“The husband also asks this court to set aside the costs order of Snowie J. dated February 1, 2013, which ordered costs in favour of the wife on a full indemnity basis in the amount of $90,616.91 for fees and $10,724.89 for disbursements. The wife argues that this court cannot consider the costs order of Snowie J. without leave to appeal. However, the general principle is that, when an appeal is allowed, the order for costs below is set aside and the costs below and the costs of the appeal are awarded to the successful appellant: St. Jean (Litigation Guardian) v. Cheung, 2009 ONCA 9 (CanLII); Hunt v. TD Securities Inc. (2003), 2003 CanLII 48369 (ON CA), 43 C.P.C. (5th) 211 (Ont. C.A.). Leave to appeal is not required if the substantive disposition is different from that of the decision under appeal: Dines v. Harvey A. Helliwell Investments Ltd., [1992] O.J. No. 2107 (Ont. C.A.).”
Author: dawi
October 22, 2019 – Significance of Not Making An Offer
“The motion judge also gave undue weight to the respondent’s offer to settle, along with the appellant’s failure to make an offer to settle. Although I accept that the presence or absence of offers to settle can properly be taken into account in fixing costs, it remains the fact that the appellant was not under any obligation to proffer an offer to settle. Further, before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. The case here was not a situation where the issues could have been settled in any practical way. Either the appellant was going to be able to proceed with his constitutional claim or he was not. There was no way of compromising on that central issue. Consequently, this was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs.
That salient point also impacts on the respondent’s offer to settle. Her offer to settle does not reflect a compromise, given that it included a requirement that the appellant completely abandon his constitutional argument. It is recognized that the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs. In addition, judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged. Even under r. 24(5)(a) of the Family Law Rules, it is but one factor that is to be considered.”
October 21, 2019 – Best Interests of Child
“In summary, as a matter of statutory interpretation, the Divorce Act mandates that, in decisions of custody and access, the sole consideration be the best interests of the child. The focus must remain at all times on the child, not the needs or interests of the parents, and parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child.
The custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well‑being of the child. Parental authority rests with the custodial parent, not for his or her own benefit, but in order to enable that parent to discharge effectively the obligations and responsibilities owed to the child.
As set out in the Act, maximum contact between the child and the non‑custodial parent is a worthwhile goal which should be pursued to the extent that it is in the best interests of the child. Generous and unrestricted access, which is the norm, should be favoured except when such access would not be in the best interests of the child. However, ongoing conflict between parents which adversely affects the child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce.
The best interests of the child must be approached from a child‑centred perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.
Where the question of restrictions on access arises, the best interests of the child must be determined by considering the “condition, means, needs and other circumstances of the child” as required by the Act. The totality of these circumstances must be considered. Nothing in the Act suggests that harm should be the controlling factor. To adopt the harm standard would be to invert the focus of the best interests test and place the risk of error on the child, contrary to the objectives of the Act.”
Freedom of religion and expression are fundamental values protected by the Charter. However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter. The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access. While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”
Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé.
October 18, 2019 – Family Law Not A Game
“In hockey, repeatedly “ragging the puck” will garner a penalty for delay of game. Ignoring the officials will also accrue negative consequences to the offending player. In family law litigation, some parties regrettably choose to engage in similar tactics. But family disputes are not a game. They involve the lives and vital interests of real people. This concern becomes particularly acute when there are children involved.
The Family Law Rules are intended to promote fairness and efficiency in dealing with disputes that come before the Courts. The Parties are often given multiple chances to do what they ought to have done in the first instance. Sometimes failure to comply with orders of the Court arises because one of the parties struggles with very limited financial resources. In other cases, however, Parties who are possessed of financial means that would be the envy of the great majority of persons who come before the Court in family law cases choose to cynically game the system.
Judges are (rightly) patient. They are slow to invoke the more drastic remedies provided for in Rule 1(8). The appellate jurisprudence understandably counsels patience and caution in this regard.
However, there comes a time when judicial patience cannot be infinite. This is particularly so when it is evident that one of the parties is acting in cynical noncompliance with court orders, or is banking on judicial patience and indulgence to “rag the puck” and conduct a campaign of attrition against the other party. That is the case in this case.”
