Siegel's Family Court Calendar

“In the motion before the court, Nathalie Mouralian asks the court to appoint a “litigation guardian counsel” for the purpose of assisting her with her appeal in the underlying proceeding. The evidence in support of her motion shows that she suffers from serious mental health challenges as well as a “brain injury/severe concussion” suffered from an accident in 2021.

The responding party does not oppose the motion.

Nonetheless, the motion is dismissed for two reasons.

First, in answer to the court’s questions, Ms. Mouralian confirmed that she needs counsel, not simply a litigation guardian, to assist her with the underlying appeal. I have not been pointed to any authority giving this court the power to appoint a litigation guardian counsel.

Second, if Ms. Mouralian is seeking the appointment of a litigation guardian pursuant to r. 7.04(1) of the Rules of Civil Procedure, it is not clear to me that the provision gives this court the jurisdiction to make such an appointment. Assuming that it does, s. 7.04(1)(b) is the applicable provision. Pursuant to that provision, the court must be satisfied that Ms. Mouralian “is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding”. The medical evidence filed in support of the motion does not contain a medical opinion to that effect. Instead, the evidence of Ms. Mouralian’s treating psychiatrist sets out her psychiatric diagnoses and other medical problems.”

            Mouralian v. Groleau, 2023 ONCA 513 (CanLII) at 1-5

“The parties consent to an urgent order requiring Toronto Children’s Aid Society to provide them with a copy of its file including a staff report concerning the parties and the issues in this proceeding by August 1, 2023.

The next case conference in this proceeding is scheduled for August 11, 2023.

Toronto Children’s Aid Society has advised the parties that its document disclosure department is backlogged. It cannot provide the parties with a copy of its file and the report about their family before the case conference.

I am told however, that people at the Toronto Children’s Aid Society have advised the respondent and one of the respondent’s lawyer’s offices that they could expedite delivery of the report in time for the case conference if the court ordered it to do so.

So, the parties ask me for that order.

On what basis am I asked to make an order against Toronto Children’s Aid Society?

If I am to order Toronto Children’s Aid Society to do something, do I not first need to find that they are in breach of a law requiring it to do so?

By what standards am I to assess the requirement for such an order?

Are counsel inviting me to make an assessment of the urgency of this case to determine if the parties truly need their file and report more than others in the queue at Toronto Children’s Aid Society? A simple consent order tells me nothing of the urgency for the file and the report either in this case or as compared to others in the queue.

Moreover, isn’t it for Toronto Children’s Aid Society to triage its own workflow? Am I being asked to consider if Toronto Children’s Aid Society is meeting its disclosure obligations? Is that a performance standards issue or perhaps a staffing issue? Is it an issue of prioritization of resource allocation? None of that is possibly before me.

Am I being asked for an order simply to give plausible deniability to a Toronto Children’s Aid Society clerk who can blame the court for deferring disclosure to others while jumping this report to the top of the disclosure pile?

A court order is not a shield behind which to hide institutional issues. If Toronto Children’s Aid Society cannot disclose its files quickly, the answer is not for clients who can afford lawyers to obtain artificial consent orders to expedite their cases ahead of all others. Toronto Children’s Aid Society should not be asked to prioritize disclosure to the squeaky wheel or the well-heeled. Toronto Children’s Aid Society is able to prioritize disclosure requests for those with early upcoming case conferences if it wishes to do so. There is no justiciable issue presented to the court in this motion.

If the parties seek relief against Toronto Children’s Aid Society, they may move on notice to it and with proper evidence and legal support for the relief sought. Moreover, if counsel are seeking to require a public entity to comply with a legal duty with which it refuses to comply, they may also wish to consider whether the proper application is for judicial review in the nature of mandamus or a mandatory order.”

            Jamali v. Parsamehr, 2023 ONSC 4324 (CanLII) at 1-13

“Under the law of privilege, there are authorities that hold where a party’s knowledge is in issue, that party must reveal what he knows, even if the knowledge is  from his solicitor. At the same time, those authorities recognize that disclosing this knowledge from that source is inherently problematic as the solicitor-client communication itself is privileged unless it falls within an exception. One such exception is where the initiating party contesting disclosure has put into issue the question of what legal advice he did or did not receive, thus waiving the solicitor-client privilege that might otherwise applied.  See Jonas v. Pacitto, 2020 ONCA 727 (CanLII).

When determining whether privilege has been or should be deemed to be waived, the court must find the balance between the interests of full disclosure to the parties involved in the adversarial process to ensure a fair trial (or motion for summary judgment), and the preservation of solicitor and client privilege. When a party places her or his state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.  This waiver can arise where the document (or evidence) is used as the basis for a claim or defence: James v. Maloney, 1972 CanLII 518 (SCJ).”

