Author: dawi

“Contrary to the appellant’s position, not all hearsay evidence is inadmissible. The question is whether the motion judge relied inappropriately on hearsay evidence. In my view, she did not.

The Family Law Rules expressly contemplate the use of hearsay evidence on a motion for summary judgement. Section 16(5) provides that “if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.”

Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care:

Despite anything in the Evidence Act, in any proceeding under this Part [child protection],

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

Evidence about a child’s expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.

Statements about the child’s views and preferences set out in affidavits by Children’s Aid Society workers’ affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).

Statements that show the child’s state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.”

D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903 (CanLII) at 34-39

“Having found material changes in circumstances, the motion judge went on to consider the four objectives that apply to a variation of spousal support under s. 17(7) of the Divorce Act, R.S.C., 1985, c.3 (2^nd Supp.). He concluded as follows:  

a)      Any economic disadvantages to the appellant arising from the marriage breakdown had long passed. Indeed, the motion judge concluded that the wife had structured her post-divorce life in a way that allowed her to “live life to the fullest and not work”.

b)      The appellant had suffered no adverse financial consequences as a result of the children’s care.

c)      To the extent that the appellant was experiencing any financial hardship, it did not arise from the marriage but “from her own decision not to work”.

d)     Although the motion judge acknowledged that there was no expectation that the wife would obtain employment now that she is in her 70’s, he concluded that she could rearrange or manage her assets, including residences in France and Panama, to “secure an increased income stream if desired.”

Having regard to those factors, the motion judge reduced the spousal support from $4,000 to $1 per month. This effectively amounted to a rescission of the support order.

In our view, the motion judge erred in that approach to the variation.

Conspicuously absent from his reasons is an acknowledgement that the original support order – assumed to itself be in compliance with the Divorce Act objectives – expressly provided for spousal support for life: “each and every month thereafter until the [appellant] dies.”

As Bastarache and Arbour JJ. said in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para 62: “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”. (See also: L.M.P. v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, at para. 47.) The fact is that the spousal support order reflected what had been agreed upon by the parties and that order was only one component of a larger agreement.”

            Haworth v. Haworth, 2018 ONCA 1055 (CanLII) at 15-19

“Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. It enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation, thereby promoting honest and frank discussions and the possibility of achieving settlement: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII), [2014] 1 S.C.R. 800 at paragraph 31.  Settlement privilege applies even in the absence of contractual provisions providing for confidentiality.

Although there are certain recognized exceptions to settlement privilege, none of these exceptions applies in this case. To come within an exception to settlement privilege, it must be shown on a balance of probabilities that a competing public interest in disclosure outweighs the public interest in encouraging settlement: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII), [2013] 2 SCR 623 at paragraph 19.”

Benson v. Kitt, 2018 ONSC 7552 (CanLII) at 19 & 22

“The appellant submits that the trial judge made an error in principle when she failed to consider Halliwell in calculating his income for the purposes of spousal support. He asserts that, in cases where a payor’s income exceeds $350,000, Halliwell requires the court to calculate the payor’s income based on the mid-way point between the SSAGs “cap” and the payor’s actual income. That mid-way point should then be used to determine the appropriate range for support. The appellant contends that the trial judge’s order goes beyond the so-called “Halliwell range” and that if she had appropriately assessed the respondent’s needs and means, she would not have awarded spousal support at all.

…

Halliwell does not require the court to impute the payor’s income at the mid-way point between the SSAGs “cap” and the payor’s actual income. Rather, Halliwell, at para. 116, emphasizes what the SSAGs have always stated: “Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range” (emphasis added).”

         Plese v. Herjavec, 2020 ONCA 810 (CanLII) at 54 & 57

“The courts generally avoid varying interim orders on motions prior to trial unless the circumstances are urgent. Jarvis J., in Pakka v. Nygard 2004 CanLII 5071 (ON SC), stated as follows:

The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainty of the parties and vastly increase the cost of litigation. To echo the words of Wolder J. in Thompson v.  Thompson, [1995] O.J.  No.  2106 (Ct.  J. (Prov. Div)), such an order sh ould be varied only wh ere the failure to v ary “ would  cause the payor to suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.”

Grass v. Hropak, 2020 ONSC 7803 (CanLII) at 87

“In keeping with the paramount purpose of the CYFSA, the additional purposes of the legislation indicate, among other things, that courts should consider what the least disruptive course of action would be as well as whether it is possible to provide services within the family or community: s. 1(2).

The Ontario legislature enacted the CYFSA in 2017 and part of this legislation responds to the Truth and Reconciliation Commission of Canada’s (“TRC”) report.  This is highlighted in the CYFSA’s preamble, which states:

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

Most of the changes brought about by the CYFSA highlight the results of the TRC report and emphasize the importance of keeping children in the homes of their families and communities.

