Author: dawi

“In Izyuk v. Bilousov, 2015 ONSC 3684, as adopted by the Divisional Court in Sabijan v Sabijan, 2021 ONSC 7605, Justice Pazaratz stated when considering whether to order security for costs, the court must turn its mind to the following:

a)        The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.

b)        If the onus is met, the court has discretion to grant or refuse an order for security.

c)        If the court orders security, it has wide discretion as to the quantum and means of payment of the order.

d)        The order must be “just” and be based on one or more of the factors listed in subrule 24(13).

(Citations omitted).

In this case, the Estate is situated outside of Ontario – in British Columbia.  Accordingly, if there is a cost order levied against the Estate, it has no assets in this province from which Garcia could collect.

Given that the first prong of the test has been satisfied, I do not need to consider whether the Estate’s claims are a “waste of time or a nuisance” in order to proceed.

When deciding whether to exercise my discretion, I have considered the following principles:

a)        Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders:  Gauthier v. Gauthier, 2019 ONCA 722 at para.  8; Izyukat para. 37;

b)        It can be inferred that an analysis under this section will include some consideration of the merits of the case, and whether it is a nuisance:  Peters v. Peters et al, 2018 ONSC 7550 at paras. 38-39;

c)        The purpose of security for costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred:  Izyukat para. 36.

d)        It is not the intention of any rule governing procedure in the court to deny access to the court by a person who has a genuineclaim and is unable to satisfy … an outstanding order for security for costs due to circumstances beyond his control:  McGraw v. Samra, 2004 ONCJ 164 at para. 23, as adopted in Pigeault v. Pigeault, 2009 CarswellOnt 1558 at para. 19;

e)        The Family Law Rules, read as a whole, yield the unmistakable intention of the Rules Committee that litigants not be permitted to use the court as a playground.  This rule is but one remedy to stop a case in its tracks until a party veering outside of the rules brings him or herself into line with them.  It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case.  It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party: McGrawat para. 24, as adopted by LW v. AW, 2011 ONSC 7596 at para. 15;

f)         Cases must be dealt with justly, which means ensuring that the procedure is fair to all parties, that it saves time and expense, that it is dealt with in a way that is appropriate to its importance and complexity and using the appropriate court resources:  r. 2(2) and r. 2(3) of theFamily Law Rules.”

          Jurrius v. Garcia, 2022 ONSC 6983 (CanLII) at 16-19

“Broad J., in the recent decision of Dauber v. Dauber, 2021 ONSC 5489, summarized the law with respect to the guiding principles on the choice of school. In that decision, at paras. 14 and 15, he quoted from Piper v. Hare, 2021 ONSC 2139, which quoted Thomas v. Osika, 2018 ONSC 2712, as follows:

[15]  The general principles guiding the court in deciding where a child shall attend school when the parties disagree were very usefully set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

a.   Sub-section 28(1)(b) of the Children’s Law Reform Actspecifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

b.   It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache,2013 ONCJ 679 (Ont. C.J.));

c.    When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

d.    The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

e.   The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

f.     Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new childcare providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

g.   The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

h.    Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

i.      A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

j.   Third-party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

k.     If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

l.     Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.));

m.   Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).

In addition, Askalan v. Taleb, 2012 ONSC 4746, set out other factors, namely assessing any impact on the stability of the child and examining how many years the child has attended his or her current school.”

            Denomme v. Denomme, 2022 ONSC 5205 (CanLII) at 42-43

“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.

The status quo means “that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.

When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. See Saini v Tuli, 2021 ONSC 3413 at para 28.

The weighing process is necessarily fact specific. In Saini, the respondent sought to take the children in that case to California for over a month—she had to travel for work and did not believe the applicant could care for them while she was away. The court dismissed her motion because the travel was not essential for the children and the respondent could care for them.

