Siegel's Family Court Calendar

“The threshold question on a motion to change a spousal support order is set out in s. 17(4.1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which provides that before the court makes a variation order the court must satisfy itself that a change in the conditions, means, needs or other circumstances of either spouse has occurred since the making of the order, and in making the variation order, the court shall take that change into consideration.

Both parties agree that s. 17 of the Divorce Act allows the court to vary, rescind or suspend, prospectively or retroactively a support order or any provision thereof.

Where a motion to change is bought to vary a spousal support agreement incorporated into a court order there is a two-step analysis.  First, has there been a material change in circumstances and second, if there has, what variation of the existing order ought to be made in light of those circumstances?  A material change in circumstances is one, which if known at the time, would likely have resulted in different terms.  To suggest that an agreement was unfair in the first place is inappropriate.  The court is not to second guess the original agreement.  Where an agreement is incorporated into an order it is presumed to comply with the objectives of the Divorce Act: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 31-33.”

            Assayag-Shneer v. Shneer, 2021 ONSC 2075 (CanLII) at 18-20

“There is no dispute that the relief requested by the Applicant amounts to a variation of the September Nakonechny Order, which was arrived at on consent of the parties.  Before varying any interim parenting order, the Court must be satisfied of the presence of a material change in circumstances which supports compelling reasons in favour of the variation.  The Respondent relies upon Justice Kurz’s summary of the law in Miranda v. Miranda, 2013 ONSC 4704 (CanLII):

“A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.”

While the overarching concern is always the best interest of the child, the relevant jurisprudence requires the Court to find the presence of new circumstances described as being “material, substantially important or compelling”.”

          Medow v. Medow, 2022 ONSC 1748 (CanLII) at 9-10

“There is, of course, nothing inappropriate about citing academic legal scholarship and much to be gained when it comes to better understanding legal concepts that may be relevant to judicial reasoning. But whether academic commentary or scholarship purports simply to describe the law or to explain it, it is not properly the subject of judicial notice – that is, it cannot be accepted as fact without proof. It is not subject to the sort of constraints that govern the use of evidence in the litigation process, and there is a risk that reliance on it may result in evidence being imported into judicial proceedings indirectly, bypassing the relevant evidentiary safeguards. See the helpful discussion of judicial notice by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 29-38.

Academic arguments should be assessed with the same sort of critical detachment as submissions from counsel. To the extent that academic arguments have a normative purpose – to the extent they are concerned with what the law ought to be rather than what it is – they are inherently controversial and properly subject to critique and challenge from other scholars. Their significance and shortcomings cannot be understood without placing them in this context. But whether scholarship is ostensibly descriptive or normative, it is improper to take judicial notice of the facts asserted or the conclusions reached.”

Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172 (CanLII) at 42-43

“The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.”

          A.V. v. C.V., 2023 ONSC 1634 (CanLII) at 16

“I also do not accept the father’s counsel’s argument that notice was not required. First, it is contradictory for the father and Ms. Del Villano to testify that they did not inform the mother because they thought she already knew from A.L. and then turn around and argue, they did not have to inform her because the legislation did not require them to do so. Second, counsel’s argument that the move to Smith Falls was a “change in residence” rather than a “relocation” does not preclude the legislative requirement for notice. Both terms, as addressed in the CLRA, require a parent who has shared parenting to communicate in advance in writing any intended change in residence and set out the new address. A “relocation” is defined as a move that has significant impact on the child’s relationship with the other parent and requires 60 days’ notice whereas a “change in residence” is considered a move that is not significant. While a change in residence does not require 60 days notice, it requires nonetheless some “advanced” notice in writing: ss. 18(1), 39.1, and 39.3 CLRA; S.C. v. J.C., 2022 ONSC 4146 at para 10.”

          Jacques v. Leblanc, 2023 ONSC 1689 (CanLII) at 96

“Counsel in any case must be mindful of the obligations that the Law Society of Ontario’s Rules of Professional Conduct impose on them with regard to their client’s disclosure obligations.  Those rules outline specific steps that counsel must take in advising clients on matters of disclosure.  Rule 5.1-3 states that where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate, must advise his/her client to comply with their disclosure obligations, and must not make frivolous requests or demands for information or the production of documents.”

            McDowell v. McDowell, 2021 ONSC 1954 (CanLII) at 15

“In determining whether to grant an extension, the overarching consideration is whether the justice of the case requires the extension. The well‑established criteria that inform this consideration include: a continuing intention to appeal; the length and reason for the delay; the prejudice to the respondents; and the merits of the appeal: Issasi v. Rosenzweig, 2011 ONCA 112, at paras. 4-5. While the right of appeal is an important one, a request to extend the timeline for perfection is fundamentally a request for the court’s indulgence: Howard v. Martin, 2014 ONCA 309, at paras. 53-54. Consequently, the justice of the case may also require an examination of the appellant’s conduct, including the appellant’s willingness to comply with established processes and prior court orders: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 18.”

