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“A recent publication on parenting time by Professor Nicholas Bala and Dr. Rachel Birnbaum is entitled, “Focusing on Children in Post-Separation Parenting.”  The article considers arguments made in favour of a presumption of shared parenting (that it is more just and fair) and against such a presumption (that it puts victims of family violence at further risk of harm).  The Canadian government declined to include such a presumption in the recent Divorce Act amendments.  The authors support the government’s decision and disagree with the notion that family justice professionals act out of economic self-interest when they decline to support a presumption.  Instead, the researchers state as follows:

“Australia adopted such a reform in 2006, but abandoned it in 2012, as it resulted in increased litigation and endangered children. As in Canada, a majority of parents in Australia settle their cases, and many more make plans for shared parenting. But having a presumption in favour of shared parenting actually seemed to inflame the high conflict cases and cause more litigation. The problem with a legal presumption of shared parenting is that the cases where this is most relevant, those which are litigated, are atypical higher conflict cases….”

Professor Bala and Dr. Birnbaum highlight the importance of considering the views of children about post-separation parenting arrangements.

“Research suggests that most children appreciate having significant, continuing involvement with both parents, but that many resent the rigidity of parents who insist on “equal” parenting arrangements. Children want flexibility, especially when they reach adolescence. Most teenagers want a role in making arrangements that meet their evolving needs. Many adolescents want a significant relationship with both parents, but prefer having a “home base” rather than a division of their time in way that parents might consider “fair”.”

MacLellan v. Sidiropoulos, 2022 ONSC 2599 (CanLII) at 21-22

“Identifying the valuation date involves the determination of two issues: the date when the parties separated and the point in time when, as noted in s. 5(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation”.  Most often these two events are the same but where a dispute about the choice of a valuation date arises it is invariably financially driven due to the consequences of the date selected. In cases where, as in this case, the parties continued to reside under the same roof after an alleged separation event and there are, also as in this case, differences (even though modest) to their respective net family properties depending on the valuation date, caution must be exercised by the court before concluding that the marriage cannot be salvaged. In Newton v. Newton, (1995) 1995 CanLII 17875 (ON CJ), Czutrin J. observed:

… extreme caution should be exercised in fixing a valuation date.

Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added)

Separation and valuation dates are not necessarily synonymous terms. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell, 1992 CarswellOnt 306.  In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected an earlier January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”: Ibid, para 1. Those decisions must, however, be supported by the evidence: as per Locco J. in DiFrancesco v. DiFrancesco, 2011 ONSC 3844 at para 38.

A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart” and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic, 2019 ONSC 3857 at paras 12-26 and 32-40. In that case the parties disputed their date of separation: this impacted the determination of their net family properties. The husband claimed a date about three and a half years earlier than the wife’s date. Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, concluding that despite evidence that the parties, among other things, had travelled together with their children internationally and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose. Relevant to the analysis in the case before this court are the following observations:

… Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively.  In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other: Ibid, at para 39.”

          Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII) at 22-24

“The Divorce Act has recently been amended with those amendments coming into force March 1, 2021. However, insofar as the provisions relating to spousal support are concerned, the provisions of the amended legislation are for all intents and purposes similar to the previous legislation.

Therefore, the case law which has evolved up until February 28, 2021 is still relevant.

In the case of Roebles v. Kuhn 2009 BCSC 1163, there was an enumeration of a list of principles that govern an interim spousal support motion namely:

a)      for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;

b)       an interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to the separation;

c)      the Court should not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The Court achieves rough justice at best.

d)       interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

e)       interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

f)        where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

In addition, in the case of Samis v Samis 2011 ONCJ 273, Justice Sherr added the following considerations to be taken into account namely:

(i)    interim support was to provide an income for the dependent spouse until trial

(ii)   the court need not conduct a complete inquiry into all aspects to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

(iii)    Interim support is a holding order to maintain the accustomed lifestyle if possible

(iv)   interim support is to be based on the parties means and needs. The merits of the case in its entirety must await a final hearing.

