Author: dawi

“The parties agree that both Ontario and France have jurisdiction, and therefore, the forum non conveniens test should be used to determine the most appropriate location for the resolution of their dispute.  In the recent decision of Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 343 D.L.R. (4^th) 577, in which this area of the law was comprehensively considered, the Supreme Court held it was not possible to draw up an exhaustive list of relevant factors.  However, at para. 110, the court identified such factors as including:

• • • • the locations of parties and witnesses,

• • • • the cost of transferring the case to another jurisdiction or of declining the stay,

• • • • the impact of a transfer on the conduct of the litigation or on related or parallel proceedings,

• • • •   the possibility of conflicting judgments,

• • • • problems related to the recognition and enforcement of judgments, and

• • • • the relative strengths of the connections of the two parties.

In order to succeed in this appeal, Mr. de Somer must demonstrate that France is “clearly more appropriate” as the forum for the determination of child support: Van Breda, at para. 109.”

         de Somer v. Martin, 2012 ONCA 535 (CanLII) at 29-30

“The Courts of Justice Act allows a Receiver/Manager to be appointed where it appears to the judge to be just or convenient to do so.  Specifically, s. 101 (1) says:

          Injunctions and receivers

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted, or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge to be just or convenient to do so.

           R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

There is further authority for the appointment of a receiver pursuant to the Family Law Rules under Rule 26(3)(g) and Rule 26(4)(c):

Rule 26: Enforcement of Orders

26. (3) PAYMENT ORDERS – A Payment order may be enforced by…

(g) the appointment of a receiver under section 101 of the Courts of Justice Act;

26 (4) OTHER ORDERS – An order other than a payment order may be enforced by…

(c)  the appointment of a receiver under section 101 of the Courts of Justice Act.

Receivers may be appointed on a motion pursuant to Rule 41 of the Rules of Civil Procedure, which may be referred to pursuant to Rule 1(7) of the Family Law Rules:

Rule 41 – Rules of Civil Procedure – Appointment of a Receiver

            …

HOW OBTAINED

Rule 41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be obtained on motion to a judge in a pending or intended proceeding.

FORM OF ORDER

Rule 41.03 An order appointing a receiver shall,

Name the person appointed or refer that issue in accordance with Rule 54;

Specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of the receiver’s duties, or refer that issue in accordance with Rule 54;

State whether the receiver is also appointed as manager and, if necessary, define the scope of the receiver’s managerial powers; and

Contain such directions and impose such terms as are just.

REFERENCE OF CONDUCT OF RECEIVERSHIP

Rule 41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.

DIRECTIONS

Rule 41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the referee.

DISCHARGE

Rule 41.06 A receiver may be discharged only by the order of a judge.

…

Rule 1 (7) Family Law Rules

Rule 1 (7) MATTERS NOT COVERED IN RULES – If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

…

Pursuant to Rule 1(8) of the Family Law Rules, the court may deal with the failure to obey an order by making any order that it considers necessary for a just determination of the matter.  Lastly, the court must deal with each case justly and promote the primary objective pursuant to Rule 2(2), (3), (4) and (5).

Rule 1(8) Failure to Obey Order

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a)   An order for costs;

(b)   An order dismissing a claim;

(c)  An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) An order that all or part of a document that was required to be provided by was not, may not be used in the case;

(e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) An order postponing the trial or any step in the case; and

(g) On motion, a contempt order.

Rule 2 (2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly,

Rule 2 (3) DEALING WITH CASES JUSTLY – 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.

Rule 2 (4) DUTY TO PROMOTE THE PRIMARY OBJECTIVE – The court is required to apply these rules to promote the primary objective and parties and their lawyers are required to help the court to promote the primary objective.

