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Procedure

Abuse of Process

From: Catholic Children's Aid Society of Toronto v. E.S., [2016] O.J. No. 2558 (OCJ).

78     The common law doctrine of abuse of process engages the inherent power of the court to "prevent misuse of its procedure, in a way that would... bring the administration of justice into disrepute". Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of Toronto, et al., (2003) 3. S.C.R. 77 para. 37.

79     The doctrine is flexible, and unencumbered by the specific requirements of concepts such as issue estoppel".Canam Enterprises Inc. v. Coles, (2000) 51O.R. (3d) 481 at. Para. 55.

80     The doctrine may be used to prevent "relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice". Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of Toronto, et al., (2003) 3. S.C.R. 77 para. 37

81     The Supreme Court of Canada has made observations as to why relitigation of an issue is to be avoided as a matter of public policy:

* There can be no assumption that relitigation will yield a more accurate result than the original proceeding;

 

Relitigation is a waste of judicial resources.

* An inconsistent result in the subsequent proceeding "in and of itself will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality".

Adding Parties

Following factors are relevant: 1. whether it is in the best interests of the child; 2. whether it will delay or prolong proceedings unduly; 3. whether it is necessary to determine the issues; 4. whether the additional party is capable of putting forward a plan that is in the best interests of the child. CAS of London and Middlesex v. H.(S.) [2002] O.J. No. 4491. SCJ.

The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party.  It is not necessary for the court to determine at this stage whether the plan of the proposed added parties would be successful; the question at this stage is whether their plans merit consideration, despite the delay in bringing it. Catholic Children’s Aid Society of Toronto v. H.D. 2009 ONCJ 2.

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Possession of relevant evidence may make a person a witness, but does not elevate them to party status. Noik v. Noik, 2001 14 RFL (5th) 370 (SCJ).

Can add biological parent in support case to apportion support. Kocsis (2002) 31 R.F.L. 5th 338.

Adjournments – It is a matter of discretion that must be used judicially. Barrette v. The Queen 29 CCC (2d) 189. The concerns of both parties and the public interest must be considered. Re: Flamboro Downs Holdings Ltd. And Teamster Local 879 (1979) 24 O.R. (2d) 400 at 404. The court must look at whether the party would receive a fair trial without counsel. R. v. Gonsalves (2005) O.J. No. 1238 (CA).

The decision to deny an adjournment is discretionary, and will only be interfered with if the trial judge failed to take account of relevant factors and exercised his or her discretion unreasonably, such that the decision is contrary to the interests of justice: Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248, at para. 17.

Adoption – Adult adoptions

Four-part test set out in Re. M.S.Z. 2010 ONCJ 423 (OCJ):

1. The adoption would create an actual (not just a legal) change in the relationship between the applicant and the proposed adoptee.

2. Both parties are not only aware of the legal incidents of adoption; they mutually intend those incidents to govern their relationship.

3. The application is motivated by a psychological and emotional need on the part of the proposed adoptee for a new parent or for a parent to fill the “gap” from a parent that the adoptee never had or never knew.

4. The relationship between the applicant and the proposed adoptee would be “enhanced and strengthened” by an adoption order.

Adoption – Adult adoption – Consent of biological parent

The case law is settled that where a child is 16 years of age or more, and has withdrawn from parental control, or where the person to be adopted is over the age of 18, the consent of the proposed adoptee's parent to the adoption is not required. See: Q. (A.L.K.), Re, 1996 CarswellOnt 353 (Ont. Prov. Div.).

Adoption – Adult adoption – notice

The biological parent must be given notice of the adoption. C.L.W., Re, 2018 CarswellOnt 5400 (Ont. C.J.). The court wrote:

28 There is another, more fundamental reason, why notice is required, even when the person to be adopted is an adult. The parents of an adult who is the subject of an application for adoption have legal rights that are limited but do exist. The granting of the adoption will likely defeat the legitimate claim of the proposed adoptee's existing parents under other legislation. For example,

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pursuant to section 32 of the Family Law Act, RSO 1990, c F.3, every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. The adoption order will irrevocably terminate this right.

30 Further, the very fact that an application is made for an adult adoption order demonstrates that, at least for the people involved in the case, the legal status of parent is important. Otherwise they would not seek such an order. There are several other contexts in which the legal status of parenthood is important even when the "child" is an adult: wills, intestacies, income tax, and probably others. The adoption order could advertently or inadvertently irrevocably alter the parents' legal position.

Adoption – Dispensing with consent - Justice Smith set out the test to apply when deciding whether or not to dispense with consent of the natural parent to an adoption, which is set out in Section 138 of the Child and Family Services Act. That test is simply that it must be in the child's best interest to do so. This is developed in a decision of Justice Robertson, in M.A.L. v. R.D.M., 2005 CarswellOnt 1069 (Ont. S.C.J.) which set out the following principles:

1. The court must consider the best interests factor set out in Section 136 of the CFSA;

2. The court must balance what the child will gain and lose, with emphasis on what the child will gain;

3. The decision must take into account the child's wishes, as best those can be ascertained;

4. The court must consider the child's existing family reality.

Adoption- Notice to Biological Father:

The court is not required to simply accept the word of the biological mother that a known biological father does not qualify as a parent within the statutory definition without notice being given to him that this issue is before the court.  Form 34A requires the birth mother to name the biological father if she knows his identity.  There must be some purpose intended by requiring that this information is before the court.   Family Law Rule 34(4).3 set out above expressly enables the court to require other evidence in addition to that provided in the Form 34A .This is clearly sufficient authority for a judge to either require more information from a birth mother before finding whether there is any other person who qualifies as a parent or, in combination with rule 7(2) to require that notice be given to the biological father so that he may decide whether or not to offer evidence on that issue. See: Re: J.V. [2011] ONSC 440 Canlii.

An adoption should not be granted to circumvent immigration law. Re: K. (1978) 21 O.R. (2d) 748 (Ont. C.A.).

Affidavits (without notice) – On ex parte motions and supporting affidavits need to be scrupulously honest or it will be set aside. Sangster v. Sangster, 2003 O.J. No. 69

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(Ont.C.A). Counsel must make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those which are adverse to his position. Alexander v. Cherry, 2007 ABCA 128. Material in support of an ex parte order must be served promptly. Ben-Lolo v. Wang 2010 85 R.F.L. 6th, 301 (Ont. SCJ). Failure to comply with a provision in the rules isn’t necessarily fatal. Ali v. Ibrahim, 2011 ONSC 5891Canlii.

Ex-parte orders, particularly in custody cases, can cause enormous harm and the need for caution is even more significant. See Alexander v. Cherry, 2007 CarswellAlta 863 (Alta. C.A.).

From: A.M. v. J.M. 2016 ONCA 644:

[28]       Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.

[29]        Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

[30]       That requirement is well-known to lawyers. It applies equally to self-represented parties.

While it is important for parties bringing such motions to make full, fair and candid disclosure, the standard is not perfection. The court recognizes that such motions are often rushed given the exigencies of the situation and that the evidence is unlikely to be as comprehensive as when the parties have had more time to gather and organize it. LeBlanc v. LeBlanc, 2018 ONCJ 499.

Affidavits – General

You cannot put what a lawyer has told you in an affidavit as a back-door method to get it in. Zanewycz v. Zanewycz, 2009 CarswellOnt 149 (Ont. S.C.J.)

The raising of entirely new issues in a reply affidavit should be struck out. Roffey v. Smith, 2001 O.J. No. 3021 (OCJ). The judge should only review the material set out in the motion. Maguire v. Maguire, 2003 O.J. No. 1760 (SCJ).

It is not necessary to respond to irrelevant allegations by making further irrelevant allegations.  A simple statement that the allegations are denied coupled with a statement that the deponent understands that the original allegation is irrelevant, will suffice.  Litigants must trust that judges will ignore irrelevant material.  If there is significant concern in this regard, the irrelevancy of the impugned paragraphs can be emphasized in submissions.  Of course, it is also possible to bring a motion to strike out the offending paragraphs; however, this is a cumbersome and expensive process. Serafin v. Serafin

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2010 ONCJ 37. Also: An affidavit should contain relevant facts and should not contain argument or submissions.

Affidavits – Lawyer or staff as affiant

From: Evans v. Evans, 2017 ONSC 5232

[7] Generally, this is not good practice. However, in the circumstances of this case, the Court finds that it must deal with this case justly, which includes allowing the Respondent’s counsel, who is most familiar with the file, to argue this motion. This issue was only raised by the Applicant at the return of the motion. An adjournment will cause expense and delay (see FLR 2(2)).

[8]               In addition, the Court is guided by Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965 (Ont. Sup. Ct.) [Murphy], where Master Kelly relaxed the rule when he found that the lawyer was not only of the opinion that the client was under a disability, but that she had a professional duty not to abandon the client and to continue the action until the issue of the client’s capacity was determined.  He stated at para. 5:

This is not a case where Ms. Dorrett is placing her credibility in issue on contentious matters affecting the other parties.  Her role is more akin to that of an officer of the Court fulfilling a responsibility to apprise the Court of requisite information necessary to the Court to enable an appropriate decision to be made.

Affidavits – Letters attachedLetters should not be attached to affidavits- Lisanti v. Lisanti 1990 CanLII 4229 (ON C.J.); Clark v. Vanderhoeven 2011 ONSC 2286 Canlii.

Affidavits - Redaction- The court has the discretion to redact parts of an affidavit on a motion before service to prevent harm to a child or party. Barrios v. Barrios 2007Canlii 38938 Ont.SCJ.

Agents - The proposed agent needs to file material served on the parties. It needs to address the issue of availability of solicitor representation and informed consent. It should include, the qualifications, education and experience, how the qualifications relate to the nature of the representation, whether the paralegal is subject to any direction or supervision, evidence of good character, any insurance or compensation funds and whether the paralegal is knowledgeable and prepared to abide by the relevant code of conduct, the extent of the representation being requested. Equiprop Management Ltd. v. Harris, 2000 51 O.R. (3d) 496 (Ont.Div.Ct.) A disbarred lawyer should not act. Kopyto v. AG Ontario 1997 O.J. No. 3935 (Ont. Div. Ct.). Mamchin v. Mamchin-Burdman, [2006] R.F.L. 29, 30 (Ont. SCJ): competence includes integrity and honesty. Court must know confidentiality will be honored. Must prove insurance coverage or understand implications of no insurance. Familiarity with rules is a starting point for competence.

Representation by agent should generally only be allowed in exceptional circumstances. Principles for the court to consider are set out in Katz v. McNevin, 2012 CarswellOnt 10939 (S.C.C.), citing Stone v. Stone, 4 R.F.L. (5th) 433 (Ont. S.C.J.), Stone v. Stone, 5 R.F.L. (5th) 151 (Ont. S.C.J.), Loney v. Loney, 2004 CarswellOnt 3727 (Ont. S.C.J.), and

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Pires v. Dedvukay, 81 R.F.L. (6th) 231 (Ont. C.J.). A review of these cases makes it clear that the following are the principles that should be considered.

There exists, in the courts of Ontario, a very limited judicial discretion to permit non-lawyers to represent parties in civil matters before them. The exercise of that discretion, in any case, would constitute an exemption to subsection 50(1) of the Law Society Act, R.S.O). 1980, c.L.8, which generally prohibits non-lawyers from appearing in court to represent people "except where authorized by law". Rule 4(1)(c) of the Family Court Rules must be read concurrently with that general prohibition.

Rule 4(1)(c) should not be regarded as a substantive change in the law respecting who may represent parties in family law matters. It should instead be interpreted in a manner consistent with existing legislation and the vestiges of the inherent powers of the judiciary to authorize lay representation in the courts; i.e. as a codification of that limited discretion.

Rule 4(1)(c) therefore ought to be interpreted narrowly. It should be implemented only in limited cases where the party requesting non-lawyer representation demonstrates, in a convincing way, that there are "special circumstances" and that the proposed representative has "special expertise" justifying such representation.

Inability to afford a lawyer is not, in and of itself, a "special circumstances" warranting non-lawyer representation pursuant to Rule 4(1)(c).

General litigation experience alone, or experience as a self-represented litigant, does not constitute "special expertise" in the sense required. Nor does familiarity with a litigant's case.

When considering requests pursuant to Rule 4(1)(c), courts should be ever mindful of the dangers inherent in non-lawyer representation, which include the following:

• Non-lawyers are not bound by a code of ethics;

• The solicitor-client privilege will not exist between lay representatives and their clients;

• There usually will be no liability insurance to protect clients from negligence; and

• Above all, most lay representatives will lack the necessary training, education and experience in litigation to properly represent their clients.

The court did not permit a lawyer forced to resign by the Law Society to act as an agent in Pires v. Dedvukay, [2010] O.J. no. 294 (OCJ). The court did not permit a lawyer, suspended administratively by the law society to act in Scarlett v. Farrell, 2014 ONCJ 194 (CanLII). In both of these cases the purported agent wasn’t transparent about their history with the Law Society. Also, in Scarlett, the stepfather had an interest in the outcome; it affected his step-grandchild and he had demonstrated that he lacked the emotional distance and judgment to properly represent his step-daughter.

The court did not permit the mother’s daughter represent her as it would place the child squarely between her parents. Kim v Kim, 2018 ONSC 167. The courts reviewed the following considerations from the case law at paragraph 15:

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a. The increase in the number of self-represented litigants in family court has renewed discussion of representation by non-lawyers (professional or otherwise).

b. The court has the discretion to permit a non-lawyer to represent a party in a family proceeding.

c. But legislation such as the Law Society Act and the Solicitors Act are specifically intended to provide governance with respect to representation; and ensure that legal rights and the legal process are treated with competence, integrity, honesty, respect, efficiency and fairness. The proper administration of justice requires proper legal representation and advocacy.

d. Generally, the case law suggests Rule 4(1)(c) should be interpreted narrowly, as conferring a limited and cautious judicial discretion to permit non-lawyers to represent parties in civil matters.

e. A party requesting non-lawyer representation must demonstrate that there are “special circumstances” justifying the request; and that the proposed representative has “special expertise” justifying such representation.

f. Inability to afford a lawyer is not, in and of itself, a “special circumstance” warranting non-lawyer representation.

g. The increasing option of “unbundled” legal services may also make it more realistic for parties to retain counsel for individual steps, rather than having to rely on non-lawyer representation.

h. Familiarity with a litigant’s case is not in itself justification for non-lawyer representation. Indeed, if that familiarity is based on personal involvement with the parties, that lack of detachment may mitigate against the layman being allowed to be a representative. The closer the personal relationship between the litigant and the proposed representative, the greater the potential that representation by the non-lawyer will compromise the administration of justice. Representation by a friend or family member may create a conflict of interest because the personal relationship may interfere with objective and detached participation in the process.

i. In family matters, representation by an adult child with respect to a favoured parent may aggravate and inflame proceedings, particularly if the estranged parent is also self-represented. We generally discourage adult children from being present in court even as witnesses. Placing an adult child in a position of advocate in a high conflict dispute jeopardizes not only the integrity of the court process – it also needlessly extinguishes any possibility of family repair. Children – even adult children – should be left out of it.

j. And in cases where an adult child might have a vested interest in the outcome of a case – such as here, where post-secondary child support for Tara is in issue – there is a heightened potential for perceptions of conflict of interest and unfairness.

k. The court must be mindful of the dangers inherent in non-lawyer representation. Non-lawyers are not bound by a code of professional ethics. Solicitor-client privilege does not exist. There will usually be no liability insurance. Most lay representatives will lack the necessary training, education and experience in litigation to properly represent their clients.

l. Considerations with respect to non-lawyer representation may differ depending on the stage of the proceeding. In case management, a layman’s assistance may be more acceptable. At trial, the importance of the representative’s ability to present and challenge evidence becomes elevated. A

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motion entailing submissions on affidavit materials on a narrow issue may fall somewhere in the middle.

m. The court must balance two competing values: (1) Maintaining the integrity of the administration of justice, and (2) Not interfering with the right of litigants to counsel or representation of their choice. When balancing these values, the predominant consideration is the integrity of the justice system.

Agreements – Enforcement (also see Minutes of Settlement)

A lawyer has authority to make a binding settlement agreement on behalf of a client unless the authority is limited by a client and the limitation is known to the opposing lawyer. Tobin v. Cox, 2015 CarswellNfld 119 (N.L. T.D.), and Scherer v. Paletta, 1966 CarswellOnt 119 (Ont. C.A.).

Notwithstanding an offer and acceptance, a court still has a discretion in family law matters to decline to enforce the agreement. In Nigris v. Nigris, 44 R.F.L. (4th) 269 (Ont. Gen. Div.) and Trembath v. Trembath, 1993 CarswellOnt 3974 (Ont. Gen. Div.) a court considered the following matters in determining whether to exercise discretion with respect to enforcement.

1. Whether the settlement is unconscionable and improvident.2. Has the person resiling been subject to an inequality of bargaining power as explained in such cases as Lloyd's Bank Ltd. v. Bundy, [1974] 3 All E.R. 757 (Eng. C.A.) at 763 and 765?3. Has a party failed to act in good faith?4. Did counsel act without authority?5. Are the terms of the agreement sufficiently clear that an attempt to enforce them will not spawn further litigation?6. Does the agreement encompass most if not all of the issues in dispute?7. Was the settlement negotiated with the parties physically in each others presence?8. What period of time has elapsed between the agreement and notification that a part is resiling?9. At what stage in the litigation did the negotiations take place?10. Has the other party suffered a disadvantage as a result of the agreement being abrogated?

From: Hand v. Hand, 2018 ONSC 5940:

Even where there is a settlement whether by an Offer and Acceptance pursuant to the Family Law Rules, an exchange of letters between counsel or, as in this case, a party accepting the other party’s revisions to a proposed agreement, the Court has a discretion to refuse to grant judgment. But that discretion is limited. In

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Bailey v. Plaxton, [2001] O.J. No. 1111, a wife was surprised when her husband accepted an offer to settle that she had made. Mesbur J. granted the husband summary judgment enforcing the settlement.

Cases where the court has exercised its discretion, and refused to grant judgment in accordance with an accepted offer, are limited to circumstances like:

* a mistake in the instructions;

* a settlement concluded by mistake, because the offer was mistakenly accepted;

* an acceptance of an offer made years before the acceptance;

* essential terms of the offer are left open for future negotiations;

* no intention to create a binding settlement agreement.

In Smith v. Robinson, [1992] O.J. No. 36 (Ont. Ct. Gen. Div.) and in McIntosh v. Smith, [1995] O.J. No. 3067, both of which Mesbur J. referenced in her decision, the court in each case declined to grant judgment on offers accepted several years after they were made in circumstances where new counsel had been retained, and they were unaware of the earlier offers. There were many intervening steps or case events. The court considered, and weighed, the prejudice to each party and ruled that enforcing settlement would be unfair. While there was no such passage of time in this case as in those cases, neither of them involved children.

Amendments-

Leave to amend a pleading should only be denied in the clearest of circumstances. TSI International Group Inc. v. Formosa, 2017 ONCA 261.

As a general rule a necessary amendment ought to be allowed provided the party applying is acting bona fide and that it will not prejudice the opposite party in a way that cannot be compensated for in costs. C.N.R. v. Muller, [1933] Canlii 372 S.C.C; Should be granted even if omission is late, careless or negligent, if no injustice and can be compensated in costs. Hauser [2008] S.J. No. 63 Q.B.

From: Fraser v. Fraser, 2017 ONSC 3774:

Various decisions of our court have confirmed that Rule 11(3) generally is mandatory, absent prejudice or disadvantage to another party that cannot be cured by either an award of costs or the granting of an adjournment or both.  It generally does not matter whether

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the amendment is prompted by a change in the case, is merely an afterthought, raises a new issue, or comes as a surprise to the responding party. However, unfairness to a party resulting from a proposed amendment must be curable by costs, or an adjournment, or both.  Moreover, the existence of bad faith is an exception to everything.   In particular, where it can be shown that an amendment is motivated by bad faith, there is an inherent jurisdiction in the court to refuse the amendment.   See, for example:  Stefureak v. Chambers (No. 3), 2005 CanLII 16090 (ON SC), [2005] O.J. No. 1949 (S.C.J.), and Canabate v. Ayala, 2009 ONCJ 415 (CanLII), [2009] O.J. No. 3904 (S.C.J.).

To the contrary:

Mio v Mio, 2014 ONSC 2186 (CanLII), where the court would not permit a late amendment to claim retroactive support as the disadvantage of delay could not be compensated with costs. The court said rule 2 must be considered as well as subrule 11 (3).

Request to Amend Answer denied near the eve of trial, when the only remaining issue was support. The moving party wanted to seek joint custody.  Rule 11(3) could not have been intended to open the door to a complete reassessment of a party’s case.  The appropriate time for bringing amended documents is relatively early in the proceeding, when the parties are still formulating their positions, and certainly before there are Final Orders. Bursey v. Mirabi, 2017 ONCJ 157.

If a claim is amended, it must be served on the respondent, even if their pleadings were struck and they were disentitled to participate under rule 10(5). Stephens v. Stephens, 2010 ONCA 586.

