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“The Applicant Grandmother’s claim is grounded in s. 21(3) of the Children’s Law Reform Act, which provides that any person, including a grandparent, may apply to a court for a contact order with respect to a child.  “Contact” is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time”.

Section 24 of the CLRA directs the Court, when considering or making a contact order, to consider only the best interests of the child.   In doing so, the Court is to consider all factors relating to the circumstances of the child, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 24(3) enumerates several other factors that Courts should consider when assessing the best interests of a child.  The significance and weight placed on any given factor varies from case to case, as each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts: Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

In Chapman v. Chapman, the Court of Appeal for Ontario recognized parental autonomy to make decisions in the best interests of their children in the following terms:

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them: 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 at para 21. [Emphasis added]

The Court of Appeal also recognized that loving and nurturing relationships with extended family members are generally important to children because they serve to enhance the emotional well-being of children. As such, where those relationships are interfered with arbitrarily, Courts may intervene to ensure the continuity of the relationships.

In Torabi v. Patterson, Justice Marvin Kurz summarized the factors to be considered by the Court when assessing whether the relationship between a child and a relative seeking contact is a positive one as follows:

1. 1. 1. 1. 1. There must generally be a substantial pre-existing relationship between the relative and child.  Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
            2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
            3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
            4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access: 2016 ONCJ 210 at para 74.”

Debassige v. King, 2022 ONCJ 210 (CanLII) at 14-19

“The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, is governed by the following principles:

1. 1. 1. 1. A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there is malicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019 ONCA 116, para. 5
         2. There is some overlap in the scope of the terms “malicious” or “malice”, “vexatious”, and “oppressive”.  “Malice” arises when a step is taken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage. A step may be viewed as “vexatious” when it is taken to harass or oppress others rather than to assert a legitimate right.   The sale of a matrimonial home is “oppressive” when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v. MacDonald(1976), 1976 CanLII 845 (ON SC), 14 O.R. (2d) 249 (Div. Ct.), at p. 254.
         3. Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination of the spouses’ claims under the Family Law Act, R.S.O. 1990. c. F.3, (“FLA”).  In such case, an application under the Partition Actshould not proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse’s arguable claims under the FLA would be prejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20-23).
         4. The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property:  see Gertley v. Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15”

Sanvictores v. Sanvictores, 2022 ONSC 2673 (CanLII) at 13

“The trial judge considered the issue of “so-called” double-dipping and the Supreme Court’s statement in Boston v. Boston, 2001 SCC 43 (CanLII), 2001 SSC 43, [2001] 2 S.C.R. 413 that where practicable, the court should focus on the portion of the payor’s income and assets which have not been a part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown.  In Boston, that meant focussing on the portion of the pension that was earned following the date of separation and not included in the equalization of net family property (at para. 64).

However, as the trial judge noted, at para. 57 of Boston, the Supreme Court differentiates pension income from business income or income from an investment:

Pension income is obviously different from business income or income from an investment.  See T. Walker, “Double Dipping:  Can a Pension Be Both Property and Income?”, in Best of Money & Family Law, vol. 9, No. 12, 1994, in which the author argues that pensions should not be treated as other assets subject to equalization consideration.  When a pension produces income the asset is being liquidated. The same capital that was equalized is being converted into an income stream.  By contrast, when a business or investment is producing income, that income can be spent without affecting the asset itself.  In fact, the business or asset may continue to increase in value.  The value of the business or investment can be equalized, but neither is depleted solely by producing income.

In my view, the trial judge correctly held that double recovery of the kind contemplated in Boston is not a concern in a case such as this where the assets involved in the equalization are not liquidating assets or special assets of the nature of a pension.”

         Halliwell v. Halliwell, 2017 ONCA 349 (CanLII) at 132-134

“To be clear, disclosure is not transactional. It is obligatory for every party in a family law matter, irrespective of whether there is a case before the court or the other party’s disclosure efforts. Disclosure is automatic, immediate and ongoing. It must be proportionate to the importance and complexity of a case, reasonable in scope and provided in an intelligible format and timely way. It is the most basic of family law obligations, the casual observance or disregard of which strikes at the heart of the administration of family justice. It is far better for a party to err in favour of broader rather than more restrictive disclosure. Time and again, courts have emphasized, even noted as was done when this case was set for trial, that non-disclosure may negatively impact the court’s assessment of a party’s credibility.”

         Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII) at 27

“The jurisprudence is clear in confirming that retained counsel may bind their clients to the settlement of litigation by means of exchanged correspondence: Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA) at pp 768 – 769 (hereinafter Geropoulos).  There are clear public policy reasons why a strict application of s. 55(1) of the Family Law Act is unwarranted in such matters: Geropoulos, quoted in this endorsement at paragraph 21 below.

In contrast, pre-litigation agreements are domestic contracts governed by s. 55(1) of the Family Law Act, which provides:

A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

Numerous cases have found that the strict requirements of s. 55(1) may be relaxed, but not disregarded completely, for example where:

a.    two educated and sophisticated parties, who had received independent legal advice, signed a domestic contract but only one signature was witnessed: Gallacherv. Friesen, 2014 ONCA 399 (CanLII);

b.    a witness was not present at signing but gave uncontradicted evidence that the signatory had confirmed signing the agreement: Gamblev Longpre, 2016 ONSC 3499 (CanLII);

c.    a domestic contract was drawn up and signed by one of the parties who accepted its benefit and then sought to overturn it; Virc v. Blair, 2014 ONCA 392 (CanLII);

d.    a domestic contract was drawn up by one party, who then resiled from it and refused to sign it after the other party and his witness had done so: Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), hereinafter Pastoor.”

         Greve v. Shaw, 2022 ONSC 2598 (CanLII) at 16-18

“Conversion of an offer to settle into a court order is a discretionary remedy: see Milos v. Zagas (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.), at para. 15; Magnotta v. Yu, 2021 ONCA 185, at paras. 26-27.

This court has jurisdiction to hear an appeal of a discretionary order refusing to enforce a final settlement pursuant to r. 18(13)(a) motion under the Rules: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b). This is because a decision refusing to enforce a settlement agreement is final: Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, 87 O.R. (3d) 443, at para. 17.

Exercise of this discretion attracts deference. Where the relevant factors disclosed by the evidence are considered, “an appellate court will not generally interfere with the motion judge’s decision to grant, or not grant, judgment in accordance with an accepted offer,” Milos, at para. 19. In the family law context, this court has recognized that significant deference is owed, particularly in matters relating to support orders: Ballanger v. Ballanger, 2020 ONCA 626, at para. 22.”

         Dowdall v. Dowdall, 2021 ONCA 260 (CanLII) at 19-21

“Family violence has always been relevant in the assessment of a child’s best interests: see for example Freitas v. Christopher, 2021 ONSC 2340 ¶ 43 and 44.   See also ¶ 30 of McLellan v. Birbilis.   Since March 1, 2021, family violence is defined in section 18(1) of the Children’s Law Reform Act.  It means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.   At ¶ 237 of Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201, Sherr J. wrote that, “…family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. It is an issue that this court takes very seriously when assessing a child’s best interests”.

Section 18(2) makes it clear that the conduct need not constitute a criminal offence to be family violence.  The section includes a non-exhaustive list of nine kinds of behaviour that constitute family violence.  Physical abuse, psychological abuse, threats and harassment, all of which are in issue in this case, are amongst that list in section 18(2).  As Tellier J. found, the Court is not precluded from finding that other conduct fits within its meaning, too:  see ¶ 27 of McLellan v. Birbilis.

Section 24(3)(j) of the Children’s Law Reform Act provides that family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons to cooperate on issues affecting the child, are factors related to the child’s circumstances in the best interests analysis.  If a finding of family violence is made, section 24(4) directs the Court, when considering the impact of family violence under section 24(3)(j), to consider a further list of factors.  Those include the nature, seriousness and frequency of the violence and when it occurred, patterns of behaviour, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.”

         W.A.C. v. C.V.F., 2022 ONSC 2539 (CanLII) at 391-393

“Where a child has been placed in extended society care, pursuant to section 115(4) of the Act, a parent of the child may apply for a status review. However, this application is not as of right. Section 115(5) of the Act requires leave of the court if immediately prior to the application, the child has received continuous care for at least two years from the same foster parent or from the same person under a custody order. By the time this matter was argued before me in January 2022, the child had received continuous care from the current foster parents for approximately 38 months.

The CYFSA does not outline the specific factors a court must consider in exercising its discretion to grant leave in these circumstances. For this criteria, we must turn to the common law: C. v. Children’s Aid Society of Ottawa Carleton, 2000 CanLII 22539 (ON SC), [2000] O.J. No. 2063 (S.C.J.) at paras. 32-34.

