Category: Uncategorized

“In Richardson v Richardson 2019 ONCA 983 (ON CA) the Ontario Court of Appeal discussed the discretion which judges have when presented with terms of settlement, particularly in relation to parenting issues.

25        There is no dispute about the importance of settlements in family law. Settlements are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.

26        Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.

27        If a judge rejects a settlement, the reasons for rejecting the settlement should be provided. Moreover, if the judge does not take any steps to facilitate settlement — such as sending the parties away with some direction as to the aspects of the agreement that are of concern, or arranging a settlement conference either with him or her or with another judge — the reason for this should also be provided. Without explaining the basis upon which the parties’ settlement is rejected, the judge leaves the parties with no way of knowing, what, if anything, they could do to address the court’s concerns. The concerns may have been of a nature that could be addressed, but in the absence of reasons the parties will have no opportunity to address them.”

Nuell v. Guay, 2021 ONSC 7700 (CanLII) at 32

“The Consolidated Provincial Practice Direction governs the release of digital court recordings. Under the Consolidated Provincial Practice Direction:

C-68. The release of digital recordings will be at the court’s discretion and the use of all digital recordings will be subject to any court order and any common law or statutory restriction on publication applicable to the particular proceeding.

In particular, the section on “Restrictions on Access to Digital Recordings from DRDs” makes clear that unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in respect of “civil and family motions and applications.”

Restrictions on Access to Digital Recordings from DRDs

1. 1. 1. 1. 73. All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
            74. Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings:

(a)     in camera proceedings or any portion of a proceeding that is heard in camera;

(b)      private or closed hearings (e.g. pursuant to ss. 87 of the Child, Youth and Family Services Act);

(c)      proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding (e.g., pre-trial conferences held in court with self-represented accused, pursuant to rule 28.05(4) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario), proceedings under the Youth Criminal Justice Act); and,

(d)     case, settlement and trial management conferences pursuant to rule 17 of the Family Law Rules; and,

(e)      civil and family motions and applications (e.g. civil motions and applications under rule 37 and rule 38 of the Rules of Civil Procedure, family motions under rules 14 and 15 of the Family Law Rules).

Accordingly, digital recordings of family motions are not available unless a judge orders otherwise. Also see Mother Doe v. Havergal College, 2020 ONSC 5550.”

            Punit v. Punit, 2022 ONSC 6530 (CanLII) at 15-17

“The Supreme Court of Canada in Bracklow (1999) set out three conceptual bases for entitlement to spousal support, namely, compensatory, contractual, and non-compensatory: 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at 442. The Court distinguished the compensatory from the non-compensatory basis as follows:

39   …Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation“, which may support the same argument. …

40   …To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

41      Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives — to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments — are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. “[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6)(c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), “the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage”, as an explicit recognition of “non-compensatory” support (“Spousal Support After Moge”, supra, at pp. 371-72).

42   Similarly, the fourth objective of s. 15.2(6) of the Divorce Act — to promote economic self-sufficiency — may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health. [Emphasis added.]”

Hardayal v. Asrula, 2018 ONSC 6948 (CanLII) at 500

“Settlements do not attract costs consequences in the same manner as argued matters; in the case of an agreed-upon result, the concept of success is different.  The case law indicates that the success of a negotiated settlement must be much clearer and more substantial than in the case of an argued matter to attract costs.  The issue of success must indicate, in the wording of one case, a “clear capitulation” by one party to another:  see Atkinson v. Houpt, 2017 ONCJ 316.  Other cases have said that the measure of success for costs consequences must be “overall success”:  Scipione v. Del Sordo, 2015 ONSC 5982.

The reason for this is clear as pointed out in the latter case:  in the course of negotiating a settlement, costs should not be permitted to hijack the process.  If a party is negotiating while keeping his or her eyes on the terms of their offer, this impedes settlement for obvious reasons.  A party conducting himself in this manner puts the cart before the horse and to place costs at the forefront of negotiations is an impediment to settlement and to be discouraged.  As noted by Kurz J. in Frape v. Mastrokalos, 2017 ONCJ 915 adopting the words of Starr J. in Shute v. Shute, 2017 ONCJ 533:

Where a matter settles, the success and/or reasonableness of the conduct of the parties is a consideration but not the most important one. In such cases, the emphasis should be on discouraging inappropriate conduct and promoting settlement. Thus, instead of identifying a reason not to award costs, the court must identify a compelling reason to make an award.”

            Lailey v. Lailey, 2022 ONSC 6458 (CanLII) at 16-17

“First, this court will not typically hear an appeal by a party from an unopposed proceeding: Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418, at para. 56. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”

            Lamothe v. Ellis, 2022 ONCA 789 (CanLII) at 3

“The Divorce Act, R.S.C., 1985, c. 3. (2nd Supp.) governs foreign divorces in the following prescribed manner:

Recognition of foreign divorce

22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.

