Author: dawi

“Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 confirms that different standards of review apply depending on the nature of the issue. For a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings).

For a mixed question of law and fact, if it involves the trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge’s interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.

An appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law. An appeal court is not entitled to overturn a trial judge’s decision simply because it would have made a different decision or balanced the factors differently. (See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 per L’Heureux-Dubé J.; Van de Perre v. Edwards, 2001 SCC 60 (CanLII), [2001] 2 S.C.R. 1014 at paras. 11 and 12 per Bastarache J.) Bastarache J. in Van de Perre, supra, went on to state (at para. 15):

… the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6 (CanLII), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [1999] S.C.C.A. No. 117, [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.”

Children’s Aid Society v. REA, 2009 CanLII 55338 (ON SC) at 67-69

“Supervised access is not intended to be a long-term arrangement for a child.  It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm.  See Najjardizaji v. Mehrjerdi, 2004 ONCJ 374(CanLII), 136 A.C.W.S. (3d) 493, [2004] O.J. No. 5472, 2004 Cars­well­Ont 5656 (Ont. C.J.).

The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position.  The greater the restriction sought, the more important it becomes to justify that restriction.  See Margaret A. v. John D., 2003 CanLII 52807 (ON CJ), 2003 CanLII 52807, 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 Cars­well­Ont 2793 (Ont. C.J.).”

Burnett v. Ffrench, 2011 ONCJ 527 (CanLII) at 17-18

“The suggestion was raised that the finding of contempt may be an interlocutory order rather than a final order in which case this court would be without jurisdiction to entertain this appeal.

We disagree. This court has consistently held that a finding of contempt is a final order. See Bassel’s Lunch Ltd. v. Kick et al., 1936 CanLII 104 (ON CA), [1936] O.R. 445; International Beverage Dispenser’s Union Local 280 v. Kilgoran Hotels Ltd.(c.o.b. Brunswick Hotel), [1970] O.J. No. 389.”

Bush v. Mereshensky, 2007 ONCA 679 (CanLII) at 9-10

“The mother’s substantive ground of appeal is that Ferguson J. should have given effect to Article 13(b) of the Hague Convention and refused to enforce the Georgia court’s order.

Article 13(b) of the Hague Convention, upon which the mother relies, does not directly apply to the proceedings. Article 13(b) provides:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

…

b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

As can be seen, Article 13(b) constitutes an exception to the obligation of a requested state to order the return of the abducted child. In this case, there was no request for the return of the child under the Hague Convention. The father’s motion was to enforce the order of the Georgia court under s. 41 of the Children’s Law Reform Act. He did not invoke the Hague Convention. The Supreme Court of Canada in Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] S.C.J. No. 6 at para. 93 made it clear that domestic legislation and the Hague Convention operate independently of one another.

In any event, the mother can rely on s. 43 of the Children’s Law Reform Act. Section 43 provides:

43.  Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if,

(a) the child remains in the custody of the person legally entitled to custody of the child;

(b) the child is returned to the custody of the person entitled to custody of the child; or

(c) the child is removed from Ontario.

Decisions of the lower courts are conflicting as to whether the Children’s Law Reform Act applies when the states involved are signatories to the Hague Convention. In my view, the rationale of the Thomson case – that the two regimes operate independently – leads to the conclusion that the mother can invoke s. 43. In any event, as the court stated in Thomson at para. 93, in cases involving domestic legislation “it may not be improper to look at the Convention in determining the attitude that should be taken by the courts” and at para. 79, that “the inconsistencies between the Convention and the [Manitoba] Act are not so great as to mandate the application of a significantly different test of harm.” The Manitoba provision before the court in Thompson is in substance much the same as Ontario’s s. 43.”

Ireland v. Ireland, 2011 ONCA 623 (CanLII) at 42-46

“The wife alleges that the trial judge erred in upholding the cohabitation agreement because the release of support does not meet the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) She also submits that he erred in calculating income for child support.

In Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, the Supreme Court of Canada set out a two-stage analysis to be applied in dealing with initial applications for spousal support in the face of a release. The first stage considers the circumstances at the time the agreement was created. This stage of the analysis is subdivided into two parts:

(1) A consideration of the circumstances surrounding negotiation and execution of the agreement to determine whether there is any reason to discount it.

(2) A consideration of the substance of the agreement to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time of its formation.

The second stage of Miglin requires the court to consider, at the time of the application for spousal support, whether the applicant has established that the agreement no longer reflects the original intention of the parties, and whether the agreement is still in substantial compliance with the objectives of the Divorce Act.

