Category: Uncategorized

“Based on my review of the caselaw, I conclude that principles including the following must guide this court’s determination of whether an individual may be qualified as a “participant expert” in a family law proceeding:

Under Rule 20.2

a.   A witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence without complying with the requirements of Rule 20.2 where the opinion is given based on the witness’s observation or on participation in the events at issue and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events (Westerhof v Gee Estate, 2015 ONCA 206 at 60; Imeson v. Maryvale(Maryvale Adolescent and Family Services), 2018 ONCA 888 [“Imeson”] at 62; Hoang v Vicentini, 2016 ONCA 723 at 28; and Girao v. Cunningham, 2020 ONCA 260 [“Girao”] at 41.

b.   A party does not “engage” an expert to provide opinion evidence simply by calling the expert to testify about an opinion he or she has already formed. Westerhofat 83. The question is not on which party’s behalf the witness testifies, but whether the opinion was formed for the purpose of litigation. Attorney General (Ontario) v 855 Darby Road, Welland, et al, 2017 ONSC 4953 at 29.

c.   Participant experts do not testify because they are being paid a fee to provide an expert’s report as contemplated by Rule 20.2. Rather, they testify because they were involved in underlying events and have generally documented their opinions in notes or summaries made at or about the time of their involvement.

d.   As a corollary, the opinionof a participant expert is not formed for the purpose of the litigation. The opinion is formed in the ordinary exercise of the professional’s duties.

e.   There is a distinction between “treatment opinions”, which involve making a diagnosis, formulating a treatment plan and making a prognosis, and opinions for the purpose of assisting the court at trial, and “litigation opinions”, which are based on consideration of information from a variety of sources for the purpose of assisting the court at trial. Westerhof, at 72.

f.   Where participant experts are permitted to testify, typically the opinions sought to be introduced are found in the clinician’s notes and records or in reports prepared for the purpose of consultation. Imeson, at 61. This does not mean that the proposed participant expert may testify about anythingin his or her reports. Imeson at 75. Particular caution must be exercised regarding opinion evidence going to the question of causation. Imeson at 90, 100; Westerhof at 115.

g.   While there is no longer a general rule barring opinion evidence on the “ultimate issue”, the court must apply the criteria of necessity and cost-benefit in relation to evidence dealing with the ultimate issue. Hoangat 62.

h.   Once admitted, the scope of the evidence of a participant expert is limited to his or her observation of or participation in the subject matter in issue in the litigation, and his or her roles and involvement. He or she may also testify to the opinions that went to the exercise of his or her judgment. This is because the opinions are formed while participating in events and as part of the ordinary exercise of expertise.  Roher v The Queen, 2017 TCC 55 at 33 and 42 citing Westerhofat 67-70. See also Davies v The Corporation of the Municipality of Clarington, 2016 ONSC 1079 at 36 and 37.

i.   Because a participant expert’s opinion is restricted to his or her “observation of or participation in the events at issue”, broader evidence about others “as a group”, will go beyond the scope of the permissible evidence, as it is not based on that observation of participation in or treatment of the individual(s) in question (Imeson, at 74). In Imeson, for example, the mental health clinician was found to have strayed outside the permissible scope as a participant expert he testified as to the “problems typical of survivors of childhood sexual abuse” as opposed to about Mr. Imeson, specifically. See para. 74. In that event, a participant expert’s exemption from the requirements of Rule 20.2(2) is lost. The court must take great care to ensure that opinion evidence exceeding that scope is not elicited by counsel or accepted by the court (Imeson 7,at 58);

j.   The evidence of treating physicians, pediatricians, and therapists is often found to be admissible as participant expertise. See for example: CCAS of Toronto v. T.T.L. and S.S., 2019 ONCJ 530 at 285, 286 (mother’s psychotherapist permitted to testify as participant expert, as to observations, mother’s diagnosis, prognosis, mother’s mental health and ability to parent); J.K.L.D. v.  W.J.A. 2020 ONCJ 335 at 91(report of mother’s physician admitted as that of a participant expert); CAS of Toronto v S.M.T., 2018 ONCJ 540 (children’s pediatrician found to be a participant expert, not being a “puppet” or hired gun of the Society.” See para 91). See also Marchand v. The Public General Hospital Society of Chatham(2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 as quoted in Westerhof). Such evidence is often admitted without challenge “because these witnesses are essentially ‘witnesses of fact’ to the extent that they testify to the facts of their involvement, as well as ‘opinions that went into the exercise of their judgment’.” Roher at 29, 30.

