      At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?

d)      Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by the recalcitrant parent?

e)      Is the child likely to voluntarily engage in counselling/therapy?”

            Da Torre v. Grossi, 2023 ONSC 6133 (CanLII) at 40-46

“Can a family lawyer act against a former client?  That is the issue at the heart of this motion.  The lawyer for Ms. DeCorte acted for Mr. DeCorte in 2006.  At the time, Mr. DeCorte was separating from his first wife.  The issues in 2006 included a determination of income for purposes of calculating support.  Now, 15 years later, the lawyer who acted for Mr. DeCorte is acting for his second wife.  Issues in the current litigation include determination of income for purposes of calculating support.  Can the lawyer act for the second wife, or is there a disqualifying conflict of interest?

… 

These are complex issues.  There is no hard and fast rule that a lawyer can never act in opposition to a former client.  That said, the integrity of the system will sometimes require that a lawyer refrain from taking on a file that pits him or her against someone he or she acted for in the past.

There is a clear tension in cases of this nature.  On the one hand, the law recognizes the importance of litigants’ right to counsel of choice.  On the other hand, that right is not absolute and is subject to reasonable limitations.  A litigant cannot choose counsel that has a conflict of interest in circumstances that would detrimentally affect the administration of justice: see R. v. Hendrickson, [2002] O.J. No. 1982 (S.C.); R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.); R. v. Robillard (1986), 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.); R. v. Brissett (2005), 2005 CanLII 2716 (ON SC), 74 O.R. (3d) 248 (S.C.).

In assessing whether there exists a disqualifying conflict of interest, the court must balance competing interests. On the one hand, the court must be concerned to maintain the high standard of the legal profession and the integrity of our system of justice. On the other hand, the court must recognize the strong countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause.

In R. v. W.(W.) (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), Doherty J.A. set out the test that a trial judge must apply in assessing an alleged conflict of interest, at pp. 18-19:

It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take. The trial judges’ task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused.

The test set out in W.(W.) is whether there is any realistic risk of a conflict of interest.  This test is similar to the one set out by the Supreme Court of Canada in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 (“MacDonald”) in which the Court held that a “possibility of real mischief” will warrant the removal of counsel.  The term “mischief” in that case, at p. 1246, referred to “the misuse of confidential information by a lawyer against a former client.” Where it is shown that a lawyer was previously retained on a related matter, the onus will shift to the lawyer to prove that no information was imparted that could be relevant.  On this point, Sopinka J. stated the following, at pp. 1260-1261:

In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.  This will be a difficult burden to discharge.  Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed but the burden must be discharged without revealing the specifics of the privileged communication.  Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

The “heavy burden” resting upon counsel requires that a “reasonably informed member of the public” be satisfied that the new retainer will not give rise to a conflict of interest.”

            DeCorte v. DeCorte, 2021 ONSC 7208 (CanLII) at 1, 6-11

“The parties could not resolve their differences over the investment property, and the father chose to bring a motion which he was entitled to do. However, the mother accepted his offer to settle this matter six days before the motion was heard and an order was made on consent to sell the investment property. Given the issue was resolved on consent, and the Court did not adjudicate the merits of this particular issue, it is difficult to assess whether the parties’ positions were unreasonable. It is for this reason that costs are generally not appropriate on consent orders: Ball v Ball, 2014 ONSC 5754 at para 12.”

            Oppong-Nketiah v. Oppong-Nketiah, 2021 ONSC 7151 (CanLII) at 16

“In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award. See: Michel, par. 120.

If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.”

Mpamugo v. Nyeche-Woluchor, 2022 ONCJ 488 (CanLII) at 59-67

“Because it is a family law case, I will begin with Family Law Rule 25(19). It reads as follows:

(19) 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.

The Ontario Court of Appeal has held that the authority to change an order includes the authority to set it aside: Gray v. Gray, 2017 ONCA 100 paragraphs 26 and 31.

I find that the present case does not fit within the situations listed in Rule 25(19)(a-e). However, there is authority for applying rule 19.08 of the Rules of Civil Procedure.

In Bompas v. Henry 2018 ONSC 7718 paragraph 15 the court stated:

[15] It is my view that the inquiry should not end with r. 25(19)(e).  Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly.  In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure.  That provides the court with the authority to set aside a default judgment on such terms as are “just”.  The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration.  The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief.  The factors are:

a)   Whether the motion was brought promptly after the respondent learned of the default judgment;

b)    Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;

c)    Whether the facts establish that the respondent has an arguable defence on the merits;

d)    The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e)    The effect of any order the court might make on the overall integrity of the administration of justice.

This was repeated in Ostapyk v. Ostapyk, 2022 ONSC 400 paragraph 13.

