Siegel's Family Court Calendar

“The question of when a judge should hear oral evidence when deciding an application under the Hague Convention has not been the subject of extensive judicial discussion in Canada. Typical is the statement of Little J. at para. 25 of In Mahler v. Mahler (1999), 1999 CanLII 14255 (MB QB), 3 R.F.L. (5th) 428 that “The Hague Convention procedures are summary ones and except in the most unusual of circumstances are based on affidavit evidence.”

It is worth noting that in Thomson, the application judge was asked but refused to order a trial on the issue of harm. The Supreme Court of Canada noted this fact in its description of the proceedings below but said no more about it.

In this court, in Cornfeld v. Cornfeld, [2001] O.J. No. 5773 (C.A.) the application judge refused to order a psychological assessment of the children requested by the mother to support the Article 13(b) exception. Charron J.A. in refusing to stay the order of return found that “the applications judge was justified in finding that the matter could, and should, be decided on the basis of the existing record.”

The jurisprudence of other jurisdictions is instructive. Lord Justice Thorpe of the Court of Appeal (Civil Division) of England and Wales succinctly stated what I consider the proper approach in Re W (a Child). At para. 23 he said:

The experience and the instinct of the trial judge is always to protect the child and to pursue the welfare of the child. That instinct and experience sometimes is challenged by the international obligation to apply strict boundaries in the determination of an application for summary return. The authorities do restrain the judges from admitting oral evidence except in exceptional cases. The authorities do restrain the judges from making too ready judgments upon written statements that set out conflicting accounts of adult relationships. What the authorities do not do is to inhibit the judge from himself or herself requiring oral evidence in a case where the judge conceives that oral evidence might be determinative. The judge’s conduct of the proceedings is not to be restricted by tactical or strategic decisions taken by the parties. However, to warrant oral exploration of written evidence, the judge must be satisfied that there is a realistic possibility that oral evidence will establish an Article 13(b) case that is only embryonic on the written material.”

Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at 33-36

“The Ontario Court of Appeal has reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.), Serra v. Serra, 2009 ONCA 395 and Mattina v. Mattina, 2018 ONCA 867 (C.A.).  In those cases, the court held that modern rules respecting costs aim to foster the following four fundamental purposes:

1. 1. 1. 1. 1. To partially indemnify successful litigants for the cost of litigation;
            2. To encourage settlement;
            3. To discourage and sanction inappropriate behaviour by litigants;  and
            4. To ensure that cases are dealt with justly, in accordance with the primary objective of the Family Law Rulesset out in Rule 2(2).

While these four objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice.  Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.); Climans v. Latner, 2020 ONCA 554 (C.A.), at para. 90).

The Court of Appeal has highlighted the discretionary nature of costs awards and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews (1980), 1980 CanLII 1913 (ON CA), 32 O.R. (2d) 29 (C.A.)).  It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181, 2003 CarswellOnt 3606 (C.A.);  Fielding v. Fielding, 2015 ONCA 901 (C.A.).

The determination of costs is a two-stage process.  First, the court must decide whether any party is liable for costs.  If costs liability is established, the court must then determine the appropriate amount of the costs award.  Rule 24(10) of the Family Law Rules establishes the general principle that the court shall promptly after dealing with a step in the case determine in a summary manner who, if anyone, is entitled to costs in relation to that step and set the amount of any costs, or alternatively shall expressly reserve the decision on costs for determination at a later stage in the case.   However, Rule 24(11) provides that the court’s failure to act pursuant to Rule 24(10) in relation to a step in the case does not prevent a judge from awarding costs in relation to the step at a later stage in the case.”

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 10-13

“From a child’s perspective, joint custody has an inherent appeal.  It allows each parent to be actively involved in the child’s life, and to have meaningful input with respect to important decisions.  It may help ameliorate a child’s sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally.  Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.

But joint custody will only work if the parents have the desire and the capacity to make it work.  It is not a risk-free option.  In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles.  Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency.  They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 503-504

“Although the grandmother may bring an application for access, she does not have a legal right of access. To be successful she must show that access is in her granddaughter’s best interests. Further the court will give considerable weight to the wishes of the custodial parent. Chapman v. Chapman, 15 RFL (5^th) (Ont. C.A.).