In Yacoub v Yacoub, 2010 ONSC 4259, the respondent refused to consent to the children in that case traveling to Egypt with the applicant for a month. One of the concerns he raised was the risk they would not be returned to Canada—Justice McGee gave no effect to that submission because no supporting evidence was filed. Justice McGee held that the respondent’s other concerns (prepaid day camps and a pending piano exam) were outweighed by the “one time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel”. “Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family” (at para 21).

Mahadevan v Shankar, 2010 ONSC 5608, is like this case. There, the respondent wanted to take the 4-year-old child of the marriage to India for Diwali and to visit his family. The applicant refused consent because she feared the child would not be returned to Canada. In that case, the respondent had ties to Canada—he was a tenured professor at McMaster University and living with his new partner in Hamilton. Even then, Justice Pazaratz dismissed the motion because of the risk of abduction: “The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.”

            M.D. v. A.D., 2022 ONSC 5136 (CanLII) at 28-33

“Section 31(1) FLR prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt which in this case is the father. The standard of proof is the criminal standard of proof beyond a reasonable doubt: Moncur v Plante, 2021 ONCA 462 at para 10(1); Smith v Reynolds, 2018 ONSC 7706 at para 21.

To find civil contempt, the court must be satisfied that (1) the court order alleged to have been breached states clearly and unequivocally what should or should not be done; (2) that the person alleged to be in contempt had actual knowledge of the terms of the order; and (3)  that the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras 32 to 35; Moncur v Plante at para 10(1).  Unless the contempt motion satisfies all three criteria, the motion must be dismissed: Smith v Reynolds at para 22.

The contempt power is discretionary. Even after the three criteria are met, judges retain the discretion to decline to make a finding of contempt if to do so would work an injustice or if other alternatives exist: Moncur v Plante at para 10(2); Smith v Reynolds at para 23.

In exercising their discretion, judges must keep in mind that contempt is a remedy of last resort and contempt powers should be exercised sparingly: Carey v Laiken at paras 36-37. In family proceedings, judges should consider alternatives to finding contempt unless access problems or motions for enforcement have failed: Chong v Donnelly, 2019 ONCA 799 at paras 9-12;  Hefkey v Hefkey, 2013 ONCA 44 at para 3; Moncur v Plante at para 10(2); Ruffolo v David, 2019 ONCA 385, 25 R.F.L. (8^th) 144 at paras 18-19.

When the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Moncur v Plante at para 10(3); Ruffolo v David at para 19; Dunn v Shaw, 2021 ONSC 8286 at para 47.

Factors a court may consider in exercising its discretion before finding contempt include:

a.   whether the contemnor took reasonable steps in good faith to comply with the order: Carey v Laiken at para 37; Smith v Reynoldsat para 23;

b.   whether imposing contempt would work an injustice in the circumstances of the case: Carey v Laiken at para 37; Moncur v Plante at para 10(2);

c.   the presence of exigent or extenuating circumstances: Newstead v Hacey, 2019 ONSC 5213 at paras 12 and 30;

d.   whether alternatives exist such as finding a breach of the order and imposing other remedial options: Moncurat para 10(3) and 19; Dunn v Shaw at paras 33-34, 46; Jean v O’Callaghan, 2017 ONSC 4027 at paras 25 and 31; Hassan v Khalil, 2022 ONSC 3316 at paras 36 and 38; Ruffalo v David at para 19; and

e.   whether the defiant conduct is severe or significant: Jackson v Jackson2016 ONSC 3466 at para 56.

If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Ironside v Roskam, 2018 ONSC 247 at para 49. Rule 31(5) FLRs sets out the various remedies available for contempt: r. 31(5); see also Stone v. Stone, 2019 ONSC 3214.

Finally, unlike criminal contempt where the court’s jurisdiction may be penal, a court’s jurisdiction in finding civil contempt is primarily remedial and aimed at encouraging compliance with the court order: Kopaniak v MacLellan, 2002 CanLII 44919 at para 28.”

            Kim v. McIntosh, 2023 ONSC 5121 (CanLII) at 16-23

“Miglin articulates a two-stage inquiry in the face of an application for spousal support that is inconsistent with a pre-existing agreement between the parties. The first stage looks at the time the agreement was formed. The second considers all the circumstances at the time of the application.

