Author: dawi

“The applicant deposes that the respondent’s vow not to leave her alone, and to continue staging online protests outside her home, make her fear from her safety and I.S.’s safety. As noted, she is also concerned about the ramifications for I.S. if he is publicly associated with the respondent’s protest efforts against the government’s and public health authorities’ response to the pandemic.

The court can make an interim or final restraining order based on s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, or s. 35 CLRA. In either case, a restraining order may contain one or more of the following:

a.    An order restraining a party from directly or indirectly contacting or communicating with another party or any child in that other party’s lawful custody;

b.    An order restraining a party from coming within a specified distance of one or more locations.

c.    An order specifying exceptions to the provisions described in a) and b) above; and

d.    Any other provision that the court considers appropriate.

In order to grant a restraining order, the moving party must have reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody. It is enough if an applicant has a legitimate fear, but the fear must not be entirely subjective. The fears can be of a personal or subjective nature, but they must be related to a respondent’s actions or words: PF. v. S.F., 2011 ONSC 154, 196 ACWS (3d) 746, at para. 31.

Specifically, the applicant seeks an order that the respondent not contact her or come within 100 m of any place the applicant or I.S. are known to be or frequent, including, but not limited to her home and place of work, that he remove all social media postings regarding the applicant, I.S., or any issues in this litigation, and refrain from making new postings, and that he not make a new GoFundMe page and that he delete his existing GoFundMe page.

With respect to the social media postings, I note that courts have ordered parents to refrain from making social media posts about the other parent or children, and to remove any existing social media posts: E.H. v. O.K., 2018 ONCJ 412, at paras. 133-136. In E.H., Sherr J. found such an order to be appropriate, because the father’s social media posts were a breach of the child’s privacy and contrary to her best interests.

In my view, it is appropriate that a tailored restraining order be made with respect to the respondent’s social media to protect the privacy of the child, and to assure his and the applicant’s safety. While I am cognizant that the respondent himself has not threatened to physically harm the applicant, by inviting his followers to search for the applicant, the respondent has invited, at the very least, on line bullying of her. The comments on the respondent’s posts include some that are upsetting and others that are threatening. I accept that the applicant’s fear for her and I.S.’s safety is reasonable. I therefore order:

a.    The respondent shall delete any social media posts (i) that refer to the issues in this litigation, or (ii) that denigrate the mother, or (iii) that refer to the mother, and/or the child, and the current pandemic. This includes the two Facebook livestreams from May 20 and 27, 2020, which, if still available in any form on his Facebook account, shall be deleted;

b.    The respondent shall refrain from creating any new social media posts (i) that refer to the issues in this litigation, or (ii) that denigrate the mother, or (iii) that refer to the mother, and/or the child and the current pandemic.”

            A.T. v. V.S., 2020 ONSC 4198 (CanLII) at 45-50

“Parallel parenting is a parenting arrangement that has evolved, in order to address high conflict cases where neither a sole decision-making order to one parent nor a cooperative joint decision-making order will meet a child’s best interests. Parallel parenting orders generally take one of two different forms. A “divided parallel parenting” regime, in which each parent is given separate areas of parental decision-making authority, independent of the other parent, or a “full parallel parenting” regime, in which parents are given the right to make major decisions regarding the child while the chid is with them without the consent of the other parent.

In V.K. v. T.S., Chappel, J. thoroughly reviewed the case law and set out the factors that the court should consider in determining whether a parallel parenting regime, rather than sole decision-making authority custody, was appropriate. at paragraph 96, as follows:

a.    “The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.”

b.    “The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.”

c.    “Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent [sic] and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate. [italics added]”

d.    “Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.”

e.    “The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.”

f.    “The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.”

In Batsinda v. Batsinda, Chappel, J. refers to a case, H. (K.) v. R. (T.K.), decided by Sherr, J. in which he adopted the above-noted factors and added the following further considerations:

a.    The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counselling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

b.    Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

c.    The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

d.    The family dynamics.  The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents’ conflict.”

         Chmielewski v. Gonzalez, 2021 ONSC 5019 (CanLII) at 212-214

“With recent legislative changes, our court system has taken pride in our enlightened terminology.

a.    We no longer use “custody” or “access” because those labels were regarded as provocative, polarizing and unhelpful to the resolution of family disputes.

b.    We promote more neutral and conciliatory labels like “shared parenting” because they promote mutual respect and parental involvement; and because children are better off when both parents are actively and beneficially involved in all aspects of their lives.

