Siegel's Family Court Calendar

“The legal test to decide the appropriate remedy where privileged information is received by an opposing party or its counsel is set out in Celanese and more recently, in Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61. The Ontario Court of Appeal, set out a three part test for resolving issues of unauthorized access to privileged documents; 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 694, at para. 11-16:, citing Continental and Celanese,:

a.   At the first stage, the moving party (in this case, the husband) must establish that the opposing party (in this case, the wife) obtained access to relevant privileged material. In this case, the wife has acknowledged that she had privileged documents, but states she deleted them. Without the forensic review of what was taken by the wife surreptitiously, it is impossible for the husband to know the extent of privileged materials that she ahs obtained.

b.   At the second stage, the risk of significant prejudice is presumed and the husband does not have the onus of proving “the nature of the confidential information” disclosed: Celanese, at paras. 42 and 48. Rather, the wife has the onus to rebut the presumed prejudice flowing from receipt of privileged information: Celanese, at para. 48. The presumption of prejudice can be rebutted by the wife identifying “with some precision” that: (i) she did not review any of the privileged documents in their possession; (ii) she reviewed some documents, but they were not privileged; or (iii) the privileged documents reviewed were nevertheless “not likely [to] be capable of creating prejudice”: Celanese, at para. 53. The evidence must be “clear and convincing” such that “[a] reasonably informed person would be satisfied that no use of confidential information would occur”: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1260-63; see also, Celanese, at para. 42. “A fortioriundertakings and conclusory statements in affidavits without more” do not suffice: MacDonald Estate, at p. 1263.

c.   Where the precise extent of privileged information is unknown and possibly unknowable, the court should infer that confidential information was imparted unless the solicitor has satisfied the court that no information was imparted which could be relevant: MacDonald Estate, at p. 1290. The husband cannot assess what has been taken from him, without a third-party review of the electronic records being conducted. Once a complete review of the computers is undertaken, and depending on the outcomes of that review, the husband may be entitled to seek a stay of proceedings or seek to remove the wife’s legal team. The scope of what was taken by the wife cannot yet be determined. As summarized in Celanese, at paras. 49-51, there are compelling reasons for thepresumption of prejudice and the reverse onus on the appellants in receipt of privileged information including:

 i.   Requiring the husband whose privileged information has been disclosed or accessed to prove actual prejudice would require them to disclose further confidential or privileged materials;

ii.   Placing the burden on the wife who has access to the privileged information is consonant with the usual practice that “the party best equipped to discharge a burden is generally required to do so”; and

iii.  The husband does not have to bear “the onus of clearing up the problem created by” the wife’s actions.

d.   The third stage of the analysis is to fashion an appropriate remedy.

It is only after there is a complete record of the extent of the surreptitiously obtained evidence by the wife, through the forensic audit that the three-part test to determine the admissibility of that evidence can be applied, as set out in in Eizenshtein v. Eisenshtein, 2008 CanLII 3108 (ONCS).

            Moran v. Moran, 2023 ONSC 6832 (CanLII) at 15-16

“Section 79(4) of the CYFSA stipulates as follows:

Child 12 or older

(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

Section 79(6) clarifies that a child who receives notice of a proceeding is entitled to participate as if the child were a party.

Despite the children in this matter being 12 and 14 years old, respectively, they had not been served with the society’s application or the society’s motion for temporary care and custody. Nor is the society requesting an order relieving against that obligation on the basis that being present at the hearing would cause either child emotional harm.

A stated purpose of the CYFSA is to recognize that services to children and young persons should be provided in a manner that includes the participation of a child or young person, where appropriate: s. 1(2), para. 3.vi. Sections 79(4) and (6) serve an important function and recognize that older children and young persons have both the ability and right to meaningfully participate in protection proceedings with significant and life-altering impacts for them.

When a society intervenes to remove a child to a place of safety, it is under significant and unenviable pressure to move quickly to both meet the practical needs of the children and to comply with its duty to bring the matter before the court as soon as practicable, but within five days. That said, the statutory requirement to notify older children of the proceeding is not optional and cannot fall victim to these exigencies. It must be respected and complied with.

