Author: dawi

“Under Rule 25(19)(e) of the FLR, if the moving party has provided a satisfactory reason for being unable to attend in court, the court may exercise its discretion and set aside the decision made all or in part.

As emphasized by the Court of Appeal in Gray Rule 25(19)(e) of the FLR must be construed in light of the primary objective set out in Rules 2(2) and 2(3).  Rule 2(3) states:

Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c)  dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Where, as is more often than not the case, a party is self represented, the court must also be mindful of the  Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23.  These principles include the following:

• • • Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

• • • Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
  • • Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
  • • Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
  • • Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not.  Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
  • • Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”

Gray v. Gray, 2017 ONSC 5028 (CanLII) at 29-31

“Mr. Spencer acknowledges that Ms. Spencer is and has been a good parent. Ms. Spencer’s evidence is that the children were doing well with her after separation and had adapted to the routine that the parties had put in place. This is not disputed by Mr. Spencer. Accepting, as I do, that Mr. Spencer has been a good and caring parent, nevertheless on an interim motion where there is evidence that the children are doing well, the court is inclined to maintain the status quo in the absence of convincing reasons to the contrary. The court should be careful not to further disrupt the lives of the children by a major change in their lifestyle at an interim stage.”

Spencer v. Spencer, 2006 CanLII 34454 (ON SC) at 25

“The concerns respecting the Father’s use of drugs meets the test of a material change of circumstances that warrants supervision.  Drug or alcohol addiction on the part of one of the parents, coupled with the children doing poorly as a result of the parenting regime, qualify as compelling reasons to vary a temporary Order.  (See for example, Shotton v. Switzer, 2014 ONSC 843 (CanLII).)”

         Kazanzhy v. Yozef, 2020 ONSC 4985 (CanLII) at 50

“The Mother’s lawyer argued that because the child lived primarily with her mother, her place of habitual residence was with her mother, regardless of where she lived.  She further argued one parent can change a child’s habitual place of residence and refers to the hybrid approach set out recently by the Supreme Court of Canada: Office of the Children’s Lawyer v. Balev, 2018 SCC 16.  The legal point she has missed is that the court considers the child habitual place of residence immediately prior to the removal, not subsequent to the removal.  Further, in Balev, the children had lived in Germany and moved to Ontario for the school year with both parties’ consent.  After the consent period lapsed, the children remained in Ontario.  The question in Balev was whether a child’s habitual residence can change while he or she is staying with one parent in another country under the time limited consent of the other. In the case before me, the father did not consent to Noemi moving to Canada and did not even know where she was for quite some time after her removal.  The facts are entirely different.”

         Monari v. Ojo, 2019 ONSC 4879 (CanLII) at 8

“As held by Binnie J. in Wood, access to legal advice is a fundamental right in Canada. There is nothing that limits this right to adults.

As stated by the Court of Appeal in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, childhood is not a “legal disability” disentitling children from the right to retain and instruct counsel. At paras. 71 and 72, the Court noted the right of children to speak to counsel in a private, confidential sphere so that their voices can be heard.

Children consult and retain lawyers regularly across Ontario without prior permission from their parents or the court on topics as diverse as immigration, housing, education, criminal law, health law, and many other topics including family law. JFCY is a legal clinic that specializes in providing legal advice to young people. The argument that parental permission or court authorization is required before [Justice for Children & Youth] JFCY can give advice to children would undercut its ability to do its work. The position of the respondent father that his permission, as the court-ordered custodial parent, was required before his son can consult a lawyer, is, simply put, wrong.

In fact, the [Child Youth and Family Services Act, 2017] CYFSA reinforces this view.

The preamble to the CYFSA states that children are “individuals with rights to be respected”.

Section 10(1)(b) of the CYFSA provides that a child in care, which was A.G.’s status at the time the order in this case was made, is entitled to speak in private with and receive visits from a lawyer.

Children over the age of seven have a right to independent legal advice in adoptions.