Recognition of foreign divorce

(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act

Faezeh and Alireza were not habitually resident in Iran for the year immediately preceding the commencement of divorce proceedings, and the divorce was not granted on the basis of Faezeh’s domicile of the granting authority.  Accordingly, the question of whether the divorce was valid falls to be determined under s. 22(3).  Here, the common law creates a presumption that a foreign divorce is valid.

Under subsection (3), the courts will recognize a foreign divorce in the following circumstances:

a)  where the jurisdiction was assumed on the basis of the domicile of the spouses;

b)  where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;

c)  where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;

d)  where the circumstances of the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;

e)  where the petitioner or Respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted, or

f)  where the foreign divorce is recognized in another foreign jurisdiction with which the petition or Respondent has a real and substantial connection.

     Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 14.

In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 32, the Supreme Court of Canada discussed the concept of a real and substantial connection to the granting jurisdiction:

The “real and substantial connection” test requires that a significant connection exist between the cause of action and the foreign court.  Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction.  A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction.  The connection to the foreign jurisdiction must be a substantial one.”

Ghandchi v. Falsafi, 2022 ONSC 6411 (CanLII) at 51-54

“A summary of the proper approach to be taken in summary judgment motions in child protection matters as directed by the Ontario Court of appeal in Kawartha [2019 ONCA 316] is set out in paragraph 80 of that decision as follows:

[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. 1. 1. 1. 1.   Hryniak’sfairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding.  In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
            2.    The burden of proof is on the party moving for summary judgment.  Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof.  Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
            3.    The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.  The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
            4.   Judicial assistance must be provided for self-represented litigants.   In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
            5.     The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”

CAS v. M., W., 2019 ONSC 6592 (CanLII) at 21

“The disposition of discovery and disclosure requests requires a preliminary identification of the triable issues in order to assess the relevance of the information or evidence sought.  However, it is not enough that information or evidence is technically or remotely relevant to an issue.  Other considerations such as proportionality, fairness, cost, delay and interference with the privacy interests of non-parties must also be taken into account.  Twenty years ago the Court of Appeal made this often quoted observation in addressing a request for production and discovery from non-parties:

The discovery process must also be kept within reasonable bounds.  Lengthy, some might say interminable, discoveries are far from rare in the present litigation environment…unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy will just grow and grow.  The effective and efficient resolution of civil law suits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific law suit: Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. 3d 39 (Ont. C.A.).

One of the major reforms that followed the subsequent work of the Task Force on the Discovery Process in Ontario was an amendment to the Rules of Civil Procedure emphasizing the “proportionality principle” as an overarching and general operative element in those rules.  The proportionality principle was already enshrined in the Family Law Rules by Rule 2.  Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issue raised.  Comprehensive or exhaustive oral examination or production of documents may make access to justice unnecessarily expensive or protracted.  Merely proving the relevance of a document may be insufficient to warrant production.  To order production the court must be satisfied that it would be “unfair” to the party seeking production to go on with the case without the document or information.  In essence the document must be found to be important to a party’s case, especially in relation to the amount at stake:  see Himel v. Greenberg, 2010 ONSC 2325 (CanLII) at paras. 27 and 30 – 31.

The disposition of these motions must temper full disclosure of relevant information with the proportionality principle.  In Saunders v. Saunders 2015 ONSC 926 (CanLII), Kiteley J. addressed motions very similar to those now before this court.  I agree with, and adopt, her general comments in Saunders and in particular paragraphs 13 and 14 of that decision which read as follows:

Fourth, disclosure is not a weapon and is not intended to overreach.  As is clear in this case and too many others before the court, the process of disclosure has become an independent battle within the overall litigation campaign: Fuda v. Fuda, 2010 ONSC 5698 at para. 4.  As Perell J. held in Boyd v. Fields, [2006] O.J. No. 5762 at para. 12:

Full and frank disclosure is a fundamental tenet of the Family Law Rules.  However, there is also an element of proportionality, common sense, and fairness built into these rules.  A party’s understandable aspiration for the utmost disclosure is not the standard.  Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors.  I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.

I agree as well with the observation by Harper J. in Berta v. Berta, 2014 ONSC 3919 (CanLII) at para. 53:

The duty of all experts to the court to be neutral and objective in providing their evidence and opinions is extremely important.  Being neutral and objective does not mean an expert cannot be critical and seek out relevant documents sufficient to perform their task.  They must diligently review those documents and arrive at their considered opinion based on that thoughtful analysis.  That does not mean that the expert starts out with the presumption that he or she will unearth every single document that in any way might tie into another document in order to conduct a “forensic type of review” in all cases.  Experts must approach their task with thoroughness without having a complete disregard to the proportionality of the task the issues and the costs.”