Rule 2 (5) DUTY TO MANAGE CASES – The court shall promote the primary objective by active management of cases, which includes,

(a) At an early stage, identifying the issues and separating and disposing of those that do not need full investigation and trial;

(b) Encouraging and facilitating use of alternatives to the court process;

(c) Helping the parties to settle all or part of the case;

(d) Setting timetables or otherwise controlling the progress of the case;

(e) Considering whether the likely benefits of taking a step justify the cost;

(f) Dealing with as many aspects of the case a possible on the same occasion; and

(g) If appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

Generally, having regard for the words of section 101 of the Courts of Justice Act, the court has discretion to appoint a Receiver/Manager if it is just or convenient to make such an order.  This remedy will only be granted in cases where special circumstances exist.  There are many cases that outline the special circumstances under which a Receiver/Manager will be appointed.  An order appointing a Receiver/Manager may be properly made if there are no means of legal execution available to the creditor, or if the creditor demonstrates to the court that it is “practically very difficult, if not impossible, to obtain the fruit of his judgement” through legal execution. See Sengmueller v. Sengmueller, [1996] O.J. No. 1942, (Ont. C.J. Gen. Div.) and Goldschmidt v. Oberrheinishe Metallwerke, [1906] 1 K.B. 373.”

         Renard v. Renard, 2019 ONSC 4732 (CanLII) at 9-13

“Mr. Clapp asserts that Ms. Clapp’s interest in the Oceana Trust was worth more than $5 million on December 31, 2012.  He says that, based on the gifts she received from her mother during their marriage, $100,000 in annual income should be imputed to her for the purposes of calculating his entitlement to spousal support.

Ms. Clapp states that she is one of several beneficiaries of Oceana Trust, which is managed by an institutional trustee, St. George’s Trust Company Limited.  She states that she has no control over what the trustee produces, and that she has produced all that she has received.  This documentation discloses when the Trust was settled, the value of its assets, and what funds it has disbursed.  Ms. Clapp argues that, contrary to Mr. Clapp’s assertions, she does not receive frequent disbursements from the Trust.

The Divorce Act provides, in section 15.2(4), that the court, in making orders for spousal support, “shall take into consideration the condition, means, needs and other circumstances of each spouse.”

The court employs the methodology set out in the Federal Child Support Guidelines to determine income for purposes of spousal support as well as child support.  Olah J. noted in Rilli v. Rilli that the test for imputing income for child support purposes applies equally to claims for spousal support: Rilli v. Rilli, [2006] O.J. No. 2142.  See also: Pellerin v. Pellerin, 2009 CanLII 60671 (ON SC), 2009 CanLII 60671 (ON S.C.). The Spousal Support Guidelines provide, in this regard:

The starting point for the determination of income under both formulas is the definition of income under the Federal Child Support Guidelines, including the Schedule III adjustments.

The Advisory Guidelines do not solve the complex issues of income determination that arise in cases involving self-employment income and other forms of non-employment income.  In determining income it may be necessary, as under the Federal Child Support Guidelines, to impute income in situations where a spouse’s actual income does not appropriately reflect his or her earning capacity.

The issue of whether Ms. Clapp’s interest in Oceana Trust, or any distributions she receives from the Trust, should be included in her income, then, is determined by reference to the Federal Child Support Guidelines.  Section 19 of the Guidelines provides that the court, in appropriate circumstances (that is, where the other methods set out in sections 16 to 20 of the Guidelines are found not to be fair), may impute an amount of income to a spouse:

1. 1. 1. 19.    Imputing income. – (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

…

(i)        the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Mr. Clapp submits that he requires the disclosure requested in order to show the lifestyle of the parties during the marriage and the financial resources that Ms. Clapp has had during the marriage and since the parties’ separation.

In determining a spouse’s entitlement to support and the amount of such support, the general principle, as Aiken J. held in MacLaren v. MacLaren, is that the court does not require capital to be depleted to pay support: MacLaren v. MacLaren [2004] O.J. no 1473, S.C.J. per Aitken J at page 6. In emergency situations, the court makes an exception to this principle.  In Plaxton v. Plaxton, Granger J. stated,

… In my view, an order for interim support which would require that it be paid from capital should only be made where the recipient requires such funds to maintain a minimal standard of living.  If the effect of an interim support order is that it will be paid from capital, the order may be viewed as an attempt to equalize capital through a support order: Plaxton v. Plaxton 2002 CanLII 49545 (ON SC), 2002 CanLII 49545, (2002), 27 R.F.L. (5^th) 135 (ON S.C.), at para. 33.

Pardu J., in Jackson v. Jackson, made an exception to the general principle and ordered a husband to use capital to pay interim support where he had received over $1 million from his father, or trusts established by his father, but had a very modest income.  He stated,

Where there is a substantial history of use of capital to support a joint lifestyle, and where there has been a moderately lengthy marriage, I do not believe that a spouse should necessarily be relegated to a lifestyle appropriate to income only, rather than the other means available to the spouse, at least on an interim basis.

