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Procedure

Abuse of Process

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

78 The common law doctrine of abuse of process engages the inherent power of the court to

"prevent misuse of its procedure, in a way that would... bring the administration of justice into

disrepute". Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of

Toronto, et al., (2003) 3. S.C.R. 77 para. 37.

79 The doctrine is flexible, and unencumbered by the specific requirements of concepts such as

issue estoppel".Canam Enterprises Inc. v. Coles, (2000) 51O.R. (3d) 481 at. Para. 55.

80 The doctrine may be used to prevent "relitigation in circumstances where the strict

requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but

where allowing the litigation to proceed would nonetheless violate such principles as judicial

economy, consistency, finality and the integrity of the administration of justice". Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of Toronto, et al., (2003) 3.

S.C.R. 77 para. 37

81 The Supreme Court of Canada has made observations as to why relitigation of an issue is to

be avoided as a matter of public policy:

• * There can be no assumption that relitigation will yield a more accurate result

than the original proceeding;

Relitigation is a waste of judicial resources.

• * An inconsistent result in the subsequent proceeding "in and of itself will

undermine the credibility of the entire judicial process, thereby diminishing its

authority, its credibility and its aim of finality".

Adding Parties

Following factors are relevant:

1. whether it is in the best interests of the child;

2. whether it will delay or prolong proceedings unduly;

3. whether it is necessary to determine the issues;

4. whether the additional party is capable of putting forward a plan that is in the best

interests of the child. CAS of London and Middlesex v. H.(S.) [2002] O.J. No. 4491. SCJ.

The ability of an existing party to present a plan of placement of a child with a non-party

can be a significant consideration in deciding whether to add that non-party. It is not

necessary for the court to determine at this stage whether the plan of the proposed added

parties would be successful; the question at this stage is whether their plans merit

consideration, despite the delay in bringing it. Catholic Children’s Aid Society of Toronto

v. H.D. 2009 ONCJ 2.

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Possession of relevant evidence may make a person a witness, but does not elevate them

to party status. Noik v. Noik, 2001 14 RFL (5th) 370 (SCJ).

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

5th 338.

Adjournments – It is a matter of discretion that must be used judicially. Barrette v. The

Queen 29 CCC (2d) 189. The concerns of both parties and the public interest must be

considered. Re: Flamboro Downs Holdings Ltd. And Teamster Local 879 (1979) 24 O.R.

(2d) 400 at 404. The court must look at whether the party would receive a fair trial

without counsel. R. v. Gonsalves (2005) O.J. No. 1238 (CA)

Adoption – Adult adoptions

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

1. The adoption would create an actual (not just a legal) change in the relationship

between the applicant and the proposed adoptee.

2. Both parties are not only aware of the legal incidents of adoption; they mutually

intend those incidents to govern their relationship.

3. The application is motivated by a psychological and emotional need on the part of

the proposed adoptee for a new parent or for a parent to fill the “gap” from a

parent that the adoptee never had or never knew.

4. The relationship between the applicant and the proposed adoptee would be

“enhanced and strengthened” by an adoption order.

Adoption – Dispensing with consent - Justice Smith set out the test to apply when

deciding whether or not to dispense with consent of the natural parent to an adoption,

which is set out in Section 138 of the Child and Family Services Act. That test is simply

that it must be in the child's best interest to do so. This is developed in a decision of

Justice Robertson, in M.A.L. v. R.D.M., 2005 CarswellOnt 1069 (Ont. S.C.J.) which set

out the following principles:

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

CFSA;

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

what the child will gain;

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

ascertained;

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

Adoption- Notice to Biological Father:

The court is not required to simply accept the word of the biological mother that a known

biological father does not qualify as a parent within the statutory definition without notice

being given to him that this issue is before the court. Form 34A requires the birth mother

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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.).

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

[28] Where a motion is brought without notice, the person bringing the motion must make full and fair

disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be

helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if

the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi,

2013 ONSC 7368.

[29] Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are

therefore made only in very limited circumstances. The requirement for full and frank disclosure is

essential to allow a court to fairly make a temporary order that will affect the rights of another person in an

emergency situation where the court has not heard both sides of the story.

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

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).

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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

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.

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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.

Agreements – Enforcement

A lawyer has authority to make a binding settlement agreement on behalf of a client

unless the authority is limited by a client and the limitation is known to the opposing

lawyer. Tobin v. Cox, 2015 CarswellNfld 119 (N.L. T.D.), and Scherer v. Paletta, 1966

CarswellOnt 119 (Ont. C.A.).

Notwithstanding an offer and acceptance, a court still has a discretion in family law

matters to decline to enforce the agreement. In Nigris v. Nigris, 44 R.F.L. (4th) 269 (Ont.

Gen. Div.) and Trembath v. Trembath, 1993 CarswellOnt 3974 (Ont. Gen. Div.) a court

considered the following matters in determining whether to exercise discretion with

respect to enforcement.

1. Whether the settlement is unconscionable and improvident.

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2. Has the person resiling been subject to an inequality of bargaining power as explained

in such cases as Lloyd's Bank Ltd. v. Bundy, [1974] 3 All E.R. 757 (Eng. C.A.) at 763 and

765?

3. Has a party failed to act in good faith?

4. Did counsel act without authority?

5. Are the terms of the agreement sufficiently clear that an attempt to enforce them will

not spawn further litigation?

6. Does the agreement encompass most if not all of the issues in dispute?

7. Was the settlement negotiated with the parties physically in each others presence?

8. What period of time has elapsed between the agreement and notification that a part is

resiling?

9. At what stage in the litigation did the negotiations take place?

10. Has the other party suffered a disadvantage as a result of the agreement being

abrogated?

Amendments-

Leave to amend a pleading should only be denied in the clearest of circumstances. TSI

International Group Inc. v. Formosa, 2017 ONCA 261.

As a general rule a necessary amendment ought to be allowed provided the party

applying is acting bona fide and that it will not prejudice the opposite party in a way that

cannot be compensated for in costs. C.N.R. v. Muller, [1933] Canlii 372 S.C.C; Should

be granted even if omission is late, careless or negligent, if no injustice and can be

compensated in costs. Hauser [2008] S.J. No. 63 Q.B.

From: Fraser v. Fraser, 2017 ONSC 3774:

Various decisions of our court have confirmed that Rule 11(3) generally is mandatory,

absent prejudice or disadvantage to another party that cannot be cured by either an award

of costs or the granting of an adjournment or both. It generally does not matter whether

the amendment is prompted by a change in the case, is merely an afterthought, raises a

new issue, or comes as a surprise to the responding party. However, unfairness to a party

resulting from a proposed amendment must be curable by costs, or an adjournment, or

both. Moreover, the existence of bad faith is an exception to everything. In particular,

where it can be shown that an amendment is motivated by bad faith, there is an inherent

jurisdiction in the court to refuse the amendment. See, for example: Stefureak v.

Chambers (No. 3), 2005 CanLII 16090 (ON SC), [2005] O.J. No. 1949 (S.C.J.),

and Canabate v. Ayala, 2009 ONCJ 415 (CanLII), [2009] O.J. No. 3904 (S.C.J.).

To the contrary:

Mio v Mio, 2014 ONSC 2186 (CanLII), where the court would not permit a late

amendment to claim retroactive support as the disadvantage of delay could not be

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compensated with costs. The court said rule 2 must be considered as well as subrule 11

(3).

Request to Amend Answer denied near the eve of trial, when the only remaining issue

was support. The moving party wanted to seek joint custody. Rule 11(3) could not have

been intended to open the door to a complete reassessment of a party’s case. The

appropriate time for bringing amended documents is relatively early in the proceeding,

when the parties are still formulating their positions, and certainly before there are Final

Orders. Bursey v. Mirabi, 2017 ONCJ 157.

If a claim is amended, it must be served on the respondent, even if their pleadings were

struck and they were disentitled to participate under rule 10(5). Stephens v. Stephens,

2010 ONCA 586.

Amicus – Amicus curiae appointed for parents in a high conflict case in Morwald-

Benevides v. Benevides, 2015 ONCJ 532 as there were complex legal and social issues.

The mother was emotionally incapable of presenting her case properly. The court

reviewed the following principles from the case law:

(a) The ultimate and primary purpose is to provide assistance to trial judges on

issues of law or facts, wherein the trial judge is of the view that an effective, fair

and just decision cannot be made without such assistance.

(b) Such orders are made to ensure a fair trial process, the orderly conduct of

proceedings and to ensure the proper administration of justice.

(c) It is usually driven by the initiative of the judge, but may also occur at the

request of one or more of the parties.

(d) There are many scenarios to which amicus may apply. The class of scenarios is

not closed. There is no “one size fits all” standard.

