Author: dawi

“The wife seeks disclosure of the husband’s confidential communications with his lawyer wherein he gave instructions to his lawyer about disclosure; however, there is nothing in the husband’s evidence about his instructions to counsel.  His evidence is that he relied on his advisers, including his lawyer, to prepare his disclosure.

There is no suggestion that the husband has expressly waived privilege. The question is whether, by giving evidence that he relied on his advisers, including his lawyer, to make his financial disclosure during the negotiation of the marriage contract, the husband has waived privilege over his lawyer’s file.

In my view, the husband’s evidence does not rise to the level of a waiver of privilege.

Family law lawyers routinely prepare financial disclosure, whether in the context of proceedings arising after relationship breakdown or the preparation of a domestic contract. The fact that they do so, and that clients rely on them to do so, is not a disclosure of confidential communications. I agree with the husband that it is no different than a party saying they relied on their lawyer to do her job.

If saying that one relied on one’s lawyer was enough to find a waiver of privilege, privilege frequently would be waived. In my view, such an approach to waiver of privilege would be inconsistent with the guidance from the Supreme Court of Canada that privilege must be as close to absolute as possible.

I adopt the reasoning in Spicer, supra, [2015 ONSC 4175] to the effect that the mere disclosure of the receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. In this case, the husband has not given any evidence that legal advice he received when negotiating the marriage contract formed the basis of his state of mind, disclosed legal advice he received from his lawyer, or relied upon or put in evidence any legal advice he received. Simply saying he relied on his lawyer is not enough to waive privilege.”

            Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 21-26

“Both parties on this motion agree that an order awarding costs against a lawyer personally should only be ordered in exceptional circumstances and are rare.

Rule 24(9) of the Family Law Rules states:

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

…

(c) order the lawyer or agent personally to pay the costs of any party.

The Supreme Court of Canada held that costs are rewarded as compensation for the successful party and not to punish a lawyer: see Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 and F.(V.) v. F.(J.), 2016 ONCJ 759, 86 R.F.L. (7th) 452, at paras. 9-11. Courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular cases or positions (see Young, at para. 263).

Although the rules are not identical, the test used under Rule 57.07(1) of the Rules of Civil Procedure, applies to rule 24(9) of the Family Law Rules.  The two-part test was set out by the Court of Appeal in Galganov v. Russell, 2012 ONCA 410, 350 D.L.R. (4th) 679. Specifically, the court must first determine if the lawyer’s conduct falls within the ambit of the rule in the sense that he or she caused costs to be incurred or wasted unnecessarily or without reasonable cause; and second, as a matter for discretion whether an order for costs personally is warranted in the circumstances of the case: see paras. 18 and 22 and see F.(V.) v. F. (J.).

In Covriga v. Covriga, 2010 CarswellOnt 3602 (SCJ), Justice Horkins found that the lawyer supported and encouraged her client’s unreasonable conduct and ordered the lawyer to pay costs: see paras. 111 and 184.  The lawyer’s unreasonable conduct was described as “shocking” (at para. 185).  Specifically, Justice Horkins found that the wife did not do what she did alone. The lawyer must bear responsibility for much of the conduct. She “had a duty to take all reasonable steps to ensure that her client complied with court orders and the Family Law Rules.  Instead, she pursued Ms. Covriga’s application with a breathtaking disregard for the Family Law Rules, court orders and the Rules of Professional Conduct”: at para. 185.  The lawyer’s behaviour was found to have “aggravated and perpetuated the existing problems and numerous new problems arose”: at para. 186. A lawyer may not rely on a client’s instructions as a defence when a lawyer acts in a manner inconsistent with the goals of the justice system: MacMull v. MacMull, 2015 ONSC 5667, 258 A.C.W.S. (3d) 342, at para. 19. I find that much of the description of the lawyer in Justice Horkin’s order aptly describes Mr. Maltz’s behaviour in the case before me.

