Category: Uncategorized

“Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities: R. v. Millard, 2018 ONSC 4410. The test for the admissibility of expert opinion evidence was enunciated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9  and further refined in White Burgess Langille Inman v. Abott and Haliburton Co, 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182.  

Justice Penny Jones urged in The Children’s Aid Society, Region of Halton v. J.B. and D.T., 2018 ONCJ 884, at para. 12:

Given the real risk that a miscarriage of justice will arise from the too ready admission of unreliable expert opinion evidence into the trial record for consideration by the trier of fact (examples which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the experts and the nature of the opinion evidence sought to be introduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process given its unreliability and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640 (CanLII) [Emphasis added]

Justice Kathleen Baker in Ogwadeni: deo Six Nations Child Welfare v. K.L.H., 2021 ONCJ 339 (CanLII) at paras 18 and 19, succinctly summarized the two-stage process for the admission of expert evidence as follows:

(18) Expert evidence is admissible when it meets the test set out in the following two stage process:

First, the evidence must meet the threshold requirements of admissibility.  Accordingly:

a)     The evidence must be logically relevant,

b)     The evidence must be necessary to assist the trier of fact,

c)      The evidence must not be subject to any other exclusionary rule,

d)     The expert must be properly qualified, and

e)     For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.

(19) The court must then proceed to the second gatekeeping stage and weigh the benefits of admitting the evidence against the potential risks considering such factors as:

a.   Legal relevance

b.   Necessity

c.   Reliability

d.   Absence of bias

Where the Court is considering evidence from a proposed expert witness whose expertise is in novel science, “special scrutiny” of that science is required. The Court must determine whether the proposed evidence meets a basic threshold of reliability to be sufficiently probative such that one can conclude that it is necessary. In so doing, the Court must consider:

(a)     whether the theory or technique can be and has been tested;

(b)     whether the theory or technique has been subjected to peer review and publication;

(c)      the known or potential rate of error or the existence of standards; and

(d)      whether the theory or technique used has been generally accepted.

The function of expert witnesses is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502. In order to exclude expert evidence due to alleged bias or partiality, the evidence must be so tainted as to be rendered it of minimal or no assistance: Carmen Alfano Family Trust v Piersanti, 2012 ONCA 297 at para 111.  An expert witness that has adopted the role of advocate for a party is not impartial: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502.

The Court should clearly define the subject area of a witness’ expertise and vigorously confine the witness’s testimony to it.”: Brandifferri v Wawanesa Mutual Insurance Co., 2011 ONSC 3200.”

          C.M. v. S.L.S., 2022 ONCJ 206 (CanLII) at 70-75

“The father asks this Court to make a finding of parental alienation.   Whether there should be a finding of alienation is a fact specific determination.

At ¶ 122 of the trial decision in Bors v. Beleuta, 2019 ONSC 7029 (aff’d by 2021 ONCA 513), Van Melle J. made a finding that a mother had alienated the children from their father.  In so doing, at ¶ 119, she adopted the following definition of parental alienation:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.

It is an abusive practice. It is child abuse when it occurs. It’s emotionally abusive. It cripples and stunts children’s development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.

So parental alienation is a process, an interactional process where systematically one parent’s role in, for the children is eroded over the course of time.

The father did not call any expert evidence about alienation, but expert evidence is not necessarily required.  See A.M. v. C.H., 2018 ONSC 6472 ¶ 107 (aff’d by 2019 ONCA 764 ¶ 31-35).  Even where there is no expert evidence, courts have relied on the list of factors that experts have developed to aid in identifying parental alienation.  See for example ¶ 108 and 109 of the trial decision in A.M. v. C.H.;  see also ¶ 194 of E.M. v. M.Q., 2021 ONCJ 533,  wherein A.W.J. Sullivan J. cited a list of 17 strategies in which an alienating parent might engage.

I am not repeating each of the behaviours or indicia of alienation here.   In summary, they include such things as involving a child in adult matters and the litigation, making false statements to a child, denigrating the other parent to a child, or in the presence of a child, fabricating allegations that the other parent is abusive, and so on.    At ¶ 121 of the trial decision in Bors v. Beleuta, Van Melle J. added to the list a parent’s continuing failure to abide by court orders can be part of the alienating behaviour.

A parent who engages in these patterns of behaviour is engaging in emotional abuse towards the child.  It is a form of family violence.   See again Bors v. Belutal ¶ 122;  see S. v. A., 2021 ONSC 5976 ¶ 26-29;  and see also Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 ¶ 110-114.

To find parental alienation, the focus is not just on the parental conduct;  the focus is also on the impact on the child.  As Nicholson J. summarized in his trial decision in A.M. v. C.H., a child may vilify the other parent, participate in the campaign of hatred, express trivial reasons to justify the hatred, have disproportionate reactions to the other parent’s behaviours, express a lack of guilt or remorse for those actions, be angry at the other parent, and mimic the alienating parent’s behaviour.  See A.M. v. C.H. ¶ 109.

