Siegel's Family Court Calendar

“Given that the law does not lightly set aside an agreement, the threshold for establishing duress is high.  In Barton v. Armstrong [1976] A.C. 104, at 121 (J.C.P.C.), Lord Wilberforce (dissenting in the result) stated:

The action is one to set aside an apparently complete and valid agreement on the ground of duress. The basis of the plaintiff’s claim is, thus, that though there was apparent consent there was no true consent to the agreement; that the agreement was not voluntary. This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained—advice, persuasion, influence, inducement, representation, commercial pressure—the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion. In this the law, under the influence of equity, has developed from the old common law conception of duress—threat to life and limb—and it has arrived at the modern generalisation expressed by Holmes J.—” subjected to an improper motive for action ” (Fairbanks v. Snow 13 Northeastern Reporter 596, 598). [Emphasis added]

Duress requires proof of pressure that: (1) the law regards as illegitimate, such as threat of any form of illegal action; and (2) is applied to such a degree as to amount to a “coercion of the will” of the party relying on this defence.  The following considerations apply in determining whether there is a “coercion of the will”: (1) did the party relying on this defence protest?  (2) was there an alternative course open to him or her?  (3) was he or she was independently advised? (4) after entering the agreement did he or she take steps to avoid the agreement after entering it?  See A.A. v. A.G, 2017 ONCA 243, paras. 26-27; Gordon v. Roebuck (1992), 1992 CanLII 7443 (ON CA), 9 O.R. (3d) 1 (C.A.), at para. 3.

An agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned agreement at a time when he is no longer the victim of duress: Stott v. Merit Investment Corporation (1998), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), at para. 49.”

Milionis v. Rivas, 2017 ONSC 5001 (CanLII) at 64-66

“In Thomas v. Osika, 2018 ONSC 2712 at para. 37, my colleague Audet J. said that the decision with respect to the choice of school, when the parents disagree, is ultimately a matter of judicial discretion.

In Thomas v. Osika, Audet J. said that a number of general principles have nonetheless emerged from the case law to assist the court to make a decision that is in the child’s best interests.

I adopt Audet J.’s summary of these general principles:

(a) Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII));

(b) It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (CanLII), 2013 ONCJ 679 (Ont. C.J.));

(c) When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII));

(d) The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

(e) The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (CanLII), 2012 ONCA 811 (Ont. C.A.);

(f) Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(g) The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(h) Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (CanLII), 2012 ONSC 4746 (Ont. S.C.J.);

(i) A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (CanLII));

(j) Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision.  These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (CanLII));

(k) If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (CanLII), 2012 ONCA 811 (Ont. C.A.);

(l) Custodial parents should be entrusted with making the decision as to which school children should attend.  When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (CanLII));

(m) Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (CanLII)).”

Turnbull v. Turnbull, 2018 ONSC 5060 (CanLII) at 18-20

“Section 14 of the [Family Law] Act affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers.  Where the presumption is invoked, the party resisting the imposition of a resulting trust is required to disprove the presumption that his or her spouse is the beneficial owner of an interest in the disputed property.

In Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269, at paras. 16-19, the Supreme Court confirmed that a traditional resulting trust may arise in the domestic context where, as here, there has been financial contribution to the initial acquisition of a property and a subsequent gratuitous transfer of title to the property.  In these circumstances, the actual intention of the transferor is the governing consideration.  See also Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 43-44; Schwartz v. Schwartz, 2012 ONCA 239 (CanLII), 290 O.A.C. 30, at paras. 41-42.   Further, the intention of the transferor to make a voluntary and gratuitous transfer is an essential ingredient of a legally valid gift: see McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, at para. 24.”

Korman v. Korman, 2015 ONCA 578 (CanLII) at 26-27

“The mother is claiming under Article 13(b) [of the Hague Convention] that there is a grave risk that the return of the child to Italy would expose the child to physical or psychological harm or place the child in an intolerable situation.

