Author: dawi

“All levels of government in Canada have issued health guidelines strongly urging people to become fully vaccinated – to protect themselves and to protect others in the community from contracting COVID-19. Vaccination is now the most important public health measure in fighting the pandemic. All levels of government have placed restrictions on the activities of persons who are unvaccinated to protect the general public – including requiring persons who work for the government to be fully vaccinated.

There is no question that the children are at a higher risk of contracting COVID-19 while in the father’s care because he is unvaccinated and that they have increased exposure to dangerous health consequences that can arise from contracting this virus.

In A.G. v. M.A., 2021 ONCJ 531, a mother sought to suspend the father’s in-person parenting time with their child because the father had only had a single vaccination. Following B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, (affirmed on appeal, 2021 ONSC 6294), Justice Robert Spence took judicial notice that the harm to a child flowing from contracting a vaccine-preventable disease may include death. He found that the father not being fully vaccinated increased his risk of infection for COVID-19 and potentially exposed his child to an increased risk of infection.

A.G. was followed by this court in L.S. v. M.A.F., 2021 ONCJ 554. The court will follow it again here.”

            S.W.-S. v. R.S., 2021 ONCJ 646 (CanLII) at 31-33

“The jurisprudence has provided a series of factors to be considered in determining whether or not to make a joint custody order, now termed a decision-making responsibility order, such as:

(a)   The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620(Ont. C.A.), at para. 11.

(b)   Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must consider the nature, extent and frequency of conflict. If conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate: see Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.).

(c)   One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation: see Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 15.

(d)   Where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436 and Fraser v. Fraser, 2016 ONSC 4720.

(e)   In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436.”

Zychla v. Chuhaniuk, 2022 ONSC 6884 (CanLII) at 33

“Rule 24(18) of the Family Law Rules, O. Reg. 114/99, allows the court to “make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees”.

The purpose of an award for interim disbursements is “to level the playing field to ensure that meritorious claims in the family law context are not abandoned or forfeited by those who lack financial resources and, as a result, are at a significant financial disadvantage relative to the other party in the proceeding”: Morton v. Morton, 2015 ONSC 4633 (Ont. S.C.J.), at para. 98.

Rule 24 evidences a less stringent approach in the family law context than is the case in public interest litigation. Consistent with the primary objective, r. 24 seeks to ensure the just determination of the issues between the parties, and recognizes that there may be circumstances where one party cannot afford to seek justice on meritorious claims given the disparity in financial resources available to that party: Morton, at para. 99.

On a motion seeking interim disbursements, the moving party must demonstrate:

a.   The interim disbursements for which an advance payment is requested are important to matters in issue in the proceeding as a whole;

b.   The disbursements are necessary and reasonable given the needs of the case and the funds available. If the disbursements are for payment of an expert, the moving party must demonstrate a clear need for the services of the expert;

c.   The moving party is incapable of funding the requested amounts;

d.   The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements; and

e.   The imposition of the payment on the responding party will not cause undue hardship to the payor: Morton, para. 97, citing Stuart v. Stuart, [2001] O.J. No. 5172(Ont. S.C.J.), at paras. 7, 11-13.

It is no longer necessary to find exceptional circumstances to order interim disbursements under the Family Law Rules. The order is a discretionary one. The court must ensure the primary objective of fairness under the Family Law Rules is met: Ludmer v. Ludmer, 2012 ONSC 4478 (Ont. S.C.J.), at para. 15.

The court’s discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial — in other words, to level the playing field: Stuart, at para. 8; Ludmer, at para. 16.

An order for interim disbursements should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate: Stuart, para. 8; Ludmer, para. 16.”

            Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074 (CanLII) at 11-15

“Family Law Rules 18 and 24 are most pertinent to a costs determination. Rule 18 relates to offers to settle. Rule 24 lists the factors that a judge must consider when determining costs.

While these rules have not eliminated judicial discretion, they nonetheless circumscribe the broad discretion previously granted to the courts in setting costs: Jackson v. Mayerle (2016), 2016 ONSC 1556 (CanLII), 130 O.R. (3d) 683 at para. 19 (S.C.J.).

