Siegel's Family Court Calendar

“The Children’s Lawyer is an independent crown law officer appointed by the Lieutenant Governor-in-Council on the recommendation of the Attorney General, to represent children within the administration of justice.  By order under section 38 of the Child and Family Services Act and subsection 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, a court has jurisdiction to obtain or request the appointment of counsel for the child to represent the child’s interests.

Upon receiving a case from the Children’s Lawyer, child’s counsel reviews information and advocates a position for the child client.  In addition:

	(a)	Child’s counsel receives authority to act under the court order requesting legal representation.
	(b)	Child’s counsel obtains the child’s views and preferences, if any, that the child is able to express.
	(c)	Child’s counsel does not represent the “best interests” of the child, it being the issue to be decided by the court.
	(d)	Child’s counsel is the “legal representative” of the child and is not a “litigation guardian” or “amicus curiae”.  And
	(e)	The relationship between child’s counsel and the child is a “solicitor-and-client” relationship.

In taking a position on behalf of the child, child’s counsel will ascertain the views and preferences of the child, if any, and will consider (I emphasize this):

	(a)	the independence, strength, and consistency of the child’s views and preferences.
	(b)	the circumstances surrounding the child’s views and preferences.  And
	(c)	all other relevant evidence about the child’s interests.”

Catholic Children’s Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 130, 132-133

“The case law is abundantly clear that in determining a valuation date, “no one factor is necessarily determinative of the issue of when the parties are separated.”: Neufeld v. Neufeld, 2019 ONSC 1277 at 74.

The case of Oswell v. Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278, provides guidance in assisting parties to determine a date of separation.  The Court noted as follows:

In deciding whether spouses are living separate and apart under the same roof, the court must decide when the parties ceased living as a “couple” and began to live separate lives.  The following factors should be considered:  there must be a physical separation; one or both spouses must withdraw from the matrimonial obligation with the intent of destroying the matrimonial consortium; the absence of sexual relations is not conclusive but is a factor to be considered; and the level of communication between the spouses must also be considered.  The parties led an active social life together and did not claim to be separated on their tax returns.  Based on the evidence, the parties did not live separate and apart with no real prospect of reconciliation until January 1988.  As a result, January 1988 was the valuation date under the Family Law Act.

I adopt the Court’s position in Oswell with respect to the important factors in assisting in the determination of the date of separation, which in the case at bar I find is April 2014.

In the case of Dai v. Ding, 2019 ONSC 6118, at para. 38, the court noted as follows:

Much of this case turns on credibility as the parties’ versions of various important fact scenarios are completely polarized. A judge has the overriding authority to determine credibility upon weighing all the factors. Considerable weight is placed on the extent to which the testimony is consistent with other, undisputed and proven facts in the case, but no one factor is determinative. Assessment of credibility is not a scientific process and involves a consideration of many relevant factors.

Paragraph 212 of Dai makes reference to the factors in Oswell which is the leading case with respect to factors to be considered in determining the date of separation.  In para. 212 the court noted as follows:

Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H.C.), remains the leading case with respect to the factors to be considered in determining the date of separation where spouses continue to occupy the same premises. In summary, the factors are as follows:

1.  There must be physical separation.

2.  There must be withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.

3.  The absence of sexual relations is not conclusive but a factors to be considered.

4. Other matters to be considered are the discussion of family problems and communication between the spouses, presence of absence of joint social activities, and the meal pattern

5.  Although the performance of household tasks is also a factor, help may be hired and for these tasks and greater weight should be given to those matters that are peculiar to the husband and wife relationship outlined above.”

Gibson v. Gibson, 2019 ONSC 4174 (CanLII) at 38-42

“In  Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada said that on a summary judgment motion, the judge must first determine whether there is a genuine issue requiring a trial based only on the written evidence before her. If that evidence allows the court to make a fair and just determination on the merits of the motion, there will be no genuine issue. The summary judgment process must allow the judge to make the necessary findings of fact, apply the law to the facts, and be a proportionate, more expeditious and less expensive means to a just result. If, on the other hand, there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion if doing so is consistent with the interests of justice. That will be so if their use will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

The Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, confirmed that the principles established in Hryniak apply to summary judgment motions in child protection cases but emphasized that fairness in child protection matters necessitates caution and consideration of the unique features of such cases including the best interests of the child.”

CAS v. K.M. and A.T., 2019 ONSC 4153 (CanLII) at 18-19

“The husband has not complied with the order of Lauwers J.A. He has made only partial payments since February 2017. The wife seeks a dismissal of the appeal.

This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders: see Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346; Nowacki v. Nowacki, 2015 CanLii 41092 (Ont. C.A.); Martyn v. Martyn, 2010 ONCA 730; Burley v. Burley, 2009 ONCA 2, 244 O.A.C. 198; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.”

Cosentino v. Cosentino, 2017 ONCA 593 (CanLII) at 7-8

“The Ontario Court of Appeal recently affirmed the elements necessary to prove the tort of intentional infliction of emotional distress: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.). The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:

1.   The defendant’s conduct was flagrant and outrageous;

2.   The defendant’s conduct was calculated to harm the plaintiff;

3.   The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.”

A.H. v. D.K. and E.A., 2018 ONSC 4173 (CanLII) at 62

“The application judge was obliged to identify and apply the legal test governing bad faith in this context. This he did not do. The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff’d 2010 ONCA 196 (CanLII) 2 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.”

