Category: Uncategorized

“The application judge found that Mr. Jackson had acquiesced to Jailen’s remaining in Ontario…

The standard for finding acquiescence is high. “Clear and cogent” evidence of “unequivocal acquiescence” is required. See Katsigiannis, supra, at para. 49. Ordinarily the test for acquiescence is subjective, but as Lord Brown-Wilkinson said in Re H. and Others (Minors) (Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225 (H.L.) at p. 90 A.C.:

Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Jackson v. Graczyk, 2007 ONCA 388 (CanLII) at 49-50

“Counsel for the Applicants have corresponded with me requesting leave for each set of Applicants to file factums that are more than the 30 pages prescribed by the applicable Practice Direction. They have suggested that in a constitutional Application such as this it will be helpful to the Court to have more detailed and thorough written submissions.

Counsel for the Attorney General does not agree with this proposal. They have indicated in their own correspondence with me that they are satisfied to produce a 30-page responding factum addressing the combined Application.

I of course appreciate the Applicants’ offer of helpfulness. But I am of the view that more help is not always better help.

The 30-page policy is a serious one. “Leave is exceptional and granted sparingly in special circumstances”: Saint John (City) v. Saint John Firefighters’ Association (2010), 2010 CanLII 39428 (NB CA), 362 NBR (2d) 327, at paras 12-13 (NB CA). As the Ontario Court of Appeal observed in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, at para. 4, “[t]he purpose of the 30-page limit is to focus counsel on the issues…” I am not alone among the judiciary in preferring focused and precise over detailed and lengthy.

In weighing a request such as this I will take a cue from philosopher Blaise Pascal or author Mark Twain or whoever else the Internet deigns to credit with the relevant quote.”

            Working Families Ontario v. Ontario, 2021 ONSC 3687 (CanLII) at 1-5

“The husband has no statutory right to appeal to this court. He has exercised a first right of appeal to the Superior Court, without leave, as provided under the parties’ mediation-arbitration agreement: Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(2), (3) and (6). A second appeal requires leave of this court: Arbitration Act, 1991, s. 49.

To obtain a stay of a judgment pending a motion for leave to appeal, a moving party must meet the three-part test for an interlocutory injunction: (1) a serious question to be determined on the motion for leave to appeal; (2) the moving party will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours granting the stay: RJR – MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334.

In applying this test, the court is mindful that “[t]hese three criteria are not watertight compartments. The strength of one may compensate for the weakness of another. Generally, the court must decide whether the interests of justice call for a stay”: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677.”

         Spadacini Kelava v. Kelava, 2021 ONCA 345 (CanLII) at 15-17

“The Family Law Rules, O. Reg. 114/99 does not address the request to reopen the trial to file new evidence.  Rather, one needs to turn to r. 52.10(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which provides the following authority:

FAILURE TO PROVE A FACT OR DOCUMENT

52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,

(a)  the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs;

Subrule 53.01(3) of the Rules permits a trial judge to recall, at any time, a witness for further examination.

In Malkov v. Stovichek-Malkov, 2018 ONCA 620, the Ontario Court of Appeal affirmed the factors to consider when entertaining a party’s request to reopen the case, as originally set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470, at para. 17:

• • • • At what stage of the trial is the motion made?
      • Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
      • What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
      • Can any prejudice be remedied in costs?
      • How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
      •  What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?
      •  Does it merely “shore up” evidence led in chief?
      •  Is the proposed new evidence presumptively credible?

The need for finality is paramount, especially when a decision has been rendered and judgment entered.  If a case has not yet been decided, fairness and truth-seeking should be considered over finality.  When a decision is pending and has not been made, the test for admitting fresh evidence does not include whether the fresh evidence could affect or have an influence on the result: Brasseur v. York, 2019 ONSC 4043, at paras. 38 and 45.”

            Abu-Shaban v. Abu-Shaaban, 2021 ONSC 3623 (CanLII) at 23-26

“Section 2 of the Partition Act provides that all joint tenants may be compelled to sell the land. Where the property in question is not a matrimonial home, there is a narrow standard for the exercise of the court’s discretion to refuse the prima facie right of a joint owner to partition and sale.

The standard for the exercise of the court’s discretion has been stated by the Ontario Court of Appeal in Latcham v. Latcham, [2002] O.J. No. 2126 (Ont. C.A.), namely, that to deny an application for sale, the party seeking the sale must be guilty of malicious, vexatious or oppressive conduct.

In Greenbanktree Power Corp. v. Coinmatic Canada Inc., 2004 CanLII 48652 (ON CA), [2004] O.J. No. 5158, at para. 1, the Court of Appeal confirmed that Latcham set out the appropriate test. At para. 2, the Court of Appeal stated:

Co-tenants should only be deprived of this statutory right in the limited circumstances described above, with this caveat. In our view, “oppression” properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.

In Akman v. Burshtein, 2009 CanLII 16574 (Ont. S.C.J.), at para. 38, Ferrier J. held:

Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself.  Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale.  Osborne v. Myette, 2004 Carswell Ont. 3331 (S.C.J.) at para. 12.”

