Category: Uncategorized

“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

“There is some dispute in the case law as to whether the material change in circumstances test applies with equal force to a temporary, as opposed to a final, order. In Miranda, at paras. 26-28, Radojevic v. Radojevic, 2020 ONSC 5868, at paras. 16-18 and Sullivan v. Boucher, 2020 ONSC 8062, at para. 21, the Courts concluded that the material change in circumstances test applies regardless of whether the order is a temporary or final order.

In contrast, Henderson J. has held that it is open to the Court to consider a motion to change a temporary order if there is a “compelling reason”, regardless of whether there is a material change in circumstances: Calabrese v. Calabrese, 2016 ONSC 3077 at para. 27; M.D. v N.J., 2016 ONSC 6058, at paras. 21-23.

That said, Henderson J. made clear that courts must proceed cautiously before changing even a temporary parenting order: see Calabrese, at para. 28:

In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.

See also M.D. v. N.J., at para. 24:

However, there is a significant body of law that suggests that it is not in a child’s best interests, in most cases, to change an existing temporary parenting order prior to trial. By necessity, any change prior to trial must be founded on affidavit evidence only. A full vetting of the evidence will not be possible until the trial, at which time the trial judge will have the benefit of oral evidence from, and cross-examination of, all witnesses. Temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interests of a child.

See also the cases cited by Henderson J. at para. 25.

I agree with Kurz J. in paras. 16 and 17 of Radojevic that there may not really be a significant difference between the two approaches. Subject to the two exceptions outlined below, I would follow the material change of circumstances approach because it is consistent with the express language of s. 29 of the Children’s Law Reform Act.”

          Kirichenko v. Kirichenko, 2021 ONSC 2833 (CanLII) at 15-20

“In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), the court found that:

1. 1. 1. 1. 1. There must be evidence of historical communication between the parents and appropriate communication between them.
            2. Joint custody cannot be ordered in the hope that it will improve their communication.
            3. Just because both parents are fit does not mean that joint custody should be ordered.
            4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
            5. No matter how detailed the custody order, there will always be gaps in unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
            6. The younger the child the more important communication is.

See also LaPalme v. Hedden, 2012 ONSC 6758, at para. 58.

In Giri v. Wentges, 2009 ONCA 606, the court said the following at para. 10:

Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.).

When the parents disagreed on too many important issues that affected the child’s best interests the court found joint custody and parallel parenting was not in the child’s best interests: see Graham v. Bruto, 2008 ONCA 260, at para. 2.

Although the court does not expect that the communication between separated parents is to be free of conflict, the issue is whether it may be achievable in the future: see Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 ONSC 6423, 66 R.F.L. (6th) 438, at para. 94.

The court should look at how the parents parented prior to the separation to determine if coparenting and cooperation is possible: see Growen v. MacKenzie, 2008 ONCJ 170, at para. 20.

I find the father to be evasive, insincere, and not credible at times and there does not appear to be much positive communication between the parties. To have joint decision-making responsibilities there must be some degree of cooperation and communication between the parties.”

          L.B. v. R.H., 2022 ONSC 2268 (CanLII) at 83-88

“The mother seeks full recovery as her primary request.  There is no presumption in the Rules that provides for a general approach of “close to full recovery” costs. Rules 18 and 24 expressly contemplate full recovery only in specific circumstances:

a.    Matching/exceeding an offer to settle (Rule 18(14)).

b.    Bad faith (Rule 24(8)). Beaver v. Hill.”

J.N. v. C.G., 2022 ONSC 2225 (CanLII) at 15

“The respondent argues that he was subject to duress. He alleges that Mr. Snell advised him that “it may get worse for you” if he did not agree to the Minutes of Settlement. The respondent also indicates his concern that if he did not agree to the Minutes he might incur an additional $10,000 to $15,000 in legal costs if the matter proceeded to arbitration.

In my view the financial pressures described by the respondent do not meet the requirements of “duress”. In Taplin v. Walsh, 2016 ONSC 2998, Woodley J. set out the following definitions of duress in the context of a s. 56(4) case:

Duress is present where there is coercion of the will of one party or where one party feels that they have no other realistic alternative but to sign the agreement. While one party might feel pressured and trapped by the circumstances into signing an agreement, this does not mean that the other party exerted undue pressure or subjected the party to duress (Balsmeier v. Balsmeier, 2016 ONSC 950, at para. 135).

…

The circumstances that will constitute duress must be quite extreme; antagonism and stress do not qualify as duress or economic duress. The burden is on the party alleging duress to prove that duress existed (Mayerovitch v. Breslin, 2012 ONSC 5192, at paras. 336, 344).

The affidavit evidence presented by the respondent does not disclose that duress of the nature and quality required existed. The economic and personal pressures described by the respondent are the types of pressures commonly felt by one or both parties involved in the negotiation and settlement of domestic financial disputes. Such negotiations are almost always stressful; parties are forced to make difficult financial decisions with long-term implications for themselves and their children. The costs consequences of litigation are an inherent pressure faced by all litigants. The threat of potential increased legal costs if a settlement is not reached is intended to put pressure on both parties to arrive at a negotiated settlement. These inherent pressures cannot be used as a basis for setting aside a negotiated agreement.

In addition, most settlements contain some element of compromise, and the caution that “it may get worse for you” if the case proceeds to arbitration or court is a fair and usually accurate warning to a recalcitrant party.

There is no suggestion by the respondent that the applicant was aware of his suicidal thoughts, or that she deliberately took advantage of or exploited him in these circumstances. There is no suggestion that the respondent sought an adjournment of the mediation to accommodate his mental health issues. The applicant participated in the mediation and agreed to the Minutes of Settlement in good faith.

Finally, while the respondent indicates that he was suffering from depression and addiction issues when he signed the Minutes of Settlement, there is no suggestion in his affidavit evidence that he lacked legal capacity to enter into an agreement at that time.”

          O’Dacre v. Cross, 2019 ONSC 2265 (CanLII) at 47-52