Siegel's Family Court Calendar

“It is clear that Darryl believes that the COVID-19 pandemic is a hoax and/or is being exaggerated by improvidently intentioned governments at all levels and by the media.  He also believes masks are not only unnecessary but pose a greater health care risk.

Darryl is entitled to his opinions.  He is entitled to express those opinions by lawful means.  However, it is not Darryl’s opinions alone that are at issue before the court.  Rather, at issue is whether Darryl’s conduct in public poses a risk to the best interests of his children.

Darryl is not only opposed to wearing masks but is boastful online about his anti-masking behaviour.  As well, he has been in the public at rallies and in day-to-day activities not wearing a mask, or otherwise engaging in social distancing.

As a result of this information, Christina seeks to be awarded interim custody of the children.  She claims Darryl’s conduct puts the children at risk of acquiring COVID-19.

She submits that the court should make an order limiting Darryl to only have access to the children at the Supervised Access Centre provided he agrees to COVID-19 protections.  If that is ordered, Darryl and the children will be required to wear masks and maintain proper social distancing during access visits in order to minimize the risk of either child acquiring the COVID-19 virus.

On a review and assessment of the evidence, I have concluded that the respondent’s behaviour is dictated by his world view. Everything else is subordinate to that view, including, but not limited to, his love for his children. He makes repeated assertions that they need to be permitted to spend more time with him and that time should not be supervised. However, he is not prepared to take steps to protect himself in public at all times; not only is he not taking precautionary steps, by his own evidence, he is attending public protests, unmasked, and taking other inappropriate steps. He readily admits, and is active online, confirming, even bragging, that he is engaging in actions and behaviours in the community while unmasked.

During the hearing of these motions, Darryl indicated to the court that he had a “medical reason” for not wearing a mask. When the court inquired as to the nature of that medical exemption, he indicated that the reason was private, medical information, that he did not have to disclose.

If Darryl has a bona fide medical reason to be exempt from wearing a mask, that is one thing. However, it is evident from his online postings that his purported medical exemption is not the product of a medical diagnosis, but rather convoluted logic based on belief.  As he indicated when he posted about his maskless attendance at Zehrs – “I have this pre-existing condition for standing up for rights.” In effect, he has characterized his personal opposition to wearing a mask to a form of medical pre-existing condition. I do not accept this as in any way constituting the type of bona fide medical exemption currently recognized in Ontario.

At this time of a serious health crisis, the best interests of Andrew and Gloria demand that their mother, Christina, be awarded sole custody on an interim and without prejudice basis.

There are many reasons for awarding Christina custody in this respect.  One reason is that should medical issues arise, Christina must have the ability to make decisions with the advice of physicians, and other medical personnel, that are in the best interests of the children. This is a reason that has come to play because Andrew has recently suffered an injury. Another reason is when a COVID-19 vaccine is made available, Christina must have the sole decision-making authority and responsibility with medical advice in this regard.

Darryl’s opinions and amplification of those views are one thing. His conduct requires that Christina temporarily have sole custody to make all necessary decisions relating to, but not limited to, health care, schooling, and receiving a vaccine- when they are eligible.

It is noteworthy, this is a temporary order.  It is fully related to the ongoing COVID-19 pandemic and the respondent’s public behaviour.  The issues of custody, residency, access, and responsibility for decision-making can be revisited once the myriad of health concerns arising from the COVID-19 pandemic subside.”

         Burrell v. Burrell, 2021 ONSC 681 (CanLII) at 28-40

“For reasons that are unclear to me the parties are engaging in an expensive and litigious process in what should be a straightforward case.  I query whether the fees they have incurred will significantly exceed whatever costs may be ordered at some point down the road.

…

The case is indicative of the culture of unreasonableness that plagues the Court.  This culture is particularly problematic given the current challenges and delays faced by litigants in gaining access to justice.  Other flagrant examples include:

(a)     failing to file any conference materials and/or Confirmation notices;

(b)     ignoring the line spacing and font size so as to “comply” with the page limits;

(c)    circumventing page limitations by directing the judge to earlier affidavits;

(d)     bringing “urgent” motions that are not urgent, and attempting to squeeze long motions into one hour slots;

(e)     seeking last minute adjournments based on information known weeks in advance;

(f)      failing to advise the Court until the morning of a matter that the case has settled when the Minutes of Settlement were executed days before;

(g)     using the Court’s limited resources to further the delay, delay, delay game;

(h)     seeking costs in amounts that are unreasonable and not proportionate;

(i)     requesting relief that is extreme, not child-focused and unrealistic; and

(j)      playing “good cop, bad cop” with the judge delivering the unfavourable opinion rather than the client’s legal advisor.