The Convention sets a high threshold of a “grave risk” of physical or psychological harm or otherwise placing the child in an “intolerable situation”. Any interpretation short of a rigorous one, with few exceptions inserted in the Convention, would rapidly compromise its efficacy: Ellis v. Ellis, 2010 ONCA 347 at par 38-40. An assessment of risk involved not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring.  A test for severity was set out by the Court of Appeal in Jabbaz v. Mouamman (2003), 2003 CanLII 37565 (ON CA), 38 R.F.L. (5^th) 103, at paragraph 23, as “an extreme situation that is unbearable; a situation too severe to be endured”.

Justice Abella’s decision in Pollastro v. Pollastro, 1999 CanLII 19933 (ON CA), 1999 CarswellOnt 848 (Ont. C.A.) is often referred to in Ontario decisions on the issue of grave risk. In Pollastro, there was ongoing physical violence causing the wife to be “bruised front and back”.  The incidents escalated.  When she came home from work one day the husband ripped her T-shirt, banged her head against the floor and later locked her in the bathroom (par 9).  Two days later, he disabled her car and she was forced to walk to work carrying the baby, frightened because the husband followed her most of the way.  She decided to leave him that day but when she returned home to retrieve some clothing her husband started assaulting her and she had to escape through the bedroom window.  Her doctor documented the extent of the bruises on her neck, arms, back, shoulders and thighs as well as the child’s agitated state.  Her husband continued to harass her as well as some of her former co-workers.  He harassed her mother, her father and her cousin, calling incessantly, threatening his wife and her family. He talked about exacting revenge on his wife, and that if he could not have the child no one would.  He made death threats and told her she would never see her son again. He acknowledged drug use and was often drunk.  There was overwhelming evidence of him threatening to kill or harm his wife and/or the child.  The husband could not control his temper and showed ongoing irresponsible, and irrational behaviour.  Justice Abella found that the “potential for violence to be overwhelming” (par 36).

Virtually all of the allegations of abuse alleged by the Mother took place prior to the custody order of the Italian Courts, made in May 2017, just a few months prior to the child’s removal from Italy.  All of this evidence would and should have been before the court at that time.  Both parties were represented by counsel. Further, the parties participated in an assessment by Social Services in Italy, wherein the Mother acknowledged the Father was a good father to the child.  Social Services describe a healthy, well adjusted child, caught in an acrimonious divorce of her parents.  The Mother acknowledged the Father had a positive role in the child’s life.  Ironically, her biggest fear was that the Father would remove the child from Italy.  The Court ordered joint custody.  There was no evidence before me to suggest that the decision was wrong or was being appealed or that the Court did not have all the allegations before it when determining custody.  Their too consider “the best interest of the child”.

But even if I were to accept all of the mother’s allegations of the Father’s abusive behaviour in the case before me, it would not amount to an “extreme situation” and would not meet the Applicant’s onus of proving that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the children in an intolerable situation. In the case before me, the facts do not come close to severity described in Pallastro.

In Friedrich, a U.S. Court of Appeal decision, Justice Boggs relies on Thompson, the Supreme Court of Canada decision when considering Article 13(b) and further states:

A grave risk of harm for the purposes of the Convention can exist only in two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g. return the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. (emphasis added)

This interpretation has been endorsed and adopted by the Ontario Superior Court of Justice and affirmed in the Ontario Court of Appeal. The basic presumption of the Convention is that all contracting states are equipped to make, and will make, suitable arrangements for a child’s welfare.  That presumption is rebuttable, but the onus is on the Mother to establish an exception to the convention.  The Applicant has not rebutted this presumption.”

Monari v. Ojo, 2019 ONSC 4879 (CanLII) at 12-18

“The test under Rule 19(1) and Rule 20(16) [of the Family Law Rules] is narrower than the “semblance of relevance” test traditionally applied given that the Rules require disclosure when the question or request for production is “relevant to any issue in the case” rather than the former, broader test of whether the question is one “relating to any matter in issue”:  Ontario v. Rothmans Inc. [2011] O.J. No. 1896, 2011 ONSC 2504, para. 129; Eva v. Eva [2010] O.J. No. 2316, 2010 ONSC 2088, at para. 4.  The focus on “relevance” as opposed to the “semblance of relevance” is also consistent with the primary objective of the Family Law Rules described in Rules 2(2) and 2(3), particularly on promoting the saving of expense and time.

