FamilyWatch September 2015 Edition

Originally posted at http://jessicagagne.ca/category/familywatch/

The ONCA released a total of 68 decisions in September, of which 5 involved family law.

In C.M., the court admonished CAS counsel and others for not adhering to the statutory timelines set out in the Child and Family Services Act. In Clayson-Martin, the court discusses hearsay evidence and bias in the context of a fascinating family law case. In White, the court unsurprisingly rules that where a spouse dies while a stay of a divorce order is in effect, the marriage was dissolved via death, not divorce. In De Melo, the court reiterates that a motion for summary judgment can be brought even where a trial date has been set.  Finally, in what is quite possibly the shortest appeal decision of the year, the court in Vermette dismisses an appeal of a motion for a stay pending appeal.


C.M. v. Children’s Aid Society of the Regional Municipality of Waterloo
, 2015 ONCA 612

Feldman, Simmons and Miller JJ.A.

The appellants’ two children had been made Crown wards without access. On appeal, the appellants challenged only the no access order, arguing that:

(1) the trial judge erred in determining the native or Indian status of the children (which would have triggered certain special provisions of the CFSA);

(2) the trial judge drew negative inferences based on the appellant mother’s “flat affect” (monotone voice and flat manner of speaking) which had been raised in the Parenting Capacity Assessment; and

(3) the trial judge erred in failing to consider the best interests of the children in the context of their aboriginal heritage (i.e. failed to consider that ongoing contact with their birth parents would assist in preserving their sense of historical and cultural uniqueness).

The ONCA rejected all three grounds of appeal. With respect to (1), the court noted that the appellants had not canvassed the issue at trial, and had in fact confirmed that the children did not have Indian or native status when asked by the trial judge. In any event, neither the children nor the mother could meet the statutory definition of Indian or native person set out in the CFSA. Lastly, the balance of the evidence was such that no access order would be available in the circumstances, regardless of status.

With respect to (2), the ONCA noted that this issue had already been fully canvassed by the Superior Court appeal judge. Again, the lack of evidence tendered by the parents at trial regarding this issue hindered the parents’ argument.

With respect to (3), the ONCA was not persuaded that the trial judge had failed to consider the children’s best interests and pointed out that the trial judge was aware of the children’s link to Aboriginal culture through their mother. According to the ONCA, the no access order was properly supported by the record.

Notably, the ONCA devoted 8 paragraphs of this decision to the issue of delay, noting that the children in question had been in “legal limbo” for over five years and emphasizing that “[w]here a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to adhere to those time frames.”

The ONCA wrote that “it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.”

“That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.”

Whether these words will have any effect remains to be seen.

Link to the full decision here.


Clayson-Martin v. Martin
, 2015 ONCA 596

MacFarland, Rouleau and Lauwers JJ.A.

This case has garnered much notoriety. After all, it’s not often that a family law dispute involves an allegation of attempted murder and Jamaican blood experts.

Following a 20-day trial that focussed largely on the issue of whether the husband attempted to murder the wife while the couple was on vacation in Jamaica, the trial judge granted custody of the couple’s two children to the mother and crafted an access order for the father that culminated in week-about access. The trial judge concluded that he could make no finding as to who attacked who while on vacation in Jamaica. (It is worth noting that a Jamaican criminal trial had found the father not guilty.)

The mother appealled, seeking the termination of the father’s access altogether on the grounds that he had attempted to kill her. She raised three main grounds of appeal:

(1) The trial judge erred in law in admitting a transcript of evidence of a Jamaican blood expert who had testified at the father’s criminal trial;

(2) The trial judge’s conduct during the trial raised a reasonable apprehension of bias; and

(3) The trial judge failed to properly assess the best interests of the children and in particular failed to consider domestic violence as is required by s. 24 of the CLRA.

The wife succeeded on all three arguments and the appeal was allowed.

With respect to (1), the ONCA agreed with the wife that the expert’s evidence constituted inadmissable hearsay evidence. This evidence could not be admitted under the principled approach to hearsay as it did not meet the reliability criteria: the wife was not a party to the Jamaican criminal proceedings; she had had no opportunity to cross-examine the blood expert; and the Jamaican cross-examination had been conducted by the husband himself, whose interests were diametrically opposed to those of the wife.

With respect to (2), the ONCA agreed with the wife that there was a reasonable apprehension of bias, having regard to (among other things) the uneven manner in which the trial judge had treated the wife’s evidence versus the husband’s evidence, the manner in which the trial judge had “entered into the fray”, and the way the trial judge had treated the wife and her counsel.

