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“The pre-Labour-Day “Let’s Change Johnny’s School” urgent motion has become somewhat of an unwanted annual tradition in family court.

Sometimes it’s just the school.

Sometimes it’s the city where the child is to live.

Usually it involves an attempt to change the child’s primary residence from one parent to the other.

In this case there’s a request to suddenly change the country where three adolescents are going to live and attend school.

Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation.

And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations.

Why the frantic rush?

1. 1. 1. 1. Because the selection of a child’s school has so many implications in terms of long-term parenting arrangements.
         2. If a parent establishes enough concerns to justify quickly switching the child to the school in their city or neighbourhood, that instantly creates a new status quo which will have far reaching consequences.
         3. Judges rarely disrupt children’s enrolment once the school year is underway.  So even if the initial concerns end up being unfounded or overstated, once the child becomes settled in a new school, the court will be reluctant to further disrupt this vitally important aspect of children’s daily lives.
         4. So if you can win the “school issue” by Labour Day – even on a “temporary” basis – it has enormous strategic consequences for the parent.
         5. And even more profound consequences for the child.

Lawyers know this.

Judges know this.

And high conflict parents quickly learn this.

So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days.

Before the first school bell rings.

It’s a lot to have to decide in a hurry, based on incomplete information.

Judges don’t like being rushed.   And we don’t approve of brinksmanship.

So while judges dealing with custody issues always have to consider the big picture – this time of year, they especially have to guard against the potential for litigation strategy to conflict with a child’s best interests.  We must be responsive to real problems, while at the same time discouraging transparent attempts to re-set the status quo.

Sometimes in a parenting dispute, when you ask – and where you ask – is an important as what you ask for.”

         A.T.W. v. K.A.W., 2020 ONSC 4894 (CanLII) at 1-17

“Section 12 of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), provides the court with jurisdiction to make an interim or final order restraining the depletion of a spouse’s property it is considers it necessary for the protection of the other spouse’s interest under Part 1 of the FLA.

Given that neither party presented evidence on the record for this motion as to which party owes the other an equalization payment, I cannot determine whether the husband would be prejudiced if the wife were permitted to encumber and/or sell the matrimonial home and the investment property pending trial. The purpose of an order under s.12 of the FLA is to ensure that there are sufficient assets to make an equalization payment once the court determined such payment and makes an order under s.9 of the FLA: Lasch v. Lasch (1988), 64 O.R. (3d) 464, para. 13.

The onus is on the husband to establish the strength of his claim for an equalization payment in seeking to extend the existing preservation order and to obtain an order that the wife also preserve the investment property. As set out in Bronfman v. Bronfman, 200 CanLII 22710 (ONSC) by Sachs, J,

“A court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. Under s.12, the agenda is to protect the spouse’s interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to the trial.

…

There are certain cases where the factual record, and the applicable legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor when deciding an interim application under s. 12, and perhaps less weight to the other factors. There are others where the facts and the law are disputed and complicated. … In such cases, the court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial. [Emphasis added.]

In Taus v. Harry, 2016 ONSC 219, Justice Gauthier held, at para. 35, that the test under s. 12 or s. 40 is the same: “The question to be asked is whether there is a real risk that the applicant’s equalization claim and claim for retroactive support could be defeated if the preservation/non-dissipation order is not made.” In that case, equalization had not been determined, with each party saying the other would owe a significant amount.

Price v. Price, 2016 ONSC 728 is an example where there was no evidence a significant equalization payment would be required. In fact, the applicant, who had obtained a preservation order on an ex parte basis, failed to show any likelihood that she would be entitled to equalization. Justice Timms set aside the preservation order. In doing so, he said (at para. 6), “The correct standard is the same one to be applied when determining whether to grant an interim injunction.”

In the more recent decision of Conforti v. Conforti, 2021 ONSC 1767 (CanLII), Chown J. found that the merits of the wife’s claim were weak and that there was no evidence that the husband would her a significant or even any amount of money. Further, there was no evidence to support her concern that the husband would hide or deplete assets. As a result, a preservation order was not made.”