Siegel-Nudelman v. Nudelman, 2021 ONSC 3064 (CanLII) at 54-57

“Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities: R. v. Millard, 2018 ONSC 4410. The test for the admissibility of expert opinion evidence was enunciated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9  and further refined in White Burgess Langille Inman v. Abott and Haliburton Co, 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182.  

Justice Penny Jones urged in The Children’s Aid Society, Region of Halton v. J.B. and D.T., 2018 ONCJ 884, at para. 12:

Given the real risk that a miscarriage of justice will arise from the too ready admission of unreliable expert opinion evidence into the trial record for consideration by the trier of fact (examples which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the experts and the nature of the opinion evidence sought to be introduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process given its unreliability and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640 (CanLII) [Emphasis added]

Justice Kathleen Baker in Ogwadeni: deo Six Nations Child Welfare v. K.L.H., 2021 ONCJ 339 (CanLII) at paras 18 and 19, succinctly summarized the two-stage process for the admission of expert evidence as follows:

(18) Expert evidence is admissible when it meets the test set out in the following two stage process:

First, the evidence must meet the threshold requirements of admissibility.  Accordingly:

a)     The evidence must be logically relevant,

b)     The evidence must be necessary to assist the trier of fact,

c)      The evidence must not be subject to any other exclusionary rule,

d)     The expert must be properly qualified, and

e)     For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.

(19) The court must then proceed to the second gatekeeping stage and weigh the benefits of admitting the evidence against the potential risks considering such factors as:

a.   Legal relevance

b.   Necessity

c.   Reliability

d.   Absence of bias

Where the Court is considering evidence from a proposed expert witness whose expertise is in novel science, “special scrutiny” of that science is required. The Court must determine whether the proposed evidence meets a basic threshold of reliability to be sufficiently probative such that one can conclude that it is necessary. In so doing, the Court must consider:

(a)     whether the theory or technique can be and has been tested;

(b)     whether the theory or technique has been subjected to peer review and publication;

(c)      the known or potential rate of error or the existence of standards; and

(d)      whether the theory or technique used has been generally accepted.

The function of expert witnesses is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502. In order to exclude expert evidence due to alleged bias or partiality, the evidence must be so tainted as to be rendered it of minimal or no assistance: Carmen Alfano Family Trust v Piersanti, 2012 ONCA 297 at para 111.  An expert witness that has adopted the role of advocate for a party is not impartial: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502.

The Court should clearly define the subject area of a witness’ expertise and vigorously confine the witness’s testimony to it.”: Brandifferri v Wawanesa Mutual Insurance Co., 2011 ONSC 3200.”

          C.M. v. S.L.S., 2022 ONCJ 206 (CanLII) at 70-75

“The father asks this Court to make a finding of parental alienation.   Whether there should be a finding of alienation is a fact specific determination.

At ¶ 122 of the trial decision in Bors v. Beleuta, 2019 ONSC 7029 (aff’d by 2021 ONCA 513), Van Melle J. made a finding that a mother had alienated the children from their father.  In so doing, at ¶ 119, she adopted the following definition of parental alienation:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.

It is an abusive practice. It is child abuse when it occurs. It’s emotionally abusive. It cripples and stunts children’s development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.

So parental alienation is a process, an interactional process where systematically one parent’s role in, for the children is eroded over the course of time.

The father did not call any expert evidence about alienation, but expert evidence is not necessarily required.  See A.M. v. C.H., 2018 ONSC 6472 ¶ 107 (aff’d by 2019 ONCA 764 ¶ 31-35).  Even where there is no expert evidence, courts have relied on the list of factors that experts have developed to aid in identifying parental alienation.  See for example ¶ 108 and 109 of the trial decision in A.M. v. C.H.;  see also ¶ 194 of E.M. v. M.Q., 2021 ONCJ 533,  wherein A.W.J. Sullivan J. cited a list of 17 strategies in which an alienating parent might engage.