Relevance depends on the facts in issue.  For evidence to be relevant it must tend to “increase or diminish the probability of the existence of a fact in issue”.  There is “…no minimum probative value required for evidence to be relevant.” R. v. Arp 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 38.

Proportionality must be considered in assessing the appropriateness of a request for disclosure.  In Boyd v. Fields [2006] O.J. No. 5762, at para. 12, Justice Perell stated:

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

Referencing this approach, the Ontario Court of Appeal in Kovachis v. Kovachis, 2013 ONCA 663 (CanLII), [2013] O.J. No. 4954, at para. 34, stated:

Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: …  . Disclosure orders must be fair to both parties and appropriate to the case. [Emphasis added.]

If a person being questioned refuses to answer a question, the court may, on motion, decide whether the question is proper and give directions for the person’s return to the questioning: see Rule 20(19).”

Korn v. Korn, 2017 ONSC 4934 (CanLII) at 31-35

“The principles of a vexatious litigant as enumerated in Lang Michener Lash Johnston v. Fabian, 1987 CanLII 172 (ON SC), 1987 CarswellOnt 378 (H. Ct.) are:

(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the respondent’s conduct and persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”

McKee v. McKee, 2018 ONSC 4948 (CanLII) at 26

“In addition to these weaknesses in the financial disclosure, the applicant’s case is plagued by admissions made in her amended application.  Mr. Zammit argues that the respondent’s denial of such allegations means that they are a “wash” and should not affect this court’s decision.  I disagree.  An admission in a pleading or during questioning is of far greater legal significance then a denial of an allegation. Both the Rules of Civil Procedure, R.R.O, 1990, Reg. 194 and the Family Law Rules, O. Reg. 114/99 as amended, contain rules dealing with admissions.  Both make specific provision for the withdrawal of an admission.  Pursuant to Rule 22(5) of the Family Law Rules, an admission that a fact is true may be withdrawn only with the other party’s consent or with the court’s permission.  This special treatment of admissions in civil proceedings reflects that they are meant to stand as a concession of an important fact or issue unless the test is met for permitting them to be withdrawn, or the opposing party agrees that they will suffer no prejudice by the withdrawal and accordingly consents.”

Vaseloff v. Leo, 2013 ONSC 5270 (CanLII) at 8

“That the mother would be reluctant to allow her children to spend more time with a man who betrayed both her and the community’s trust by committing an armed robbery is understandable. There is also evidence that the father’s access to date has not been without its problems and that he has difficulty controlling anger.

That said, I find the position taken by the mother to be somewhat contradictory; she says that because the father had planned the bank robbery for several weeks in advance, she does not accept his evidence that he did it because he was having a mental breakdown. At the same time, the mother says that she is concerned that the father may have a mental breakdown when the children are with him.

There is a presumption that regular access by a non-custodial parent is in the best interests of children and the right of children to visit with a non-custodial parent and to know and maintain or form an attachment to a non-custodial parent is a fundamental right. (Montgomery v. Montgomery (1992), 1992 CanLII 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (C.A.))

There are good reasons to increase this father’s access to the children. The father was very involved in the upbringing of the children before he was incarcerated. For a time, he was at home with the children while the mother worked. The father has submitted evidence that he is now gainfully employed and that his mood has been stable. The father is living with his mother at present, which means that if the children were to have increased access to him, they would frequently also have increased access to a member of their extended family; they would also have twice the amount of adult attention.

There was no evidence before me to support the mother’s submission that the grandmother has mental health issues that would affect her ability to spend time with and help care for the children.

I acknowledge that there is an unfortunate level of animosity between the mother and the grandmother.  The father’s crime divided camps, damaged relationships and took a heavy toll on those around him. It does not mean, however, that his children should be deprived of the opportunity to spend more meaningful time with him.

I am also not concerned that appropriate space could not be found in a two-bedroom apartment for two young children to sleep overnight.

The mother expressed concern about overnight access visits on school nights, given the distance between the children’s school and the grandmother’s home. There was no evidence before me about the distance between the school and the home but so as not to set up an access schedule for potential failure, overnight access on school nights will be avoided at this time.”

