“Counsel in any case must be mindful of the obligations that the Law Society of Ontario’s Rules of Professional Conduct impose on them with regard to their client’s disclosure obligations. Those rules outline specific steps that counsel must take in advising clients on matters of disclosure. Rule 5.1-3 states that where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate, must advise his/her client to comply with their disclosure obligations, and must not make frivolous requests or demands for information or the production of documents.”
Category: Uncategorized
March 11, 2024 – Extending The Deadline to Appeal
“In determining whether to grant an extension, the overarching consideration is whether the justice of the case requires the extension. The well‑established criteria that inform this consideration include: a continuing intention to appeal; the length and reason for the delay; the prejudice to the respondents; and the merits of the appeal: Issasi v. Rosenzweig, 2011 ONCA 112, at paras. 4-5. While the right of appeal is an important one, a request to extend the timeline for perfection is fundamentally a request for the court’s indulgence: Howard v. Martin, 2014 ONCA 309, at paras. 53-54. Consequently, the justice of the case may also require an examination of the appellant’s conduct, including the appellant’s willingness to comply with established processes and prior court orders: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 18.”
March 8, 2024 – Audio/Video Recordings
“The respondent mother (“the mother”) sought to file audio recordings and doorbell video recordings (from the family’s front door) with the Court as evidence to support her allegations regarding the father’s drinking, driving while impaired, admissions regarding caregiving to the child, and weapons threats. The father states he was not aware he was being recorded and objected to the admission of these video recordings because they are not probative.
Two recordings had not been provided to the father in advance of the hearing date. I stood the matter down for 20 minutes to allow the father and his counsel to review the recordings prior to argument on admissibility.
There is a general principle that audio/video recordings between parents should be strongly discouraged and generally inadmissible: Whidden v. Ellwood, 2016 ONSC 6938, Hameed v. Hameed, 2006 ONCJ 274, Turk v. Turk, 2015 ONSC 3165. In Van Ruyen v. Van Ruyven, 2021 ONSC 5963, at para. 41, Justice Kurz writes:
The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.
The recordings were attached as exhibits to a stand-alone affidavit sworn by the mother in support of a motion seeking to admit them. This affidavit referred to paragraph numbers in her responding affidavit matching the recording with the event attested to. However, the paragraph numbers were incorrect. During argument, counsel walked the Court through each recording and which paragraph in the responding affidavit to which it related. I note, however, that none of the paragraphs in the mother’s responding affidavit adequately lay the necessary foundation for the recordings. Despite this lack of foundation, I am considering the recordings because of the seriousness of the allegations and because the father, in submissions, acknowledged the recordings were made as the mother purports them to have been made.”
Dieffenbacher v. Baril Dieffenbacher, 2023 ONSC 1597 (CanLII) at 4-7
March 7, 2024 – The Principles of Contractual Interpretation
“At ¶ 47 of Sattva Capital Corp.v. Creston Moly Corp., 2014 SCC 53, the Supreme Court succinctly set out the principles of contractual interpretation. The Court adopted the “modern approach” holding that the interpretive process involves reading the agreement “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” There need not first be a finding of ambiguity in the contract, before the Court can consider surrounding circumstances.
Also at ¶47 of of Sattva Capital Corp.v. Creston Moly Corp., the Court recognized the difficulty of ascertaining contractual intention when looking at the text alone, because words alone do not have an “immutable or absolute meaning”. The Court quoted a passage that contracts are not made in a “vacuum”, and must be placed in context of the setting in which they are made.
At ¶48 of of Sattva Capital Corp.v. Creston Moly Corp., the Court found that the meaning of words is derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement. The meaning which a document would convey to a “reasonable man” is not necessarily the same thing as the meaning of the words used in the contract, themselves. In this case before me, the parties have to some extent made statements about their subjective intentions in making and accepting the Offer to Settle, but the goal in contractual in contractual interpretation is to ascertain the objective intent of the parties: see ¶ 49 of of Sattva Capital Corp.v. Creston Moly Corp.
Although the surrounding circumstances may be considered, they should not be allowed to overwhelm the words of the agreement. Rather, they should “deepen the decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract”. The interpretation must be grounded in the text,and read in light of the entire contract: see ¶57 of of Sattva Capital Corp.v. Creston Moly Corp.
What the surrounding circumstances may be, will vary. They should consist of objective evidence of background facts known at the time of execution of the contract. That knowledge must have either been, or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Surrounding circumstances can be “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”: see ¶58 of of Sattva Capital Corp.v. Creston Moly Corp.”