October 17, 2019 – Material Change In Circumstances
“In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, the court must consider whether the alleged change was “significant and long lasting; whether it was real and not one of choice” (Brown v. Brown, 2010 NBCA 5 (CanLII), 2010 CarswellNB 30 (C.A.); Haisman v. Haisman, 1994 ABCA 249 (CanLII), 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Furthermore, as in the case of variation of spousal support, the change must be material, and must have been unforeseen when the existing order was made (Willick v. Willick, (1994), 1994 CanLII 28 (SCC), 6 R.F.L. (4th) 161, [1994] S.C.R. 670 (S.C.C.); Stevenson v. Smit, 2014 CarswellOnt 9001 (C.A.)). The exception to the requirement that the change be unforeseen is where the request is for a termination of child support based on a loss of entitlement to support. In those circumstances, the proceeding is essentially a matter of giving effect to the intent that the original order would only continue for so long as entitlement existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)).”
October 16, 2019 – Contempt of Court
“For there to be a finding of contempt, the Order must be a valid and existing Order and must be clear and unequivocal and the alleged contemnor must have willfully disregarded the Order.
The Supreme Court in Carey v. Laiken 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79 set out the three requirements for civil contempt to be established:
32 Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2006),2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para. 71; Bhatnager v. Canada (Minister of Employment and Immigration), 1990 CanLII 120 (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112 (CanLII), 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105 (CanLII), 196 N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54 (CanLII), 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11 (CanLII), 298 N.S.R. (2d) 303, at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11.
33 The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., 2004 CanLII 32262 (ON SC), 2004 CanLII 32262 (Ont. S.C.J.), at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151 (CanLII), 326 D.L.R. (4th) 463, at para. 21.
34 The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).
35 Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels:Sheppard v. Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8. The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily.”
Quattrociocchi v. Quattrociocchi, 2018 ONSC 6068 (CanLII) at 9-10.
October 15, 2019 – Summarizing Balev
“The Supreme Court of Canada has recently considered and provided direction about applications pursuant the Hague Convention in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII).
The majority of the court noted, at para. 28, that,
the heart of the Hague Convention’s prompt return mechanism is Article 3….Crucially…the concept of habitual residence is not defined in the treaty,
and further, at para. 29,
If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:
1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
2) There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
3) The child of sufficient age and maturity objects to being returned (Article 13(2));
4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and
5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
The majority considered three different approaches for determining a child’s habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.
With respect to “the parental intention approach”, the majority noted that this approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.
In relation to “the child-centred approach”, the majority observed, at para 41, that,
The child-centred approach determines a child’s habitual residence Article 3 by the child’s acclimatization in a given country, rendering the intentions of the parents largely irrelevant. It is backward-focused, looking to the child’s connections with the state, rather than the more forward-looking parental intention model.
Concerning “the hybrid approach”, which was adopted, the majority stated,
[The] hybrid approach holds that instead of focusing primarily or exclusively on the either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case (para. 42).
[The] application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention…The judge must consider all relevant links and circumstances – the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B (para. 43).
Considerations include “the duration, regularity, conditions and reason for the [child’s] stay in the territory of [a] Member State” and the child’s nationality…No single factor dominates the analysis, rather, the application judge should consider the entirety of the circumstances…Relevant considerations may vary according to the age of the child concerned: where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of” (para. 44).
The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children…However, recent cases caution against over-reliance on parental intention…parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence”…It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child…but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”…The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case” (para. 45).
The majority added,
It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal (para. 46).
The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions…It requires the application judge to look to the entirety of the child’s situation. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed. The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted (para. 47).
[As to] the question of whether under the hybrid approach a child’s habitual residence can change while he or she is staying with one parent under the time-limited consent of the other…Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement. But the judge also considers all other evidence relevant to the child’s habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot shift the child’s habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal (paras. 72 and 73).
The majority also stated,
The hybrid approach favours choice of the most appropriate forum. It focuses on the factual connection between the child and the countries in question, as well as the circumstances of the move – considerations that “mirror the closest connection test often used in determining the forum conveniens”…This allows for custody and access disputes to be adjudicated in the most convenient forum with the best available evidence…The hybrid approach thus avoids the problem that a child may be found to be habitually resident in a country with which the child has little or no connection (para. 64).
There is no conflict between the hybrid approach and the “settled in” exception under Article 12…[which] comes into play only after habitual residence is determined, and functions to provide a limited exception to the requirement that a child wrongfully removed or retained be returned to his or her habitual residence. It may be that the hybrid approach habitual residence favours returning the child, but that the one year period and settling in indicate that the child should not be uprooted and returned to his or her place of habitual residence (para. 66).
Nor does the hybrid approach “ignor[e] the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention”…Habitual residence is determined immediately prior to the wrongful removal or retention… Subsequent links are relevant only to the exception under Article 12 (para. 67).
The majority concluded,
In sum, the hybrid approach represents a principled advance on the parental intention and child-centred approaches. It recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary to consider parental intention in order to properly assess the child’s connections to a country (para. 68).
