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“The test for whether there has been a material change in the circumstances of the child was described as follows in Goertz, at paras 10-13:

10      Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).

11      The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S. T.D.), at p. 194.

12      What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13      It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Further, a variation of a final parenting order cannot be made on consent unless there is a finding of a material change in circumstances.   In Persaud v. Garcia-Persaud, 2009 ONCA 782, the Ontario Court of Appeal stated:

[3]              To begin with, the motion judge was without jurisdiction to make the order in question.  As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made.  If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485 (CanLII), 52 R.F.L. (6th) 239 (Ont. C.A.).  The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.  In the present case, no such finding was made.  Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4]              A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13.  None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel.  Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.

[5]              Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties.  In such circumstances, a variation motion cannot be properly determined on affidavit material.  As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called.  See this court’s decision in Schnarr v. Schnarr (2006), 2006 CanLII 190 (ON CA), 22 R.F.L. (6th) 52.

A change in circumstances is “material” if it is significant and long lasting: Roloson v. Clyde, 2017 ONSC 3642, paras. 49-51.”

          Kapadia v. Kwok, 2023 ONSC 3700 (CanLII) at 14-16

“A classic family law custody dispute gave rise to the Children’s Lawyer’s involvement in this case. Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:

The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children’s rights as citizens, children’s perspectives on family relationships and what is a family, and children’s attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children’s inclusion in the post-separation decision-making process is important to the promotion of their well-being. [Footnotes omitted.]

Indeed, art. 12 of the Convention requires that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260.

It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.

The Children’s Lawyer has been recognized as a model for addressing this challenge. The Honourable Donna J. Martinson and Caterina E. Tempesta, wrote that:

In Canada, the most expansive child representation program is offered by the Office of the Children’s Lawyer…[it] may serve as a model for other jurisdictions in promoting access to justice for children by ensuring that their views are heard in court processes.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 62-66

“In Deep v. Ontario, 2004 CanLII 14527 (ON SC); affirmed 2005 CanLII 10046 (ON CA), Spence J. summarizes the applicable tests under Rule 21 and Rule 25 for striking out pleadings as follows (at paras. 32-40):

Rule 21

[32]      Rule 21.01(1)(b) provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of a rule 21.01(1)(b) motion is to test whether a plaintiff’s allegations state a legally sufficient or substantively adequate claim. Where it is plain and obvious that is [sic] discloses no cause of action, it should be struck: Rule 21.01(1)(b); Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 976-977.

[33]      A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action, or it fails to plead the necessary legal elements of an otherwise recognized cause of action. As explained by Borins J.A. in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4^th) 257 at p. 264 (C.A.),

In some cases, a statement of claim will be vulnerable to dismissal under rule 21.01(1)(b) because the plaintiff has sought relief for acts that are not proscribed under the law. The typical textbook example is a statement of claim that alleges that the defendant made a face at the plaintiff, or that the defendant drove a car of an offensive colour. In other cases, however, the statement of claim may be defective because it has failed to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action.

[34]      In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of a necessary element of the cause of action will constitute a radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed. Accordingly, such a claim should be struck out.

[35]      On a motion under Rule 21, the plaintiff has the benefit of an assumption that the facts pleaded are true or capable of being proven. Accordingly, the court is left to consider the legal sufficiency of the plaintiff’s claim stated in its best and most positive light by the plaintiff himself. However, a court is not required to take “allegations based on assumptions and speculations” as true for the purpose of assessing the cause of action at issue. A party may therefore not supply a missing element of a cause of action by pleading speculative allegations: Region Plaza Inc. v. Hamilton Wentworth (Regional Municipality) (1990), 1990 CanLII 6761 (ON SC), 12 O.R. (3d) 750 at 754 (H.C.).

[36]      Rule 21.01(1)(b) permits the court to strike out less than the entire pleading, where the portion being struck is a distinct purported cause of action. In exercising its discretion, the court should consider whether or not “paring down” the pleadings will actually result in savings of money or time for the parties.

Montgomery v. Scholl-Plough Can. Inc. (1989), 1989 CanLII 4045 (ON SC), 70 O.R. (2d) 385.