(e) The power to appoint has a high threshold. Such should be exercised sparingly

and with caution. Appointments should be made in response to specific and

exceptional circumstances. A judge must not externalize his or her duty to

ensure a fair trial of unrepresented accused by shifting the responsibility

to amicus curiae, who under a different name assume a role nearly identical to

that of defence counsel.

(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.

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(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

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.).

Bias – Judicial

The test for demonstration of a reasonable apprehension of bias by a judge is an

exacting one. It, together with the strong presumption of judicial impartiality, pose a

steep hurdle for litigants who seek to overturn a judicial ruling based on the alleged

bias of the judicial decision-maker. See for example, Mwanri v. Mwanri, 2015 ONCA

843; Martin v. Sansom, 2014 ONCA 14, 118 O.R. (3d) 522. Tiveron v. Collins, 2017

ONCA 462.

Breach of court order – see enforcement of court order

Case Conferences - Rosen v. Rosen, 2005 O.J. No. 62 (Ont. SCJ) - Motions before case

conference require urgency. Court states:

“an urgent motion contemplates issues such as abduction, threat of harm, dire financial

circumstances. Counsel must first make an inquiry to see if an early case conference date

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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.

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.

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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.

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.

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This trial management power extends to the careful exercise of judicial supervision over

the tactical and other conduct of litigants and counsel before the court: Krieger v. Law

Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 374, per Iacobucci and Major

JJ., for the court, at para. 47. It follows, in my view, that a presiding trial judge, in the

exercise of his or her discretion, is empowered to take those lawful and reasonable steps

that he or she concludes are necessary to control uncivil or other unacceptable conduct by

all participants in open court, including advocates. Groia v. The Law Society of Upper

Canada, 2016 ONCA 471.

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

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).

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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).

Fielding v. Fielding, 2015 ONCA 901 (CanLII), 129 O.R. (3d) 65:

Failure to abide by this fundamental principle [to disclose financial

information] impedes the progress of the action, causes delay and

generally acts to the disadvantage of the opposite party. It also impacts

the administration of justice. Unnecessary judicial time is spent and the

final adjudication is stalled (para. 64).

Disclosure – Third party – Subrule 19 (11)

Bailey v. Bailey 2012 ONSC 2486 (CanLII) (cited in Jordan v. Stewart 2014 ONSC 5797

The six criteria are as follows:

(a) The documents are in a non-party’s control;

(b) The documents are available only to the non-party;

(c) The documents are not protected by legal privilege;

(d) It would be unfair for the party seeking the disclosure to proceed without the

information sought;

(e) The documents sought are relevant and necessary; and

(f) Notice is provided to the non-party.

Also see: Disclosure in Child Protection Evidence file for fuller discussion of obtaining

third party records.

Drug Testing – Court can order it under s. 105 of Courts of Justice Act. J.S.D. v. W.L.V.

1995 B.C.J. No. 653 (BCCA), Bell-Ginzberg v. Ginzberg [1993] O.J. No. 1471 (Gen.

Div.) for HIV testing. Might be able to use Rule 23, see Webb v. Greenhalgh and Eland-

Greenhalgh [2007] O.J. No. 1766. Ordered as condition for granting overnight access in

Maltezos v. Maltezos [2006] O.J. No. 1664 (Ont. Fam. Ct.) and Jacobs v. Jacobs [2008]

O.J. no. 2639 (Ont. Fam. Ct.).

Enforcement of Orders – Law set out in Cinapri v Fleck, 2016 ONSC 1297 (CanLII) as

follows:

13

The preamble of Family Law Rule 1(8) permits the court to make any order that

“it considers necessary for a just determination of the matter,” and then provides a

non-exhaustive number of possible remedies. The term “a just determination of

the matter” I take to include the failure of a person to obey an order in a case. The

powers given to the court are therefore flexible to address any non-compliance,

ranging from the wide discretion to grant remedial orders where an order and its

breach are self-contained in terms of cause and effect, to an order of a punitive

nature that requires its own motion, such as a motion for contempt. Any order the

court makes should be appropriate to address the nature of the breach, and

proportionate to its consequences. In my view, orders made under Family Law

Rule 1(8) should facilitate compliance rather than end in irretrievable censure.

After all, even contempt orders can be purged.

In Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), Justice Spence of the Ontario

Court of Justice set out a three step process for the court to follow on a motion

brought under Family Law Rule 1(8). This three-step process applies when

deciding whether the evidence allows for a finding non-compliance of an order by

one party, and whether the court should exercise its discretion to impose

consequences if any breach is found. The three steps in the process set out

in Ferguson are:

[64] ... First, the court must ask whether there a triggering event that would allow it to consider

the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-

compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on

motion” [subrule 14(23)].

Second, if the triggering event exists, the court should then ask whether it is appropriate to

exercise its discretion in favour of the non-complying party by not sanctioning that party under

subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case

law suggests that this discretion will only be granted in exceptional circumstances. In my view,

the court’s decision whether or not to exercise its discretion in favour of a non-complying party,

ought to take into account all relevant history in the course of the litigation and, more specifically,

the conduct of the non-complying party.

Third, in the event that the court determines that it will not exercise its discretion in favour of the

non-complying party, it is then left with a very broad discretion as to the appropriate remedy

pursuant to the provisions of either subrule 1(8) or subrule 14(23).

On a motion brought under Family Law Rule 1(8), the finding that a party has failed to

comply with a court order is essential to constitute the occurrence of a triggering event

under the first step in Ferguson. Under either circumstance, there must be a definitive

order for the court to determine on the evidence whether the responding party has

complied with its terms or not.

A court order must be clear and unequivocal about what should or should not be done

must also apply when the court is asked to determine if a party has breached an order

under Family Law Rule 1(8).

14

I agree with the initial observation made by Justice McDermot in Varcoe v. Varcoe, 2014

ONSC 328 (CanLII), that it would be superfluous to order that a party comply with an

existing order. To order compliance does not add to, or take away from the initial order.

If there has been a breach, the appropriate step is to seek a remedy under Family Law

Rule 1(8).

Examinations - Zafir v. Diamond, 2008 CarswellOnt 2030 (Ont. S.C.J.): questioning of

third-party family members is the "last recourse to be accorded only after all other steps

have been pursued with respect to disclosure." Serra v. Serra, 36 R.F.L. (6th) 66 (Ont.

S.C.J.) the thrust of 20(5) is that questioning should be a last resort, a step to be taken

only after reasonable requests for documentary disclosure has been attempted and

exhausted."

Excluding litigant from court - A combative litigant who misconducts himself by

attempting to obstruct matrimonial proceedings despite repeated warnings from the court

may be excluded from the court room by the presiding judge and the trial may proceed in the

absence of the litigant. C.E.J.K. v. H.W.K., 2016 SKQB 24,(Q.B.) (Fam. Law Div.).

Experts (Late filing of report) – Court did not grant an extension for late filing of expert

report in Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 330 (CanLII),

as the probative value of the report being filed did not exceed the prejudicial effect to the

parents. Further the proposed witness was found not to be an expert in the area offered.

French Trial – Section 26 (1) of the Courts of Justice Act states that a party to a

proceeding who speaks French has the right to require that it be conducted as a bilingual

proceeding. This is a substantive and absolute right. Ndem v. Patel, 2008 ONCA 148.

The party does not need to prove that he or she cannot communicate in English. Tremblay

v. Picquet [2010] O.J. No. 1216.

Pursuant to s. 125 and s. 126 of the Courts of Justice Act, the official languages of the

courts of Ontario are English and French and a party to a proceeding who speaks French

has the right to require that it be conducted as a bilingual proceeding. Whether the

Respondent speaks, writes or works professionally in English as suggested by Ms. Carson

is not the issue. I accept that French is her first language and the court is required to

facilitate a bilingual proceeding. Herscovitch v Chatelain, 2016 ONSC 2378.

Functus (also see: reopening trial) – Judges are not functus until the order is issued and

entered. Jamieson v. Jamieson, 2008 ONCA 675. Also Church v. Church, [2003] O.J.

No. 2040 (S.C.J.) and Neathery v. Cottle, 2012 ONSC 3403 (CanLII). A court is also free

to decide an issue it failed to consider at trial pursuant to subrule 25 (19). See: Beaumont

v. Beaumont 2006CarswellOnt 3662.

Until the order resulting from a hearing is signed, the presiding judge remains seized of

all issues. The legal concept of functus officio allows that, even after a final order is

signed, the judge can still correct slips or errors in it so as to ensure that the order

properly reflects the decision of the court as intended. See Chandler v Alberta

Association of Architects, [1989] 2 SCR 848.

