Author: dawi

“The issue of in person versus online education has been the subject of recent jurisprudence in this Court. In Chase v. Chase, 2020 ONSC 5083, Himmel, J. found that the provincial government along with the health authorities are best able to assess and address school attendance and associated risks. At para 45, the Court stated:

[45]          There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parent’s need for childcare. There is no end in sight to the pandemic and, as such no evidence as to when it will be 100 percent safe for children to return to school. The Ontario Government has determined that September of 2020 is an appropriate time to move on to a “new Normal” which includes a return to school.

In Zinati v. Spence, 2020 ONSC 5231, Akbarali, J dealt in dealing with an issue of whether a six-year-old child should attend school either in person or online, set out a number of factors for the Court to consider. At paragraph 27 of the decision, the Court states the following:

27.   In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

a.   It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b.   When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c.   When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i.   The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii.   Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii.   The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.   Any proposed or planned measures to alleviate any of the risks noted above;

v.   The child’s wishes, if they can be reasonably ascertained; and

vi.   The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

In Chase, the Court indicated that if an unreasonable risk of harm existed, circumstances may warrant online education versus in class. The issue of unacceptable risk of harm was a determining factor in Joachim v. Joachim, 2020 ONSC 5355 where Summers, J. was provided with detailed medical evidence that the mother was at high risk of complications if she became infected and ill with COVID-19. The risk to the mother’s household outweighed the children attending school in person.

I agree with the jurisprudence which directs that the Courts are not to determine whether or not a school remains open. That issue is best reserved for the provincial government in consultation with the relevant school boards and medical authorities based on the best information available. In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus.

Kaszap v. Volk, 2020 ONSC 6129 (CanLII) at 24-27

“The law to be applied during temporary care and custody hearings is set out in subsections 94(2), (4) and (5) of the Child, Youth and Family Services Act (the CYFSA):

94(2) where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

a)     Remain in or be returned to the care and custody of the person who had charge of the child immediately before the intervention under this Part;

b)    Remain in or be returned to the care or custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

c)     Be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

d)     Remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

The criteria to be considered is set out in subsection 94(4) and provides the following:

94(4) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Subsection 94(5) sets out the following:

94(5) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

In CAS v. L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8^th) 48, Justice Bennett sets out the s.94 analysis at paragraphs 24-32:

[24] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm.  Further, the onus is on the Society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision Order.  See: Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.).  simply stated, this is a two-part test that the Society has to meet.

[25] A court must choose the Order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 (CanLII).

[26] The degree of intrusiveness of the Society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk: CCAS of Toronto v. J.O.., 2012 ONCJ 269 (CanLII).

[27] Subsection 94(10) of the act permits the Court to admit and act on evidence that the Court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence: Family and Children’s Services v. R.O. , [2006] O.J. No. 969 (OCJ).

[28] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence: Children’s Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).

[29]  Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children:  Children’s Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).

[30]  The act gives priority to the person who had charge of the child prior to society intervention underpart three of the act (subsection 51 (2) of the Act).  There can be more than one person in charge of the children.  See: Children’s Aid Society of Toronto v. A.(S.) and R.(M.) 2008 ONCJ 348 (OCJ)(CanLII).

[31]  The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6^th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.).  The Burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R. 2011 ONCJ 652 (CanLII).

[32]  It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a young mother, provided that the standard used is not contrary to the child’s best interests: Children’s Aid Society of Toronto v. B.H.(R.), 2006 ONCJ 515 (CanLII).”

 CAS v. T.C. and R.H., 2020 ONSC 6104 (CanLII) at 41-44

“A person is under “disability” under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if he or she is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding…” [Emphasis added.]

The case law is clear that in assessing disability for litigation purposes the issues are somewhat wider than the considerations before the Consent and Capacity Board under the Substitute Decisions Act, 1992. Capacity “in respect of an issue in the proceeding” involves an assessment of capacity addressed in the context of the administration of justice. In Huang v Braga, 2016 ONSC 6306 (CanLII) Archibald J. summarized the state of the case law and held:

[19]   The jurisprudence has established the following additional factors should be considered when determining whether a party is under disability and requires a litigation guardian:

(a)    The person’s ability to know or understand the minimum choices or decisions required and to make them;

(b)   An appreciation of the consequences and effects of his or her choices or decisions;

(c)    An appreciation of the nature of the proceedings;

(d)    A person’s inability to choose and keep counsel;

(e)    A person’s inability to represent him or herself;

(f)    A person’s inability to distinguish between relevant and irrelevant issues; and

(g)   A person’s mistaken beliefs regarding the law or court procedures.

