“The delivery of a notice of appeal automatically stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order: rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Emphasis added.]”
Category: Uncategorized
May 21, 2024 – Failing to Respond to Request to Admit
“The applicant did not respond to this request to admit by either by the original 21-day deadline or the judicially extended deadline to 21-days after December 4, 2019. Where a party fails to respond to a request to admit prior to trial and prior to trial fails to seek leave to withdraw his deemed admissions, the party should not be permitted to withdraw them: see Jama v. Basdeo, 2020 ONSC 2922, at paras. 16-21.”
May 17, 2024 – Bifurcation
“Like partial summary judgment, bifurcation can be beneficial where a discrete issue might resolve a big piece of the case. But where the facts or issues are not discrete and overlap with other issues, bifurcation can cause problems.”
May 16, 2024 – Children’s Views and Preferences
“In a recent decision in J.N. v. C.G., 2023 ONCA 77, the Court of Appeal for Ontario set out the well settled factors to consider when determining the weight to accord to the children’s views and preferences per Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42:
1) whether the parents are able to provide adequate care
2) how clear and unambivalent the wishes are
3) how informed the expression is
4) the age of the child
5) the child’s maturity level
6) the strength of the wish
7) how long they have expressed their preference
8) the practicalities of the situation
9) parental influence
10) overall context; and
11) the circumstances of the preference from the child’s point of view.”
May 15, 2024 – Costs Against Children’s Aid Societies
“The Ontario Court of Appeal in Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379, 72 R.F.L. (8th) 1, held the following about costs awards against child protection agencies:
[30] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine the costs of the proceeding. Here, the Family Law Rules applied on the motion.
[31] Under those Rules, the general presumption is that a successful party is entitled to its costs: r. 24(1). However, Children’s Aid Societies are treated distinctly from other parties in a family law proceeding. Section 24(2) provides that the presumption of costs to the successful party does not apply in a child protection case or to a party that is a government agency. At the same time, s. 24(3) empowers a court with discretion to award costs to or against a party that is a government agency, whether or not it is successful.
[32] The jurisprudence elaborates on the proper exercise of this discretion. Children’s Aid Societies are presumptively protected from costs awards in order to encourage them to act in the best interests of the child. As Chappel J. explained in Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 13:
The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.
[33] Justice Chappel went on to summarize the general principles animating costs against a Children’s Aid Society, at para. 14:
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- Child protection agencies do not enjoy immunity from a costs award.
- However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
- The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
- The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
- Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.
- A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
- Important factors to consider in deciding whether costs against a Society are appropriate include the following:
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i. Has the Society conducted a thorough investigation of the issues in question?
ii. Has the Society remained open minded about possible versions of relevant events?
iii. Has the Society reassessed its position as more information became available?
IV. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?
V. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.
[34] In making a costs decision, as in all family law decisions, the court must bear in mind the primary objective of ensuring the case is dealt with justly: Family Law Rules, s. 2(2). Rule 2(3) further elaborates. 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.”
May 14, 2024 – Talaq Divorces
“An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 25.
Section 22 of the Divorce Act provides for the recognition of foreign divorce decrees. In certain circumstances, courts in Canada have refused to recognize foreign divorces, including talaq divorces under Sharia Law in particular.
In Novikova v. Lyzo, 2019 ONCA 821, the Court of Appeal for Ontario upheld the motion judge’s refusal to recognize a foreign divorce because the wife was not given proper notice of the proceeding in the Russian Federation. In Kadri v. Kadri, 2015 ONSC 321, the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy: at para. 83. With respect to talaq divorces in particular, the court in Kadri observed that numerous immigration decisions of the federal court have expressed concerns about talaq divorces where the procedure consist only of a unilateral announcement of divorce by one party, usually the male: at para. 85.
A “bare” talaq divorce was described in Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 FCR 531, at para. 20, as a private recitation of a verbal formula in front of witnesses. The verbal recitation may be pronounced in a mosque. It may be reinforced by written documents containing such information, whether accurate or not. The pronouncement of the divorce before witnesses is what brings about the divorce.
The court further observed in Amin that the ritual performance of the bare talaq lacks any necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity, even if merely to register or recognize what has been done. While the essential procedure differs, the court concluded in Amin that to recognize a bare talaq divorce would be manifestly contrary to Canadian public policy.