Amongst other reasons, the Court of Appeal in Galganov stated that the cost rule is intended to apply “when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court” (emphasis added): at para. 18; see also F.(V.) v. F.(J.), at para. 11. In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application judge”: Galganov, at para. 20; F.(V.) v. F.(J.), at para. 11. This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”: Galganov, at para. 20; F.(V.) v. F.(J.), at para. 11. As stated by Justice George Czutrin in R. (C.) v. Children’s Aid Society of Hamilton,2004 CanLII 34407 (ON SC), 2004 CarswellOnt 1414 (S.C.), any person whose conduct “flies in the face” of the primary goals of the Family Law Rules may be subject to cost consequences (at para. 51). In that case, he was referring to costs ordered against the Office of the Children’s Lawyer, but the statement is equally applicable in this case.

There is no bad faith requirement in the Family Law Rules: see Covriga at para. 11.  In MacMull, Justice McGee held that “The wording of Rule 24(9) as it refers to ‘fault’ within the heading, requires a finding of negligence, inappropriate conduct, or abuse of process on the part of the lawyer, even if the conduct does not amount to bad faith”: at para. 18.”

            Haroon v. Sheikh, 2020 ONSC 1284 (CanLII) at 44-50

“This court’s decision in Abu-Saud v. Abu-Saud, 2020 ONCA 824, reaffirmed that an audience will not be granted to a party who is in default of court orders: see also Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6.

…

The Family Law Rules, O Reg 114/99, provide that the court may deal with a party’s failure to follow the rules, including a failure to make proper disclosure, by striking out any or all documents filed by that party. This consequence stems from the need to sanction and deter non-disclosure of assets, which has been described as the “cancer of family law”: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 4, citing Cunha v. Cunha (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. 93 (S.C.).

…

Rule 1(8.4) of the Family Law Rules, which establishes the consequences of striking out documents, does not automatically exclude the defaulting party from the proceeding. Instead, it intentionally removes the party’s entitlement to notice and participation. The court may nevertheless permit participation by the defaulting party, to the extent it will assist the court.”

         Manchanda v. Thethi, 2021 ONCA 127 (CanLII) at 4, 6 & 10

“Justice Pazaratz asks in Scipione v. Scipione, 2015 ONSC 5982, “who got what they asked for”. Isn’t this the primary question in every costs decision?

Rule 24 sets out that this is the presumption. The successful party is entitled to costs.

I agree with Justice Pazaratz that it is completely unreasonable to not get what you ask for and then argue that somehow success was divided or that you were in fact successful. There are situations where there is divided success, or where in examining a comprehensive settlement it may be impossible to unravel who got what and whether it was valuable to them or not. Caution must be exercised in situations where a settlement has been presented to a court and then the court asked to assess costs. Where there are allegations of unreasonable behaviour, bad faith or where the minutes of settlement are so intricate as to be enmeshed in a global structure, this initial caution may lead to a refusal to order costs in such circumstances. There will clearly be compromises made and settlements reached, where the motivation and considerations are unknown. It may then be impossible to determine who was successful, to assess reasonableness and reach a just and equitable order of costs. It may be impossible to adequately consider the factors under Rule 24(11).

In my view in situations where a matter settles and it is clear that one side has been successful, it is entirely appropriate to assess costs and determine whether someone should pay costs to the other. If you can’t look at the matter and clearly sort out who won or who was the more substantially successful party, how can you decide costs in any direction? If you can, you should assess costs in the usual manner. You can only work with what you have. It is therefore incumbent on counsel and the parties to be clear in their settlement terms as to what has transpired. If the consent is complex and intertwined, “global” in nature it may increase the likelihood that a court will not be in a position to assess costs. That is my view of the cases and is what I find reasonable in the circumstances of this case.”

         Hmoudou v. Semlali, 2020 ONSC 1330 (CanLII) at 19-22

“While there is no fixed formula a court must follow when exercising its discretion in this circumstance, [in Corcios v. Borgos, 2011 ONSC 3326] Chappel J. identified the following factors to guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. 1. 1. 1. 1. The nature of the obligation to support, whether contractual, statutory or judicial;

1. 1. 1. 1. 2. The ongoing needs of the support recipient and the child;

1. 1. 1. 1. 3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;

1. 1. 1. 1. 4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

1. 1. 1. 1. 5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient.  As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;

1. 1. 1. 1. 6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

1. 1. 1. 1. 7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred.

