“Although the issue was not raised, retaining one’s own professional as an expert to provide “evidence in relation to a case under the [Family Law Rules]”, as opposed to a “participant expert”, (see Westerhof v. Gee, [2015] O.J. No. 147 (C.A.) at para 6) must be strongly discouraged. Experts are required to provide evidence in regard to issues before the court “…that is fair, neutral and non-partisan and within the expert’s area of expertise.”: ibid at 35. It is difficult to meet that standard when the expert’s firm also provides services to a party or his non-arm’s length corporation.”
Author: dawi
April 15, 2021 – Hague Applications vs. CLRA Applications
“The father contends that the application judge was right to apply the Hague Convention framework. He points to various lower court decisions in support of his argument that the principles governing applications under the Hague Convention and s.40 of the CLRA are entirely interchangeable: See e.g. Bolla v. Swart, 2017 ONSC 1488, at para. 38; Moussa v. Sundhu, 2018 ONCJ 284, 11 R.F.L. (8th) 497, at para. 32.
I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application.
Recall the wording of s. 40 of the CLRA that is relevant to this appeal:
Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; …
may do any one or more of the following …. [Emphasis added.]
The available remedies are: (1) making interim custody or access orders in the best interests of the child; (2) staying the application on conditions, including that a similar proceeding be promptly commenced in another jurisdiction; and (3) ordering the return of the child “to such place as the court considers appropriate”.
Recall, also, that under the Hague Convention, the court must determine the child’s habitual residence immediately before the alleged wrongful removal or retention and, then, unless a specified exception applies, order the child’s return to the state of the habitual residence.
Accordingly, a plain reading of s. 40 of the CLRA and of the relevant Articles under the Hague Convention reveal two fundamental differences between the two types of return applications:
(1) The determination of wrongful removal or retention is not tied to the concept of “habitual residence” under s. 40 of the CLRA. In fact, s. 40 contains no reference at all to the term “habitual residence”.
(2) If the court is satisfied that a child “has been wrongfully removed to or is being wrongfully retained in Ontario” under s. 40 of the CLRA, unlike under the Hague Convention, the court is given broad powers to make orders, including staying the application on conditions. This is in direct contrast to the Hague Convention which provides that, once there has been a determination of wrongful removal, subject to specified exceptions, the child must be returned to the state in which he or she was habitually resident.
While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applications. The court’s ability to exercise a broader range of powers under s. 40 is particularly important.
There is good reason to distinguish between a return application under the Hague Convention and under s. 40 of the CLRA.
In relation to Hague Convention matters, it is widely recognized that, between contracting states, the country of habitual residence is the most appropriate location to determine custody and access issues. Accordingly, the purpose of the Hague Convention is to ensure that, between signatories to the Convention, there is “the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. The return order is not a custody determination, but an order designed to “restore the status quo” existing before the wrongful removal or retention and “to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction”: Balev, at para. 24.
The fact that a state is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. By becoming a signatory to the Hague Convention, states agree to follow the reciprocal obligations as set out in the Convention. By virtue of signing the Hague Convention, signatories warrant that they are:
[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody. [Emphasis added.]
Given the paramountcy of the child’s best interests in custody and access decisions under the CLRA, the warranty that Hague Convention signatories also treat the best interests of children as of supreme importance is critical.
When considering whether to return a child to a non-signatory state, there is no basis to assume that the receiving state will determine custody and access issues based on the child’s best interests. As noted by Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 61, “[s]ome non-signatory countries may do so; others may not.” By way of example, in this very case, there is a significant dispute between the parents as to whether, in the U.A.E., considerations other than the child’s best interests might prevail.”
April 14, 2021 – Appeals & Standards of Review
“An appeal is not an opportunity to reargue a motion or trial. The decision of the original motions judge or trier of fact remains unless the appellant can show an error of law or fact was committed.
When considering potential errors of law, the standard of review is one of the correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 8.
When considering potential errors of fact, the standard of review is that an appeal will not be granted unless it can be established that the trial judge made a palpable and overriding error. Absent such a finding, deference is given to the trier of fact who was able to observe witnesses and hear the evidence first hand: Housen, at para. 10.
A palpable and overriding error is where a finding of fact is clearly wrong, unreasonable or unsupported by the evidence and the error affected the result of the motion or trial. This applies whether there is direct proof of the fact in issue or indirect proof of facts from which the fact in issue has been inferred: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56.
Matters of mixed fact and law lie along a spectrum. If there is an extricable legal principle, then that legal question will be reviewed on a correctness basis. Otherwise, if there is no extricable legal error, the standard of palpable and overriding error applies: Housen, at para. 36.