With respect to (3), the ONCA agreed with the wife that the trial judge had failed to keep the focus of the trial on the best interests of the children. Nowhere in the trial judge’s 189-paragraph decision did he address the factors set out in s. 24(2) of the CLRA.

Ultimately, the ONCA ordered a new hearing of the application for custody and access based on an updated section 30 assessment. However, the court expressly stated that the new hearing should not retry or attempt to decide the issue of what happened in Jamaica, but rather should focus on the best interest factors set out in s. 24 of the CLRA (of which the existence of domestic violence is but one consideration).

Link to the full decision here.

De Melo v. De Melo, 2015 ONCA 598

Cronk, Lauwers, van Rensburg JJ.A.

Following a motion for summary judgment, the motion judge granted sole custody of the two children of the marriage (ages 15 and 13) to the mother. Access for the father was to be determined in accordance with the children’s wishes.

The father appealed, arguing:

(1) That the mother should not have been allowed to bring her motion for summary judgment, as a trial date had already been set;

(2) That the motion judge erred in law by placing the onus on him to demonstrate that there was a genuine issue requiring a trial;

(3) That the motion judge failed to consider the best interests of the children and failed to review all relevant evidence;

(4) That the motion judge failed in not awarding spousal support to the father; and

(5) That the motion judge erred in awarding costs of $20,000.00 to the mother.

The ONCA rejected all of these arguments.

With respect to (1), the court noted that, pursuant to Rule 16(1) of the Family Law Rules, a motion for summary judgment can be brought at any time any time after the respondent has served an answer or the time for serving an answer has expired.

With respect to grounds (2) and (3), the ONCA noted that the motion judge’s reasons belied the appellant’s arguments.

With respect to (4), the ONCA pointed out that the father had not fully argued the issue of spousal support before the motion judge.

Finally, with respect to (5), the ONCA declined to interfere with the costs order, noting that costs decisions are discretionary and that absent an award that is either plainly wrong or tainted by an error in principle, the court will not interfere.

Link to the full decision here.

White v. White, 2015 ONCA 647

Feldman, Simmons and Miller JJ.A.

This is a somewhat strange case that only hints at what is likely a far more complex dispute.

Mr. and Mrs. White were married. Justice Paisley granted Mr. White a divorce order despite there being an Answer opposing the divorce on substantive grounds. For some reason, this Answer was not brought to Justice Paisley’s attention. Mrs. White then successfully applied to have the divorce order stayed until further court order. While the stay was in effect, Mr. White died.

Following Mr. White’s death, a dispute arose between Mrs. White and some of Mr. White’s children as to whether the marriage was terminated by death or by divorce.

On appeal, Mrs. White sought a declaration that her marriage to Mr. White was terminated by his death. The respondents (Mr. White’s children) asked the court to lift the stay of the divorce order with retroactive effect.

The ONCA allowed the appeal, noting that at the time of Mr. White’s death, the stay had not been lifted and the parties were still married. It thus followed that it was Mr. White’s death that ended the marriage.

Link to the full decision here.


Vermette v. Nassr, 2015 ONCA 610

Weiler, van Rensburg and Roberts JJ.A

The appellant brought a motion in advance of his appeal, seeking an order that the province be required to pay for the transcripts needed for his appeal. He also sought a stay of the child support order pending appeal. The ONCA motion judge (Blair J.A.) denied his motion. The appellant appealed that decision. In two paragraphs, the ONCA quickly dismisses the appeal, noting that the motion judge did not err in his analysis or conclusions. Costs were reserved to the panel hearing the appeal.

Link to the full decision here.

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FamilyWatch August 2015 Edition

As per usual, August was the quietest month of the year for the ONCA. The court released only 7 judgments — 2 of which are family law decisions. In Godard, the court emphasized the duty of the parent to encourage even older children to visit with the other parent where there is court-ordered access. In Korman, the court upheld the trial judge’s decision to impute income to a spouse for support purposes on the basis of regular financial gifts received from that spouse’s parent.

Godard v. Godard, 2015 ONCA 568  

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

The mother appealed the order of the motion judge, finding her in contempt of an access order. There was a long history of attempts on the part of the father to enforce his access. The mother submitted that she had done her best to facilitate the father’s access, but that it was the child who had persistently refused to see the father. [The child in question was ~13 at the time of the appeal.] The motion judge had found that the mother had “effectively abdicated her parental authority on the issue of access” and also noted that the child’s refusal to see her father was sometimes positively reinforced by the mother.