The objectives of the Divorce Act include “certainty, finality and autonomy”: Miglin at para. 4. Subsection 15.2(6) of the Divorce Act states that a spousal support order should:

(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Smith v. Smith, 2017 ONCA 759 (CanLII) at 6-9

“Robert argues that the board of Mandrake Management Consultants refuses to release its financial statements to him. This is not a sufficient excuse. In Di Luca v. Di Luca (2004), 1 R.F.L. (6^th) 162 (Ont. S.C.J.) at paragraphs 12-15, Stewart J. held that if it is necessary to obtain information in the possession of a third party in order to discharge the obligation to make full financial disclosure, then steps should be taken by the party upon whom the obligation to disclose rests to do so. Stewart J. specifically addressed the argument Robert makes, writing, “In the family law context, where early and complete financial disclosure is not only encouraged but demanded, I am of the opinion that a party who has been unable to obtain access to the documents and information necessary to comply with that obligation must resort to a motion under Rule 30.10 to gain access to the necessary material and cannot say that the opposing party is obligated to do so . . . If those third parties continue to refuse to provide the documentation and information necessary to allow [the spouse with the obligation to disclose] to comply, she must seek an order of the Court to compel production.” It was part of Robert’s obligation under the Family Law Rules to seek an order of the court to compel disclosure from Mandrake Management Consultants and the other corporations noted above.”

Peerenboom v. Peerenboom, 2018 ONSC 5796 (CanLII) at 30

“The Applicant’s request raises two arguments for an annulment – one being that the marriage was not consummated, and the second being that the Respondent only married her for immigration purposes. Both of these arguments, if successful, would result in the marriage being voidable. In other words, the marriage is treated in law as a valid and subsisting marriage unless and until it is annulled by a Court.

Based on the evidence before me, neither of the above arguments allow an annulment to be granted in this matter.

Historically, annulments based on non-consummation have required evidence of permanent physical impotency. This has been expanded to include evidence of psychological factors that effectively create a permanent psychological impotency. Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient.

Based on the evidence before me, I do not find that a permanent impotency exists that would allow an annulment based on non-consummation. Rather, the evidence supports a finding of wilful refusal on the part of the Respondent to consummate the marriage. This is not sufficient.

With respect to the immigration issue, the Ontario Court of Appeal has held in its decision in Iantsis (Papatheodorou) v. Papatheodorou⁵that immigration fraud cannot be relied upon to grant an annulment.”

Doiron v. Lawson, 2018 ONSC 5744 (CanLII) at 8-12

“The daughters are not speaking to their father, and the mother seeks a contribution for section 7 expenses. Therefore, the mother must provide sufficient information about the means, needs and other circumstances of the adult daughters to allow the court to determine the contribution from the children, and the reasonableness of the expenses.

I consider the factors set out by Justice Chappel in Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII), at para. 157 as a useful guide to relevant factors in the context of adult children’s section 7 expense payments:

The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors [internal citations omitted]…:

1.   Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

2.   Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3.   The ability of the child to contribute to their own support through part time employment.

4.   Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

5.   In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

6.  The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.

7.   The age, qualifications and experience of the child.

8.   The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

9.  Whether the child is performing well in the chosen course of studies.

10.  What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.  In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

11.  The means, needs and other circumstances of the parents and the child.

12.  The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.  If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.”

Almeida v. Malek-Gilani, 2018 ONSC 5699 (CanLII) at 34-35

“Section 14 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that “[o]n taking effect, a divorce granted under this Act dissolves the marriage of the spouses.”

In the ordinary course, the effect of s. 12(1) of the Divorce Act is that a divorce takes effect on the 31st day following the judgment granting the divorce. In the intervening period, the parties are still married. If one of the parties dies during that period, the judgment granting the divorce cannot take effect: see Re Kindl (1982), 1982 CanLII 2049 (ON SC), 39 O.R. (2d) 219 (S.C.), at p. 224; L. (M.) v. C. (J.-P.) (1997), 1997 CanLII 10775 (QC CA), 145 D.L.R. (4th) 739 (Que. C.A.), at p. 740.

In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage.”

White v. White,2015 ONCA 647 (CanLII) at 10-12

“Parents involved in high conflict custody and access disputes typically fail to see the harm that they cause to their children, often believing that they are fighting for the best interests of the children. The evidence is clear that intense conflict causes significant harm to children. Parents are often unaware of this important fact. For this reason, I will quote at length from Jackson v. Jackson, (2008) 2008 CanLII 3222 (ON SC), 50 R.F.L. (6^th) 149 (Ont. Sup. Ct.) at paras. 7 and 20. In Jackson, the Court reviews social science evidence detailing the toxicology of conflict.  In particular, the Court refers to Glenn A. Gilmour’s paper, ‘High-Conflict Separation and Divorce: Options for Consideration,’ prepared for the Department of Justice, Canada:

In this paper, Mr. Gilmour summarized the factors which contribute to impasse and conflict. These factors were identified by Johnston, Campbell and Tall (1985) using data on 80 divorcing families with 100 children, to develop a typology of factors contributing to impasse in divorce. Mr. Gilmour’s summary of these factors is worth quoting in full:

At the external level are unholy alliances and coalitions -the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse’s parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other. Interactional elements include the legacy of a destructive marital relationship, in which each spouse while married had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the ex-spouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other; a need to ward off of helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents’ guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them…

Mr. Gilmour concludes, based on his review of numerous studies on parental conflict, that: “the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.” His conclusion mirrors that of others in the field. In High Conflict Family Court Cases: Working for the Child’s Best Interests, published in Australian and New Zealand Journal of Family Therapy, v. 24, no. 2 Jun 2003 at pp. 95-101, Read, L. concludes: “High levels of parental conflict in separated families can have a devastating impact on children and their development.”

Parham v. Jiang, 2013 ONSC 6003 (CanLII) at 30