Amicus – Amicus curiae appointed for parents in a high conflict case in Morwald-Benevides v. Benevides, 2015 ONCJ 532 as there were complex legal and social issues. The mother was emotionally incapable of presenting her case properly. The court reviewed the following principles from the case law:

(a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d) There are many scenarios to which amicus may apply.  The class of scenarios is not closed.  There is no “one size fits all” standard.

(e) The power to appoint has a high threshold.  Such should be exercised sparingly and with caution.  Appointments should be made in response to specific and exceptional circumstances.  A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

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(f) The judge decides the terms and conditions of the role, which may vary widely.

(g) Caution is to be exercised if an appointment mirrors the role of a defence counsel.  The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party.  In such a case, clear directions must be given to the party and amicus.

(h) There is no solicitor-client privilege between an amicus and a party.(i) Only the judge can dismiss an amicus, not the party.(j) An amicus may override so-called instructions or directions from a party. 

An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus.

Note: These principles were endorsed on appeal. Court found that there were exceptional and unusual circumstances to justify the appointment. See: Morwald-Benevides v. Benevides, 2019 ONSC 1136.

Amicus – FundingAlthough the Attorney General and a court appointed amicus should discuss rates and the mode of payment, there was no obligation on the Attorney General to negotiate rates. It could pay counsel prepared to take legal aid rates. Morwald-Benevides v. Benevides, 2017 ONCA 699, 2017.

Answer – Extension of time to file

Permitted under subrule 3 (5) of the Family Law Rules. Factors to consider set out in Wilkinson v. Wilkinson, 2018 ONSC 1864. Court to consider rule 2 and the following:

a.      Wherever possible, the adversarial structure of a proceeding should be maintained as denying a party the right to participate may lead to factual errors giving rise to injustice. Cohen v. Cohen, 2015 CarswellOnt 11444 at 24, citing Purcaru v. Purcaru, 2010 ONCA 92 (CanLII) at 47.

b.      Extending time enables the Court to deal with the substantive issues fully and justly, with the benefit of the Respondent’s position, evidence, and argument. Grand v. Ontario (Attorney General), 2016 ONSC 3434 (CanLII), 2016 CarswellOnt 8390 at 14.

c.      It is important that all of the information necessary for a full adjudication of the issues on their merits is before the Court, as otherwise a miscarriage of justice could result. Homanchuk v. Filipovic, 2010 ONSC 1372 (CanLII) at 9;

d.      Where an Answer is prepared and not delivered, through inadvertence, but both parties have treated the matter as defended throughout, time should be extended for delivery of the Answer. Bruvels v. Guindon, 2000 CarswellOnt 539 at 7.

e.      There is no practical difference between refusing to extend time and striking a party’s pleadings. Pleadings should be struck only in exceptional cases and where

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no other remedy would suffice. Purcaru v. Purcaru, supra at 49 as cited in Cohen, supra at 24, 26. The discretion to deny participation in a case must be used sparingly and with caution.

f.        Even in cases where the Court finds that the Respondent’s reasons for delay are not satisfactory or the Court finds that the Respondent’s explanation for his or her failure to respond is not plausible, the Court may exercise its discretion in favour of extending time, to ensure that the issues are adjudicated on their merits. Homanchuk, supra at 13; Ong v. Tan, 2008 CarswellOnt 3827 at 11, 18, 19.

g.      In the context of family law cases in particular, it is important to determine whether any prejudice to the Applicant, if an extension is given, can be addressed as a term or terms of granting the extension. There is broad discretion to impose terms if the Order sought is granted. Homanchuk, supra at 14.

h.      Costs Orders are one way in which the Court may sanction dilatory conduct on the part of the Respondent in failing to follow the timelines set out in the Rules. Grand, supra at 17.

i.         Wilful disobedience of Court Orders may lead a Court to deny a request for an extension of time. However, “persuading an adversary to comply with Orders of the Court must be weighed against factual errors and injustice, especially in the area of family law where there may well be, as there will be in this case dealing with support, continuing obligations.” Cohen, supra at 30.

Appeals -   In the context of a custody case, the trial judge is expected to consider each factor set out in the Children's Law Reform Act which speaks to the best interests of the child, in light of the evidence adduced at trial. In particular, section 24 requires the court to consider eight specific factors in determining what is in the best interests of a child. Este v. Gaudette, [2008] O.J. No. 3392 (SCJ).

Misheal v. Okel, 2008 ONCA 832 – Court can hear change motion even if original order under appeal.

Highland Shores Children’s Aid Society v. C.S.D., 2017 ONCA 74 – Where the Superior Court of Justice set aside a summary judgment decision and sent it back to the Ontario Court of Justice for trial , the court said that the Superior Court of Justice decision was interlocutory and the proper appeal route was to the Divisional Court.

Arbitration – Ontario Court of Justice only has jurisdiction under s. 6 and 7 of the Arbitration Act. It can’t remove an arbitrator, enforce an award or set aside an award. This must go to the Superior Court of Justice or Family Court. Court should rarely make an order when the mediation/arbitration process is in place, limited to a child’s best interests. McAlister v. Gallant, 2012 ONCJ 565 (CanLII).

While it is open for both parties to waive their right to arbitration and consensually go to a court and not proceed by way of arbitration, it is not open to a party to unilaterally do so. Parker v. Pal, 55 R.F.L. (7th) 91 (Ont. S.C.J.). The court does have a limited power to intervene in emergency situations and make appropriate orders when it is in

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the best interests of the children. Rosenberg v. Minster, 2014 CarswellOnt 1563 (Ont. S.C.J.).

Attornment – From: Kunuthur v. Govindareddigari, 2018 ONCA 730: A party attorns to a court’s jurisdiction when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits: see Van Damme v. Gelber, 2013 ONCA 388 (CanLII), 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused, [2013] S.C.C.A. No. 342; and Wolfe v. Wyeth, 2011 ONCA 347 (CanLII), 282 O.A.C. 64, at para. 44.

Bias – Judicial

From: Carby-Samuels II v. Carby-Samuels, 2018 ONCA 664

There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The test is whether a reasonable, informed person, viewing the matter realistically and practically – and having thought the matter through –  would conclude that it is more likely than not that the judge, whether consciously or unconsciously would not decide fairly: see Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2017] O.J. No 6324, at para. 84.

Breach of court order – see enforcement of court order

Case Conferences - Rosen v. Rosen, 2005 O.J. No. 62 (Ont. SCJ) - Motions before case conference require urgency. Court states:“an urgent motion contemplates issues such as abduction, threat of harm, dire financial circumstances. Counsel must first make an inquiry to see if an early case conference date can be obtained. If there is a long delay, that could make the issue critical. Counsel should also first try to obtain a short-term agreement.

Hurd v. Hurd (2006) CarwellOnt 2843 (SCJ) – where no access being given and a 6 week wait until a case conference, this was found to qualify as an urgent motion.

Kobow v. Kobow (2007) CarswellOnt 7238 (SCJ)- In considering urgency the court must balance the urgency claimed against the irreversible impact of the exchange of inflammatory and provocative affidavits and how it would affect the ability to resolve the case. Attempts should also first be made to make short-term arrangement or obtain early case conference date.

Bordynuik v. Bordynuik, [2008] O.J. No. 3049 (Sup. Ct.) - Settlement discussions at a case conference are confidential and cannot be used in future proceedings.

Chang v. Li, 2008 CanLII 65754 (Ont. SCJ.) Judges at case conferences and settlement conferences will generally make orders only of a procedural and not of a substantive nature.  Court satisfied that it could properly make an order requesting the participation of the Children’s Lawyer.

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However: In Burke v. Poitras, 2018 ONCA 125, the court upheld an order striking pleadings at a settlement conference and wrote at paragraph 5:

[5] First, subrule 17(8)(b.1), which sets out a list of final or temporary orders that may be made at conference so long as notice has been served, contains no explicit  restrictions on the kind of final order that may be made at a settlement conference beyond the provision of notice. 

Chern v. Chern, (2006) 22 RFL (6th) 78 (AlbCA) – any substantive orders at case conferences should be supported by evidence. Admissions should be clear. It is important to distinguish between evidence and counsel submissions.

Notice must be given before a court can make a substantive order at a conference under Rule 17 (8) (b). Claiming the relief in the pleading is not sufficient. Robinson v. Morrison [2000] O.J. No. 2973 (SCJ) and Tran v. Moussavi [2009] O.J. No. 430 (SCJ).

If notice is given, a final order can be made at a case conference. The court should look at Rule 2 to determine if the procedure is just. Merko v. Merko, 2008 ONCJ 530 (CanLII).

From A.B. v. N.L.A., 2013 ONSC 2990 (CanLII):

Conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure, and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.

In making the decision about what is appropriate, a judge must consider the objectives of the Rules, the various remedies the Rules offer and the guidance of Rule 17 as to what orders can clearly be made. The judge must pause when considering orders that do not merely preserve temporarily the status quo and protect parties and children. In the absence of consent, final orders must only be made be based on evidence.

The case conference judge expressed views on the merits of the case in the course of the conference and thereafter should not have heard any substantive motions or the trial. Similarly, the judge should not have made final substantive orders at a conference.

There may be limited and exceptional circumstances in which a case conference judge may make a final order provided it is upon notice and in line with the broad objective of dealing with cases justly. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support and ensure necessary disclosure and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent. In making the decision about what is appropriate, a judge must consider the objective of the Rules, the various remedies the Rules offer and the guidance of Rule 17 as to what orders can clearly be made. See: Sheng v. Qi, 2018 ONSC 4505.

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Case Management – From: Gallicano v. Faber, 2015 ONCA 290

[11]       Active case management is one of the underlying philosophies of the Family Law Rules, O. Reg. 114/99. Rule 2(5) places an obligation on courts to actively manage cases in order to promote just resolutions. Active case management is defined in the Rules as including the early identification of issues in a case, setting timetables or otherwise controlling the process of the case. 

[12]       Rule 39(9) lists the functions of a case management judge, who is required to supervise the progress of the case, to conduct conferences and to hear motions. Rule 39(9) is seen as the gold standard of case management, but it only applies to cases in unified Family Court jurisdictions. Since this case was not decided at a unified Family Court site, the more sparse case management provisions of r. 41 apply. This rule does not explicitly list the functions of a case management judge. This distinction in the Rules reflects the fact that unified sites historically had more judicial resources and therefore could provide more active case management.

[13]       However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).

[14]       In Norman v. Connors, 2010 ONSC 1975, [2010] O.J. No. 1564, at para. 34, Gordon J. noted that in non-unified Superior Court sites, litigants are sometimes denied the benefit of active case management as described in r. 39.  Despite the lack of resources, he stated that the court must step in and impose case management, by relying on the general provisions of the Rules and the court’s inherent jurisdiction.  This is particularly so in high conflict cases. 

[15]       I would agree with this approach to case management. It permits reasonably quick access to justice before a judge who is familiar with the relevant facts and with the parties. It is proportionate, within the meaning of r. 2(3), since the frequent resort to the court in high-conflict cases would otherwise rapidly consume too many judicial resources, as judge after judge is forced to learn the details of an ever-burgeoning file.

This case was relied on to support a case management judge hearing a contested motion after conducting a case conference in McCoy v. McCoy, 2015 ONCJ 259.

D.G. v. A.F., 2015 ONCA 290: Court of Appeal upholds a decision where trial judge seized the case and heard subsequent motion to change stating:

Active case management is one of the obligations of the court pursuant to Rule 2(5), and includes early identification of issues, setting timetables and otherwise controlling process. It applies even where judicial resources are sparse, and is particularly so in high conflict cases. Keeping the case before a judge who is familiar with the relevant facts is a proportionate and principled response reflective of the obligations of active case management. (paras 11-15)

In Peters-Webb v. Cloutier, 2017 ONSC 6139 the trial judge seized himself of the case for two years when litigants were frequently coming to court and prohibited further motions without leave of the court – supporting documentation not to exceed one page.

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G. (N.R.) v. G. (R.G.) 2017 BCCA – a case management judge shouldn’t stay seized of a case if they have lost their “judicial equanimity” and “centered objectivity”.

Also see: Control of court process

Contacting judge – It is improper to deliver a letter to a judge making further submissions after a motion. Rule 1.09 provides that when a proceeding is pending before the court, no party to the proceeding or their lawyer shall communicate about the proceeding with a judge, unless all parties consent, or the court orders otherwise. Timleck v. Beltrano, 2014 ONCA 585.

Control of Court Process -  The Ontario Court of Justice has the powers to control its own process and may establish procedural tools to ensure the process is fair, effective and efficient.  In R. v. Felderhof 2003 CanLII 37346 (ON C.A.), (Ont. C.A.), Appeals Justice Marc Rosenberg stated,

[41]         Even a statutory court, such as the Provincial Offences Court, has the implied power to control its own process.  . . .

[43]         . . .  It seems to me that by necessary implication it must have the procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies.

This trial management power extends to the careful exercise of judicial supervision over the tactical and other conduct of litigants and counsel before the court: Krieger v. Law Society of Alberta, 2002 SCC 65   (CanLII) , [2002] 3 S.C.R. 374, per Iacobucci and Major JJ., for the court, at para. 47.  It follows, in my view, that a presiding trial judge, in the exercise of his or her discretion, is empowered to take those lawful and reasonable steps that he or she concludes are necessary to control uncivil or other unacceptable conduct by all participants in open court, including advocates. Groia v. The Law Society of Upper Canada, 2016 ONCA 471.

Court orders in T. v. D., 2019 ONSC 644 included:

1. The parties shall not email the court nor write to the judge. If they wish to speak to the judge, they will seek a case conference.

2. Case conference briefs must be filed in accordance with the Rules. Briefs shall be no more than ten pages in length. Attachments are permitted but the parties shall not create attachments for the purpose of making further submissions or putting before the court additional facts; rather attachments must be documents in support of facts alleged in the briefs, aids summarizing facts in the briefs, or proposed draft documents. Briefs must have left, right, top and bottom margins of at least 1 inch, font must be at least 12 point, and paragraphs must be at least 1.5 spacing. Court staff are directed not to accept any briefs that a party attempts to file late, or any brief that does not comply with the Family Law Rules or the directives set out in this paragraph. If a brief is accepted in error that does not meet these requirements, the court will not read it.

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3. No party shall bring or return a motion without leave granted by the case management judge or her designate at a case conference – the order being made under r. 14(21) due to the history of this litigation which has included the misuse of judicial resources.

4.A party seeking leave to bring a motion must include in their case conference brief a draft notice of motion setting out all the relief they intend to seek. If leave is given to bring a motion, it shall be by way of endorsement attaching a copy of the notice of motion, amended if appropriate, for which leave is granted. The endorsement shall also prescribe directions for the motion, including a timetable and the materials that can be filed, including the length and formatting of documents. Parties can expect that, except in cases of urgency, all motions shall be brought on at least ten business days’ notice. Court staff shall not accept for filing any motion materials that do not comply in every respect with the Rules or with the endorsement granting leave.

From: R. v. Perino, 2019 ONCA 444:

22 The right of a trial judge to control and manage the trial process is not a new one. It is well-established that trial judges have the authority to ensure that trials proceed not only fairly, but also efficiently. In exercising that authority, trial judges are entitled to take a number of steps, including restricting counsel's questioning of witnesses to ensure that that questioning is not unduly repetitive. On that point, by way of example, in R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, Watt J.A. said, at para. 92:

A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: [Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47], at paras. 233-34.

Counsel – A thorough review of the right to order appointment and remuneration of counsel is set out in Perino v. Perino, 2009 CanLII 82009 (ON S.C.). In this case, the court appointed counsel for an adult disabled child.

Counsel – Cannot have discussions with client during cross-examination

In Forsythe v. Tone, 2018 ONSC mistrial declared because counsel discussed case with client during cross-examination. Court says at par. 30:

It is a vital ingredient in our adversarial justice system — a system premised on the idea that forceful partisan advocacy facilitates truth-seeking.” In our system of justice, that forceful partisan advocacy takes place within a well-understood framework that ensures a fair trial for all parties. That framework requires that a witness under cross-examination be considered the witness of the party cross-examining. The witness under cross-examination is not available for discussion with his or her counsel. Preparation of a witness ends when examination in chief ends. When one party breaks this rule, the imbalance in the forceful partisan advocacy on which our system depends is obvious. It is not fair, nor does it appear to be fair.

The court goes on to say in paragraph 32:

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Unfortunately, despite the emphasis in our family law and civil rules on early and full disclosure, it is not uncommon for a witness under cross-examination to locate relevant documents that have never been produced before. In such situations, counsel is not without options. If counsel becomes aware of relevant documents not previously disclosed, counsel can rise at the earliest opportunity, in the absence of the witness, to advise the court of the fact that relevant evidence has been located. The court can then determine the best way to deal with the situation to ensure the trial is conducted fairly and justly, and having regard to the parties’ disclosure obligations. Counsel should not, however, engage with the witness in any discussions about the witness’s evidence, documents, or the issues in the case. The most prudent course of action is to discuss nothing at all with the witness – not even the score in last night’s game. Counsel should make clear to her witnesses that, once they are under cross-examination, all communication of any kind is prohibited.

Credibility – If affidavits have not been cross-examined upon and there are material facts in dispute, there should be a trial. Ierullo v. Ierullo 2006Canlii 33301 (CA). However, distinguished if the court can make findings based on collateral evidence, even if affidavits of the primary parties are in dispute. Damiani v. Damiani, 2008 CanLII 60702 (ON S.C.).

Findings of credibility can be made for the limited purpose of the motion if the record can support such a conclusion. Cunningham and Cunningham v. Front of Yonge [2004] O.J. No. 4104 OCA.

Default of Order – Proceeding by Form 23c

From Roberts v. Santilli, 2019 ONSC 64:

[3]          If a respondent does not file an answer within the time prescribed by the Rules, then counsel or a party should write to the respondent indicating the requirements of the Rules, and setting out clear steps such as a case conference. I suggest that applicants should refer self-represented respondents to “A Guide to Process for Family Cases at the Superior Court of Justice”, at www.ontariocourts.ca/scj/files/pubs/guide-family-cases-EN.pdf, and the resources available at the Family Law Information Centres (FLICs) at each Superior Court of Justice where family cases are heard. The applicant may also schedule a case conference, on notice to the respondent, to get the matter on track. These will generally be more productive steps than proceeding immediately, without notice, for an undefended trial. This is particularly the case where the matter was commenced recently, and there has been no contact between the parties indicating that the respondent is aware of the proceeding and has no intention to defend.

[4]               After attempting to communicate with the respondent, if the applicant intends to seek an undefended trial, then the best practice is to serve the motion materials on the respondent. As stated by Sanfilippo, J. in Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083 (SCJ) (CanLII) at para. 13, “Proof of the defaulting defendant’s knowledge of the claim is critical to two elements: the legitimacy of the court’s rendering of the judgment, and the ability of the judgment to withstand challenge on the basis of lack of notice.” Sanfilippo, J. states at para.14-16 in the context of a civil case, which I find equally applicable in a family case:

[14]   In serving the default judgment motion materials, or the Trial Record in the case of an uncontested trial, the plaintiff is re-affirming the service of the Statement of Claim to leave no doubt that the court is in a position to render judgment in the absence of the defendant. That is not to say that this is necessary in all cases. There are undoubtedly some cases where the service is so clearly established, where the election by the defendant not to respond to the proceeding is so evident, so purposeful that it would be

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unnecessary to require that the defendant had notice of the motion for default judgment or hearing of an uncontested trial.  In such a case, Rule 19.02(3) operates to relieve the plaintiff from the requirement to provide any further notice and denies the defaulting defendant the opportunity of further participation.

[15]  However, Rule 19.02(3) provides the judge with discretion to order that the defendant in default knows something more: not only that a claim has been advanced but also that the claim is about to be considered by a court for the purpose of issuing judgment. By providing notice that the claim is about to be considered by a court, the plaintiff satisfies the court of both the validity of the service of the Statement of Claim, which is effectively replicated through service of the motion materials or trial record filed to obtain default judgment, and that the defendant has made a purposeful decision not to contest judgment.

[16] This is why “by far the better practice” is to provide the defaulting defendant with the material necessary to understand, without doubt, that the claim for judgment against the defaulting defendant is about to be determined. Where the plaintiff has not followed this practice, the court must consider whether the interests of justice, and of procedural and trial fairness, demand that the court’s discretion be exercised in favour of requiring notice to the defaulting defendant. The court must balance the plaintiff’s entitlement to proceed without participation of the defendant who has elected to abstain against the defendant’s entitlement to have sufficient notice on which to make this election.

Note: This is from a jurisdiction where there is no First Appearance Court.

Default of order – refusal to hear from party.

The court has a discretion not to hear an application or motion of a party in default of an order. Dickie v. Dickie [2007] 1 SCR 346 (also contained in subrule 14 (23). Court can consider compliance with support order before permitting a change motion and insist on a convincing explanation for non-payment. Brophy v. Brophy, [2004] 45 R.F.L. (5th) 56 (Ont.CA).

Delay – any court of record has the discretionary power to dismiss a case for delay. Housser v. Savin Canada Inc., 2005Canlii35779 (SCJ).

Disability – a comprehensive discussion of the law on this issue is contained in Children and Family Services for York Region v. H.C., 2008 CanLII 45823 (ON S.C.)