…While there is no evidence that the husband could obtain more remunerative employment at this time, it does not seem appropriate that his wife and children should suddenly be relegated to a lower standard of living while he enjoys a very comfortable lifestyle without any obligation on his part to seek employment.

It may be that the wife ultimately will accept a lower standard of living, and pursue more meaningful employment herself, however, I am of the view that on an interim basis, something approaching the pre-separation lifestyle should be provided to the family unit comprised of the wife and children: Jackson v. Jackson, 1997 CanLII 12392 (ON SC), 1997 CanLII 12392, [1997] 35 R.F.L. (4^th) 194, (ON.S.C.), paras. 20, 24, and 25.

Similarly, in Gonzalez v. Ross, Thorburn J., awarded spousal support to a woman based on amounts that her co-habitant, who earned only $18,000.00, had received as an inheritance and as gifts from his father.  He stated:

The case before me does not involve a long-term marriage and it is not clear on the evidence adduced by Ross, that he can or should provide spousal support in the long-term as he contends that his capital and his own standard of living have been reduced.  However, there has been a sudden and dramatic decline in Gonzalez’ income.  As such, notwithstanding my reservations set out above, I believe Gonzalez should receive some interim support. Gonzalez v. Ross, 2007 CanLII 3880 (ON SC), 2007 CanLII 3880 (ON SC), paras. 53 to 56 [Emphasis added]

In Laurain v. Clarke, after reviewing the jurisprudence, I concluded that capital amounts should not generally be regarded as income for the purpose of calculating support but that the income they can reasonably generate should be imputed to the payor spouse for purposes of calculating the amount of support: Laurain v. Clarke, 2011 ONSC 7195 (CanLII), at para. 55.

The court has identified the following factors, most of which help distinguish between income and capital, that should be considered when determining whether an amount received should be included in income for the purposes of calculating child or spousal support:

a)      Is the amount included in income for purposes of income tax?

b)      Is the amount capital that generates income?

c)      Is the amount, if capital, compensation for loss of income?

d)      Has the amount, if capital, been equalized, or is it exempt?

e)      Is the payment of the amount gratuitous?

f)         Is the payment of the amount recurrent?

g)      Were the funds typically used to finance a significant proportion of the recipient’s living expenses?”

         Clapp v. Clapp, 2014 ONSC 4591 (CanLII) at 18-28

 “There are two principles at play: the status quo should generally not be disturbed on an interim motion; but the parent who unilaterally creates the status quo should not benefit from the status quo she or he has created.”

Adams v. Nobili, 2011 ONSC 4714 (CanLII) at 22.

“In cases where sexual abuse has been alleged but not confirmed, the court must first consider whether it is satisfied on the balance of probabilities that it occurred.  But even where the evidence does not support a finding of sexual abuse on a balance of probabilities, the court must go further and consider, on the basis of the whole of the evidence, whether there is a risk of harm to the child if access is given without protection against that risk.  A risk must be more than speculative or simple conjecture (C.B. v. W.B., 2011 ONSC 3027, at paras. 125-137).  In this regard, I adopt the conclusion set out by Justice Ricchetti in C.B. v. W.B., supra, at para. 139:

In conclusion, the court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child.  It requires the Court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason).  The Court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize.  The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes.   Where this risk of harm falls along this continuum will determine the weight to be given to this factor.  This is then only one factor in determining what is in the best interests of the child.  The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.”

L v. K., 2015 ONSC 4926 (CanLII) at 35

“Justice Katarynych in Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465, 59 R.F.L. (6th) 219 provides an excellent summary of the law of recusal on the basis of judicial bias or lack of impartiality.  The relevant portion of his decision is reproduced below:

18 An allegation of judicial bias is one that counsel should make “only after careful and anxious reflection.” A finding of real or perceived bias is serious business. It calls into question an element of judicial integrity — not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

19 When considering the issue of bias in regard to a judge, there is a starting presumption of impartiality; specifically, that judges in their exercise of any judicial duty, will be faithful to that part of their oath of office that requires them to act impartially, which in its essence is a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions.

20 Bias, on the other hand, denotes a state of mind or attitude that is in some way predisposed to a particular result or that is closed to a particular issue.