15

Justice Del Frate squarely stated the applicable principles about when, and what it means

for a judge to become functus officio in Clement v. Clement, 2015 ONSC 5654

(CanLII) in the following terms:

[11] Case law is quite clear that a judge becomes functus when “the order or judgment

is signed and entered.” See 369413 Alberta Ltd. v. Pocklington, 1999 ABQB 936

(CanLII), [2000] A.J. No. 410 (Q.B.); Condominium Plan No. 7510189 v. Jones, 1997

ABCA 53 (CanLII); and Pro-Express Ltd. v. Thew (1996), 185 A.R. 285 (B.Q.).

[12] The exceptions are in situations where there was a mistake in the process of

putting the judgment to paper and finalizing it or where there has been an error in

expressing the intention of the court; Chandler v. Alberta Association of Architects, 1989

CanLII 41 (SCC), [1989] 2 S.C.R. 848, or in situations where fraud can be proven: Wavel

Ventures Corp v. Constantini, [1996] A.J. No. 1093 (C.A.).

[13] This principle is also enunciated by Perrel and Morden in The Law of Civil

Procedure in Ontario, 1st ed. (Toronto: LexisNexis, 2010), at p. 777:

….until the order in question has been signed and entered, the lower court is not functus

officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.

Followed in Wharry v. Wharry, 2017 ONSC 2895 – but court chose not to hear motion

when appeal had already been determined. Court left open the possibility of a motion

being brought under subrule 25 (19) of the Family Law Rules.

The test under rule 59.06(2)(a) of the Rules of Civil Procedure to re-open a trial that

applies after the judgment or other order has been issued and entered was set out by

Doherty J.A., speaking for the court, in Tsaoussis (Litigation Guardian of) v. Baetz, 1998

CanLII 5454 (ON CA), at paras. 41 and 44. As he noted, the onus is on the moving party

to show that all the circumstances “justify making an exception to the fundamental rule

that final judgments are exactly that, final.” In particular, the moving party must show

that the new evidence could not have been put forward by the exercise of reasonable

diligence at the original proceedings. The court will go on to evaluate “other factors such

as the cogency of the new evidence, any delay in moving to set aside the previous

judgment, any difficulty in re-litigating the issues and any prejudice to other parties or

persons who may have acted in reliance on the judgment.” See: Mehedi v. 2057161

Ontario Inc., 2015 ONCA 670

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

16

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.).

It is not possible to remove identifying information from decisions and endorsements

already in the public domain. Bolland v Bolland, 2017 ONSC 209 (CanLII).

Interpretation of Agreements

From: Robinson v. Robinson, 2017 ONSC 2454

“In the absence of any ambiguity in the words of the contract, parole evidence of the

subjective intention of the parties has no place in the interpretative exercise.” Turner v.

DiDonato, 2009 ONCA 235 (CanLII), 95 O.R. (3d) 147, at para. 44.

The goal is to ascertain the objective intent of the parties at the time they entered into the

Agreement: Sattva Capital Corp. v. Creston Moly Corp.,2014 SCC 53 (CanLII), [2014] 2

S.C.R. 633.

The Supreme Court provided further guidance in B.G. Checo International Ltd. v. British

Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC0, [1993] 1 S.C.R. 12, at

pp. 23-24:

It is a cardinal rule of the construction of contracts that the

various parts of the contract are to be interpreted in the

17

context of the intentions of the parties as evident from the

contract as a whole.

The Ontario Court of Appeal, in MacDougall v. MacDougall, 2005 CanLII 44676 (ON

CA), 262 D.L.R. (4th) 120, in applying that principle to domestic contracts said this, at

para. 22:

Applying that principle to domestic contracts, a court must

search for an interpretation that is in accordance with the

parties’ intention at the time they entered into the contract.

Where two interpretations are possible, the court should

reject the one that would produce a result that the parties

would not have reasonably expected at the time they

entered into the contract. Instead, the court should favour

an interpretation that promotes the reasonable expectations

of the parties and that provides a sensible result in the

family law context. To arrive at such an interpretation, the

court must interpret the provision in the context of the

entire contract, including the entirety of the section at issue,

to discern the likely intention of the parties.

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

Morden, J.A. stated:

A custody case, where the best interests of the child is the only issue,

is not the same as ordinary litigation and requires, in our view, that the

person conducting the hearing take a more active role than he

ordinarily would take in the conduct of a trial. Generally, he should do

what he reasonably can to see to it that his decision will be based upon

the most relevant and helpful information available.

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

so.

C.A.S. v. S.C.(K.) M. R., 2010 ONSC 5846 (CanLII): It is true that after being examined,

cross-examined and re-examined by counsel, the trial judge then questioned the appellant

mother to the extent of twenty-three pages of transcript. I would describe that

questioning as fairly active and somewhat aggressive. However, in my opinion, it

reflects that the trial judge wanted the appellant mother to clearly understand what his

concerns were, and the reasons for those concerns, and entailed an invitation by the judge

to the appellant to offer such reply as she wished to address what was clearly on the

Court’s mind. In my opinion, the questioning does not go so far as to give rise to a

reasonable apprehension of bias. As I see it, the law provides for active participation by

trial judges in cases of this nature: Children’s Aid Society of Regional Municipality of

Waterloo v. R. C., [2009] ONCA 840.

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

18

connection to the matter being litigated and service ex juris has been properly effected:

Muscutt v. Courcelles 2002 CanLII 44957 (ON C.A.), (2002), 60 O.R. (3d) 20 (C.A.), at

paras. 19-20.

Even if there is a real and substantial connection, the court can decline jurisdiction if

there is a more convenient forum for the case. Muscutt – par. 42

The Supreme Court of Canada has set out the following principles in Club Resorts v. Van

Breda 2012 SCC 17 (Canlii):

Establishment of jurisdiction

The court must first establish jurisdiction through a real and substantial connection. This

requires the court to consider objective factors to determine whether the subject of the

litigation is connected with the forum. These “presumptive connecting factors” are not

exhaustive but inform the type of factors to consider. paras. 82-94.

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

90:

(a) The defendant lives in the province; (b) The defendant carries on business in the province;

(c) The tort was committed in the province; and (d) A contract connected with the dispute was made in the province.

The Court went on to find that even if one or more of these factors are present it is still

open to the other party to rebut the presumption.

The burden is on the party asserting the court’s jurisdiction. The test is met when a

presumptive connecting factor is established that links the subject matter of the litigation

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.

19

Once jurisdiction is established, if the defendant does not raise further objections, the

litigation proceeds before the court of the forum. The court cannot decline to exercise its

jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this

doctrine rests with the parties, not with the court seized of the claim (par. 102).

If a defendant raises an issue of forum non conveniens, the burden is on him or her to

show why the court should decline to exercise its jurisdiction and displace the forum

chosen by the plaintiff. The defendant must identify another forum that has an

appropriate connection under the conflicts rules and that should be allowed to dispose of

the action. The defendant must show, using the same analytical approach the court

followed to establish the existence of a real and substantial connection with the local

forum, what connections this alternative forum has with the subject matter of the

litigation. Finally, the party asking for a stay on the basis of forum non conveniens must

demonstrate why the proposed alternative forum should be preferred and considered to be

more appropriate (par. 103).

A party applying for a stay on the basis of forum non conveniens may raise diverse facts,

considerations and concerns. Despite some legislative attempts to draw up exhaustive

lists, I doubt that it will ever be possible to do so. In essence, the doctrine focuses on the

contexts of individual cases, and its purpose is to ensure that both parties are treated fairly

and that the process for resolving their litigation is efficient (par. 105).

In order to succeed, the moving party must show that the alternative jurisdiction is clearly

more appropriate to determine the issue (par. 109)

The factors that a court may consider in deciding whether to apply forum non conveniens

may vary depending on the context and might include the locations of parties and

witnesses, the cost of transferring the case to another jurisdiction or of declining the stay,

the impact of a transfer on the conduct of the litigation or on related or parallel

proceedings, the possibility of conflicting judgments, problems related to the recognition

and enforcement of judgments, and the relative strengths of the connections of the two

parties (par. 110).

This test was applied by the Ontario Court of Appeal in deSomer v. Martin 2012 ONCA

35 Canlii. The parties had consented to an order that any future child support proceeding

would be governed by the guidelines. The consent anticipated the mother moving to

France with the child. The mother did this. The father brought a variation application in

France and an order was made. The mother sought relief in Ontario (the father resided in

the United States). The court applied the Van Breda factors and although neither party

resided in Canada maintained jurisdiction. Important factors were the agreement of the

parties to use Canadian law and the mother’s intention to return to Montreal. The court

felt that the father was forum-shopping.