Rule 24(1) is the starting point in a costs analysis: Scipione v. Del Sordo, 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 at para. 18 (S.C.J.). It provides that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal. The presumption in Rule 24(1) can, however, be rebutted if the successful party has behaved unreasonably during the case or if success is divided: Wylie v. Leclair, 2003 CanLII 49737 (ON CA), [2003] O.J. No 1938, at para. 24 (C.A.).

Consequently, Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate: Arthur v. Arthur, [2019] O.J. No. 3494 at para. 14 (S.C.J.)

Justice Pazaratz wrote at paragraph 66 in Jackson v. Mayerle that, “[d]ivided success” does not necessarily mean “equal success.” And “some success” may not be enough to impact on costs.”

Justice D. Chappel articulated the court’s task at this point at paragraph 14 of Arthur v. Arthur:

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239 (CanLII), [2012] O.J. No. 1830 (O.C.J.))

Determining Success

Justice Pazaratz wrote the following about this process at paragraph 22 of Jackson v. Mayerle:

“To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made (Lawson v. Lawson, [2008] O.J. No. 1978, 2008 CanLII 23496 (S.C.J.)).

Therefore, to determine which of the parties has been successful or, if both were to some extent, I begin by comparing the order I made to the parties’ settlement offers.”

            MacGougan v. Bill, 2023 ONSC 6823 (CanLII) at 17-24

“The principles governing a bare trust are not in dispute.   They are set out in Rubner v. Bistricer, 2019 ONCA 733.

Those requirements are: (1) the parties have capacity; (2) there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; (3) the trustee must hold legal title to the trust property; and (4) the required formalities must be met.  The trustee holds the property without any active duties to perform other than to convey the trust property to the beneficiaries on demand.”

          Lokhandwala v. Khan, 2021 ONSC 7974 (CanLII) at 18-19

“The Mother is right to say that the lower courts were bound to apply the principle of the best interests of the child to the problem at hand and to do so from the child’s‑eye point of view. But she misconstrues, in my respectful view, how the Ontario legislature has directed courts to apply the best interests principle to the question of jurisdiction over children who are wrongfully retained in Ontario.

Section 19 sets the objectives for the law relating to decision‑making responsibility and parenting time in Part III of the CLRA, including applications for the return of wrongfully removed children to countries party to the Hague Convention (s. 46(2)) and non‑Hague Convention countries (s. 40). In addition to discouraging child abduction, the legislature seeks to ensure that the child’s best interests are paramount to the making of ultimate parenting orders and that parenting determinations be made in the place to which the child has the closest connection, barring exceptional circumstances.

The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests. The analysis of the jurisdictional questions contemplated in s. 40, including the risk of serious harm in s. 23, starts from this ordinary alignment of best interests and focuses on factors that would tend to establish, as an exception, serious harm if the child was returned. Contrary to the Mother’s position, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based best interests test as is conducted for a parenting order on the merits.

The approach advocated for by the Mother risks conflating decisions on jurisdiction with custody decisions on the merits and would encourage forum‑shopping in future cases. This would reduce these decisions, as Hourigan J.A. wrote in the Court of Appeal, “to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety” (2021 ONCA 614), 158 O.R. (3d) 481, at para. 79). Worse still, it would invite wrongful abductions to the province for the purpose of grounding jurisdiction there which, as Chamberland J.A. once wrote in a Quebec case, would encourage parents [translation] “to take the law into their own hands and go to another jurisdiction in the hope, whether conscious or not, that the courts there will be more receptive” (Droit de la famille — 3451, [1999] R.D.F. 641 (Que. C.A.), at p. 647, cited with approval in a non‑Hague Convention abduction case in Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849, at para. 46). While the trial judge did not find in this case that the Mother’s disinclination to return was itself the cause of serious harm, it bears recalling that, in both Hague and non‑Hague Convention settings, the courts recognize that a parent should not be allowed to create a situation that is potentially harmful to the child and then rely upon it to establish a risk of harm to the child (see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 91). Finally, the Mother’s characterization of UAE law as an inherent source of serious harm must be rejected. Expert evidence accepted by the trial judge led him to conclude that the best interests principle would apply to the ultimate custody decision before a UAE court. As Hourigan J.A. observed, “the rather provincial view that unless Ontario law is applied, children will suffer serious harm” could have the unwitting effect of turning Ontario into a haven for child abduction (para. 83; see also para. 136, per Brown J.A., concurring).