March 6, 2024 – Kin Caregivers
“Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.
While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status: See Ontario Child Welfare Secretariat Policy Development and Program Design Division, “Ontario Kinship Service Standards”, online: <oacas.libguides.com/ld.php?content_id=34692073> ; Ontario Association of Children’s Aid Societies, “Kin-based care”, online: <oacas.libguides.com/family-engagement/kin-care>. Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.
Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:
“foster care” means the provision of residential care to a child, by and in the home of a person who,
receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),
and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added]
The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.
Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.
As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:
… the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that “to express one thing is to exclude another” and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, “legislative exclusion can be implied when an express reference is expected but absent”. [Citations omitted.]”
Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 (CanLII) at 40-45
March 5, 2024 –The Principle of Non-Refoulement
“On January 26, 2010, the applicant commenced the within application pursuant to the Hague Convention. He claims that the child was wrongfully removed from her place of habitual residence by the respondent in breach of his custody rights, and applies for the return of the child to Latvia, as well as for a declaration that Latvia is the proper jurisdiction to deal with issues of custody and access. The respondent asks the court to refuse to order the child’s return. In the event the application is dismissed, the respondent asks the court to grant her custody of the child under the Children’s Law Reform Act.
In her defence to the application, the respondent invokes Articles 13(b) and 20 of the Hague Convention. Relying on the decision in A.M.R.I. v. K.E.R., she asks that Articles 13(b) and 20 be construed in a manner that takes into account the principle of non-refoulement arising from the child’s status as a refugee.
The principle of non-refoulement arises from Canada’s obligations under international treaties and domestic law, and is codified in section 115(1) of Canada’s Immigration and Refugee Protection Act. In the case of Németh v. Canada (Justice), 2002 NSCA 127 at par. 31, Cromwell, J., describes the principle of non-refoulement:
Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope. (par. 19)
In Németh, this principle is described as “a cornerstone of refugee protection.””
March 4, 2024 – COVID and Judicial Notice
“In J.N. v. C.G. [2022 ONSC 1198], Pazaratz J. noted that the objecting mother in that case, like the mother in this case, pointed to Pfizer-published guidance that the safety and effectiveness of the Covid-19 vaccine had not been established (it is the mother’s “strongest concern” in this case”). But notwithstanding that Court’s consideration of the risks associated with applying judicial notice to cases where expert opinion is unclear or in dispute (and may never be free from doubt) and speculating on the evidence, or lack of evidence, about the wisdom of mandatory child vaccination, the decision in that case really pivots on the rationality of each parent’s position and the facts unique to that family. Distinguishing J.N. from the case before this Court are the principal facts, as found, that the children had “very specific, strongly held and independently formulated views about Covid vaccinations” those views being “verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference” of which there was no evidence in that case. There is no evidence in this case of AD’s views about vaccination and none about parental manipulation. There is no evidence either that the child has any health issue that contraindicates vaccination. The father relies on Health Canada guidance whereas the mother relies on her research. While the mother also raised the issue of AD’s consent to treatment under s. 11 of the Health Care Consent Act, 1996, S.O. c. 2, Sched. A.it is not relevant given that the child functions at a Grade 1 level of learning and understanding.
The mother challenges this father’s reliance on Health Canada and other government guidance on vaccination and the degree to which this Court should apply, if at all, judicial notice. In R.S.P. v. H.L.C., 2021 ONSC 8362, a case to which the Court in J.N. referred, Breithaupt Smith J. noted the definitive decision of judicial notice by the Supreme Court of Canada in R. v. Find, 2001 SCC 32 (CanLII). In R. v. J.M., 2021 ONCA 150 the Ontario Court of Appeal elaborated on Find in describing that facts of which a Court could take judicial notice included:
“(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy… The sources may include both large bodies of scientific literature and jurisprudence”: ibid, para 31(v).
So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:
(a) The Covid virus kills;
(b) The virus is transmissible;
(c) The virus can, and has, mutated;
(d) Variants of the virus are more transmissible than others;
(e) Asymptomatic carriers of the virus can infect other people;
(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;
(g) The virus does not discriminate;
(h) There is no known immunity to contracting the virus;
(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;
(j) Vaccines work;
(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children: Warren v. Charlton, 2022 1088, at para 9(b);
(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes; ibid, at para 9(c).
This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.”
D. Jr. v. T, 2022 ONSC 1441 (CanLII) at 20-23
March 1, 2024 – When Should an Adjournment Be Granted?
