“I conclude that a request for service properly forwarded by an Ontario lawyer to a Central Authority of a destination Contracting State is a request by a “judicial officer competent under the law of the State in which the documents originate”, as required by Article 3 of the Convention [Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 658 UNTS 163, UKTS 1969/50]. As such, the request for service sent by the Applicant’s Ontario lawyer to the Central Authority of India on the prescribed form was a proper request for service in India for the purposes of the Convention and Rule of Civil Procedure 17.05(3).”
November 6, 2019 – Words Can Constitute Violence
“Can test messages received by a spouse constitute violence pursuant to Section 24(3)(f) of the Family Law Act? Alternatively, can interspousal text messages affect the best interests of a child in a manner that supports an order for exclusive possession?
…Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.
Violence as constructed within Section 24(3)(f) of the Family Law Act does not require direct physical injury. I adopt the analysis of Fitzgerald J. in Hill v. Hill (1987) 10 R.F.L. (3rd) 225, in which he concludes that the Family Law Act is a remedial stature that can be liberally construed to include within its meaning, an injury achieved by words and deeds:
In my view the violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behavior and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow.
The Court must weigh whether the relevant words were intended between the parties to intimidate, or to be taken seriously. In the absence of a clear meaning between the parties, the court can consider whether a reasonable person would find the words injurious, or alternatively, might view the communication as exchanged in jest, or ambivalence.”
Menchella v. Menchella, 2012 ONSC 6304 (CanLII) at 1 & 10-12
November 5, 2019 – Imputing Income
“The Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23 broke down this requirement into the following questions for consideration:
1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
The definition of “intentional” has been considered in various decisions. Early cases suggest that there had to be bad faith or a deliberate attempt associated with a parent’s under-employment or unemployment so as to avoid his or her support obligations. Other cases concluded that there was no need to find specific intent. The Ontario Court of Appeal clarified that if a parent chooses to earn less than he or she is capable of earning that amounts to intentional under-employment or unemployment. The Court explained that “[t]he word “intentionally …does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work”: Drygala, at para. 28.
In the same decision the Court noted at para. 38:
As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.
Finally, section 19 of the Guidelines is not an invitation for the court to arbitrarily select an amount as imputed income. “There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence”: Drygala, at para. 44. It must also be reasonable in all of the circumstances.”
November 4, 2019 – Security For Costs On Appeal
“The respondent submits that an order to post security for costs is justified under r. 61.06 which governs security for costs on appeal:
(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
…
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
…
(2) If an appellant fails to comply with an order under subrule (1), a judge of the appellate court on motion may dismiss the appeal.
For such an order to be granted, the motion judge must: (a) have good reason to believe the appeal has no merit and is therefore frivolous and vexatious, and (b) have good reason to believe the appellant has insufficient assets in Ontario to cover the costs of the appeal: Schmidt v. Toronto-Dominion Bank(1995), 24 O.R. (3d) 1 (C.A.). As this court observed in Schmidt, at para. 16:
A judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give “good reason to believe that the appeal is frivolous and vexatious” without being satisfied that the appeal is actually totally devoid of merit.”
November 1, 2019 – Compensatory Support
“In Moge and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada held that a compensatory order for spousal support may be awarded where a spouse’s education, career development, or earning potential have been impeded as a result of the marriage.
Compensatory support is premised on a marriage being a joint endeavour, and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage: Poirier v. Poirier, 2010 ONSC 920 (CanLII) at para. 47.”
October 31, 2019 – Marital Misconduct
“Legislation, jurisprudence and the practice of family law have evolved over the last decades in an attempt to eradicate allegations of marital misconduct unrelated to financial consequences. Fault grounds for divorce are rarely used, having been replaced, in practice, with separation grounds. This approach recognizes that family litigation has the potential to leave families worse at the end of the case than they were at the beginning. It recognizes that resolution is the preferred outcome. Inflammatory allegations impede resolution.
The statements about the husband’s conduct are inflammatory. They are – in my view – there to provide a springboard to question the husband about his extra-marital conduct, not about his net family property. As Blair J.A. said in Serra v. Serra, 2009 ONCA 105(CanLII), 93 O.R. (3d) 161, at para. 58, it is the financial consequence of the conduct that is relevant, not the conduct itself. Extended questioning of the husband’s conduct (as described in paragraph 30) that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”
October 30, 2019 – Parental Alienation
“Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.