            Kochar v. Kochar, 2015 ONSC 6650 (CanLII) at 4-5

“An important consideration in determining both liability and the quantum of costs is whether any party has served or accepted an offer to settle. As indicated above, Rule 24(5) specifically requires that in assessing whether parties have behaved reasonably or unreasonably, the court must consider whether they have made offers to settle, the reasonableness of any such offers, and any offers that they withdrew or failed to accept.  In addition, Rule 18(14) establishes costs consequences for failing to accept an offer to settle that complies with the specific requirements of that Rule, as follows:

Costs Consequences of Failure to Accept Offer

 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. 1. 1. 1. 1.    If the offer relates to a motion, it is made at least one day before the motion date.
            2.    If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
            3.    The offer does not expire and is not withdrawn before the hearing starts.
            4.    The offer is not accepted.
            5.    The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

In order for these costs consequences to come into play, the offer to settle must be signed by the party making the offer and their lawyer (Rule 18(4)).  Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)).

The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied.  The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate based on all of the circumstances of the case (M.(C.A.), at para. 43).  With respect to the requirement that the order obtained be as or more favourable than the offer to settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms.  Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Jackson, at para. 47; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 21).

Rule 18(16) directs that in exercising its discretion over costs, the court may also take into consideration any written offer to settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply.  The court may in the exercise of its discretion compare portions of any offer to settle dealing with discrete issues to the terms of the order that was made.

A party’s failure to serve an offer to settle is also a relevant factor in determining both liability for costs and the appropriate amount of a costs award (M.(J.V.) v. P.(F.D.), 2011 CarswellOnt 13510 (O.C.J.), at para. 5; Menchella v. Menchella, 2013 ONSC 368 (S.C.J.), at paras. 19-21). As Zisman J. stated in Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.), at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute.  Offers to settle are therefore important in any consideration of the issue of costs.  In my view, it is unreasonable behaviour for a party not to make an offer to settle.

Notwithstanding the foregoing principles, the absence of an offer to settle should not be used against a party in determining costs if the situation is one where it is unrealistic to expect offers to settle to be made.  For instance, this factor should not play a material role in determining liability or the appropriate quantum of costs if there was no realistic way of compromising on the central issue(s) in dispute (Beaver, at para. 15).

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 22-27

“Parallel parenting is a form or sub-category of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict.  Despite the Court of Appeal’s judgment in Kaplanis (supra), some courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation.  The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.

In K. (V.) v S. (T.) (supra), Chappel J. discussed the concept of parallel parenting:

77          As noted previously, in recent years, the concept of “parallel parenting” has developed in Family Law practice and in the case-law. This phrase has been used to describe various types of parenting arrangements, and in fact there is some dispute in the academic literature about the precise definition of parallel parenting.  (Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.).   In some circumstances, parties and the courts have used the phrase “parallel parenting” to describe what is essentially a joint custody regime with additional, more specific terms to address particular areas of decision-making. In other cases, parallel parenting is described as a “sub-category of joint custody” which involves granting each party separate, defined areas of parental decision-making authority independent of each other. For ease of reference, I will refer to this latter concept as “divided parallel parenting.” This form of parallel parenting has been described by Rachel Birnbaum and Barbara J. Fidler, as quoted by Smith, J. in Hensel, in the following terms:

Parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making.   (Rachel Birnbaum and Barbara Jo Fidler, “Commentary on Epstein and Madsen’s Joint Custody with a Vengeance: The Emergency of parallel Parenting Orders.”).

78          In other cases, parallel parenting has taken the form of both parents being independently granted the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without consent from the other parent.   (See Mol v. Mol 1997 CarswellOnt 3693 (Ont. Gen. Div.); Ursic v. Ursic, (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6^th) 23 (Ont C.A.)  I will refer to this as “full parallel parenting” for ease of reference.

79          Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child’s best interests.  (M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.).  There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above timesharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

80          The Ontario Court of Appeal has to date not dealt comprehensively with the concept of parallel parenting. As in the case of joint custody, the jurisprudence on this topic will likely evolve over the years as the Court of Appeal is required to deal with specific fact situations that come before it. Unfortunately, however, some comments made in the Court of Appeal jurisprudence to date have generated uncertainty about the availability of parallel parenting in high conflict situations where joint custody is not a feasible option. This uncertainty is significant, given that in practice, both in negotiated settlements and in courts across the country, parallel parenting has been welcomed as a valuable solution in high conflict cases for achieving solutions that are in the best interests of children.

When the concept emerged, parallel parenting was seen as an appropriate disposition where, notwithstanding the fact that the parents were uncooperative, joint custody was in the best interests of the child.  In M (TJ) v M (PG), (supra) Aston J. stated at paragraph 20:

… “parallel parenting” orders have become a form of joint custody, a sub-category if you will, which does not depend upon co-operative working relationships or even good communication between the parents. The concept (consistent with subsection 20(1) of the Children’s Law Reform Act) is that the parents have equal status but exercise the rights and responsibilities associated with “custody” independently of one another. Section 20(7) of the Children’s Law Reform Act, RSO 1990, c. C.12 provides clear authority for the court to deal separately and specifically with “incidents of custody”. The form of a “parallel parenting” order addresses specific incidents of custody beyond a mere residential schedule for where children will reside on a day-to-day basis.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 508-509