“Since Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, it has been clear that no tort action exists for wrongful interference with access rights. The remedy against such interference is now governed by s. 35 of the CLRA, which provides for relief by way of a restraining order and a permanent injunction.”
November 20, 2019 – Sealing Orders & Publication Bans
“The Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. Specific considerations include the nature and sensitivity of the information in the documents in the court file, and whether not making the order could cause harm to a person.
Section 70 of the Children’s Law Reform Act provides as follows:
70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,
(a) that access to all or part of the court file be limited to,
(i) the court and authorized court employees,
(ii) the parties and their counsel,
(iii) counsel, if any, representing the child who is the subject of the application, and
(iv) any other person that the court may specify; or
(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.
Considerations
(2) In determining whether to make an order under subsection (1), the court shall consider,
(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and
(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.
Order on application
(3) Any interested person may make an application for an order under subsection
In L.C.F. v. G.F. 2016 ONSC 6732 (CanLII), for example, Justice Harvison Young considered a request for a sealing order and publication ban in the family context. She held that “in any and all judicial proceedings where judges are asked to utilize their discretion to order that public access to a file or proceeding be restricted, courts must apply the well-established Dagenais/Mentuck test: Re Vancouver Sun, 2004 SCC 43 (CanLII) at paras. 23-27… There can be no doubt that any discretion within the family context must be exercised within the constraints of the Dagenais/Mentuck test.” See para. 17. Judges must engage in a case by case analysis.
At the same time, there is an “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.” See Danso v. Bartley, 2018 ONSC 4929 (CanLII) at para. 52 per Justice Myers. In L.C.F., supra, Justice Harvison Young noted that the analysis with respect to children is “somewhat different,” and that where courts step in to protect children in family cases by imposing restrictions, “the children are demonstrably vulnerable” and generally younger (the youngest child in that case was 16). She notes that publication bans are restricted as much as possible and that sealing orders are rare. See paras. 47-50.”
November 19, 2019 – Maximum Contact Principle – Redux
“While the “maximum contact” principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon, at para. 24, McLachlin J. noted that:
The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.”
November 18, 2019 – Suitability Of Joint Custody
“The suitability of a joint custody order depends on there being “some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another”. That evidence may exist notwithstanding one parent’s professed inability to communicate with the other. Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.), at paragraph 11.
A Court may find that the parents could and had communicated effectively and put the interests of the children ahead of their own even where the relationship between the parents was, at times, conflictual and with strife. Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (C.A.), at paragraph 16.
Faced with a situation, as here, with a status quo argument being made by one parent, it is not enough for the Court to simply acquiesce to what has been in place as a Temporary Order. Even if the Court finds that the status quo would be just fine for the children, the Court should go on to consider whether a shared parenting arrangement would be in the best interests of the children. Lo v. Mang, [2011] O.J. No. 390 (S.C.J.), at paragraph 96.
To help us assess what is in the best interests of the children, we look to the factors listed under subsection 24(2) of the Children’s Law Reform Act (“CLRA”).”
November 15, 2019 – I Won And Beat My Offer So Why Don’t I Get All My Costs?
“Even a full recovery of costs following on a finding of bad faith must be respectful of the after-tax, financial means of the family. In no way is $99,593.00 in fees for a consent Order, two adjournments and a two hour argued motion reasonable or proportionate.
Mr. Hand does not a have a “free pass” to claim whatever costs he chooses. One cannot litigate with impunity, spending beyond any reasonable amount for a family of similar means, and then press for a full recovery no matter what the circumstances – even with a finding of bad faith tucked into one’s pocket. To so allow would be to ignore the complex nature of costs.
Proportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters: Beaver v. Hill 2018 ONCA 840 (CanLII).”
November 14, 2019 – Maximum Contact Principle
“The trial judge erred by failing to give sufficient weight to the maximum contact principle. He stated that maximizing the contact between a young child and both parents “is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).
The trial judge’s statement that if the child lived primarily with his mother in Kingston, the child would continue to have “regular contact” with his father, and his statement that the child would not “suffer by virtue of living in Kingston”, are further indications of his inadequate weighing of the maximum contact principle.
The failure to attach appropriate weight to the maximum contact principle led the trial judge to make an order under which the child, who had been living approximately half the time with the father since the separation, would see his father only every other weekend. In addition, under the order, the child would spend less time with his paternal grandparents, who had cared for him after the mother returned to work at the end of her maternity leave. The trial judge did not adequately consider the disruption to the child inherent in this change.”
November 13, 2019 – Importance of Disclosure
“It is trite to say that documentary disclosure is an integral part of family litigation. Without forthright and expedient financial disclosure, family litigation cannot be conducted in a logical, rational manner nor can litigation be settled without comprehensive documentary disclosure. Documentary disclosure which includes financial disclosure is integral and the foundation of family law cases for the purpose of either going to trial or settlement. The sooner comprehensive financial disclosure is provided in a logical manner, the sooner litigants in family cases can assess their case and attempt to settle that case.”