The CYFSA also permits children of 12 years of age or over the right to seek to vary or terminate supervision, interim or extended custody orders (CYFSA, ss. 113(4)(a), 115(4)(a)), implying that they have a right to seek legal advice before doing so.

A child also has a separate and distinct right to participate in CYFSA proceedings apart from direct representation. Section 79(4) states that a child 12 years of age or older is entitled to receive notice and be present at the hearing, unless the court is satisfied that their presence would cause the child emotional harm.

The CYFSA’s reference to international human rights instruments also reinforces the rights of children to obtain independent legal advice.

The preamble to the CYFSA states “… 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”.

The United Nations Committee on the Rights of Children’s General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC/C/GC/14, recognizes at para. 4 that a child’s right to legal services forms part of the protection of their best interests. General Comment No. 12 (2009), The right of the child to be heard, 20 July 2009, CRC/C/GC/12, links the right to legal services with the right of the child to understand their rights and the processes in which decisions are being made about them. Paragraph 16 states:

The child, however, has the right not to exercise this right. Expressing views is a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or her best interests.

Children are entitled to seek legal advice without permission from their parents or the court. No authority was cited to us to the contrary. Neither Rule 4(7) of the Family Law Rules nor s. 78 of the CYFSA speaks to this point. Indeed, by necessary implication, Rule 4(7) and s. 78 of the CYFSA must indicate the contrary: in order for a child to move under these provisions, the child will usually have to consult a lawyer before court permission to participate in the proceeding can be sought.

While we agree that the court could intervene in a particular solicitor-client relationship between a lawyer and a child, we have difficulty imagining a case where the court would make an order that entirely precluded a child from seeking and obtaining legal advice from any lawyer. It certainly may be appropriate for the court to intervene in a parental alienation case where the lawyer is closely allied with one parent. However, in such cases, the court would ordinarily facilitate an arrangement for the child to obtain legal advice elsewhere, and certainly would not prohibit the child from getting legal advice altogether.

Where a child wishes to receive legal advice, many factors can come into play in identifying and arranging for that counsel. We do not find it necessary to canvass the spectrum of approaches that are available. However, where, as here, a child has independently sought out the assistance of a legal clinic that specializes in dealing with children in crisis, it is hard to imagine that there would be many circumstances, if any, that would justify terminating that relationship.”

         Justice for Children and Youth v. J.G., 2020 ONSC 4716 (CanLII) at 51-65

“The Father wants Mr. Furlan to be moved as counsel for the Mother. He also wants any member of Mr. Furlan’s firm disqualified from representing the Mother.

The Superior Court of Justice has the inherent jurisdiction to determine, in a judicial manner, to whom it will give audience and may disqualify counsel by reason of conflict of interest or other juristic reason: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at p. 1245.

In determining whether counsel should be disqualified, the court is concerned with at least three competing values. First, is the desire to maintain the high standards of the legal profession and the integrity of our system of justice. Second, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession: MacDonald at p. 1243. The third value addresses the situation when counsel change firms, which is not applicable in the case before me.

One of the most common reasons to seek the disqualification of counsel is if there is a conflict of interest. In those cases, the court will remove that counsel if there is a possibility of real mischief. In these instances, “mischief” refers to the misuse of confidential information by a lawyer against a former client. This is because justice must not only be done, but also must manifestly be seen to be done: MacDonald at p. 1246.”

         Lopes v. Glover, 2020 ONSC 4915 (CanLII) at 51-54

“I have also considered, but must reject, the suggestion of joint custody for Jersey.

In Canadian law, there is no default position in favour of joint custody, as each case is fact-based and discretion-driven.”: Rapoport v. Rapoport, 2011 ONSC 4456 (S.C.J.), at para. 47. In considering whether joint custody is appropriate, “the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children.”  Ibid. at para. 48, citing Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.), and Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, 10 R.F.L. (6th) 373 (C.A.).

