Category: Uncategorized

“The court’s authority to choose which school the child will attend is found in section 28(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“CLRA”) which permits the court to “determine any aspect of the incidents of the right to decision-making … with respect to a child.”  The governing principle in making that determination is that the decision be in the best interests of the child (CLRA, s. 24).  In this respect, it is important to emphasize that the interests of the parents are relevant only insofar as those interests influence the best interests of the child.  The parents’ self-interest is otherwise not relevant.  As Black J. put it in Al-Naib v. Shnyin, 2023 ONSC 3125, at para. 33, “it is [the child’s] commute time, and not of the applicant, that matters for the purposes of the court’s analysis.”

Section 24 of the CLRA provides guidance about factors relevant to finding the child’s best interests.  For present purposes, the most germane of those factors are the child’s safety, security and well-being (s. 24(2)), her need for stability (s. 24(3)(a)), the nature and strength of her relationships with her parents and other family members (s. 24(3)(b)), plans for the child’s care (s. 24(3)(g)); the ability of the parents and others to care for the child (s. 24(3)(h)); and the ability of those people to co-operate on matters affecting the child (s. 24(3)(i) and (k)).

Specifically with respect to decisions relating to choice of school, the courts have found a variety of factors to be relevant.  Audet J. provides a helpful summary of those factors in Thomas v. Osika, 2018 ONSC 2712, at para. 37 (see also Hamid v. Hamid, 2016 ONSC 5013, at paras. 10 – 11).  In the circumstances of the present case, the most relevant of those factors is ensuring stability in the child’s life, as I explain below.

It is not the case that the other factors listed either in s. 24 of the CLRA or at para. 37 of Thomas v. Osika are not important or relevant, it is simply that they do not assist in resolving the particular problem presented to me because they apply equally well or equally poorly to the competing proposals of the parties.”

            Offer v. Lamorea, 2024 ONSC 927 (CanLII) at 13-16

“Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”. Long ago, in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the distinction between final and interlocutory orders:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

Since Hendrickson, the court has, on many occasions, considered and refined the distinction between final and interlocutory orders. For example, in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order does “not finally dispose of the rights of the parties to the litigation”, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.” And in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.), the court held that an order disposing of an application is a final order if it ends the particular proceeding before the court, even if it does not finally determine another, quite possibly larger, issue between the parties which may be determined in a subsequent proceeding or process.

Recently, in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the applicable principles as follows:

The main principles that determine whether an order is interlocutory or final are well known:

1. 1. 1. 1. 1. An appeal lies from the court’s order, not from the reasons given for making the order.
            2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right[.] Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.
            3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.
            4. The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case”. In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]

The decision of this court in Karbaliotis v. Anaheim Unit Investors (1996), 1996 CanLII 715 (ON CA), 89 O.A.C. 58 (C.A.) exemplifies these principles. There, a judge set aside an assessment officer’s certificate of assessment and directed a trial of an issue. On appeal to this court, the appeal was quashed on the basis that it was interlocutory in that it did not finally dispose of the rights of the parties.

Similarly, in Zaldin & Zaldin v. Carpenter, 1994 CarswellOnt 4517 (Div. Ct.), citing this court’s decision in Buck Brothers Ltd., the Divisional Court held that an order setting aside a certificate of assessment and remitting the matter for a new hearing was interlocutory. In contrast, in Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court held that an order that set aside an assessment officer’s report but settled the account was a final order. The motion judge had finally determined the substantive issue between the parties.

As in Kabaliotis and Zaldin, in the case before us, the motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject matter of the litigation between the parties and their substantive rights remain to be determined. As a result, the order Ms. Singh seeks to appeal is interlocutory.”

            Singh v. Heft, 2022 ONCA 135 (CanLII) at 9-14

“An award of full recovery costs does not necessarily mean that the applicant will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.

 In Jackson v. Mayerle, 2016 ONSC 1556 the court wrote at paragraph 91:

 Even where the “full recovery” provisions of the Rules are triggered — either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith — quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707(supra); Scipione v Scipione 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 (supra).”

            Fenton v. Charles, 2023 ONCJ 74 (CanLII) at 27-28

“The amendments to Part III of the Act [CLRA] in November 2020 reformulated the terms “custody” and “access’ in favour of decision-making responsibility, parenting time, contact and guardianship, all to be determined according to the best interests of a child. Section 18(1) defines “contact” or a “contact order”, as noted above, differently from parenting:

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child.

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.