            Wang v. Li, 2022 ONSC 4680 (CanLII) at 44-49

“There is no dispute between the parties about the test to be applied in determining either what amounts to a reasonable apprehension of bias or the evidentiary onus on the claimant. In A.M. v. J.M., 2016 ONCA 644, an appeal involving a parenting dispute, the Court of Appeal dealt with both.

The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry…: Ibid, at para. 55.

These principles equally apply to arbitration proceedings: Allied Truck Services Inc. v. Jeffrey Swift et al, 2015 ONSC 5496, at para. 12.

Circumstances in which an arbitrator was disqualified where apprehended or actual bias was demonstrated and which have invited the proscriptive challenge limitation in s. 13(3) of the Act are often accompanied by, or overlap, complaints pursuant to s. 19 of the Act (equality and fairness). Examples include:

(a) Where the arbitrator has, or had, a personal relationship with one of the parties or their counsel: Rothesay Residents Assn Inc. v. Rothesay Heritage Preservation & Review Board, 2006 NBCA 61; W.L.S. v. K.B.G., 2010 ONSC 4167;

(b) The arbitrator’s actions strongly suggested during the mediation preceding formal arbitration that he had already made up his mind about the issues in dispute: McClintock v Karam, 2015 ONSC 1024;

(c) Where contractual pre-conditions to arbitration were ignored: Kainz v Potter, 2006 CanLII 20532 (ON SC) at paras 46 and 51-52;

(d) Where a party was either not given a fair opportunity to present their case and respond to the other party’s case or where the procedural terms of the parties’ Arbitration Agreement were not followed: Hercus v. Hercus, 2001 O.J. No. 534; Surowiec v. Surowiec, 2016 ONSC 1095.

            Spivak v. Hirsch, 2021 ONSC 5464 (CanLII) at 6-8

“Ms. Nazerali made submissions and offered the recent decision of V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508, at paras. 126 and 129, as having many similar facts to the one before the court.  This decision of the Ontario Superior Court of Justice affirmed the trial judge’s decision stating clearly that “the unexplained injury principle is a recognized principle in child protection matters” (V.R., at para. 124).  At para. 126, Horkins J. used the description of the principle from Prince Edward Island (Director of Child Welfare) v. H.(A.), 2009 PECA 19:

In child protection case law, there is something called “the unexplained injury principle” and that is injuries suffered by an infant which are of a serious nature and which remain unexplained are in and of themselves grounds for removal of the child and for the continuation of that removal.  Where there is no evidence of intervention by a third party, a failure to explain the cause of the child’s serious injury has been held to constitute grounds for finding a child in need of protection and for a refusal to return the child to previous caregivers.”

Simcoe Muskoka Child, Youth and Family Services v. S.M. et al., 2021 ONSC 5433 (CanLII) at 39

“While calculation of the equalization payment and post v-day adjustments largely completes the property portion of this case, the two jointly-owned properties in Florida need to be dealt with.  While I do not have in rem jurisdiction over those properties, since they are situated in Florida, the parties agree that I do have in personam jurisdiction to order the parties to participate in the sale of these properties, and to determine how the proceeds of sale are to be distributed.”

            Cui v. Liwanpo, 2022 ONSC 4549 (CanLII) at 125

“Custody and access orders remain in effect pending an appeal to this court unless the court has ordered otherwise. In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold); whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience: namely whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration, again, is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17 and Lefebvre v. Lefebvre, 2002 CanLII 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6.

The standard for appellate review of a custody or parenting decision is exacting: Bors v. Bors, 2021 ONCA 513, at paras. 18-20. The function of this court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law. The mother contends that there are a number of errors in the trial judge’s decision, and accordingly that the appeal raises a serious issue. Among other arguments, she asserts that the trial judge erred in the scope and application of the expert evidence of the joint participant expert, Dr. Fidler.”

            D.C. v. T.B., 2021 ONCA 562 (CanLII) at 9-10

“This is an interim proceeding.  The importance of that cannot be lost.  An interim order should, as much as possible, stabilize the situation for the parties and the children so that the litigation can move forward to finally resolve the broader issues by conferencing, settlement or trial (F.B. v. C.H., 2021 ONCJ 275).

