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“Family Law Rule 1(8.2) states that the court may “strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.” As confirmed in Frick v Frick 2016 ONCA 799, a document includes a pleading.

The Respondent father argues that a single sentence in paragraph 41 of the Applicant’s Reply is “inflammatory” and for this reason should be struck.

Paragraph 41 of the Applicant’s Reply reads as follows, with the sentence in question in italics: “

To date, Kiran has not paid any child or spousal support to Stephanie, aside from a one-time payment of $2,000.00. Even after numerous requests through counsel for Kiran to start paying a monthly amount on a temporary, without prejudice basis, Kiran has refused to make any other payments, despite having the financial means to do so. When the COVID-19 outbreak first began and Stephanie asked that Kiran provide her with funds to take a taxi or ride share for access exchanges so Amell would not have to take public transit and possibly be exposed to the virus, Kiran refused.

Inflammatory is defined in Blacks Law Dictionary as “tending to cause strong feelings of anger, indignation, or other type of upset; tending to stir the passions”.

Courts have found statements to be inflammatory when they are irrelevant to an issue in the case or consist of personal attacks.

In Frick, statements in the wife’s Application about the Respondent husband’s extra-marital conduct were struck under Rule 1(8.2). The court explained that the statements were inflammatory because they “provide a springboard to question the husband about his extra-marital conduct, not about his net family property”. Further, “extending questioning of the husband’s conduct …that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”

In Norris v. Norris, 2016 ONSC 7077 at paras. 66-68, paragraphs in a factum included “commentary questioning the competence and professionalism of opposing counsel”. The remarks were found to be inflammatory and struck from the factum.

In Cheng v. Yu, 2017 ONCJ 563 at paras. 107-111, statements in a non-party’s affidavit were found to be inflammatory because the language was unnecessary and unhelpful to the party that filed the affidavit and “only further intensifies the conflict in an already high conflict case.” The court refused to strike the statements. Instead no weight was given to the statements that the court characterized as hyperbole and personal attacks.

As explained below, the Respondent has not shown that the sentence in question is inflammatory. Even if it was inflammatory, and it is not, the decision to strike a pleading is not automatic. The law is clear that an order to strike pleadings is a drastic remedy that should only be applied in exceptional circumstances, where no other remedy would suffice (Callwood v. Callwood v. Purdy, 2020 ONSC 3657).

The Respondent has other remedies. He can question the Applicant about the sentence, he can serve a request to admit and if the application proceeds to trial he can cross-examine the Applicant.”

            Eira v. Kulkami, 2021 ONSC 7015 (CanLII) at 4-13

“Solicitor client privilege protects communication between a solicitor and his or her client, recognizing that:

the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice: Blank v. Canada (Department of Justice), 2006 SCC 39 at para. 26.

Canadian authorities recognize two forms of solicitor-client privilege. The first, legal advice privilege is both a substantive and procedural right of a client to maintain as confidential communications and advice passing between the client and their solicitor.   The second, litigation privilege, or “work product privilege” protects from production a communication made or a document created for the dominant purpose of assisting the client in litigation, actual or contemplated: Autosurvey Inc. v. Prevost, 2005 CanLII 36255; [2005] O.J. No. 4291 at para. 50-53.”

            Dixon v. Lindsay, 2021 ONSC 1360 (CanLII) at 37-38

“In Children’s Lawyer v. Balev 2018 SCC 16 at 28-29 the court stated that the heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised, but for the wrongful removal or retention.

If the requirements of Article 3 are established, Article 12 requires that the judge in the requested state order the “return of the child forthwith” unless certain exceptions apply.  Those exceptions in summary are:

1)  The parent seeking return was not exercising custody or consented to the removal or retention (Article 13 (a);

2)  There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b);

3)  The child of sufficient age and maturity objects to being returned (Article 13 (2);

4)  The return of the child would not be permitted by fundamental human rights and fundamental freedom of the requested state (Article 20); and

5) The application is brought one year or more from the date of the wrongful removal or retention and the judge determines that the child is settled in the new environment (Article12).

Accordingly, there are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions.”: Balev, at para. 36.

            Kommineni v. Guggilam, 2022 ONCJ 66 (CanLII) at 53-55

“The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA:

“3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the “litigating finger” is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim? If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as “prejudice” where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).”

More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, MacLeod J. summarized the law of misnomer:

 “19…e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.”

As Glustein J. held in Loblaw, limitation period defences do not apply:

13  The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the “litigating finger” test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19; Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).

…

24  Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343 (CanLII), 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts’ discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37).”

 MacLeod J. provided the following guidance regarding the effect of notice in Loy-English:

 “19…f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g.   Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h.   Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.””