Section 74 of the CYFSA deals with the best interests of child.  It states as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

According to s. 101(1) of the CYFSA, where a court makes a finding that the child is in need of protection, it must be satisfied that the intervention through a court Order is necessary to protect the child in the future.  The court can make four Orders:  1) a supervision Order; 2) an interim society care Order; 3) an extended society care Order; or 4) consecutive Orders of interim society care and supervision.

According to s. 102(1) of the CYFSA, a court can make an Order under this section instead of s. 101(1) if it is in the child’s best interests to grant “custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons”.

Section 104 of the CYFSA sets out the court’s powers regarding access.  It reads as follows:

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Section 105(4) of the CYFSA stipulates that where a court makes an Order that the child be placed in extended society care, any Order for access is terminated.

Section 105(5) of the CYFSA states that in considering the issue of access to a child in extended society care, the best interests of the child is the test.  The court cannot order access to the child unless it is satisfied that the Order would be in the best interests of the child.

Section 105(6) stipulates additional factors to be considered in determining whether an access Order would be in the best interests of the child in extended society care.  These factors are whether the relationship is beneficial and meaningful to the child and if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

Lastly, s. 105(7) of the CYFSA notes that the court must specify access holders and access recipients when a child is in extended society care.

In Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2018] 4 C.N.L.R. 31, leave to appeal refused [2018] S.C.C.A. No. 51, the Court of Appeal for Ontario discussed the need for a factual foundation with regards to a child’s First Nation’s heritage: at para. 56.  At para. 58, the Court of Appeal for Ontario stated as follows:

I recognize that Indigenous membership has expanded to include self-identification. However, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.”

The Children’s Aid Society of Ottawa v. S.D. and J.L., 2020 ONSC 7662 (CanLII) at 20-31

“Where there is such a degree of friction between equally competent spouses so as to make joint decision-making impossible, custody should be awarded to the parent who is more likely to ensure that the child reaps the benefit of both households: see Huisman v. Stefaniw (1997), 26 R.F.L. (4th) 406 (Ont. Gen. Div. Fam. Ct.); Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329 (Ont. Gen. Div. Fam. Ct.); and Wilson v. Wilson, 2015 ONSC 479 (CanLII).”

            Lawrence-Bryce v. Bryce, 2018 ONSC 7473 (CanLII) at 64

“The Supreme Court of Canada, in Rathwell v. Rathwell, (1978), distinguished between the remedies of resulting trust and constructive trust in the context of claims made where one spouse had become enriched at the expense of the other: 1978 CanLII 3 (SCC).  In resulting trusts, courts require a common intention, manifested by words or acts, that one of the parties is acquiring property as a trustee whereas, in constructive trusts, no intention is required.

…

Where the court finds that there has been an unjust enrichment in relation to the acquisition or preservation of property, it exercises discretion as to whether to order a payment of money to the aggrieved party, or an actual interest in property.  A constructive trust interest in the property itself is available only when a monetary remedy is inadequate and where there is a link between the services rendered and the property in which the trust is claimed: Peter v. Beblow, 1993 CanLII 126 (SCC).  A constructive trust is appropriate, for example, where there is a finding of fraud in relation to the particular property: Soulos v. Korkontzilas, 1997 CanLII 346 (SCC).”

            Samnani v. Galmani, 2018 ONSC 7280 (CanLII) at 38 & 43

“In Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, the Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

(a) The Divorce Act does not have a provision like s. 34(1)(k) of the Family Law Act, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death;

(b) Despite not having the specific provisions, the Court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment, to be binding on the payor’s estate; and

(c) The factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.”

Kirvan v Kirvan, 2016 ONSC 7712 (CanLII) at 235

“The issue as to who was the successful party is an important one, given that Rule 24(1) provides that there is a presumption that the successful party is entitled to costs.  I will, therefore, begin my analysis with that issue.

At para. 14 of Negin, Faieta J. offers the following definition of “successful”:

A person is “successful” if he or she accomplishes an aim or purpose: See Concise Oxford English Dictionary, (12th ed. 2011) at p. 1439. Success is assessed by comparing the terms of the order made against the relief requested in the pleadings and, where applicable, against the terms of an offer to settle: C. (A.) v. K. (G.), 2015 ONCJ 399, 64 R.F.L. (7th) 496 (Ont. C.J.), para 17; Johanns v. Fulford, 2010 ONCJ 756, 15 R.F.L. (7th) 148 (Ont. C.J.), para 13.”

Van Boekel v. Van Boekel, 2020 ONSC 7586 (CanLII) at 3-4