In Kaplanis v. Kaplanis, our Court of Appeal held that in order to grant joint custody, there must be “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”: Kaplanis v. Kaplanis, at para. 11.  Merely “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.” Ibid. The rationale is that the best interests of the child will not be served if the parents are unable to make important decisions concerning the child under a joint custody arrangement: Kalliokoski v. Kalliokoski, at para. 34.

Moreover, in some situations, a joint custody order may actually defeat the child’s best interests. As Pazaratz J. stated in Izyuk v. Bilousov, “[i]n 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: Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.), at para. 504, quoted and followed in Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para.27 per Chappel J.

         Angus v. Angus, 2017 ONSC 4911 (CanLII) at 65-68

“The leading case on the application of s.9 is the Supreme Court of Canada case of Contino v. Leonelli-Contino: 2005 SCC 63. The framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.

The first factor requires that the Court determine the parties’ incomes and calculate the simple set-off amount. The simple set-off is the “starting point” of the s.9 analysis, but the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another: Contino, supra, at 40 and 49-51.

Section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. The Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the child care expenses will be apportioned between the parents in accordance with their respective incomes: Contino, supra, at 52-53.

Section 9(c) vests in the Court a broad discretion to conduct an analysis of the resources and needs of both parents and the children. It is important to keep in mind the objectives of the CSG, requiring a fair standard of support for the children and fair contribution from both parents. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection:

a.  Actual spending patterns of the parents;

b.  Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and

c.  Standard of living for the children in each household: Contino, supra, at 71-72.

The Court has discretion to assess the ability of each parent to assume any increased cost of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

The Court has full discretion under s.9(c) to consider “other circumstances” and order the payment of any amount, above or below the Table Amounts. This discretion, if properly exercised, should not result in hardship.”

 Moreton v. Inthavixay, 2020 ONSC 4881 (CanLII) at 62-67

“The law regarding a lawyer`s authority to bind his client to a settlement is clearly set out in two decisions:

a.  In Scherer v. Paletta1966 CanLII 286 (ON CA), [1966] 2 O.R. 524, the Court of Appeal states the following:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. A client, having retained a solicitor in a particular matter, holds that solicitor out as his agent to conduct the matter in which the solicitor is retained. In general, the solicitor is the client’s authorized agent in all matters that may reasonably be expected to arise for decision in the particular proceedings for which he has been retained. Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent’s authority.

b.  In Dick v. McKinnon, 2014 ONCA 784, at para. 4, the Court of Appeal states:

This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary.””

Alston v. Alston, 2016 ONSC 5062 (CanLII) at 12

“Having found that the family law application and the civil action have a question of fact or law in common, I must now decide whether it would be appropriate to consolidate the two proceedings or to order that they be tried together. There are many good reasons to order consolidation or trial together, among them, to avoid a multiplicity of related proceedings, to avoid inconsistent findings, to reduce costs and save time for the parties and to save court time and related resources: Canadian National Railway v. Holmes, 2011 ONSC 4837.

In Canadian National Railway v. Holmes, at para. 44, D. M. Brown J., as he was then, referred to 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 at para. 18 and a list compiled by Master Dash of factors a court may consider when faced with a request to consolidate proceedings or to order trial together. The factors, which may or may not apply depending on the circumstances, include:

a)  the extent to which the issues in each action are interwoven;

b)  whether the same damages are sought in both actions, in whole or in part;

c)  whether damages overlap and whether a global assessment of damages is required;

d)  whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

e)  whether the parties the same;

f)   whether the lawyers are the same;

g)  whether there is a risk of inconsistent findings or judgment if the actions are not joined;

h)  whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

i)  whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

j)   the litigation status of each action;

k)  whether there is a jury notice in one or more but not all of the actions;

l)   whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

m) the timing of the motion and the possibility of delay;

n)  whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

o)  any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

p)  whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

q)  whether the motion is brought on consent or over the objection of one or more parties.”

         Klassen v. Klassen, 2020 ONSC 4835 (CanLII) at 39-40