This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor’s financial situation. A payor’s failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

Finally, “with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.”

Gray v. Rizzi, 2016 ONCA 152 (CanLII) at 60-64

“A party in a family law appeal may bring a motion to admit further evidence.  That motion may be brought on the appeal of a variety of proceedings, including the appeal of an arbitration decision.  See Family Law Rules, Rule 38(29) and (46) as well as section 134(4)(b) of the Courts of Justice Act.

The test for the admission of fresh evidence on an appeal is set out in Palmer, supra as follows:

a)    The evidence should be admitted if it could not have been adduced at trial by due diligence;

b)   The evidence must bear upon a potentially decisive issue in the trial;

c)     The evidence must be credible in the sense that it is reasonably capable of belief; and

d)    It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Ontario Court of Appeal has long accepted that a more flexible approach to fresh evidence is appropriate in cases involving the welfare of children.  See Decaen v. Decaen 2013 ONCA 218 and H.E. v. M.M. 2015 ONCA 813.  The reasons that the Courts adopt this more flexible approach are helpfully summarized in Kurz J.’s decision in Spadacini-Kelvava v. Kelava 2020 ONSC 3277 at paras. 67 and following.

The manner in which this more flexible approach should be applied was outlined by Laskin J.A. in Ojeikere v. Ojeikere 2018 ONCA 372 (at para 48).  The proposed fresh evidence should be admitted if it:

a)    Is credible;

b)    Could not have been obtained by reasonable diligence before trial or motion;

c)     Would likely be conclusive of an issue on the appeal.

When these branches of the test are considered, it must be remembered that they are designed to be more flexible than the Palmer test.  Therefore, the elements of the test that are similar to Palmer, such as credibility and whether the evidence would be conclusive of an issue on the appeal, should not be applied more strictly than they would be if the Palmer test was applied.”

         Murakami v. Murakami, 2021 ONSC 1393 (CanLII) at 15-19

“Reliance was placed by both parties on the case of Thompson v. Thompson, 2013 ONSC 5500, regarding the approach to be taken by the court when exercising its discretion in the determination of total income for support purposes.  In that case, Chappel J. observed that:

a.   Retained earnings are the cumulative net earnings of the corporation since the inception of the company less dividends paid out to shareholders since that time. They are the shareholders’ equity in the company, and do not necessarily represent cash in the bank that shareholders can take out as income. [at para. 89]

b.   The purpose of section 18 is “to enable the courts  to conduct a fair accounting of the money available for the payment of child support” and is “designed to address the unfairness which would result if a spouse was to artificially manipulate his income through a corporate structure for the purpose of avoiding child support obligations.” [at para. 88, citing Wildman v. Wildman(2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401; Koester v. Koester (2003), 2003 CanLII 2150 (ON SC), 50 R.F.L. (5th) 78]

c.   The party proposing that corporate pre-tax income be attributed to the other party has the onus of demonstrating some basis upon which section 18 should be engaged. The fact that retained earnings remain in the corporation does not in and of itself require the party with the interest in the company to justify the business reasons for not withdrawing corporate pre-tax income or retained earnings. Once the party advancing the section 18 argument has met this onus, the party who has the interest in the corporation has the onus of explaining why the decision to add the corporate pre-tax income to the company’s retained earnings rather than withdrawing a portion of the earnings was reasonable from a business perspective. The rationale for this is that the shareowner will in all likelihood have a much greater appreciation of the workings and needs of the company, or will be best able to identify individuals who can be called as witnesses to address the issue.  [at para. 91]