k.   It is notthe case that any physician or therapist retained or engaged by a children’s aid Society can be qualified only as a litigation expert. Where the evidence of such proffered witnesses is relevant and reliable and within his or her expertise, and where the individual was not retained for the purpose of litigation but rather to provide treatment or services to the child (or, I would add, to a parent), that person may be qualified as a participant expert. See Jewish Child and Family Service v K.S., 2015 ONCJ 246 at 154, 155.  That parents participate in assessments provided by Society-retained physicians or psychologists to provide background information may also be relevant (see para 157).

Gatekeeping under White Burgess

l.   The court retains its gatekeeper function in relation to opinion evidence of participant experts. Therefore, even where a person meets the definition of a participant expert under the Family Law Rules, the court could exclude all or part of the opinion of a participant expert or rule that all or part of such evidence is not admissible. (Westerhof, at 64)

m.   White Burgess Langille Inman v Abbott and Haliburton Co,2015 SCC 23 [“White Burgess”] establishes a two-part framework for the admissibility of expert evidence. That framework applies both in the context of litigation experts as well as participant experts. See Westerhof (para 64), Imeson at 64; Hoang at 31; Girao at 39.

n.   In summary, the White Burgessframework can be set out as follows:

i.   First Stage, Determination of threshold admissibility: a consideration of whether the evidence is:

1. 1. 1. 1. 1. 1. 1. 1. 1. 1. Logically relevant
                           2. Necessary to assist the trier of fact
                           3. Not subject to any other exclusionary rule
                           4. The expert must be properly qualified, including the requirement that he or she be willing and able to provide evidence that is impartial, independent, and unbiased;
                           5. In the case of novel or contested science, the underlying science must be reliable.

ii.    Second Stage: The judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. At this stage the judge considers:

1. 1. 1. 1. 1. 1. 1. 1. 1. 1.       Legal relevance
                           2.       Necessity
                           3.       Reliability
                           4.       Absence of bias
                           5.       Consumption of time and cost.

See White Burgess at 24.

o.   “Properly qualified” in the context of a proposed participant expert, does notrequire the execution of a certificate of expert’s duty as would be required of a litigation expert. Westerhof at 81.

p.   In considering whether there is an absence of bias, the issue is the nature and extent of the proposed expert’s connection with the litigation. The question is whether the relationship results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan, objective assistance. White Burgess at 48, 50.

q.   It will be “quite rare” for the court to exclude evidence at the first stage of White Burgessdue to lack of impartiality based on professional relationship between the proposed expert and the party. Anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not lead to its exclusion but would instead go to weight. White Burgess at 49.

r.   The court’s role as a gatekeeper does not end with granting permission to the proposed expert to testify. The gatekeeping role continues throughout the testimony of the proffered expert, and the court must be vigilant at all times to consider the importance of guarding against the dangers of inappropriate opinion evidence.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 26

“The motion judge concluded that there was no evidence of a trust of any sort (express, resulting, or constructive) with respect to either property. In any event, he also concluded that Rosetta lacked standing to pursue the trust claims against Lisa. He dismissed Rosetta’s claims against Lisa.

The motion judge adopted the reasoning in Morris v. Nicolaidis, 2021 ONSC 2957, at para. 38, where McGee J. states:

A claim that a third person holds property in trust for a non-titled spouse, or that a non-titled spouse has a beneficial interest in property, or a monetary claim arising from the acquisition, maintenance or use of that property can only arise from the personal, direct deprivation of the non-titled spouse. An equalization claim is, at best, an indirect legal interest. It is therefore insufficient to confer standing to a person to make a trust claim on behalf of a non-titled spouse or former spouse.

…

In my view, Morris accurately sets out the law. A person does not have standing to advance a trust claim on behalf of a former spouse for equalization purposes. In so concluding, I adopt the reasoning of McGee J. in Morris, at paras. 32-33 and 36-40:

At the heart of this motion is an interesting question. Can a person advance a trust claim on behalf of a former spouse in order to increase that spouse’s net family property and consequently, benefit the person’s claim for, or defense to an equalization payment?