And before making a finding of parental alienation, it is necessary to examine whether the rejected parent’s behaviour is the cause or a contributing factor the damaged relationship.  If the child has experienced negative behaviour by a parent that causes him or her to independently form the view that he or she does not wish to have the relationship, the case may be more aptly one of realistic estrangement.  “In true alienation cases there is an absence of an objective reason for the child to reject the other parent”.  See H.B. v. M.B., 2018 ONCJ 916 ¶ 43.” 

          W.A.C. v. C.V.F., 2022 ONSC 2539 (CanLII) at 503-509

“Where parties reach their own settlement, leaving only the issue of costs to be determined by the court, the analysis requires a cautious approach.

a.  Costs may be awarded to a party even if a case settles, if the disposition of costs was not dealt with in the settlement document – or if the minutes of settlement specifically reserve the issue of costs to be determined as the only remaining issue.  Talbot v. Talbot, 2016 ONSC 1351 (SCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ).

b.   However, where parties reach a pre-trial settlement, the court should exercise caution before making an award of costs.  With settlements, there should generally be a compelling reason to justify costs.   Davis v. Fell, 2016 ONCJ 84 (OCJ); Muncan v. Muncan2021 ONSC 1369 (SCJ); Krueger v. Krueger, 2017 ONSC 1446 (SCJ); Frape v. Mastrokalos 2017 ONCJ 915 (OCJ); Witherspoon v. Witherspoon, 2015 ONSC 6378 (SCJ); Cummings v. Cummings 2022 ONSC 5657 (SCJ).”

          Casey v. Casey, 2023 ONSC 2512 (CanLII) at 5

“Section 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 (“FCA”), states:

Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

Under s. 1 of the FCA, a “conveyance” includes a gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise.

The Applicant is a “creditor” within the meaning of the FCA given that a person that has commenced an application under the Divorce Act for corollary relief becomes a contingent creditor of the respondent: Purcaru v. Seliverstova, 2016 ONCA 610, para. 11, affirming 2015 ONSC 6679 (Myers J.).

In Purcaru, Myers J. stated:

11      It is very difficult for an applicant to prove a person’s hidden intention to defraud creditors. Therefore, the law provides that the court can infer the existence of a transferor’s fraudulent intention to defeat or delay creditors where there are recognized “badges of fraud” associated with a transaction. The badges of fraud are facts or fact patterns that courts have held to be indicative of fraudulent transactions. Facts such as: secrecy, transfer of property when an action or execution is pending, transfer of property to non-arm’s-length parties, transfers made with undue haste, and transfers for a conspicuously insufficient price, are all recognized examples of badges of fraud. There are others such as the breach of family law orders requiring a party to preserve his or her assets pending a trial. If the court draws the inference of fraudulent intent due to the existence of badges of fraud, then an evidentiary burden will fall to the respondents to explain their conduct to try to rebut the inference of fraudulent intent. Of course the ultimate persuasive burden remains on the applicant throughout.”

          Sanvictores v. Sanvictores, 2023 ONSC 2473 (CanLII) at 36-39

“The test for intervention is well-established and needs no amplification. As Dubin C.J.O. held in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

I start with the proposition that this is a private dispute. Where intervention is sought in a private dispute of this nature, as opposed to one involving the state, the standard to be met by the proposed intervener is “more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.

…

Although the proposed intervener was under no obligation to do so, it is often the case that when a motion to intervene is brought, and especially when it is brought on such short notice, a draft proposed factum is provided with that application. While the proposed intervener provided a very high-level overview of their main arguments, bringing a draft proposed factum would have permitted the parties to know the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted. The date of the hearing of the appeal has been known for some time, certainly prior to JFCY’s first notice to counsel of their wish to seek intervener status.”

              Foster v. West, 2021 ONCA 263 (CanLII) at 10-11, 19

“The Court cannot make an order requiring parties to attend mediation/arbitration in the absence of consent.”

          M. v. F., 2015 ONCA 277 (CanLII) at 43

“The Court’s Presumptive Mode of Hearing Guidelines for the Superior Court of Justice Guidelines sets out that Settlement Conferences are to presumptively in-person.  See:

https://www.ontariocourts.ca/scj/guidelines-mode-of-proceedings/guidelines-criminal/

As a result of the request to change the presumptive mode of hearing, a telephone conference call was held this morning.

The court has limited resources, namely courtrooms, court staff and judicial resources, all of which are needed for all types of hearings, in person and virtual hearings.

The court schedules these limited resources well into the future.  In Brampton’s case, at this time, we are scheduling these limited resources well into 2023.