Rule 25

[37]      With respect to the need to plead material facts in support of allegations, Rule 25.06 provides that:

25.06 (1)   Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.  R.R.O. 1990, Reg. 194, r. 25.06(1).

(2)     A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.  R.R.O. 1990, Reg. 194, r. 25.06(2).

(8)     Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.  O. Reg. 61/96, s. 1.

[38]      Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct.

Conacher v. Rosedale Golf Assn. Ltd., [2002] O.J. No. 575 (S.C.J.)

Pispidikis v. Scroggie (2003), 2002 CanLII 23209 (ON SC), 62 O.R. (3d) 596 at paras. 35-36 (S.C.J.)

Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff’d., 2002 CanLII 4770 (ON CA), [2002] O.J. No. 383 (C.A.)

[39]      Rule 25.11 empowers the Court to strike out pleadings as follows:

25.11      The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a)     may prejudice or delay the fair trial of the action;

(b)     is scandalous, frivolous or vexatious; or

(c)     is an abuse of the process of the court.

[40] “A pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Pleadings that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation.”: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.) at paras. 51, 52.

Courts have held that, absent exceptional circumstances, leave to amend pleadings should generally be granted: Thelwell v. Elaschuk, 2020 ONSC 340 (CanLII), at para. 87; Asghar v. Toronto Police Services Board, 2019 ONCA 479 (CanLII), at para. 9.”

Ramsay v. Family and Children’s Services Niagara, 2022 ONSC 3650 (CanLII) at 8-9

“The status quo will be maintained on an interim parenting motion in the absence of compelling reasons indicative of the necessity of a change to meet the best interests of the child.  This is so whether the existing arrangement is de facto or de jure:  Grant v. Turgeon (2000) 2000 CanLII 22565 (ON SC), 5 R.F.L. (5^th) 326 (Ont.S.C.) at para. 15.

In Coe at para. 25, Justice Pazaratz summarized the principles to be considered when deciding parenting issues on an interim basis.  The factors relevant to this proceeding are as follows:

b.  …the obvious strategic dynamics associated with temporary motions cannot be ignored.   Already, counsel are arguing “status quo” even before they can agree on what the status quoconsists of.  Temporary and even temporary-temporary orders often have long-term implications.  Being fair to the parties as litigants is important.   Being fair to the children is even more important.

d.  Temporary orders are 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 – quite often at a trial;

e.  The status quoshould ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change;

f.  Courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quothrough manipulation, exaggeration or deception.

(citations omitted).

In Batsinda v Batsinda, Justice Chappel stated that the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within these principles: 2013 ONSC 7869 at pp 19-2.”

          Grover v. Grover, 2023 ONSC 3607 (CanLII) at 14-16

“The Hague Convention is law in Ontario, pursuant to s. 46(2) of the CLRA. The Hague Convention sets out the rules that apply to the parental wrongful abduction or retention of children across international borders.

The purpose of the Hague Convention, as set out in Article 1, is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. A prompt return is intended to achieve speedy adjudication of the merits of a custody or access disputes (as it was formerly known in Ontario) in the forum of a child’s habitual residence. When an application is brought under the Hague Convention, the court is not being asked to determine issues of parenting, but rather in which jurisdiction the parenting issues should be determined.

In an application under the Hague Convention, the first question to be asked is whether there has been a removal or retention of the child from their habitual residence that is considered wrongful. Article 3 of the Hague Convention directs the court to a two-part test:

a)   Is the removal or retention in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention; and

b)    At the time of removal or retention were those rights actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention?

If the requirements under Article 3 are met, Article 12 requires the judge to order the return of the child forthwith, unless certain exceptions apply. These exceptions, under Articles 12, 13, and 20, include:

a)    The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment: Article 12.

b)    The parent seeking return was not exercising custody rights at the time of the removal or retention or consented or subsequently acquiesced to the removal or retention: Article 13(a);

c)     There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation:  Article 13(b);

d)    The child is of sufficient age and maturity and objects to being returned:  Article 13(2); or

e)    The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state: Article 20.

