Siegel's Family Court Calendar

“The court has jurisdiction to deal with a child protection matter by way of summary judgment. The test enunciated is found at Rule 16 of the Family Law Rules, O. Reg. 114/99 and requires the moving party to demonstrate by way of affidavits or other evidence that there is no genuine issue requiring a trial.

The general principles applicable to summary judgment motions are well established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. There is no genuine issue requiring trial when the judge can reach a fair and just determination on the merits on a motion for summary judgment.  In Hryniak, the court provided the following roadmap for judges to follow to determine whether summary judgment ought to be granted:

66 On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers.  There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under rule 20.04(2)(a).  If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2).  She may, at her discretion, use those powers, provided that their use is not against the interest of justice.  Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

67  Inquiring first as to whether the use of the powers under rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution.  As well, by first determining the consequences of using the new powers, the benefit of their use is clearer.  This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

68 While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action.  This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate.  There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense.  In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

The Court of Appeal has held that the summary judgment test applied in child protection cases is, at its core, the same as in other cases (see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 52).  However, the test must be applied with an eye to the specific context and to the particularly high stakes and Charter rights of parents and children in child protection proceedings (see L.M., at para. 52 and New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at para. 76). The Court of Appeal has maintained a consistent approach, both before and after the Hryniak decision, that summary judgment in child protection cases remains highly cautionary.

However, such caution does not prevent summary judgment from being appropriate in certain child protection proceedings, provided that summary judgment can “ensure a fair and just determination in a prompt and proportionate manner” (L.M., at para. 51).

The proper approach to summary judgment in child protection proceedings was usefully summarized by the Court of Appeal for Ontario in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, as follows:

1. 1. 1. 1. 1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
            2. The burden of proof is on the party moving for summary judgment. Although, r. 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.
            3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
            4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
            5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.”

Children’s Aid Society of Ottawa v. K.D. et al., 2022 ONSC 709 (CanLII) at 9-13

“The decision of the Ontario Court of Appeal in Bogue v. Bogue, 1999 CanLII 3284 (ON CA), [1999] O.J. No. 4310, is instructive on the legal issues raised in this motion. The court stated at para. 12:

It is an over-simplification to say that there cannot be an agreement to agree. The true legal position was explained by Robins J.A., in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103-04:

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself . . . [Emphasis added]

And at p. 105:

If no agreement in respect to essential terms has been reached or the terms have not been agreed to with reasonable certainty, it can only be concluded that such terms were to be agreed upon at a later date and until that time there would be no completed agreement.

More recently in Bouchard v. Poulin, 2017 ONSC 3328, Justice Shelston applied Bogue, and held at paras. 16, 17 and 33-35:

[16]      In the Bogue decision, Justice Rosenberg finds that there was evidence to determine that there was a final settlement, there was no expressed discussion about the extraordinary release sought by the husband and that the parties had agreed to bind themselves to a settlement and what remained was for the lawyers to reduce that settlement to a formal document. He did not find that that was an agreement to agree. At paragraph 15 of the decision, Justice Rosenberg states:

Generally speaking, litigation is settled on the basis that a final agreement has been reached which the parties intent to record informal documentation and “parties reach a settlement should usually be held to their bargains”.

[17]           If the court finds that at the end of negotiations where the litigants had agreed to bind themselves to a settlement and it only remained for the lawyers to draft a formal document, the parties have entered into a contract and not “an agreement to agree”. For there to be a binding contract, all the basic and essential components of the creation of the contract must be present. (Volmer v. Jones, 2007 CanLII 7999 ONSC).

. . .

[33]     I find that at the meeting of December 22, 2016, the parties agreed in principle to the applicant transferring her share of the Company to the respondent. I accept the evidence of Mr. Ranger and his client that they had an agreement on specific terms. However, I do not accept their evidence that the December 22, 2016 agreement contained all the essential terms of a binding contract. I accept the evidence of the applicant that she had to consider other essential terms that required a complete and all-encompassing agreement that covered not only the Company but the matrimonial home.

[34]           I find when one considers the multitude of issues that had to be addressed in the transfer of the applicant’s interest in the Company as well as dealing with the sale of the matrimonial home, it is not realistic to believe that such a contract would be restricted to the terms contained in one short as alleged by the respondent.

[35]           Further, if the parties had reached a contract on the single paragraph as alleged by the respondent, then why wasn’t the contract prepared by hand or typed at the meeting before anyone left the meeting. I conclude that the reason it was not so prepared was because only general terms had been agreed to and a complete contract had to be drafted. To accept the respondent’s position would ignore the other issues that he himself has raised in his redrafted agreement of January 5, 2017.”

