Month: April 2025

“With respect to items #5 and #6, first, I cannot make an order for a finding of contempt with respect to alleged lies told to a judge at a conference or for allegedly bribing or influencing witnesses.  The first requirement for proving contempt is that it must be contempt of a court order.  The Applicant has not referred to court orders.  There may be different routes to address her concerns about items #5 and #6, but it is not by bringing a motion for contempt of a court order.  Further, conferences are confidential. Statements made at conference cannot be disclosed to any other judge except in very limited circumstances.  Rule 17(23) states:

(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a)  an agreement reached at a settlement conference; or

(b)  an order. O. Reg. 114/99, r. 17 (23). [emphasis added]”

          Shaganenko v. Shaganenko, 2021 ONSC 3042 (CanLII) at 8

“Arbitrators, like judges, are required to follow the law of the land. Section 31 of the Arbitration Act, 1991 provides:

Application of law and equity

31 An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.

In Omers Realty Corp. v. Sears Canada Inc. (2005), 2005 CanLII 3983 (ON SC), 74 O.R. (3d) 423 (S.C.), at para. 22, aff’d (2006), 2006 CanLII 16477 (ON CA), 80 O.R. (3d) 561 (C.A.), Pepall J. (as she then was) explained at para. 22:

Section 31 of the Arbitration Act, 1991 provides that an arbitral tribunal is to decide a dispute in accordance with the law. The arbitration represents a process to address a dispute; it does not confer jurisdiction to ignore or rewrite the law and established legal principles. Put differently, the arbitration provision does not confer on the arbitrators the ability to do what they please unencumbered by applicable legal principles.

There are many sources of law. The courts do not have a monopoly on establishing the content of the law. But the Arbitration Act, 1991 creates a hierarchy that feeds into the judicial hierarchy and attracts the doctrine of stare decisis. Section 37 of the statute provides:

Binding nature of award

37 An award binds the parties, unless it is set aside or varied under section 45 or 46 (appeal, setting aside award).

Subsection 45(5) of the Arbitration Act, 1991 provides,

Idem

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

The effect of these provisions is that once an arbitrator’s decision is set aside, it no longer binds. The court is expressly provided with the authority to opine on questions of law and to give directions to the arbitrator in consequence. It is implicit in the section and consonant with stare decisis and common sense, that the court’s determination of the law and the court’s directions do indeed bind the arbitrator as they bind the parties.”

Eyelet Investment Corp. v. Song, 2024 ONSC 2340 (CanLII) at 31-35

“When there is a dispute about a parenting order, all parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782; A.E. v. A.E., 2021 ONSC 8189, at para. 89; and K.M. v. J.R., 2022 ONSC 111, at para. 71.

As stated in Barendregt v. Grebliunas, 2022 SCC 22, at para. 8, the inquiry “is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult – the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.”

The best interests inquiry is highly contextual because of the numerous factors that may impact the child’s well-being. The considerations that the court should focus on in carrying out the assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case: Van de Perre v. Edwards, 2001 SCC 60, at para. 13; Barendregt, at para. 97; and B.J.T. v. J.D., 2022 SCC 24, at para. 55.

The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 99, 117; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 28, 37, and 50; and F. v. N., 2022 SCC 51, at para. 61.”

          Tsiriotakis v. Rizzo, 2024 ONSC 2339 (CanLII) at 96-99

“Parties must earn what they are reasonably capable of earning.  Otherwise, we risk harm to children in that the parties are failing to adhere to their responsibilities to support their children.  One way in which we determine income is by imputing an income to the payor.  We do that after a consideration of three questions:

i.        is the payor intentionally unemployed or, in the case of this father, under-employed;

ii.         if so, is the intentional unemployment or under-employment by virtue of the payor’s reasonable education or health needs; and

iii.            if not, then what income is appropriately imputed to the payor?

Gordon v. Wilkins, 2020 ONCJ 115, at paragraphs 23-24, citing Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.).

The burden of proof on this motion rests with the mother – the party seeking to have income imputed to the other side.  The standard of proof is on a balance of probabilities.  An evidentiary basis is required to be put forward by the moving party, although the responding party’s failure to disclose their finances may mitigate that obligation to some degree.  Once a prima facie case for imputation of income has been established, then the onus shifts to the responding party to defend the income position that they are taking.  Gordon, supra, at paragraphs 25-26, citing Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552 (C.A.), Graham v. Bruto, 2008 ONCA 260, Lo v. Lo, 2011 ONSC 7663, and Charron v. Carriere, 2016 ONSC 4719.