d.   There are a variety of factors that the court can take into consideration in its determination of whether all or a portion of a corporation’s pre-tax income should be included in a spouse’s income, including the historical pattern for retained earnings, the nature of the industry that the corporation is operating in, business plans, level of debts, debt or other restrictions, whether salaries are on par with market, and whether there are legitimate business reasons for retaining earnings in the company, and the payor’s proportionate ownership interest in the company. [at paras. 92-93]

e.   The court must carefully consider “where and how additional money can be found from a corporation’s pre-tax income so as to increase a party’s income for the purpose of support calculations. … [F]ailure to properly understand this issue ‘can lead to an incorrect result and ultimately, if the parent cannot find the expected additional money, may undermine the operation of the corporation and eventually kill the goose that lays the golden egg.’” [at para. 90, citing Bembridge v. Bembridge, 2009 NSSC 158, 73 R.F.L. (6th) 147, at para. 37]

The applicant clearly has the initial onus to demonstrate that s. 18 should be engaged.  She maintains that she has met her onus by the respondent’s concession that some income must be attributed to him from the companies, even to come to the $440,000.00 adjusted income number that he propounds by virtue of inclusions for non-arm’s length salaries and benefits (as s. 18(2) provides for). The fact that he chooses to attribute only income associated with income splitting and benefits does not, according to the applicant, nullify the threshold that has been crossed into the s. 18 Support Guidelines considerations.

The adjusted annual income figure of $440,000.00 calculated by the respondent’s expert does not include pre-tax corporate income.   However, the income valuation report clearly recognizes that there is undistributed pre-tax corporate income in the companies.  The applicant’s initial onus is low and I find it has been met in this case.  Thus, it falls on the respondent to justify why some or all of the pre-tax corporate income should not be attributed to him.

As the court concluded in Thompson, at para. 91: “Once the party advancing the section 18 argument has met this onus, the party who has the interest in the corporation has the onus of explaining why the decision to add the corporate pre-tax income to the company’s retained earnings rather than withdrawing a portion of the earnings was reasonable from a business perspective.”

            Nani v. Nani, 2021 ONSC 1368 (CanLII) at 31-34

“Motions for contempt are remedial in nature. The object of such motions is to compel obedience with a court order rather than punish the offender: Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97, (Ont. C.A.), citing Professors Nigel Lowe and Brenda Sufrin in Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56.

In Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), the Court of Appeal for Ontario described the following principles that apply to the use of contempt in family law cases:

• • •  The civil contempt remedy is one of last resort.
    •  The “last resort” refers to circumstances where conferences to try to resolve access problems or motions for enforcement have failed.
    •  Contempt findings should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party.
    • Great caution must be exercised when considering contempt motions in family law proceedings.

Motions for contempt in family law matters are governed by r. 31 of the Family Law Rules, O. Reg. 114/99 (“FLR”). Under r. 31(1): “[a]n order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.”

While motions for contempt in family law matters are brought in the context of civil matters, they are quasi-criminal in nature. The burden of proof in contempt motions, as in criminal proceedings, is beyond a reasonable doubt. The party alleging contempt carries the burden of proof: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.).

The test on a motion for contempt was set out by the Supreme Court of Canada in Carey v. Laiken, cited above. The moving party must prove beyond a reasonable doubt that:

(1)   the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(2)   the party alleged to have breached the order must have actual knowledge of it; and

(3)   the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

At that point, the court has discretion in dealing with the contempt, particularly if it has been purged.

In Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.), at paras. 23-25, Quinn J. offered some useful definitions. The offence of contempt “consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance” (citing Re Sheppard and Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 at 8 (Ont. C.A.)). Contempt also includes the intentional refusal to do an act that is required to be done by an order. “Intentional” means “wilful” or “deliberate.”

In two cases released following Carey, the Court of Appeal for Ontario has signalled that courts must be particularly circumspect about making a finding of contempt in family law cases, even if the three-part Carey test is met. That is because the exercise of the court’s discretion as to whether to make a finding of contempt, even when the Carey test is met, is now a fourth, added element of the test.

