Siegel's Family Court Calendar

“I have several difficulties with the doctor’s notes.  First, they were attached as exhibits to the respondent’s affidavits.  On their face they are hearsay.  They are opinion evidence from what would be a participating expert but who has not been qualified as such.  Attaching the notes would put him beyond cross-examination.

The law on this point is best summarized by Nakonechny, J. in Lucreziano v. Lucreziano, 2021 ONSC 4106 (CanLII), at para. 49:

[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.”

            Williams v. Williams, 2023 ONSC 2937 (CanLII) at 26-27

“The obligation to make full and frank financial disclosure in a family law case is an immediate and ongoing obligation. See: Colucci v. Colucci, 2021 SCC 24, at paragraph 42.

At paragraph 44, in Aiello v. Aiello, 2023 ONSC 2176, Justice M.D. Faieta wrote about the importance of disclosure orders being proportional as follows:

Any demands for financial disclosure beyond the specific items that are required to be produced under the Child Support Guidelines and the Family Law Rules must be relevant and proportional to the issues in the case: Mawhinney v. Ferreira, 2023 ONSC 1357, at para. 12.  In weighing whether a request for disclosure is proportional, consideration should be given to the burden that the request places on the disclosing party in terms of time and expense of producing the requested disclosure: Kovachis v. Kovachis, 2013 ONCA 663, at para. 34. Also see Boyd v. Fields, [2006] O.J. No. 5762, at paras. 11-14.”

            Jansen v. DiCecco, 2023 ONCJ 212 (CanLII) at 44-45

“The delivery of a notice of appeal automatically stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order: rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Emphasis added.]”

            Abu-Saud v. Abu-Saud, 2020 ONCA 314 (CanLII) at 8

“The applicant did not respond to this request to admit by either by the original 21-day deadline or the judicially extended deadline to 21-days after December 4, 2019.  Where a party fails to respond to a request to admit prior to trial and prior to trial fails to seek leave to withdraw his deemed admissions, the party should not be permitted to withdraw them: see Jama v. Basdeo, 2020 ONSC 2922, at paras. 16-21.”

          Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII) at 68

“Like partial summary judgment, bifurcation can be beneficial where a discrete issue might resolve a big piece of the case. But where the facts or issues are not discrete and overlap with other issues, bifurcation can cause problems.”

            Sha v. Buchan, 2023 ONSC 2988 (CanLII) at 14

“In a recent decision in J.N. v. C.G., 2023 ONCA 77, the Court of Appeal for Ontario set out the well settled factors to consider when determining the weight to accord to the children’s views and preferences per Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42:

1) whether the 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 child’s maturity level

6) the strength of the wish

7) how long they have expressed their preference

8) the practicalities of the situation

9) parental influence

10) overall context; and

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

         J.I. v. A.A., 2023 ONSC 2942 (CanLII) at 226

“The Ontario Court of Appeal in Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379, 72 R.F.L. (8th) 1, held the following about costs awards against child protection agencies:

[30]      Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine the costs of the proceeding. Here, the Family Law Rules applied on the motion.

[31]      Under those Rules, the general presumption is that a successful party is entitled to its costs: r. 24(1). However, Children’s Aid Societies are treated distinctly from other parties in a family law proceeding. Section 24(2) provides that the presumption of costs to the successful party does not apply in a child protection case or to a party that is a government agency. At the same time, s. 24(3) empowers a court with discretion to award costs to or against a party that is a government agency, whether or not it is successful.

[32]      The jurisprudence elaborates on the proper exercise of this discretion. Children’s Aid Societies are presumptively protected from costs awards in order to encourage them to act in the best interests of the child. As Chappel J. explained in Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, at para. 13:

The special approach to costs claims against Children’s Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/benefit analysis as to whether they can financially afford to protect the child in question.

[33]      Justice Chappel went on to summarize the general principles animating costs against a Children’s Aid Society, at para. 14:

1. 1. 1. 1. 1. 1. 1. Child protection agencies do not enjoy immunity from a costs award.
                  2. However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
                  3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
                  4. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
                  5. Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.
                  6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
                  7. Important factors to consider in deciding whether costs against a Society are appropriate include the following:

i.  Has the Society conducted a thorough investigation of the issues in question?

ii.  Has the Society remained open minded about possible versions of relevant events?

iii. Has the Society reassessed its position as more information became available?