A description of the test for leave to bring a status review application in these circumstances was summarized by Justice C. Lafreniere in the Superior Court decision of K.C. v. Children’s Aid Society of Hamilton, 2017 ONSC 565. This 5-part test was considered as recent as May 2021 by Justice S.S. Bondy in Family and Children’s Services of Wellington County v. C.R., 2021 ONCJ 346 at para. 35:

“5       The parties agree the test for leave is set out in the decision of Justice Bean in Catholic Children’s Aid of Metro Toronto v. B.A.F. [1988] O.J. No. 295 (“B.A.F.”). The five part test is as follows:

A.     The judge must be satisfied that the status review application for which leave is sought is being brought bona fide, and not for some ulterior motive for attempting to review the child’s status and upset the child’s present living situation.

B.     Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole order itself.

C.     There has to be some unusual circumstances to justify the review in spite of the child’s permanent status as a Crown ward and despite living continuously with the same foster parents for two years.

D.     The application must establish and the judge must be satisfied that a status review application at this time, after the lapse of two years, would likely accomplish the purposes of the Act as set forth in section 1.

E.     The applicant must establish a prima facie case, that if leave were granted and the status review application proceeded to hearing, the result of the hearing would probably be the result sought by the applicant.”

6        In Durham Children’s Aid Society v. J.S. 2009 CanLII 80106 (ON SC), [2009] O.J. No. 5901 at paragraph 97, Justice Timms considered the five criteria established by Justice Bean and stated:

…sufficient to say that any party making an application for a review of a Crown wardship order, which does not lie of right, must satisfy the court, on a balance of probabilities, that such a review would meet the “paramount” and “other purposes” definitions found in section 1 of the CFSA. Best interests are included therein.

7         The paramount purpose of the CFSA is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.”

All five parts of the test must be met by the party seeking leave to bring a status review application: K.C. v. Children’s Aid Society of Hamilton, at para. 9; Children’s Aid Society of Toronto v. M.S., [2016] O.J. No. 2701 (C.A.) at para. 19.” 

Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.M.L., 2022 ONCJ 195 (CanLII) at 12-14

“Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce:  As stated in Bullock v Bullock 2004 CanLII 16949 at para 13: “A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations”.

This is not to say that voluntary retirement can never constitute a material change in circumstances.  Every case must be determined on its own facts, with consideration of all relevant factors, including the language of settlement documents.  In this case, the minutes of settlement were silent on the issue of retirement.  It would be beneficial for parties to turn their minds to this eventuality when crafting terms of resolution.  We adopt the comments in Bullock v. Bullock at para 1:

Does withdrawal from the workforce at age 62 qualify as a “material change of circumstances” justifying variation of spousal support?  While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living.  Otherwise, our regime of spousal support will tend to leave payee spouses in positions of financial need, often dire need, at a time in their lives when they cannot take meaningful steps to ameliorate their own condition.”

Cossette v. Cossette, 2015 ONSC 2678 (CanLII) at 13-14

“As this trial was pursuant to the Hague Convection, the convention also has rules with respect to costs.

Article 26 of the Hague Convention provides that the court can order the person who removed or retained the child “to pay necessary expenses incurred by or on behalf of the applicant [move away parent] including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant [left behind parent], and those of returning the child”.

The court has a broad discretion pursuant to Article 26. It allows the court to order costs for the following:

• • • • •    to pay necessary expenses incurred by or on behalf of the applicant;
        •    to pay travel expenses,
        •   to pay any costs incurred or payments made for locating the child;
        •    to pay the costs of legal representation of the applicant; and,
        •    to pay those of returning the child.

Article 26 of the Hague Convention has three objectives:

a)   to compensate the left behind parent for costs incurred in locating and recovering the abducted child;

b)   to punish an abducting parent; and

c)   to deter other parents from attempting to abduct their children.

See Beatty v. Schatz, 2009 CarswellBC 1555, 2009 BCSC 769 (CanLII), [2009]  (B.S.C.), para 16.

The Hague Convention anticipates that all necessary expenses incurred to secure the child’s return will be shifted to the abductor, both to restore the father to the financial position he would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place. See Dalmasso v. Dalmasso, 9 P.3d 551 (U.S. Kan. S.C. 2000);  Beatty v. Schatz, 2009, B.C.S.C., supra, para 17; Solem v. Solem, 2013 ONSC at para. 10.

Article 26 gives the Court authority to order legal costs beyond those ordinarily provided for in family law cases by the rules of court. The legal costs provided for in the rules are generally only a portion of the actual legal costs incurred: Beatty v. Schatz, 2009, B.C.S.C., supra, para 20.”

            Kommineni v. Guggilam, 2022 ONCJ 191 (CanLII) at 27-32