In Ruffolo v. David, 2019 ONCA 385, at para. 18, the Court of Appeal for Ontario cited the following excerpt from Carey to state that “… contempt orders should not be so readily granted by motion judges”:

The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort.

[Citations omitted.]

The court added at para. 19 that “where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration.” In other words, a court considering a family law contempt motion involving the parenting of children, which often involves access denial, must consider the children’s best interests and how a finding of contempt would affect them.

In Chong v. Donnelly, 2019 ONCA 799, the Court of Appeal for Ontario explicitly stated that meeting the three-part Carey test is not sufficient to make a finding of contempt. The court must consider the added fourth part of the test: whether to exercise its discretion to decline to make a finding of contempt. That fourth part of the test is “the last crucial step” that must be present in the motion court’s analysis.

The court in Chong pointed to the understanding, cited above, that a contempt finding is a last resort.  Before making a contempt finding, the court should consider alternatives to such a finding. Although the Court of Appeal did not specifically refer to it, many of those alternatives are found in r. 1(8) of the Family Law Rules. That subrule sets out various remedies short of contempt for a failure to obey a court order

Hearsay regarding a contentious issue is not admissible in a contempt motion. It is true that under r. 31(3), the supporting affidavit in a contempt motion “may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied”. But under r. 14(19)(b), if the motion is a r. 31 contempt motion, the hearsay information is only admissible if it is “not likely to be disputed”.”

         Dephoure v. Dephoure, 2021 ONSC 1370 (CanLII) at 120-132

“As I noted in Gibbons v. Mulock, considerable deference is due to a domestic contract.  In Rosen v. Rosen, the Ontario Court of Appeal explained the rationale for this principle, at p. 644.

I start with the proposition that it is desirable that the parties should settle their own affairs if possible.  I think that they are more likely to accept their own solution to their problem than one imposed upon them.  A more pedestrian reason for encouraging parties to settle their own affairs is that the courts may simply be incapable of dealing with the ever-increasing mass of matrimonial disputes.

It is, I think, obvious that the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts.  In my respectful view, as a general rule in the determination of what is fit and just, courts should enforce the agreement arrived at between the parties.

In LeVan v. LeVan, another decision of the Ontario Court of Appeal, the court dealt with a challenge to a marriage contract involving section 56(4) of the Act.

[50] Section 56 (4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses.  It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, at para. 14.  The provision is of such significance that, in accordance with s. 56 (7), it cannot be waived by the parties.

[51] The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk, 1986 CanLII 6295 (ON SC), [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.).  First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged.  Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement…

The husband bears the onus of persuading the court that one or more of the subsections of section 56(4) apply and, if so, whether the court should exercise its discretion to set aside the marriage contract.  In guiding the exercise of that discretion, there is no exhaustive set of factors but the following have been consistently considered, as first identified in Demchuk:

(a)  whether there had been concealment of the asset or material misrepresentation;

(b)  whether there had been duress, or unconscionable circumstances;

(c)  whether the petitioning party neglected to pursue full legal disclosures;

(d)  whether he/she moved expeditiously to have the agreement set aside;

(e)  whether he/she received substantial benefits under the agreement;

(f)  whether the other party had fulfilled his/her obligations under the agreement; and

(g) whether the non-disclosure was a material inducement to the aggrieved party entering into the agreement.”

         Reynolds v. McCormack, 2020 ONSC 999 (CanLII) at 54-56

“The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:

16.92(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child.

The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.

This provision would prohibit courts from considering this question — or the parent’s response — if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.

Parliament’s explanation of s. 16.92(2) reflects the “classic double bind” that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a “lose-lose” situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent’s dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent’s representations about whether they will or will not move without the children: see, for example, Spencer v. Spencer, [2005] A.J. No. 934, 2005 ABCA 262, 371 A.R. 78, at para. 18; Hopkins v. Hopkins, [2011] A.J. No. 1413, 2011 ABCA 372, at para. 6; and Hejzlar, at paras. 24-27.”

         Bourke v. Davis, 2021 ONCA 97 (CanLII) at 43-46