If a party, like the father in our case, chooses to pursue self-employment as an alternative income earning path, the question becomes whether that choice was reasonable in all of the circumstances.  If not, imputation of income to that party may be the result.  Reasonableness is the key theme – parents are required to act responsibly when making decisions that may impact on the level of child support available.  Tillmanns v. Tillmanns, 2014 ONSC 6773, at paragraphs 77 and 81, citing various authorities including Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.).”

          A.I. v. J.R., 2024 ONSC 2328 (CanLII) at 5-8

“Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(I)      that the child is physically present in Ontario at the commencement of the application for the order,

(II)     that substantial evidence concerning the best interests of the child is available in Ontario,

(III)   that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(IV)   that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(V)     that the child has a real and substantial connection with Ontario, and

(VI)   that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [Emphasis added.]

As this court said in Wang v. Lin, 2013 ONCA 33, 358 DLR (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.

…

 Section 23 provides:

Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i)        the child remains in the custody of the person legally entitled to custody of the child,

(ii)        the child is returned to the custody of the person legally entitled to custody of the child, or

(iii)        the child is removed from Ontario.

Because the Ojeikeres’ three children are physically present in Ontario, under s. 23(b) an Ontario court can exercise jurisdiction over their custody or access if satisfied that the children would, on a balance of probabilities, suffer “serious harm” if they were sent back to Nigeria.

Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22’s aim of discouraging child abduction becomes secondary to s. 23’s aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.”

Section 23 of the CLRA is discretionary. Under s. 25, a court with jurisdiction over custody or access may decline to exercise its jurisdiction where it is of the opinion that another jurisdiction is more appropriate. Although s. 25 could potentially qualify the court’s discretion under s. 23, I find it hard to conceive that an Ontario court would decline jurisdiction under s. 23 if satisfied a child would suffer serious harm if removed from the province.”

          Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 27-28, 37-40

“The Applicant requests the consent final order be made “nunc pro tunc”, or retroactive to September 8, 2023, the date it was signed by the parties. The Applicant acknowledged this is a discretionary power of the Court.

The Supreme Court of Canada, in Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 (para. 86) explained:

The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.

Similarly, in circumstances where courts have made errors through an oversight or a “slip”, orders have issued retroactively. These are not the only circumstances where the doctrine of nunc pro tunc may be applied but serve only as examples.

Prior to courts exercising its inherent jurisdiction, the following factors must be considered: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. This list is not meant to be exhaustive. (Ibid, para 90).”

          B.A. v. I.K., 2024 ONSC 2225 (CanLII) at 10-13

“The narrow and determinative issue before this court is whether the fact that the father’s pleadings have been struck precludes his right to appeal.

This court in Lamothe [v. Ellis, 2022 ONCA 789] at para. 3, held that it “will not typically hear an appeal by a party from an unopposed proceeding” because “[p]articipation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”

The court in that case recognized, at para. 3, that there may be exceptions to this rule where the issues raised in the appeal have clear merit or show that an injustice has been done.”

          Matos v. Driesman, 2024 ONCA 271 (CanLII) at 16-18

“Section 31 of the Marriage Act authorizes a court to validate a marriage entered into in good faith. The section reads:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

Put simply, the following four elements must be applied for a marriage to be deemed valid under the Marriage Act:

The marriage must have been solemnized in good faith;

The marriage must have been intended to be in compliance with the Marriage Act;

Neither party was under a legal disqualification to contract marriage; and,

The parties must have lived together and cohabitated as a married couple after solemnization.”

          Swinden and Crowell, 2023 ONSC 2310 (CanLII) at 17-22

“It is well-established in caselaw that a child may have more than one payor parent if a non-biological parent stood in loco parentis (See Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242; see also Wright v. Zaver, 2002 CanLII 41409 (ON CA), 59 OR (3d) 26 [2002] (ONCA)).”

          Thompson v. Thompson, 2024 ONSC 2121 (CanLII) at 25

“Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the court “shall make a final order” if there is no genuine issue of a claim or defence requiring trial. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.

Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; see also Phillion v. Phillion, 2015 ONSC 4255.

In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.”  The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences to resolve claims without the need for a trial.

The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.

The determination of a motion for summary judgment involves a two-step approach. The judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. However, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.

On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. Both parties must put their “best foot forward”, and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

In this case, the Respondent must establish that there is no genuine issue requiring trial in relation to the Applicant’s claim that the Separation Agreement ought to be set aside in its entirety, or in part. If he does, then the onus shifts to the Applicant to demonstrate that there is a genuine issue requiring a trial based on competing evidence that throws material facts into dispute, the assessment of which should be deferred to a trier of fact because, for example, assessment of credibility is warranted.”

          Haier v. Haier, 2024 ONSC 2102 (CanLII) at 22-28