            Capar v. Vujnovic, 2021 ONSC 4713 (CanLII) at 52-53

“Section 52(1) of the Family Law Act provides that two persons who are married to each other may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation.  This includes the rights and obligations of the parties in relation to the ownership in, or division of property.

Any challenge to set aside or to nullify a marriage contract in Ontario is brought under s. 56(4) of the Family Law Act.  Section 56(4) reads as follows:

               Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant   assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

The proper approach on an application to set aside a marriage contract under s. 56(4) involves a two step process.  First, the party seeking to set aside a marriage contract must demonstrate to the court that one of the listed circumstances within s. 56(4) has been engaged.  Second, the court must then consider whether it is appropriate to exercise its discretion in favour of setting aside the agreement or a provision within it.  When exercising discretion under this second step, fairness between the parties is a guiding consideration.  See Moses Estate v. Metzer, 2017 ONCA 767 and LeVan v. LeVan, 2008 ONCA 388.

It is reasonable for the court to rely on the plain reading of the marriage contract for the purpose of determining whether the court should uphold the agreement or to enforce its terms: Peerenboom v. Peerenboom, 2020 ONCA 240 at para 62 and Hartstein v. Ricottone, 2016 ONCA 913.

In Toscano v. Toscano, 2015 ONSC 487, Blishen J. of this court confirmed that the burden of proof to set aside a domestic contract is on the party seeking to set it aside.

Mr. Capar submits that Ms. Vujnovic made no financial disclosure of the value of the Grey Owl Property she was seeking to exclude from any equalization process at the time they entered the marriage contract.  This is the sole asset at issue on the marriage contract issue in the application, and on this motion.

Ms. Vujnovic argues that, to the contrary, awareness of the other party’s assets is sufficient to avoid setting aside an agreement: Quinn v. Epstein Cole LLP, 2007 CanLII 45714 (ON SC); and Butty v. Butty, 2009 ONCA 852.      As Raikes J. observed in Golton v. Golton, 2018 ONSC 6245, those authorities make it clear that a party cannot enter a marriage contract knowing of shortcomings in disclosure beforehand, and then rely on those shortcomings when attempting to set the agreement aside.  Individuals are expected to conduct their due diligence in a timely fashion, and will be held accountable for their failure to ask obvious questions.”

            Capar v. Vujnovic, 2021 ONSC 4713 (CanLII) at 45-51

“Every breakdown in the lawyer-client relationship occasions – to one degree or other – stress and anxiety for both the client and the lawyer.  The client is faced with, among other things, having to retain new counsel or be self-represented.  The lawyer is faced with, among other things, possibly unrecoverable accounts.  On the lawyer’s end of things, there is an inherent conflict between its interests and its obligation as fiduciary.  Despite that conflict, however, counsel are subject to continuing obligations to their clients both during and after their retainers (see: TSX Trust Company v Fiorentino, 2023 ONSC 2560, at para. 5).”

            Smoljan et al. v. Branion et al., 2023 ONSC 4246 (CanLII) at 10

“A parent who engages in self-help tactics despite the best interests of the children will generally raise serious questions about their own parenting skills and judgment. See: Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ); Rifai v. Green, 2014 ONSC 1377 (CanLII).”

            Shapovalov v. Pantelousis, 2023 ONCJ 323 (CanLII) at 96

“The applicant argues that there has been a material change in circumstances since the making of the Final Order; specifically, that his income has increased by almost 50%.  Therefore, he submits, payment of the table amount based on his actual income would be inappropriate and the Final Order should be varied so that his income for child support purposes is capped at $2,100,000.00.  The applicant argues that, without this cap, the amount of child support payable would exceed the children’s actual needs and would constitute improper “wealth transfer” from him to the respondent.

The respondent argues that there has been no material change in circumstances since the making of the Final Order, as changes in the applicant’s income for child support purposes were anticipated and expressly provided for in the Final Order.  Therefore, she submits, there is no basis to vary the Final Order, which should be enforced in accordance with its terms.

Law

The federal child support regime “contemplates that the family as a whole – including the children – will share the rising and falling fortunes of the payor parent” and s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is one mechanism by which child support orders can periodically be varied to “bring them in line with financial realities” (see: Colucci v Colucci, 2021 SCC 24, at paras. 28-29).

On a motion to change under s. 17, the threshold question is whether there has been a material change in circumstances since the making of the order sought to be varied, without which there is no power to vary (see: Assayag-Shneer v Shneer, 2023 ONCA 14, at para. 6).