Rule 19.08(1) reads as follows:

A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

Rule 19.01(1) shows that this applies both where a defendant has failed to deliver statement of defence and where a statement of defence has been struck out, as here.”

            Hakim v. Hakim, 2022 ONSC 6051 (CanLII) at 8-12

“If a person fails to obey an order in a case, rule 1(8) of the FLRs provides the court with the discretion to make any order it considers necessary to arrive at a just determination, including,

(a)        an order for costs;

(b)        an order dismissing a claim;

(c)        an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d)      an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e)        if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f)        an order postponing the trial or any other step in the case; and

(g)        on motion, a contempt order.

I further note r. 1(8.1) that allows for the same relief, with the exception of an order for contempt, as set out above should a party fail to follow the FLRs.

The consequence of striking a party’s pleadings in a case, unless the court orders otherwise, are set out in r. 1(8.4), as follows:

1. 1. 1. 1. 1.    The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
            2.    The party is not entitled to participate in the case in any way.
            3.    The court may deal with the case in the party’s absence.
            4.    A date may be set for an uncontested trial.

In family matters, the case law directs that the court’s authority to strike pleadings and deny trial participation should be used sparingly and only in exceptional circumstances. An order eliminating a party from participating in a case is a drastic remedy, one of last resort when no other will suffice. See Purcaru v. Purcaru, 2010 ONCA 92, at para. 47, and Chiaramonte v. Chiaramonte, 2013 ONCA 641, 36 R.F.L. (7th) 11, at paras. 31 and 32.

In Kovachis v. Kovachis, 2013 ONCA 663, paras. 27-36, the court set aside the lower court’s order striking pleadings saying the judge failed to consider the substantive disclosure already made, the lack of evidence that the responding party willfully disobeyed the disclosure order, the principle of proportionality fundamental to all civil proceedings in Ontario, and further failed to identify the disclosure still outstanding and the importance of it.

In Roberts v. Roberts, 2015 ONCA 450 (CanLII), at paras. 11, 12 and 13, our Court of Appeal had this to say about a party’s obligation to make financial disclosure:

[11]      The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12]      Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.

[13]      Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.

In 2016, the Court of Appeal in Manchanda v. Theti, 2016 ONCA 909 (CanLII), leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.), upheld the motion judge’s decision and stated:

[13]     … 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, 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.

See also Sparr v. Downing,, 2020 ONCA 793, at para. 4; Peerenboom v. Peerenboom, 2020 ONCA 240;  and  Martin v. Watts, 2020 ONCA 406.

In Mullin v. Sherlock, 2018 ONCA 1063 (CanLII) the court established the following framework for decisions under rule 1(8):

[44]      First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45]      Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• • • • • • •       the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
            •       the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
            •       the extensiveness of existing disclosure;
            •       the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
            •       any other relevant factors.”

            Elbadawy v. Moustafa, 2023 ONSC 6024 (CanLII) at 22-29

“The parties appeared before me for a seven-day trial. The Father was represented by senior counsel, while the Mother represented herself. Both parents testified, along with two school principals, the Father’s new partner, the Mother’s family friend, and a social worker and clinical investigator with the Office of the Children’s Lawyer (“OCL”), Eva Casino. Ms. Casino testified that the Child, was able to articulate his views and preferences clearly and that his views were independent, balanced, and insightful. I rely on both her testimony and the OCL Report. The parties did not oppose the Court taking judicial notice of information contained in the Association of Family and Conciliation Courts (Ontario) 2021 Parenting Plan Guide (“Parenting Plan Guide”), which succinctly outlines the developmental needs of children of separated parents who are around the same age of the Child, and also provides guidance on developing appropriate parenting plans in the face of family violence.”

            A.C. v. K.C., 2023 ONSC 6017 (CanLII) at 3

“In respect of the first issue, we find that the trial judge made no reversible error in ordering the occupation rent. The appellant argued before this court that the trial judge erred in law because he did not apply the requirement that such an order be exceptional. We disagree. While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397. The appellant was unable to refer us to any Ontario authority in support of the argument to the contrary.”

            Non Chhom v. Green, 2023 ONCA 692 (CanLII) at 8

“Section 56(4) differs from s. 33(4) Family Law Act in that s. 33(4) operates even when there is a valid and subsisting domestic contract but the provision respecting support results in unconscionable circumstances: Scheel v. Henkelman, [2001] O.J. No. 55 (Ont. C.A.).

In general, the doctrine of unconscionability with respect to domestic contracts under s. 56(4)(c) Family Law Act focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. Under s. 33(4), the focus is on the results of the waiver of support: does that waiver result in unconscionable circumstances when the agreement is triggered by separation: Toscano v. Toscano, 2015 ONSC 487 (Ont. S.C.J.).”

          Golton v. Golton, 2018 ONSC 6245 (CanLII) at 181-182