Other Jurisdictional Issues

Can you vary spousal support in OCJ when no longer spouses? – The court has

jurisdiction to hear a motion to change a spousal support domestic agreement filed under

20

section 35 of the Family Law Act if it was signed before the parties divorced. The date of

the agreement is the relevant date, not the date it was filed. Francisco v. Francisco, 2017

ONCJ 323. This case disagreed with the obiter in Abernethy v. Peacock, 2009 CanLII

25128 (ONSC), where the court said that if the agreement was filed with the court after

the parties divorced, the matter could not be heard under the Family Law Act.

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.).

A trial court has the jurisdiction to hear a motion to change a custody order that is under

appeal where the order is no longer in the best interests of the child. Mantha v. Oliver

(1994) 5 R.F.L. (4th) 398 (Ont. Prov. Div.). The court must be satisfied that the change

motion is not a disguised appeal. A material change in circumstances since the making of

the previous order must be established. Misheal v. Okel, 2008 ONCA 832.

Courts should not impose a mediation/arbitration clause on parties without their consent.

Yeoman v. Luhtala, 2002 ABZB 1045 (Alta. Q.B.). Generally speaking the court will

honour the med-arb agreement. Grossman v. Cookson, 2012 ONCA 551. However, in

urgent custody situations the court may still make an order. Lenney v. Lenney (1996), 194

A.R. 50 (Q.B.); M.K. v. M.C., 2007 ONCJ 456, but this should be an exceptional right.

McAlister v. Gallant 2012 ONCJ 565.

Courts have no jurisdiction to order parties to agree to binding arbitration. Michelon v.

Ryder, [2016] ONCJ 327.

Jurisdiction (Concurrent)

Johanns v. Fulford, 2014 ONCJ 348 (CanLII)

21

[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

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:

22

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

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

23

(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 CLRA

In 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

CLRA

The case law establishes that in addition to the dominant principle, the Ontario Court of

Justice should consider the following factors when deciding whether or not to lift an

automatic stay:

1. Bad faith: Was the divorce application issued in bad faith? Is there some

maneuvering to obtain a tactical or strategic advantage? Is there an issue raised that can

only be dealt with by the Superior Court of Justice? Are there serious or bona fide issues

raised or is there no real chance of success?

2. Prejudice: Will a party or child be prejudiced by the probable delay in transferring

the proceedings to the Superior Court of Justice? Is there a disproportionate financial

prejudice to one of the parties if the stay is not lifted?

3. Waste of court resources: Will the failure to lift the stay result in a waste of court

resources contrary to Family Law Rules 2 that is, the duty to deal with cases justly and in

a manner that saves expense and time.

The dominant principle in dealing with this issue appears to be the wisdom of dealing

with similar matters simultaneously in one court. Clearly, the “staying” provision is

designed to prevent inconsistent results among courts, redundant litigation, constitutional

entanglements and delay in finality. Zhong v. Yang, 2014 ONCJ 487.

Medical Examinations- a refusal to go to a court ordered examination warrants an

adverse inference – McIntosh (1985) 46 RFL (2nd) 249. Although the granting of a

vocational and aptitude assessment by a registered psychologist is discretionary, the

choice of the assessor is determined by the moving party. Minthorn [1992] O.J. No. 1233

(Ont. Gen Div.).

Minutes of Settlement -

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

24

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).

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:-

25

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

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.

26

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)

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.

27

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.), Smith J. outlines

the importance of pleadings:

Rules exist to ensure that pleadings meet certain standards. Pleadings that are

defective or inadequate lead to chaotic litigation which is often unnecessarily

expensive and protracted.

Pleadings are important for several reasons:• they serve to define the issues in

dispute• they give notice to the opposing party of the case that must be met•

they inform the court of the matters in issue• they provide a record of the issues

raised and prevent further litigation upon matters that have already been judicially

determined• they define the scope of discovery.

The OCA wrote in Butty v. Butty, 2009CarswellOnt 7612 that: the respondent's

case was based on duress and unconscionability. It is fundamental to the litigation

process that lawsuits be decided within the boundaries of the pleadings and the

case as developed by the parties. Deciding a matter on a basis raised by the Court

on its own motion is unfair and raises concerns about the reliability of the

decision. We are not prepared to assume that the trial judge acted in such a

fashion.

Where relief is sought in broad or imprecise language, a court may be prepared to

accept the notion that a specific form of the relief is subsumed in the pleadings.

See paragraph [26] of Desramaux v. Desramaux, 2002 CanLII 45030 (ON CA),

and Ross (Gedcke) v. Gedcke (No. 2), 2006 CanLII 4901 (ON SC). The applicant

was permitted to claim retroactive special expenses when the application only

sought retroactive child support in Moreira v. Garcia-Dominguez, 2012 ONCJ

128 Canlii.

In certain circumstances, a request for “such further and other relief as may be

deemed just” has allowed the court to grant relief not specifically enumerated:

see Eckland v. Eckland, [1973] 3 O.R. 472 (H.C.) and Doherty v. Doherty,

[1968] 2 O.R. 518 (C.A.). In the absence of such a provision, there is no basis in

this case to consider such relief. See: Kazuk v Shuglo, 2015 ONSC 5381.

It is not necessary to plead material facts supporting the claim in the application.

The court did not permit recourse to Rules of Civil Procedure to strike pleading

for failure to plead material facts. The Family Law Rules were enacted to reflect

the fact that litigation in family law matters is different from civil litigation. The

family rules provide for active judicial case management, early, complete and

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ongoing financial disclosure, and an emphasis on resolution, mediation and ways

to save time and expense in proportion to the complexity of the issues. They

embody a philosophy peculiar to a lawsuit that involves a family. Frick v. Frick,

2016 ONCA 799.

Pleadings – Striking Pleadings for Breach of Order

From: Van v. Palombi, 2017 ONSC 2492 (Div. Court): The legal principle governing the

exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as

follows:

(1) Is there a triggering event justifying the striking of pleadings?;

(2) Is it appropriate to strike the pleadings in the circumstances of the case?;

(3) Are there other remedies in lieu of striking pleadings that might suffice?

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

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).

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.

From: Manchanda v. Thethi, 2016 ONCA 909 (where court upholds striking pleadings):

29

[9] First, the circumstances were exceptional and egregious. In Kovachis v. Kovachis, 2013

ONCA 663, 36 R.F.L. (6th) 33, this court allowed an appeal from an order striking the pleadings

of a non-compliant party because the motion judge had failed to: (i) consider the substantial

disclosure already made; (ii) itemize what disclosure the party had failed to provide; (iii) make a

finding of willful disobedience of the order; and (iv) consider proportionality. Here, the motion

judge did just that. In detailed reasons he itemized the disclosure already made and what remained

outstanding. He found that the breach was willful. He considered proportionality in the light of

disclosure already made, saying that he was less moved by the quantity than by the quality of the

disclosure. The appellant had not disclosed basic documents such as his income tax returns,

financial statements, bank account statements, credit card statements, and investment account

statements.

[13] Our second reason is this: after continual admonitions by the courts and the legislature

that parties to a matrimonial proceeding must produce financial documentation, willful non-

compliance must be considered egregious and exceptional. This court has stated that the most

basic obligation in family law proceedings is the duty to disclose financial information. The

requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at

para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure

obligations. A party’s non-compliance must be considered in the context of this strict financial

disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who

choose not to disclose financial information or to ignore court orders will be at risk of losing their

standing in the proceedings as their claims or answers to claims may be struck.

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).

Good to have order allowing reinstatement of pleadings on conditions. Costabile v.

Costabile, 2005 CarswellOnt. 6909 CA. In Oliveira v. Oliveira, 2008 CanLII 36772 (ON

S.C.) , where party given chance to pay outstanding support and costs before striking.

Before striking a pleading for failure to pay support, must consider payor’s financial

circumstances. Higgins v. Higgins, [2006] O.J. No. 3913 (OCA). Courts often give

opportunity to restore the pleading if pay arrears. Stein v. Stein, [2003] O.J. No. 2288

(OCA).

The court’s jurisdiction pursuant to rule 14(23) is not ousted by the enforcement

provisions in the Family Responsibility and Support Arrears Enforcement Act (see:

Murano v. Murano 2002 CanLII 49352 (ON C.A.).

30

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).

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 costs

b) An order dismissing the claim

c) An order striking out any pleading (including documents on motion to

change), financial statement or any other document filed by a party.

d) An order that all or part of a document the court ordered produced, and

was not, may not be used in the case

e) If the breach is by a party, that the party is not entitled to any further

order in the case, unless the court orders otherwise.

f) An order postponing the trial

g) 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).

1. 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)).

2. 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.

3. 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.

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

31

failure to allow a party to make argument is enough to nullify a proceeding. In Goslin v.

Goslin, 1986 CarswellOnt 4811 (C.A.), the Ontario Court of Appeal reversed an order of

a trial judge where neither party had asked for the relief given. In Bellefontaine v.