The case law supports that the following must be established: does a positive grandparent grandchild relationship already exist; has the parents’ decision to terminate access imperiled the positive grandparent grandchild relationship and has the parent acted arbitrarily. Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184.

Elements of a positive relationship have been summarized as: a strong loving tie between the child and grandparent; the relationship must be constructive in the sense it is worth preserving but if relationships are too poisoned the relationship may not be capable for preserving: the child’s age and the last time the child saw the grandparents. Torabi v. Patterson, 2016 ONCJ 210.”

            Beckwith v. Beckwith et al, 2019 ONSC 6470 (CanLII) at 6-8

“At the outset of the trial, the Respondent brought a motion for an order initializing the names of the parties in this proceeding. The Applicant consented to the motion.

An order initializing the names of parties to a proceeding is a restriction on the open court principle which is fundamental to the Canadian justice system and protected by s. 2(b) of the Canadian Charter of Rights and Freedoms: Vancouver Sun (Re), 2004 SCC 43 (CanLII), [2004] 2 S.C.R. 332. Regardless of the Applicant’s consent, I must still determine whether the Respondent has met the test for an order initializing the parties’ names.

In Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 the Supreme Court of Canada set out a two part test to be applied where a court is asked to order that public access to a court file be limited or restricted. Because of the importance of the open court principle in the common law and our democratic society, the test for restricting public access to judicial proceedings is a stringent one. The party seeking an order restricting access to the file must establish that:

1. 1. 1. 1. 1. The order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and,
            2. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The Respondent argues that the parties’ identities should be protected because there is a risk of harm to the safety and security of future children or family members of both parties if they were to learn the details of this case.

The Applicant is 41 years old. The Respondent is 63 years old. There is no evidence before the Court that either party has children or that a serious risk of emotional or other harm would result if any of their respective adult family members were to discover the existence and facts of this case.

The Respondent may be embarrassed and not want the details of his private life to be part of the public court record, but this is not sufficient to justify limiting the open court principle. “A litigant’s personal interest in keeping certain litigation details private cannot establish the “necessity” branch of the Dagenais/Mentuck test. Rather, the jeopardized interest must have a public component…there must be convincing evidence of harm to the administration of justice.”:  L.C.F. v. G.F. 2016 ONSC 6732 at paras. 32, 36 and 37.

I find that the Respondent has not met the test in Dagenais/Mentuck. The motion for an order initializing the names of the parties is dismissed.”

            Hart v. Fullarton, 2020 ONSC 6804 (CanLII) at 4-10

“A joint owner of a property has a prima facie right to have the property sold. However, when the property is a matrimonial home, one owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold: Mignella, para. 23, Goldman v. Kudeyla, 2011 ONSC 2718, at para. 17.

As McGee J. noted in Goldman at para. 19, there have been many cases where the court has denied interim motions for sale. In each, there were compelling circumstances favouring the party resisting the sale, such as the availability of trial in a short period of time, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child.

McGee J. also noted that orders for the sale of the home should not be made as a matter of course. She wrote, at para. 20:

One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”

            Barbieri v. Vistoli, 2019 ONSC 6385 (CanLII) at 97-99

“The applicant wife seeks an order that the respondent husband pay her $150,000 within 30 days to cover interim disbursements.

Family Law Rule 24(12) states that “[t]he court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.”

Rule 24(12) is discretionary. In exercising discretion under rule 24(12), the court must ensure that the primary objective of fairness as set out in rules 2(2) and (3) is met. Specifically, the court must deal with cases justly and ensure that the procedure is fair to all parties. As Mesbur J. stated in Ludmer v. Ludmer, 2012 ONSC 4478 at para.14, “One of the primary themes of the case law is that orders may be required in order to ‘level the playing field’ between the litigants.”