November 12, 2019 – Philosophy of Hague Convention
“Section 46 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 implements the Hague Convention as the law of Ontario.
Article 1 of the Convention states that its objects are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.
Once a wrongful removal of a child from the Contracting State in which the child was habitually resident has been established, Article 12 of the Convention requires that “the return of the child forthwith” be ordered.
The order is to be made expeditiously. Article 11 provides that “the judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.” The Article goes on to give the applicant and the Central Authority the right to request a statement of the reasons for delay if a decision has not been reached within six weeks from the date of the commencement of the proceedings.
Article 16 provides that the court in the State to which the child has been taken “shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention”. Thus, as LaForest J. put it in Thomson, “an application for return pursuant to the Convention pre-empts a local custody application”. Or as this court explained at greater length in Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), [2001] O.J. No. 1598:
[A] Hague Convention application does not engage the best interests of the child test – the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account. See Medhurst v. Markle (1995), 1995 CanLII 9273 (ON SC), 26 O.R. (3d) 178 (Gen. Div.) and Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226 (Ont. C.A.). Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention…the children must be returned to their habitual residence.
The philosophy of the Hague Convention is that it is in the best interest of children that the courts of their habitual residence decide the merits of any custody issue. Adhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown.”
November 8, 2019 – Costs Principles
“A successful party is presumed to be entitled to his or her costs, pursuant to Rule 24(1) of the Family Law Rules. The preferable approach in family law cases is to allow costs on a full recovery basis, provided the successful party acted reasonably and the costs claimed are proportional to the issues and results and were within the range that the opposing party should have expected if unsuccessful in the motions Family Law Rules, O Reg. 114/99, Rule 224(1); Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (CanLII), para. 11; Biant v. Sagoo 2001 ONSC 28137 (CanLII), para. 1.
Costs Orders are designed to achieve three principal purposes, (a) to indemnify successful litigants; (b) to sanction unreasonable conduct of the litigation; and (c) to encourage settlement: Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII).
A litigant whose conduct was reasonable and who is successful in a proceeding should not be required to bear the costs of having his rights tested: Serra v Serra 2009 ONCA 395 (CanLII). However, an unsuccessful litigant should not be required to pay the costs of a motion that the successful litigant precipitated by his unreasonable conduct, or be so heavily burdened with costs as to discourage other litigants from submitting issues to the court where the outcome is not a foregone conclusion that should have been anticipated.
Historically, the successful party in a motion made necessary by the responding party’s breach of a court order was entitled to costs on a substantial indemnity scale: Cassidy v. Cassidy, 2011 ONSC 791 (CanLII), para. 14; Astley v. Verdun [2013] ONSC 6734 (SCJ) at paras 52 to 58. This was because a finding of contempt is a finding of unreasonable conduct. Substantial indemnity costs did not follow automatically or invariably from a finding of contempt, but such a finding gave rise to a rebuttable presumption that the successful party was entitled to costs on a substantial indemnity scale. In Astley v. Verdun, (2013), Goldstein J. described the jurisprudence governing the imposition of substantial indemnity costs as it pertains to contempt, he stated:
I characterize the test this way: there is a rebuttable presumption that substantial indemnity costs are appropriate in a contempt of court case. The presumption may be rebutted where the contemnor is suitably contrite, has attempted to purge his or her contempt, has taken steps to minimize costs incurred by the other party, and the contempt itself is towards the lower end of the “flagrant and wilful” scale: at para 57.
[Emphasis added]
In the present day, the Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 18(14), dealing with the costs consequences of a failure to accept an Offer to Settle, instead differentiates between “costs” and “full recovery of costs”. Rule 24(8) also refers to “costs on a full recovery basis,” where a party has acted in bad faith. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis: Sordi v. Sordi, 2011 ONCA 665 (CanLII), 283 O.A.C. 287. It has a range of costs awards open to it, from nominal to just short of full recovery.
In Sims-Howarth v Bilcliffe, (2000), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules: 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.). He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v D.M.: 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.), at para. 42.
In Berta v. Berta, (2015), the Court of Appeal stated:
In Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263 (CanLII), 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665 (CanLII), 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 23003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 40: Berta v. Berta, 2015 ONCA 918 (CanLII), at paras. 92-93.
Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs. In Perri v. Thind et al., (2010), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court: 2009 CanLII 34977 (ON SC), 98 O.R. (3d) 74 (S.C.). In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct: Perri, at paras. 24-26, 32-33.”
Chrabalowski v. Chrabalowski, 2018 ONSC 6716 (CanLII) at 15-21
November 7, 2019 – Service Out of Country
“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).”