Slawter, 2012 CarswellNS 327 (C.A.), the Nova Scotia Court of Appeal overturned a

decision of a trial judge on the grounds of denial of procedural fairness where neither

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

(CanLII).

Prohibition on Future Proceedings –

It was found appropriate for the court to require its leave before a party could bring any

further court proceeding in high-conflict cases and to control needless further

proceedings in Israel v. Wright, CarswellOnt 14750 (SCJ) at paras. 32-33 and Tiveron v

Collins, 2016 ONSC 2451. These discretionary decisions were entirely appropriate based

upon the evidence of conflict, the father’s threats to continue to litigate the matter and

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.

1.

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.

Meeting this test requires convincing evidence. R. v. Canadian Broadcasting

Corporation, 2010 ONCA 726.

Should look at alternatives other than absolute ban – perhaps partial, or redaction. R. v.

Vice Media Canada Inc., 2017 ONCA 231.

32

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

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

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

(c) the ability to appreciate reasonably foreseeable consequences includes the

ability to consider a reasonable range of possible outcomes, positive and

negative; and

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

determination.

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

Lack of sophistication, education or cultural differences is not sufficient to ground a

finding of mental incapacity - that must stem from sources such as mental illness,

dementia, development delay or physical injury. As noted by Backhouse J. in C.C. and

Children's Aid Society of Toronto, [2007] O.J. No. 5613,

[33] Appointing a legal representative ultimately means the Court is

making a finding that the person does not understand the issues in the

proceeding and does not appreciate the consequences of making or not

making decisions in the case. Such an appointment is highly

prejudicial to the incapable person, particularly where the primary issue

in dispute is custody, access or child protection.

[34] Courts have considered the following types of evidence in

determining the appropriateness of the appointment of a representative

or litigation guardian:

(a) Medical or psychological evidence as to capacity;

(b) Evidence from persons who know the litigant well;

(c) The appearance, demeanour and conduct of the litigant before

the Court;

33

(d) The testimony of the litigant; and,

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

The test for incapacity is an objective one. There is a distinction to be drawn between

failing to understand and appreciate the risks and consequences and being unable to

understand and appreciate the risks and consequences. It is only the latter that can lead to

a finding of incapacity. C.A.S. v. J.H.V., 2016 ONSC 4996.

A capacity assessment can be ordered under the Substitute Decisions Act. Zabawskyj

2007 CarwellOnt 7644 (SCJ).

There is a distinction between failing to understand risks and consequences and being

unable to understand. It is immaterial whether one’s words, deeds and choices appear

reasonable to others. Reasonableness in the eyes of others is not the test. What is in one’s

best interests is not to be confused with cognitive capability. The test for incapacity is an

objective one. It is mental incapacity and not wisdom that is the subject of The Substitute

Decisions Act. Compelling evidence is required to override the presumption of incapacity

found in s. 2(2) of the Substitute Decisions Act. Re Koch (1997), 33 O.R. (3d) 485.

Rule 7.04(1) for the Public Trustee is a last resort mechanism if no one else is able to act

as a litigation guardian. Zabawskyj 2008CarswellOnt2412 (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.

34

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

evidence, which may sometimes include a request for leave to re-call a witness,

must be distinguished from trial motions for leave to recall a witness. The

exercise of a trial judge’s discretion to require the recall of a witness must be

cautiously exercised to avoid prejudice to the adverse party.

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

A recall for re-cross-examination will [occur] in rare cases where the direct examination of

an intervening witness has brought out new facts upon which the prior witness may throw

light and, for this purpose, the matter can always be left in the hands of the trial court. The

general principle, therefore, of the trial court’s discretion as controlling the grant of a recall

for this purpose is conceded to apply here also.

The court should exercise its discretion with the objectives of rule 2 in mind. It should

not be exercised to ask a witness questions that should have been asked when the witness

was first examined. The court should give consideration to cost and delay. Windsor-

Essex Children’s Aid Society v. C.M., 2015 ONCJ 278.

Recusal of Judge – Bias

The test for demonstration of a reasonable apprehension of bias by a judge is an exacting

one. It, together with the strong presumption of judicial impartiality, pose a steep hurdle

for litigants who seek to overturn a judicial ruling based on the alleged bias of the judicial

decision-maker. See for example, Mwanri v. Mwanri, 2015 ONCA 843; Martin v.

Sansom, 2014 ONCA 14, 118 O.R. (3d) 522. Tiveron v. Collins, 2017 ONCA 462.

Very high threshold, just because the court heard prior motions, does not mean the judge

is biased. McGraw v. Samra, 2008CarswellOnt5777 (OCJ).

It is important that justice be administered impartially. A judge must give careful

consideration to any claim that he should disqualify himself on account of bias or a

reasonable apprehension of bias. In my view, a judge is best advised to remove himself if

there is any air of reality to a bias claim. That said, judges do the administration of justice

a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal

demands. Litigants are not entitled to pick their judge. They are not entitled to

35

effectively eliminate judges randomly assigned to their case by raising specious partiality

claims against those judges. To step aside in the face of a specious bias claim is to give

credence to a most objectionable tactic. Beard Winter LLP v. Shekhdar, 2016 ONCA 493.

The litmus test for bias is what would an informed person viewing the matter realistically

and practically – and having thought the matter through conclude. Would he or she think

that is more likely than not that the judge, whether consciously or unconsciously would

decide fairly. Committee for Justice and Liberty v. National Energy Board, [1978] 1

S.C.R. 369.

Removal from record – If a lawyer is on record, they must attend at court, even if the

client instructs them not to attend- the lawyer must follow the proper process to ask to be

removed from the record. Duca Community Credit Union Ltd. v. Tay (1995), 26 O.R.

(3d) 172 (Ont. General Division).

Re-opening Trial (also see: functus)– A trial judge is not functus officio until the order

is signed and sealed. Until that moment the trial judge has considerable discretion to

reopen. CAS Halton v. Stacey O. 2002 O.J. No. 2319. CAS Rainy River v. EdenD. 2002

O.J. No. 5472 OCJ, when new evidence occurs before the decision is given. Extra: the

onus is on the applicant to show that a miscarriage of justice would occur if not reopened

and secondly, that the new evidence would probably change the result. The discretion

should be exercised sparingly. Credibility of proposed fresh evidence is relevant.

Although not determinative, question of whether it could have been originally presented

with due diligence is an important question in deciding if there was a miscarriage of

justice. 671122 Ontario Limited. v. Sagaz Industries Inc.,2001CarswellOnt3358(SCC).

In Sheeraz v Kayani, 2010 ONSC 3821 (SCJ), Justice David Price the court reopened

argument of the already determined issue of costs of the proceeding. It did so because it

realized that it had made an error in regard to the consideration of an offer to settle in its

previous costs endorsement.

In Jackson v. Vaughan (City), [2009] O.J. No.145 (SCJ), the court found that the it

should take a “somewhat relaxed approach”, although one “… mindful of the need to

avoid never ending evidence.”, when decision not made yet.

In Glegg v. Glegg, 2017 ONCJ 102, court found that Family Law Rules gave it

jurisdiction to reopen motion and receive new evidence before decision given. However,

the admission of fresh evidence after a motion is heard should be very much the

exception rather than the rule. Parties should not wait to hear argument on the evidence

already before the court or even judicial comment on that evidence during the course of

argument, before deciding to provide further evidence to buttress their case. Further,

evidence must be led to show that the fresh evidence may have an effect on the result.

Reply material - 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:

36

Filing reply material is not a matter of right. It can be invoked only if the respondent’s material had

raised new issues (or “new matters”) on which the proponent had not yet taken a position. The

restrictions are supposed to ensure that each party gets a fair and equal chance to argue the issues. A

reply that merely confirms or reinforces points that the proponent had already made or could have

been made in his initial material is not only a wasteful duplication but is an unfair occasion for

reframing his position.

Responding material that offers a new twist on matters already raised by the proponent does not raise

new matters and does not justify the filing of reply material.

Representation (also see agents) – An excellent review of legal principles is set out by

Justice Barry Tobin in Windsor-Essex Children’s Aid Society v. B.D., 2013 ONCJ 43

(CanLII) where he reviews the law as follows:

A court should not lightly prevent a litigant from choosing counsel. See Urquhart v. Allen Estate, [1999]

O.J. No. 4816 (Ont. S.C.J.) at para. 19. It is a fundamental principle that a litigant's choice of counsel

should only be infringed in clear cases. See Judson v. Mitchele, [2011] O.J. No. 4914 (Ont. S.C.J.) at para.