What distinguishes a contact order from a parenting order is decision-making responsibility accorded to the latter definitions. Underpinning both, the foremost consideration involving “the time a child spends in the care of” the non-parent or parent is the best interests of the child. The issue then in this case is to what extent should the decision of Scriver and Gordon be overruled in favour of TDS having contact with Arbuzova?

In Agmon Sherr J. rejected the Chapman line of cases favouring parental autonomy where settled intent could be demonstrated, referencing s. 62(3) as conferring a higher status on a person demonstrating that intent. That section is found under Part III of the Act under the heading “Procedure” and, in my view, confers no such status. As with the unsuccessful argument in Ninkovic that the reference to “grandparent” in section 21(1) and section 24(2)(a)(i) conferred no enhanced status or higher standing on a grandparent, “settled intent” is but one of several factors relevant to determining whether a contact order, in the circumstances of this case, is in the best interests of TDS. Section 62 does no more than mandate the proper parties to an application under Part III of the Act. Even so, this court adopts the three-question test set out in Giansante and followed by Agmon and Hicks.”

          Arbuzova v Scriver et al, 2024 ONSC 832 (CanLII) at 21-23

“Non compensatory entitlement occurs when the support obligation arises from the marriage relationship itself when a spouse is unable to become self-sufficient.  It can be based on need.  Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. The needs based support could, therefore, consider the recipient’s ability to become self-sufficient for reasons such as health.

In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. Gray v. Gray, 2014 ONCA 659.

In Ford v. Waldhart, 2022 ONSC 6277, the court said:

Entitlement on a needs basis will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson (“SSAGs”). In the case before me, there is a large discrepancy in the parties’ incomes (regardless of whether I accept the Husband’s calculations or the Wife’s calculations of the Wife’s income).I find that the Husband suffered an economic hardship as a result of the breakdown of the long-term relationship. There is no question that the Husband cannot afford to maintain a standard of living similar to that enjoyed by the parties during the relationship.”

            S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 42-44

“…s. 10 of the FLA provides that questions of title must be settled before the property can be equalized: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 29; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, at pp. 90-91.

Questions of title may not always be resolved by simply looking to legal title; even if a party does not hold legal title, they may advance a claim that they hold beneficial ownership in the property through a resulting or constructive trust.

A resulting trust exists when a party makes a financial contribution to the initial purchase of a property, but then gratuitously transfers their title (i.e. transfers their title for nothing in return) to the other party, with the intention that the transferee holds the transferor’s title for the transferor’s benefit. In other words, one party contributes to the purchase of the property but then transfers their interest in the property to the other party for them to hold “in trust” for the transferring party: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16-19.

When dealing with a matrimonial home, s. 14 of the FLA creates a presumption of a resulting trust when there has been a gratuitous property transfer from one party to the other: Korman, at paras. 26-27. However, as Cromwell J. has observed, “the presumption of resulting trust … is neither universal nor irrebuttable”: Kerr v. Baranow, at para. 20. Accordingly, when the presumption applies, the party holding the interest may rebut the presumption by showing that the gratuitous transfer was a gift and there was no intention for them to hold the transferred interest for the other party’s benefit.

A constructive trust may arise where there was no financial contribution to the initial purchase of the property or gratuitous transfer of any interest, but where the party holding title to the property would be “unjustly enriched” (i.e. would unfairly benefit) if they were permitted to retain full ownership and benefit over the property. It is premised on the idea that one party contributed a benefit to the property, and it would be unreasonable in law or equity to allow the other party to retain that benefit. Accordingly, a constructive trust is a remedy for unjust enrichment.

As the Supreme Court explained in Kerr v. Baranow, at para. 50: “Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”.

There is no presumption of a constructive trust in the FLA, therefore, the party making a claim for a constructive trust has the burden to establish that unjust enrichment exists. Only then may a court impose a constructive trust to remedy the unfair benefit.

Kerr v. Baranow, at para. 32, articulates the three elements to an unjust enrichment claim: (1) an enrichment; (2) a deprivation; and (3) the absence of a juristic reason for the enrichment. To obtain a constructive trust as a remedy, the claimant must also demonstrate a “sufficiently substantial and direct” link, “causal connection”, or “nexus” between the party’s contributions and the relevant property, and that a monetary award would be insufficient in the circumstances: at paras. 51-52.”

          Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 66-72

“A tape recording must meet the authenticity requirements of s.34.1 of the Evidence Act. However, here, the authenticity of the electronic record is not seriously challenged by the applicant. I agree with that because of the presumption of integrity created by that section when there is evidence that the device was operating properly. Here, the evidence of the respondent is that she used the recording application on her working iPhone.