On the facts provided, this court is being asked to find that the child was wrongfully retained. In order to determine if the retention was wrongful, the court must first determine the date of the alleged wrongful retention and then, determine where the child was habitually resident on that date. In this case, if the child was habitually resident in Mexico, then there is no wrongful retention and the Hague Convention has no application. If the habitual residence of the child is Ontario, then the Applicant Mother is able to avail herself of the Hague Convention to request that the child be returned to Ontario where the parties can litigate their parenting rights: Ludwig v. Ludwig, 2019 ONCA 680, at paras. 21, 24-25; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 36.”

            Routley v. Palomera, 2022 ONSC 3557 (CanLII) at 57-61

“The legislative provision allowing for preservation order to be made is s. 12 of the Family Law Act, R.S.O. 1990, c. F.3.   The test applicable to the determination of this question was set out in Bronfman v. Bronfman, 2000 CanLII 22710 (ONSC).  In that case, the wife also sought to extend a preservation order she had obtained on an ex parte motion.  The court stated that the test applicable was the same as the one applicable to a request for an injunction, in which the court must consider the following factors:

(1)      the relative strengths of the parties’ positions;

(2)      the balance of convenience; and

(3)      whether irreparable harm may occur if relief is not granted.

Paragraphs 26 through 31 of Justice Sachs’s decision are instructive.  She says:

… a court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. Under s. 12, the agenda is to protect the spouse’s interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial.”

          Akter Mukta v. Zafor et al., 2023 ONSC 3468 (CanLII) at 16-17

 “The father candidly acknowledged that by having de facto residency of C, and by the mother having no parenting time with C since May 2020, he is in breach of the Order of Justice Moore. However, he claims that he cannot convince his 15 year old son C to act in compliance with Justice Moore’s order. This is not a defence to the mother’s allegation of non-compliance as the father filed no response on the motion, and the father’s submissions at the hearing did not explain what specific steps he has taken to promote compliance with the parenting order of Justice Moore. Compliance with court orders cannot be left up to a child: King v. King, 2016 ONSC 3752, at para. 48.

As well the father needed to have shown what positive steps he took to promote compliance with the Moore Order. In Godard v. Godard, 2015 ONCA 568, at para. 28, the Court of Appeal stated:

As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).”

Saunderson v. Saunderson, 2022 ONSC 3475 (CanLII) at 12-13

“The motion to set aside the order was brought pursuant to rule 25(19)(e) of the Family Law Rules, which provides that the court may, on motion, change an order that:

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

The test for deciding a motion to set aside a default judgment is set out in Mountain View Farms v. McQueen, 2014 ONCA 194, at paras. 48-49. There are five factors as follows:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules;

(c) whether the facts establish that the defendant has an arguable defence on the merits.

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

These factors are not rigid rules. The court must consider the facts and circumstances of each case. The Court of Appeal held, at para. 51, that the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. The respondent need not show that the defence will inevitably succeed but must show that it has an air of reality.”

            Tariq v. Rehman, 2022 ONSC 3525 (CanLII) at 24-26

“It is the husband’s onus to prove his income.  The wife should not have to be playing a game of “catch me if you can” with the husband.  If the husband does not get his disclosure in order, and if this is the evidence that is called at the trial, the husband is at serious risk of having significant adverse inferences drawn against him.  At ¶ 81 of Meade v. Meade, 2002 CanLii 2806 (Ont. S.C.J.), Kiteley J. held that it was incumbent on those who are self-employed to put forward adequate and comprehensive records of income and expenses, which means a package from which the recipient spouse can draw conclusions and the amount of child support can be established.  Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse confronted with the challenge of making sense out of the financial disclosure, and against the spouse who failed to meet his obligation.”

          Edey v. Beccatti, 2023 ONSC 3447 (CanLII) at 98

“Every parent has apprehensions about his or her young child starting school. They enter an environment where parents cannot protect them, whether they arrive on the school bus or in their parent’s vehicle. It is a necessary exercise in trust, to send children to school. Nevertheless, a decision about education has far-reaching implications for the child; it should not be made based on a parent’s anxiety for the child.”

          Kivi v. Smith, 2023 ONSC 3407 (CanLII) at 20