            Hamilton v. Hamilton, 2022 ONSC 724 (CanLII) at 10-11

“The obligation to pay support commences from the date of separation.  The court may provide retroactive child support to compensate for any deficit where a parent has failed to assume his or her fair share of the child support obligation, particularly where there is no evidence to indicate that the payor did not have the ability to pay during the relevant period. (Schmuck v. Reynolds-Schmuck (1999), 1999 CanLII 15000 (ON SC), 50 R.F.L. (4^th) 429).

The factors to be considered by the court in ordering a retroactive support award, are the reasonableness of delay in seeking support, conduct of the payor, circumstances of the child and hardship occasioned by a retroactive award. (D.B.S. v. F.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Heimstra v. Heimstra, 2006 SCC 37 (CanLII), [2006] S.C.J. No. 37)).” 

Turk v. Turk, 2008 CanLII 3420 (ON SC) at 55-56

“The general principles guiding the exercise of the court’s discretion when dealing with support pending trial were summarized by Penny J. in Knowles v. Lindstrom, 2015 ONSC 1408 (CanLII):

It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case.  Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.  These tasks are for the trial judge.  Orders for interim support are based on a triable or prima facie case.  An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (CanLII), 2012 CarswellOnt 14841 (ONSC) at para. 24.

During submissions, the meaning of prima facie was discussed.  Counsel for the Applicant argues that it is a lessor standard than balance of probabilities.  Counsel for the Respondent argues that it is higher.

Prima facie is defined in the Blacks Law Dictionary as: “At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.”  Accordingly, prima facie is a standard higher than balance of probabilities.”

            Norouzi v. Bokharaei, 2022 ONSC 615 (CanLII) at 24-26

“The CFA [contingency fee agreement] crafted by SK required Mr. Lima to pay a percentage fee based on the amount he recovered and, in addition, authorized payment of costs to SK. Sections 28.1(8) and (9) of the Solicitors Act, when read together, provide that a contingency fee agreement, which includes both a fee payable under the agreement and an amount “arising as a result of an award of costs or costs obtained as part of a settlement”, is unenforceable unless that agreement is approved by a justice of the Superior Court. Approval is granted only if the lawyer and client make a joint application for approval of the contingency fee agreement, and satisfy the justice there are “exceptional circumstances” warranting including payment of costs to the lawyer as part of the fees owed under a contingency fee agreement. SK knew an application to the court for approval was necessary, but did not make any application. SK did not tell Mr. Lima court approval was required.

Sections 28.1(8) and (9) are consumer protection legislation. The requirements of a joint application for approval and judicial approval predicated on exceptional circumstances protect clients from excessive fees and fees determined, according to contractual terms, lacking in transparency and predictability: Almalki v. Canada (Attorney General), 2019 ONCA 26, at paras. 47-50. The lack of transparency is apparent from a review of the CFA entered into by SK and Mr. Lima. Under the terms of that agreement, it was left to SK to unilaterally attribute an amount from the settlement amounts to costs. Mr. Lima could not know, from the terms of the CFA, what amount from any settlement SK would attribute to costs paid by the defendant, and therefore ultimately payable to SK as part of its total fee.”

            Lima v. Kwinter, 2021 ONCA 47 (CanLII) at 22-23

“[Grandmother’s] counsel suggested that the recent amendments to the Children’s Law Reform Act in Ontario, in particular the insertion of the word “grandparent” into section 21(1) and section 24(2)(a)(i), fundamentally changed the law on grandparent access in Ontario. Multiple decisions of this court, however, have been clear that the amendments create no new rights or enhanced standing for grandparents. In M.R. v A.L., 2017 ONSC 85, Justice McGee stated that the amendments simply “further articulate the class of persons who may seek an order for custody or access, but do not extend, or give them any special standing.” See para. 34, FN 5. See also Whitteker v. Legue, 2018 ONSC 1557 at para. 15; Capone v. Pirri, 2018 ONSC 6541 at para. 8; Tzvetkova v. Petrova, 2018 ONSC 2899 at para. 4 and Botelho v. De Medeiros, 2017 ONCJ 463 at para. 17.

In the result, notwithstanding the amendments, there is no presumptive legal right of access by grandparents to their grandchildren. The onus remains upon a grandparent seeking access to show that this is in the best interests of the child.

In the oft-quoted case of Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), 2005 CarswellOnt 3290 at para.18, Justice Nelson reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

a.   Does a positive grandparent-grandchild relationship already exist?

b.   Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and,

c.   Has the parent acted arbitrarily?

In Capone, Justice Jarvis considered what constitutes a “positive relationship” under the first branch of the Giansante test, stating that a positive relationship generally requires “time and depth.” He cited Sproule v. Sproule, 2012 O.J. No. 6423 in which the court stated that:

…to be a positive relationship, there must exist something more than an occasional pleasant experience with the children. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation in order to displace the principle of parental autonomy. See para. 15.