The party seeking a payment under rule 24(12) does not have to prove that exceptional circumstances exist. Instead, the respondent must satisfy the following factors (see Stuart v. Stuart (2001), 2001 CanLII 28261 (ON SC), 24 R.F.L. (5th) 188 at para. 8; Ludmer at paras.15-17; Sadlier v. Carey, 2015 ONSC 3537 at paras. 34-38 and Turk v. Turk, 2016 ONSC 4210 at paras. 4, 24; McCain v. Melanson, 2017 ONSC 916 at paras. 2 to 4):

1. 1. 1. 1. 1. On a balance of probabilities, the moving party’s claim/defence has sufficient merit.
            2.  The legal fees are necessary and reasonable given the needs of the case and the funds available.
            3.  The moving party is incapable of funding the requested amount.”

Ballanger v. Ballanger, 2017 ONSC 6642 (CanLII) at 28-31

“This court can order that a litigation guardian for a person under disability pay the costs of an appeal.  See s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C-43, rule 57.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and Cameron (Public Guardian and Trustee of) v. Louden, [2002] O.J No. 2184 (Ont. S.C.J.).  In Cameron, Aitken J. thoroughly canvassed the applicable case law and competing policy concerns in ordering a statutory litigation guardian to pay the costs of an unsuccessful party under a disability.  The court has to ensure that the Public Guardian and Trustee is not unreasonably deterred from carrying out its duties by exposure to a costs order.  On the other hand, the court has to ensure that the Public Guardian and Trustee does not pursue frivolous litigation or otherwise act improperly at the expense of the opposing party.”

Hockey-Sweeney v. Sweeney, 2004 CanLII 34840 (ON CA) at 37

“In Greaves v. Greaves, 2004 CanLII 25489 (SCJ), Mesbur, J. was guided by the criteria defined by Weiler, J. (as she then was) in Oswell v. Oswell (1990), 74 O.R. (2^nd) (15) (H.C.J.), affirmed at (1992), 12 O. R. (3^rd) (95) (Ont. C. A.) to determine the date of separation.  Mesbur, J. framed this criteria in paragraph 34 of Greaves as follows:

34.   It is true that every marriage is different.  Parties can live apart under the same roof, and can still cohabit even if they live in separate locations.  The court must look at various objective factors to determine if the parties are living apart or not.  Oswell v. Oswell[5] perhaps best sets out the criteria for the court to consider.  These include the following:

(a)   there must be a physical separation…  Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b)   there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

(c)   the absence of sexual relations is not conclusive but is a factor to be considered;

(d)    other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(e)     Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f)      The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

In Greaves, Mesbur, J. did not find the presence or occurrence of a consistent sexual relationship to be determinative when she explained that:

37.   I accept the evidence of Mr. Greaves’ witnesses confirming the objective perception that this couple was separated.  They did not socialize as a couple.  They did not routinely eat together as a family.  They did not attend the same church.  Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be.

Heeney, J. in Tokaji v. Tokaji, [2016] O.J. No. 6547 relied on the quotation above taken from Greaves when called upon to consider several aspects of the lives of the parties to determine if their cohabitation was continual.  He considered the absence or presence of ongoing sexual relations to be indicative but not conclusive.  He also considered all aspects of their life with respect to purchasing a home an moving in together and expressions of intent to make the marriage work.  Heeney J. concluded that there remained a “reasonable prospect of presumption of cohabitation” until the husband in that case announced that he would not participate in marriage counselling. Heeney, J. based his finding that the parties had finally separated upon the happening of that event.”

            N.L.-C. v. J.C., 2019 ONSC 6207 (CanLII) at 83-85

“There is a high hurdle to overcome for a claim to succeed under s. 5(6) on the basis of marital infidelity. I concur with the view of Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 (CanLII), 55 R.F.L. (7th) 117, at paras. 46 and 49:

All of the provisions of section 5(6) are directly linked to the impact on one or both spouses’ debts, liabilities, or property. A general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient. … It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else.

…

However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. … Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

Therefore, while the threshold is high, two matters are clear. First, the determination can only be made after the usual equalization payment is calculated. It is that calculation that must result in unconscionability. By definition, therefore, this determination cannot be made on a pleadings motion; it can only be made once the equalization payment is known. This explains why the cases relied upon by the motions judge to strike the claim were trial judgments.”.

Frick v. Frick, 2016 ONCA 799 (CanLII) at 32-33