But just as outdated labels are to be avoided because they conveyed the wrong message – we have to ensure that our currently-favoured parenting designations convey the right message.

a.    Shared parenting is not a prize. Or a reward. Or a badge of entitlement.

b.    It’s not about rights.  It’s about responsibilities.

c.    It’s not an acknowledgement of pastparenting.  It’s a commitment about future parenting.

d.    It’s not about soothing adult egos (although that’s a helpful side-benefit).

e.    It’s about creating precious opportunities.

f.    Opportunities for both parents to maintain a meaningful role in their children’s lives.  To make enlightened and important decisions in a mature, selfless, cooperative, child-focused manner.

g.    Opportunities for children to have the best of both worlds.  To benefit from the love, guidance, involvement, insight, culture and commitment of each parent.  Even if the parents aren’t together.  Even if the parents don’t like each other anymore.

h.    Opportunities for parents to solveproblems.

i.    But not opportunities for incessant argument and obstruction.

Shared parenting may be desirable or aspirational.  But it’s not automatic.  And it’s definitely not to be taken for granted.

a.    In some families it’s inevitable.

b.    In some families it’s achievable.

c.    In some families it’s worth a try.

But as this court stated in Izyuk v Bilousov 2011 ONSC 6451 (SCJ) (prior to the amended legislation):

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

Shared parenting:

a.    It’s not exactly “Use It or Lose It”.

b.    More like “Abuse It and Lose It”.”

          Rogers v. Porga, 2021 ONSC 4759 (CanLII) at 35-39

“This court in Gray (v. Rizzi, 2016 ONCA 152) clarified the approach to be followed when the threshold for a retroactive variation of support had been met. Specifically, at paras. 44- 54, the court made it abundantly clear that the four factors governing retroactive support orders identified in D.B.S., subject to exceptional circumstances, should be adapted to apply to applications to decrease support retroactively in cases like the present:

i.     Whether there was a reasonable excuse as to why a variation in support was not sought earlier;

ii.     The conduct of the payor parent;

iii.     The circumstances of the child and;

iv.     Any hardship occasioned by a retroactive award.

Gray rejected the notion that D.B.S. and its factors for analysis are inapplicable in cases of arrears, at para. 51:

[A] payor who has let arrears accumulate has no claim to resist an increase in support on grounds of certainty and predictability. A delinquent payor cannot use the principle of predictability as a shield against paying the full amount of support to which his child is entitled.

…

In contrast, where a payor seeks a retroactive decrease in support, the S. (D.B.) factors — such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support — remain relevant. [Emphasis added.]

At paras. 45 and 61-62, the court also endorsed the general rules from D.B.S. that the date of effective notice should serve as the date to which the award should be retroactive and that it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given (“the three-year rule”).  While D.B.S. framed these rules in the context of giving certainty and predictability to the payor parent when the change is an increase sought by the recipient parent, Gray clarified that the same underlying principles apply when the change is sought by the payor parent:  see D.B.S., at para. 123; Gray, at para. 61.”

         Colucci v. Colucci, 2019 ONCA 561 (CanLII) at 16-18

“In Arbitman v. Lee, 2021 ONSC 315, the applicant father brought an urgent motion for seeking a 2-2-3 equal schedule on a temporary, without prejudice basis for the children, and for equal decision-making authority. The respondent mother opposed and sought orders for primary residence, and limited parenting time for the father. Ultimately, Monahan J. ordered a 2-2-3 parenting schedule upon making the following findings:

(a)   it is in the interests of the children that parenting arrangements going forward provide them with the opportunity to maintain their close and loving relationships with both of their parents.

(b)    It is in the interests of the children that parenting arrangements should be designed to ensure that they are not exposed to any further conflict between their parents.

(c)   The children’s lives have been significantly disrupted by the events of the last few months. This disruption has caused confusion and distress for the children. It is in their best interests to establish arrangements which are stable and predictable and which, over time, will reduce the anxiety they are currently experiencing.

In Phillips v. Phillips, 2021 ONSC 2480, the applicant father brought an urgent motion seeking an order for a rotating 2-2-3 equal parenting schedule. The motion was brought because of the respondent mother’s unilateral move with the child from the matrimonial home in the Town of Erin to Toronto.  The father maintained that he had always been a fully involved parent who often cared for the child while the parties lived together.  The mother disagreed with those representations, maintaining she had always been the child’s primary caregiver, while the father continued to work. Kurz J. ultimately ordered a 2-2-3 parenting schedule and found it was in the child’s best interests to have her parents share in her upbringing.

In Pereira v. Ramos, the applicant father brought a motion requesting an order to increase his parenting time with the parties three (3) children in accordance with a 2-2-3 parenting schedule, or a week-  about schedule. The respondent mother opposed the father’s motion and requested that the parties continue to follow the current schedule where the children reside primarily with her and visit their father on alternating weekends. The father maintained that he was an active parent throughout the duration of the marriage and the mother disagreed.  Jain J. held found that it was in the best interests of the children to spend as much time with each parent as possible.  She therefore found a shared parenting time regime was applicable, and accordingly ordered a week-about      schedule for that parenting time.