McAlpine v. McAlpine, 2019 ONSC 4771 (CanLII) at 10-17

“A request for an order sealing the entire motion record or, in the alternative, for an order prohibiting the publication of any information that would identify the applicant by name was considered by the Ontario Court of Appeal in M.E.H. v. Williams, 2012 ONCA 35 (CanLII). That case involved an application for a divorce and corollary relief brought against David Russell Williams (“Williams”). Williams was a colonel in the Canadian Forces and was charged with first-degree murder, sexual assault and forcible confinement, and 82 counts of break and enter. The court described the allegations as “stunning in their depravity.” Williams pleaded guilty to the charges and was sentenced to life imprisonment.

There was widespread public interest in the criminal charges and prosecution of Williams. That interest generated intense media coverage. Williams’ criminal acts and the charges came as a shock to the applicant who learned for the first time that her husband was “a sexual predator and cold-blooded serial murderer.”

In the Williams application to seal the court file, the court was provided with an affidavit from the applicant’s treating psychiatrist who identified a “real and substantial risk” to the applicant’s mental well-being if the media was allowed to identify her by name or to publish details of financial and personal information routinely found in divorce proceedings. The application granted by the trial judge was considered by the Court of Appeal.

The motions judge made a sealing order and followed the two-step approach set out in a series of cases from the Supreme Court of Canada commonly referred to as the “Dagenais/Mentuck Test” and is stated as follows:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. (R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 at para. 32)

In Williams the applicant put forth evidence that pubic access to the court file could pose a risk to her mental health. Despite that evidence, the Court of Appeal granted the appeal from the order made by the lower court. In its reasons, the Court of Appeal referred to the analysis made by the lower court which recognized that the order sought was “an extraordinary one” which, if granted, would compromise the open court principle which the lower court described as “one of fundamental importance… to our democratic society.”

Williams expanded upon the important features of the first branch of the Dagenais/Mentuck Test and the court stated that for a publication ban and related relief to be ordered: i) there must be a public interest at stake: the order must be necessary to prevent a serious risk to the proper administration of justice; and ii) the court must assess whether the serious risk to a public interest can only be addressed by some form of non-publication or sealing order.

Williams requires that before applying the second part of the test, the court must be satisfied that there is, in fact, a serious risk. In assessing the seriousness of the risk, the appellate court stated:

In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested. Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access. Access to the courts at that cost would be more illusory than real.

The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction. [citations omitted] (M.E.H. v. Williams at paras. 29-30)”

Alsaid-Ahmad v. Jibrini, 2019 ONSC 4633 (CanLII) at 14-20

“Many practicing lawyers may be unaware of the provisions of the statute which was first introduced by an individual Member of the Provincial Parliament.

The full text of a 2009 article by Yvonne Diedrick, a claims counsel with LawPro, can be found at www.LawPro.ca/magazinearchives.

In part, the article observes:

As lawyers, we tend not to think of apologizing as a method of dispute resolution. Thanks to new legislation recently passed by the Ontario government, and to borrow from Elton John, saying sorry no longer has to be the hardest word.

The Apology Act came into force on April 23, 2009. The legislation was introduced by David Orazietti, an MPP from Sault Ste. Marie, as a private members bill. The Act allows the communication of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court.

I understand that the original proponents of the legislation came from the health care field. Historically health care professionals have avoided apologizing to patients for mistakes out of fear the apology would be considered an admission of guilt in civil proceedings. Over time, thinking has changed. Many doctors, nurses and other health care providers felt that apologizing would initiate the healing process by acknowledging to a patient that harm had been done and by promoting open communication and accountability between patient and health care provider.

…

As a result, the Act provides that an apology, made by or on behalf of a person:

• does not constitute an admission of fault or liability by the person:

• does not affect any insurance coverage or indemnity available despite any wording to the contrary in the contract of insurance or an act or law:

• shall not be taken into account in determining fault or liability in the matter: and

• is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of fault or liability in the matter.

In her article. Ms. Diedrick observes:

“No doubt the legislation was intended to encourage the early resolution of disputes by providing the protection of the Act if the apology is given before reaching costly out-of-court examinations such as discovery, or matters escalate to an arbitration or trial.”

Simaei v. Hannaford, 2015 ONSC 5041 (CanLII) at 24-27, 32-33