It seems that, for some counsel, the days of valuing one’s reputation over success in any particular file may be gone.  Given the current state of rapid transformation of the Court, coupled with additional unspecified future changes, that is unfortunate.

Civility inside and outside of the courtroom, and respect for colleagues and the Court, are vitally important to the successful functioning of the Family Justice system.

Enough is enough.”

         Schieder v. Gajewczyk, 2021 ONSC 635 (CanLII) at 9, 11-14

“The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases’ timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed.

Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court’s injunction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices.

There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order.”

         Louis v. Poitras, 2021 ONCA 49 (CanLII) at 1-3

“This is a case involving a variation under the Family Law Act (the parties never having divorced). As Justice MacLeod found in Charleton vs. Coburn, 2016 ONSC 5415 at paragraph 32:

[32]       While L.M.P. v. L.S. dealt with variation under the Divorce Act, the principles are similar under the Family Law Act. The Supreme Court has said that on a variation of a spousal support order, the objective is to determine the appropriate change required as a result of the material change. It is not a review of support de novo. The Court adopted the analysis in Miglin that judges making variation orders limit themselves to making the appropriate variation but do not weigh all of the factors required by s. 15. Moreover, the analysis is the same whether the original order was the result of adjudication or of a settlement. In either case, unless a party is seeking rescission, there is a presumption that the original order was correct and in accordance with the objective of the Act. There is no reason not to apply the same analysis to an order under the Family Law Act.”

            Letkeman v. Bainbridge, 2020 ONSC 508 (CanLII) at 14

“The risk of mischief on a virtual examination is an area which has yet to be fully explored, although the possibility has been adverted to. Myers, J. in Arconti et al. v. Smith et al, 2020 ONSC 2782, did not disallow the use of a virtual examination just because of the risk of mischief, but was certainly aware of the possibility when he said, at para. 25:

I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

It is clear that the use of virtual examinations will continue by this Court and will become the norm for the foreseeable future. Even when the pandemic is behind us, the comfort level we have all gained with this form of technology is such that it is likely to continue to be a strong option for parties, particularly where a witness is out of country, out of province or has mobility or health issues.

Given the inevitable future of virtual examinations in the legal system, it is up to the judiciary, as its gatekeepers, to ensure that this tool is not abused nor seen to undermine our globally admired legal system.

…

The integrity of the fact-finding process must be maintained. This includes the fact-finding process on virtual cross-examinations. This mischief could only have happened on a virtual examination. In a face-to-face examination, examining counsel has control over who is and is not present at the examination.”

         Kaushal v. Vasudeva et al, 2021 ONSC 440 (CanLII) at 54-56 & 60

“When a party fails to comply with a court order, Family Law Rule 1(8) gives the court the power to make “any order that it considers necessary for a just determination of the matter”. This includes an order striking the pleading.

A pleading should only be struck in circumstances that are “exceptional and egregious”.

As the court stated in Manchanda v. Thethi, 2016 ONCA 909 at para. 13, the obligation to disclose financial information is the most basic obligation in a family law proceeding. The obligation is strict, immediate and ongoing. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. A party who chooses “not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

In Roberts v. Roberts, 2015 ONCA 450 at para.12, the court warned that the “[f]ailure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.” Further, it should not be necessary to issue court orders to obtain compliance with this immediate obligation.

In Norris vs. Norris, 2019 ONSC 2795 at para 20 the court set out a three-step test governing the exercise of judicial discretion to strike a party’s pleadings:

1. 1. 1. 1. 1.    Is there a triggering event justifying the striking of pleadings?
            2.    Is it appropriate to strike the pleadings in the circumstances of the case?
            3.    Are there other remedies in lieu of striking pleadings that might suffice?”

         McCormack v. Fishbayn, 2020 ONSC 351 (CanLII) at 64-68

“Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:

2. Who may be compelled to make partition or sale

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3(1) Who may bring action or make application for partition

Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

In Batler v. Batler (1988), 1988 CanLII 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.), Grainger J. held that a joint tenant has a prima facie right to sale prior to trial.  This right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.

Grainger J. held that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession, or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale.