            Abraham v. Doe, 2023 ONSC 1232 (CanLII) at 20-23

“This Court has an inherent jurisdiction to set aside or change an order to prevent a miscarriage of justice: Neathery v. Cottle, 2012 ONSC 3403.  This is consistent with the primary objective of the Family Law Rules – to enable the Court to deal with cases justly.

It seems to me that the test to re-open this motion should be the same as the test to re-open a trial.  First, would the evidence, if presented at the motion, probably have changed the result?  Second, could the evidence have been obtained before the motion by the exercise of reasonable diligence?: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983.”

            Bors v. Bors, 2019 ONSC 1230 (CanLII) at 10-11

“Disagreements between parents about vaccinating children against COVID-19 have been considered by many courts of first instance.

Within limits, I can take judicial notice of some facts related to the issue. I think that I can go as far as to say the following:

a.   SARS-CoVi-2 has a low mortality rate, especially in children.

b.   The authorized vaccines are generally safe and have a low risk of harmful side effects, especially in children.

c.   The vaccines do not prevent infection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.

In the absence of evidence of any particular vulnerability, whether to the virus or to the vaccine, I would defer to the party who has decision-making authority. I do not think that whether to vaccinate a 12-year-old against COVID-19 is a question that justifies intervention by the court where decision-making authority has already been allocated.

Depending on the child, the question may be determined without reference to parental authority, as it was here in the case of Gabriel. He arranged his own vaccination. The Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A provides:

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a)  he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b)  he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

15 (1) A person may be incapable with respect to some treatments and capable with respect to others.”

Warren v. Charlton, 2022 ONSC 1088 (CanLII) at 8-11

“We disagree with Mr. Merdad’s submission that all property claims between spouses or former spouses must necessarily be equalization claims. And it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct.

The FLA equalization provisions do not deal with property, per se, but, rather, with the equitable calculation, division, and distribution of the value of net family property. Here, Ms. Bakhsh brings forward an equitable trust claim and not a claim for equalization of the value of the parties’ net family property. A claim of ownership is distinct from a claim for a share in property value; an equitable trust claim addresses the former and the equalization regime of the FLA covers only the latter: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 59.

The equalization provisions of the FLA also do not preclude an equitable trust claim respecting property. Section 10(1) of the FLA expressly permits a court application for a determination between spouses or former spouses “as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties” and the court may “declare the ownership or right to possession”, as the respondent has claimed, among other remedies. Importantly, the two-year limitation period in s. 7(3)(a) of the FLA applies only to an application based on subsections 5(1) or (2) and not to the determination of a question of ownership between spouses set out in s. 10(1) of that Act.

The appellant’s reliance on the Supreme Court of Canada’s decision in Rawluk v. Rawluk, [1990] 1 S.C.R. 70, is, respectfully, misplaced. Rather, it supports Ms. Bakhsh’s position.

At issue in Rawluk was whether the doctrine of constructive trust could be applied to determine the ownership of assets of married spouses under the provisions of the FLA or whether the remedy was abolished and superseded by the equalization of matrimonial property and other provisions under the FLA. Mrs. Rawluk claimed a one-half interest in the matrimonial property by way of a remedial constructive trust.

The Supreme Court in Rawluk confirmed that the FLA incorporated the constructive trust remedy that could be used in the matrimonial property context to allocate proprietary interests and that the FLA did not constitute an exclusive code for determining the ownership of matrimonial property: at pp. 89-91, 93 and 97. While the doctrine of constructive trust can be used to settle questions of ownership for the purpose of determining the net family property of each spouse, this function is “totally distinct from the process of determining how the value of matrimonial property should be distributed under the equalization process”: at p. 93.”

          Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 14-19

“[in A.C.V.P. v. A.M.T., 2019 ONSC 1559, Justice Gordon discussed the importance status quo, a factor relevant to my analysis as well:

258      Status quo is always a relevant consideration, perhaps less so with the passage of time. Parents are presumed to have equal status and neither has the right to make unilateral changes, absent special circumstances, agreement or court order. See: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.J.). A.C.V.P. did act unilaterally at the time of separation and commencement of litigation. The circumstances had not changed prior to these events. But he was successful in obtaining the initial court order for custody in November 2014.

259      Status quo is neither a rigid concept nor a short term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey (1990), 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (Sask. Q.B.); Sodhi v. Sodhi, 2002 CarswellOnt 1050 (Ont. C.A.)], 2002 CanLII 41503; Izyuk v. Bilousov, 2011 ONSC 6451 (Ont. S.C.J.); Gebert v. Wilson, 2015 SKCA 139 (Sask. C.A.); and K.R. v. J.K., 2018 SKCA 35 (Sask. C.A.).