         Kaing v. Shaw, 2017 ONSC 3050 (CanLII) at 23-25

“Counsel for both parties accepted that if parental alienation was conduct that the court could consider in the spousal support analysis under the [Divorce] Act, the conduct would have to be of a nature comparable to the conduct which the court can consider pursuant to section 33(10) of the Family Law Act in determining the quantum of spousal support.  Section 33(10) provides as follows:

Conduct

33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

The phrase “course of conduct” makes it clear that something more than an isolated event is required in order for section 33(10) to come into play.  Nasmith, J. articulated the test to be used in determining whether section 33(10) applies in the case of Morey v. Morey, 1978 CanLII 772 (ON CJ) as follows:

1. 1. 1. 1. The course of conduct must be exceptionally bad.  In this regard, the court quoted the definition of “unconscionable conduct” in Black’s Law Dictionaryas being “conduct that is monstrously harsh and shocking to the conscience.”
         2. The conduct must be such as could reasonably be expected to destroy the relationship.
         3. The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse.
         4. The commission of a so-called matrimonial offence is not necessarily sufficient by any means.
         5. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fidebelief that the test can be satisfied while acknowledging the risks of punitive costs if the Court finds on the whole of the evidence that the issue is frivolous.
         6. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the Court can make a preliminary ruling based on the likelihood of the test being met.

Quinn, J. commented on the stringent nature of the test to be met for conduct to fall within section 33(10) in Bruni v. Bruni, and emphasized that “it will be the rare case that meets the test: 2010 CarswellOnt 8992 (Ont. S.C.J.).”

Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII) at 62-64

“Subsection 24(2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining her best interests.

The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her. See: Phillips v. Phillips, 2021 ONSC 2480.

Subsection 33.1(2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33. 1   Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.

Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This was recently interpreted by the Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305 as follows:

(3)         Maximum contact

[30]      The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

[31]      The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[32]      The current provision of Divorce Act, is more direct:

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[33]      The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

[34]      The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.

An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.”

         F.B. v. C.H., 2021 ONCJ 275 (CanLII) at 40-45

“The following principles guide whether counsel should be permitted to withdraw:

• • • • A court should allow counsel to withdraw for any reason if such request is made far enough in advance of any scheduled proceeding such that its adjournment will not be necessary;
      • Even if timing is an issue, a court must accept at face value counsel’s evidence that the withdrawal is sought for ethical reasons and grant the withdrawal.  “Ethical reasons” include a client asking counsel to act in violation of his or her professional obligation as well as a client who refuses to accept counsel’s advice on an important trial issue.
      • However, if timing is an issue and counsel seeks to withdraw for any other reason, then the court may inquire further about counsel’s reasons so long as it does not reveal information that is subject to solicitor-client privilege. In these circumstances, removal may be denied if it would cause serious harm to the administration of justice: See Cunningham v Liles, 2010 SCC 10, paras. 46-54.”

Outaleb v. Waithe, 2021 ONSC 3480 (CanLII) at 8

“The Applicant’s factum does not address the law to be applied when a party seeks a second time to have the matrimonial home sold, when such a motion has previously been dismissed and where the other party was previously granted exclusive possession of the home by court order. The Applicant’s factum includes the statutory authority and law on claims for partition and sale and exclusive possession as if these issues were being raised for the first time. The Applicant did not pursue his appeal of Doi J.’s Order.

Kurz J. in Spadacini-Kelava v. Kelava, 2020 ONSC 7907 considered the concept of issue estoppel and summarized the law and additional principles at paras. 105 and 106, which provide as follows:

[105] The three-part test for the application of issue estoppel was adopted by the majority of the Supreme Court of Canada in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 254. The Angle test was originally set out in the decision of Lord Guest of the British House of Lords in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, at p. 935, as:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies….

(See also Danyluk v. Ainsworth Technologies Inc., at para 25.)

[106] The nine following additional principles, derived from further authorities, are relevant to the consideration of issue estoppel in this case:

1. 1. 1. 1. 1. 1.  The issue out of which the estoppel is said to arise must have been “’fundamental” to the decision arrived at in the earlier proceedings (Angle v. Minister of National Revenue, at pp. 255, 265-66).
               2.  The breadth of issue estoppel “…extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk v. Ainsworth Technologies Inc., at para. 24).
               3.  Issue estoppel encompasses “issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it” (Allen v. Morrison(2006), 2006 CanLII 7283 (ON SC), 139 C.R.R. (2d) 324 (Ont. S.C.), at para. 21,citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 1084-85)).
               4.  Issue estoppel applies with equal effect to consent judgments (R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216, at para. 35, citing Hardy Lumber Co. v. Pickerel River Improvement Co.(1898), 1898 CanLII 16 (SCC), 29 S.C.R. 211; and Re Ontario Sugar Co.(1911), 24 O.L.R. 332 (C.A.), leave to appeal refused, (1911), 1911 CanLII 8 (SCC), 44 S.C.R. 659; Sekerbank T.A.S. v Arslan, 2016 SKCA 77, 480 Sask. R. 235, at para. 100).
               5.  “The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent” (Sekerbank T.A.S. v Arslan, at para. 100, citing Donald L. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: LexisNexis, 2010), at p. 359)).
               6.  The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice (Minott v. O’Shanter Development Co., at para 49; Danyluk, at para. 33). In doing so, the court “should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice” (Danyluk, at para. 80).
               7.  But that discretion must be “very limited in application” (General Motors Canada Ltd. v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, at p. 101, speaking of the discretion regarding res judicata).
               8.  When a party claims that newly discovered facts or materials, create special circumstances that overcome the application of issue estoppel, the court will look to the exercise of due diligence. The person seeking to relitigate an issue must demonstrate that the new fact or materials could not have been ascertained by the exercise of reasonable diligence at the time of the first action. (Grandview v. Doering,at pp. 626, 635-39; Minott v. O’Shanter Development Co., at para. 51).
               9. Issue estoppel applies to decisions of arbitrators and administrative tribunals (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., (Toronto: Butterworths, 2018) at p. 1416, para. 19.70; Minott v. O’Shanter Development Co., at para. 18; Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (C.A.)). As Abella J.A., as she then was, wrote for the court in Rasanen v. Rosemount Instruments Ltd., at para. 37:

[T]he policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

1. 1. 1. 1. 1. 10. Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246, McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd.(1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at 218, aff’d. [1994] O.J. No. 2792 (C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., 1924 CanLII 2 (SCC), [1924] S.C.R. 308.”

            Stolp v. Stolp, 2021 ONSC 3365 (CanLII) at 58-59

“In Jirova v Benincasa 2018 ONSC 534, Audet J, describes the use of parenting coordination as a dispute resolution model as follows:

[10] Parenting Coordination is one of the most recent dispute resolution models to enter the Ontario family law realm, although it has been known and used for many years in other jurisdictions.  Parenting Coordination is used exclusively to deal with parenting issues and is only possible once a final parenting agreement or court order is in place.  To confirm the PC’s authority to work with the parents outside of the adversarial process, to obtain information and to make recommendations and decisions as authorized by a parenting agreement, the parents’ consent to defer to parenting coordination is normally incorporated into a formal court order. One of the main functions of the PC is to help parents implement the parenting terms of their final agreement/court order.

[11] This resolution model includes two components: the non-decision-making component and the decision-making component.  During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties about child development matters and the impact of parenting conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.

[12] During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard. During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and in the children’s best interest to do so.  Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.

In Petersoo v Petersoo 2019 ONCA 624, the Court of Appeal opined on the issue of mediation/arbitration processes in family law as follows:

[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court. I do not agree with the appeal judge’s criticism of the process which did not include pleadings and a record of the pre-arbitration meeting.

In Sehota v Sehota 2012 ONSC 848, the court made the following comments at para. 24 and 28 that are instructive with the issue of parenting coordinators:

24.    The services of parenting coordinators have become an important part of the family law system. The court values the work of such professionals for the vast potential it holds for easing many of the difficulties litigants face. In particular, the court usually sees the children being benefited by the help of a parenting coordinator because that person can help the parents to put their children’s interests first, to understand how conflict hurts children and to cooperate in spite of their past sorrows and hurts.

28.    A further component of the guidelines is that the order for parenting coordination should be after a final order that sets out to the parenting plan. This case illustrates why this is preferable. It is not the job of the parenting coordinator to decide what the plan should be but two new wells the smaller issues of an overall established plan. The parenting coordinator is not to develop the plan, but to help the parties implement a final plan from a final order or agreement.

…

[60]      I agree with the dicta in Sehota v Sehota and Jirova v Benincasa, that a parenting coordination process should only be used for implementing, interpreting and applying a final order. Unfortunately, the parties engaged the parenting coordinator at a stage where the final order had not been issued. The parties were at a temporary order stage. The purpose of a parenting coordinator is to assist the parties in the implementation, interpretation and application of the terms of a final order.

…

With the greatest respect to the parenting coordinator, I am concerned about statements made by the parenting coordinator as to her role in creating a parenting schedule. In paragraph 14 and 25 of her January 27, 2021 Award, the parenting coordinator made the following comments:

[14]   … In the event that the parties are unable to agree, the parenting coordinator should be able to make an Award as Arbitrator to ensure that the preparation of the parenting plan proceeds in a timely fashion.

[25]   …The purpose of adding time was based on Ms. Bourgeois view that in order for her to be able to reasonably and fairly assess the father’s ability to care for the child, it would be best to have in place an adequate amount of parenting time.

I disagree with those statements. The parenting coordinator’s role is not to create a parenting schedule but rather it is to work with the existing schedule and to assist the parties in putting together a comprehensive parenting schedule.”

Ali v. Obas, 2021 ONSC 3412 (CanLII) at 42-44, 60, 78-79