Disclosure

Each party has the obligation to establish the value of any of their assets or income. If it is necessary to obtain information in the possession of a third party in order to discharge the obligation to make full financial disclosure, then steps should be taken by the party upon whom the obligation to disclose rests to do so. Di Luca v. Di Luca [2004] O.J. No. 711 (SCJ).

Marcoccia v. Marcoccia [2009] O.J. No 729 ONCA: Broad disclosure is justified when there is concern about whether income has been truly and accurately reported. Rule 19 of the Family Law Reform Act provides for disclosure of a broad range of documents “with a view to find a fair disclosure” (Cunningham v. LeFebvre [2006] O.J. No 760 at 24).

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Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance. Disclosure orders must be fair to both parties and appropriate to the case. Kovachis v. Kovachis, 2013 ONCA 663 (CanLII).The court must ensure that disclosure requests are proportional, make common sense and are fair. Boyd v. Fields (2006), 2006 CarswellOnt 8675 (SCJ).

Proportionality limits requests for additional documents to those which can be shown to contain probative information. It is generally not proportional to demand production of secondary documents that may just be fertile sources where one might expect or hope to find probative information. The former are relevant. The latter is fishing. Apotex Inc. v Eli Lilly and Company, 2017 ONSC 7204.

Fielding v. Fielding, 2015 ONCA 901   (CanLII) , 129 O.R. (3d) 65:Failure to abide by this fundamental principle [to disclose financial information] impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled (para. 64).

Disclosure – Third party – Subrule 19 (11)

Bailey v. Bailey 2012 ONSC 2486 (CanLII) (cited in Jordan v. Stewart 2014 ONSC 5797 The six criteria are as follows:(a)   The documents are in a non-party’s control;(b)   The documents are available only to the non-party;(c)   The documents are not protected by legal privilege;(d)    It would be unfair for the party seeking the disclosure to proceed without the information sought;(e)   The documents sought are relevant and necessary; and(f)   Notice is provided to the non-party.

Also see: Disclosure in Child Protection Evidence file for fuller discussion of obtaining third party records.

Disclosure – Obligation to obtain documents from third parties

Parties must make complete disclosure. If the documents are held by third parties who won’t produce the documents, the party with the duty of disclosure needs to bring the third party motion. Di Luca v. Di Luca, 2004 Canlii 5044 Ont. SCJ. A minority shareholder must also obtain relevant documents from their corporation. Rushanski-Rosenberg v. Rosenberg, 2017 ONCJ 508. 

The court has no jurisdiction to order a common-law spouse of one of the parties to provide a financial statement. Politis v. Politis, 2018 ONSC 323.

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[17]  In the family law context, the test set out in Ballard Estate for compelling third party documents must be supplemented to take into account two critical values, privacy and proportionality, when seeking intimate financial information from new partners who are not parties to the litigation. Compelling the production of personal income, asset and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding, and any production order carefully scrutinized. As stated by the Court of Appeal of Newfoundland and Labrador in Kent v. Kent, 2010 NLCA 53 (CanLII) at para 103:

In the absence of an absolute legal requirement that a third party provide financial information, the party seeking access to such information must demonstrate that the interference with the privacy of the third party is necessary in the particular circumstances and the extent to which it is necessary…[E]ven where a court determines that certain financial information must be provided it does not follow that all financial information, no matter what its precise nature and no matter the degree of its specificity, must be provided (internal citations omitted)

[18]           In the family law context, proportionality is also an important aspect of third party disclosure from new partners. As stated by Justice Aston in Kochar v. Kochar, 2015 ONSC 6650 (CanLII), 2015 ONSC 6650 (S.C.J.) at para. 4 in speaking of the proportionality principle enshrined in Rule 2 of the Family Law Rules:

…Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issues raised. Comprehensive or exhaustive oral examinations or production of documents may make access to justice unnecessarily expensive or protracted. Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be "unfair" to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party's case, especially in relation to the amount at stake.

[19]  In Ballard Estate at para. 13, the Court of Appeal cautioned that proportionality and efficiency were important considerations, and production from and discovery of non-parties must be “subject to firm controls and recognized as the exception rather than the rule.”

Timing is an important issue in third party disclosure motions in the family law context. Mere relevance is not the test: it must be “unfair” to proceed without the information, which requires materiality. Rule 20(5) provides that a court may order disclosure or questioning of a party where it would be unfair to the party seeking the information to carry on, and “the information is not easily available by any other method.” Court found it was premature to obtain disclosure from common-law spouse without first seeing if it could obtain relevant information from the wife. Politis v. Politis, 2018 ONSC 323.

Drug Testing – Court can order it under s. 105 of Courts of Justice Act. J.S.D. v. W.L.V. 1995 B.C.J. No. 653 (BCCA), Bell-Ginzberg v. Ginzberg [1993] O.J. No. 1471 (Gen. Div.) for HIV testing. Might be able to use Rule 23, see Webb v. Greenhalgh and Eland-Greenhalgh [2007] O.J. No. 1766. Ordered as condition for granting overnight access in Maltezos v. Maltezos [2006] O.J. No. 1664 (Ont. Fam. Ct.) and Jacobs v. Jacobs [2008] O.J. no. 2639 (Ont. Fam. Ct.).

Enforcement of Orders – financial disclosure

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From: Mullin v. Sherlock, 2018 ONCA 1063

  Decision-making Framework

[44]       First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45]       Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

        the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

        the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

        the extensiveness of existing disclosure;

        the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

        any other relevant factors.

[46]       Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision.  Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure.  Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[47]       If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise.  Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise.  This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

[48]       If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change.  Ideally, when making an order under this subsection, the judge should specify what is being struck.

[49]      The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to

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deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”

The most basic obligation in family law is the duty to disclose financial information.   This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic.  It should not require court orders – let alone three - to obtain production. Appeal to strike pleadings dismissed in Roberts v. Roberts, 2015 ONCA 450.

In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru,  2010 ONCA 92, at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

Pleadings in a family law proceeding should only be struck in “egregious and exceptional circumstances” which includes wilful non-compliance with a court order to provide financial disclosure: Manchanda v. Thethi, 2016 ONCA 909 (CanLII), paras. 7 & 9. In making this assessment a court must consider: (1) the disclosure provided; (2) an itemization of the disclosure that the impugned party has failed to provide; (3) whether there has been wilful disobedience; (4) proportionality. Owen v. Owen, 2018 ONSC 1083.

Where children’s interests are involved, court should avoid that sanction or use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. King v. Mongrain, [2009] O.J. No. 2466, C.A.). The Court of Appeal noted in Haunert-Faga v. Faga 2005 CanLII 39324 (ON C.A.), (2005), 20 R.F.L. (6th) 293 (Ont. C.A.) at paragraph 7 that: Generally, it is preferable to avoid the sanction of striking pleadings where children’s interests are involved. The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties (from King v. Mongrain).

Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman (2002) 28 R.F.L. (5th0 447 (Ont. C.A.).

Where late disclosure is provided, it is preferable to order costs, rather than strike the pleadings. Vogl v. Vogl 2007 ONCA 303.

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The Court of Appeal does not endorse the practice whereby an order is made that strikes a party’s pleading on an ex parte basis where the party purports to comply with the disclosure order. Such order should, in those circumstances, be on notice to the affected party in order that he or she may be given the opportunity, if able, to explain or assert compliance with a disclosure order. Tiwana v. Sandhu, 2010 ONCA 592 (CanLII).

Good to have order allowing reinstatement of pleadings on conditions. Costabile v. Costabile, 2005 CarswellOnt. 6909 CA. In Oliveira v. Oliveira, 2008 CanLII 36772 (ON S.C.) , where party given chance to pay outstanding support and costs before striking.

Before striking a pleading for failure to pay support, must consider payor’s financial circumstances. Higgins v. Higgins, [2006] O.J. No. 3913 (OCA). Courts often give opportunity to restore the pleading if pay arrears. Stein v. Stein, [2003] O.J. No. 2288 (OCA).

The court’s jurisdiction pursuant to rule 14(23) is not ousted by the enforcement provisions in the Family Responsibility and Support Arrears Enforcement Act (see: Murano v. Murano 2002 CanLII 49352 (ON C.A.).

A party, whose pleadings have been struck, are no longer able to participate in the case. Caldwell v. Caldwell, [2006] O.J. No. 1469 (OCA).

Section 24 Child Support Guidelines – If a party does not comply with an order to provide documents under section 22 of the Child Support Guidelines, the court can strike out that party’s pleadings, proceed to a hearing, make an adverse inference and impute income.

Enforcement of court orders - family law rules

The wording of FLR 1(8) is also sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case, and where there has been a wilful failure to follow the Rules or obey an order in the case.  See: Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.); Wreggbo v. Vinton, 2013 ONCJ 250 (CanLII).

By r. 1(7.1), a court may make an order under r. 1(8) at any time during a case unless the Family Law Rules expressly provide otherwise. See: T. v. D., 2019 ONSC 644.

Subrule 1 (8) sets out that if a person fails to obey an order in a case, the court may make any order it considers necessary for a just determination of the matter, including:

a) An order for costsb) An order dismissing the claimc) An order striking out any pleading (including documents on motion to

change), financial statement or any other document filed by a party.d) An order that all or part of a document the court ordered produced, and

was not, may not be used in the case

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e) If the breach is by a party, that the party is not entitled to any further order in the case, unless the court orders otherwise.

f) An order postponing the trialg) On motion, a contempt order.

If a person fails to follow the rules, the court may make all of the orders listed in subrule 1 (8) except a contempt order. (Subrule 1 (8.1)).

Rule 16(12) (iv)- On motion, the court can strike pleadings if the case is a waste of time, a nuisance or an abuse of the court’s process.

Enforcement of court orders – other principles

From: Cinapri v. Fleck, 2016 ONSC 1297:

The preamble of Family Law Rule 1(8) permits the court to make any order that “it considers necessary for a just determination of the matter,” and then provides a non-exhaustive number of possible remedies. The term “a just determination of the matter” I take to include the failure of a person to obey an order in a case. The powers given to the court are therefore flexible to address any non-compliance, ranging from the wide discretion to grant remedial orders where an order and its breach are self-contained in terms of cause and effect, to an order of a punitive nature that requires its own motion, such as a motion for contempt. Any order the court makes should be appropriate to address the nature of the breach, and proportionate to its consequences. In my view, orders made under Family Law Rule 1(8) should facilitate compliance rather than end in irretrievable censure. After all, even contempt orders can be purged.

In Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), Justice Spence of the Ontario Court of Justice set out a three step process for the court to follow on a motion brought under Family Law Rule 1(8).  This three-step process applies when deciding whether the evidence allows for a finding non-compliance of an order by one party, and whether the court should exercise its discretion to impose consequences if any breach is found. The three steps in the process set out in Ferguson are:

[64]  ... First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23).  That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)]. 

 Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply.  My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances.  In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

 Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

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On a motion brought under Family Law Rule 1(8), the finding that a party has failed to comply with a court order is essential to constitute the occurrence of a triggering event under the first step in Ferguson.  Under either circumstance, there must be a definitive order for the court to determine on the evidence whether the responding party has complied with its terms or not.

A court order must be clear and unequivocal about what should or should not be done must also apply when the court is asked to determine if a party has breached an order under Family Law Rule 1(8).

In Mills v. Hinchey, 2018 ONCJ 779, the court added the following to the 3-part Ferguson test in enforcing an access order added that implicit in this analysis is the principle of proportionality. The court declined to transfer custody for the access breach or order police enforcement. Make-up access was ordered.

It would be superfluous to order that a party comply with an existing order. To order compliance does not add to, or take away from the initial order. If there has been a breach, the appropriate step is to seek a remedy under Family Law Rule 1(8). Varcoe v. Varcoe, 2014 ONSC 328 (CanLII).

Enforcement of annual disclosure and support adjustment order

In case where court had ordered annual financial disclosure and for parties to file annual Form 15D consent to adjust support, court found it should be enforced by a Form 14 motion and not a motion to change. MacKenzie v. MacKenzie, 2018 ONSC 3090.

Enforcement of expired separation agreement

Mother not permitted to seek retroactive support when the separation agreement had expired. She needed to bring an application. Vidal v. Dunn, 2018 CarswellOnt 6912

Examinations - Zafir v. Diamond, 2008 CarswellOnt 2030 (Ont. S.C.J.): questioning of third-party family members is the "last recourse to be accorded only after all other steps have been pursued with respect to disclosure." Serra v. Serra, 36 R.F.L. (6th) 66 (Ont. S.C.J.) the thrust of 20(5) is that questioning should be a last resort, a step to be taken only after reasonable requests for documentary disclosure has been attempted and exhausted."

Excluding litigant from court - A combative litigant who misconducts himself by attempting to obstruct matrimonial proceedings despite repeated warnings from the court may be excluded from the court room by the presiding judge and the trial may proceed in the absence of the litigant. C.E.J.K. v. H.W.K., 2016 SKQB 24,(Q.B.) (Fam. Law Div.).

Experts (Late filing of report) – Court did not grant an extension for late filing of expert report in Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 330 (CanLII), as the probative value of the report being filed did not exceed the prejudicial effect to the parents. Further the proposed witness was found not to be an expert in the area offered.

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Form 14B motion – A request for a Voice of the Child Report was considered procedural and it was appropriate to ask for it by Form 14B motion. See: Canepa v. Canepa, 2018 ONSC 5154.

French Trial – Section 26 (1) of the Courts of Justice Act states that a party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding. This is a substantive and absolute right. Ndem v. Patel, 2008 ONCA 148. The party does not need to prove that he or she cannot communicate in English. Tremblay v. Picquet [2010] O.J. No. 1216.

 Pursuant to s. 125 and s. 126 of the Courts of Justice Act, the official languages of the courts of Ontario are English and French and a party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding. Whether the Respondent speaks, writes or works professionally in English as suggested by Ms. Carson is not the issue.  I accept that French is her first language and the court is required to facilitate a bilingual proceeding. Herscovitch v Chatelain, 2016 ONSC 2378.

Functus (also see: reopening trial) – Judges are not functus until the order is issued and entered. Jamieson v. Jamieson, 2008 ONCA 675. Also Church v. Church, [2003] O.J. No. 2040 (S.C.J.) and Neathery v. Cottle, 2012 ONSC 3403 (CanLII). A court is also free to decide an issue it failed to consider at trial pursuant to subrule 25 (19). See: Beaumont v. Beaumont 2006CarswellOnt 3662.

Until the order resulting from a hearing is signed, the presiding judge remains seized of all issues. The legal concept of functus officio allows that, even after a final order is signed, the judge can still correct slips or errors in it so as to ensure that the order properly reflects the decision of the court as intended. See Chandler v Alberta Association of Architects, [1989] 2 SCR 848. 

Justice Del Frate squarely stated the applicable principles about when, and what it means for a judge to become functus officio in Clement v. Clement, 2015 ONSC 5654 (CanLII) in the following terms:

[11]    Case law is quite clear that a judge becomes functus when “the order or judgment is signed and entered.” See 369413 Alberta Ltd. v. Pocklington, 1999 ABQB 936 (CanLII), [2000] A.J. No. 410 (Q.B.); Condominium Plan No. 7510189 v. Jones, 1997 ABCA 53 (CanLII); and Pro-Express Ltd. v. Thew (1996), 185 A.R. 285 (B.Q.).

[12]     The exceptions are in situations where there was a mistake in the process of putting the judgment to paper and finalizing it or where there has been an error in expressing the intention of the court; Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, or in situations where fraud can be proven: Wavel Ventures Corp v. Constantini, [1996] A.J. No. 1093 (C.A.).

[13]      This principle is also enunciated by Perrel and Morden in The Law of Civil Procedure in Ontario, 1st ed. (Toronto: LexisNexis, 2010), at p. 777:

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….until the order in question has been signed and entered, the lower court is not functus officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.

Followed in Wharry v. Wharry, 2017 ONSC 2895 – but court chose not to hear motion when appeal had already been determined. Court left open the possibility of a motion being brought under subrule 25 (19) of the Family Law Rules.

The test under rule 59.06(2)(a) of the Rules of Civil Procedure to re-open a trial that applies after the judgment or other order has been issued and entered was set out by Doherty J.A., speaking for the court, in Tsaoussis (Litigation Guardian of) v. Baetz, 1998 CanLII 5454 (ON CA), at paras. 41 and 44. As he noted, the onus is on the moving party to show that all the circumstances “justify making an exception to the fundamental rule that final judgments are exactly that, final.” In particular, the moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court will go on to evaluate “other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment.” See: Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670.

In Whalen v. Whalen, NSCA 37, the trial judge gave her decision without hearing closing submissions. This was an appealable error. The order had been issued. The parties then agreed to retry the case. Court of Appeal said this was an error. Court was functus and parties couldn’t confer jurisdiction on the court. The principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23). The court said that this makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. ...

Initials – Use of – Also see: Sealing Orders Below:

The use of initials is a minimal impairment to the openness of judicial proceedings. B.G. v. H.M. T.Q. in Right of B.C., 2004 B.C.J. 1235.

- It should be used where psychological or other harm may occur to the parties concerned X. v.Y. et al, 2004 Y.K.S.C. 45.

- Excellent analysis by Justice Perkins in S.(C.) v. S.(M.) 37 RFL 6th 373 (Ont.SC):

This court possesses the jurisdiction to use initials or pseudonyms to protect the identity of parties pursuant to Rule 2.03 of the Rules of Civil Procedure, which enables the court, in  the interests of justice, to dispense with the general rule that the names of parties be identified in the title of the proceeding (Rule 14.06):  S.T. v. Stubbs, 1998 CanLII 14676 (ON S.C.), [1998] O.J. No. 1294, (1998), 38 O.R. (3d) 788.  The use of initials to identify the parties was ordered in R. (J.) in the absence of submissions on the point.  In this case, the identification of the parties by initials is entirely appropriate, given the privacy interests that the parties and E.D. have in this matter. M.D. v. L.L. 2008Canlii9374 (SCJ-Ont).

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In considering applications for confidentiality and sealing orders, the courts have typically required the party seeking such an order to establish that the order is necessary in order to prevent a serious risk to an important interest (after considering reasonable alternative measures) and that the risk of harm to any person outweighs the public interest in open and accessible court proceedings:  Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), 2002 SCC 41.  In The D.B. Trust v. J.B. and D.B., 2009 CanLII 33033 (ON S.C.), 2009 CanLII 33033 (S.C.), D. Brown J. applied this test to refuse a sealing order in a trust matter involving two children, but considered the use of initials in the title of proceedings and in affidavit material to be filed in the pending application, as a “reasonable alternative measure” to protect the children’s privacy interests.

The court ordered use of initials, finding it to be a minimum impairment to the openness of the proceeding and protective of the children in D.J. v. S.F., 2017 ONCJ 879.

The courts have also referred to rules 14.06(1) and 2.03 of the Rules of Civil Procedure, permitting a court to dispense with the requirement that the title of a proceeding name the parties, “in the interest of justice”, as authority to grant an order banning publication of the name or identity of a party:  S.T. v. Stubbs 1998 CanLII 14676 (ON S.C.), (1998), 38 O.R. (3d) 788 (Gen. Div.), C.S. v. M.S., and M.D. v. L.L., [2008] O.J. No. 907 (S.C.). 

It is not possible to remove identifying information from decisions and endorsements already in the public domain . Bolland v Bolland , 2017 ONSC 209 (CanLII).

Interpretation of Agreements

From: Robinson v. Robinson, 2017 ONSC 2454

 “In the absence of any ambiguity in the words of the contract, parole evidence of the subjective intention of the parties has no place in the interpretative exercise.” Turner v. DiDonato, 2009 ONCA 235   (CanLII) , 95 O.R. (3d) 147, at para. 44.

 The goal is to ascertain the objective intent of the parties at the time they entered into the Agreement: Sattva Capital Corp. v. Creston Moly Corp.,2014 SCC 53   (CanLII) , [2014] 2 S.C.R. 633.

The Supreme Court provided further guidance in B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority,  1993 CanLII 145 (SCC0, [1993] 1 S.C.R. 12, at pp. 23-24:

It is a cardinal rule of the construction of contracts that the various parts of the contract are to be interpreted in the context of the intentions of the parties as evident from the contract as a whole.

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The Ontario Court of Appeal, in MacDougall v. MacDougall, 2005 CanLII 44676 (ON CA), 262 D.L.R. (4th) 120, in applying that principle to domestic contracts said this, at para. 22:

Applying that principle to domestic contracts, a court must search for an interpretation that is in accordance with the parties’ intention at the time they entered into the contract. Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to discern the likely intention of the parties.

Judge’s Role - In Gordon v. Gordon, [1980] O.J. No. 1469 (C.A.) (WestlawECarswell), Morden, J.A. stated:

A custody case, where the best interests of the child is the only issue, is not the same as ordinary litigation and requires, in our view, that the person conducting the hearing take a more active role than he ordinarily would take in the conduct of a trial. Generally, he should do what he reasonably can to see to it that his decision will be based upon the most relevant and helpful information available.

Judges may even take the extreme measure of calling a key witness if counsel fail to do so.