21 The criteria for determining when an apprehension of bias arises are those first enunciated in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:

…the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information… the test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly?

22 It is a test that has been consistently followed in Canada for more than 20 years.

23 There is a two-fold objective element to this test:

• • • • • the person considering the alleged bias must be reasonable; and

• • • • • the apprehension of the bias itself must also be reasonable in the circumstances of the case.

24 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. The grounds advanced for this apprehension must be substantial. The test is not related to the “very sensitive or scrupulous conscience”.

25 The onus of demonstrating real or perceived bias lies with the person who is alleging its existence.

26 The belief of the applicant and his counsel that the applicant would not receive a fair hearing before a particular judge is not the standard against which apprehension of bias is measured. The apprehension of bias must be considered objectively through the eyes of a fully informed, reasonable person who is reacting reasonably in the circumstances.

27 If the applicant is to succeed, the evidence in the motion must rise above the imaginary or conjectural sentiments of the applicant and demonstrate real likelihood or probability of bias.

28 The applicant’s task is to show wrongful or inappropriate declarations showing a state of mind that sways judgment — a predisposition that is so great that the judge is not open to persuasion upon presentation of new evidence or new arguments.

29 The presumption of judicial impartiality will only be displaced with cogent evidence that something a judge has done gives rise to actual bias or a reasonable apprehension of bias — evidence that would cause a reasonable person who understands the contextual issues and the law governing the case to believe that the particular judge would not entertain the various points of view with an open mind.

30 The specific complaints raised by the applicant in support of his recusal motion are to be construed in light of the entire proceedings. Regard must be had to the cumulative effect of all of the relevant factors. See R. v. S. (R.D.), supra. See also R. v. Giroux, supra.

31 Judicial officers should not accede too readily to allegations of actual or appearance of bias. Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the applicant’s suggestions, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Bernard v. Fuhgeh, 2017 ONSC 4727 (CanLII) at 19.

“The definition of “property” casts a wide net.  It includes a tractor and construction equipment dealership business, as in Poirier v. Poirier, 2005 CanLII 38106 (ON SC), [2005] O.J. No. 4471 (S.C.), where Charbonneau J. said:

Here the dealership represents a real asset which continues not only to provide a lucrative income stream, it also continues to have a real value which can be sold, transferred or otherwise disposed.  I fail to see any unfairness.  Mrs. Poirier has her half of the value of the shares converted into a liquid asset earning interest and Mr. Poirier has his half of the value of the shares invested in a business earning business income.  It is only the parties’ respective incomes, not the divided asset, which are considered for the purpose of fixing spousal support.

The definition of “property” includes a book of business of a self-employed financial advisor:  see Mavis v. Mavis, 2005 CarswellOnt 1649 (S.C.).

The definition of “property” includes a medical practice:  see Forest v. Hill, 1991 CarswellOnt 272 (Gen. Div.).

The definition of “property” includes a real estate commission, even though the transaction closed after the date of separation: see Cosentino v. Cosentino, 2015 ONSC 271.

The Court of Appeal, in Lowe v. Lowe (2006), 2006 CanLII 804 (ON CA), 206 O.A.C. 293, dealt with the question of whether workers compensation payments ought to be included as “property” in the equalization calculation.  The parties were married in 1984 and separated in 2003.  The husband was injured in 1985 and received a permanent disability pension from WSIB in the amount of $221.15 per month for life.  The Court of Appeal began with a review of the proper way to interpret the definition of “property” in the Family Law Act. At paras. 12 – 15 the court said:

The definition of “property” in the FLA, s. 4 is admittedly broad.  It includes, for example, a stream of income derived from a trust: see Brinkos v. Brinkos (1989), 1989 CanLII 4266 (ON CA), 69 O.R. (2d) 225 (Ont. C.A.).  However, the definition of property is not without limits.  In Pallister v. Pallister (1990), 1990 CanLII 12272 (ON SC), 29 R.F.L. (3d) 395 (Ont. Gen. Div.), at 404-405, Misener J. acknowledged the apparently “all-encompassing nature of the definition of ‘property’” but pointed out that as “property in law is simply a right or collection of rights” identified by “no single criterion or even a discrete number of criteria”, interpretation is required to contain the category of property within limits appropriate to achieve the purpose and object of the legislation as a whole:

It seems to me therefore that when the word appears in legislation defined in the broadest possible way, the limits are to be found through a consideration of the scope of that legislation, and the objects it seeks to accomplish.  If the definition of the right or rights as property is consistent with the scheme of the legislation and advances its objects, then it should be so defined.  If either of those attributes is absent, then, unless the right or rights under consideration fall within a category that has been legally recognized as property heretofore, it should not be so defined.