I am not repeating each of the behaviours or indicia of alienation here.   In summary, they include such things as involving a child in adult matters and the litigation, making false statements to a child, denigrating the other parent to a child, or in the presence of a child, fabricating allegations that the other parent is abusive, and so on.    At ¶ 121 of the trial decision in Bors v. Beleuta, Van Melle J. added to the list a parent’s continuing failure to abide by court orders can be part of the alienating behaviour.

A parent who engages in these patterns of behaviour is engaging in emotional abuse towards the child.  It is a form of family violence.   See again Bors v. Belutal ¶ 122;  see S. v. A., 2021 ONSC 5976 ¶ 26-29;  and see also Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 ¶ 110-114.

To find parental alienation, the focus is not just on the parental conduct;  the focus is also on the impact on the child.  As Nicholson J. summarized in his trial decision in A.M. v. C.H., a child may vilify the other parent, participate in the campaign of hatred, express trivial reasons to justify the hatred, have disproportionate reactions to the other parent’s behaviours, express a lack of guilt or remorse for those actions, be angry at the other parent, and mimic the alienating parent’s behaviour.  See A.M. v. C.H. ¶ 109.

And before making a finding of parental alienation, it is necessary to examine whether the rejected parent’s behaviour is the cause or a contributing factor the damaged relationship.  If the child has experienced negative behaviour by a parent that causes him or her to independently form the view that he or she does not wish to have the relationship, the case may be more aptly one of realistic estrangement.  “In true alienation cases there is an absence of an objective reason for the child to reject the other parent”.  See H.B. v. M.B., 2018 ONCJ 916 ¶ 43.” 

          W.A.C. v. C.V.F., 2022 ONSC 2539 (CanLII) at 503-509

“Where parties reach their own settlement, leaving only the issue of costs to be determined by the court, the analysis requires a cautious approach.

a.  Costs may be awarded to a party even if a case settles, if the disposition of costs was not dealt with in the settlement document – or if the minutes of settlement specifically reserve the issue of costs to be determined as the only remaining issue.  Talbot v. Talbot, 2016 ONSC 1351 (SCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ).

b.   However, where parties reach a pre-trial settlement, the court should exercise caution before making an award of costs.  With settlements, there should generally be a compelling reason to justify costs.   Davis v. Fell, 2016 ONCJ 84 (OCJ); Muncan v. Muncan2021 ONSC 1369 (SCJ); Krueger v. Krueger, 2017 ONSC 1446 (SCJ); Frape v. Mastrokalos 2017 ONCJ 915 (OCJ); Witherspoon v. Witherspoon, 2015 ONSC 6378 (SCJ); Cummings v. Cummings 2022 ONSC 5657 (SCJ).”

          Casey v. Casey, 2023 ONSC 2512 (CanLII) at 5

“Section 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 (“FCA”), states:

Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

Under s. 1 of the FCA, a “conveyance” includes a gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise.

The Applicant is a “creditor” within the meaning of the FCA given that a person that has commenced an application under the Divorce Act for corollary relief becomes a contingent creditor of the respondent: Purcaru v. Seliverstova, 2016 ONCA 610, para. 11, affirming 2015 ONSC 6679 (Myers J.).

In Purcaru, Myers J. stated:

11      It is very difficult for an applicant to prove a person’s hidden intention to defraud creditors. Therefore, the law provides that the court can infer the existence of a transferor’s fraudulent intention to defeat or delay creditors where there are recognized “badges of fraud” associated with a transaction. The badges of fraud are facts or fact patterns that courts have held to be indicative of fraudulent transactions. Facts such as: secrecy, transfer of property when an action or execution is pending, transfer of property to non-arm’s-length parties, transfers made with undue haste, and transfers for a conspicuously insufficient price, are all recognized examples of badges of fraud. There are others such as the breach of family law orders requiring a party to preserve his or her assets pending a trial. If the court draws the inference of fraudulent intent due to the existence of badges of fraud, then an evidentiary burden will fall to the respondents to explain their conduct to try to rebut the inference of fraudulent intent. Of course the ultimate persuasive burden remains on the applicant throughout.”

          Sanvictores v. Sanvictores, 2023 ONSC 2473 (CanLII) at 36-39

“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