C.A.S. v. S.C.(K.) M. R., 2010 ONSC 5846 (CanLII): It is true that after being examined, cross-examined and re-examined by counsel, the trial judge then questioned the appellant mother to the extent of twenty-three pages of transcript.  I would describe that questioning as fairly active and somewhat aggressive.  However, in my opinion, it reflects that the trial judge wanted the appellant mother to clearly understand what his concerns were, and the reasons for those concerns, and entailed an invitation by the judge to the appellant to offer such reply as she wished to address what was clearly on the Court’s mind.   In my opinion, the questioning does not go so far as to give rise to a reasonable apprehension of bias.  As I see it, the law provides for active participation by trial judges in cases of this nature: Children’s Aid Society of Regional Municipality of Waterloo v. R. C., [2009] ONCA 840.

Judicial immunity

It is a well-known principle of law that a judge enjoys absolute judicial immunity in the performance of his or her judicial function. See:  Edwards v. Canada (Attorney General), 1999 CanLII 15109 (ONSC); Rallis v. The Honourable Frederick Myers et al., 2019 ONSC 1098.

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Jurisdiction – Consent

It is trite law that parties cannot confer jurisdiction on a court that it does not have. As the Ontario Court of Appeal stated in J.N. v. Durham Regional Municipality, "Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered." Courts cannot assume jurisdiction simply because it is on consent. See J.N. v. Durham [Regional Municipality] Police Service, 2012 ONCA 428 (CanLII), 2012 ONCA 428 (C.A.) at para. 25. See also the decision of Justice Manjusha Pawagi in Moldonado v. Feliciano, [2018] O.J. No. 5026 at paragraphs 33 to 35 of that decision. See: Lowry v. Steinforth, 2018 ONCJ 744.

Jurisdiction (not custody/access) -    Jurisdiction may be asserted against an out-of-province father in three circumstances: the father is physically present in Ontario; the father consents, agrees or attorns to the jurisdiction; or Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected: Muscutt v. Courcelles 2002 CanLII 44957 (ON C.A.), (2002), 60 O.R. (3d) 20 (C.A.), at paras. 19-20. 

Even if there is a real and substantial connection, the court can decline jurisdiction if there is a more convenient forum for the case. Muscutt – par. 42

The Supreme Court of Canada has set out the following principles in Club Resorts v. Van Breda 2012 SCC 17 (Canlii):

Establishment of jurisdiction

The court must first establish jurisdiction through a real and substantial connection. This requires the court to consider objective factors to determine whether the subject of the litigation is connected with the forum. These “presumptive connecting factors” are not exhaustive but inform the type of factors to consider. paras. 82-94.

The “presumptive connecting factors” identified by the Supreme Court are set out at para. 90:

(a)   The defendant lives in the province; (b)   The defendant carries on business in the province; (c)   The tort was committed in the province; and (d)   A contract connected with the dispute was made in the province.

The Court went on to find that even if one or more of these factors are present it is still open to the other party to rebut the presumption.

The burden is on the party asserting the court’s jurisdiction. The test is met when a presumptive connecting factor is established that links the subject matter of the litigation

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to the forum. If none of the presumptive connecting factors apply, the court should not assume jurisdiction. See: paragraphs: 93 and 100. 

This phase is called jurisdiction simpliciter

Unless a case falls within one of the presumptive connecting factors, whether new or old, a motions judge should not consider the issues that are part of the forum conveniens analysis. A clear distinction must be maintained between the existence and the exercise of jurisdiction (see paragraph 101).

Forum non conveniens

Once jurisdiction has been established, the doctrine of forum non conveniens allows a defendant to contest a court’s jurisdiction on the basis that another, more appropriate, forum exists. It has no relevance to the jurisdictional analysis itself.

Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim (par. 102).

If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate (par. 103).

A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focuses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient (par. 105).

In order to succeed, the moving party must show that the alternative jurisdiction is clearly more appropriate to determine the issue (par. 109)

The factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties (par. 110).

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This test was applied by the Ontario Court of Appeal in deSomer v. Martin 2012 ONCA 35 Canlii. The parties had consented to an order that any future child support proceeding would be governed by the guidelines. The consent anticipated the mother moving to France with the child. The mother did this. The father brought a variation application in France and an order was made. The mother sought relief in Ontario (the father resided in the United States). The court applied the Van Breda factors and although neither party resided in Canada maintained jurisdiction. Important factors were the agreement of the parties to use Canadian law and the mother’s intention to return to Montreal. The court felt that the father was forum-shopping.

Other Jurisdictional Issues

Can you vary spousal support in OCJ when no longer spouses? – The court has jurisdiction to hear a motion to change a spousal support domestic agreement filed under section 35 of the Family Law Act if it was signed before the parties divorced. The date of the agreement is the relevant date, not the date it was filed. Francisco v. Francisco, 2017 ONCJ 323. This case disagreed with the obiter in Abernethy v. Peacock, 2009 CanLII 25128 (ONSC), where the court said that if the agreement was filed with the court after the parties divorced, the matter could not be heard under the Family Law Act.

A party remains a spouse until 31 days after the divorce judgment is granted, unless there is a stay ordered, there is an appeal or the length of time required to obtain the certificate of divorce is shortened due to a special circumstance set out in section 12 of the Divorce Act. See: White v. White, 2015 ONCA 647.

The mere filing of an agreement under section 35 does not prevent the other party from challenging the validity of the agreement. Jasen v. Karassik, 2009 ONCA 245 (CanLII) paras. 33 and 34.

The Ontario Court of Justice has no jurisdiction to change an order made in the Superior Court of Justice, even if it was made under the FLA. See: Dobert (McCullogh) v. McCullogh, 2008 ONCJ 673 (Ont.C.J.);Sivarajah v. Mahathevar, 2018 ONCJ 49. (However, see S.(C.D.) v. S.(H.S.) where a B.C. provincial court was permitted to make a temporary custody order in favour of the mother in the face of a Manitoba Superior Court order for the child’s return, when the lower court felt that the child would be in danger if returned) Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm.

Likewise, the Superior Court of Justice has no jurisdiction to change an Ontario Court of Justice order on a motion to change. The Superior Court’s jurisdiction is limited to hearing appeals from the Ontario Court of Justice. See: Doherty-Mulder v. Mrowietz, (2003) 43 R.F.L. (5th) 313 (Ont. SCJ) and Johanns v. Fulford, 2014 ONCJ 348 (CanLII). Section 21.10 of the Courts of Justice Act permits the Family Branch of the Superior Court of Justice to change an order of the Ontario Court of Justice.

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However, even if a separation agreement has been filed in the OCJ, a party can start a corollary application for support under the Divorce Act and it will be paramount. Bedard v. Bedard, 2013 CarswellOnt 1021 (Ont. S.C.J.).

A trial court has the jurisdiction to hear a motion to change a custody order that is under appeal where the order is no longer in the best interests of the child. Mantha v. Oliver (1994) 5 R.F.L. (4th) 398 (Ont. Prov. Div.). The court must be satisfied that the change motion is not a disguised appeal. A material change in circumstances since the making of the previous order must be established. Misheal v. Okel, 2008 ONCA 832.

Courts should not impose a mediation/arbitration clause on parties without their consent. Yeoman v. Luhtala, 2002 ABZB 1045 (Alta. Q.B.). Generally speaking the court will honour the med-arb agreement. Grossman v. Cookson, 2012 ONCA 551. However, in urgent custody situations the court may still make an order. Lenney v. Lenney (1996), 194 A.R. 50 (Q.B.); M.K. v. M.C., 2007 ONCJ 456, but this should be an exceptional right. McAlister v. Gallant 2012 ONCJ 565.

Courts have no jurisdiction to order parties to agree to binding arbitration. Michelon v. Ryder, [2016] ONCJ 327.

The court does not have jurisdiction under section 35 of the Family Law Act to vary the terms of the parenting terms of a separation agreement. It must be an originating application. The agreement will be given consideration in determining the child’s best interests. Huazarik v. Fairfield, 2004 Canlii 48161 (Ont. SCJ); Kiri v. Scattoloni, 2018 ONCJ 56.

Jurisdiction (Concurrent)

Johanns v. Fulford, 2014 ONCJ 348 (CanLII)

[29]            The Ontario Court of Justice and the Superior Court of Justice have concurrent jurisdiction in matters concerning custody, access and child support.  Barron's Canadian Law Dictionary defines concurrent jurisdiction as “Equal jurisdiction; that jurisdiction exercised by different courts at the same time, over the same subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either court indifferently” (my emphasis).

[30]            Concurrent jurisdiction means that, under provincial family law statutes, both courts can deal with issues of custody, access, and support, as courts of first instance.  It does not mean that where a court has made a final order in an application, the motion to change can be brought in the other court.  It does not mean that an order made in one court can be varied in the other court, where the other court acts as a court of first instance.  It does not mean that a party can pursue actions for the same relief in both courts at once. It does not mean that a party can begin an application in one court and bring a motion in another court for the same relief.  It does not mean that a party bringing a motion in an application can find the court with the most convenient date, and bring the motion in that court.

Section 66 of the CLRA sets out that where an application is made in one court, no application should be brought in another court. Only the original court can make a transfer order if it feels it is more appropriate to have the matter heard in the other court.

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Jurisdiction (Custody)

CASE LAW ON CLAUSE 22 (2) (C) OF THE CLRA

It has been held that “a significant period of time” as defined in clause 22 (2) (c) of the Act has two aspects:

1) A significant length of time and

2) A significant time in the life of the child.

See: Sui v. Tang [1997] O.J. No. 5609 (OCJ); Dhillon v. Benipal [2009] O.J. No. 1311 (SCJ).

The words “permanent basis” and “for a significant period of time” must be read conjunctively. The longer the period of time, the more likely it is that the situation will be considered one of permanency (Sui, par. 53).

A party’s original intention is only one factor to consider in determining permanence and the court must consider other factors. Even if an arrangement was originally intended to be temporary, it may become permanent with the passage of time. Other indicia of permanence include: establishing relationships with other relatives, attending school, obtaining medical treatment, developing relationships with other children of the child’s age, and knowing no other place than the current residence at home (Sui, pars. 50-52). In Sui, the child had lived with the grandparents for 20 months, almost her entire life, at the time of the application. Justice Eleanor Schnall wrote at par. 51:

Even at the time that the mother took the child to China, the practical meaning of ‘temporary’ was unknown; it would depend on the mother’s ability to finish her studies and then to get a job whereby she would be able to support herself and the child. The mother hoped that such a job would be in the region, but she could not anticipate that this would be so, in February or March, 1995.

In Vega v. Vega [1994] O.J. No. 1794 (C.J. – Prov. Div.), clause 22 (2) (c) was applied where the child had lived with grandparents in Ecuador for two and one half years, more than half of her life.

In Hsui v. Liu, [1999] O.J. No. 3172 (S.C.J.), the court did not apply clause 22 (2) (c), where the child had lived with grandparents in Taiwan for 13 months prior to the application. The court found that the clear intent was for the child to visit, not move, to that country. In Hsui, the wife reiterated on numerous occasions her desire for the child to be returned to Ontario. The husband and paternal grandmother repeatedly assured the mother that the child would be returned, but never honoured their assurances.

In Dhillon, the child went to live with his maternal grandparents in India when he was 10 months old. The application was started in Ontario 14 months later. At that time, the child had been in India for more than half of his life. Snowie J., found this to be a significant period of time in the child’s life. She wrote at pars. 83-84:

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[83]        I also find that the child lived with the maternal grandparents “on a permanent basis”. I have rejected Gurinder’s evidence that the child’s stay in India was intended to be temporary only. His evidence was contradicted by that of the maternal grandparents and Kirandeep, who testified that the child was sent to India indefinitely for a number of reasons. Even if I am wrong in making this factual finding, the court in Sui held that intention is only one factor in determining permanency. In this case, what may have been a temporary arrangement became permanent with the passage of time. Unlike the wife in Hsu, Gurinder accepted this change, as evidenced by the child’s continued stay in India after the original two (2) months (January and February 2008) and by the renewal of the child’s visa in the fall of 2008. Following Sui, I have considered other indicia of permanency besides the passage of time. Here, the child has established relationships with other relatives, obtained medical treatment and developed friendships with other children in India.

[84]        Given my finding that the child has resided in India with the maternal grandparents “on a permanent basis for a significant period of time”, the court does not have jurisdiction to make a custody order under s. 22(1)(a).

A child, in the appropriate circumstances, can be found to have two concurrent habitual residences pursuant to s. 22(2) (b) of the CLRA.  The decision will ultimately depend on the individual facts of a case.  Cognizant of the legislative purposes for which s. 22 was legislated, we are not persuaded that this conclusion will undermine those purposes.  This conclusion also recognizes the living reality of those children who are in a truly joint custodial arrangement, whose numbers will be limited. Riley v. Wildhaber 2011 ONSC 3456 Canlii (Div. Ct.).

Two Habitual Residences Possible - In Brouillard v. Racine, 33 R.F.L. (5th) 48 (Ont. S.C.J.), Justice Pierce found that the child had two concurrent habitual residences under section 22(2)(b). The Ontario Court of Appeal in Jerome v. Steeves, 30 R.F.L. (6th) 256 (Ont. C.A.), also recognized that a child could have two concurrent habitual residences for the purposes of deciding access issues.

The Divisional Court in Riley v. Wildhaber, 2011 CarswellOnt 6587 (Ont. Div. Ct.): has come down firmly on the side of the proposition that a child, in the appropriate circumstances, can have two concurrent habitual residences under section 22(2)(b) of the CLRA and, if that is the case, the Ontario courts have the ability to decline to exercise jurisdiction, where another jurisdiction would be the more appropriate forum.

Declining Jurisdiction under section 25 of the CLRAIn determining whether to decline to exercise its jurisdiction, the court should consider the purposes of the Act, specifically as outlined in clause 19 (b). The analysis under section 25 is akin to the balance of convenience test in subclause 22 (1) (b) (vi). See: Dhillon v. Bunipal, supra.

Fines absent a contempt finding

In Granofsky v. Lambersky, 2019 CarswellOnt 8706 (Ont. S.C.J.), the court found it had jurisdiction, absent a finding of contempt, to fine a party $500 for each day that financial disclosure was not provided as part of its power to control its own process. The court wrote:

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Such a remedy places a price on non-compliance with court orders and disclosure obligations commensurate with that process. While a remedy of a fine or monetary payment should be reserved to exceptional and/or egregious circumstances, the respondent has been given opportunity after opportunity to comply with his duty to disclose financial information and documentation and I find the case before me to be a fitting example.

To the contrary see Shapiro v. Feintuch, 2018 CarswellOnt 19129 (SCJ), where the court found that there was no authority in the family law rules to make this order without a contempt finding.

Irregularities

If a party who wishes to change an existing order also wants to make new claims, they should be issuing an application. However, where they included the new claims in a motion to change it was deemed to be a procedural irregularity and using Rule 2 the court heard the case. Wright v. Conway, 2018 ONSC 133 (includes a review of case law on this topic).

Leave motions –

In Premi v. Khodeir, 2008 ONCA 313 (CanLII) at para. 2, the Court of Appeal stressed that depriving a litigant of the ordinary right to go to court is a serious restriction of a basic right. An order made under r. 14(21) thus requires careful consideration.

Where court has made an order that a party cannot start a proceeding without first getting leave of the court, the court should apply a two-part test. First, does the moving party have an arguable case (prima facie) on the merits? Second, can the court be assured, with or without terms that allowing the moving party to bring their motion won’t result in an abuse of process? See: Rubatto v. Sandoval, 2018 ONCJ 85.

In Bokor v. Hidas, 2018, ONCJ 896, Rubatto was followed to deny leave and the court set out non-binding considerations for any future leave application.

It was found appropriate for the court to require its leave before a party could bring any further court proceeding in high-conflict cases and to control needless further proceedings in Israel v. Wright, CarswellOnt 14750 (SCJ) at paras. 32-33 and Tiveron v Collins, 2016 ONSC 2451. These discretionary decisions were entirely appropriate based upon the evidence of conflict, the father’s threats to continue to litigate the matter.

Court upheld where it ordered that parent could not bring any further proceedings until support and costs orders were paid and then denied a leave motion until such time as he complied with an insurance provision and paid arrears down to $2,000. The order was also reasonable, as it was made without prejudice to the ability of the appellant to bring a further motion for leave once the conditions were met. See: Juneau-Tripp v. Rilkey, 2018 ONCA 797. 

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Pepper v. Frankum [2007] O.J. No. 2325 (OCA); It is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent’s ability to pay.  The motion judge did not turn his mind to these considerations.

In Diciaula v. Mastrogiacomo (2019), 2019 CarswellOnt 7036, 2019 ONSC 2823 (Ont. S.C.J.), there were outstanding costs and support orders. However, the court found that the payor had established a prima facie case of an inability to pay them. The court found this to be an exceptional case and granted leave to proceed writing:

The goal is to strike a balance between the competing interests advanced before me. In the exceptional case - and this is one - instance on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice. I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious. I also consider the length of time - 15 years of paying child support on an imputed income which is twice what Joe says he has made. I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears. I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress.

Levely v. Levely, 2013 CarswellOnt 1953 (Ont. S.C.J.):

Family court proceedings should not become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party.

Prohibition to bring case until $30,000 costs (of much larger award) paid was overturned on appeal, with respect to parenting issues (not the support issues) in Rego v. Santos, 2017 ONSC 4616. The judge hearing such a motion for leave must consider all relevant matters to the proposed proceeding such as the reason for non-payment of the cost award, the importance of the issue and whether there are reasonable grounds for the proposed proceeding.  By doing so, the court retains the jurisdiction and discretion to ensure that the interests of justice are served.  This is particularly important when dealing with the best interests of children. 

In Guma v. Nedelcu, 2019 ONSC 3429, the court found the requirement for the father to first pay outstanding costs to be reasonable. The court distinguished Rego on the basis that the costs award was small and the father had the ability to pay it. Further, the father was not being denied access.

Can make an order that no further proceedings be brought until costs paid in full. Opach v. Lesnik (2006) 30 RFL (6th) 459 (OCJ). Gordon v. Starr (2007) 42 RFL (6th)366 Ont. SCJ:  The onus is on the Respondent to show that Rule 14 (23) ought not to apply when there has been a default under an order.  It takes an extraordinary event to trigger the “unless” provisions of the Rule. Costs orders are captured by this subrule.

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Letter of Credit – (Precedent term)

From: Steinberg v. Steinberg, 2019 ONSC 3870

Pursuant to the Family Law Act, RSO 1990, c. F.3, s. 9(b), within 30 days the applicant shall post an irrevocable letter of credit drawn on a bank listed under Schedule 1 to the Bank Act, SC 1991, c. 46, in the amount of $400,000.00 to secure his obligations pursuant to section 5 of the Family Law Act. The letter of credit shall be in a form acceptable to counsel for the respondent or approved by the court. The letter of credit shall have no time limit. It must be drawn in favour of the Accountant of the Ontario Superior Court of Justice, Court File No. . The letter of credit shall provide for draws only by a court order in this proceeding.

Lifting Stay – The stay arises automatically under s. 36 of the FLA and s. 27 of the CLRA

Section 138 of the Courts of Justice Act sets out the objective that the multiplicity of proceedings before the courts should be prevented.

The case law establishes that in addition to the dominant principle, the Ontario Court of Justice should consider the following factors when deciding whether or not to lift an automatic stay:

1.      Bad faith: Was the divorce application issued in bad faith? Is there some maneuvering to obtain a tactical or strategic advantage? Is there an issue raised that can only be dealt with by the Superior Court of Justice? Are there serious or bona fide issues raised or is there no real chance of success?

2.      Prejudice: Will a party or child be prejudiced by the probable delay in transferring the proceedings to the Superior Court of Justice? Is there a disproportionate financial prejudice to one of the parties if the stay is not lifted?

3.       Waste of court resources: Will the failure to lift the stay result in a waste of court resources contrary to Family Law Rules 2 that is, the duty to deal with cases justly and in a manner that saves expense and time. 

The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court.  Clearly, the “staying” provision is designed to prevent inconsistent results among courts, redundant litigation, constitutional entanglements and delay in finality. Zhong v. Yang, 2014 ONCJ 487.

Medical Examinations- a refusal to go to a court ordered examination warrants an adverse inference – McIntosh (1985) 46 RFL (2nd) 249. Although the granting of a vocational and aptitude assessment by a registered psychologist is discretionary, the choice of the assessor is determined by the moving party. Minthorn [1992] O.J. No. 1233 (Ont. Gen Div.).

Minutes of Settlement – (also see: Agreements – Enforcement)

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As a general rule, settlements of pending litigation between counsel, acting within the scope of their retainer, will be upheld by the courts in order to maintain the integrity of the settlement process. Geropulos v. Geropoulos  (1982), 35 O.R. (2d) 763 (C.A.). courts are to encourage the settlement of disputes by recognizing the validity of settlements of pending litigation that parties freely and properly enter into, with the benefit of legal advice. Petruzziello v. Albert, 2014 ONCA 393 (CanLII).

 In Berthin v. Berthin, 76 R.F.L. (7th) 58 (B.C. C.A.) the court reiterated the tests set out in Fridman, The Law of Contract in Canada (6th ed, 2011):. . . whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract or, in other words, "whether a reasonable . . . [person] in the situation of that party would have believed and understood that the other party was consenting to the identical term".