“In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, at para. 37, the Ontario Court of Appeal provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:
Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
To this list of considerations, I would add that, as in child protection cases, the consequence of an adjournment must also be measured from the child’s perspective and thus a court must consider the impact of delay on the best interests of the child: Children’s Aid Society of Toronto v. S.C.M.K., 2021 ONCJ 347, para. 11.”
February 28, 2024 – Ahluwalia: Trial Decision
“That said, in general, I agree with the Father that the Divorce Act creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.
However, given the recent reforms to the Divorce Act, the Father’s concern is less persuasive because “family violence” is already relevant to the issue of parenting. For example, here, the Mother pleaded the factual substance of the tort claim in her original 2016 Answer such that the Father was well-aware that her allegations of abuse would be live issues in the family law matter, regardless of the claim for damages: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at paras. 9-12; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 41. Indeed, the Father responded to the allegations in his original Reply back in 2016.
With 2021 reforms to the Divorce Act, Parliament has explicitly recognized the devastating, life-long impact of family violence on children and families: S.S. v. R.S., 2021 ONSC 2137, at paras. 28, 47; J.K. v. R.K., 2021 ONSC 1136, at paras. 34-49. Moreover, the Divorce Act defines “family violence” expansively to include conduct that goes beyond physical assaults:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
Yet, despite this statutory recognition within the Divorce Act, the legislation does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence. At its heart, spousal support is compensatory rather than fault driven. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages: see, Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25, at paras. 15-24.
Indeed, s.15.2 of the Divorce Act dictates the factors that I must consider when making a spousal support award, and “family violence” is not one of them. The legislation specifically dictates that I must not take into account “misconduct of any spouse in relation to the marriage” when making a support order: s. 15.2(5). The objects of spousal support are narrowly focused on compensation and self-sufficiency in the context of a relationship of economic interdependence and mutual aid: s.15.2(6). On this basis, for example, I refused to allow either party to adduce evidence of alleged extra-marital affairs in the matter before me. To the extent that abuse may be relevant to support, given its compensatory nature, the plaintiff establish that the harms that flowed from the abuse are directly relevant to the economic fallout of the marriage: Leskun.
The Divorce Act does not provide a victim/survivor (“survivor”) with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage: see Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 5. In unusual cases like this one, where there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence. The no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support: “Intimate relationships and spousal status are not a shield from tort liability. It would be wrong to suggest that the law should allow intimate partners to commit actionable wrongs with impunity,” G. (M.H.) v. B. (R.J.), 2021 ONSC 4308, at paras. 36-42.
Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship. That said, I agree with McLeod J. in G. (M.H.) that it is incumbent on case management judges faced with tort claims in a family law context to ensure that the claim is genuine at the pleadings stage, and to find efficiencies, reduce duplication, and make a presumptive order for trial together. Here, all those steps were taken by Price J. in March 2021 at the joint settlement/trial management conference.”
February 27, 2024 – Home Office as a Business Expense
“In estimating the value of the discretionary/non-business portion of the Respondent’s home office expense, Ms. Russell took the rent and occupancy costs set out in the annual financial statements of Politis Engineering Ltd. and deducted a “reasonable business portion” based on assumed rent of $1,000 per month for office space in a commercial building. She then added back the excess rent and occupancy costs with a gross-up in calculating the Respondent’s income for support purposes.
The Applicant argues that this is not correct and that the amount of rent chosen by Ms. Russell is arbitrary. She states I should apply the reasons of Croll J. in Riel v. Holland, [2002] O.J. No. 5609 (S.C.J.) and the relevant provisions of the Income Tax Act, R.S.C. 1985 (5th Supp), c. 1, when considering the home office: “An individual who works from his or her home is entitled to deduct expenses relating to the work space in that home if that work space constitutes the individual’s principal place of business or if that work space is used exclusively for the purpose of earning income from business and used on a regular and continuing basis for meeting clients, customers or patients of the individual in respect of the business.”: at para. 32.
The Respondent does not meet clients in his home. He uses his home office to make phone calls, use his computer, send email communication and do administrative work for the operation of his business. He meets with clients at their offices, on job sites and in coffee shops. He admits that, because he lives alone, his work product sometimes “spills out” from the office to other areas of his home.
The Respondent has had a home office since 1992. It is the primary site of the operation of his business. If he did not work from home, he would have the expense of rent and other costs of leasing a commercial space. I agree with Ms. Russell’s treatment of the home office expenses in her income calculations. The amount of rent chosen in the calculation is based on her professional knowledge, research and expertise. I do not dispute her figure. I make no adjustment to Ms. Russell’s calculations for this item.”