23. The jurisdiction to make an order removing counsel is found in the inherent right of the court to

determine, in a judicial manner, to whom it will give audience. A motion to remove an opposing solicitor

is not brought pursuant to any statute or rule. See Newmarch Mechanical Constructors Ltd. v. Hyundai

Auto Canada Inc. (1992),13 C.P.C. (3d) 349 (Ont. Master) at para. 11 and R.(C.) v Children’s Aid Society

of Hamilton, (2004), 4 R.F.L. (6th) 98 (Ont. S.C.J.) at para. 32, and where the court stated at para. 34:

“The standard for the removal of counsel is an objective one, which is that of a

reasonably informed member of the public. The issue is whether a fair-minded

reasonably informed member of the public would conclude that the proper

administration of justice required the removal of the solicitor.”

There are two competing values presented and which must be considered in this case; (1) maintaining the

integrity of the administration of justice and (2) the right of litigants not to be lightly deprived of counsel of

their choice. When balancing these values the predominant consideration is the integrity of the justice

system. See McDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, per Justice Cory at

paras. 57 and 58 and Kam v. Hermanstyne, [2011] O.J. No. 1019 (Ont. C.J) at para. 11.

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;

37

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

"tainted";

• who will call the witness if, for example, there is a probability that counsel

will be in a position to cross-examine a favourable witness, a trial judge

may rule to prevent that unfair advantage arising;

• the connection or relationship between counsel, the prospective witness and

the parties involved in the litigation."

Representation (minors)

Child litigants are special parties. However, there is no requirement in the

Family Law Rules that a litigation guardian be appointed for them. The court

has the discretion to provide representation for a special party. If the child

already has representation, it will likely be unnecessary to make such an order.

C.M.M. v. D.G.C. and J.M., 2015 ONSC 39.

There is no statutory authority for a child to retain counsel. The proper

procedure is for someone to move to court for permission to act for the child. F.

(V.) v. F. (J.), 2016 CarswellOnt 21166 (Ont. C.J.).

Request to Admit – A party was permitted to ignore a lengthy request to admit served

during the course of a motion as the affidavit evidence contested the statements of fact.

Rule 2 applied, to save time and expense. Splett v. Pearo [2011] O.J. No. 4456 (SCJ).

Restraining Orders

Restraining orders are serious and should not be ordered unless a clear case has

been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

A restraining order is serious, with criminal consequences if there is a breach. It

will also likely appear if prospective employers conduct a criminal record (CPIC)

search. This could adversely affect a person’s ability to work. It may affect a

person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

It is not sufficient to argue that there would be no harm in granting the order. See:

Edwards v. Tronick-Wehring 2004 ONCJ 195.

Before the court can grant a restraining order, it must be satisfied that there are

“reasonable grounds for the person to fear for his or her own safety or for the

safety of their child. See: McCall v. Res, 2013 ONCJ 254.

The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda

v. Fuda, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

A person’s subjective fear can extend to both the person’s physical safety and

psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

It is not necessary for a respondent to have actually committed an act, gesture or

words of harassment, to justify a restraining order. It is enough if an applicant has

a legitimate fear of such acts being committed. An applicant does not have to

38

have an overwhelming fear that could be understood by almost everyone; the

standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

A restraining order will be made where a person has demonstrated a lengthy

period of harassment or irresponsible, impulsive behaviour with the objective of

harassing or distressing a party. There should be some persistence to the conduct

complained of and a reasonable expectation that it will continue without court

involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

A restraining order cannot be issued to forestall every perceived fear of insult or

possible harm, without compelling facts. There can be fears of a personal or

subjective nature, but they must be related to a respondent’s actions or words. A

court must be able to connect or associate a respondent’s actions or words with an

applicant’s fears. See: Fuda v. Fuda, supra.

Courts should have regard for the passage of time. Events that once triggered a

temporary restraining order may not be so compelling on the issue of a permanent

order. See: D.C. v. M.T.C., 2015 ONCJ 242.

In borderline cases, the court must consider what other protections may be

available if a restraining order is not granted. See: D.C. v. M.T.C., supra.

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

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

A no-contact or communication order made pursuant to section 28 of the

Children’s Law Reform Act is not as wide-ranging as a restraining order. It can

limit contact and communication between the parties, but it cannot restrain a party

from harassing the other party to third parties. See: F.K. v. M.C., supra.

A court is not precluded from making a final restraining order if a party has

complied with a temporary order under section 28 of the Children’s Law Reform

Act. On a temporary motion the court does not have the benefit of the fulsome

record it has at trial. Cross-examination at trial can provide valuable information

in the court’s risk assessment. Further, the court should be alert to the fact that

parties may improve their behaviour when the eyes of the court are on them. This

might not continue once the case ends. See: F.K. v. M.C., supra.

Genuine fear of psychological harm justifies a restraining order: see the decision of

Justice Kiteley in Lawrence v. Bassett, 2015 ONSC 3707 (CanLII), at para. 18.

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

principles:

1. The fear must be reasonable.

2. The fear may be entirely subjective so long as it is legitimate.

3. The fear may be equally for psychological safety, as well as for physical safety.

To the contrary, the courts in Mercieca v. Mercieca [2002] O.J. No. 4935 and Ouwehand

v. Ouwehand, 2012 ONCJ 448 Canlii, required an objective basis for the person to fear

for their safety.

39

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).

Restraints in the Courtroom – The use of restraints is to be decided by the court. R. v.

McNeill (1996), 29 O.R. (3d) 641 (C.A.).There is a presumption against use. The issue is

whether there are reasonable grounds to fear escape or violence in the courtroom. R. v.

Wills, [2006] O.J. No. 3662 (SCJ). Should not be used if less restrictive measures are

available. Onus is on party who wants restraints kept on, on balance of probabilities. R. v.

Scozzafava, [1997] O.J. No. 4579 (General Division). Rationales are dignity of the

prisoner (R. v. Jones (1996) 29 O.R. (3d) 294 (General Division)), danger of prejudice,

interference with the party’s ability to communicate with counsel or concentrate. R. v.

Jenkins, [1999] O.J. No. 5993 (SCJ).

Right to Deny hearing a motion - It is well-recognized that a court has discretion not

to entertain an application by a payor spouse who is in continuous default: Dickie v.

Dickie, 2007 SCC 8 (CanLII), [2007] 1 S.C.R. 346, at paras. 4 and 6.

Right to a Trial - It is important to keep in mind that resources for the justice system,

as well as personal resources of the parties, are scarce. Not every case warrants a full

trial, with its attendant delays and costs. Discretion must be exercised by the court to

send to trial only those cases that warrant the expenditure of those resources. Merko v.

Merko, 2008 ONCJ 530 (CanLII).

Rule 1 – Focused Trials

Time limits and restrictions on witnesses were imposed at trial management conference

pursuant to rules 2 and 17 (8) in Greco-Wang v. Wang, 2014 ONSC 5366 where the court

writes: “Members of the public who are users of civil courts are not entitled to unlimited

access to trial judges. The duration of the trial must be proportionate to the issues at stake

and the judicial resources available. It is for that reason that, based on my knowledge of

the legal and factual issues gained over the last three years, I have established an

estimated duration of the trial as set out below”.

Parties were each given 35 hours for their examinations of their own witnesses, cross-

examinations, opening and closing statements and time making objections. In addition,

the time lost by delays in witnesses coming or being available, counted against the party

calling the witness. See: Singh v. Chandel, 2016 ONSC 3347.

The Ontario Court of Appeal upheld the trial judge who restricted cross-examination to 1

hour. This was the amount of time agreed to in the trial scheduling form and counsel did

not seek an extension of the time limit at trial. Abou-Mansour v. Abou-Mansour, 2017

ONCA 572.

40

A focused trial arising out of an application is not a motion. The less restrictive

rules of evidence that apply on motions, set out in subrule 14 (19) (providing

information from someone else, if the person is identified by name and the

deponent states that he or she believes the information to be true), do not apply.

Plotnikov v. Borisova, 2016 ONCJ 537.

In Plotnikov the court required each witness who swore an affidavit to be

produced for cross-examination. The parties need prior permission of the court

pursuant to Family Law Rule 1 (7.2) (h) to not produce a witness. The court wrote

that clause 1 (7.2) (h) should be read in conjunction with rule 2 which states that

the primary objective of the rules is to deal with cases justly. To deal with a case

justly a party should be able to both fairly present their case and answer the case

against them.

Rule 2- Parties and their lawyers both have duty to comply with the prime objective.

There is no longer an automatic right to an unlimited trial. Litigation should be

proportionate to the importance and the complexity of the case. The degree of the

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

(OCJ).

It is important to keep in mind that resources for the justice system, as well as personal

resources of the parties, are scarce. Not every case warrants a full trial, with its attendant

delays and costs. Discretion must be exercised by the court to send to trial only those

cases that warrant the expenditure of those resources. Merko v. Merko [2008] O.J. No.

4273 (OCJ).