Berthin confirms that courts will not attempt to enforce what is effectively an agreement to agree or to enforce a list of guiding principles to be negotiated into specific rights and obligations. "The question for the court is whether the parties reached an agreement on all matters that are vital to that agreement or merely intended to defer legal obligation until the final agreement has been reached." Salminen v. Garvie, 99 R.F.L. (6th) 181 (B.C. S.C.). In Salminen, the court discussed the effect of subsequent conduct on the determination of whether a binding agreement has been reached at first instance. While subsequent conduct is a factor in determining whether parties have reached an agreement, the "mere proposal of additional or better terms does not negate the existence of a binding contract". Put alternatively, further negotiations are not necessarily inconsistent with a fully-formed agreement. The question is whether the parties reached a meeting of the minds or a consensus on all the essential terms of the agreement.

Correspondence between counsel is admissible when the issue is whether or not an agreement claimed by one party has in fact been reached: Elves v. White, 2005 BCSC 1191 at paras. 33-34; Flint v. Taggar, 2007 BCSC 1943, rev'd 2008 BCCA 504.

Mistake – In order to succeed in obtaining a remedy or rectification on an agreement based on a unilateral mistake, the party seeking rectification must establish that it would be unconscionable to permit the non-mistaken party to benefit from the agreement even though the remedy would impose on the non-mistaken party an agreement he or she did not intend to make at the time the agreement was executed. Rivington v. Rivington, 2006 CarswellOnt 7263 Sup. Ct.

Mistrials

From: Forsythe v. Tone, 2018 ONSC 3598

[22] In determining whether to declare a mistrial, I have been greatly assisted by the thorough review of relevant law contained in van Ooyen v. Carruthers, 2018 SKQB 73 (CanLII) at paras. 7-16.

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[23] Mistrials are relatively rare, and particularly so in family law cases. They are caused by some fundamental error or serious irregularity in the conduct of the trial. The question is whether the irregularity is of sufficient scope or degree to prevent the prejudiced party from presenting his or her case fully, or from securing a fair adjudication on the merits. A declaration of a mistrial is a last resort, where no other curative measures will suffice: van Ooyen at paras. 7-8.

[24] The decision to grant a mistrial is discretionary. In exercising my discretion, I should consider whether, in all of the circumstances, a mistrial is needed to prevent a miscarriage of justice. Before declaring a mistrial, I should allow other options to be canvassed to see if the trial can be saved in a way that is just and fair in the circumstances: van Ooyen at para. 10.

[25] A mistrial should only be declared in the clearest of cases, where there has been a “fatal wounding of the trial process” or to the administration of justice which cannot otherwise be remedied: van Ooyen at para. 9.

[26] In van Ooyen, at para. 11, the court identified a number of factors relevant to declaring a mistrial, whether in the criminal, civil, or family law context:

a. There is no “one size fits all” test. The particular circumstances of each case must be carefully assessed by the trial judge.

b. An accused is entitled to a fair trial, not a perfect trial: R v Khan, 2001 SCC 86 (CanLII) at para 72, [2001] 3 S.C.R. 823.

c. In Khan at para. 73, the question is asked as to whether “a well-informed, reasonable person considering the whole of the circumstances … [would] have perceived the trial as being unfair or as appearing to be so.”

d. Does the precipitating event relate to a central or peripheral issue? Could it affect the verdict?

e. Is there any defence or Crown conduct that is a factor?

f. What corrective measures are available that can adequately remedy the problem? Would a mid-trial instruction assist?

g. “What matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness”: Khan, at para 84.

h. A mistrial should only be granted as a last resort, in the clearest of cases, and where no other remedy is available: R v Toutissani, 2007 ONCA 773 (CanLII) at para 9.

[27] To make sense in the family law context, the factors outlined above must be modified to consider the conduct of the parties, and recognize that the trial before me was a judge-alone trial.

Motions after Settlement Conference – Only permitted if exceptional or compelling reasons to meet the best interests of the child. Trepanier v. Cadieux-Trepanier, [2007] O.J. No. 1509 (SCJ).

Motions close to trial -   Where the matter is ready to proceed to trial and there is no urgency, the courts may decline to decide interim motions on matters that will be considered at the trial, since such motions result in duplication and unnecessary costs. Ikonikov v Ikonikov, 2015 ONSC 5019.

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Motions to Change - In a change motion the burden of proof rests with the moving party – in this case, the father. Clarke v. Lavin, 2011 ONSC 6764 (CanLII). 

Subrule 15 (26) of the Family Law Rules provides that motions to change shall be heard based on the material filed unless the judge decides that the issue can’t be properly decided without a trial. The mere fact of conflicting evidence does not necessitate a trial. Not all conflicting evidence will affect the decision.  It was open to the motions judge to refrain from directing a trial, which would entail significant delay and additional expense, when neither side was asking her to do so. See: Bloom v. Bloom, 2018 ONSC 5343.

There is not an automatic entitlement to a trial on a motion to change. In I. v. W. 2011 ONSC 2021 (CanLII) Canlii, Justice George Czutrin upheld on appeal a decision by Justice Geraldine Waldman to dismiss a motion to change without a trial and quoted paragraph 31 of her reasons for decision where she wrote:

[31] I am satisfied, having reviewed the evidence, that a trial of the issue of father's access to the child is not required. There is no issue of credibility that needs to be resolved through viva voce evidence. The court does not require examination and cross-examination to allow for a full exploring of the evidence and issues before the court. The affidavit materials filed, particularly by father, are extensive and he has carefully documented his concerns. The evidence supported each party's position and each party had an opportunity to make submissions to the court and to explain his or her position fully. Subrule 15(26) of the Family Law Rules, O. Reg. 114/99, as amended, allows the court to give directions including directions for a trial if "the court feels that the motion cannot be adequately dealt with because of the material filed, because of the matters in dispute or for any other reason." Under rule 15, a motion to change a final order shall be dealt with on the basis of the documentary evidence filed, unless the court is of the opinion that it cannot properly be dealt with in this fashion. See M. v. O.,2006 ONCJ 176 (CanLII), 2006 ONCJ 176 (CanLII), 2006 ONCJ 176, 148 A.C.W.S. (3d) 410, [2006] W.D.F.L. 3201, [2006] O.J. No. 1955, 2006 CarswellOnt 3019 (Ont. C.J.). The onus is on the applicant father to show that a trial is needed. In this case, while this is a motion to change, the issue to be determined, father's access, is actually the same issue that has been central to this case from virtually the beginning. Given this history, along with the evidence filed and submissions made, I am satisfied that a trial is not required.

See: F.D.M. v. K.O.W., 2015 ONCJ 47.

Natural justice

The rules of natural justice, including the right to be heard, can only be ousted by express language or by necessary implication contained in constitutionally valid legislation (Waterman v. Waterman, 2014 CarswellNS 930 (N.S. C.A.); at para. 70).

The best interests of the child do not oust the right of a party to natural justice, but many impact the content of that right, which must be assessed in light of the legislative scheme and the issue being addressed (Bellefontaine v. Slawter, 17 R.F.L. (7th) 1 (N.S. C.A.);, at paras. 24 to 30).

The right to notice includes not only the right to be made aware of a proceeding brought against them, but of the nature and extent of that proceeding and to be aware of what is at risk (Slawter, at para. 56); and

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Effecting service is an important means of ensuring that a party is given appropriate notice and, following therefrom, given an opportunity to be heard (B.A.J. v. J.S.V., 11 R.F.L. (8th) 29 (N.S. C.A.), at paras. 74, 76).

Nunc Pro Tunc:

Nunc pro tunc is a latin expression that means “now for then”. In asking for such an order, a party is essentially asking for a backdated order. There is authority in the Family Law Rules to make nunc pro tunc orders. According to rule 25(18) of the Family Law Rules, an order is effective from the date it is made, unless it states otherwise. See: M.P.A.N. v. J.N., 2019 ONCJ 96.

Two- part test in deciding whether to order it set out in Messari et al. v. Alberelli et al., 2017 ONSC 5304 (S.C.J.) (CanLII), where at pars. 11-18, the court cites the Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (CanLII):

(1) First, did the party seeking the order meet the “red-line rule”. This means that the motion must be brought prior to the expiry of any limitation period. “The party seeking a backdated order must have been ready to present argument to the court prior to the deadline to obtain it”; and

(2) Second, if the “red-line rule” is met, then the Court will consider factors militating in favour of, or against , granting a nunc pro tunc order, which could include:

(i) Will the opposing party be prejudiced by a nunc pro tunc order?

(ii) Would the order have been granted had it been sought at the appropriate time?

(iii) Was the irregularity intentional?

(iv) Will the order effectively achieve the relief sought or cure the irregularity?

(v) Was the delay caused by an act of the court?

(vi) Will the order facilitate access to justice?

“Could include” at the second stage of the test to mean that the list of considerations is not exhaustive. Overall, the test is one of fairness. M.P.A.N. v. J.N., 2019 ONCJ 96.

In M.P.A.N., the court found that the father was not prejudiced by a 12 year delay by the mother in seeking interest, when she made some efforts to enforce a support award and sought to set off the costs from her obligation to repay the father’s overpayment of support.

The focus on diligence is important because of the origins and purpose of the nunc pro tunc order.  A party seeking a backdated order must persuade the court that their situation is due to factors beyond their control.  They likely will not be able to do so if they let most of the limitation period pass without taking any steps to advance their rights, then sought the court’s help at the eleventh hour. See: Messari, supra.

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Offers to settle:

Trivial modifications to an offer to settle do not necessarily constitute a counter-offer. Tollinsky v. Tollinsky 2011 ONCA 35.

The principle of contra proferentum applies to Offers to Settle. Any ambiguity in the offer will be construed against the maker. P.M. v. S.M. [2014] O.J. No. 496 (OCJ).

Orders (entry): Orders are enforceable, even if not taken out. Ignjatov v. Di Lauro, 2014 ONSC 4228 (CanLII). As a matter of law, an order made is effective from the time that the judge makes the order and does not depend on the “formal” order being taken out:  see Karkar v. Karkar, 2011 CarswellOnt 5171 (S.C.J.) at  paras. 10-11.  Moreover, the parties agreed to these provisions and, as our courts recognize, failing to give effect to such minutes could seriously undermine the benefits provided to litigants by the rules pertaining to settlements: Shen v. Shen, 2007 CarswellOnt7292 (Div. Ct.), para. 12.

Parens patriae jurisdiction:

The Ontario Court of Justice does not have this jurisdiction. Reed v. Reed , 1991 CanLII 4520 (O.C.J.).

Parties – Care and control

Subrule 7 (4) of the Family Law Rules says that every person who has care and control of the child, except a foster parent shall be named a party. In Children’s Aid Society of Toronto v. C.K., 2013 ONCJ 2917, the children were placed in the father’s custody. His parents assisted with caring for the children and asked to named as parties. The court rejected this position writing at paragraph 33:

The paternal grandparents have shared in the care of the children, but do not have control over them. The children have been placed by the court, subject to supervision orders, in the custody of the father, not the paternal grandparents. The father, not the paternal grandparents, has the exclusive legal right to make decisions about the children, including their medical care, religion and education. He is the person who has control of them.

Passport Clauses:-

The court has jurisdiction to order this. Ksiazek v. Ksiazek, 2003 O.J. No. 5083 OCJ.

The OCJ has jurisdiction to require a support payor to deposit his/her passport with the court as security, where chronic default and risk of flight, if support is for necessaries of life or to prevent recipient from being or continuing as a public charge. Jones v. Hugo, 2012 ONCJ, 211 Canlii.

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Paternity Testing – D.N. v. S.C. 2004 O.J. No 2068 Cohen – under s. 131 of the CJA the court can determine the incidental costs of each step of a proceeding and by whom they should be paid. Costs can be ordered against a non-party if it is shown that 1. the non-party had status to bring the action itself and 2. the nominal plaintiff was not the true plaintiff and 3. the plaintiff was a man of straw put forward to protect the non-party from liability for costs. City ordered to pay the paternity tests (in binder misc)

D.(J.S.) v. V.(W.L.) (1995), 11 R.F.L. (4th) 409 (B.C.C.A.) and H.(D.) v. W.(D.), [1992] O.J. No. 1737  (Ont. Gen. Div.) (Charron, J.) support of the following principles:

1.      It will generally be in the best interests of children that any genuine doubt as to their paternity be resolved (D.(J.S.) v. V.(W.L.)).

2.      As important as the best interest of the child may be, as Justice Charron wrote at para. 12, "... it is not the only factor to be considered".

3.      DNA testing should not be ordered where to do so is unlikely to resolve the substantive claim (D.(J.S.) v. V.(W.L.), para. 25).

4.      "The strength of the applicant's case is one relevant factor to be considered" (H.(D.) v. W.(D.), para. 10).

5.      That generally any real issue of paternity should be resolved using the best possible evidence ... DNA evidence (D.(J.S.) v. V.(W.L.)).

Levy, Fam. Ct. J. then cited four additional principles that were set out in the judgment of Veale, J. in B.(F.X.) v. B.(M.S.), [2007] Y.J. No. 8, (2007), 36 R.F.L. (6th) 403 (Y.T.S.C.) at para. 23:

1.      The applicant does not have to prove on the balance of probabilities that someone other than the presumed father is the father of the child;

2.      The order is discretionary;

3.      The application must be bona fide;

4.      It must be in the best interest of the child and in the interest of justice to have this issue resolved on the best evidence available.

And more factors were set out in CAS of Brant v. H.(H) 2007CarswellOnt6894(OCJ), where the CAS was found to have standing to seek paternity of a putative father:1. There should be no ulterior motive.2. It must be timely.3. Prejudice caused by the delay in seeking the test.4.Is it necessary admissible evidence.

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It is now generally accepted that the only factors that should govern the exercise of a court’s discretion whether to allow blood and DNA testing are:

(a) whether the testing process poses a risk to the child’s health; and(b) whether the motion for blood and DNA testing is made in bad faith.

If none of these factors come into play, then the motion for blood and DNA testing should be allowed. See:

• H. v. H. (1979), 25 O.R. (2d) 219 (Ont. H.C.), per Justice George T. Walsh;• Ali v. Ganase, 1990 CanLII 5853, per Provincial Judge Douglas A. Bean; and• Fazekas v. Saranovich, 1991 CanLII 6097, (Ont. Prov. Div.), per Provincial

Judge James P. Nevins.

The court only has the authority under section 10 of the CLRA to give leave to one or both of the parties to obtain DNA or blood testing and submit it into evidence and draw an adverse inference if they fail to do so. It cannot order a person to submit to the test. Further section 10 of the Health Care Consent Act applies (so a child may need to consent). See: W. v. K., 2018 ONSC 7765.

Physical or Mental Examination – authority under s.105 Courts of Justice Act. Must determine if too intrusive. Josdal (1996) 25 RFL (4th) 280 (SaskQB).

Pleadings – It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. See: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.). It has been repeatedly held was held that it is inappropriate for a case to be decided on an issue not identified by the parties in the pleadings and dealt with at trial: see e.g. TSP-INTL Ltd. v. Mills 2006 CanLII 22468 (ON C.A.), (2006), 81 O.R. (3d) 266 (C.A.), at para. 35:

The difficulty here is that the parties did not frame their lawsuit or conduct the trial on these bases.  In the context of the case, the defendants were effectively deprived of knowing the case they had to meet, and of any opportunity to meet that case throughout the trial.

Also see: Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826

The opposite was ordered when a party was self-represented in Hubbard v. Bailey, 2002 O.J. No. 1077, provided not unduly surprised or prejudiced.

In cases that raise the issue of a child’s best interests, courts are more likely to forgive a void in the pleadings.  See, for example, Sleiman v. Slieman, 2002 CanLII 44930 (ON CA), 2002; Olubowale v. Morgan, 2011 ONCJ 353.

The parties were not allowed to claim retroactive support when raised for the first time at trial and not pleaded. Bennett v. Reeves, [2014] ONCJ 145.

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In Provenzano v. Thunder Bay (City), 2008 CanLII 22147 (ON S.C.), Smith J. outlines the importance of pleadings:

Rules exist to ensure that pleadings meet certain standards. Pleadings that are defective or inadequate lead to chaotic litigation which is often unnecessarily expensive and protracted.

Pleadings are important for several reasons:•  they serve to define the issues in dispute•  they give notice to the opposing party of the case that must be met•        

they inform the court of the matters in issue•   they provide a record of the issues raised and prevent further litigation upon matters that have already been judicially determined•   they define the scope of discovery.

The OCA wrote in Butty v. Butty, 2009CarswellOnt 7612 that: the respondent's case was based on duress and unconscionability. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings and the case as developed by the parties. Deciding a matter on a basis raised by the Court on its own motion is unfair and raises concerns about the reliability of the decision. We are not prepared to assume that the trial judge acted in such a fashion.

Where relief is sought in broad or imprecise language, a court may be prepared to accept the notion that a specific form of the relief is subsumed in the pleadings. See paragraph [26] of Desramaux v. Desramaux, 2002 CanLII 45030 (ON CA), and Ross (Gedcke) v. Gedcke (No. 2), 2006 CanLII 4901 (ON SC). The applicant was permitted to claim retroactive special expenses when the application only sought retroactive child support in Moreira v. Garcia-Dominguez, 2012 ONCJ 128 Canlii.

In certain circumstances, a request for “such further and other relief as may be deemed just” has allowed the court to grant relief not specifically enumerated: see Eckland v. Eckland,  [1973] 3 O.R. 472 (H.C.) and Doherty v. Doherty,  [1968] 2 O.R. 518 (C.A.). In the absence of such a provision, there is no basis in this case to consider such relief. See: Kazuk v Shuglo, 2015 ONSC 5381.

It is not necessary to plead material facts supporting the claim in the application. The court did not permit recourse to Rules of Civil Procedure to strike pleading for failure to plead material facts. The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family. Frick v. Frick, 2016 ONCA 799.

Pre-judgment and post-judgment interest –

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Pre-judgment interest provided for in section 128 of Courts of Justice Act. Section 129 deals with post-judgment interest and section 130 allows the court to use its discretion to adjust the interest rate in the appropriate circumstances. Section 130 only permits the court to adjust the interest rate at the time of the final order, not at a subsequent time unless there are exceptional circumstances. See: M.P.A.N. v. J.N., 2019 ONCJ 96.

In section 128, the Courts of Justice Act recognizes the unfairness in awarding a judgment to a party at trial in the amount to which he or she was entitled as of the date the cause of action arose, but no more for the time in between. This is because the value of money decreases over time (see Bank of America Canada v. Mutual Trust Co, 2002 SCC 43 (CanLII) ¶ 21, 36, 39). Speaking in the commercial context, in Irvington Holdings Ltd. v. Black et al., Finlayson J.A. said, “…if the plaintiff has been out of his money for a period, the usual order is that the defendant should pay interest for the time for which the sum has been outstanding.”

The discretion to change the interest rate set out in section 130 of the Courts of Justice Act must be related “to the task of putting the plaintiff in the same position, so far as money is concerned, as he would have been if he had not suffered the loss” (see Irvington Holdings Ltd. v. Black et al.; see also Oakville Storage & Forwarders Ltd. v. Canadian National Railway, 1991 CarswellOnt 440 (C.A.) at ¶ 7, 8). Where the court found that the mother engaged in blameworthy conduct in relation to the father’s past attempts to terminate child support and relevant information about the child’s status from the father and as a result the father’s continued payment of child support contributed to his inability to pay off debts or to save it significantly increased the pre-judgment interest rate (the court also considered that the father was paying 5% interest on the original support award. See: M.P.A.N. v. J.N., 2019 ONCJ 96.

Court applied an average of interest rates for 4 year period when assessing the proper rate. See: Qaraan v. Qarann, 2014 ONSC 2191.

Prisoners - Test for production order under subrule 23(10) is whether it is necessary for prisoner to come to court —There is no automatic entitlement for prisoner to be delivered to family court for routine, administrative appearance — In this case, there was no reason for urgent production order — Father’s personal attendance at case conference was unnecessary and improper use of public resources — Production of prisoners to court is not family visiting program nor are police taxi service — Court appearances should be meaningful. Family and Children’s Services of Frontenac, Lennox and Addington v. S.G. and B.R., 2015 ONSC 2361, (Ont. Fam. Ct.).

Procedural Fairness - Before any substantive order is made, a litigant is entitled to an opportunity to respond to that case and entitled to an opportunity to be heard. Further, the failure to allow a party to make argument is enough to nullify a proceeding. In Goslin v. Goslin, 1986 CarswellOnt 4811 (C.A.), the Ontario Court of Appeal reversed an order of a trial judge where neither party had asked for the relief given. In Bellefontaine v. Slawter, 2012 CarswellNS 327 (C.A.), the Nova Scotia Court of Appeal overturned a decision of a trial judge on the grounds of denial of procedural fairness where neither

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party had requested the relief granted. From: Mudry v. Danisch, 2014 ONSC 4335 (CanLII).

Proportionality – In making orders, the court must consider proportionality. Kovachis v. Kovachis, 2013 ONCA 663 Canlii.