Where the society is of the view that notice to a child 12 or older is inappropriate and seeks relief against it, then that request should be brought to the court’s attention as soon as possible, and ideally before the first hearing date. It is not for me to prescribe a universal process for the society to follow, and local considerations may well have an impact, but I would think that the most appropriate and efficient way to do so is to file an urgent, without notice motion, to the attention of the judge who is scheduled to preside at the initial temporary care and custody hearing. Alternatively, guidance could be sought from the court directly at the same time the society is seeking dates for the hearing.

I appreciate that in the early days of a child protection application, the society’s investigation is ongoing, and the factual landscape is often in flux. I recognize that at times, the society may have no alternative but to make an oral motion before the court at the time of the hearing, based on the most recently available facts.

Here, as noted, the society is not making such a request. Notice to the children is required. This temporary care and custody hearing shall be adjourned to December 5, 2024, at 9:00 am in order that the society may serve the children with notice of the proceeding and facilitate their attendance, should they wish, at the temporary care and custody hearing. The participants may attend virtually or in person at that time.”

Children’s Aid Society of the Districts of Sudbury and Manitoulin v. P.B., 2024 ONCJ 621 (CanLII) at 3-10

“When children are wrongfully removed from non‑party states and brought to Ontario or another Canadian province or territory, the Hague Convention does not apply. To address international abductions falling outside the scope of the Hague Convention, Canadian provinces and territories have enacted various statutory regimes (see, e.g., Family Law Act, S.B.C. 2011, c. 25 (British Columbia); Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E‑14 (Alberta); The Children’s Law Act, 2020, S.S. 2020, c. 2 (Saskatchewan); on the application of the Civil Code of Québec to non‑Hague Convention cases, see Droit de la famille — 131294). In Ontario, the relevant rules are found in Part III of the CLRA.

A review of legislation in this area reveals that, in general, Canadian provinces treat child abductions in non‑Hague Convention cases in a manner methodologically comparable to the Convention: first, by declining to decide parental disputes on the merits with respect to children who do not habitually reside in the province or territory, and second, by favouring the return of children to the jurisdiction of their habitual residence. However, these similarities do not mean that an application brought under provincial legislation is treated the same way as one brought subject to the rules of the Hague Convention (Geliedan, at paras. 26-34).

In Thomson, a Hague Convention case, this Court clarified that the legislation governing non‑Hague and Hague Convention disputes “operate independently of one another” (p. 603; see also L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111, at para. 46). As pointed out by Laskin J.A. in Ojeikere, in Hague Convention cases, “Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests”, but they cannot have the same confidence in cases involving non‑party jurisdictions (para. 60; see also Geliedan, at paras. 37-38 and 45). The Ontario legislature makes plain, in s. 19(a) of the CLRA, that the ultimate determination of a parenting order on the merits will be made on the basis of the best interests of the child. To account for the fact that, in the non‑Hague Convention context, Ontario courts do not benefit from the a priori assumption that the best interests of the child principle will be applied to the merits of the custody dispute in the foreign country, judges assessing petitions for return to non‑party jurisdictions must therefore consider the tenor of foreign law, generally through expert evidence adduced by the parties. Nevertheless, in Thomson, La Forest J. explained that it is not improper to look at the Hague Convention for the interpretation of domestic legislation, “since the legislature’s adoption of the Convention is indicative of the legislature’s judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence” (p. 603; for the CLRA, see N. Bala, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 C.F.L.Q. 301, at p. 308).

The children in this case have been removed from the UAE, a state which is not a party to the Hague Convention. It follows that this matter should be resolved on the basis of the general provisions of Part III of the CLRA.”

            F. v. N., 2022 SCC 51 (CanLII) at 51-54

“The father issued his motion to change on March 23, 2023. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). The change in support requested by the father before that date requires a retroactive support analysis.

The parties’ motions to change support are governed by subsection 37 (2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(2.1)  In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

The powers of the court on a motion to vary a child support order are very broad.  The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis.  The court’s authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyer v. Content, 2014 ONSC 6001.

A child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility. See: Colucci v. Colucci, 2021 SCC 24, par. 4 (Colucci).

In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following observations about retroactive support that are germane to this case:

a)      Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).

b)      The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).

c)      Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).

