“Section 9 does not automatically lead to the court reducing the child support payable by the higher earning parent by the amount of support owing by the lower earning parent. The courts have found that the simple set-off approach is the preferable starting point, but it must be followed by an examination of all the factors, including assessing whether the support-receiving parent will be able to continue to meet the needs of the child. The court tries to avoid a significant variance in the standard of living between households for the child of the relationship. Contino v. Leonelli-Contino, 2005 SCC 63.”
November 19, 2025 – Reasonable Apprehension of Bias by Arbitrator
“The test for a reasonable apprehension of bias on the part of an arbitrator is objective – like the legal test for disclosure, it considers the relevant circumstances from the standpoint of a fair-minded and informed observer, applied against the backdrop of a strong presumption that an arbitrator is impartial.”
Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839 (CanLII) at 13
November 18, 2025 – Spousal Support: Seminal Cases
“The seminal cases in Canada on spousal support are Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R., 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. Although both were decided in the 1990s, the principles they enunciate have continued to resonate in the case law since then. First, in Moge, the court noted, at pp. 848-849, “the purpose of spousal support is to relieve economic hardship that results from ‘marriage or its breakdown’. Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.”
Bracklow requires the court to consider all the factors and objectives set out in the Divorce Act. The Court said, however, that no single objective is paramount. All must be borne in mind since “[t]he objectives reflect the diverse dynamics of the many unique marital relationships”: at para. 35. The uniqueness of marital relationships means that each case will be fact-driven to a large degree.
Since Moge and Bracklow were decided, the Spousal Support Advisory Guidelines (SSAGs), although not law, have often been relied on by judges in determining the quantum and duration of a spousal support order, once a party has established his/her entitlement to spousal support. Unlike the Divorce Act, the SSAGs are not statutory authority. They are guidelines designed to advise on a reasonable range of spousal support and a reasonable duration for spousal support in various circumstances. While the SSAGs are advisory only, courts are required to consider them where they have been addressed by the parties: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.
The following is a quote taken from Moge, at p. 870:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at pp. 174-75).”
November 17, 2025 – Res Judicata/Issue Estoppel & Temporary Orders
“As Justice Kiteley has already dismissed the applicant’s request for production of the Decentral Server, the respondent takes the position that the motion before this Court must be dismissed by reason of issue estoppel, res judicata, abuse of process and/or collateral attack.
As held by the Court of Appeal for Ontario in Kendall v. Sirard 2007 ONCA 468, an interlocutory order is still nevertheless binding on the parties, and “it is not open for the Court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal”.
Notwithstanding, as Justice Kiteley’s decision is not final, the doctrine of issue estoppel and res judicata would not “forever preclude” the applicant from bringing a motion for the same relief. However, as held in M. B.-W. v R.Q. 2015 NLCA 28 (CanLII), such a motion could only be considered, and potentially granted, by the Court if the applicant could demonstrate the presence of new, material facts, or material facts which were previously not discoverable by the applicant through the exercise of reasonable diligence.”
November 14, 2025 – Summary Judgment
“Ms. Enei’s motion for summary judgment is brought pursuant to Rule 16 of the Family Law Rules O. Reg. 114/99, s. 16, (“FLR”). Rule 16 was amended in May 2015 to broaden the powers of the court on a summary judgment motion.
In Gough v. Gough, 2019 ONSC 5441, I summarize the legal principles applicable to summary judgment motions as follows:
31 Summary judgment motions are governed by Rule 16 of the Family Law Rules.
32 The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
33 Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children’s Aid Society of Toronto v. T. (K.), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.)).
34 Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, No. 2 of para. 80).
35 Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.
36 Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:
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- Weighing the evidence
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
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37 Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
38 In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
39 Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
40 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak — para. 49). As the Supreme Court stated at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, para. 63).”
November 12, 2025 – Jurisdiction to Make Parenting Orders Under the CLRA
“There are four circumstances in which a court in Ontario has jurisdiction to make a parenting order under the Children’s Law Reform Act. They are:
(a) First, under section 22(1)(a), an Ontario court may make a parenting order where the child is “habitually resident” in Ontario;
(b) Second, under section 22(1)(b), where the child is not habitually resident in Ontario, the Court may nevertheless exercise jurisdiction if the child is physically present in Ontario, and other requirements are met;
(c) Third, a court has jurisdiction to make a parenting order where the child is physically present in Ontario and the Court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in section 23 of the Children’s Law Reform Act; and
(d) Finally, the Court may exercise its parens patriae jurisdiction, which is specifically preserved by section 69.
See Los v. Ross, 2024 ONCA 122 ¶ 29.
It is the father’s onus to demonstrate that a parenting Order should be made on one of these bases. If not, the Court should decline to exercise jurisdiction: see F v. N., 2022 SCC 51 ¶ 59.”
November 11, 2025 – Expert Evidence in Child Protection Cases
“In White Burgess Langille Inman v. Abbot v. Haliburton Co, 2015 SCC 23 [“White Burgess”], Cromwell J opened the judgment as follows:
Expert evidence can be a key element in the search for the truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. See para 1.
In the child protection context, and in particular in a case such as this where the Society seeks to permanently sever the legal relationship between the children and their parents while severely restricting contact, the dangers associated with admitting potentially unreliable experts are perhaps at their highest. As noted in the Report of the Motherisk Commission, losing one’s child to an Order for extended Society care is the “capital punishment of child protection law.” Thus, the import of rigorously scrutinizing proposed expert evidence can hardly be overstated.
Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.
A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”
A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.
Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.
By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.
Having reviewed the caselaw regarding expert evidence, it appears that in many of the reported family law cases where a participant expert is permitted to testify, it has been on consent, unopposed, or with brief consideration of the applicable principles. It seems to be generally accepted in the Ontario caselaw that in most cases, professionals such as treating physicians, treating psychologists, and treating pediatricians may testify as participant experts so long as they stay within a relatively narrow scope, that deriving directly from their involvement and the professional opinions arrived at based directly on that involvement. The court’s ongoing vigilance and gatekeeping is essential regarding the scope of testimony. Bruff-Murphy v. Gunawardena, 2017 ONCA 502; Parliament v. Conley, 2021 ONCA 261.”
Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 17-24
November 10, 2025 – Requests To Admit
“In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal observed that the Rules involving admissions are a “useful practice” purposed “to dispense with proof at trial and to minimize the cost of litigation and the areas of dispute between the parties”, and “[f]or legitimate policy reasons, these objectives are to be encouraged.”: Serra, at para. 109. In Norris v. Norris, 2016 ONSC 7077, a case upon which the wife relies, the wife in that case brought a summary judgment motion after serving a Request to Admit. After noting that “[t]he conduct of litigation requires strategic thinking”, Corthorn J. implicitly endorsed the Serra reference to encouraging these objectives so as “to enable the court to deal with cases justly”, which is the primary objective of the Family Law Rules: Norris, at paras. 66 and 71. Those are set out in Rule 2(3) and include the following:
(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.
A fact deemed true may, in certain circumstances, be withdrawn. The scope of the court’s discretion over the deemed admissions to which effect should be given will vary according to the circumstances giving rise to a party’s failure to respond and whether the admission involves fact, mixed fact and law, or a question of law. For example, where the failure to respond is due to satisfactory evidence of inadvertence or a mistake, or where there is a reasonable explanation for the change in a party’s position, a deemed admission may be withdrawn: Forget v. Forget, 2001 CarswellOnt 3271 (Ont. S.C.J.), at para. 17. Where a Request involves minute details of marginal value to the larger issues in the case, a court may refuse to consider the Request or any deemed admissions arising from it: Splett v. Pearo, 2011 ONSC 5329, at paras. 4-9. Serial Requests may amount to an abuse of process, being neither cost effective nor advancing the interests of the case. Admissions involving mixed fact and law, or a question of law are generally of little weight: Serra, at para. 111.
A Request to Admit will be most successful where it is crafted to avoid patently controversial facts or propositions involving law. It can be a useful strategic tool at any stage of a family law proceeding and is entirely consistent with the primary objective of the Family Law Rules. A party who ignores a Request does so at their peril.”
November 7, 2025 – Indigenous Identity in Child Protection Cases
“The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, General Matters Under the Authority of the Lieutenant Governor in Council under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. This definition reads as follows:
Interpretation, First Nations, Inuk or Métis child
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- A child is a First Nations, Inuk or Métis child for the purposes of the Actif,
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(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;
(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or
(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,
(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or
(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community. (emphasis added)
In the present case, the children’s identification as Inuit meets the definition under s. 1(a) of the Regulation. I am mindful of the statements of Justice Bale in CCAS v. M.P. et al., 2021 ONSC 6788 wherein she joined with other justices in calling for a solid evidentiary basis before determinations of Indigenous identity are made. As Justice Bale stated:
It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share. Surely, something more than a simple self-declaration of identity is needed: CCAS v. M.P. at para 49.”
The Children’s Society of Ottawa v. N.D., 2024 ONSC 6200 (CanLII) at 11-12
November 6, 2025 – Religious Divorces
“At the close of the trial, the mother asked the court to order, as part of the final divorce order, the father to provide the mother with a religious divorce within 90 days of this decision. The mother did not give me any legal authority to make such an order. The only evidence at trial that pertains to this request was that the parties are Muslim, and the mother’s religion is very important to her. There was no evidence at trial that the mother had requested a religious divorce from the father or that the father had refused to provide it.
I find that the court does not have jurisdiction to make such an order at this time and dismiss this claim for the following reasons:
The mother has not included a claim for a religious divorce in her pleadings. It is not in her Answer. While this is not necessarily fatal to her request, the fact that I did not have any evidence that the father was on notice that she was seeking such an order from the court means that I cannot find that, despite not being in her pleadings, it is otherwise just and in accordance with the court’s primary objective under Rule 2 to allow this claim to be raised at the end of the trial.
The mother has not given me any authority in support of the court having jurisdiction to make the requested order.
The process provided for under s.21.1 of the Divorce Actaddresses removing barriers to remarriage, but that process has not been followed here. Under s.21.1, the court has discretion to refuse to hear a party who fails to eliminate barriers to the remarriage of the spouse entitled to a divorce in Canada (see Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 448; Salehi v. Tawoosi, 2016 ONSC 54; Schiewitz v. Shiewitz, 2018 ONSC 3864). Usually, the s.21.1 process is initiated well before trial because the remedy provided under the Divorce Act is to strike pleadings if the barriers are not removed, not to make an order requiring a party to grant a religious divorce.
Even if I were to attempt to use s.21.1 to grant some similar order to the one sought, the mother has not provided evidence at the trial of the barriers to remarriage or steps taken to obtain a religious divorce or the information otherwise required under s.21.1.”