W. M. v Office of the Public Guardian and Trustee, 2017 ONSC 5887 (CanLII) at 9-10

“The Court’s discretion to choose a child’s school informed by the principles adopted by Justice Spies in Askalam v Taleb, 2012 ONSC 4746, at para. 32:

Where a court is asked to consider whether or not a child should change schools, the following considerations may be drawn from the case law:

(a) In situations of joint custody, the court is most reluctant to dictate where a child should go to school and the parents should be encouraged to resolve this matter amongst themselves. If they cannot agree the best interests of the child will govern.

(b) In the event a parent suggests changing schools, it must be demonstrated the change will be in the best interests of the child.

(c) While each instance is very fact specific, 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 how many years the child has attended his or her current school; 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 child care providers or other unsettling features. 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. Any problems with the present school will be considered.

In addition to the above principles, the onus is on the parent seeking the change on an interim basis to present “compelling and cogent evidence” that the change of schools is in the child’s best interests given the need for stability in a child’s life.  In Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178, at para. 32, the Ontario Court of Appeal addressed whether it was in the best interests of a 4-year-old who had almost completed junior kindergarten to change schools:

..  I think it is fair to provide that Jacob should continue to go to Northridge Public School unless both parties agree to send him to another school, or unless either parent brings forward compelling and cogent evidence showing a change of schools is in Jacob’s best interest. I would so provide for these reasons: Mr. Reid [a social worker who prepared a parenting plan] recommended that Jacob go to Northridge; Jacob will likely already have formed attachments to the school; and, continuing at the school promotes stability in Jacob’s life. [Emphasis added]”

J.E.S. v. S.S., 2020 ONSC 6064 (CanLII) at 36-37

“In Beckett v. Beckett, 2010 ONSC 2706 (CanLII), [2010] O.J. No. 1957 (S.C.J.), Pazaratz J. considered the issue of the affordability of a costs award at the end of a five day equalization trial.  The parties had shared custody of the children.  In determining costs, he confirmed that “any other matter” in Rule 24(11)(f) included the “affordability and enforceability of a costs order” [paragraph 33].  However, he also confirmed that the real issue is the effect of the costs award on the financial ability of the parties to care for the children.  He noted that, although a costs award would “jeopardize [the Respondent’s] ability to provide for her children”, that “we must not lose sight of the fact that unrecovered legal fees also interfere with the Applicant’s ability to provide for his children during the significant periods of time they are with him” [paragraphs 37 and 38].  Because both parties had almost equal care of the children, he decided that costs would follow the event.

This was confirmed by the Court of Appeal in C.A.M., where Rosenberg J.A. stated at paragraph 45 that the costs claimed by the Respondent “was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child.”

Accordingly, although the affordability of a costs award is a factor in the awarding of costs, this can work both ways, particularly where the needs of a child or children are in issue.  While costs payable by a custodial parent may be mitigated by the needs of the child in that party’s care, the opposite may apply where a successful party, as in the present case, has custody of the child.  The legal expenses paid by Mr. Polak for his representation at this trial will affect the financial means with which he can bear the costs of the children in his care.  This is particularly so where the child support payable by the Applicant is set at a minimal amount based upon income imputed to the Applicant as in the judgment.

Therefore, even though Mr. Polak may be financially better off than is the Applicant, he also has the burden of financially meeting the children’s needs with little assistance from the Applicant.  He is also obliged to pay spousal support to the Applicant.  Any reduction of costs payable to him would also directly affect his financial ability to meet the children’s needs.

Finally, it must be noted that the means of the unsuccessful party may not be used to shield his or her liability for costs where that party has acted unreasonably:  see Parsons v. Parsons, 2002 CanLII 45521 (ON SC), [2002] O.J. No. 3034 (S.C.J.) at paragraph 12.”

         Polak v. Polak, 2013 ONSC 6243 (CanLII) at 25-29

“Family law litigants are entitled to one settlement conference unless otherwise permitted by the case management judge. They are expected to come to that conference fully compliant with all the Family Law Rules. A settlement conference should not be the forum to dispute and adjudicate upon disclosure issues where there are numerous items in dispute the relevance and proportionality of which can only be determined by a motion. To hold a settlement conference otherwise is a complete waste of the court’s valuable time and the parties’ resources. Either parties come to a settlement conference prepared to discuss settlement confident that they have as much relevant information as obtainable to assist them or they come unprepared. The parties in this case are clearly unprepared. Non-compliance with the above Rules is evidence of that. None of the Rules is permissive.