There is no doubt and it appears no dispute that the parties cannot continue to reside separate and apart under the same roof.  In considering the request by the applicant for exclusive possession, I must consider the criteria enumerated in s. 24(3) of the FLRA.  Most important to me are the factors mentioned in s. 24(3)(a), (c) and (e):

(a)  the best interests of the children affected;

…

(c)  the financial position of both spouses;

…

(e)  the availability of other suitable and affordable accommodation;

As directed in Liao v. Liao, 2003 CanLII 2176 (ONSC) at para. 25:  … “particularly in cases where the family’s financial position allows the temporary maintenance of two households, the children’s interests should outweigh the proprietary interest of the spouses in possession of the matrimonial home.”

            Brac v. Brac, 2022 ONSC 4519 (CanLII) at 25-27

“A person making a decision to start a business in which he or she has no experience may result in a finding that he or she is intentionally underemployed: See: Dang v. Hornby, 2006 CanLII 12973 (ON SC), 2006 Canlii 12973 (OSC); Ruszczak v. Scherbluck, 2012 ONCJ 14 (CanLII); Charron v. Carriere, 2016 ONSC 4719 (CanLII).  Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances: Smith v. Smith, 2012 ONSC 1116 (CanLII).

Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663 (CanLII); Charron v. Carriere, 2016 ONSC 4719 (CanLII).

When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (ON CA), 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.”

J.C.M. v. K.C.M., 2016 ONCJ 475 (CanLII) at 158-160

“I am of the view that the evidence should be admitted in the circumstances.  In N.H v. J.H., [2017 ONSC 4414 (CanLII)] the Court, which entertained a motion to introduce new evidence while a trial decision was under reserve, the Court made the following comments on the propriety of the trial judge receiving new evidence, which I find apt in the present case:

19      Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

20      It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits. I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.

21      Trials are of course subject to formal procedures. Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party’s case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy. Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.

….

23      It is certainly possible that the change in circumstances which has taken place since the parties closed their cases would meet the test for re-opening the trial. There can be no question that the trial judge has that authority at a time when she has not yet released her decision. Whether to entertain that evidence or to re-open the trial is a decision for her and her alone and it would not be appropriate for a motions judge to entertain that evidence on a motion while the decision remains under reserve.”

            Anderson v. McIntosh-Anderson, 2018 ONSC 4688 (CanLII) at 113

“Additional guidance about supervision or termination of parenting time is provided by VSJ v. LJG 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.J.) (Blishen J.).

In that case, the court was considering whether a final order for supervised parenting time or termination of parenting time was in a child’s best interests. The court stated, at para. 128,

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.  To deny access to a parent is a remedy of last resort.

The court reviewed the case law and found that the factors most commonly considered by courts in terminating parenting time were:

1. 1. 1. 1. 1. Long term harassment and harmful behaviours toward the custodial parent causing that parent and the child stress and fear,
            2. History of violence, unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being,
            3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent,
            4. Ongoing severe denigration of the other parent,
            5. Lack of relationship or attachment between non-custodial parent and child,
            6. Neglect or abuse to a child on the access visits,
            7. Older children’s wishes and preferences to terminate access.

The court noted that none of the cases reviewed dealt with one factor alone.  In every case, there were a multitude of factors which had to be carefully considered and weighed in determining whether to terminate parenting time was in the best interests of a child.

The court continued, at para. 137,

As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination.  It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

The court noted, at para. 138, “Supervised access is seldom viewed as an indefinite order or long-term solution…There may be occasions, however, where medium or longer term supervised access is in the child’s best interests.”

The court then quoted Professor Martha Bailey’s article “Supervised Access: A Long Term Solution?” 37 Family and Conciliation Courts Rev. 478 (October 1999), wherein she said, at p. 480,

The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child.  The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.

The court continued, at para. 140,

In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship.  Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the access parent continually misses visits or is inappropriate during the access then termination must be considered…If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be a viable option.

The court also stated, at para. 149, “Although supervised access can continue on more than just a short term basis, it is never a permanent solution to access problems.”

            Tsagaris v. Kolovos, 2020 ONSC 4672 (CanLII) at 320-328