Siegel's Family Court Calendar

“With respect to the parenting issues, the only material change which requires a “fresh inquiry” into the best interests of the children is the distribution of parenting time between the parents. Recent amendments to the Divorce Act direct the court to consider family violence in assessing the best interests of children, including its impact on the ability and willingness of the person engaged in family violence to care for and meet the needs of the children, and the appropriateness of making an order requiring cooperation on issues affecting the children. Factors to be considered include:

(a)   the nature, seriousness and frequency of the family violence and when it occurred;

(b)   whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c)    whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d)    the physical, emotional and psychological harm or risk of harm to the child;

(e)    any compromise to the safety of the child or other family member;

(f)    whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g)   any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h)   any other relevant factor.”

         Kieffer Wolf v. McAuley, 2021 ONSC 2145 (CanLII) at 28

“I do not discount the significance of the expressed wishes of a 13- and 14-year-old child but I am also to consider those wishes within the context of all of the evidence.

In Abbott v. Meadus, 2014 NBQB 18, at paras. 67-70, Baird J. stated the following:

[67]  In this case, the children are now 14 and 12 years of age. Their views and preferences, although not determinative, do play a role in the ultimate decision to be made.

[68]  Here I wish to refer to the Voice of the Child Assessment. Professor Nicholas Bala, a professor of law from the University of Toronto in an article titled, “The Voice of Children in Canadian Family Law Cases” established criteria that he believes the judiciary should consider when assessing the significance of a child’s wishes. The reason why I am including these criteria in this decision, is to demonstrate to the respondent mother in this case, the imperative we have as judiciary to consider those expressed views when children are at an age where their views should have some weight.

[69] In this case, the responding mother does not accept that these children have the requisite maturity to fully comprehend their choice.

[70]  The criteria are as follows:

1. 1. 1. 1. 1. 1. 1. Whether both parents are able to provide adequate care;
                  2. How clear and unambivalent the wishes are;
                  3. How informed the expression is;
                  4. The age of the child;
                  5. The maturity level;
                  6. The strength of the wish;
                  7. The length of time the preference has been expressed for;
                  8. Practicalities;
                  9. The influence of the parent(s) on the expressed wish or preference;
                  10. The overall context;

The circumstances of the preference from the child’s point of view.”

         P.D. v. D.C., 2021 ONSC 2146 (CanLII) at 274-275

“In order to obtain a charging order or a lien on the monies in issue, the onus is on the solicitor to demonstrate that a charging order or lien is warranted. The decision is discretionary: Taylor v. Taylor (2002), 2002 CanLII 44981 (ON CA), 60 O.R. (3d) 138 (C.A.), at para. 34; Foley v. Davis (1996), 49 C.P.C. (3d) 201 (Ont. C.A.), at p. 202. In deciding whether or not to exercise that discretion, courts must “balance the circumstances and equities of each case and client”: Taylor, at para. 34.

The test for a charging order under s. 34 [of the Solicitors Act] is clear. To obtain a s. 34 charging order a solicitor must demonstrate that:

i.    the fund or property is in existence at the time the order is granted: Langston v. Landen, [2008] O. J. No 4936 (Ont. S.C.J.), at paras. 28-29;

ii.    the property was “recovered or preserved” through the instrumentality of the solicitor; Kushnir v. Lowry, [2003] O.J. No. 4093 (C.A.), at para. 2;

iii.    there must be some evidence that the client cannot or will not pay the lawyer’sfees; Kushnir, at para. 2; see also Guergis v. Hamilton, 2016 ONSC 4428 (CanLII), at para. 6; Thomas Gold Pettinghill LLP, at para. 88; Foley, at p. 202.

Charging orders exist alongside, and in addition to, a court’s inherent jurisdiction to grant a solicitor’s lien. Although distinct, they are two sides of the same coin, and overlap significantly in purpose and effect. As this court observed in Taylor, at para. 28, s. 34 of the Solicitors Act is a codification of a court’s “inherent jurisdiction in equity to declare a lien on the proceeds of a judgment where there appears to be good reason to believe that the solicitor would otherwise be deprived of his or her costs.”