Experts have developed a list of factors to aid in identifying parental alienation. Cases have cited these factors. For example, when analyzing the issue of parental alienation in C.(W.), MacPherson J. qualified Dr. Fidler as an expert in alienation. Dr. Fidler set out indicators of alienation; these have been cited in numerous cases: L.(A.G.) v. D.(K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042 (CanLII), at para. 134 [G.(J.M.)]; Maharaj, at para. 140.
The following are indicators of alienation:
Child Behaviours:
-
- View of parents one-sided, all good or all bad; idealizes one parent and devalues the other
- Vicious vilification of target parent; campaign of hatred
- Trivial, false and irrational reasons to justify hatred
- Reactions and perceptions unjustified or disproportionate to parent’s behaviours
- Talks openly to anyone about rejected parent’s perceived shortcomings
- Extends hatred to extended family and pets (hatred by association)
- No guilt or ambivalence regarding malicious treatment, hatred, etc.
- A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
- Anger at rejected parent for abandonment; blames him/her for divorce
- Speed is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality
- Stories are repetitive and lacking in detail and depth
- Mimics what siblings report rather than own experience
- Denial of hope for reconciliation; no acknowledgement of desire for reconciliation
- Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent
| Alienating Parent Behaviours:
• Allows and insists that child makes decisions about contact • Rarely talks about the other parent; uninterested in child’s time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child’s return from visit. • No photos of target parent; removes reminders of the other parent • Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant • No encouragement of calls to other parent between visits; rationalizes that child does not ask • Tells child fun things that were missed during visit with other parent • Indulges child with material possessions and privileges • Sets few limits or is rigid about routines, rules and expectations • Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child • No concern for missed visits with other parent • Makes statements and then denies what was said • Body language and non-verbal communication reveals lack of interest, disdain and disapproval • Engages in inquisition of child after visits • Rejected parent is discouraged or refused permission to attend school events and activities • Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain • Distorts any comments of child that might justify accusations • Does not believe that child has any need for relationship with other parent • When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent • Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child • Exaggerates negative attributes of other parent, and omits anything positive • Delusional false statements repeated to child; distorts history and other parent’s participation in the child’s life; claims other parent has totally changed since separation • Projection of own thoughts, feelings and behaviours onto the other parent • Does not correct child’s rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others • Convinced of harm, when there is no evidence • False or fabricated allegations of sexual, physical and/or emotional abuse • Denigrates and exaggerates flaws of rejected parent to child • Says other parent left “us”, divorced “us” and doesn’t love “us” • Over-involves child in adult matters and litigation • Child required to keep secrets and spy or report back on other parent • Child required to be messenger • Overt and covert threats to withdraw love and affection from child unless other parent is rejected • Extreme lack of courtesy to rejected parent • Relocation for minor reasons and with little concern for effects on child |
Once a finding of alienation is made, courts must then determine the appropriate order. MacPherson J. in C.(W.) summarized the available orders, as articulated by Dr. Fidler, as the following:
1) Do nothing and leave the child with the alienating parent;
2) Do a custody reversal by placing the child with the rejected parent;
3) Leave the child with the favoured parent and provide therapy; or
4) Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.”
October 29, 2019 – Costs In The Court of Appeal
“Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes: Family Law Rules, r. 1(2); Selznick v. Selznick, 2013 ONCA 35 (CanLII).”
October 25, 2019 – Grandparents’ Rights
“Chapman v. Chapman 2001 CanLII 24015 (ON CA), 15 RFL (5th) 46 (Ont. C.A.). Grandparents do not have a legal right of access to grandchildren. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children’s best interests. It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child’s best interests will rarely be served by a custody order. Branconnier, 2006 Carswell BC (SC) – the wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991) 122 NBR (2d) 271 (NBQB).
Justice Nelson set out a three part test in Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ):
One: Does a positive grandparent-grandchild relationship already exist?
Two: Does the parent’s decision imperil this relationship?
Three: Has the parent acted arbitrarily? Court sets out that deference to parents may not be as strong when one of the parents has died and that parent’s family seeks access.