In the above cases, the court ordered schedules that promote a shared parenting regime and as much time as possible with each parent. As well, the court ordered schedules that altered the status quo that was arbitrarily imposed by one of the parties, against the wishes of the other party.   Most importantly, the court recognized the importance of preserving and fostering a relationship with both parents, especially when the children are young, and considered the 2-2-3 parenting schedule was a good way to meet those goals.”

         Mummery v. Craiu-Botan, 2021 ONSC 4702 (CanLII) at 72-73, 75-76

“There is no dispute that the alleged agreement in this case before me does not comply with section 55(1) of the Family Law Act.  That section requires a domestic contract be made in writing, signed by the parties and witnessed for it to be enforceable.

There is also no debate that in some instances, courts will enforce settlements, despite the absence of the formalities required by s. 55(1).  In Geropolous v. Geropolous, 1982 CanLii 2020, the Ontario Court of Appeal held that the predecessor to section 55(1) was aimed at protecting a different kind of agreement, not at the enforceability of a settlement agreement achieved through correspondence between counsel to settle a pending law suit.  In its conclusion, the Court of Appeal said that settlement agreements, “…made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court” are not subject to the requirements of the section [my emphasis added].  The Court is able to assure their authenticity by supervising their enforcement in the litigation.  The ratio in Geropolous v. Geropolous pertains to agreements made this way, while litigation is ongoing.

In Pastoor v. Pastoor, 2007 CanLii 28331 (S.C.J.), this Court extended the principle from Geropolous v. Geropolous to agreements reached prior to the commencement of litigation.”

         Lindsay v. Lindsay, 2021 ONSC 4674 (CanLII) at 44-46

“Social science evidence regarding the effectiveness of reversal of custody orders in cases of alienation is inconclusive: see Nicholas C. Bala and Katie Hunter, “Children Resisting Contact & Parental Alienation: Context, Challenges & Recent Ontario Cases” (2015), Queen’s University Legal Research Paper No. 056, online: <ssrn.com/abstract=2887646>, cited in A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1 (“A.M. v. C.H. (ONCA)”), at para. 76, aff’g 2018 ONSC 6472 (“A.M. v. C.H. (ONSC)”).

As the motion judge in Leelaratna v. Leelaratna, 2018 ONSC 5983, at para. 52, observed, 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 [under ss.16(1) and (6) of the then-in-force Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and ss. 28 and 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12], including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children.”

Although courts retain wide discretion in crafting their orders, custody dispositions are, as a practical matter, often limited in cases of parental alienation. Courts may (a) do nothing, and leave the child with the alienating parent; (b) reverse decision-making and primary residence, and place the child with the rejected parent; (c) leave the child with the favoured parent and order therapy and counselling; or (d) provide a neutral, transitional, placement for the child and order therapy, so as to facilitate a placement with the rejected parent at a later date: see A.M. v. C.H. (ONSC), at para. 110.

Where a reversal of decision-making and primary residence has been ordered, courts may order that that the alienating parent have no contact with the child for a minimum period: see M.M.B (V.) v. C.M.V., 2017 ONSC 3991; Foley v. Foley, 2016 ONSC 4925; A.M. v. C.H. (ONSC), aff’d in A.M. v. C.H. (ONCA).”

         M.P.M. v. A.L.M., 2021 ONCA 465 (CanLII) at 34-37

“[Legal Aid Ontario] is an independent and publicly accountable non-profit corporation: Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 3(4) (“LASA”). The Government of Ontario created LAO “to establish and administer a cost-effective and efficient system for providing high quality legal aid services to low-income individuals in Ontario”: LASA, s. 4. As stated in s. 14(2) of the LASA, LAO “shall provide legal aid services in the areas of criminal and family law having regard to the fact that the private bar is the foundation for the provision of legal aid services in those areas.” LAO does not represent the client nor does it direct the litigation. Rather, it provides the funding to the client to retain counsel from the private bar. The legal aid system in Ontario permits LAO to rely on the opinions of the private bar lawyers who have carriage of their clients’ files subject to a legal aid certificate. The system is not established on the basis that LAO is required to engage in a detailed factual and legal analysis independent of and disconnected from counsel’s legal opinion. The costs award against LAO based on its failure to adequately monitor the litigation is inconsistent with and would frustrate that statutory scheme.

An award of costs against LAO based on abuse of process must be viewed within this context.