In our view, the conceptual differences between the two orders, such as how and when they are acquired, do not justify the application of different tests. The two types of charges cover the same circumstances and have identical objectives. Regardless of which of the two remedies is sought, it is our view that the three elements outlined above must be established.”

Weenen v. Biadi, 2018 ONCA 288 (CanLII) at 14-17

“The father tenders an Ottawa Police Occurrence report and file notes made by social workers employed by the Ottawa Children’s Aid Society.  All of these documents are attached as exhibits to his own affidavit.

Section 35 of the Evidence Act addresses the admissibility of business records:

35 (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)

“record” includes any information that is recorded or stored by means of any device. (“document”)  R.S.O. 1990, c. E.23, s. 35(1).

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.  R.S.O. 1990, c. E.23, s. 35(2).

Notice and production

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.  R.S.O. 1990, c. E.23, s. 35(3).

Surrounding circumstances

(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.  R.S.O. 1990, c. E.23, s. 35(4).

Previous rules as to admissibility and privileged documents not affected

(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.  R.S.O. 1990, c. E.23, s. 35(5).

Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (HC) remains the foundational case in Ontario with respect to the fundamentals of the admissibility of business records.   Note that Setak does not admit evidence otherwise inadmissible simply because it is in a business record.  For example, expert opinions contained in a business record are not admissible as part of the business record. Nor is recorded hearsay from third parties who are not under a business duty to report the information.

The court in Setak stated the following at pages 761, 762 and 763:

In this case, I have no hesitation in holding that the minutes are admissible under s. 36, as prima facie proof of what actually transpired at the meetings, including the following:

1. 1. 1. 1. 1. That the meetings were held on the dates shown, with the persons described as being present actually present.
            2. That the reports described as having been made in the minutes were in fact made at the meeting.
            3. That where indicated, one of the persons attending did, in fact, undertake to follow a certain course of action.
            4. That where indicated, an agreement was reached or formalized between the parties on any point or issue.

…

A writing or record made in the regular course of business consists in its simplest form of a record by the maker on the basis of his own personal observations and knowledge, and there can be no objection to the minutes being offered for statements attributable or events that they say happened at the time or within a reasonable time of the meeting.

…

… the minutes may not be received to prove the validity of any opinion expressed at a meeting.  I say that, regardless of who offered the opinion….unless given by a duly qualified expert.

…

… The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable.  The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36 as admitting hearsay evidence of any third party would make the section as almost limitless dragnet for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy.  In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.”

         DiGiorgio v. DiGiorgio, 2020 ONSC 1674 (CanLII) at 48-51

“The court is authorized to make a restraining order pursuant to s. 35(1) of the [Children’s Law Reform] Act:

Restraining order

35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.  2009, c. 11, s. 15.

The applicant relies on McCall v. Res, 2013 ONCJ 25, where there is a helpful discussion as to the necessary evidence to justify a restraining order. In paras. 29-31, the court states (with any emphasis being in the original):

29      Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

30  In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

31      What I take from these cases is:

• • • • • • The fear must be reasonable
          • The fear may be entirely subjective so long as it is legitimate
          • The fear may be equally for psychological safety, as well as for physical safety

An underlying principle is that a person’s fear for his or her safety or the safety of a child, must be related to a respondent’s actions or words.”

      Stephens v. Sommerville, 2021 ONSC 1958 (CanLII) at 37-39

“The Applicant has provided clinical notes and records from CAMH on which she relies to demonstrate her fragile mental state. In paragraph 17 of her affidavit, she said that she was “not in a proper mental state during the entire course of our relationship”.