Any party seeking such a variation must demonstrate a past change in circumstances as set out in s. 14 of the Federal Child Support Guidelines or one that, “if known at the time, would probably have resulted in different terms” (see: Colucci, at paras. 59-61).  To meet the applicable threshold, a change in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (see: Colucci, at para. 61).

Decision

The case-at-bar presents – at least, as far as I am aware – a singularly unique situation where a party seeks retroactive variation of a final child support order to effectively reduce the amount of child support payable based on an increase in his income.  I was directed to no authority on point and my own research has disclosed none.”

            Lantz v. Lantz, 2023 ONSC 4220 (CanLII) at 12-17

“In order to establish ineffective assistance of counsel as a ground of appeal, an appellant must satisfy the court on a balance of probabilities that trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice. A miscarriage of justice occurs when the ineffective representation undermines the appearance of the fairness of the trial, or the reliability of the result — in the sense that there is a reasonable probability that the result would have been different had there been effective representation: R. v. Archer (2005), 203 O.A.C. 56 (C.A.), at paras. 119-20.”

            Bors v. Bors, 2021 ONCA 513 (CanLII) at 48

“Costs incurred for the purposes of support are enforceable by the Family Responsibility Office (“FRO”) pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31(“Act”); see also Wildman v Wildman (2006), 82. O.R. (3d) 401 (C.A.); Scipione v Scipione 2015 ONSC 5982 at para. 142.”

            Duggan v. Duggan, 2022 ONSC 4184 (CanLII) at 18

“A Hague Order for the return of children does, and should, not be conflated with a custody Order because the purpose of the Convention is to return a child to the jurisdiction most appropriate to determining parenting issues: Balev, at para. 24. This does not mean, however, that the court should ignore “best interests”: rather the “grave risk” exception analysis is more focussed than the broader consideration of which parent is best able to meet a child’s needs. As observed by Horkins J. in Stefanska v. Chyzynski, 2020 ONSC 3048, at para. 62, any “interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Convention”. An in-depth analysis of the parties’ history is inappropriate: Leigh v. Rubio, 2022 ONCA 582, at para. 25. It is through this lens that the reference in Paschel to importing a “best interests” analysis must be viewed:

1. 1. 1. 86. In the Article 13(b) analysis, the risk of grave harm to the specific child in returning him or her to an intolerable situation, imports the “best interests of the child”analysis. Evidence must be presented as to the risk of physical or psychological harm, and whether it is in the best interest of the child to be returned to the place of habitual residence. This is not conflating a custody concept into an Article 13(b) Hague Convention analysis. Rather, this question is mandated by Article 13(b)’s wording. The evidence must, of course, be credible and must meet the high threshold of “grave risk”. See: Pollastro v. Pollastro, 1999 CanLII 19933 (ON CA), [1999] O.J. No. 911 (Ont. C.A.).

Credibility is important. As noted in Brown v. Pulley, 2015 ONCJ 186, at para. 163:

1. 1. 1. 163. The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547(Ont. S.C.J.), affirmed at 2012 ONCA 469 (Ont. C.A. [In Chambers]).

The overarching analysis also involves a consideration of the likelihood of future harm and its severity: Ojeikere v. Ojeikere, 2019 ONCA 372, at para. 62.  In Hassan v. Garib, 2017 ONSC 7227 a mother claimed that the return of the child to the U.K. from Canada would put him at a grave risk of harm or would otherwise be intolerable. She alleged domestic violence that included verbal and physical abuse, assault, forcible confinement, police and social (and child protection) services involvement. The father disputed the allegations. Even with a finding that past violence occurred and was severe, Engelking J. confirmed that the court would still have to assess whether the violence was likely to recur. The court carefully assessed the mother’s allegations and shared third party concerns about the father as a perpetrator of domestic violence, but ultimately was unable to conclude that it was likely to recur: Hassan, at para. 90. The court was unable to prefer the credibility of one party over the other. It was also clear from the evidence that the mother was unhappy in her marriage.

In framing her analysis of “grave risk” Engelking J. considered the observations of Murray J. in Achakzad and reviewed the evidence in light of several questions which will be adapted to the evidence and facts of this case:  They are:

(a) Is there evidence of physical or psychological harm to the children and is it severe?;

(b) Does the record show that Mr. Bodnaruk is dismissive of the mother’s allegations such that the behaviour alleged to have forced her to leave Texas is likely to recur?;

(c) Would the return of the children to Texas put them in an intolerable situation that cannot be appropriately addressed by the justice (and social services) system there?”

         Bodnaruk v. Bodnaruk, 2023 ONSC 4136 (CanLII) at 15-18