Trial judges are entitled to considerable deference when their decisions are reviewed. This promotes finality in family law matters and recognizes the importance of the appreciation of facts by a trial judge. While an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error of law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10, 12. This principle is equally applicable to orders concerning child custody: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12.”
April 13, 2021 – Continuing Conflict Not A Material Change
“The conflict here began when the parties separated. It continued throughout the litigation, and it was considered and anticipated by Kaufman J. A continuation of the conflict does not establish a material change in circumstances. This court confirmed this principle in Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a situation where “conflict between the parties was, regrettably, the norm”. At paras. 36-37, the court said:
According to the trial judge, “since the birth of their child, the parties have been altogether incapable of cooperating with one another in order to raise [the child].” This finding is well supported by the evidence. The parties’ willingness to work through a parenting coordinator does not detract from that finding; rather it reinforces it, given one was necessary to begin with and given this regime quickly deteriorated and proved unworkable. It follows that … the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of [the original] order.”
April 12, 2021 – Interpreting Contracts
“The Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53 (CanLII), [2014] 2 S.C.R. 633 re-examined the principles regarding contractual interpretation. The parties did not provide me with Sattva at first instance and I therefore asked for further submissions regarding same. At paras. 47 and 48 of Sattva, the court stated:
Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 (CanLII), [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII), [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract 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. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:
No contracts are made in a vacuum: there is always a setting in which they have to be placed… In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
(Reardon Smith Line, at p. 574, per Lord Wilberforce)
The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71 (CanLII), 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):
The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. [p. 115] [Emphasis added.]
At paragraphs 56 to 58 of the same decision, the court also stated:
The Role and Nature of the “Surrounding Circumstances”
I now turn to the role of the surrounding circumstances in contractual interpretation and the nature of the evidence that can be considered. The discussion here is limited to the common law approach to contractual interpretation; it does not seek to apply to or alter the law of contractual interpretation governed by the Civil Code of Québec.
While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997),1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).
The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [Emphasis added.]”
April 9, 2021 – Children’s Interests & Views Into Account
“The importance of taking children’s interests and views into account in decisions involving them was well summarized by Audet J. in N.H. v. J.H. , 2018 ONSC 4436, as follows at para 44:
A child’s views and preferences with regards to decisions affecting him or her, while clearly a factor to be considered since the coming into force of the Children’s Law Reform Act, have in recent years taken a much more prominent role than they ever did in parenting disputes. This is evidenced by the recent changes in the Child, Youth and Family Services Act, S.O. 2017, c. 14, sch. 1, which, while not applicable here, have put a child’s views and wishes at the top of the list of factors to be considered when assessing a child’s best interests. The importance of children’s right to express their views and preferences, and for those to be considered by the court in making decisions affecting them, has been discussed at length in various recent decisions including by Justice Kukurin in Children’s Aid Society of Algoma (Elliot Lake) v. P.C.-F., 2017 ONCJ 898, and is further demonstrated by the development in Ontario of the Katelynn’s Principle (Ontario Bill 57) and the Voice of the Child’s Reports which are now available as part of the services offered by the Office of the Children’s Lawyer.
In Carter v. Mackie, 2017 ONCJ 541, Justice Jane Caspers described Katelynn’s Principle” as follows:
134 On April 29, 2016, the Coroner’s Jury, at the end of the Inquest into the Death of Katelynn Angel Sampson, cited as its first recommendation what has come to be known as “Katelynn’s Principle”.
“Katelynn’s Principle” states that
“A child must be at the centre where they are the subject of or receiving services through the child welfare, justice and education systems.
A child is an individual with rights:
* Who must always be seen
* Whose voice must be heard
* Who must be listened to and respected
…
Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.
A child’s view must be given due weight in accordance with the age and maturity of the child…”
135 Children involved in any type of family case – whether to remove them into care or disputes about child care and parenting arrangements following divorce or separation – must be able to have their views heard when decisions are made that will affect them.
The views and preferences of the child have long been a factor in the determination of parenting issues. However those views and preferences are but one of many factors in the determination of a child’s best interests in judicial parenting decisions. The numerous factors that a court may consider in determining how much of a child’s wishes should guide the court’s decision making were summarized by the Ontario Court of Appeal in Decaen v. Decaen, 2013 ONCA 218 as follows:
42 In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.
A child’s views and preferences gain greater weight as the child gets older and more mature. As Sheard J. stated in Clark v. Moxley, 2017 ONSC 4971 at para. 50, in regard to the wishes of a 12 year old boy: “…it is the duty of this Court to determine Noah’s best interests, even if to do so may not align with his stated views and preferences.” In Kemp v Kemp, [2007] OJ No 1131 (S.C.J.), Blishen J. stated:
The weight to be given to the child’s stated preference depends on the facts of the case, and is a function of age, intelligence, apparent maturity and the ability of the child to articulate a view. See Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. No. 4253.