The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci as follows:

(1)   The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2)   Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3)   Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4)   The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5)   Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

The court in Colucci set out the framework for deciding applications to increase support retroactively at paragraph 114 as follows:

a)      The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)      Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)      Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)      The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The B.S.factors continue to guide this exercise of discretion, as described in Michel.If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)      Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

Colucci refers to the following factors to consider as set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

In Colucci, the court discussed what constitutes effective notice when a payor seeks a retroactive decrease in income, writing the following at paragraphs 87 and 88:

[87]         It is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity.

[88] In decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51). This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13 (CanLII); Hodges v. Hodges, 2018 ABCA 197, at para. 10 (CanLII)).

In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel – par. 123.

If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, par. 125.”

            Sarreye v. Sheikhamed, 2023 ONCJ 525 (CanLII) at 48-66

“At the end of the day, interim support motions are meant to be summary in nature; the court is not required to conduct a “detailed inquiry into all aspects and details of the case”. As Justice Chappel explained in Damaschin-Zamfirescu v Damaschin-Zamfirescum, 2012 ONSC 6689 (CanLII), 2012 CarswellOnt 14841 (S.C.J.), at para. 24, interim support orders are meant to be “holding orders.”: Jarzebinski v. Jarzebinski, 2004 Carswell ON 4600 (ONSC, at para. 36; and Spence v. Sly, 2010 CarswellOnt 8359 (S.C.J.), at para. 11.”

            Moore v. Lemmon, 2023 ONSC 6735 (CanLII) at 30

“The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes

a)         to partially indemnify successful litigants;

b)         to encourage settlement;

c)         to discourage and sanction inappropriate behaviour by litigants and;

d)         to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), 2003 S.C.C. 71, paragraph 25.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.”

Balzano v. D’Alessandro, 2024 ONCJ 609 (CanLII) at 5-8

“When it comes to deciding children’s lives, doing it cheap is no substitute for doing it right.

Endless motions to re-argue temporary parenting orders – with no apparent inclination to ever seek a final order at a trial – do a disservice to children who deserve proper consideration of all the best interest factors, based upon a thorough presentation and testing of all relevant evidence at an oral hearing.

a.      For parents: Motions – even an endless succession of temporary motions — may seem quicker and cheaper than trials.

b.      For lawyers: Motions are less work than trials.  Less disruptive to busy caseloads.  Motions let the lawyer multi-task, servicing multiple clients on the same day.  In contrast, trials require the lawyer’s undivided attention, sometimes for days or weeks at a time.  So motions are often a better business model than trials.

c.      But for judges: Complex, bitterly contested motions based on incomplete and untested affidavits usually make it impossible to make necessary credibility and factual determinations — let alone fully understand the personal situation and needs of each parent and each child.  Affidavits simply don’t give us all the information we need to make proper determinations.

In the early stages of a family dispute, motions are often unavoidable.

a.      Time is limited.

b.      Things are in flux.

c.      Children are disrupted.  Often in despair.  Sometimes in danger.

d.      Emotions are high.

e.      Decisions have to be made.

f.      Finances and parenting issues need to be stabilized.

Judges do the best they can with imperfect affidavit evidence on crowded motions lists — because something has to be done.  Quickly.

But once a temporary order is in place, that should be the end of the “motion stage.”

a.      The focus should switch to achieving a finalresolution for the family.  That’s why we offer comprehensive case management.

b.      The best result for everyone is usually a negotiated settlement.  A consent order.  And that’s how most cases conclude.

c.      But in a small number of cases, an oral hearing will be required.  Where witnesses will testify and be cross-examined.  Where all the issues will be thoroughly reviewed and a decision will be made, once and for all.

Except an increasing number of litigants appear to have no interest in a once and for all resolution.

a.      They don’t want to settle.

b.      But they don’t want to go to trial either.

So our court system gets bogged down with people engaging in half-hearted litigation.

a.      They keep talking tough about all the things they’re going to do at trial – except they never seem to want to get to trial.

b.      They pretend they want to advance the file to a final resolution.  But in reality they allow the file to languish.

c.      Adjournments become the litigation strategy of choice.  Preferably sine dieadjournments.   (In Latin sine die means “no definite date or period to resume”, but in family court it could easily be mistaken to mean “I hope this doesn’t come back for a long time.”)

d.      They ignore the Rules and court-ordered deadlines.

e.      They allow months – even years – to go by with little or nothing being accomplished.

f.      They complain the court system is too slow – but refuse to schedule next steps in the process.