Sealing/Redaction –Subrule 14(15) permits the court to order that certain documents not

be served, and subrule 2.03 allows for the court to dispense with compliance with the

rules in the best interests of justice. This allows court to redact portions of motion

(address in this case). Also s. 146 of the Courts of Justice Act permits the court to act

with the due administration of justice, in the absence of an express provision.- Barrios 43

RFL 6th 302. Should balance risk of harm vs. prejudice and concept of openness.

M.K. (M.S.) v. T.(T.L.) [2003] O.J. No. 352 (CA)- it is the responsibility of the court to

ensure that a court file, which was created to protect the child’s best interests, does not

become an instrument of harm.

Separation Agreement – The court has no jurisdiction to vary a separation agreement

that has not been filed with the court and incorporated into a court order. The proper

procedure to change it is to bring an application and ask the court to consider the

agreement as a factor. Andrew 2008 CarswellSask 65 (Sask. Q.B.).

The Ontario Court of Justice has no jurisdiction to set aside a separation agreement that

includes property provisions. It can change custody and access provisions. Van Heighten

v. Catarino, 2017 ONCJ 103.

41

Section 2 (10) of the FLA provides that if a domestic contract deals with a matter that is

also dealt with in the Act, the contract prevails. Section 2 (9) permits the court to

incorporate (not vary) a provision of the contract into a court order. Sections 67 (2) and

68 of the CLRA provide that any provision in a domestic contract that deals with

custody/access issues prevails unless otherwise provided in the FLA.

Section 33 (4) of the FLA sets out circumstances where the court can set aside a

provision for support or waiver of support in a domestic contract.

Section 35 (3) of the FLA provides that section 33 (4) applies to a contract that is filed in

this manner. That section provides that the Court may set aside the provision for support

or a waiver of the right to support in a domestic contract and may determine an order for

support if the agreement for support results in unconscionable circumstances or if the

payor is in breach of it at the time the application is made.

Under cause 33 (4), it does not matter if the support provision was reasonable at the time

the Agreement was made. Thomas v. Thomas 1988 12 R.F.L. (3d) 88. If the support

provisions result in unconscionable circumstances at the time of the application to set

aside the agreement, the Court can grant relief. Ward v Jones, 2015 ONSC 2752

(CanLII).

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 – Dispensing with service

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

required if

(a) reasonable efforts to locate the person to be served have not been or would not be

successful; and

(b) there is no method of substituted service that could reasonably be expected to bring

the document to the person’s attention.

The court should not use Rule 2 or the Rules of Civil Procedure to expand the

circumstances where service can be dispensed with. From a combined reading of subrules

6(15) and 6(16 it is not enough to simply try and fail to locate a person. One must also

42

look into alternate methods of service that could reasonably be expected to draw the

documents to the attention of the person. Further, the party seeking to dispense with

notice, must file an affidavit detailing, at minimum:

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

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

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

d)An explanation as to why no other method of giving notice can be expected to

bring the documents to the parson’s attention.

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

searches including:

a. E-mail, text, telephone or message (i.e. text or i-message or other messaging

via social media), where the party asks for an address for service or gives

effective notice by uploading and attaching a copy of the documents to the

message, or, sets out details of the application within the body of the message;

b. Conduct a reverse cell and telephone number look-up. This method may

provide an address for the owner of the account associated with the telephone or

cell number and thus, the name and address of the person to be located or, a

person who may have information about the whereabouts of a party or on whom

subservice can be carried out;

c. Search for the party on social media sites, including:

o Facebook

o Twitter

o LinkedIn

• What’s Up

d. Conduct general internet searches using various search engines. Search

engines like Google, Bing, and Yahoo! provide some of the largest

conglomerations of websites and information. One may be able to locate a person

through the posts that person has made in discussion groups; reviews they have

provided online; resumes posted to job or career sites; ads on Craig’s List;

newspaper articles; etc.

e. Directory searches including:

o Online telephone directories (such as 411.ca and whitepages.ca; which

are important online directories but just two of many). It is important to

search in multiple locations if the party has a connection to, or has lived

in, or worked in other cities or provinces, as he or she may now be living

there;

43

o Professional associations or organizations to which the party or a friend

or relative of the party may belong (i.e. engineers, accountants, lawyers).

Government employee directories also exist as may union membership

lists,

o High school and post-secondary institution Alumni membership

database directories;

f. Find and make inquiries of relatives and friends. The whereabouts of such

persons may also be found using the same techniques just cited;

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

h. Search public records. Such records include: birth, death, marriage and

divorce certificates; deeds, mortgages, and other related property records; various

licenses, including professional and business licenses; driving records and; court

records. These records are kept by government agencies. The release of these

records is often subject to certain restrictions or fees. Not all contain contact

information but some do and some can serve as a lead to other records or sources

that may assist in finding someone. Most importantly, many of these records are

available online. For example, many court decisions in civil, criminal, family

separation and divorce cases are published online and are available on a national

scale (such as on CanLii: http://www.canlii.org/en/);

i. Hire a “Skip Tracer”. A ‘skip trace’ is the language used to describe the

process of tracing a person’s past to locate their current whereabouts. A “skip

tracer” is the professional who does this type of work. These professionals are

adept at conducting the various types of searches I have referred to above and

more for a fee. They are frequently used by law firms and other businesses

particularly when trying to locate a judgment debtor;

j. Although not available in this case, where the case involves a child support

claim pursuant to section 33 or 37 of the Family Law Act, RSO 1990, c F.3, and

the claimant needs to learn or confirm the proposed respondent’s whereabouts, the

claimant may bring a motion pursuant to subsection 42(4) of the Act for an order

requiring a person or public body to provide the court or the moving party with

any information that is shown on a record in the person’s or public body’s

possession or control and that indicates the proposed respondent’s place of

employment, address or location. The scope of those from whom such

information may be obtained is broad. It includes: friends or relatives, employers,

union or other organisation the person may belong to. It also includes public

authorities such as the Ministry of Transportation, Ontario Health Insurance Plan,

the Crown, Family Responsibility Office, Ontario Works, Ontario Disability

Insurance Plan, Corrections Canada, Ministry of Community and Correctional

Services, and so on;

k. Obtain an order for subservice by advertisement, on a friend, relative,

employer, the Family Responsibility Office, or other person or public body such

44

as those I have described above and then carry out the approved method of

service; and,

l. Retain a private investigator.

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.).

Principles from Wang v. Lin, 2016 ONSC 3967 (Ont. Div. Ct.):

- The Hague Service Convention applies to matters described in r. 1(2) of the

Family Law Rules.

- Compliance with the Hague Service Convention is mandatory.

- In interpreting legislation, there is a presumption that the legislature intends to

conform to international law and to live up to its international obligations. That

presumption may be rebutted, but to do so, the language of the legislation at issue

must be clear and unequivocal. Not the case with the Family Law Rules.

- Any directions regarding service contemplated by r. 1 (7) should be given by

analogy to RCP 17.05 (3).

- Court does not decide whether there is exception in rare circumstances if access to

justice issue. States law is not settled on this point.

- Article 10 of the Convention provides that documents can be served directly by

postal channels or local judicial officers of the state of destination unless that state

objects.

- Article 15 of the Convention permits our court to make orders if the document

was transmitted to the other jurisdiction in accordance with the Convention- a

period of time considered adequate by a judge of this court has elapsed (not less

than 6 months) has elapsed since the date of transmission and no certificate of

delivery has been received from the other jurisdiction.

- Article 15 of the Convention also provides that “notwithstanding the provisions of

the preceding paragraphs the judge may order, in case of urgency any provisional

or protective measures. This means the Convention provides a party the ability to

request emergency relief while efforts to comply with the terms of the Convention

are being effected.

- Inherent jurisdiction is a special and extraordinary power that should be exercised

sparingly and in clear cases. Baxter Student Housing Ltd. V. College Housing Co-

operative Ltd., [1976] 2 S.C.R. 475.

Service in the United States

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In M.S.C. v. C.F.J., 2017 ONSC 2389, the court found that where documents were mailed

to respondent in the United States and he returned an acknowledgement of service card,

service was in compliance with the Convention. The Hague Service Convention applied

because the United States is a signatory. Having considered: (a) the document “United

States of America – Central Authority and Practical Information” on the Hague Service

Convention website, including the various declarations by the United States; (b) Article

10 of the Hague Service Convention, and in particular Article 10(a) in relation to sending

judicial documents by postal channels; (c) the United States not declaring opposition to

Article 10; (d) the fact that the service used would be valid service in Ontario; and

(e) Wang, supra, paragraphs 20, 21, 55, 63 and 65, the court found that there was proper

service on the respondent.