IV.  Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

V.  In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.

[34]      In making a costs decision, as in all family law decisions, the court must bear in mind the primary objective of ensuring the case is dealt with justly: Family Law Rules, s. 2(2). Rule 2(3) further elaborates. Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties, (b) saving expense and time, (c) dealing with the case in ways that are appropriate to its importance and complexity, and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.”

            CAS v. J.P., 2023 ONSC 2912 (CanLII) at 5

“An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 25.

Section 22 of the Divorce Act provides for the recognition of foreign divorce decrees. In certain circumstances, courts in Canada have refused to recognize foreign divorces, including talaq divorces under Sharia Law in particular.

In Novikova v. Lyzo, 2019 ONCA 821, the Court of Appeal for Ontario upheld the motion judge’s refusal to recognize a foreign divorce because the wife was not given proper notice of the proceeding in the Russian Federation. In Kadri v. Kadri, 2015 ONSC 321, the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy: at para. 83. With respect to talaq divorces in particular, the court in Kadri observed that numerous immigration decisions of the federal court have expressed concerns about talaq divorces where the procedure consist only of a unilateral announcement of divorce by one party, usually the male: at para. 85.

A “bare” talaq divorce was described in Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 FCR 531, at para. 20, as a private recitation of a verbal formula in front of witnesses. The verbal recitation may be pronounced in a mosque. It may be reinforced by written documents containing such information, whether accurate or not. The pronouncement of the divorce before witnesses is what brings about the divorce.

The court further observed in Amin that the ritual performance of the bare talaq lacks any necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity, even if merely to register or recognize what has been done. While the essential procedure differs, the court concluded in Amin that to recognize a bare talaq divorce would be manifestly contrary to Canadian public policy.

I do not know, and there is no evidence before me as to, the procedure invoked that led to the talaq in this case. I am satisfied that it is not for the Applicant to prove that the talaq is not valid. Rather, the onus of proving a legally valid foreign divorce is on the party seeking to rely on that divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 10. Foreign law and the validity of a foreign court order are questions of fact to be established by the proponents. In this case, the onus is on the Respondent to show that the foreign divorce is valid. The Respondent has filed nothing in this proceeding.”

            Abdulla v. Al-Kayem, 2021 ONSC 3562 (CanLII) at 17-22

“Assessing credibility is not a science.  It is difficult to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48.  A judge is not required to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, the judge may accept none, all, or part of a witness’s evidence: Kinsella v. Mills, 2020 ONSC 4785, at para. 69.

In assessing a witness’s credibility, as set out in Kinsella v. Mills at para. 69, the court may take into account considerations including the following:

• • • •  Were there inconsistencies and weaknesses in the witness’s evidence, including internal inconsistencies or evidence of prior inconsistent statements?
      •   Was there a logical flow to the evidence?
      •   Were there inconsistencies between the witness’s testimony and the documentary evidence?
      •   Were there inconsistencies between the witness’s evidence and that of other credible witnesses?
      •    Is there other independent evidence that confirms or contradicts the witness’s testimony?
      •    Did the witness have an interest in the outcome, or were they personally connected to either party?
      •    Did the witness have a motive to deceive?
      •   Did the witness have the ability to observe the factual matters about which they testified?
      •   Did they have a sufficient power of recollection to provide the court with an accurate account?
      •   Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?”
      •  Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
      •  Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
      •    Consideration may also be givento the demeanor of the witness, including their sincerity and use of language.  However, this should be done with caution.  The courts have also cautioned against preferring the testimony of the better actor in court, and, conversely, misinterpreting an honest witness’s poor presentation as deceptive.”

            Kostrinsky v. Nasri, 2022 ONSC 2926 (CanLII) at 28

“The two themes are that the trial judge rejected the recommendation in the OCL report and also changed the status quo.

A trial judge is not required to accept the OCL recommendations. They are just that: recommendations.”

            Knapp v. Knapp, 2021 ONCA 305 (CanLII) at 19-20