I agree with this approach.  It is consistent with the “modern approach” to statutory interpretation, set out in R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4^th ed. (Toronto: Butterworths, 2002) at p. 1 and adopted by the Supreme Court of Canada (see Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559 (S.C.C.) at para. 26):

the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

As Misener J. put it at 406, this purposive and contextual method of statutory interpretation allows “the courts to insure [sic] that the broad definition employed is kept within the bounds of the scope of the Act.”  In keeping with the “modern” approach to statutory interpretation, s. 4 should not be read as including any and every interest, even those bearing no relationship to the marriage partnership, simply because that interest is not specifically excluded.  While the scheme of the FLA is to give a broad definition to property and then exclude certain specific types of property, I agree with Misener J. that the definition of property itself must be given meaningful content and that meaningful content imposes limits on the definition of property limits apart from the specific exclusions.  Misener J. held, at 405, that the wife’s monthly benefits from an Armed Forces Disability Pension, found on the facts to amount to a permanent pension, were not “property” within the meaning of s. 4:

The Family Law Act purposely eschews any attempt to equalize all the assets owned at the date of separation. Rather it seeks only to equalize the assets the accumulation of which occurred during the marriage, and then only those assets that can fairly be said to bear some relationship to the partnership that the marriage is said to create.  Accordingly, there is provision in Section 4(1) for the deduction of the value of property owned on the date of the marriage on the ground that that value was acquired prior to the marriage, and in Section 4(2) for the exclusion of property acquired by gift or inheritance after the date of the marriage and for the exclusion of the right to damages for personal injuries suffered after the date of the marriage, on the ground that the acquisition of that property bears no relationship to the marriage partnership.

The disability pension bore no relationship to the marriage partnership but rather arose because of a disability that impeded the recipient’s capacity to earn a livelihood.  It followed, reasoned Misener J., that the stream of benefits to be received post separation should not be capitalized and included as family property for purposes of equalization.  The benefits would be taken into consideration with respect to spousal support, but they fell outside the category of “property” and could be distinguished from a pension earned as part of a spouse’s remuneration during the marriage.

The distinction in Lowe was between income and property.  In this case, the income received by Abitbol PC is based on contracts between Mr. Abitbol and his clients.  Although the amount payable is calculated as a percentage of WSIB benefits received by the clients, the character of the amount payable to Abitbol P.C. does not change.  In this case, the contracts are akin to Accounts Receivable.  They are payable under contract.  They are not uncertain and they are not discretionary.”

Abitbol v. Abitbol, 2020 ONSC 4619 (CanLII) at 24-29

“Section 23 (of the Children’s Law Reform Act) sets out a serious harm exception to the limits on Ontario’s jurisdiction to make custody and access orders established by ss. 22 (jurisdiction) and 41 (enforcement of extra-provincial orders):

Serious harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

This court has determined that the serious harm analysis under the CLRA is less stringent than the “intolerable situation” test under the Hague Convention. Laskin J.A. came to this conclusion in Ojeikere, at paras. 59-61 because of the different wording used in the CLRA and also:

… because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases … Some non-signatory countries may do so; others may not.

In Ojeikere, Laskin J.A. took a holistic approach to the determination of serious harm and concluded that, based on a combination of factors, the children were at risk. He considered: (i) the risk of physical harm; (ii) the risk of psychological harm; (iii) the views of the children; and (iv) the mother’s claim that she would not return to the habitual residence even if the children were required to do so.

Here, the application judge determined that Ontario could not exercise jurisdiction to make custody and access orders because she was not satisfied on a balance of probabilities that the children would suffer serious harm if returned to Kuwait. In coming to this conclusion, she discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence. She made this assessment in the face of uncontradicted evidence from three separate OCL experts that the children’s views were in fact independent. She did not explain why this expert evidence should be rejected. This was an error.

The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests – which is engaged in all child-related matters – must incorporate the child’s view.”

