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Procedure

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.

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)

Adoption – Adult adoptionsFour-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 – 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

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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 (Ex-parte) – 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 (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.).

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

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

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 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

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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 represented his step-daughter.

Amendments- 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, C.R.C. 329 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. To the contrary see: 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).

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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.

(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.  Although amicus may often be paid by the legal aid fund, that is not always necessarily so.  There should be a negotiation process between the Attorney General and an intended amicus as to compensation.  The judge may play a role in this process that is persuasive only.  If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.

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

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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.

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

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.

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.

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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.

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.

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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.

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.

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.

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 – 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

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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] OJ No 729: 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] OJ No 760 at 24).

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).

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.

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.

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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.).

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."

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.

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. The person requesting a bilingual proceeding should be able to demonstrate that he or she has a working fluency in the French language sufficient to instruct counsel and to follow the proceedings in French. In circumstances giving rise to a suspicion that the request is not bona fide, especially where the request is not made in a timely fashion, the court materials are in English and the requesting party’s lawyer does not speak French, then the court should conduct a voir dire to determine that the requesting party speaks French as contemplated by s. 126. W.F. v. S.H., 2014 ONCJ 480.

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 CanLII 41 (SCC), [1989] 2 SCR 848. Rule 25(19) of the Family Law Rules, like rule 59.06 of the Rules of Civil Procedure, gives the court the further power to add terms to an order in relation to matters that were before the court, but were not decided by the court. Chitsabesan v. Yuhendran, 2014 ONSC 5395 (CanLII).

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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

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).

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 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.). 

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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.

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:

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(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 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).

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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).

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? – Yes, there is jurisdiction. Abernethy v. Peacock, 2009 CanLII 25128 (ON S.C.)

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.). (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.

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.).

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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.

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.

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

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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:

[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

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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.

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

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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 - 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).

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.

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.

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). 

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).

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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.).

Passport Clauses (Precedent):-

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.

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

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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.

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.

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)

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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.

In Provenzano v. Thunder Bay (City), 2008 CanLII 22147 (ON S.C.), 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

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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.

Pleadings – Striking for Breach of Order

1. 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 casee) 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.

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).

2. 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)).

3. 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.

4. 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.

Striking a Party’s Pleadings

Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII):

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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.

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).

Before striking pleadings, consideration ought to have been given to the importance or materiality of the items of disclosure that has not been produced.  Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate.  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).

To the contrary: Heavy onus on person who wishes to use “unless” provision of Rule 14 (23). Inability to pay is only factor when making order, not when enforcing it. Other side’s breach no excuse. The provision is mandatory unless court orders it doesn’t apply. Gordon v. Starr 2007 Canlii 35527 (Ont. SCJ).

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.

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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.

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).

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.).

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).

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).

Pre-judgment interest – Court applied an average of interest rates for 4 year period when assessing the proper rate. 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.

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

Prohibition on Future Proceedings – Can do this 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.

BUT: 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.

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.

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 Trustee and Guardian (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 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

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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.

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

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 (OntS.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.

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:

. . .  post-trial motions to re-open the trial to introduce new or additional

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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.

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).

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).

Reply material - 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 – 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:

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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.

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

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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.

Restraining Orders – Where an Applicant has a “legitimate fear” for his or her safety, even where that is somewhat subjective, a restraining order should go where there are compelling facts leading to that fear. Fuda v. Fuda, 2011 ONSC 154 (CanLII). There must be some persistence to the conduct complained of and a reasonable expectation that it will continue unless censured by the court. Purewal [2004] O.J. No. 3891 (OCJ). The conduct must be of a sort that a reasonable person would regard as disturbing, or as a source of irritation or anxiety to a substantial degree. The section does not contemplate trivial or casual annoyance. Sniderman [1981] O.J. No. 1119 (Ont. H.C.). Such an order should not be made unless a clear case has been made out. Ciffolillo v. Nieweglowski [2007] O.J. No. 3979 (OCJ).

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).

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

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).

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).

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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 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).

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”.

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.

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.).

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. Section 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.

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 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).

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. Fehervari v. Kiss, 2013 CarswellOnt 15919 (Ont. S.C.J.)

Service ex juris -  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 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.).

To the contrary see: Wang v. Lin 2015 ONSC 7814 (CanLII) where the court held that the Hague Convention on Service does not apply to cases that are governed by the Family Law Rules.  In addition, Justice Kiteley noted in para. 34 of her decision that in the Khan case, the Court of Appeal left open a possibility that even if the Hague Convention on Service applies, there might be exceptions:●         where a party has pursued all possible remedies under the Convention and is still unable to effect service; and●         where considerations of access to justice militate in favour of an exception to service under the Convention, in extreme circumstances

Setting Aside or Changing Final Order

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The case law appears to establish that the court does not have jurisdiction to set aside an order pursuant to subrule 25 (19). It only has jurisdiction to change an order for the reasons circumscribed in the subrule. See: Boivin v. Smith, 2010 ONCJ 411 and Ontario (Family Responsibility Office, Director) v. Dick [2013] O.J. No. 1752 (OCJ) - both cases applying the reasoning in DiCiaula v. Mastrogiacomo (2006), 268 D.L.R. (4th) 180 (Ont. Div. Ct.).

However, applying subrule 1 (7) of the rules, the court can import provisions contained in the RCP (if the matter is not adequately dealt with by the rules) to set aside an order. See: DaRosa v. Gillespie, 2013 ONSC 3072; Boivin v. Smith, supra and Ontario (Family Responsibility Office, Director) v. Dick, supra; Peterbilt of Ontario Inc. v. 156567 Ontario Ltd., 41 C.P.C. (6th) 316 (Ont. C.A.); Chitel v. Rothbart, [1988] O.J. No. 1197 (Ont. C.A.).

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 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 –  The Court of Appeal stated in McCowan v. McCowan, 1995 CanLII 1085 (ON CA):

The general principle set out in these authorities was accepted by this court in Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 at pp. 16566: 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.

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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.  

Subrule 25 (19) cannot be used to change a mistake of law. The correct route is appeal. Cozzi v. Smith, 2014 ONSC 6189 (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 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.

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¶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.

¶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.

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.),

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Stays-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 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).

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).

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;

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(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;

(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;

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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.

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.

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.)

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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).

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 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.

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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.