I do not know, and there is no evidence before me as to, the procedure invoked that led to the talaq in this case. I am satisfied that it is not for the Applicant to prove that the talaq is not valid. Rather, the onus of proving a legally valid foreign divorce is on the party seeking to rely on that divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 10. Foreign law and the validity of a foreign court order are questions of fact to be established by the proponents. In this case, the onus is on the Respondent to show that the foreign divorce is valid. The Respondent has filed nothing in this proceeding.”
May 13, 2024 – Assessing Credibility
“Assessing credibility is not a science. It is difficult to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48. A judge is not required to believe or disbelieve a witness’s testimony in its entirety. On the contrary, the judge may accept none, all, or part of a witness’s evidence: Kinsella v. Mills, 2020 ONSC 4785, at para. 69.
In assessing a witness’s credibility, as set out in Kinsella v. Mills at para. 69, the court may take into account considerations including the following:
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- Were there inconsistencies and weaknesses in the witness’s evidence, including internal inconsistencies or evidence of prior inconsistent statements?
- Was there a logical flow to the evidence?
- Were there inconsistencies between the witness’s testimony and the documentary evidence?
- Were there inconsistencies between the witness’s evidence and that of other credible witnesses?
- Is there other independent evidence that confirms or contradicts the witness’s testimony?
- Did the witness have an interest in the outcome, or were they personally connected to either party?
- Did the witness have a motive to deceive?
- Did the witness have the ability to observe the factual matters about which they testified?
- Did they have a sufficient power of recollection to provide the court with an accurate account?
- Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?”
- Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
- Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
- Consideration may also be givento the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. The courts have also cautioned against preferring the testimony of the better actor in court, and, conversely, misinterpreting an honest witness’s poor presentation as deceptive.”
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May 10, 2024 – OCL Report: Just Recommendations
“The two themes are that the trial judge rejected the recommendation in the OCL report and also changed the status quo.
A trial judge is not required to accept the OCL recommendations. They are just that: recommendations.”
May 9, 2024 – Rule 2.1 of the Ontario Rules of Civil Procedure
“Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way.
In at least three decisions, the Ontario Court of Appeal has highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320. At para. 15 of Khan v. Law Society, the Court cautioned judges regarding reliance on r. 2.1.01:
We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.
The principles to be applied by a judge considering a requisition under r. 2.1.01 include, but are not limited to, the following:
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- The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
- “[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLII), at para. 9;
- An action should be dismissed under r. 2.1 only if there is “a basis in the pleadings to support the resort to the attenuated process” resulting from the use of the rule: Raji, at para. 9;
- The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
- The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 (CanLII), at para. 3.
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To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act. Alternatively, the court may consider the typical characteristics of the form and content of an action brought by a “querulous litigant” as reviewed by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497 (CanLII), at para. 15.
At para. 9 in Gao, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”: quoting from Currie v. Halton Regional Police Services Board, 2003 CanLII 7815, Ont. C.A., at para. 14.
Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation. See Gao, at para. 18:
It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not be considered lightly or dismissively.
In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Ontario Court of Appeal endorsed the approach taken to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.”
May 8, 2024 – Relocation and the Primary Caregiver
“As there is no final order regarding the parenting arrangement, the respondent need not establish a material change in circumstances in her relocation request. A question arose at trial as to the sequence in which the court should address the terms of a parenting order where relocation is in issue. Relying on Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 17 and 49, the respondent submitted the court should first determine which of the parties is the primary caregiver of the child.
In my view, this approach is inconsistent with the significant legislative amendments that now transcend the common law relocation framework established in Gordon. The Supreme Court of Canada considered the new statutory regime and commented that without a pre-existing judicial determination, a parent’s desire to relocate is simply one part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child: Barendregt, at para. 112. The CLRA directs a holistic analysis of the child’s best interests. It would be problematic to first consider which parent is or has been the primary caregiver to the child, particularly when that issue is included as a factor to consider in the relocation analysis at s. 39.4(3)(c). In determining what parenting orders are in K.L.’s best interests, the logically prior issue is where she should primarily reside: Zorab v. Zourob, 2021 ONSC 6552 and Credland v. Cymbalisty, 2022 ONSC 433, at para. 23.”