260      Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6^th) 229 (Ont. S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.

261      During the relationship, the family resided together in the matrimonial home. Each parent had child care duties. A.M.T., however, was the primary parent in day to day matters, arranging health care and activities and in homeschooling. The role of A.C.V.P. was secondary given his employment, providing child care subject to availability.

262      The situation changed on separation. From May to November 2014, A.C.V.P.’s role diminished. He became an access parent with limited child care responsibilities. A further change, dramatic in nature, occurred in November 2014. A.C.V.P. became the primary parent by court order. A.M.T.’s role was reduced significantly, now only seeing the children on a limited basis.

263      The passage of time, despite being unnecessary and unreasonable, must be considered from the children’s perspective. Both parties are responsible for the delay. In this regard, I am not persuaded the status quo during the relationship is determinative. Nor do I conclude a new status quo was created. Nevertheless, the four plus years in the care of A.C.V.P. is a factor under section 24 (2) (c).”

            D.D. and F.D. v. H.G., 2020 ONSC 889 (CanLII) at 510

“The applicant referred to the decision of D’Amico v. D’Amico, 2011 ONSC where the Court treated a deposit payment made by the husband before the date of marriage for the purchase of their matrimonial home as a credit to him on the date of marriage.

However, the Ontario Court of Appeal in Michalofsky v. Michalofsky (1992), 1992 CanLII 14023 (ON CA), 39 R.F.L. (3d) 356 (Ont. C.A.) confirmed that a spouse was not entitled to deduct the $17,000 she contributed before her marriage to the cost of a dwelling that became their matrimonial home after marriage. The Court affirmed the decision of Saunders J in the Divisional Court (1989) 1989 CanLII 8766 (ON SCDC), 25 R.F.L. (3d) 316 who held that the monies paid was an investment in the property that was the matrimonial home at the time of separation and as such was not deductible in calculating her net family property.

The Court in D’Amico did not appear to have been referred to this decision or the law that the payment in effect meant that the husband had an equitable interest in the matrimonial home. In addition there is an issue that need not be decided of whether the respondent wife because of the joint purchase of the matrimonial home also had an equitable interest in it to the extent of that deposit paid to the vendor/builder.

Accordingly, based on the binding decision of Michalofsky and given the circumstances of this case, the deposit funds of $18,393 paid by the applicant do not constitute property owned by him other than the matrimonial home on the date of marriage and are not to be deducted from his family property on the date of separation.”

          Zheng v. Xu, 2019 ONSC 865 (CanLII) at 23-26

“Under s. 21(1) of the CLRA “A parent of a child or any other person” can apply for access to a child.  Mr. McKenzie as a stepparent to Onyx qualifies as “any other person”.

In this case, the issue involves the doctrine of “parental autonomy”.  The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren.  Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship.  She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.

The ratio of this decision has been summed up in several cases (see Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.)) as an inquiry as to the following questions:

a.   Is there a positive relationship between the Respondent and the child?

b.   If there is a positive relationship, has the parents’ decision imperiled that relationship?

c.   Has the parent acted arbitrarily?

In the present case, the Respondent is now enjoying overnight access to his natural child, Bronx.  There is no question that the decision to differentiate Onyx’s access from Bronx’s was a decision made by the Applicant.  The real issue is whether there is a positive relationship between Mr. McKenzie and Onyx, and whether the mother’s position was arbitrary in nature or with a view to preserving the best interests of the child.

It is to be noted as well that there is authority that the parental autonomy argument may fail where the access seeker has had a “settled intention” to treat the child as his or her own.  In Agmon v. James, [2018] O.J. No. 59 (C.J.), Sherr J. gave access to a stepmother over the parents’ objections.  At para. 58, he stated that “the court finds that the [parental autonomy] line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family.  Their status is different than family or community members who have not formed the requisite settled intention.”  This decision was cited with approval (although not followed) by Boswell J. in Laye v. Brisebois, 2020 ONSC 4439.

In making his determination regarding parental autonomy, Sherr J. relied upon s. 62(3)(b) of the CLRA which requires any person demonstrating a settled intention to treat the child as a member of his or her own family to be named as a party to custody proceedings.  Parties who can demonstrate settled intention enjoy a status beyond that of a person having a relationship with the child which does not meet the “settled intention” test such as a relative or grandparent.

Finally, it is to be noted that, in examining the provisions concerning best interests of a child as set out in s. 24(2) of the CLRA, only one of those criteria is related to the blood relationship between the party and the child.”

          Ball v. McKenzie, 2021 ONSC 1150 (CanLII) at 12-18