The trial judge was called upon to decide the fact‑specific, highly individualized question as to whether these two children would suffer serious harm if removed from Ontario. He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm. Based on expert evidence relating to the differences between Ontario and UAE law, the judge determined the best interests of the two children will be the paramount consideration for determining custody in a UAE court. In the absence of a reviewable error, his decision that the serious harm threshold was not met is entitled to deference, as explained by the majority of the Court of Appeal. The custody dispute — undecided here — should be resolved by the courts in the UAE, where the children have their closest connection.”

            F. v. N., 2022 SCC 51 (CanLII) at 7-11

“The assessment of witness credibility and reliability is not an exact science.  There are many considerations relevant to the weighing and assessment of these matters.  These include a consideration of the witness’s coherence and logic, corroborating testimony by other witnesses, and corroborating documentary evidence.  Other considerations include a witness’s willingness or disinclination to make admissions and the extent to which they are clear or evasive.  In addition, the witness’s relationship to one or both parties and whether the witness has a vested interest in the case are also relevant considerations: see for example, Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII), at para. 28.”

          Faizian v. Ashouri, 2023 ONSC 6703 (CanLII) at 16

“In Minish v. Timmons, 2021 ONSC 7622, Justice Lacelle refers to the direction provided by the Court of Appeal in Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 as it relates to the application of the Child Support Guidelines for children at the age of majority as follows:

46 I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:

• • • • • • The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
          • It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
          • Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
          • Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
          • While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute (para. 159);
          • As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
          • Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
          • The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
          • In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions (para. 157).

47 Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn–Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”

          Moore v. Lemmon, 2023 ONSC 6735 (CanLII) at 41

“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion. To summarize the legal considerations reviewed by Pazaratz, J., starting at paragraph 48:

1. 1. 1. 1. 48. To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
            49. The first step: There must be a material change in circumstances since the last order was made.

a.   There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b.    The change must materially affect the child.

c.    It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.  The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S.[2011] SCC 64.

d.    The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e.    If there is no material change in circumstances, the inquiry ends.  The court would be without jurisdiction to vary the order.  Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f.      If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

1. 1. 1. 1. 50. The second step:

a.    If a material change in circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.

b.    In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c.    The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. 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. Gordon v. Goertz; Young v. Young2003 CanLII 3320 (Ont. CA).

d.    The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).

e.    Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.

….

1. 1. 1. 1. 52. The added complication: the father seeks a temporaryvariation of a finalparenting order.  This requires that the court conduct an even more stringent analysis:

a.     In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order.  The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.      And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis.  If the general rule is that we are reluctant to change temporaryorders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.     But the evidentiary basis to grant such a temporary variation must be compelling.

f.      The court must start with the aforementioned two-part material change in circumstances analysis.

g.    But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.    The onus on the party seeking a temporary variation is onerous.  They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being.  They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i.      The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.      The court must be satisfied that the existing order has come to be demonstrably contraryto the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.    Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l.      And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.   On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril.  After that, priority switches to rescuing and protecting the child.  And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test. (Emphasis added).

Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.”

          Kumurdjieva v. Cerasuolo, 2023 ONSC 6687 (CanLII) at 6-8

“Nesting orders are not common.  In Chaudhry v. Meh, 2019 ONSC 6101 (CanLII), at para 10, the court described the purpose of a nesting order as follows:

A nesting order may be in the child’s best interests where it keeps the child in the matrimonial home, while rotating the parents in and out, to maintain the continuity of the parents’ involvement while minimizing the disruption to the child.  However, nesting orders have been rejected where they create opportunities for conflict or perpetuate conflict between the parents.  Where the parties have lived in the same home with little interaction and little conflict, a nesting order made be appropriate, Grandy v. Grandy, 2012 NSSC 316 at paras 33, 35.

As always, the primary consideration is the best interests of the child.”

              L.T.C. v. D.P., 2021 ONSC 7806 (CanLII) at 27-28