Setting Aside or Changing Final Order

The court has jurisdiction to set aside an order under clause 25 (19) (e) of the

Family Law Rules. The definition of change is broad, the interpretation is

consistent with rule 2 to deal with cases justly and that Family Law proceedings

are different. Gray v. Gray, 2017 ONCA 100.

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; and

5. 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):

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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.

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.

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Ward. All three of these cases were family law cases. In some, the court found an

enforceable agreement. For example, in Bogue, the court found an enforceable

settlement arising out of a four-way settlement meeting. The court held the

parties had agreed to all the essential terms of their agreement and therefore

enforced the settlement.

¶39 In Lundrigan, the court found that the course of conduct by both parties

indicated that they viewed a formal document as essential. The court noted they

had not actually agreed on the terms of that document since the husband refused

to accept Minutes of Settlement as drafted because they included a term that had

not been agreed upon. The court held that in the circumstances of that case, “a

reasonable observer could conclude that preparation of a mutually acceptable

formal document was essential to the settlement.” In Lundrigan, the parties had

exchanged various iterations of Minutes of settlement. Some were signed with

some changes, and others without them.

¶40 In Ward, the court upheld a handwritten ‘Memorandum of Understanding’,

even though it had a preamble that said it was subject to counsel ‘working out a

separation agreement [with] satisfactory language.’ In large part, the court came

to this conclusion because the parties had behaved as though they had a binding

agreement. The husband delivered $250,000, the wife accepted it, and used the

money to buy a new house. The wife never offered to return the money, although

she suggested the MOA was not a binding agreement. It is noteworthy that

in Ward, the parties themselves signed the MOA, and their signatures were

witnessed. Thus, their document complied with the provisions of the Family Law

Act as far as the enforceability of domestic contracts is concerned.

¶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

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

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“Today there is only one principle or approach, namely, the words of an Act are to be

read in their entire context and in their grammatical and ordinary sense harmoniously

with the scheme of the Act, the object of the Act, and the intention of Parliament”: Elmer

A. Driedger, Construction of Statutes, 2d ed, (Oxford: Butterworth-Heinemann, 1983), at

p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re),1998 CanLII 837 (SCC), at para. 21.

In Statutory Interpretation, 3d ed (Toronto: Irwin Law Inc., 2016), at p. 59, Ruth Sullivan

confirms that ““ordinary meaning”…is the meaning that spontaneously comes to the

mind of a competent language user upon reading the text…In the absence of a reason to

reject it, it should be adopted by the court, because the general public will rely upon the

ordinary meaning to inform their behaviour.” [emphasis added].

It is a principle of statutory interpretation that the courts should not endorse a

construction that would render a portion of a statute extraneous, irrelevant or

meaningless. See: Re Children's Aid Society of Metropolitan Toronto and Susan R. and

Jimmie V.; Re Children's Aid Society of Metropolitan Toronto and Tammy R. and

Kenneth M. (1993), 16 O.R. (3d) 351, 1993 Carswell-Ont 283 (Ont. Gen. Div.); Cole v.

Cole, 2007 ONCJ 29.

When two statutory provisions are in conflict and one of them deals specifically with the

matter in question while the other is of more general application, the specific provision

prevails over the general provision. See Ruth Sullivan: Sullivan and Driedger on the

Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002), at page 273; Cole

v. Cole, 2007 ONCJ 29.

Statutory Interpretation – Regulations

Interpretation of a Regulation requires the court to read the words of the Act and the

Regulation in their entire context and in their grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of the Act, and the intention of

Parliament. As well, when interpreting a regulation, a court must consider the words

granting the authority to make the regulation in question, in addition to the other

interpretive factors. Erickson & Partners v. Ontario (Ministry of Health and Long-Term

Care), 2015 ONCA 285 (Ont. C.A.).

In so far as possible, courts seek to avoid conflict between statutory and regulatory

provisions and to give effect to both. Where conflict is unavoidable, normally

the statutory provision prevails. See Ruth Sullivan: Sullivan and Driedger on the

Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008), page

341. L.R.. v. V.V., 2011 ONCJ 16; Children’s Aid Society of Toronto v. A.T., 2010 ONCJ

456.

Stays (also see lifting stays)-

Lahey v. Gauthier, 2015 ONCJ 393:

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The wording of subrule 1(8) of the Family Law Rules is sufficiently broad to allow the

grant of a stay of a claim, where it is necessary for a just determination of the case and

where there has been a wilful failure to follow the Rules or obey an order in the case.

See: Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.);Wreggbo v. Vinton, 2013 ONCJ

250 (CanLII).

The power is under s.106 CJA. It is unusual remedy to be used sparingly. McGonegal v.

Young 2004 ONCJ 313 (OCJ). Might order it if fail to proceed with med/arb agreement.

Marchese v. Marchese, (2007) 35 RFL (6th) 291 (OCA). Can be imposed until costs paid.

Susin v. Chapman, 2004 CarswellOnt. 143 (OCA). A stay should not be ordered if there

is merit to the claim and the person ordered to pay costs is genuinely impecunious.

Larabie v. Montfils 2004 CarswellOnt 186 (Ont. C.A.). In Diciaula v. Mastrogiacamo

(2008), 56 R.F.L.(6th) 366 (Ont. SCJ.), the father had an order for supervised access but

had not exercised it for a considerable time. He moved to expand his access. The court

stayed the motion until such time as he was able to show compliance with the original

order and paid the outstanding costs order

Stays - Breach of Court Order- In Dickie v. Dickie [2007], 1 S.C.R. 346, the Supreme

Court of Canada affirmed the general rule that a court will not hear a litigant who has

wilfully breached a court order until the litigant has cured the breach. This discretion is

grounded in the inherent jurisdiction of the court to control its own processes and in s.

140(5) of the Courts of Justice Act, which gives the court express power to stay or

dismiss a proceeding as an abuse of process. Oelbaum v. Oelbaum, 2011 ONCA 300

(CanLII).

Summons – quashing

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

C.A.):

1. Where the evidence sought to be elicited from a subpoenaed witness is

relevant to a live issue in the case, there is a prima facie right to require the

attendance of the witness by means of a subpoena;

2. The right of a party to issue a subpoena duces tecum is, however, subject to the

inherent jurisdiction of the court to control its own process;

3. Because a party has the right, subject to the obligation not to abuse it, to

control the presentation of his or her case, the jurisdiction of the court to quash a

subpoena should be used cautiously and sparingly;

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

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

(b) the subpoena was irregularly issued;

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(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;

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

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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.)

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).

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Vexatious Litigants – Rule 2.1 of the Rules of Civil Procedure were incorporated into a

family law case through subrule 1(7) of the Family Law Rules in Purcaru v Vacaru, 2016

ONSC 1037. The court wrote:

The issue of dealing with vexatious litigants is a significant issue of access to justice that has been

the subject of much concern. Rule 2.1 provides an important tool by which a subset of plainly

vexatious claims can be dealt with summarily under an abbreviated process so as to avoid the

costs and delays that can be inflicted by people who bring such litigation. Scaduto v. The Law

Society of Upper Canada, 2015 ONCA 733 (CanLII) at para. 9.

[2] Rule 2.1 is designed to weed out frivolous and vexatious claims where it is apparent on the

face of the claim that it fits that definition and where there is reason to be concerned that the

litigation is likely to become a vehicle for a party who might be inclined to inflict the harms of

frivolous proceedings on the opposing parties and the civil justice system. Scaduto v. The Law

Society of Upper Canada, 2015 ONCA 733 (CanLII) at para. 12. No evidence is admissible on a

review under Rule 2.1. However, the court may refer to prior decisions of the court where

appropriate. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLII), at para. 11.

Videoconferencing -

The usual test for video evidence before an order can be granted for such is that there

must be evidence that the witness is unable or unwilling for any reason to attend court,

and that the transmission of evidence will be of good quality and not impair the courts

ability to assess credibility. The court must balance the competing interests i.e. the right

to have a live witness personally present to be cross examined versus the inconvenience

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-

53

fabricated rules. Relevant factors include, but are not limited to, the nature of the issue

under consideration and of the case itself, as well as the means of proof available. R. v.

Sadikov, 2014 ONCA 72 (Canlii).

Not every question of admissibility requires a voir dire. It will not be required when there

are no preliminary facts to prove (issues of relevance for example) or when there is no

dispute about the preliminary facts. A voir dire will be required when there are

preliminary facts in dispute, which are the foundation for the admissibility ruling. For

instance, to admit a business record, the proponent has to prove the statutory or common

law requirements.

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

Nothing heard in the voir dire is admissible at trial unless the parties agree otherwise.

Family and Children’s Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837

ONCJ. The parties can agree that parts of the voir dire are admissible at trial. If there is

no agreement the court has the trial management power to make an order to that effect. R.

v. Adam, [2006] B.C.J. No. 2167.