This issue engages the legal concept of “capacity to marry”. In Calvert v Calvert 1997 CanLII 12096 (ON SC), [1997] 32 O.R. (3d) 281, (Ont. Gen. Div.) (Calvert), the court was focused on the issue of capacity to divorce. In that context, the court referred to Re Park Estate, [1953] 2 All ER. 1411 (Park). In both of those cases, the court also referred to capacity to marry. As those courts indicated, a person’s right of self-determination is an important philosophical and legal principle. Having reached the age of majority, it is presumed that a person has capacity. The contract of marriage has been described as “the essence of simplicity, not requiring a high degree of intelligence to comprehend”: Park at p. 1427. Courts are slow to take away a person’s right to decide, which is reflected in the low threshold the courts have set for the determination of capacity. To adapt the reasoning in Calvert, “the real question is whether Ms. Ives understood what she was doing on December 15, 2018.”

The Respondent and his cousin do not accept that the Applicant lacked capacity to marry.

I agree with the Respondent’s submissions. The fact that the Applicant was under treatment at CAMH that included the medications she has identified does not mean that she lacked capacity to marry. The evidence on this motion includes copies of the letters that the Applicant and her mother wrote, after the marriage, to support the sponsorship application. I will refer to that issue again below. However, for purposes of this ground for the annulment, the letters from the Applicant and her mother indicate that the Applicant was well aware of the proposal to marry, the arrangements for the wedding, and that, at the time of the wedding, she was happy to be married. The objective evidence of the photographs of the wedding and all of the other evidence indicate that the Applicant had capacity to marry.

In this case, the Applicant is challenging her own capacity. The burden is on her to provide sufficient evidence for the court to set aside the presumption of capacity. In the fall of 2018, she was under medical care, including significant medications. But the evidence meets the low threshold of proving capacity, namely that, on December 15, 2018, she understood that she was marrying the Respondent.”

         Ives v. Chubinidze, 2021 ONSC 1953 (CanLII) at 18-22

“The Applicant has filed case law indicating instances where access was restricted because of COVID protocol breaches.  Those cases are largely distinguishable.  In J.F. v. L.K., supra, the access parent had left out of his affidavit the protocols that she complied with and in light of the fact that there was evidence that she was in the sex trade, Charney J. suspended contact.  In the present case, the Respondent provided details of his compliance with COVID protocols and does not work in a risky profession.

In Blythe v Blythe, 2020 ONSC 2871, a decision made early in the COVID-19 crisis, the father’s employment as a bus driver were grounds for suspending access.  Because we now know more about the disease and mitigation measures, the latter decision might have been decided differently today:  see S.D.B. v. R.B.B., 2020 CarswellOnt 5278 (S.C.J.).

In A.T. v. V.S., 2020 ONSC 4198, the court found that the father was “not prepared to follow COVID-19 protocols in the future” (emphasis mine).  In the present case, Ms. Carey alleged previous breaches by the father of COVID protocols.  The order of January 5 was meant to address those earlier breaches.  The father in this case has now said that he will continue to obey COVID protocols and says he has done so since the date of the order. Unlike A.T., the consent order in this case was entered into to address future breaches (and it is also clear that Ms. Carey entered into the consent without any belief that the Respondent would comply with it).

In Abbas v. Downey, 2020 ONCJ 283, there was specific evidence of poor judgment by the father.  “Out of an abundance of caution”, O’Connell J. restricted access to virtual and telephone access only where the child was immunocompromised.

Importantly in that case, O’Connell J. said that the party seeking to restrict access should not use self-help, and should present evidence as follows:

There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, [2020] O.J. No. 2662.”

          Carey v. Bryan, 2021 ONSC 1923 (CanLII) at 28-32

“Costs orders are governed by Rule 24 of the Family Law Rules. Under Rule 24(1) there is a presumption that the successful party is entitled to costs. Subrule 24(11) sets out the factors the court must consider when fixing the amount of a costs order.

The courts have a broad discretion to award costs.  The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, s. 131(1), which sets out three specific principles:

a)       the costs of a case are in the discretion of the court;

b)       the court may determine by whom costs shall be paid; and,

c)       the court may determine to what extent the costs shall be paid.

Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan, 46 O.R. (3d) 330, 181 D.L.R. (4^th) 614, 1999 CanLII 2052, 1999 CarswellOnt 3955 (Ont. C.A.), para. 24:

a)      to indemnify successful litigants for the cost of litigation;

b)      to encourage settlement; and,

c)      to discourage and sanction inappropriate behaviour by litigants.

Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met, that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules.

Justice Pazaratz in Chomos v Hamilton 2016 ONSC 6232, set out the governing principles for costs:

1. 1. 1. 1. 8.    Rules 18 and 24 of the Family Law Rulesgovern the determination of both liability for costs and the amount of costs.  While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M. 2003 CanLII 18880 (ON CA), 2003 CanLII 18880 (Ont. C.A.); Andrews v. Andrews 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (Ont. C.A.); Wilson v. Kovalev 2016 ONSC (CanLII) (SCJ);
            9.   Rules 18 and 24, and most of the case law focus on two words:  “Success” and “Reasonableness”.  The latter entails two components:

a.   Reasonableness of behaviour by each party;

b.   Reasonableness of the amount of costs to be awarded;

10.  In Serra v. Serra, 2009 ONCA 395 (CanLII) the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

a.   To partially indemnify successful litigants for the cost of litigation.

b.   To encourage settlement; and,

c.   To discourage and sanction inappropriate behaviour by litigants;

11.   The assessment of costs is not a mechanical exercise.  It’s not just a question of adding up lawyer’s dockets: Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 2004 CanLII 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (CanLII), 2010 ONSC 1044 (SCJ); and,

12.   The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Selznick v Selznick, 2013 ONCA 35 (CanLII), 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 CanLII 36447(ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray, (2005) 2005 CanLII 46626 (ON CA), 2005 CanLII 46626 (Ont. C.A.); Guertin v Guertin, 2015 ONSC 5498 (CanLII), 2015 ONSC 5498 (SCJ).

The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained.  For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award.  The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called “outdated” since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps.  This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant.

The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently.  Because costs awards transfer some of the winner’s litigation expenses to the loser, rather than leaving each party’s expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims.  In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position.  These effects of the traditional rules can be connected to the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner.  In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs.

Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification.  An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer.  Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.

When awarded on a full recovery scale, costs can serve to express the court’s disapproval of unreasonable conduct during the litigation.”

            A.W. v. S.W., 2018 ONCJ 177 (CanLII) at 20-28

“When an order is made requiring a payor to pay table child support based on an imputed income, that, in itself, becomes controversial going forward.   Section 25 of the Child Support Guidelines requires a payor to produce annually, not more than once a year after the making of the order, disclosure referred to in s. 25 and in s. 21(1). As indicated below, I am modifying the disclosure he is required to provide to avoid disclosure becoming yet another area of conflict. As long as he remains self-employed, his documentation will continue to reflect a line 150 income that ought not to be the basis of establishing his table child support payment. I agree that Mr. S. must comply with s. 25 and s. 21(1) and provide disclosure.  However, the amount that Mr. S. is now ordered to pay for table child support will not change automatically dependent on his line 150 income because, so long as he is self-employed, his line 150 income may be below the minimum income and he would assert that he has no obligation to pay table amount of child support. That would not reflect his actual financial circumstances. While he will be required to disclose annually, the table child support amount will not change automatically each year. The amount ordered below will not be subject to change unless Ms. D. brings a motion to change final order that is granted. On that basis, Ms. D. will receive the annual disclosure but will decide whether it is worthwhile emotionally and financially to press for additional table amount of child support.”

         Y.M.S. v. M.D., 2021 ONSC 1710 (CanLII) at 338

“More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege:

This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [Emphasis added.]

This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda, [2006] O.J. No. 4671 (Small Claims).

…
In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1991 CanLII 7367 (ON CA), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants, at para. 18:

Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.]

In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2). The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1).

In RTC Engineering Consultants, this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.””

         AA v. BB, 2021 ONCA 147 (CanLII) at 28-29, 33-35