However, it is argued that the prejudicial effect of the recording outweighs its probative value because not only is there no opportunity to cross-examine the declarant, but also because of the systemic prejudice that would arise from the admission of secretly obtained evidence in family cases considering how it tends to undermine the core values of modern family law of assuring the best interests of the child, reducing conflict, and of maintaining, restructuring and encouraging family relationships.

When I consider the evidence and the law submitted in writing and orally by the parties, I arrive at the following conclusions.

Dealing firstly with the audio recording, I ultimately find that the probative value of this recorded statement is slight in comparison to the prejudice that might otherwise result should it be admitted, and therefore conclude that it is inadmissible.

The probative value of this recording is directed towards the child’s best interest, her well-being, and whether she is harmed while in the presence of her father. However, the recording is of very poor quality and it is difficult to hear what the child is saying. Too much reliance would be placed on the interpretation of this recording made by the respondent at trial. As a result, it is difficult to assess whether the child spoke spontaneously, all of which impacts not only the reliability, but at the residual stage of the analysis, the probative value of the recording.

As indicated by my colleague, Justice Fryer in Wilson v. Sinclair, 2021 ONSC 8345, at paras 18-19:

[18]      The basic test for admitting this evidence has not changed.  Rather, since the decision in Reddick, the court has placed a greater emphasis and weight on the presumptive, significant prejudice that must be overcome by a party seeking to admit surreptitious recordings.  See Scarlett v. Farrell, 2014 ONCJ 517. [emphasis added]

[19]      I concur with Kurz J. when he states:  the “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 the children”:  Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at para 41. [emphasis added]”

            Ali v. Obas, 2022 ONSC 814 (CanLII) at 8-13

“It is well settled that when determining how much weight to give a child’s wishes, a court is to consider: 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: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42.”

            J.N. v. C.G., 2023 ONCA 77 (CanLII) at 32

“When a payor’s income exceeds $350,000, courts must take an individualized, fact-specific analysis: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 106.”

            Sne v. Sne, 2023 ONSC 566 (CanLII) at 50

“At paragraph 9 of Davis v. Nusca, 2003 CanLII 2301 (ON SCDC), Justice Benotto, writing for the Divisional Court in an appeal from a motion wherein a mother had been granted leave to move to Sweden with two small children before trial, noted that: “the status quo relates not so much to a location as to the continuity of care.”

At paragraph 26 of Grant v. Turgeon, 2000 CanLII 22565 (ON SC) Justice MacKinnon reasoned that a status quo required consistent residency and was difficult to discern where there was “factual controversy as to when the children were with each parent.”

Here, there is no such factual controversy: Deverick has been in Mother’s primary care and has spent alternate weekends and a mid-week evening visit with Father continuously for more than three years.  From Deverick’s perspective – which is the court’s focus in assessing his best interests – he lives primarily with his Mother in Kitchener and visits his Father in Ingersoll.  I find that this is the status quo.

What then, is the test for changing the status quo on motion?  At paragraph 26 of S.H. v. D.K., 2022 ONSC 1203, Justice Dambrot writing for the Divisional Court put it this way (internal citations omitted):

[26]           Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A.K. and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests.  That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”

Thus, the court is to exercise caution, and to generally maintain the status quo unless compelling reasons necessitate a change to meet a child’s best interests.  The reason is simple:  children ought not to be bandied about between households while the litigation unfolds.  Family circumstances fluctuate, and the wheels of justice turn slowly: from a child-focused public policy perspective, ever-changing parenting plans are not in the best interests of children whose lives have already been completely disrupted by their parents’ separation.

I do part ways with Justice MacKinnon in concluding that the underlying source of the status quo is irrelevant.  If it arises de jure, meaning from an existing Order of the Court (especially a Final Order), then a change in the parenting structure should be made in only the clearest of cases.  Greater flexibility may be exercised if the status quo arises de facto, meaning on the basis of lived reality, having regard to the simple fact of delays inherent in post-separation negotiation and litigation.  In my view, considerations applicable to the assessment of changing a status quo de facto, include:

• • • • • whether the parent seeking the change objected to the arrangement at its outset;
        • what steps were taken by the parent seeking the change, including attempts at negotiation or mediation;
        • whether the parent seeking the change commenced litigation quickly following the hardening of the parties’ positions;
        • how closely the parenting proposal made by the parent objecting to the status quoresembles the children’s lived experience pre-separation or, if applicable, immediately post-separation;
        • how much time has elapsed;
        • how each parenting proposal impacts upon the children’s day-to-day lived experience; and
        • the children’s views and preferences, where they can be reasonably ascertained.

Stanway v. Stanway, 2024 ONSC 477 (CanLII) at 12-17