The Court of Appeal addressed the issue further in both Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 and Martin v. Martin (1990), 1990 CanLII 1225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff’d at (1991), 1991 CanLII 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.). The Court recognized that a joint owner has a prima facie right to partition and sale; however, as stated by the court in Silva at para. 23:

… where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A.  Putting it more broadly, the application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

In Martin, the Ontario Court of Appeal confirmed that the sale of the matrimonial home prior to trial should not be made as a matter of course. At para. 26:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders.  In my view, an order directing the sale of the matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate.  Orders for the sale of the matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization) should not be made as a matter of course.  See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.).  In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. See Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).

The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible See Kereluk v. Kereluk 2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.

Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. See Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).

A pending equalization claim may also be relevant. While the court cannot compel one joint tenant to sell to the other, or give either joint tenant a right of first refusal, a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable, a sale should be delayed to allow proper consideration of that option. See Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).”

            Dombrowski v. Dombrowski, 2021 ONSC 445 (CanLII) at 34-42

“The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. The failure to abide by this fundamental principle impedes the progress of the action; causes delay; disadvantages the opposing party; and impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6.

Indifference or willful blindness to the most basic disclosure obligations is more than a nuisance or irritant. Such contemptuous behaviour undermines the integrity of the court process and public confidence in our system. To the extent that inadequate disclosure creates a strategic advantage — by causing delay, frustration and needless expense for the opposing party — the court has both an obligation and a self-interest to severely sanction such mischief: see Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111.”

         Taylor v. Schultz, 2021 ONSC 334 (CanLII) at 27-28

“The Court of Appeal for Ontario has stated in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47 that

…the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: (citations omitted).”

         M.M. v. E.M., 2020 ONSC 352 (CanLII) at 147

“As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence.

The most common internet definition of a spoofed email is when the email address in the “From” field is not that of the sender. It is easy to spoof an email, and not always so easy to detect. For sophisticated senders – such as actors who are “phishing” for information of commercial value – the origins of a spoofed email may never be detected.

Spoofing originates from the idea of a hoax or a parody, and in the early days of the internet, it was a legitimate tool for managing communications so that a user believed that an email came from one source, when it actually came from another.

Spoofing first arose as a term in family law (more commonly referred to in the U.S.A. as divorce law) to describe cell phone users hiding their identity and/or location for nefarious purposes. As a result of advances in mobile apps, websites, forwarding services and other technologies, callers are now able to change how their voice sounds, to evade a blocked number or to pretend to be a person or institution with whom their target was familiar. Targets can be tricked into disclosing sensitive information, harassed, stalked and frightened.

Any electronic medium can be spoofed:  texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents.

What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage.

In R. v. C. B., the Ontario Court of Appeal foreshadowed the relevance of inauthentic electronic evidence. “[T]endered as bogus” is a critical catch that is not always apparent. A party’s lament that “it wasn’t me” may appear credible at one stage of the proceeding but may no longer be credible at a later stage. An email or text that on first reading appears authentic might later be found to be inauthentic when examined within the evidence as a whole.

Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence:  direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.

In a digital landscape, spoofing is the new “catch-me-if-you-can” game of credibility.

I urge lawyers, family service providers and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well. High conflict litigation not only damages kids and diminishes parents; it weakens society as a whole, for generations to come.”

 “Whether a solicitor-client relationship exists is a question of fact. A formal, written retainer agreement is neither necessary nor determinative. The issue is “whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd v General Motors of Canada Ltd, 2015 ONSC 3824 at para 413, citing Jeffers v Calico Compression Systems, 2002 ABQB 72 at para 8.

In determining whether a solicitor-client relationship exists, the following indicia are considered, although not all indicia need be present:

(a) the existence of a contract or retainer;

(b) a file opened by the lawyer;

(c) meetings between the lawyer and the party;

(d) correspondence between the lawyer and the party;

(e) a bill rendered by the lawyer to the party;

(f) a bill paid by the party;

(g) instructions given by the party to the lawyer;

(h) the lawyer acting on the instructions given;

(i) statements made by the lawyer that the lawyer is acting for the party;

(j) a reasonable expectation by the party about the lawyer’s role;

(k) legal advice given;

(l) any legal documents created for the party;

(m) the party’s vested interest in the outcome of the proceeding; and

(n) the belief of other parties to the litigation that the party was represented by the lawyer.

See Jeffers, supra at para 8; Trillium, supra at para 412; Rye & Partners v 1041977 Ontario Inc., [2002] OJ No. 4518 at paras. 13-14.”

Lenihan v. Shankar, 2021 ONSC 330 (CanLii) at 247-256