Publication Ban - Dagenais v. Canadian Broadcasting Corporation 1994 3 S.C.R. 835 and R. v. Mentuck 2001 SCC 76, two-part test,

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and

b) The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression , the right of the accused to a fair and public trial and the efficacy of the administration of justice.

Meeting this test requires convincing evidence. R. v. Canadian Broadcasting Corporation, 2010 ONCA 726.

Should look at alternatives other than absolute ban – perhaps partial, or redaction. R. v. Vice Media Canada Inc., 2017 ONCA 231.

Public Hearings:    There is a fundamental principle in our Canadian society that our courts are open to the public.  This principle can only be departed from where there is evidence that there may be “serious harm or injustice to any person.”  (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (S.C.C.); Kbilke v. Phillips, 2003 CanLII 10526 (ON S.C.).

Public Guardian and Trustee (Rule 4 (3))- One is mentally incapable in respect of an issue where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issue. CAS of Niagara Region v. W.D. [2003] O.J. No. 3244 (OCJ).

There are a number of components to determine the test of mental capacity, including: 

(a)               the onus is on the party alleging mental incapacity; 

(b)               the test is functional ability, particular to the task or activity at issue; 

(c)              the ability to appreciate reasonably foreseeable consequences includes the ability to consider a reasonable range of possible outcomes, positive and negative; and

 

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(d)              caution must be exercised before removing a party's right to self-determination.

See: C.A.S. v. J.H.V., 2016 ONSC 4996.

Lack of sophistication, education or cultural differences is not sufficient to ground a finding of mental incapacity - that must stem from sources such as mental illness, dementia, development delay or physical injury.  As noted by Backhouse J. in C.C. and Children's Aid Society of Toronto, [2007] O.J. No. 5613,

 [33] Appointing a legal representative ultimately means the Court is making a finding that the person does not understand the issues in the proceeding and does not appreciate the consequences of making or not making decisions in the case.  Such an appointment is highly prejudicial to the incapable person, particularly where the primary issue in dispute is custody, access or child protection. [34] Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian: (a)         Medical or psychological evidence as to capacity;(b)         Evidence from persons who know the litigant well;(c)         The appearance, demeanour and conduct of the litigant before the Court;(d)         The testimony of the litigant; and,(e)         The opinion of the litigant’s own counsel.

A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party. Nezic v. Nezic 2013 Carswell Ont 4003 at para 2.

Costantino v. Costantino (2016) CarswellOn 18301, par 57:The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian:

a) A person’s ability to know or understand the minimum choices or decisions required and to make them;b) An appreciation of the consequences and effects of his or her choices or decisions;c) An appreciation of the nature of the proceedings;d) A person’s inability to choose and keep counsel;e)  A person’s inability to represent him or herself;f) A person’s inability to distinguish between relevant and irrelevant issues; and,g)A person’s mistaken beliefs regarding the law or court procedures. Huang v Pan 2016 ONSC 6306 (CanLII).

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…par. 58:Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:

a) Medical or psychological evidence as to capacity;

b) Evidence from persons who know the litigant well;

c) The appearance and demeanour of the litigant;

d) The testimony of the litigant; and,

e) The opinion of the litigant’s own counsel.

Appointment not made in situation where evidence that participation by mother would cause her significant anxiety, as she mother appreciated the nature of the case, and was able to understand the consequences of her choices. Evans v. Evans, 2017 CarswellOnt 10917.

A capacity assessment can be ordered under the Substitute Decisions Act. Zabawskyj 2007 CarwellOnt 7644 (SCJ).

There is a distinction between failing to understand risks and consequences and being unable to understand. It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. What is in one’s best interests is not to be confused with cognitive capability. The test for incapacity is an objective one. It is mental incapacity and not wisdom that is the subject of The Substitute Decisions Act. Compelling evidence is required to override the presumption of incapacity found in s. 2(2) of the Substitute Decisions Act. Re Koch (1997), 33 O.R. (3d) 485.

Rule 7.04(1) for the Public Trustee is a last resort mechanism if no one else is able to act as a litigation guardian. Zabawskyj 2008CarswellOnt2412 (Ont S.C).

Questioning – Parties have the automatic right to question on a financial statement under subrule 13 (13) without the need to first obtain leave. McLean v. Hawkey 2012 ONSC 1437 Canlii.

Reasons for Decision – Adequacy

From: Gholami v. The Hospital for Sick Children, 2018 ONCA 783:

[63]      Appellate intervention may be warranted where the insufficiency of trial reasons prevents meaningful appellate review. Reasons that permit meaningful appellate review justify and explain the result, inform the losing party why he lost, enable informed consideration as to whether to appeal and enable the public to determine whether justice has been done: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 24; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 (CanLII), 227 O.A.C. 51, at para. 11; Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at paras. 21-22; see also R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at paras. 10-35. Appellate courts take a

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contextual and functional approach to determining whether reasons permit meaningful and effective appellate review. 

[64]      Even if the reasons of the trial judge do not on their face reveal "what" was decided and "why" it was decided, this court is obliged to consider the trial record to determine if the reasons are more comprehensible when read in that context: Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520 (CanLII), 389 D.L.R. (4th) 711, at paras. 30-32. This is desirable as it eliminates the expense and delay associated with another trial.

[65]      It is well-established that a trial judge is not required to reconcile or refer to every discrepancy in the evidence. A particular challenge arises when credibility findings are required but not made, or if no analysis for the rejection of important conflicting evidence is provided. Where a case turns largely on a determination of credibility, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error: R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 26 andDovbush, at paras. 28-29.

Rectification - The leading case of rectification in the context of a unilateral mistake is Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., 2002 CarswellAlta 186 (S.C.C.). In McCabe v. Tissot, 2015 CarswellOnt 7860 (Ont. S.C.J. the Superior Court justice determined it had both inherent and statutory jurisdiction to grant equitable relief including rectification. Where there has been an oral agreement between the parties that is not accurately recorded in the written agreement, the equitable remedy of rectification is available to either party. Rectification may be available even when one party may not have actually known of the other's mistake. The court wrote:

. . .  If the other party ought to have known, that is sufficient. When the mistake was of such a character or in such circumstances that the defendant had good reason to know, or ought to have known, of the mistake and what was actually intended, this condition is satisfied.Even in the context of a unilateral mistake, when assessing whether a party knew or ought to have known of the other party's mistake, the inquiry is an objective one. The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.

Reconciliation – The court needs to determine the intention of the parties to determine if reconciliation terminates a court order or if it shouldn’t be enforced for the period of reconciliation. Parties won’t usually want a court order hanging over their heads. At the very least the court should determine if the existing order is still appropriate. Michalchuk v. Michalchuk, 2013CarswellOnt 14938.

If there is a final order and the parties attempt reconciliation, then the order continues. Fitzell v. Weisbrod 2005 O.J. No. 791 unless there is a common intention that it terminates. Clearly a court order does not become a nullity because of reconciliation. A court order can only be varied by a further court order. Parties cannot vary an order by agreement or by a common understanding. An order is an order, and only an order can change an order. Ivan v. Leblanc, 2012 CarswellOnt 9602 (Ont. S.C.J.). Courts will often suspend support accumulated during the reconciliation period.

Recalling witnesses –  Ontario Courtroom Procedure, the authors caution at page 837:

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. . .  post-trial motions to re-open the trial to introduce new or additional evidence, which may sometimes include a request for leave to re-call a witness, must be distinguished from trial motions for leave to recall a witness.  The exercise of a trial judge’s discretion to require the recall of a witness must be cautiously exercised to avoid prejudice to the adverse party.

  In the text Evidence in Trials at Common Law,  the author suggests:

A recall for re-cross-examination will [occur] in rare cases where the direct examination of an intervening witness has brought out new facts upon which the prior witness may throw light and, for this purpose, the matter can always be left in the hands of the trial court.   The general principle, therefore, of the trial court’s discretion as controlling the grant of a recall for this purpose is conceded to apply here also.

The court should exercise its discretion with the objectives of rule 2 in mind. It should not be exercised to ask a witness questions that should have been asked when the witness was first examined. The court should give consideration to cost and delay. Windsor-Essex Children’s Aid Society v. C.M., 2015 ONCJ 278.

Recusal of Judge – Bias

The test for demonstration of a reasonable apprehension of bias by a judge is an exacting one.  It, together with the strong presumption of judicial impartiality, pose a steep hurdle for litigants who seek to overturn a judicial ruling based on the alleged bias of the judicial decision-maker.  See for example, Mwanri v. Mwanri, 2015 ONCA 843; Martin v. Sansom, 2014 ONCA 14, 118 O.R. (3d) 522. Tiveron v. Collins, 2017 ONCA 462.

Very high threshold, just because the court heard prior motions, does not mean the judge is biased. McGraw v. Samra, 2008CarswellOnt5777 (OCJ).

It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.  Litigants are not entitled to pick their judge.  They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges.  To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. Beard Winter LLP v. Shekhdar, 2016 ONCA 493.

The litmus test for bias is what would an informed person viewing the matter realistically and practically – and having thought the matter through conclude. Would he or she think that is more likely than not that the judge, whether consciously or unconsciously would decide fairly. Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

In Bailey v. Barbour, 2012 ONCA 325, the court wrote:

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[19] In addition to this "high" threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. Moreover, "in any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality” . . . .

A judge should not intervene in counsel’s presentation of the evidence to such an extent that trial fairness or the appearance of impartiality is compromised. However in cases involving children, the trial judge has a wider latitude. In appropriate cases, this can include the authority to insist upon more evidence than the parties have presented. See: Catholic Children’s Aid Society of Toronto v. A.V., 2010 ONCJ 657.

Removal from record – If a lawyer is on record, they must attend at court, even if the client instructs them not to attend- the lawyer must follow the proper process to ask to be removed from the record. Duca Community Credit Union Ltd. v. Tay (1995), 26 O.R. (3d) 172 (Ont. General Division).

Re-opening Trial (also see: functus)– A trial judge is not functus officio until the order is signed and sealed. Until that moment the trial judge has considerable discretion to reopen. CAS Halton v. Stacey O. 2002 O.J. No. 2319. CAS Rainy River v. EdenD. 2002 O.J. No. 5472 OCJ, when new evidence occurs before the decision is given. Extra: the onus is on the applicant to show that a miscarriage of justice would occur if not reopened and secondly, that the new evidence would probably change the result. The discretion should be exercised sparingly. Credibility of proposed fresh evidence is relevant. Although not determinative, question of whether it could have been originally presented with due diligence is an important question in deciding if there was a miscarriage of justice. 671122 Ontario Limited. v. Sagaz Industries Inc.,2001CarswellOnt3358(SCC).

 In Sheeraz v Kayani,  2010 ONSC 3821 (SCJ), Justice David Price the court reopened argument of the already determined issue of costs of the proceeding. It did so because it realized that it had made an error in regard to the consideration of an offer to settle in its previous costs endorsement.

In Jackson v. Vaughan (City), [2009] O.J. No.145 (SCJ), the court found that the it should take a “somewhat relaxed approach”, although one “… mindful of the need to avoid never ending evidence.”, when decision not made yet.

In Glegg v. Glegg, 2017 ONCJ 102, court found that Family Law Rules gave it jurisdiction to reopen motion and receive new evidence before decision given. However, the admission of fresh evidence after a motion is heard should be very much the exception rather than the rule. Parties should not wait to hear argument on the evidence already before the court or even judicial comment on that evidence during the course of argument, before deciding to provide further evidence to buttress their case. Further, evidence must be led to show that the fresh evidence may have an effect on the result.

Reply material -

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Governed by Subrule 14 (20). In determining whether to admit evidence not in compliance with this subrule the court must balance the effect of cost, delay and escalating affidavits with the importance of receiving evidence about the best interests of the child. The courts need to be sensitive to the fact that family law cases are not static and important evidence unfolds throughout and that original material is often inadequately prepared by unrepresented parties. Nyari v. Velasco 2008 ONCJ 272 Canlii.

When children are in involved, if the evidence is relevant, necessary and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission. Winton v. Lofranco [2004] O.J. No. 3418.

If someone wishes to file supplementary material, not in compliance with subrule 14 (20), and not on consent, they should seek prior leave of the court through Form 14B. Fakhim v. Shirazi [2007] O.J. No. 1119 (OCJ).

The Ontario Court of Appeal set out the following principles (relating to filing of factum, but the principles should apply to any reply material) in Dennis and Ontario Lottery and Gaming Commission, 2012 ONCA 368:

Filing reply material is not a matter of right. It can be invoked only if the respondent’s material had raised new issues (or “new matters”) on which the proponent had not yet taken a position. The restrictions are supposed to ensure that each party gets a fair and equal chance to argue the issues. A reply that merely confirms or reinforces points that the proponent had already made or could have been made in his initial material is not only a wasteful duplication but is an unfair occasion for reframing his position.Responding material that offers a new twist on matters already raised by the proponent does not raise new matters and does not justify the filing of reply material.

Representation (also see agents) – An excellent review of legal principles is set out by Justice Barry Tobin in Windsor-Essex Children’s Aid Society v. B.D., 2013 ONCJ 43 (CanLII) where he reviews the law as follows:

A court should not lightly prevent a litigant from choosing counsel.  See Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.) at para. 19.  It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases.  See Judson v. Mitchele, [2011] O.J. No. 4914 (Ont. S.C.J.) at para. 23. The jurisdiction to make an order removing counsel is found in the inherent right of the court to determine, in a judicial manner, to whom it will give audience.  A motion to remove an opposing solicitor is not brought pursuant to any statute or rule. See Newmarch Mechanical Constructors Ltd. v. Hyundai Auto Canada Inc. (1992),13 C.P.C. (3d) 349 (Ont. Master) at para. 11 and R.(C.) v Children’s Aid Society of Hamilton, (2004), 4 R.F.L. (6th) 98 (Ont. S.C.J.) at para. 32, and where the court stated at para. 34:

“The standard for the removal of counsel is an objective one, which is that of a reasonably informed member of the public. The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.”

There are two competing values presented and which must be considered in this case; (1) maintaining the integrity of the administration of justice and (2) the right of litigants not to be lightly deprived of counsel of their choice.  When balancing these values the predominant consideration is the integrity of the justice system.  See McDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, per Justice Cory at paras. 57 and 58 and Kam v. Hermanstyne, [2011] O.J. No. 1019 (Ont. C.J) at para. 11.

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Courts have tended to disqualify counsel where the lawyer and client have a personal relationship, usually described as intimate and emotional.  See for example, McWaters v. Coke, [2005] O.J. No. 996 (Ont. C.J.) and Kam v. Hermanstyne, supra. Where a personal relationship is found to exist, the court must consider whether there remains the "...necessary degree of independence and detachment..." to allow the solicitor to remain as counsel.  See Chouinard v. Chouinard, [2007] O.J. No. 3279     (Ont. S.C.J.) at para. 27.

When considering the removal of a lawyer from the record on the basis that the lawyer will also be a witness, the court adopts a flexible approach and considers each case on its merits.  The Divisional court in Heck v. Royal Bank, [1992] O.J. No. 2581 (Ont. Div. Ct.) at para. 48, set out a number of factors which should be considered on a motion to remove a lawyer on the ground that the lawyer will be a witness at trial.  The factors include:

•        the stage of the proceedings;

•        the likelihood that the witness will be called;

•     the good faith (or otherwise) of the party making the application;

•        the significance of the evidence to be led;

•      the impact of removal counsel on the party's right to be represented by counsel of choice;

•     whether the trial is by judge or jury;

•     the likelihood of a real conflict arising or that the evidence will be "tainted";

•    who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;

•   the connection or relationship between counsel, the prospective witness and the parties involved in the litigation."

Representation (minors)

Child litigants are special parties. However, there is no requirement in the Family Law Rules that a litigation guardian be appointed for them. The court has the discretion to provide representation for a special party. If the child already has representation, it will likely be unnecessary to make such an order. C.M.M. v. D.G.C. and J.M., 2015 ONSC 39.

There is no statutory authority for a child to retain counsel. The proper procedure is for someone to move to court for permission to act for the child. F. (V.) v. F. (J.), 2016 CarswellOnt 21166 (Ont. C.J.).

Request to Admit – A party was permitted to ignore a lengthy request to admit served during the course of a motion as the affidavit evidence contested the statements of fact. Rule 2 applied, to save time and expense. Splett v. Pearo [2011] O.J. No. 4456 (SCJ).

Where a Request to Admit was merely rhetorical or called for conclusions of law (such as the mother has a strong compensatory support, or the father is intentionally underemployed) the court ignored those parts. Woofenden v. Woofenden, 2018 ONSC 4583.

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Where father was self-represented, the court was open to ignoring any deemed admission in the Request to Admit if there was clear evidence to the contrary. Woofenden v. Woofenden, 2018 ONSC 4583.

Restraining Orders

Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.

Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254.

The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra. 

A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.

It is appropriate, in borderline cases, to consider the balancing prejudice to the

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respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.

A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Children’s Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

Genuine fear of psychological harm justifies a restraining order: see the decision of Justice Kiteley in Lawrence v. Bassett, 2015 ONSC 3707 (CanLII), at para. 18. 

The court in McCall v. Res, 2013 ONCJ 254 (Canlii) set out the following three principles:

1. The fear must be reasonable.2. The fear may be entirely subjective so long as it is legitimate.3. The fear may be equally for psychological safety, as well as for physical safety.

To the contrary, the courts in Mercieca v. Mercieca [2002] O.J. No. 4935 and Ouwehand v. Ouwehand, 2012 ONCJ 448 Canlii, required an objective basis for the person to fear for their safety.

Where a restraining order was sought against older siblings under the CLRA, the court refused to grant the order absent notification and an opportunity to respond. S.(C.) v. S. (M.) [2007] O.J. No. 787 (SCJ).

Restraining Orders – Motions to change

The onus is on the party seeking to terminate a restraining order to establish a material change in circumstances. Where a court has already made a determination that someone is fearful and requires protection, that person shouldn’t be re-victimized by being arbitrarily dragged back to court – at the instance of the abuser – to “prove that they’re still afraid.” Where a court has already made a determination that someone is aggressive and dangerous, we mustn’t allow the bully to use the family court process to re-inflict psychological pain by re-litigating the same emotionally draining issues. What’s the point of judges telling victims we believe them, if we then require victims to come back and convince us again? And while on motions to change courts ordinarily only consider events arising since the date of the last order, emotional harm and distress can’t be so neatly compartmentalized. Fear is a consequence of accumulated human experiences. It would be doubly offensive for a perpetrator to be able to able to say: “Prove that you’re still afraid…but you can’t talk about the old stuff.” M.A.L. v. R.H.M., 2018 ONSC 1597.

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Restraining Orders – Service of section 80 CFSA orders

Subsection 80 (2) requires personal service of request. However, if order is sought pursuant to a request for a custody order under subsection 57.1 (3), personal service is not required – special service is sufficient. Children’s Aid Society of Toronto v. M.V.-N., 2017 ONCJ 675.

Restraints in the Courtroom – The use of restraints is to be decided by the court. R. v. McNeill (1996), 29 O.R. (3d) 641 (C.A.).There is a presumption against use. The issue is whether there are reasonable grounds to fear escape or violence in the courtroom. R. v. Wills, [2006] O.J. No. 3662 (SCJ). Should not be used if less restrictive measures are available. Onus is on party who wants restraints kept on, on balance of probabilities. R. v. Scozzafava, [1997] O.J. No. 4579 (General Division). Rationales are dignity of the prisoner (R. v. Jones (1996) 29 O.R. (3d) 294 (General Division)), danger of prejudice, interference with the party’s ability to communicate with counsel or concentrate. R. v. Jenkins, [1999] O.J. No. 5993 (SCJ).

Retroactive application of changes in case law (Transition)

From: Beaisto v. Cook, 2018 NSCA 90

64 Where legislation changes the law and is silent about its temporal application, Courts must discern legislative intent on when and how it applies to previous transactions (see for example, Hayward Estate, Re, 2011 NSCA 118 (N.S. C.A.)). However, where Courts deliver decisions that alter previously held views about the common law or statutory interpretation, those decisions operate retrospectively.

65 That means any alterations to the law apply to past transactions as well as to present and future ones. As observed by Bayda C.J. S. in Edward v. Edward Estate (1987), 39 D.L.R. (4th) 654 (Sask. C.A.) at 661-662:

In all of the cases cited above, there is no mention by the courts that they are giving retrospective application to the common law. It may be taken that in keeping with the attitude of the English and Canadian courts generally, the courts in these cases assumed that the retrospective principle is so basic and inherent in the law, that it may be applied without mention or acknowledgment.

With respect to changes to a Court's interpretation of legislative provisions, Lord Nicholls in Spectrum Plus Ltd. (In Liquidation), Re, [2005] UKHL 41 (U.K. H.L.), explained:

[38] ...the interpretation the court gives an Act of Parliament is the meaning which, in legal concept, the statute has borne from the very day it went onto the statute book. So, it is said, when your Lordships' House rules that a previous decision on the interpretation of a statutory provision was wrong, there is no question of the House changing the law. The House is doing no more than correct an error of interpretation. Thus, there should be no question of the House overruling the previous decision with prospective effect only. If the House were to take that course it would be sanctioning the continuing misapplication of the statute so far as existing transactions or past events are concerned. The House, it is said, has no power to do this.