As Strathy C.J.O. explained in Laval Tool & Mould Ltd., the court’s inherent jurisdiction to order non-party costs is grounded in the court’s inherent jurisdiction to deter abuse of process and when exercising inherent jurisdiction to award costs against a non-party, courts must do so “sparingly and with caution”: at paras. 68 and 72.

Abuse of process is a flexible doctrine: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.), at para. 37; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227 (S.C.C.), at paras. 40-41. The concept has been described as involving proceedings that are “unfair to the point that they are contrary to the interest of justice”, oppressive or vexatious, and “violate the fundamental principles of justice underlying the community’s sense of fair play and decency”: C.U.P.E., Local 79, at para 35.

In examining costs against LAO for an alleged abuse of process, a distinction must be made between LAO as a party to litigation and LAO as a non-party statutory funder of litigation. When LAO is a party to litigation, as with any other party, it may be exposed to a costs award. By way of example, in an employment or civil action in which LAO is an unsuccessful party, it would be open to a judge to grant an adverse costs award: see e.g. Legal Aid Ontario v. Gertler, 2010 ONSC 6556 (Ont. S.C.J.).

In contrast, as a non-party, LAO’s conduct must be viewed in the context of its statutory mandate and the regime of legal aid services in Ontario as it is set up by the LASA. Without evidence of something more, such as bad faith or a collateral or improper purpose in granting funding to a litigant, LAO’s conduct in funding litigation pursuant to its statutory purpose, and any conduct incidental thereto, including its monitoring of the litigation it funds, cannot support a finding of abuse of process and a resulting adverse costs award.”

         Hunt v. Worrod, 2019 ONCA 540 (CanLII) at 32-37

“When success is divided, the court has the explicit discretion under r. 24 (6) to determine the allocation of costs. One key issue under r. 24(6) is how to allocate success when neither party is the clear winner of a motion, trial or other proceeding.

In Jackson v. Mayerle, 2016 ONSC 1556 (SCJ-FC), Pazaratz J. considered how to apportion divided success under r. 24(6). He stated that r. 24(6) requires a comparative analysis, as most family cases have multiple issues. However, those issues are not equally important, time-consuming or expensive to determine. Comparative success can also be assessed globally in relation to the whole of the case, asking:

1. 1. 1. 1. 1. How many issues were there?
            2. How did the issues compare in terms of importance, complexity and time expended?
            3. Was either party predominantly successfulon more of the issues?
            4. Was either party more responsible for unnecessary legal costsbeing incurred?

In Thompson v. Drummond, 2018 ONSC 4762, Chappel J. added to Pazaratz J.’s analysis. She pointed out that the determination of success is not merely a mathematical exercise. Rather, the court must engage in a “contextual analysis” in which it looks first to the kinds of factors set out in Jackson v. Mayerle. If it finds that success is divided, the court will then exercise its discretion. It may simply determine costs globally. Or it may look first to success in the primary issue, but subject to “adjustments” that consider lack of success in any secondary issues, as well as any other appropriate factors. As Chappel J. wrote at para. 12:

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 … 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 … 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 …

There are two schools of thought regarding the role of offers to settle in the determination of success under r. 24. On the one hand, in Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.), Justice J. Wilma Scott of this court’s family Court wrote that any determination of success “…must take into account how that order compares to any settlement offers made”: at para. 7. In Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.), at para. 7, Aston J. was even more direct, in stating that:

Offers to settle become the yardstick by which to measure “success” and are significant in considering both liability for costs and the amount of those costs.

On the other hand, in Jackson v. Mayerle, Pazaratz J. considered offers to settle separately from the issue of relative success. His four factors do not include success in comparison to offers to settle. Similarly, Chappel J.’s analysis of divided success in Thompson v. Drummond did not consider offers to settle. Rather, elsewhere in her decision, she describes offers as “[a]nother important consideration in determining both entitlement to and the quantum of costs.”

In my view, offers to settle are imported into r. 24 only in regard to reasonableness and/or proportionality, not success. Further, while those offers need to be in writing, they do not have to meet the formal requirements of r. 18 in order to be considered under r. 24(12).”

            Tharmalingam v. Balasubramanian, 2021 ONSC 4543 (CanLII) at 82-87

“As held in The Catalyst Group Inc. v. Moyse, 2016 ONSC 554 (Div. Ct.), at para. 2, in deciding whether to grant an extension of time on a motion for leave to appeal, the Court is to consider the following four factors, with overarching regard to the justice of the case:

a.    Whether the moving party formed an intention to appeal within the relevant period;

b.    The length of the delay and the explanation for it;

c.    Prejudice to the responding party; and

d.    The merits of the motion for leave to appeal.”

         Hughes v. Hughes, 2021 ONSC 4497 (CanLII) at 11