The application judge is best placed to weigh the factors that will achieve the objects of the Hague Convention in the case at hand. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi-factored hybrid approach (para. 70).
Thus, this court has been instructed to take the hybrid approach to the determination of habitual residence by means of a factual contextual analysis.”
October 11, 2019 – Lands Covered by Indian Act
“On the authority of the Supreme Court of Canada’s decision in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285 and its progeny, neither this court nor the application judge in this case have authority to make any order concerning possession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. c. I-5.
Accordingly, to the extent that paragraph 7 of the application judge’s order dated October 14, 2011 is intended to address ownership or possession of the former matrimonial home, this part of his order cannot stand. For the same reasons, all other aspects of the relief sought by the appellant must be denied.”
October 10, 2019 – Court’s Power to Make Therapeutic Orders
“With the greatest of respect, I do not agree that Kaplanis v. Kaplanis, stands for the principle that therapeutic orders should not be made without the parties’ consent. In Kaplanis, and while the court acknowledged that the legislation did not specificallyauthorize the making of a therapeutic order, it recognized that some trial judges had found inherent jurisdiction to do so without stating whether or not it agreed with their conclusion. In that case, the Ontario Court of Appeal found that the trial judge had erred in ordering the parties to attend counselling, not on the basis of lack of jurisdiction, but based on the absence of evidence that would support a finding that the parties would be able to carry out the order (no evidence that the parents would cooperate in the process, no stated process for the appointment of a counselor in case of disagreement, etc.).
Although the issue of jurisdiction was not specifically discussed by the Ontario Court of Appeal in Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5(Ont. C.A.), it is important to note that the court found no error in the trial judge’s decision to limit the alienating mother’s access to weekly therapy sessions with a psychologist in a severe alienation case.
There is a wide variety of orders that courts routinely make in the context of adjudicating on custody and access matters, the nature of which is not specifically set out in the CLRAor the DA. For instance, orders requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; whether a child will be allowed to travel to a specific country; or whether a child will be raised in a particular faith or educated in a particular language. The courts have always relied on the wide powers granted to them pursuant to sections 28 of theCLRAand 16 of the DA, and rightly so in my view, as authority for them to craft the order (including multi-directional orders) that meets the best interest of a particular child when parents cannot agree.
Rule 31(5) of the Family Law Rulesalso gives the court the power to make a therapeutic order if appropriate in the context of a contempt motion to force a non-compliant and/or alienating parent to change his or her ways as it relates to the well-being of a child (see Starzycka v. Wronski, 2005 ONCJ 329(Ont. C.J.)).
In addition to the above, rule 17(8)(b) of the Family Law Rulesspecifically confers upon the court the power to make an order at a case conference, settlement conference or trial management conference, requiring a party to attend a program offered through a community service or resource. While one may question whether the term “program” includes therapy or counselling, in light of the court’s duty to promote active management of family cases, which includes encouraging and facilitating the use of alternatives to the court process (rule 2(5)), I am of the view that a large and liberal interpretation of the word “program” so as to include some forms of therapeutic intervention is warranted and appropriate in a family law context.
A large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting, including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children. As is the case here, there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.”
October 9, 2019 – The Rule in Browne v. Dunn
“It was never put to Mr. Haifang Zhang that Ms. Huang told him that: she was afraid of Mr. Liu; was looking for a safe way to let him see CL; that Mr. Liu pushed her and physically assaulted her; and that Mr. Liu threatened her and said he would make a false allegation against her.
Given the gravity of these allegations and the clear contrast between what Mr. Haifang Zhang alleges was said to him and what Ms. Huang now says she told him regarding the assault on the date of separation, it was imperative for counsel to put these allegations to Mr. Haifang Zhang on cross-examination. Counsel failed to do so. Mr. Liu’s counsel objected to admitting Ms. Huang’s evidence on the basis of the no-ambush rule in Browne v Dunn, which requires that if a party intends to impeach a witness called by an opposite party, the party must give the witness an opportunity, while testifying, to provide any explanation the witness may have for the contradictory evidence. I find the failure here breached the rule in Browne v. Dunn. Watt, J.A. held in R. v. Quansah, 2015 ONCA 237 (CanLII) at para. 81:
Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted…It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness…(internal citations omitted).
The remedy is discretionary. As stated by the Alberta Court of Appeal in R. v. Werkman, 2007 ABCA 130 (CanLII) at para. 11: “A trial judge has a number of remedies available when the rule has been breached. One is taking into account the failure to cross-examine in assessing the witness’ credibility, and another is granting leave to call witnesses in reply.””