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In Beaisto, on appeal, the court applied the new legal test for habitual residence set out by the Supreme Court of Canada in Balev v. Baggott, even though it was decided after the trial decision.

Right to Deny hearing a motion -    It is well-recognized that a court has discretion not to entertain an application by a payor spouse who is in continuous default: Dickie v. Dickie, 2007 SCC 8 (CanLII), [2007] 1 S.C.R. 346, at paras. 4 and 6. 

Right to a Trial -       It is important to keep in mind that resources for the justice system, as well as personal resources of the parties, are scarce.  Not every case warrants a full trial, with its attendant delays and costs.  Discretion must be exercised by the court to send to trial only those cases that warrant the expenditure of those resources. Merko v. Merko, 2008 ONCJ 530 (CanLII).

Rule 1 – Focused Trials

Time limits and restrictions on witnesses were imposed at trial management conference pursuant to rules 2 and 17 (8) in Greco-Wang v. Wang, 2014 ONSC 5366 where the court writes: “Members of the public who are users of civil courts are not entitled to unlimited access to trial judges. The duration of the trial must be proportionate to the issues at stake and the judicial resources available.  It is for that reason that, based on my knowledge of the legal and factual issues gained over the last three years, I have established an estimated duration of the trial as set out below”.

Parties were each given 35 hours for their examinations of their own witnesses, cross-examinations, opening and closing statements and time making objections. In addition, the time lost by delays in witnesses coming or being available, counted against the party calling the witness. See: Singh v. Chandel, 2016 ONSC 3347.

The Ontario Court of Appeal upheld the trial judge who restricted cross-examination to 1 hour. This was the amount of time agreed to in the trial scheduling form and counsel did not seek an extension of the time limit at trial. Abou-Mansour v. Abou-Mansour, 2017 ONCA 572.

In G.S.W. v. C.S., 2018 ONCJ 286, the court set out specific time limits on the length of the trial, trial affidavits and the number of exhibits at paragraphs 7 to 15 as follows:

[7]    At the trial management conference the court took note of the excessive material filed by the parties on the motions to change. Significant portions of the material filed appeared to be an attempt to retry the trial that had taken place before Justice Zisman. Much of the material was repetitive, immaterial and clearly inadmissible.

[8]    This was an appropriate case for the court to apply subrule 1 (7.2) [4]  of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) to ensure that the objectives of rule 2 were achieved.[5] Following a structure previously set out by Justice Frances Kiteley in Singh v. Chandel, 2016 ONSC 3347 (CanLII) and Justice Carolyn Jones in Bandas v. Demidarche, 2013 ONCJ 679 (CanLII), and with the assistance of counsel, the court set out global time limits for the conduct of the trial. It

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also set out page limits for affidavit material that would be filed as direct evidence at trial.

[9]     A limit of 40 hours was set for the conduct of the trial. Based on five hours for each trial day, eight days were set. The parents were ordered to provide their direct evidence by affidavit. The court set page limits for the parties – 50 for the mother and 62 for the father. The father was given a larger page limit as he had to respond to the evidence of four medical professionals providing evidence on behalf of the mother.

[10]    The parties agreed to be limited to presenting 10 exhibits which they could attach to their respective trial affidavits. Groupings of documents (such as the TSAC business records) were counted as a single exhibit. If a party wished to provide a collateral witness’s direct evidence by affidavit, that affidavit would be limited to 10 pages.

[11]    The court allocated the father 24 hours to present all aspects of his case – the mother 16 hours. This was to include opening and closing statements, direct examinations, cross-examinations and re-examinations. Time spent on evidentiary objections would be allocated to the losing party. If a party was late, or trial time was lost due to the unavailability of a party’s witness, the lost time would be allocated to that party. Neutral time, such as daily discussion of trial management issues, was allocated equally between the parties.

[12]   The father complied with the page limit for his trial affidavit. The mother breached the spirit of the order by filing a trial affidavit with small font. This was indicative of a pattern of behaviour by the mother that started in the case before Justice Zisman and continued in this case. This rule stretching was completely unnecessary as large portions of the mother’s affidavit were repetitive and many paragraphs were struck, having been found inadmissible. [13]     The parties did not require all of the time allocated to them. The mother only needed to use 12 hours to present her case as she presented much of it by affidavit. The court credits counsel for the excellent organization of the case and their ability to focus on the relevant issues.

A focused trial arising out of an application is not a motion. The less restrictive rules of evidence that apply on motions, set out in subrule 14 (19) (providing information from someone else, if the person is identified by name and the deponent states that he or she believes the information to be true), do not apply. Plotnikov v. Borisova, 2016 ONCJ 537.

In Plotnikov the court required each witness who swore an affidavit to be produced for cross-examination. The parties need prior permission of the court pursuant to Family Law Rule 1 (7.2) (h) to not produce a witness. The court wrote that clause 1 (7.2) (h) should be read in conjunction with rule 2 which states that the primary objective of the rules is to deal with cases justly. To deal with a case justly a party should be able to both fairly present their case and answer the case against them.

Rule 2- Parties and their lawyers both have duty to comply with the prime objective. There is no longer an automatic right to an unlimited trial. Litigation should be proportionate to the importance and the complexity of the case. The degree of the

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restriction is on a case-by-case basis. Figurado v. Figurado, 2009 ONCJ 134 (CanLII) (OCJ).

 It is important to keep in mind that resources for the justice system, as well as personal resources of the parties, are scarce. Not every case warrants a full trial, with its attendant delays and costs. Discretion must be exercised by the court to send to trial only those cases that warrant the expenditure of those resources. Merko v. Merko [2008] O.J. No. 4273 (OCJ).

Sealing/Redaction –Subrule 14(15) permits the court to order that certain documents not be served, and subrule 2.03 allows for the court to dispense with compliance with the rules in the best interests of justice. This allows court to redact portions of motion (address in this case). Also s. 146 of the Courts of Justice Act permits the court to act with the due administration of justice, in the absence of an express provision.- Barrios 43 RFL 6th 302. Should balance risk of harm vs. prejudice and concept of openness.M.K. (M.S.) v. T.(T.L.) [2003] O.J. No. 352 (CA)- it is the responsibility of the court to ensure that a court file, which was created to protect the child’s best interests, does not become an instrument of harm.

Self-represented litigants –Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23 (CanLII). These principles include the following:  

•     Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

•     Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

•     Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

•     Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.

•     Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not.  Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

•      Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

The duty of a trial judge to assist self-represented litigants was set out in Dujardin v. Dujardin Estate, 2018 ONCA 597:

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It is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented."

In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36; Gionet v. Pingue, 2018 ONCA 1040.

The presence of a party who is not represented by counsel does not result in the suspension of anyone's fundamental rights. Mazraani v. Industrielle Alliance 2018 SCC 50; D.D. v. H.G., 2019 ONSC 2899.

Separation Agreement – The court has no jurisdiction to vary a separation agreement that has not been filed with the court and incorporated into a court order. The proper procedure to change it is to bring an application and ask the court to consider the agreement as a factor. Andrew 2008 CarswellSask 65 (Sask. Q.B.).

The Ontario Court of Justice has no jurisdiction to set aside a separation agreement that includes property provisions. It can change custody and access provisions. Van Heighten v. Catarino, 2017 ONCJ 103. 

Section 2 (10) of the FLA provides that if a domestic contract deals with a matter that is also dealt with in the Act, the contract prevails. Section 2 (9) permits the court to incorporate (not vary) a provision of the contract into a court order. Sections 67 (2) and 68 of the CLRA provide that any provision in a domestic contract that deals with custody/access issues prevails unless otherwise provided in the FLA.

Section 33 (4) of the FLA sets out circumstances where the court can set aside a provision for support or waiver of support in a domestic contract.

 Section 35 (3) of the FLA provides that section 33 (4) applies to a contract that is filed in this manner. That section provides that the Court may set aside the provision for support or a waiver of the right to support in a domestic contract and may determine an order for support  if the agreement for support  results in unconscionable circumstances or if the payor is in breach of it at the time the application is made.

Under cause 33 (4), it does not matter if the support provision was reasonable at the time the Agreement was made. Thomas v. Thomas 1988 12 R.F.L. (3d) 88. If the support provisions result in unconscionable circumstances at the time of the application to set aside the agreement, the Court can grant relief. Ward v Jones, 2015 ONSC 2752 (CanLII).

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Section 56 (1) of the FLA permits the court to disregard a provision in a contract relating to custody/access if it is in the child’s best interests to do so so.

Section 56 (4) of the FLA permits the court to set aside all or part of a domestic contract due to failure to disclose or lack of understanding of the agreement.

***So, if someone is seeking to change a custody/access term in a contract they must fall into one of the categories in section 56. This is done by way of application, not motion to change.

Service – Documents can be served electronically to a document exchange that the person’s lawyer belongs to. See: Fehervari v. Kiss, 2013 CarswellOnt 15919 (Ont. S.C.J.).

Service – Dispensing with service

Subrule 6(16) of the Family Law Rules states: A court may order that service is not required if:

(a) reasonable efforts to locate the person to be served have not been or would not be successful; and(b) there is no method of substituted service that could reasonably be expected to bring the document to the person’s attention.

The court should not use Rule 2 or the Rules of Civil Procedure to expand the circumstances where service can be dispensed with. From a combined reading of subrules 6(15) and 6(16 it is not enough to simply try and fail to locate a person. One must also look into alternate methods of service that could reasonably be expected to draw the documents to the attention of the person.  Further, the party seeking to dispense with notice, must file an affidavit detailing, at minimum:

a)The details of the efforts they made to locate the person;

b)The results of each effort they made to locate the person;

c)Their efforts to find some alternative means of giving notice; and,

d)An explanation as to why no other method of giving notice can be expected to bring the documents to the parson’s attention. 

K.C.F. v. M.W., 2016 ONCJ 689 (CanLII). This case also sets out possible avenues of searches including:

a.   E-mail, text, telephone or message (i.e.  text or i-message or other messaging via social media), where the party asks  for an address for service or gives

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effective notice by uploading and attaching a copy of the documents to the message, or, sets out details of the application within the body of the message;

b.   Conduct a reverse cell and telephone number look-up.  This method may provide an address for the owner of the account associated with the telephone or cell number and thus, the name and address of the person to be located or, a person who may have information about the whereabouts of a party or on whom subservice can be carried out;

c.   Search for the party on social media sites, including:o   Facebooko   Twittero   LinkedIn

What’s Up

d.   Conduct general internet searches using various search engines.  Search engines like Google, Bing, and Yahoo! provide some of the largest conglomerations of websites and information.  One may be able to locate a person through the posts that person has made in discussion groups; reviews they have provided online; resumes posted to job or career sites; ads on Craig’s List; newspaper articles; etc.

e.   Directory searches including:o   Online telephone directories (such as 411.ca and whitepages.ca; which are important online directories but just two of many).  It is important to search in multiple locations if the party has a connection to, or has lived in, or worked in other cities or provinces, as he or she may now be living there;o   Professional associations or organizations to which the party or a friend or relative of the party may belong (i.e. engineers, accountants, lawyers).  Government employee directories also exist as may union membership lists,o   High school and post-secondary institution Alumni membership database directories;

f.     Find and make inquiries of relatives and friends.  The whereabouts of such persons may also be found using the same techniques just cited;

g.   Obtain a credit report from a credit reporting service such as Equifax;

h.   Search public records.  Such records include: birth, death, marriage and divorce certificates; deeds, mortgages, and other related property records; various licenses, including professional and business licenses; driving records and; court records.  These records are kept by government agencies.  The release of these records is often subject to certain restrictions or fees.  Not all contain contact information but some do and some can serve as a lead to other records or sources that may assist in finding someone.  Most importantly, many of these records are

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available online.  For example, many court decisions in civil, criminal, family separation and divorce cases are published online and are available on a national scale (such as on CanLii: http://www.canlii.org/en/); 

i.      Hire a “Skip Tracer”.  A ‘skip trace’ is the language used to describe the process of tracing a person’s past to locate their current whereabouts.  A “skip tracer” is the professional who does this type of work.  These professionals are adept at conducting the various types of searches I have referred to above and more for a fee.  They are frequently used by law firms and other businesses particularly when trying to locate a judgment debtor; 

j.      Although not available in this case, where the case involves a child support claim pursuant to section 33 or 37 of the Family Law Act, RSO 1990, c F.3, and the claimant needs to learn or confirm the proposed respondent’s whereabouts, the claimant may bring a motion pursuant to subsection 42(4) of the Act for an order requiring a person or public body to provide the court or the moving party with any information that is shown on a record in the person’s or public body’s possession or control and that indicates the proposed respondent’s place of employment, address or location.  The scope of those from whom such information may be obtained is broad.  It includes: friends or relatives, employers, union or other organisation the person may belong to.  It also includes public authorities such as the Ministry of Transportation, Ontario Health Insurance Plan, the Crown, Family Responsibility Office, Ontario Works, Ontario Disability Insurance Plan, Corrections Canada, Ministry of Community and Correctional Services, and so on;

k.   Obtain an order for subservice by advertisement, on a friend, relative, employer, the Family Responsibility Office, or other person or public body such as those I have described above and then carry out the approved method of service; and,

l.      Retain a private investigator.

Service – Effective date

Special service can be effected under clause 6 (3) (d) of the Family Law Rules, by leaving the document residing at the same address and mailing the document the same or next day. Service is effective on the 5th day after the document is mailed. In counting days, days the court office is closed are not counted. See: subrules 6 (11.3) and 3(2). Children’s Aid Society of Toronto v. M.V.-N., 2017 ONCJ 675.

Service – Hague Convention -  The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters is a complete code. If a country is a signatory to the convention, the documents must be served in accordance with the convention, even if service is acknowledged. See: Pitman v. Mol, 2014 CarswellOnt 5282 (Ont. S.C.J.). The Convention is mandatory notwithstanding Family Law Rule 2. It

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is doubtful that rules of practice could overrule a Convention to which Canada has acceded. See Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 CarswellOnt 3539 (Ont. C.A.). See also in support: Satchidananthan v. Sivanesan, 2013 CarswellOnt 17040 (Ont. S.C.J.).

Principles from Wang v. Lin, 2016 ONSC 3967 (Ont. Div. Ct.):- The Hague Service Convention applies to matters described in r. 1(2) of the

Family Law Rules.- Compliance with the Hague Service Convention is mandatory.- In interpreting legislation, there is a presumption that the legislature intends to

conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal. Not the case with the Family Law Rules.

- Any directions regarding service contemplated by r. 1 (7) should be given by analogy to RCP 17.05 (3).

- Court does not decide whether there is exception in rare circumstances if access to justice issue. States law is not settled on this point.

- Article 10 of the Convention provides that documents can be served directly by postal channels or local judicial officers of the state of destination unless that state objects.

- Article 15 of the Convention permits our court to make orders if the document was transmitted to the other jurisdiction in accordance with the Convention- a period of time considered adequate by a judge of this court has elapsed (not less than 6 months) has elapsed since the date of transmission and no certificate of delivery has been received from the other jurisdiction.

- Article 15 of the Convention also provides that “notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency any provisional or protective measures. This means the Convention provides a party the ability to request emergency relief while efforts to comply with the terms of the Convention are being effected.

- Inherent jurisdiction is a special and extraordinary power that should be exercised sparingly and in clear cases. Baxter Student Housing Ltd. V. College Housing Co-operative Ltd., [1976] 2 S.C.R. 475.

Tiwari v. Tiwari, 2018 ONSC 6697:

In Tiwari, the mother started a divorce application against the father who lived in India. India is a signatory to the Convention. The mother’s lawyer sent the application to the Central Authority in India for service and didn’t hear back from them. The mother moved for substituted service.

This case is helpful for working through the necessary steps under the Convention.Article 1 of the Convention says that it applies to all civil matters. This includes family law matters. See: Wang v. Lin, 2016 ONSC 3967.

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Other procedural rules cannot be used in place of the Convention. See: Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189. In particular, orders dispensing with service, validating service, or for substituted service are not available until service has been attempted under the Convention.

The Family Law Rules do not contain any specific provision for how documents are to be served abroad. Using subrule 1 (7) of the Family Law Rules, the court next looked at subrule 17.05 (3) of the Rules of Civil Procedure. This subrule sets out that an originating process to be served in a contracting state shall be served through the Central Authority in the contracting state or in a manner that is permitted by the Convention that would be permitted by these rules if the document were being served in Ontario.Article 10 of the Convention states that if the state of destination for service has not objected to Article 10, the service may be effected in accordance with the rules for service in Ontario. However, if the state of destination for service has objected, then service must be made through the state’s Central Authority. India has objected under section 10, so the Central Authority had to be used.

Article 3 of the Convention states that the request for the service of the legal document shall be made by “the authority or judicial officer competent under the law of the State in which the documents originate” to the Central Authority of the destination state.

The court found that a lawyer is a judicial officer and Article 3 was complied with.

In Wang v. Lin, at paras. 77-78, the Divisional Court held that Article 15 of the Convention allows an Ontario Court to give judgment in the absence of confirmed service of process abroad in a Contracting State where the three conditions of Article 15 have been met. This would include a right to grant an order for substituted service, or an order validating service or dispensing with service, as part of the process leading to judgment. The three conditions of Article 15 are:

a) The document was transmitted by one of the methods provided for in this Convention;

b) A period time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c) No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

The court then went on to order substituted service of the documents pursuant to subrule 6 (15) of the Family Law Rules.

Service – Default judgments – time to respond

Article 15 of the Hague Convention on Service Abroad deals with default judgment.  It provides:

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(1) Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that;

a)  the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

b)  the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled -

a)  the document was transmitted by one of the methods provided for in this Convention,

b)  a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c)  no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

In Bienenstock v. Viscardi, 2017 ONSC 7753, the respondent was served by process server in Italy pursuant to Article 10 of the Convention. The notice gave him 30 days to respond. Italy has made no declaration of applicability regarding Article 15(2). The court asked, does the wording of Article 15(2) contemplate that Article 15(1) only applies where there is an Article 6 certificate of delivery or service?  The court did not find this to be the case.  It found Article 15(1) to be freestanding: in states where Article 10 service is permitted, then default judgment may proceed if the service complies with Article 15(1). The Article 6 certificate of the Central Authority of the destination state is only required if served through the Central Authority.

Service in Italy by process server

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In Bienenstock v. Viscardi, 2017 ONSC 7753, the court validated personal service of an application on a respondent in Italy by a process server because:

1. Rule 17.05(3) provides that an originating process to be served outside Ontario in a contracting state shall be served either through the Central Authority, or “in a manner that is permitted by the Convention and that would be permitted by these rules if the document were served in Ontario.”

2. Personal service by a process server is permitted in Ontario.

3.Article 10 (c) of the Convention provides that: Provided that the State of destination does not object, the present convention shall not interfere with the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

4. Italy does not object to Article 10 (c).

5. Process servers are other competent persons as defined in Article 10 (c).

Service in the United States by postal channels

In M.S.C. v. C.F.J., 2017 ONSC 2389, the court found that where documents were mailed to respondent in the United States and he returned an acknowledgement of service card, service was in compliance with the Convention. The Hague Service Convention applied because the United States is a signatory.  Having considered:  (a) the document “United States of America – Central Authority and Practical Information” on the Hague Service Convention website, including the various declarations by the United States; (b) Article 10 of the Hague Service Convention, and in particular Article 10(a) in relation to sending judicial documents by postal channels; (c) the United States not declaring opposition to Article 10; (d) the fact that the service used would be valid service in Ontario; and (e) Wang, supra, paragraphs 20, 21, 55, 63 and 65, the court found that there was proper service on the respondent.

Service – Substituted service

Service permitted through private Facebook message and by text message. The order stipulated the exact terms of the notice, including return date and contact information of the lawyer. Court had proof the Facebook page was active. See: K.H. v. M.L., 2017 ONCJ 376. Also permitted by Facebook in Filion v. Ives, 2015 ONSC 270. It will not be granted where there are other, more traditional service options available. See: Dacey v. Dacey, 2018 NSSC 260.

Service through Twitter permitted in Burke v. Doe, 2013 BCJ No. 1142 (SCJ).

Service through text of a contempt hearing permitted in Gudgeon v. Marshall, 2018 ONSC 3779.

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In child protection cases the order for substituted service must comply with confidentiality requirements. See: JFCS v. K.B., 2016 ONCJ 259. In Children’s Aid Society v. S.B., 2018 ONSC 5301, the court ordered that only the first two pages of the protection application be sent to the Facebook account without identifying information. A private message also had to be sent which gave notice of a proceeding and contact information to obtain other information.

Setting Aside or Changing Final Order

The court has jurisdiction to set aside an order under clause 25 (19) (e) of the Family Law Rules. The definition of change is broad, the interpretation is consistent with rule 2 to deal with cases justly and that Family Law proceedings are different. Gray v. Gray, 2017 ONCA 100.