While scheduling takes place many months before the hearings, there are always changes to scheduled hearings, such as adjournments, exceeding estimated times, all of which make scheduling more complex and difficult to juggle these resources to accommodate changes to the presumptive mode of hearings.

Counsel and parties require certainty when hearings are scheduled as they have their own scheduling issues.

One might say, what is the difference if hearings are scheduled in-person and/or virtually?  Without getting into the rationale for the presumptive mode of hearings, some types of hearings are more effective in-person or where there is a final determination being made by the court. But there is a further difficulty. Having the same judge hear some matters in-person and some virtual hearings from the same daily list is simply not doable. There are not sufficient judges, courtrooms or court staff to have separate lists dependent on the mode of hearing. Hearing a mixed list is problematic for judges, staff, counsel and parties for many reasons including that time estimates for hearings are not always reliable and technology issues sometimes arise.

As we transition from pandemic modes of hearing to the Guideline presumptive modes of hearing, conflicts and rescheduling will be required. Where a change in the presumptive mode of hearing is necessary, the Court will and must do its utmost to accommodate changes to the modes of hearing.

Central West has established a method to deal with a request for a change to the presumptive mode of hearing by way of holding a weekly teleconference hearing upon the request of one of the parties to the proceeding.

Because of the resource limitations and scheduling issues described above, a party or the parties will have to demonstrate a clear and compelling reason to change the presumptive mode of hearing.

Some of the factors that will be relevant to the court’s determination are the following:

a)  The prejudice to a party if the matter proceeds by the presumptive mode. To be clear, prejudice does not include inconvenience to a party or counsel, nor does it include a reasonable additional cost to proceed by the presumptive mode due to some travel;

b)  Why the different mode of hearing would be more effectivein the circumstances of the case;

c)  The importance of the hearing to the proceeding;

d)  Demonstrable inability of or serious hardshipto counsel or a party not to attend the hearing in the presumptive mode of hearing.  This is not limited to Covid but can any demonstrable inability or serious hardship.  The party will have to address why an adjournment to accommodate the demonstrable inability or serious hardship should not be granted; and

e)  Any other relevant matter which establishes the need for a change to the presumptive mode.

In order to accommodate a change to the presumptive mode, the court has scheduled a limited number of dates where hearings of each type can be heard in a different mode than the presumptive mode of hearing.  These dates will be limited. Accordingly, there may be a delay with hearings if the presumptive mode of hearing is changed.”

          Cousins v. Silbourne, 2022 ONSC 4000 (CanLII) at 3-14

“The CYFSA was enacted to replace the CFSA. The new Act raised the age for protection and changed what was considered archaic and stigmatizing language. For example, “Crown ward” was replaced with “extended society care”. Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community.

A transitional regulation, O. Reg. 157/18, was enacted to provide guidance on transitional matters. That regulation provides at s. 11(1) that “A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.”

The Society submits that the transitional regulation does not apply here. Thus, it submits, the Divisional Court did not err by applying the old Act. It takes the position that “but not concluded” means that the evidence is not concluded. Under this interpretation, if the evidence was concluded before April 30, 2018, the old Act applies.

The Society relies on Children’s Aid Society of the Regional Municipality of Waterloo v. N.K., 2018 ONCJ 696. There, submissions were completed on April 13, 2018, prior to the new Act coming into effect on April 30, 2018, and the court rendered its decision on October 3, 2018 after the new Act came into effect. Oldham J. analyzed the transitional provisions as follows at paras. 14-16:

[Section11(1)] does not provide a definition of ‘concluded’. Therefore, it is not clear whether a matter is considered to be concluded if evidence and submissions are complete, but the decision is on reserve at the time that the CYFSA comes into force.

Subsections 11(2) and (3) of the Regulations provide some context for interpretation. These subsections address the issue of parties in proceedings relating to a First Nations, Inuk or Métis child. The subsections specifically distinguish the treatment of a case where a proceeding is not concluded (subsection 11(2)) as contrasted with cases where the hearing is completed, but the court reserved its decision (subsection 11(3)). The clarification under subsection 11(3) supports the interpretation that a decision under reserve does not fall within the definition of ‘not concluded’ under subsection 11(1) of the Regulations.

Given the language of the Regulations and the fact that all parties concluded their evidence and submissions under the CFSA, I conclude that the determination of the issues before me are to be decided under the CFSA.

I do not accept this interpretation of the transitional regulation. The subsections in the transitional regulation referred to by Oldham J., ss. 11(2) and 11(3), read as follows:

(2) Despite subsection (1), in the case of a proceeding relating to a First Nations, Inuk or Métis child, paragraph 4 of subsection 79 (1) of the Act does not apply if the court is satisfied that it would not be in the child’s best interests for that provision to apply and makes an order stating that the parties to the proceeding are those who were parties immediately before this section comes into force.