         Scalia v. Scalia, 2015 ONCA 492 (CanLII) at 68

“A failure to consider relevant evidence can amount to a palpable and overriding error if the evidence was potentially significant to a material finding of fact: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, at para. 343, leave to appeal refused, [2004] S.C.C.A. No. 291.

Raymond argues that the motion judge failed to consider relevant evidence. He relies on the fact that the endorsement contains no reference to the police report that records suspicious circumstances, or to Raymond’s removal as a director of 92780. Raymond submits that this evidence was material to the motion judge’s determination of the issues of undue influence and suspicious circumstances.

I see no merit to the argument that the motion judge failed to consider relevant evidence. A judge is not required, in his or her reasons, to mention every single piece of evidence: R. v. C.(T.) (2005), 2005 CanLII 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 45.

         Vanier v. Vanier, 2017 ONCA 561 (CanLII) at 68-70

“It is critical for the Respondent father to take concrete steps to improve his relationship by focusing on his daughter’s needs and to gain the insight needed for him to do so.  To this end, I order that the Respondent father attend counselling with a professional parenting specialist of his choice.  This order is a permissible term of custody and access under s. 16(6) of the Divorce Act as it serves to promote the purpose of the Act which, amongst other things, is to protect a child’s emotional and psychological well-being.  In making this order I am mindful of the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 which I distinguish on the basis that it required both parents to jointly see a counsellor who, amongst other things, would make decisions about choice of schools, activities and hobbies for the children.  As Philip Epstein, Q.C., L.S.M., has also noted, the law permits a court to order counselling as incident of custody: Case Comment: L. (J.K.) v. S.(N.C.) and McAlister v. Jenkins, (2008), 54 R.F.L. (6^th) 163.”:

A.D. v. N.D., 2018 ONSC 4143 (CanLII) at 41

“The trial judge ordered that the child’s primary residence continue to be with the respondent (mother), with the father receiving only one overnight with the child per week and alternating weekends. In addition, while a joint custody order was made, the trial judge ordered that if the parties are unable to agree upon matters relating to the child’s physical, emotional and educational well-being, then “ultimately” those decisions are to be made by the mother.

We find that the trial judge erred in failing to address the “maximum contact” principle set out in s. 16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). That provision states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [Emphasis added.]

As noted by L’Heureux-Dubé J. in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at p. 53, dissenting in the result, the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests. See also: V. (B.) v. V. (P.), 2012 ONCA 262 (Ont. C.A.), at para. 15.

There is no reference to the maximum contact principle in the reasons for judgment. In light of the trial judge’s findings of fact, it is difficult to see that principle at work in the result.”

         Rigillo v. Rigillo, 2019 ONCA 548 (CanLII) at 2-5

“In order for the agreement to be a domestic contract, pursuant to section 55 of the Family Law Act, there must be an agreement, in writing, signed by the parties and witnessed.  This is not one of those cases.

Before entering into a discussion about settlement agreements made in the course of litigation it is important to discuss a contractual agreement, generally.  In order for there to be an agreement, there must be a meeting of the minds, on all essential elements, with an agreement that those terms be incorporated into a formal document.

In Geropolous v. Geropolous, 35 O.R. (2d) 763, 1982 CanLII 2020, the Court of Appeal was asked to decide whether an agreement contained in an exchange of correspondence between solicitors settling the claims in an action brought pursuant to the Family Law Reform Act, R.S.O. 1980, c. 152, was enforceable.

I share the view that settlement agreements concluded by solicitors or counsel resolving outstanding claims in pending litigation under the Act are beyond the reason and purview of s. 54(1).  The formal requirements laid down by the section are intended to ensure that asserted domestic contracts, be they marriage contracts (s. 51), cohabitation agreements (s. 52) or separation agreements (s. 53), are reduced to writing and in fact agreed to by the parties as evidenced by their witnessed signatures; this in essence is a statute of frauds type provision made referable to domestic contracts by the Family Law Reform Act.

In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court.  Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them; and ample protection is afforded the parties to these agreements, wholly independent of the section.  The court’s jurisdiction to enforce settlements or refuse to do so, notwithstanding any agreement between solicitors or counsel, is well established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court’s overriding jurisdiction with respect to domestic contracts; Scherer v. Paletta, supra; 3 Halsbury’s Laws of England, (4th ed.), paras. 1182-3; and ss. 18(4) and 55 of the Act. [Emphasis added]

In Gallacher v. Friesen, 2014 ONCA 399, 371 D.L.R. (4^th) 522, the Court of Appeal reviewed the law pertaining to s. 55(1).  Although related to a different fact scenario (the issue was whether the witness was present when the appellant signed the domestic contract), the court’s comments at paras. 25-27 are instructive:

The appellant submits that the syntax of s. 55(1) supports a strict reading of the provision.  He asserts that the general premise of the provision is that all domestic contracts are unenforceable, with an exception for domestic contracts that comply with the necessary formalities of execution.

The appellant’s approach to s. 55(1) of the FLA is inconsistent with this court’s observation in Bosch v. Bosch that the legislature intended to encourage rather than discourage domestic contracts.  A strict reading of s. 55(1) would also be inconsistent with this court’s recent judgment in Virc v. Blair, 2014 ONCA 392.  There, Pepall J.A. came to the conclusion that in comparison with s. 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the language of s. 55(1) of the FLA allows for a less strict application of the witnessing requirement.

Justice Pepall’s decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.”  [Emphasis added]”

         Aberback v. Bellin, 2019 ONSC 3866 (CanLII) at 19-22