         M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII) at 42-46

“Subrule 19(11) directs a consideration of any legal privilege that might operate to exclude the production sought. The Attawapiskat FN raised privacy concerns for all family members and argued the release of the records would cause prejudice to the parents.  Yet none of the parties squarely addressed the question of legal privilege or provided the court with the applicable law.

A legal privilege aimed at protecting a privacy interest in a communication, document or record is well established in the common law.  Its principles have been considered and elaborated by the Supreme Court of Canada in several contexts. See:  Slavutych v. Baker et al., 1975 CanLII 5, SCC; R v. Gruenke, 1991 Can LII 40 (SCC); A. (L.L. v. B.(A.), 1995 Can LII 52 (SCC); and M.(A.) v. Ryan, 1997 Can LII 403 (SCC)( “Ryan”).

In Slavutych v. Baker et al., supra, the Supreme Court adopts the 4-part Wigmore test to articulate the approach for establishing a case- by- case privilege. The SCC’s expression of this test in Ryan, at para. 20 is as follows:

First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

The court in Ryan sets out a number of principles including:

(1)  The law of privilege must evolve to reflect the social and legal realities of our time. This means the common law of privilege must be developed in accordance with Charter values, such that existing rules are scrutinized to ensure they reflect the values the Charter enshrines. (See paras.  21 – 22)

(2)  Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. (See para. 37)

(3)  It is not essential for the court to examine every document to assess the claimed privilege. (See para. 39); and

(4)  An all or nothing approach to production should be rejected in favour of partial privilege and companion tailor-made production orders that include provisions for redaction, and limiting reproduction and dissemination. (See para. 33)

In G.(L.) v. B.(P)., 1996 Can LII (ONCJ), the court concludes the first branch of the Wigmore test is not satisfied in relation to child protection records, noting the relationship between a parent and the society is not a confidential one. As Brownstone J. puts it at para. 12:

The relationship and dynamic between parents and the society is complex and can oscillate between one of voluntariness, in which guidance, counselling and assistance are sought and provided, to one in which parents co-operate with the society in order to avoid court proceedings, to a highly adversarial one where the society seeks to remove children from their parents. Given this reality, I cannot see how society workers could give a parent any assurance of confidentiality in respect of communications regarding the children, when at any time such information might be relied upon by the society in a protection proceeding. A parent such as the respondent who has been the subject of investigations by the society could not have any reasonable expectation of privacy.”

M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 (CanLII) at 35-39

“Where there is a status-quo arrangement, however, courts have been clear that such arrangements should be respected in order to provide stability in the lead-up to a trial. In Coe v. Tope, 2014 ONSC 4002, at para. 25, Justice Pazaratz explained that parenting determinations at temporary motions meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process.  Pazaratz J. held that the status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interests demand an immediate change.

In Mott v. Green, 2020 ONSC 3761, Bondy J. summarized the case law on status quo parenting arrangements as follows (at paras. 38-39):

[38] The best interests of the children are to be considered in the context of the litigation. The issue before me is interim custody or residency. “[A]ny temporary order granted is always intended only to stabilize separated parties’ circumstances until trial, when a full and complete consideration can be conducted…” (see Sellick v. Bollert, 2004 CanLII 18894 (ON SC), [2004] O.J. No. 2022, 4 R.F.L. (6th) 185, at para. 16). “Stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children” (see Donley v. Donley, [2008] O.J. No. 3445, 51 R.F.L. (6th) 164, at para. 91; Kimpton v. Kimpton, [2002] O.J. No. 5367; Dyment v. Dyment, 1969 CanLII 544 (ON SC), [1969] 2 O.R. 631; Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5; and Lancaster v. Lancaster (1992), 1992 CanLII 14032 (NS CA), 38 R.F.L. (3d) 373).

[39] “In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change” (see: Madill v. Madill, 2014 ONSC 7227, [2014] O.J. No. 5952, at para. 31; Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton; and Easton v. McAvoy, 2005 ONCJ 319). The onus is on the party seeking to disturb a status quo arrangement with respect to the custody of children” (see Donley v. Donley, para. 91, and Norland v. Norland, [2006] O.J. No. 5126, 2006 CarswellOnt 8253).”

Al Tamimi v. Ramnarine, 2020 ONSC 4558 (CanLII) at 36-37