A claim for a constructive trust is a claim in equity that is privately held. It is not a public interest claim. The common law principle relating to private interest standing states that “one cannot sue upon an interest that one does not have.” (Watson, McKay & McGowan, Ontario Civil Procedure, at §11 Standing to Sue).

…

Can an equalization claim create a direct personal legal interest that confers standing to make a trust claim on behalf of a spouse or a former spouse?

I find that it cannot. An equalization payment cannot change the titled or beneficial ownership of property between spouses. The equalization scheme in Ontario is not based upon a division of property, but rather, it recognizes a spouse’s non-financial contributions to a marriage by equalizing the increase in value in each party’s net family property between the date of marriage and the date of separation, subject to variation per section 5(6) of the Family Law Act.

A claim that a third person holds property in trust for a non-titled spouse, or that a non-titled spouse has a beneficial interest in property, or a monetary claim arising from the acquisition, maintenance or use of that property can only arise from the personal, direct deprivation of the non-titled spouse. An equalization claim is, at best, an indirect legal interest. It is therefore insufficient to confer standing to a person to make a trust claim on behalf of a non-titled spouse or former spouse.

Even trust claims between married persons are exceptional because “[i]n the vast majority of cases any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act,” see Martin v. Sansome, [2014 ONCA 14, 118 O.R. (3d) 522, at para. 64.] Writing for a unanimous court, Justice Hoy envisions in Martin, supra, that it will be a rare case in which monetary damages for unjust enrichment cannot be adequately addressed by an equalization payment; and in those cases, a variation of share per section 5(6) of the Family Law Act, should be invoked before consideration of a trust claim.

Although not in evidence here, there may be a situation in which a meritorious trust claim is not advanced by a non-titled spouse. In such a case, the other spouse cannot step into the non-titled spouse’s shoes and advance the claim himself because he has no direct personal legal interest in the trust claim; but he could seek to vary the equalization between he and the non-titled spouse if the resulting payment is found to be unconscionable per section 5(6) of the Family Law Act.

In summary, a non-titled spouse cannot assert a trust claim against a third party on behalf of a spouse for equalization purposes.”

          Karatzoglou v. Commisso, 2023 ONCA 738 (CanLII) at 9-10, 24-25

“Within Ms. Cobbina’s helpful summary of the relevant law applying to s. 56(4) and attempts to set aside domestic agreements (virtually all of which is apt and most of which I will not repeat here), she cites McGee J.’s insightful and helpful summary of the principles guiding the analysis in Harnett v. Harnett, 2014 ONSC 359 (at paras 87-94).

Citing various authorities, Her Honour notes:

(a)   As a general rule, courts will uphold the terms of a valid enforceable domestic contract;

(b)   It is desirable that parties settle their own affairs…and courts are generally loathe to set aside domestic contracts;

(c)   Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure;

(d)   A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement;

(e)   The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger… says that the court will step in to “protect him, not against his own folly or carelessness, but against being taken advantage of by those in a position to do so because of their position”;

(f)   The court must not look at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability;

(g)   The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties;

(h)   The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the courts discretion in favour of setting aside the contract. It is a discretionary exercise.”

Singh v. Khalill, 2023 ONSC 6324 (CanLII) at 57-58

“At the close of the trial, the mother asked the court to order, as part of the final divorce order, the father to provide the mother with a religious divorce within 90 days of this decision. The mother did not give me any legal authority to make such an order. The only evidence at trial that pertains to this request was that the parties are Muslim, and the mother’s religion is very important to her. There was no evidence at trial that the mother had requested a religious divorce from the father or that the father had refused to provide it.

I find that the court does not have jurisdiction to make such an order at this time and dismiss this claim for the following reasons:

a.   The mother has not included a claim for a religious divorce in her pleadings. It is not in her Answer. While this is not necessarily fatal to her request, the fact that I did not have any evidence that the father was on notice that she was seeking such an order from the court means that I cannot find that, despite not being in her pleadings, it is otherwise just and in accordance with the court’s primary objective under Rule 2 to allow this claim to be raised at the end of the trial.

b.   The mother has not given me any authority in support of the court having jurisdiction to make the requested order.

c.   The process provided for under s. 21.1 of the Divorce Actaddresses removing barriers to remarriage, but that process has not been followed here. Under s.21.1, the court has discretion to refuse to hear a party who fails to eliminate barriers to the remarriage of the spouse entitled to a divorce in Canada (see Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 448; Salehi v. Tawoosi, 2016 ONSC 54; Schiewitz v. Shiewitz, 2018 ONSC 3864). Usually, the s.21.1 process is initiated well before trial because the remedy provided under the Divorce Act is to strike pleadings if the barriers are not removed, not to make an order requiring a party to grant a religious divorce.

d.    Even if I were to attempt to use s.21.1 to grant some similar order to the one sought, the mother has not provided evidence at the trial of the barriers to remarriage or steps taken to obtain a religious divorce or the information otherwise required under s.21.1.