At the first stage, the court must look at two things. First, it must consider “the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it”: Miglin, at para. 80. Circumstances less than “unconscionability” may be relevant, but a court should not presume an imbalance of power.

Second, once satisfied that there is no reason to discount an agreement due to conditions under which it was negotiated, the court must then inquire whether the substance of the agreement substantially complies with the overall objectives of the DA. Here, the court must look at the agreement in its totality, bearing in mind that all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin, at para. 84. If the court is satisfied that the circumstances under which the agreement was negotiated were satisfactory and the agreement was in substantial compliance with the general objectives of the DA at the time of creation, the court should defer to the parties’ wishes and give the agreement great weight: Miglin, at para. 87.

The second stage of the inquiry focuses on the circumstances surrounding the agreement at the time of the application for spousal support. If, and only if, the circumstances at the time of the application represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the DA, the court may be persuaded to give the agreement little weight: Miglin, at para. 91.”

          Faiello v. Faiello, 2019 ONCA 710 (CanLII) at 44-47

“A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child’s best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child’s other parent.”

            S. v. A., 2021 ONSC 5976 (CanLII) at 24

“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

Shokoufimogiman v. Bozorgi, 2022 ONSC 5057 (CanLII) at 32

“Section 113(8) of the CYFSA states that during a status review, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

There are two lines of authorities about the threshold to vary a supervision order in a status review pending its final resolution, one line of cases being more stringent than the other.  These lines of authorities consider the amount of threshold change that must be demonstrated, in the context of the statutory framework and policy considerations.  In so doing, courts also consider the child’s best interests using the factors in section 74(3), as section 113(8) directs.

At ¶ 14-17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388, Sager J. summarized the two lines of authorities as follows:

[14]      One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.

[15]       The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See:  Kawartha-Haliburton Children’s Aid Society v. A.R. and D.F., 2020 ONSC 2738 (CanLII); Catholic Children’s Aid Society of Toronto v. K.G., 2020 ONCJ 208 (CanLII); CAS Algoma v. S.S., 2010 ONCJ 332 (CanLII); and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746 (CanLII).

[16]       The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See:  The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 (CanLII) and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435 (CanLII).

[17]           At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”

At ¶ 19-34, Sager J. determined that the more flexible approach should apply.  She considered the purposes of the legislation, principles of statutory interpretation and she distinguished the requirement to find a “material change” found in other kinds of family law cases as not being appropriate in child protection litigation.  In the end at ¶ 34 she wrote:

In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

In Children’s Aid Society of Brant v. A.H., 2020 ONCJ 49, Hilliard J. agreed with Sager J.’s approach on the threshold issue of change.  However, she added a further nuance that a different amount of change may be appropriate when the request is to change a placement, versus a request to change parenting time.  Hilliard J. referred to the test to change parenting time as being “significantly lower”.”

Dnaagdawenmag Binnoojiiyag Child & Family Services and S.S. and M.S., 2023 ONSC 5011 (CanLII) at 23-27

“Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave is required where the appeal is only as to a discretionary costs order. However, when “the disposition on appeal changes the decision under appeal, leave to appeal from a costs order is not necessary”: Tadayon v. Mohtashami, 2015 ONCA 777, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82.”

          Climans v. Latner, 2020 ONCA 554 (CanLII) at 83

“Viva voce evidence, in conjunction with whatever relevant documentary evidence exists, may ground a claim for an exclusion.  For example, even though Goodyer v. Goodyer is a pro rata case, at para 83 Perkins J. said, “the individual assets in the investment account need not be traced with any degree of detail, so long as the history and continuity of the account as a whole are proved.”   Penny J. adopted a similar approach to the evidence in Ludmer v. Ludmer, a “common sense” case.  As did Simmons, J.A. in obiter in Townshend v. Townshend.”

          Farmer v. Farmer, 2021 ONSC 5913 (CanLII) at 84