In Gray v. Gray, 2017 ONSC 5028, the court took a broad view of the grounds to set aside a default order. The court set an order aside when the father chose not to attend court for trial and instead go to work. The court found it would be an injustice if the father was not given an opportunity to participate, as he moved quickly, had previously participated and had an arguable case. The court relied on the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23 (CanLII).  These principles are set out under self-represented litigants above. include the following:  

The Court of Appeal listed 5 factors that court should consider in determining whether to set aside default judgment, as set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194:

1. whether motion to set aside was brought promptly after defendant learned of default judgment;

2. existence of plausible excuse or explanation for failing to comply with Rules of Civil Procedure;

3. whether facts establish that defendant has arguable defence on merits;4. potential prejudice to moving party should motion be dismissed and potential

prejudice to respondent should motion be allowed; and5. effect of any order that court might make on overall integrity of administration of

justice.

This is not a conjunctive test. See: Smith v Sanftenberg, 2015 ONSC 6393, citing Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007),  87 O.R. (3d) 479 (C.A.):

On a motion to set aside a default judgment, the motion judge will be guided by the principles identified in the authorities. The motion judge must, however, ultimately determine whether the interests of justice favour an order setting aside the default judgment. In doing so, the motion judge will have regard to the potential prejudice to the moving party should the motion be

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dismissed, the potential prejudice to the respondent should the motion be allowed, and the effect of any order the motion judge may make on the overall integrity of the administration of justice.

Setting aside a consent order –  From: Mohamed v. Mohamed, 2018 ONCJ 530.

[44]      The court has jurisdiction to set aside a consent order under subrule 25 (19). See: Gray v. Gray, 2017 ONCA 100 (CanLII).

 [45]      Subrule 25 (19) reads as follows:

                CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE25(19) 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. 

 [46]      The father has framed his motion pursuant to clauses 25 (19) (a) and (d).[5]

 [47]      Setting aside an order under clause 25 (19) (a) requires a high threshold. Fraud within this clause does not have a special meaning outside of the common law. A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood and did so with wrongful intent. See:  Hatuka v. Seigel, 2017 CarswellOnt 14911 (SCJ), per Justice Heather McGee.

 [48]      In P.M. v. S.M., 2014 ONCJ 541  (CanLII) , at paragraphs 36 to 38, this court reviewed the jurisprudence about requests to set aside orders on the ground of fraud and noted the following:

 a)         The fraud alleged must be proved on a reasonable balance of probability. The

more serious the fraud, the more cogent the evidence is required. 

b)         The fraud must be material, going to the foundation of the case. 

c)        The evidence of fraud must not have been known at the time of trial by the party seeking to rely on it. The party must show that there has been a new discovery of something material, in the sense that fresh facts have been found, which, by themselves or in combination with previously known facts, would provide a basis for setting aside the order.

 d)       If a litigant wishes to challenge a procedural irregularity in a court order or

pleading, they should do so promptly. They should not be taking substantive steps in a case and waiting until a later time to proceed with the procedural challenge. This is known as the “fresh step principle”. While the “fresh step” principle is not an absolute bar to the court considering a procedural attack on an order after a substantive step is taken in a case, consideration of the principle is consistent with the primary objective in rule 2 when determining whether it is just in the circumstances to set aside or change an order.

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 [49]      The court also has the authority to set aside a consent order where there are proven grounds of common mistake, misrepresentation, fraud or any other ground which would invalidate a contract. See: Joshi v. Joshi, 2014 ONSC 4677 (CanLII); Webster v. Suteu, 2015 ONCJ 538 (CanLII).  

 [50]      In Ruffudeen-Coutts v. Coutts, 2012 ONCA 65  (CanLII) , at paragraph 64, the court stated that a consent order could also be set aside based on evidence of duress or undue influence.

 [51]      The Court of Appeal in in McCowan v. McCowan, 1995 CanLII 1085 (ON CA), 1995 CanLII 1085 (ONCA), made the following comments about setting aside consent judgments:

 ……a consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified. In my view, it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non-performance may, however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated.    

Consent order set aside in , when consent at its formation did not comply with the objectives of the Family Law Act and the Child Support Guidelines (father made lump sum payment that didn’t come close to what he would have been required to pay for child support). Doull v. Tsim, 2017 ONCJ 684.

In matters of child custody it is not desirable to have a decision made without the participation of both parents where it can be avoided: D.D. v. H.D., 2015 ONCA 409 (CanLII).

Settlements – Counsel can bind their clients to deal if ongoing litigation. Geropolous v. Geropolous (1982) 26 R.F.L.(2d) 225 (Ont.C.A.) Can bind even if no litigation and 55.1 of FLA not met – see Pastoor v. Pastoor, 2007CarswellOnt. 3661 S.C.

Mesbur J. in Cole v. Cole, 2011 CarswellOnt 8459 (S.C.J.), at paras. 36 to 41 reviews the law of whether or not a settlement has been reached:

¶36  The fundamental legal issue on this motion is whether the Proposal for Settlement constitutes a binding agreement.  The Ontario Court of Appeal in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. held that at common law, an agreement is binding if it contains all essential terms.  This is so even if the parties also agree that those terms will later be recorded in a more formal document along with the usual terms ancillary to that type of agreement.  However, an agreement is not final or binding if it is merely an agreement to later

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agree on essential provision, or to defer the binding nature of the agreement until the parties execute the proposed subsequent formal contract.

¶37  However, Bawitko goes on to say that parties…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 … 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 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.

¶38   In Bogue v. Bogue the Ontario Court of Appeal quoted Bawitko with approval, as it did in Lundrigan v. Andrews, and most recently in Ward v. Ward. All three of these cases were family law cases.  In some, the court found an enforceable agreement.  For example, in Bogue, the court found an enforceable settlement arising out of a four-way settlement meeting.  The court held the parties had agreed to all the essential terms of their agreement and therefore enforced the settlement.

¶39  In Lundrigan, the court found that the course of conduct by both parties indicated that they viewed a formal document as essential.  The court noted they had not actually agreed on the terms of that document since the husband refused to accept Minutes of Settlement as drafted because they included a term that had not been agreed upon.  The court held that in the circumstances of that case, “a reasonable observer could conclude that preparation of a mutually acceptable formal document was essential to the settlement.”  In Lundrigan, the parties had exchanged various iterations of Minutes of settlement.  Some were signed with some changes, and others without them. 

¶40   In Ward, the court upheld a handwritten ‘Memorandum of Understanding’, even though it had a preamble that said it was subject to counsel ‘working out a separation agreement [with] satisfactory language.’  In large part, the court came to this conclusion because the parties had behaved as though they had a binding agreement.  The husband delivered $250,000, the wife accepted it, and used the money to buy a new house.  The wife never offered to return the money, although she suggested the MOA was not a binding agreement.  It is noteworthy that in Ward, the parties themselves signed the MOA, and their signatures were witnessed.  Thus, their document complied with the provisions of the Family Law Act as far as the enforceability of domestic contracts is concerned.

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¶41   What emerges from the cases is that each will be fact-driven, and turn on an interpretation of what the parties objective intentions were.  I emphasize the notion of discerning objective intentions, because parties generally govern themselves in a self-serving fashion when the issue of enforceability arises, in order to bolster their respective positions as to whether a binding agreement has been formed or not.

Halpern v. Halpern, 2014 ONSC 4246 (CanLII) follows Cole and sets out at par. 21: As stated by the Court of Appeal in Lundrigan, at para. 8, the term “intention” is not used in the subjective sense but whether “in the eyes of a hypothetical onlooker” the parties appeared to have reached an agreement. In determining this issue, the courts will look at the conduct of the parties at the time.

Settlement Conferences- If a judge conducts a settlement conference they cannot then do the trial. C.A.S. v. S.C.(K.)M. R., 2010 ONSC 5846.

Subrule 17 (24) only applies to substantive issues in the case, such as parenting or spousal support – it relates to the generic legal issue involved in the case and for the trial. “Issue” cannot be interpreted to mean procedural matters such as a request for a s. 30 assessment or for a Voice of the Child Report or for disclosure or striking an Answer. To interpret the word “issue” so broadly as to encompass all possible procedural issues in the case would undermine efforts to provide single judge case management which is essential in family law. See: Canepa v. Canepa, 2018 ONSC 5154.

In Burke v. Poitras, 2018 ONCA 1025, the Court of Appeal upheld a decision striking pleadings at a settlement conference. The court noted that if notice is given, the rules don’t explicitly set out restrictions on making a final order. Further, subrule 17 (7.1) permits enforcement orders to be made at any time in a case – this includes settlement conferences.

Special Party – See cases under Representation and Public Guardian and Trustee

Statutory Interpretation

From: M.R.R. v. J.M., 2017 ONSC 2655

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Elmer A. Driedger, Construction of Statutes, 2d ed, (Oxford: Butterworth-Heinemann, 1983), at p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re),1998 CanLII 837 (SCC), at para. 21; Jackson v. Stephen Durbin and Associates, 2018 ONCA 424.

In Statutory Interpretation, 3d ed (Toronto: Irwin Law Inc., 2016), at p. 59, Ruth Sullivan confirms that ““ordinary meaning”…is the meaning that spontaneously comes to the mind of a competent language user upon reading the text…In the absence of a reason to

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reject it, it should be adopted by the court, because the general public will rely upon the ordinary meaning to inform their behaviour.” [emphasis added].

It is a principle of statutory interpretation that the courts should not endorse a construction that would render a portion of a statute extraneous, irrelevant or meaningless. See: Re Children's Aid Society of Metropolitan Toronto and Susan R. and Jimmie V.; Re Children's Aid Society of Metropolitan Toronto and Tammy R. and Kenneth M. (1993), 16 O.R. (3d) 351, 1993 Carswell-Ont 283 (Ont. Gen. Div.); Cole v. Cole, 2007 ONCJ 29; Jackson v. Stephen Durbin and Associates, 2018 ONCA 424.

When two statutory provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the specific provision prevails over the general provision. See Ruth Sullivan: Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002), at page 273; Cole v. Cole, 2007 ONCJ 29.

Statutory Interpretation – Regulations

Interpretation of  a Regulation requires the court to read the words of the Act and the Regulation in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. As well, when interpreting a regulation, a court must consider the words granting the authority to make the regulation in question, in addition to the other interpretive factors. Erickson & Partners v. Ontario (Ministry of Health and Long-Term Care), 2015 ONCA 285 (Ont. C.A.).

In so far as possible, courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, normally the statutory provision prevails. See Ruth Sullivan: Sullivan and Driedger on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008), page 341. L.R.. v. V.V., 2011 ONCJ 16; Children’s Aid Society of Toronto v. A.T., 2010 ONCJ 456.

Stays (also see lifting stays)-

Lahey v. Gauthier, 2015 ONCJ 393:

The wording of subrule 1(8) of the Family Law Rules is sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case and where there has been a wilful failure to follow the Rules or obey an order in the case.  See: Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.);Wreggbo v. Vinton, 2013 ONCJ 250 (CanLII).

The power is under s.106 CJA. It is unusual remedy to be used sparingly. McGonegal v. Young 2004 ONCJ 313 (OCJ). Might order it if fail to proceed with med/arb agreement. Marchese v. Marchese, (2007) 35 RFL (6th) 291 (OCA). Can be imposed until costs paid. Susin v. Chapman, 2004 CarswellOnt. 143 (OCA). A stay should not be ordered if there

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is merit to the claim and the person ordered to pay costs is genuinely impecunious. Larabie v. Montfils 2004 CarswellOnt 186 (Ont. C.A.). In Diciaula v. Mastrogiacamo (2008), 56 R.F.L.(6th) 366 (Ont. SCJ.), the father had an order for supervised access but had not exercised it for a considerable time. He moved to expand his access. The court stayed the motion until such time as he was able to show compliance with the original order and paid the outstanding costs order

Stays - Breach of Court Order- In Dickie v. Dickie [2007], 1 S.C.R. 346, the Supreme Court of Canada affirmed the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach. This discretion is grounded in the inherent jurisdiction of the court to control its own processes and in s. 140(5) of the Courts of Justice Act, which gives the court express power to stay or dismiss a proceeding as an abuse of process. Oelbaum v. Oelbaum, 2011 ONCA 300 (CanLII).

Summons – quashing

Criteria for quashing a summons set out in Kent v. Kent, 2010 CarswellNfld 278 (N.L. C.A.):

1. Where the evidence sought to be elicited from a subpoenaed witness is relevant to a live issue in the case, there is a prima facie right to require the attendance of the witness by means of a subpoena;

2. The right of a party to issue a subpoena duces tecum is, however, subject to the inherent jurisdiction of the court to control its own process;

3. Because a party has the right, subject to the obligation not to abuse it, to control the presentation of his or her case, the jurisdiction of the court to quash a subpoena should be used cautiously and sparingly;

4. The grounds on which a subpoena to a non-party may be quashed include:

(a) the information sought is not relevant to the live issues in dispute;

(b) the subpoena was irregularly issued;

(c) the information is privileged from production or is prohibited by statute;

(d) the subpoena was not issued in good faith for the purpose of obtaining relevant evidence but for an ulterior or improper purpose;

(e) the matter (such as an interlocutory application in a proceeding) to which the subpoena relates is frivolous or vexatious;

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(f) compliance would be oppressive as to the number, nature and breadth of the documents required or would work an unnecessary hardship, as where the documents may not be easily or readily retrievable and the expense does not justify their production considering their importance to the case, their potential availability from other sources and the importance of the privacy interests at stake;

(g) its issuance is otherwise an abuse of process;

5. The burden is on the party issuing the subpoena to show that the information sought is relevant to the live issues in the proceeding;

6. The burden is on the witness challenging the subpoena to show that other grounds exist that would justify quashing the subpoena;

7. A person who wishes to challenge a subpoena may do so either by:

(a) making application in advance of the date specified for appearance setting forth the grounds upon which the challenge is being made;

(b) appearing, with or without counsel, on the date specified in the subpoena and making application to quash the subpoena, specifying the grounds relied on.

8. Upon application being made, the judge may give directions to the party issuing the subpoena as to what material should be submitted to show the relevance of the information sought to the live issues in dispute and why, generally, the information is needed from the particular witness in question, as opposed to from any other available source, and when during the trial the information is needed.

9. The judge may also give directions as to whether further material should be filed by the person challenging the subpoena and by other parties, as well as how and when the various issues involved in the challenge should be argued;

10. As an alternative to quashing the subpoena, the judge may consider whether the subpoena should be limited in scope or whether the execution of the subpoena should be postponed to a later date in the trial when the necessity for the evidence may become more apparent.

From: Briand v. Dupuis, 2019 ONCJ 158:

[21] The burden is on the party issuing the summons to show that the information sought is relevant to the live issues in the proceeding.

[22] The burden is on the witness challenging the summons to show that other grounds exist that would justify quashing the summons.

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[23] A person who wishes to challenge a subpoena or summons may do so either by:

(a) making application in advance of the date specified for appearance setting forth the grounds upon which the challenge is being made

(b) appearing, with or without counsel, on the date specified in the subpoena or summons and making application to quash the subpoena, specifying the grounds relied on.

[24] Upon an application being made, the judge may give directions to the party issuing the summons as to what material should be submitted to show the relevance of the information sought to the live issues in dispute and why, generally, the information is needed from the particular witness in question, as opposed to from any other available source, and when during the trial the information is needed.

[25] The judge may also give directions as to whether further material should be filed by the person challenging the summons and by other parties, as well as how and when the various issues involved in the challenge should be argued;

[26] As an alternative to quashing the summons, the judge may consider whether the summons should be limited in scope or whether the execution of the summons should be postponed to a later date in the trial when the necessity for the evidence may become more apparent. See Kent v. Kent, supra.

See: Child Protection General for case on compelling child to testify

Taxation – Courts don’t have the authority to amend the Income Tax Act. Edgar v. Edgar, 2012 ONCA 646.

Transfer of Case (Municipality)

Under subrule 5 (8), case can be transferred if substantially more convenient to be heard in another municipality in Ontario. It is not enough to be marginally more convenient, or just more convenient for the moving party, the word substantial is critical. Whether the first court is in active case management is a consideration. Nyari v. Velasco, [2008] O.J. No. 2383 (OCJ).

Under subrule 5 (2) a party may start a case in a municipality other than the ordinary residence of the child if there is a danger that the child will be removed from Ontario or there is immediate danger to the moving party or child. This includes immediate danger to a child’s physical or emotional safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.Ct.). The case is then to be transferred to the other municipality after the motion is heard unless the court orders otherwise. The exception was given a narrow interpretation in Van Roon v. Van Roon, 2013 ONCJ 276 (CanLII), to prevent forum shopping and self-help.

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Transcripts - Benet v. Benet, 2009 CanLII 60665 (ON S.C.): Parties not permitted to obtain transcript of settlement/trial management conference as to do so would discourage settlement negotiations. Detriment outweighed benefit. Here, one of the parties wished to use it at trial to show inconsistency. In Children’s Aid Society of Niagara Region v. N. (R.) [2004] O.J. No. 1526, J.W. Quinn J. while noting that there was nothing within Rule 17 that made the case conference immune to a request for the provision of a transcript of the proceeding, held that a party to a family law case was entitled to make a motion for an order for the production of transcripts upon proof of (a) a legitimate need for the transcript and (b) the probative value of the transcript outweighed its possible harm. The scope of Rule 17 (23) was further considered by J.W. Scott J. in Bordynuik v. Bordynuik (2008) CanLII 39219 (ON S.C.).  The court noted that it is common for the parties and the presiding judge to enter into settlement discussions at a case conference, during which judicial opinions or suggestions may be offered.  It was noted that to open up what has been discussed at a later time would inhibit and negatively impact on the settlement discussions.

Trials – Examination of Case Conference or Settlement Conference Briefs – should not be done. Cicciarella v. Cicciarella, 2009 CanLII 34988 (ON S.C.D.C.)

Trial – Temporary Order at end of trial – not advisable to do it. Case where done to get better evidence Hewitt v. Hewitt, 2004 ONCJ 325. Also done when temporary order made for one year with a direction for counseling. Lust v. Lust, 2007 AJ No. 654 (CA).

Vexatious Litigants – Rule 2.1 of the Rules of Civil Procedure were incorporated into a family law case through subrule 1(7) of the Family Law Rules in Purcaru v Vacaru, 2016 ONSC 1037. The court wrote:

The issue of dealing with vexatious litigants is a significant issue of access to justice that has been the subject of much concern.  Rule 2.1 provides an important tool by which a subset of plainly vexatious claims can be dealt with summarily under an abbreviated process so as to avoid the costs and delays that can be inflicted by people who bring such litigation.   Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 (CanLII) at para. 9.

[2]  Rule 2.1 is designed to weed out frivolous and vexatious claims where it is apparent on the face of the claim that it fits that definition and where there is reason to be concerned that the litigation is likely to become a vehicle for a party who might be inclined to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system.  Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733   (CanLII)  at para. 12.  No evidence is admissible on a review under Rule 2.1.  However, the court may refer to prior decisions of the court where appropriate. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLII), at para. 11.

Videoconferencing -

The usual test for video evidence before an order can be granted for such is that there must be evidence that the witness is unable or unwilling for any reason to attend court, and that the transmission of evidence will be of good quality and not impair the courts ability to assess credibility. The court must balance the competing interests i.e. the right to have a live witness personally present to be cross examined versus the inconvenience

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and cost of attendance. See for example Pack All Manufacturing Inc. v. Triad Plastics Inc., 2001 CarswellOnt 5379 (Ont. S.C.J.),Aly v. Nader Halal Meat Inc., 2012 CarswellOnt 5527 (Ont. S.C.J.).

It was permitted in a Hague case – Adkins v. Adkins (2009) 68 R.F.L. (6th) 334 BCSC. Skype and video-conferencing were permitted to examine witnesses at trials in Paiva v. Corpening, 2012 CarswellOnt 2050 (Ont. C.J.) and Wright v. Wasilewski, 2001 CarswellOnt 266.Not permitted for trial in Loveman v. Loveman (2010) 81 R.F.L. (6th) 338 (Newfdl. SC), since only one party could be heard at a time.

Voir Dire

On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of proposed evidence have been met. It is a separate proceeding from the trial proper and the evidence taken on the voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation. R. v. Erven, 1978 Canlii 19 (SCC).

Each admissibility issue warrants a separate inquiry or voir dire. Evidence adduced on one voir dire does not, without more, become evidence on another voir dire held to determine a different admissibility issue. The manner in which a voir dire is to be conducted is left to the discretion of the presiding judge, and is not subject to rigid or pre-fabricated rules. Relevant factors include, but are not limited to, the nature of the issue under consideration and of the case itself, as well as the means of proof available. R. v. Sadikov, 2014 ONCA 72 (Canlii).

Not every question of admissibility requires a voir dire. It will not be required when there are no preliminary facts to prove (issues of relevance for example) or when there is no dispute about the preliminary facts. A voir dire will be required when there are preliminary facts in dispute, which are the foundation for the admissibility ruling. For instance, to admit a business record, the proponent has to prove the statutory or common law requirements.

Apart from the rules of privilege, the rules of evidence are relaxed in a voir vire.

Nothing heard in the voir dire is admissible at trial unless the parties agree otherwise. Family and Children’s Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837 ONCJ. The parties can agree that parts of the voir dire are admissible at trial. If there is no agreement the court has the trial management power to make an order to that effect. R. v. Adam, [2006] B.C.J. No. 2167.