My decision not to make an order requiring the father to grant the mother a religious divorce should not be seen as condoning any refusal by the father to do so. To the extent that the father seeks relief in the future under the Divorce Act, such as on a motion to change, the mother may wish to attempt to use s.21.1 of the Divorce Act at that time. However, I am not deciding the issue of the application of section 21.1 to variation proceedings.”

            Sablani v. Sablani, 2023 ONSC 6288 (CanLII) at 13-14

“Section 140(1) of the Courts of Justice Act R.S.O. 1990, c.C.43, permits a judge to order that a person may not institute any further proceeding in any court except by leave if the Court is satisfied that the person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner.

The purpose of s. 140(1) of the CJA is to prevent abuse of the court’s process. This is particularly relevant in family law matters where a party may continue to initiate repeated court proceedings as a form of harassment of a former spouse or partner.”

          Hart v. Fullarton, 2020 ONSC 6804 (CanLII) at 77-78

“Section 46 of the Family Law Act states the following:

46 (1) On application, the court may make an interim or final restraining Order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.  2009, c. 11, s. 35.

(2) A restraining Order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.  2009, c. 11, s. 35.

(3) A restraining Order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. 1. 1. 1. 1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
            2. Restraining the respondent from coming within a specified distance of one or more locations.
            3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
            4. Any other provision that the court considers appropriate.  2009, c. 11, s. 35.

To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent’s liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

So, while the court must assess the applicant’s subjective fear, it must only grant the Order where that fear has a “legitimate basis”: Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father’s actions or words with the Mother’s fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.”

            Daleman v. Daleman, 2021 ONSC 7193 (CanLII) at 133-135

“The removal of a solicitor of record under r. 15.04 of the Rules of Civil Procedure is within the court’s discretion. Although a client may terminate the relationship at will, Rule 3.7-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that “[a] lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client”. Rule 3.7-2 allows that “…where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.” The commentary gives examples of a serious loss of confidence justifying the solicitor’s withdrawal, including when “the client refuses to accept and act upon the lawyer’s advice on a significant point”. As the Supreme Court instructed in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at para. 16, the rules of professional conduct of the profession’s governing body “should be taken as expressing the collective views of the profession as to the appropriate standards to which the profession should adhere” and “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy.”

Considerations informing the exercise of the court’s discretion to remove a solicitor of record include the impact of the removal on the client’s interests, on the other parties, and on the administration of justice, and whether the solicitor and client relationship has broken down because of, for example, a loss of confidence in the solicitor’s abilities or the client’s failure to communicate or follow instructions and to make a reasonable payment on the solicitor’s reasonable accounts: R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331, at para. 50; KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196, at paras. 13 and 18; 1621730 Ontario Inc. v. Queen (Ontario), 2012 ONSC 604; Kovinich v. Kovinich (2008), 58 C.P.C. (6th) 78 (Ont. S.C.), at paras. 40-42; Nicolardi v. Daley (2003), 34 C.P.C. (5th) 394 (Ont. S.C.), at paras. 8-10 and 15-16; Johnson v. Toronto, 1963 CanLII 128 (ON SC), [1963] 1 O.R. 627 (H.C.J.). While the impact of the removal on the client’s interests and the client’s views are important, the question is not simply whether the client wishes the solicitor to continue but whether all the circumstances, including, for example, the client’s loss of confidence, justify the solicitor’s withdrawal: Kovinich, at para. 41; Nicolardi, at para. 15.”