          Jex v. Jiang, 2021 ONCA 160 (CanLII) at 5

“The respondent mother (“the mother”) sought to file audio recordings and doorbell video recordings (from the family’s front door) with the Court as evidence to support her allegations regarding the father’s drinking, driving while impaired, admissions regarding caregiving to the child, and weapons threats. The father states he was not aware he was being recorded and objected to the admission of these video recordings because they are not probative.

Two recordings had not been provided to the father in advance of the hearing date. I stood the matter down for 20 minutes to allow the father and his counsel to review the recordings prior to argument on admissibility.

There is a general principle that audio/video recordings between parents should be strongly discouraged and generally inadmissible: Whidden v. Ellwood, 2016 ONSC 6938, Hameed v. Hameed, 2006 ONCJ 274, Turk v. Turk, 2015 ONSC 3165.  In Van Ruyen v. Van Ruyven, 2021 ONSC 5963, at para. 41, Justice Kurz writes:

The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.

The recordings were attached as exhibits to a stand-alone affidavit sworn by the mother in support of a motion seeking to admit them.  This affidavit referred to paragraph numbers in her responding affidavit matching the recording with the event attested to.  However, the paragraph numbers were incorrect.  During argument, counsel walked the Court through each recording and which paragraph in the responding affidavit to which it related.  I note, however, that none of the paragraphs in the mother’s responding affidavit adequately lay the necessary foundation for the recordings.  Despite this lack of foundation, I am considering the recordings because of the seriousness of the allegations and because the father, in submissions, acknowledged the recordings were made as the mother purports them to have been made.”

            Dieffenbacher v. Baril Dieffenbacher, 2023 ONSC 1597 (CanLII) at 4-7

“At ¶ 47 of Sattva Capital Corp.v. Creston Moly Corp., 2014 SCC 53, the Supreme Court succinctly set out the principles of contractual interpretation.  The Court adopted the “modern approach” holding that the interpretive process involves reading the agreement “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.”  There need not first be a finding of ambiguity in the contract, before the Court can consider surrounding circumstances.

Also at ¶47 of of Sattva Capital Corp.v. Creston Moly Corp., the Court recognized the difficulty of ascertaining contractual intention when looking at the text alone, because words alone do not have an “immutable or absolute meaning”.  The Court quoted a passage that contracts are not made in a “vacuum”, and must be placed in context of the setting in which they are made.

At ¶48 of of Sattva Capital Corp.v. Creston Moly Corp., the Court found that the meaning of words is derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.  The meaning which a document would convey to a “reasonable man” is not necessarily the same thing as the meaning of the words used in the contract, themselves.  In this case before me, the parties have to some extent made statements about their subjective intentions in making and accepting the Offer to Settle, but the goal in contractual in contractual interpretation is to ascertain the objective intent of the parties:  see ¶ 49 of of Sattva Capital Corp.v. Creston Moly Corp.

Although the surrounding circumstances may be considered, they should not be allowed to overwhelm the words of the agreement.  Rather, they should “deepen the decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract”.  The interpretation must be grounded in the text,and read in light of the entire contract:  see ¶57 of of Sattva Capital Corp.v. Creston Moly Corp.

What the surrounding circumstances may be, will vary.  They should consist of objective evidence of background facts known at the time of execution of the contract.  That knowledge must have either been, or reasonably ought to have been within the knowledge of both parties at or before the date of contracting.  Surrounding circumstances can be “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”:  see ¶58 of of Sattva Capital Corp.v. Creston Moly Corp.”

          S.C.H. v. S.R., 2023 ONSC 1549 (CanLII) at 51-55

“Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.

While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status: See Ontario Child Welfare Secretariat Policy Development and Program Design Division, “Ontario Kinship Service Standards”, online: <oacas.libguides.com/ld.php?content_id=34692073> ; Ontario Association of Children’s Aid Societies, “Kin-based care”, online: <oacas.libguides.com/family-engagement/kin-care>. Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.

Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:

“foster care” means the provision of residential care to a child, by and in the home of a person who,

receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added]

The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.

Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.

As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:

… the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that “to express one thing is to exclude another” and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, “legislative exclusion can be implied when an express reference is expected but absent”. [Citations omitted.]”

Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 (CanLII) at 40-45