(3) Despite subsection (2), if a court has completed its hearing of a proceeding in respect of a First Nations, Inuk or Métis child before the day this section comes into force but reserved its decision, the parties to the proceeding are those who were parties immediately before this section comes into force unless the court is satisfied that it would be in the best interests of the child for paragraph 4 of subsection 79 (1) of the Act to apply and makes an order to that effect.

The ordinary sense of the word “concluded” is “finished”, “completed”, “decided” or “over”. A decision under reserve means the case is not concluded.

Had the Legislature intended to capture only proceedings in which the hearing of a proceeding had not concluded, it would have said so. The use of the phrase “hearing of a proceeding” in s. 11(3) but not in s. 11(1) makes this abundantly clear.

The scheme of the Act as a whole also supports this interpretation. First, the Act is remedial legislation and so should be interpreted liberally. It would be inconsistent with the paramount purpose of the Act “to promote the best interests, protection and well-being of children” not to permit all children to benefit from what the Legislature had clearly decided was a preferable approach.

Second, the Act is particularly remedial for Indigenous children. As will be set out in more detail below, it seeks to remedy past injustices and address the special significance of Indigenous children’s connection to their community.

Third, the April 30, 2018 proclamation date for the new Act was the same date that the previous definition of “Indian” and “native person/child” under the CFSA were deemed to be invalid due to a suspended declaration of invalidity issued by the court: G. H. By applying the transitional provisions to cases under reserve, these children would not be caught in a legislative void.

Finally, the regulation clarifies that a proceeding is not concluded until a decision is rendered. It does so in two ways:  (i) it states that a “proceeding” is not concluded when a decision is on reserve, except in relation to the name of a party; and (ii) it distinguishes between the conclusion of a hearing and the conclusion of the proceeding which only occurs when the decision is rendered. These provisions support the plain wording and purpose of the regulation.

Therefore the transitional provisions applied to this case and the incorrect statute was applied by the Divisional Court.”

Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (CanLII) at 31-42

“Under the CLRA, an Ontario court can assume jurisdiction to make an order for custody of or access to a child on any one of four bases:

• • • • • Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
        • Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
        • Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
        • Under thecourt’s parens patriae jurisdiction to protect children, preserved by s. 69.

All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III. In substance, there are five purposes:

• • • • • To ensure that custody and access applications will be determined on the basis of the best interests of the children;
        • To avoid the concurrent exercise of jurisdiction by tribunals in different places;
        • To provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
        • To discourage the abduction of children as an alternative to the determination of custody rights by due process; and
        • To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.

These general purposes set out in s. 19 must guide the interpretation and application of ss. 22 and 23, the provisions in issue on this appeal.

The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.

Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1) and the catalogue of best interests considerations listed in s. 24 (2).

But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

Sections 23 and 69 also reflect the Legislature’s overriding concern with children’s best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child’s habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.

No party argued that the court should act under s. 69 of the CLRA, and I see no grounds for doing so. The motion judge decided the motion under s. 22 and I see no error in his application of that section. However, s. 23 allows for an Ontario court to assume jurisdiction even if the requirements of s. 22 are not met, and it is under that provision that I have determined the appeal should be allowed.”

          Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 12-18

“Section 44(1) of the Act provides that every person who has a spouse on the date of the payment of the first installment of the pension shall be a joint and survivor pension.  The Act provides as follows:

s. 44(1) Every pension paid under a pension plan to a retired member who has a spouse, or same sex partner on the date that the payment of the first installment of the pension is due shall be a joint and survivor pension.

                                                                        […]

s. 44(4)        Subsection (1) to (3) do not apply:

(a)      In respect to a pension benefit if payment of the pension was commenced before the 1^st day of January 1988; or

(b)     in respect to a former member who is living separate and apart from his or her spouse or same sex partner on the date that payment of the first installment of the pension is due.

The term “living separate and apart” is not defined in the Act.  The phrase is contained in section 8 of the Divorce Act, R.S. 1985 c. 3 (2nd Supp.).  Cases that considered the phrase in the context of the Divorce Act, are of assistance in determining whether the test is met in this case.

Some of the relevant criteria to determine if the parties are “living separate and apart” include:

a.   Physical separation, however, this is not the deciding factor as spouses may remain together for economic reasons;

b.   A withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship;

c.   the absence of sexual relations however this is not a conclusive factor;

d.   discussions of family problems and communications between the spouses;

e.   presence or absence of joint social activities; and

f.    the true intent of a spouse as opposed to a spouse’s stated intent: Greaves v. Greaves, 2004 CanLII 25489 (ONSC), at para. 34.”

          Carvalho v. Amorim, 2021 ONSC 2940 (CanLII) at 18-20