And then suddenly – often when they discover their case is about to be dismissed — one of the parties will bring an “urgent” motion seeking yet another temporary order.  And so it starts again.

a.      More affidavits (often asking the judge to refer back to earlier affidavits as well).

b.      More cross-motions.

c.      More allegations (and blame-shifting for the delay).

d.      More unsworn exhibits and attachments.

e.      More untested evidence. 

f.        More impossible demands on the motions judge.

There is absolutely no excuse for this.

a.      There is generally a finite period of time within the early stages of a family court file when motions for temporary orders are appropriate.

b.      In some instances – where litigants are actually paying attention– there might even be justification for subsequent motions pending an anticipated trial.  Sometimes new information or disclosure becomes available.  Sometimes things change.

c.      But the older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit.

d.      Particularly where children’s issues are involved, it’s unfair to keep asking motions judges to struggle with incomplete, untested, and highly conflictual affidavit evidence.  We’ll do it at the beginning, when there’s no alternative.  But there’s a tipping point where you can no longer ask judges to struggle through repetitive volumes of imperfect materials – for the sake of yet another temporaryorder — when in reality the parties could have already had (or at least scheduled) their trial.

e.      On financial issues, this lackadaisical approach is a wasteful nuisance.

f.      On parenting issues, asking judges to engage in guesswork because you’ve neglected your file is unconscionable.”

          Sham v. Lee, 2024 ONSC 6598 (CanLII) at

“Chappel J. in McBennett v. Danis, 2021 ONSC 3610 (CanLII), undertook a review of the caselaw relating to decision-making determination and set out a helpful list of guiding factors that have been identified over time, particularly in relation to joint decision-making.  They include:

1. 1. 1. 1. 1.          In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties;
            2.          The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.”  (Lafrenière J. in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.));
            3.          There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;
            4.          Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;
            5.          In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child.  The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement;
            6.          The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered.  The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;
            7.          The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children.  The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord;
            8.          In assessing the level of conflict and cooperation the question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children;
            9.          In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict;
            10.      Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party;
            11.      Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions;
            12.      Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents;
            13.      The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.

Chappel J. also discussed the body of caselaw relating to “divided decision-making” regimes and observed:

The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party.  These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement.  These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests.  Courts have recognized there are many merits to these types of regimes in appropriate cases.  They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship.   In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, at para. 69).”

            Vieira v. Bettencourt, 2022 ONSC 6584 (CanLII) at 50-51

“The draft Cohabitation Agreement recites that the parties started to cohabit in 2011. It does not state that the cohabitation was continuous.  What is clear is that the parties could not agree upon the terms of the draft Cohabitation Agreement. I am not persuaded that this unsigned agreement referring to the commencement of the cohabitation assists the Applicant.  The reason is that if the Applicant relies on this recital, the rest of the draft Cohabitation Agreement provided that the Applicant would not be entitled to any support or the Respondent’s assets upon the end of their relationship. A not surprising term sought by the Respondent – a wealthy, successful businessperson with a family from a prior marriage, might want the benefits of such an agreement particularly, where the Applicant did not have any substantial financial assets or means and where the relationship had been what the Respondent alleges was a sporadic, noncontinuous romantic relationship. The release of any support claim would be a significant bar to the Applicant’s claim.

In any event, the draft Cohabitation Agreement was never executed by the parties.  As such, it is difficult to put too much weight on this document.”

            Cevallos v. Lambden, 2023 ONSC 6670 (CanLII) at 22-23

“The Respondent Father’s affidavit does not comply with the Consolidated Provincial Practice Direction for Family Proceedings in the Superior Court of Justice.  It is not double-spaced.  The Father’s affidavit also includes argument with quotes and citations from caselaw.  Affidavits are to contain facts, not argument or legal authorities.”

            Bah v. Diallo, 2024 ONSC 6500 (CanLII) at 14