            Brown v. Williams, 2023 ONCA 730 (CanLII) at 2-3

“Just because the Court can vary a temporary order on a temporary basis prior to trial, or just because the Court can make an initial order for temporary decision-making that would disturb a status quo, does not necessarily mean that it should do so.  Temporary orders are by their nature imperfect solutions, based on limited evidence, typically in affidavit form.  They are meant to provide a “reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLii 66352 (Ont. S.C.J.) ¶ 17.  The maintenance of the status quo is a heavy factor on a motion of this kind.  That principle applies equally respecting motions to vary temporary orders on a temporary basis pending trial, and first time temporary orders that would result in a change to the status quo.  The preferable approach is usually to get the matter on for trial.

At ¶ 49 of K.A.C. v. P.P., 2007 ONCJ 217, Murray J. wrote about that the reasons why courts place emphasis on the status quo at the interim stage of a cases, saying they “…flow from two concerns:  a concern for fairness to the parties and a concern for the child’s best interests.  Generally it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”

Nevertheless, the Court is not powerless to act, where a child is in danger, or where there is some other compelling reasons to do so in a child’s best interests:  see Grant v. Turgeon, 2000 CanLii 22565 (Ont. S.C.J.) ¶ 15;  see also Kimpton v. Kimpton, 2002 CanLii 2793 (Ont. S.C.J.) ¶ 1, 2;  see also K.A.C. v. P.P.  And if the Court is inclined to consider a change on this more stringent test, a best interests’ analysis is still undertaken:  see F.K. v. A.K., 2020 ONSC 3726.   Section 16(1) of the Divorce Act makes a child’s best interests the only consideration.  According to section 16(2), the child’s physical, emotional and psychological safety, security and well-being are the primary consideration when considering the statutory factors in section 16(3).

Finally, additional considerations when deciding to intervene or not, are about the calibre of the evidence before the Court, and how quickly the case is likely to go to trial:  see K.A.C. v. P.P. ¶ 51.

With the above all being set out, I nevertheless note that in J.D. v. N.D., 2020 ONSC 7965, MacKinnon J. recently wrote about the applicability of the compelling circumstances test.  At ¶ 17-18, MacKinnon J. set out some alternative factors that might apply rather than a compelling circumstances test.  She wrote that these might include a consideration of the magnitude of the change sought, compared to the status quo, and the assessment of other evidence that might support (or not) the change sought.  While some of the considerations at ¶ 17-18 are unique to motions requesting the implementation of assessment reports prior to trial, which issue is not directly before me in this case, MacKinnon J. nevertheless identified a possible shift in the jurisprudence respecting the proper approach at the interim stages of a parenting case more broadly.

In particular, MacKinnon J. called for a reconsideration of a more stringent analysis in  appropriate cases.  Writing about the facts of the case before her, she found at ¶ 12, 13, 14, 16, 17 and 22:

(1)     Judicial notice may be taken that over the past twenty years the knowledge of the risks for children exposed to parental conflict and family violence has expanded.  Evidence of actual harm, ongoing risks and long term consequences is also before the Court;

(2)     On at least three occasions, the Children’s Aid Society of Ottawa verified protection concerns relating to the children’s exposure to adult conflict, as did an assessor (in that case before MacKinnon J.);

(3)     Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes, aggravated by the delay that it can take to get a case to trial;

(4)     The legal landscape since Grant v. Turgeon has changed.  While the traditional test (compelling circumstances) is still applied in some cases, other cases say the jurisprudence has evolved.  For example, at ¶ 23 and 27 of Bos v. Bos, 2012 ONSC 3425, Mitrow J. said that the test was not so “rigid and inflexible” as to preclude a court from considering prior to trial, probative evidence, such as that in an assessment report; and

(5)      Delaying a change in residential arrangements until trial is not always appropriate.  Making a change sooner is sometimes the better option.

Concluding at ¶ 23, MacKinnon J. wrote:

In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial.  A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”

            G.R.G. v. S.G., 2023 ONSC 6162 (CanLII) at 127-133

“The test for determining whether a therapeutic order, such as reunification therapy, is appropriate is whether such an order would be in the best interests of the child.  Within this analysis, there are other specific factors that inform the best interests test within the context of a therapeutic order as will be discussed below.

Mr. Grossi relies on A.M. v. C.H., 2019 ONCA 764.  At paras 48 – 54 of A.M., the court affirmed the jurisdiction of this court to make therapeutic orders such as an order requiring the parties and child to participate in reunification therapy, based on subsections 16(1) and (6) of the Divorce Act and sections 28(1) (b), and (c) of the Children’s Law Reform Act with the support of section 17(8)(b) of the Family Law Rules.  See also Audet J.’s detailed analysis in Leelaratna v. Leelaratna, 2018 ONSC 5983, accepted in A.M., at paras 40-52, outlining this court’s jurisdiction to make, and the rationale underlying, therapeutic orders that are in the best interests of the child.