In Capone, Justice Jarvis held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one.” The court found in that case that given the young age of the child (six months when the application was heard), it was impossible to determine how positive the relationship between the child and the grandmother was.

In Torabi v. Patterson, 2016 ONCJ 201 at para. 74, Justice Kurz also considered what constitutes a positive relationship setting out a four-part test as follows:

a.   There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;

b.   The relationship must be constructive for the child in the sense that it is worth preserving. If relations are too poisoned, a previously positive relationship may not be capable of preservation;

c.   The determination must include the age of the child and the time since the child last saw the relative; and,

d.   A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.”

         Ninkovic v. Utjesinovic, 2019 ONSC 558 (CanLII) at 61-66

“The Supreme Court of Canada discussed the doctrine of abuse of process in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 paras. 35, 37-38, 42 (“CUPE”) and stated that judges have an inherent and residual discretion to prevent an abuse of the court’s process.  Pursuant to the doctrine of abuse of process, the court has the discretion to prevent relitigation for the purpose of preserving the integrity of the court’s process and preventing the violation of the principles of judicial economy, consistency, finality and the integrity of the administration of justice.  In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts.  See CUPE at paras. 35, 37-38, 42, 43.

The Supreme Court of Canada stated the following with respect to abuse of process by relitigation in CUPE at para. 52:

[…] It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.  There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.  […]

Similar concerns arise with respect to proceedings that have been qualified as “vexatious”.  The Court of Appeal has identified the following characteristics of vexatious proceedings (see Currie at para. 11):

1. 1. 1. 1. 1. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitute a vexatious proceeding;
            2. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
            3. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
            4. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
            5. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
            6. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
            7. the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”

Abrahams v. Attorney General of Ontario, 2022 ONSC 514 (CanLII) at 37-39

“It is trite to say that on a motion for interim spousal support, the intent is to address hardship or inequity between the parties on a means and needs basis; it is not a place to conduct an exhaustive analysis as to the quantum of spousal support.  As mentioned above, this is largely because spousal support can involve a complicated analysis of a number of factors and it is inappropriate to conduct that type of analysis on the basis of conflicting affidavits after one hour of argument on a busy motions day.  The court must base its decision on mostly uncontested facts that are either common ground or unquestioned; otherwise, the court must be cautious about going beyond a means and needs analysis in determining spousal support.

This means that the SSAGs become increasingly important at an interim motion, as the ranges are based upon the length of cohabitation and income, factors that are often easy to determine at an interim motion.  The case law confirms that the SSAGs should be applied on a motion for a temporary order as in the present case: see M.(D.R.) v. M.(R.B.), 2006 BCSC 1921 (CanLII), 2006 CarswellBC 3177, [2006] B.C.J. No. 3299 (S.C.) at para. 10 and Decker v. Fedorsen, supra at para. 28.  In Decker, Sherr J. cites Robles v. Kuhn, 2009 BSCS 1163 (Master) for the following principles concerning an award of temporary spousal support:

1. 1. 1. 1. 1. On interim support motions, needs and ability take on greater significance.
            2. On interim motions, the need to achieve self-sufficiency is of less importance.
            3. Interim support should be ordered within the SSAG (Spousal Support Advisory Guidelines) range unless exceptional circumstances dictate otherwise.
            4. Interim support should only be ordered where aprima facie case for entitlement has been set out.

Rushton v. Cuff, 2020 ONSC 490 (CanLII) at 36-37

“It is settled law that rule 25(19) of the Family Law Rules, O. Reg 114/99 includes the authority for the court to set aside an order: See Gray v. Gray, 2017 ONCA 100.  The rule provides as follows:

The court may, on motion, change an order that,

(a)     was obtained by fraud;

(b)     contains a mistake;

(c)     needs to be changed to deal with a matter that was before the court but that it did not decide;

(d)     was made without notice; or

(e)     was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

 Subsection (e) applies here. Was the respondent unable to be present on February 17, 2021 for a reason satisfactory to the court? The inquiry, however, does not end with the rule. As stated by the court in Bompas v. Henry, 2018 ONSC 7718, at para. 15,

It is my view that the inquiry should not end with r. 25(19)(e). Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly.   In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure.  That provides the court with the authority to set aside a default judgment on such terms as are “just”.  The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration.  The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief.  The factors are:

a)  Whether the motion was brought promptly after the respondent learned of the default judgment;

b)  Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;

c)  Whether the facts establish that the respondent has an arguable defence on the merits;

d)  The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e)  The effect of any order the court might make on the overall integrity of the administration of justice.  [Footnotes omitted.]”

         Ostapyk v. Ostapyk, 2022 ONSC 400 (CanLII) at 12-13

“When a party does not participate in the process, things tend to not go well.”

         Hilton v. Hilton, 2021 ONCA 29 (CanLII) at 10