It is inconceivable that a party who raises serious disclosure shortcomings can make an informed settlement decision or that a lawyer can competently give settlement advice to such a client. A settlement conference is not a disclosure dartboard.

As noted by Kiteley J. in Greco-Wang v. Wang, 2014 ONSC 5366, “[m]embers of the public who are users of civil courts are not entitled to unlimited access to trial judges”. While that observation was made in the context of a Trial Scheduling Conference, it is equally, if not more, pertinent to settlement conference events. Too often serial settlement conference events are permitted in circumstances where there are continuing complaints about inadequate or refused disclosure impacting a party’s ability to make an informed settlement decision. That practice must end.

…

The parties are entitled to one settlement conference unless otherwise ordered. Either they comply with their disclosure obligations, bring a disclosure motion if they are dissatisfied with the other’s disclosure and comply with the Family Law Rules or their day in court will not happen any time in the near future. A settlement conference can serve many purposes. Serialized mediation is not one of them.

         Ni v. Yan, 2020 ONSC 5941 (CanLII) at 8-10 & 12

“As discussed previously, the respondent’s motion was brought ex parte.  The Court of Appeal for Ontario, in a family law case, has made clear that an ex parte motion is to be used only in exigent circumstances, that the party bringing the motion must make full and fair disclosure of all material facts, including facts that may not be helpful to that party, that an ex parte order obtained without full and fair disclosure may be set aside even if the lack of full disclosure was unintended, and that the foregoing principles, well known to lawyers, apply equally to self-represented parties:  see M.(A.) v. M.(J.), 2016 ONCA 644, at paras. 26-30, reproduced below:

ANALYSIS

Issue 1: Did the appeal judge err by upholding the trial judge’s finding that the father obtained an unlawful status quo on the ex parte motion?

(1) Ex Parte Orders

26      Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if “there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.” If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.

27      These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

28      Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368 (Ont. S.C.J.).

29      Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

30      That requirement is well-known to lawyers. It applies equally to self-represented parties.

The foregoing discussion in M.(A.) v. M.(J.), supra, also focusses on r. 14(12) of the Family Law Rules, O. Reg. 114/99, which deals with circumstances in which an ex parte motion may be brought.  That rule makes clear that an ex parte motion is generally restricted to situations where there is immediate danger of a child’s removal from Ontario, or immediate danger to the health or safety of a child or the party making the motion and where, in those circumstances, any delay in serving the motion would probably have serious consequences.  The respondent’s decision to proceed ex parte did not come within any of the circumstances itemized in r. 14(12).”

            Campbell v. Campbell, 2019 ONSC 5493 (CanLII) at 53-54

“To the extent that one parent argues that access by the other parent must be supervised by a third party, that parent bears the burden of demonstrating that supervision is justified. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein.”

         Gray v. Canonico, 2020 ONSC 5885 (CanLII) at 45

“The court has a broad discretion to find value, even in the absence of solid valuation evidence: McLean v. McLean, [2004] O.T.C. 904 (Ont. S.C.J.), at para. 49, citing Tremblay v. Tremblay, 2002 CarswellOnt 484 (Ont. S.C.J.). In Felte v. Felte (2004), 3 R.F.L. (6th) 37 (Ont. C.A.) the Court of Appeal stated that where the evidence is unsatisfactory and incomplete, a trial judge must use the evidence he or she does have, in attempting to come to a reasonable and fair result.”

Shah v. Shah, 2018 ONSC 5784 (CanLII) at 85

“A party cannot establish a new habitual residence by surreptitiously removing the child to another country.  A relocation by self-help will not establish jurisdiction: Carter v. Brooks (1990), 30 R.F.L. (3d) 52 (Ont. C.A.).  However, where the other parent consents to the move, or takes no steps when made aware of the move, either agrees or acquiesces in the child moving, as provided in section 22(2)(b), a new habitual residence is created: A.M. v. D.L., 2019 ONCJ 155 (CanLII) at 44-45.”

         Z.A. v. A.A., 2019 ONSC 5601 (CanLII) at 33