The Ontario Court of Appeal in A.M. upheld the trial judge’s imposition of a reverse custody and no contact order in favour of the father, given the extreme findings of fact made against the mother based on an analysis of the best interests of the child.  The trial judge had found that the mother and child were unwilling to participate in reconciliation therapy due to the mother’s persistent pattern of alienation.

It should be noted that in A.M., the Court of Appeal was hearing an appeal from a trial decision, not a motion, and found that the trial judge had not made a palpable and overriding error.

In my view, the evidence adduced for this motion falls short of the facts established in A.M.

Neither Mr. Grossi nor Ms. Da Torre raised the issue of the Health Care Consent Act in this motion.  In any event, I agree with Justice Audet’s observations at para. 66 of Leelaratna that “most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA”.  This observation was also cited favourably by the Court of Appeal in A.M.

At para. 69 of Leelaratna, Audet J. listed the factors that are generally relevant to a consideration as to whether a therapeutic order, such as the request for reunification therapy, is in the best interests of the child:

a)      Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clearly based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?

b)      Is there compelling evidence that the counselling or therapy would be beneficial to the child?

c)      At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?

d)      Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial “recommendation” compel participation and cooperation by the recalcitrant parent?

e)      Is the child likely to voluntarily engage in counselling/therapy?”

            Da Torre v. Grossi, 2023 ONSC 6133 (CanLII) at 40-46

“Can a family lawyer act against a former client?  That is the issue at the heart of this motion.  The lawyer for Ms. DeCorte acted for Mr. DeCorte in 2006.  At the time, Mr. DeCorte was separating from his first wife.  The issues in 2006 included a determination of income for purposes of calculating support.  Now, 15 years later, the lawyer who acted for Mr. DeCorte is acting for his second wife.  Issues in the current litigation include determination of income for purposes of calculating support.  Can the lawyer act for the second wife, or is there a disqualifying conflict of interest?

… 

These are complex issues.  There is no hard and fast rule that a lawyer can never act in opposition to a former client.  That said, the integrity of the system will sometimes require that a lawyer refrain from taking on a file that pits him or her against someone he or she acted for in the past.

There is a clear tension in cases of this nature.  On the one hand, the law recognizes the importance of litigants’ right to counsel of choice.  On the other hand, that right is not absolute and is subject to reasonable limitations.  A litigant cannot choose counsel that has a conflict of interest in circumstances that would detrimentally affect the administration of justice: see R. v. Hendrickson, [2002] O.J. No. 1982 (S.C.); R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.); R. v. Robillard (1986), 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.); R. v. Brissett (2005), 2005 CanLII 2716 (ON SC), 74 O.R. (3d) 248 (S.C.).

In assessing whether there exists a disqualifying conflict of interest, the court must balance competing interests. On the one hand, the court must be concerned to maintain the high standard of the legal profession and the integrity of our system of justice. On the other hand, the court must recognize the strong countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause.

In R. v. W.(W.) (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), Doherty J.A. set out the test that a trial judge must apply in assessing an alleged conflict of interest, at pp. 18-19:

It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take. The trial judges’ task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused.

The test set out in W.(W.) is whether there is any realistic risk of a conflict of interest.  This test is similar to the one set out by the Supreme Court of Canada in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 (“MacDonald”) in which the Court held that a “possibility of real mischief” will warrant the removal of counsel.  The term “mischief” in that case, at p. 1246, referred to “the misuse of confidential information by a lawyer against a former client.” Where it is shown that a lawyer was previously retained on a related matter, the onus will shift to the lawyer to prove that no information was imparted that could be relevant.  On this point, Sopinka J. stated the following, at pp. 1260-1261:

In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.  This will be a difficult burden to discharge.  Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed but the burden must be discharged without revealing the specifics of the privileged communication.  Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

The “heavy burden” resting upon counsel requires that a “reasonably informed member of the public” be satisfied that the new retainer will not give rise to a conflict of interest.”

            DeCorte v. DeCorte, 2021 ONSC 7208 (CanLII) at 1, 6-11