In determining whether there was “positive relationship” at all, court summarized the following four elements from case law in Torabi v. Patterson, 2016 ONCJ 210 (CanLII):
| (a) |
There must generally be substantial pre-existing relationship between relative and child. Strong loving ties must exist based on time spent with each other. |
| (b) |
That relationship must be constructive one for child in sense that it is worth preserving. If relations between parties are too poisoned, previously positive relationship may not be capable of preservation. |
| (c) |
This determination must include consideration of child’s age and time since child last saw relative. |
| (d) |
If young child has lost parent, existence of strong pre-existing relationship may not be necessary when it is relative of lost parent who applies for access.” |
October 24, 2019 – Enforcing The Unenforceable Agreement
“An unenforceable agreement may have some effect. For example, had the parties gone ahead and transferred title to the Respondent’s name, the court might not unwind that transaction simply because it was based on an unenforceable agreement. An unenforceable agreement might be given some weight if a court is asked to make related discretionary decisions, such as for spousal support or an unequal division of net family property. No such claims were made here. An unenforceable contract may be of some legal use, but it nonetheless lacks the vital characteristic of enforceability.
The Respondent provided two cases where judges of this court have purported to exercise discretion to enforce an unenforceable domestic contract, despite the clear wording of s. 55(1) of the FLA. The cases were: Sessions v. Froude, 2010 ONSC 2010 (Sup. Ct.) (CanLII) and Lecot v. Lecot, 1995 CarswellOnt 1396, 19 R.F.L. (4th) 14 (O.C. J. Gen. Div.). With respect, I do not agree that any such free standing discretion exists.
There is a well recognized exception to compliance with the formal requirements set out in s. 55(1); namely, for settlement agreements negotiated under legal advice. The leading case in Ontario is Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.). The Court of Appeal, at para. 15, upheld a settlement agreement that was reached through the exchange of lawyers’ letters that “was complete, definite and intended to be binding.” Geropoulos relied upon the policy of encouraging settlements and the importance of preserving valid settlements that have been freely and properly entered into with legal advice.
Harris v. Harris, [1996] O.J. No. 2430 (O.C.J. Gen. Div.) is another case that has been cited as an example of a freestanding discretion to enforce an agreement despite its noncompliance with s. 55(1). In Harris, discretion is said to be exercisable on a case-by-case basis. Harris was relied upon in Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), [2007] O.J. No. 2851, 48 R.F.L. (6th) 94 (Sup. Ct.), to extend the Geropoulos principle to a situation where Minutes of Settlement were negotiated freely, with legal advice, but before litigation was commenced. The facts in Harris emerge from paras. 11, 12 and 15:
In the case at Bar the parties and their respective counsel at a meeting in the offices of the plaintiff’s solicitor negotiated terms of a proposed settlement. By doing so it is obvious to me that unless one of the parties was not bona fide, the purpose of the meeting was to finalize some or all of the outstanding issues in the presence of and with guidance from legal counsel. Both parties solicitors are experienced and well respected and, from the evidence, can be taken to have advised the parties as to the purpose of the meeting which was to attempt to finalize issues and avoid litigation. It cannot be said that either party was at any disadvantage at the meeting or thereafter.
Counsel for the defendant, during the meeting, prepared a handwritten summary of matters that were agreed to and confirmed them in a letter the following day. Indeed, counsel begins his letter by stating: “I confirm the basis on which the parties are prepared to settle all matters”, and then sets out in more detail the content of the handwritten notes. He concludes the letter with:
I trust that the above reflects the results of our four way meeting. I shall proceed to prepare a draft agreement for your consideration. In the meantime, the proceedings may be adjourned to Tuesday, May 21st, 1996, as I may wish to have some of the terms of agreement incorporated into an order.
…
The essence and meaning of the correspondence is clear. The parties intended to settle matrimonial issues in dispute and believed they had done so. On my reading of the correspondence of defendant’s counsel, if his secretary had not been ill the formal agreement incorporating the terms of settlement would probably have been completed and may very well have been signed. The evidence does not support the view of the defendant that “there was no ‘backing out’ of the agreement as there never was an agreement ‘back out from’” (sic). What is clear to me is that the Respondent concluded an agreement, had second thoughts about it later, and then relied on the provisions of subsection 55(1) of the Family Law Act in an attempt to vitiate it.”