As well, courts must always assess the independence of the views that children express. If they are not independent, they will be given little weight (Fielding v. Fielding, 2013 ONSC 5102 at para. 168, affd., 2015 ONCA 901).”
April 8, 2021 – RESPs Not Subject to Equalization
“An R.E.S.P. does not form part of the property of either spouse to be equalized pursuant to section 5 of the Family Law Act. R.E.S.P.’s have generally not been included as property for equalization. Given how broad the definition of property is under section 4 of the Family Law Act, it is quite clear that courts have implicitly recognized the trust relationship in relation to R.E.S.P.’s. If the R.E.S.P. was the property of the party both in title and in beneficial interest, the courts would not have tacitly accepted its exclusion from the net family property calculation. Similarly, if the R.E.S.P. was the property of any one parent without the children having a beneficial interest in it, courts would have more difficulty justifying removing an R.E.S.P. owner from the title of the account. In Shillington v. Lyne, McDermott J. stated:
This is an R.E.S.P. account for the children in Ms. Shillington’s name alone. There was a concern as to whether this account is subject to equalization, as the account would be available to Ms. Shillington to use for the children’s education, which would defer her share of the children’s educational costs in the future. In respect of this issue, Mr. Dunsmuir filed several cases, Widmeyer v. Widmeyer [2007] ONSC 59502 (CanLII) and Savage v. Savage 2007 ONSC 1900 (CanLII). In both of those cases, R.E.S.P.s were found not to be net family property, but the presiding justice ordered that those funds were to be held in trust for the children. I adopt this solution in the present case.”
April 7, 2021 – Partial, Substantial and Full Indemnity Costs
“Let me begin with a general comment about costs awards. The lawyers will know this but Ms. Kadonoff, who was for the most part self-represented, may not. Costs awards are in the court’s discretion. The Rules provide for three levels of costs: partial indemnity; substantial indemnity which is defined in the Rules as 1.5 times partial indemnity; and full indemnity which is self-explanatory.
In practice, and in accordance with both the Rules and the decisions of the Court of Appeal, the usual costs award is partial indemnity. One of the principles underlying the litigation system in this province is that litigation is not cost-free and the winning party will normally only recover a portion of its actual legal costs from the losing party – generally somewhere between one-third and one-half. The next costs level, substantial indemnity, is only awarded in three situations: where this is specified by contractual agreement; where there are settlement offers that trigger Rule 49; or if conduct of the losing party was “reprehensible” or “outrageous” and thus deserving of sanction.
Provided that one litigates within the Rules, albeit aggressively and relentlessly and in a manner that may well upset the other side, this by itself will not amount to “reprehensible” behaviour. Courts generally require evidence of abuse of process or malice or some form of conduct that is otherwise “egregious.” Substantial indemnity may then be awarded as a form of chastisement and sanction.
In sum, the norm is partial indemnity; substantial indemnity is possible but much less frequent; full indemnity is rarely awarded.”
April 6, 2021 – Staying An Order Pending Appeal
“…the test for staying an order pending appeal derives from r. 63.02 of the Rules of Civil Procedure. That requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18.
The test is cumulative, meaning the appellant must satisfy all three prongs in order to achieve a stay. Moreover, the appellant carries the burden of proof.”
April 5, 2021 – Status Review Applications
“The following summary of the law to be applied on a status review application was set out in Catholic Children’s Aid Society v. S. (B.L.), 2014 CarswellOnt 12921 at para. 83 (Ont. S.C.J.):
a. In a status review hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made.
b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection.
c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.)
d. Secondly, the court must consider the best interests of the child.
e. The analysis must be conducted from the child’s perspective.
The court is governed by the provisions contained within the Child Youth and Family Services Act, S.O., 2017, Chapter 14, Schedule 1 [“CYFSA”], which came into force on April 30, 2018. Under the transitional provisions set out in section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the previous legislation, the CFSA, but not concluded prior to the coming into force of the CYFSA shall continue as a proceeding under the CYFSA.
Section 114 of the CYFSA provides that where, as here, a status review application is made under section 113, a court may, in the child’s best interests:
a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;
b. order that the original order terminate on a specified future date;
c. make a further order or orders under section 101; or
d. make an order under section 102.
Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:
1. that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;
2. that the child be placed in interim society care and custody for a specified period not exceeding 12 months;
3. that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;
4. that the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,
5. that one or more persons be granted custody of the child, with the consent of the person or persons.
Sections 101(2), 101(3) and 101(4) of the CYFSA require the court to consider additional factors when determining the issue of placement. These factors include whether there are any less disruptive alternatives such as community or extended family placements. The court must also consider what efforts the society has made to assist the child before intervention.
The court’s decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.
The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.”