The ONCA dismissed the mother’s appeal, upheld the contempt finding, and provided the following guide for other parents in similar circumstances:

[29] No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0568.pdf

Korman v. Korman, 2015 ONCA 578

Feldman, Cronk and Huscroft JJ.A

The husband appealed the following three aspects of the trial judgment:

  1. The trial judge’s finding that the husband gifted his interest in the matrimonial home to the wife when the parties purchase the property (the home was in the wife’s sole name);
  2. The trial judge’s imputation of income to the husband based gifts of money and dividends from his mother;
  3. The trial judge’s treatment of private school tuition as a s. 7 expense.

The ONCA accepted the first ground of appeal and rejected the latter two.

With respect to (1), the ONCA noted s. 14 of the Family Law Act, which affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous transfers. Reviewing the evidence adduced at trial, the ONCA concluded that the wife had not displaced the presumption of a resulting trust. The court noted that “any motivation to shield the property from the husband’s potential creditors does not in itself rebut the presumption of a resulting trust.” The finding that the husband was a beneficial owner of a one-half interest in the matrimonial home was dispositive of his entitlement to share in the post-separation increase in value of the home.

With respect to (2), the husband argued that imputing income to him on the basis of past gifts from his parents impermissibly shifted the burden of sustaining the husband and wife’s lifestyle onto his mother — who had no legal obligation to support either the granddaughter or the wife. The ONCA rejected this argument, pointing to the trial judge’s findings that the gifts were regular, substantial, and largely intended to maintain the family’s lifestyle. The ONCA also noted the trial judge’s finding that the husband would likely continue to receive such gifts. Finally, the court commented that

“[…] imputing income on the basis of these substantial and consistent gifts does not impose any obligation on the Husband’s mother to continue such gifts in the future. It simply reflects the trial judge’s factual determinations about the Husband’s actual past revenues and his likely financial future. If the situation changes, it would be open to the Husband to request an adjustment accordingly, in the normal manner.”

With respect to (3), the ONCA summarily dismissed the husband’s argument that private school tuition for the youngest child was not a s. 7 expense. The child had been in private school all her life, the child’s older sibling had been permitted to complete high school in the private school system, and the husband had the financial ability to meet his share of the expense.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0578.pdf

FamilyWatch July 2015 Edition

The court released a total of 69 decisions in July, only five of which involved family law. Among these, the ONCA upheld a motion judge’s unorthodox contempt remedy, reminded us that their clerks do not enjoy Google-translating French documents, and had strong words of caution for any lawyer considering whether to pursue a Bankruptcy and Insolvency Act claim against former clients.

Bazargani v. Mizael, 2015 ONCA 517

Doherty, Pepall and Huscroft JJ.A.

The mother had brought the child to Canada in August 2012. The father expected the mother and child to return to Australia. When it became clear in the fall of 2013 that the mother had no intention of doing so, the father initiated legal proceedings. At issue was the application judge’s order that the parties’ four year old child be returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

On appeal, the appellant mother submitted that the application judge erred because:

  1. The respondent had consented to the child remaining in Canada;
  2. The application judge did not consider the grave risk of harm to the child should he be returned to Australia;
  3. The application judge failed to recognize that the “settled in environment” component of Article 12 of the Hague Convention applied (Article 12 provides that if more than a year has passed prior to the date that proceedings are commenced, the court shall order the return of the child “unless it is demonstrated that the child is now settled in its new environment.”)

The ONCA rejected all three arguments. With respect to (1), the ONCA noted that there was ample evidence in the record to support the application judge’s conclusion that there was no valid consent.

With respect to (2), the appellant had not raised the issue of grave risk of harm before the application judge and the evidence with respect to allegations of abuse by the father was conflicting. In any event, the application judge had ordered that the child would reside with the appellant, not the respondent, in Australia, pending court proceedings there.

With respect to (3), the ONCA agreed with the application judge that the “settled in environment” defense could not apply because the respondent had brought his application within one year of demanding the child’s return, which was the appropriate date to use in determining the date of the child’s wrongful retention (rather than the date on which the mother brought the child to Canada).

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0517.pdf

Catholic Children’s Aid Society of Toronto v. A.Y., 2015 ONCA 493

Weiler, Cronk and Pepall JJ.A

The appellant parents argued that the judge at first instance erred in granting Crown wardship of their four children on a motion for summary judgment brought by the CCAS.

The appellants, who were self-represented on appeal, submitted broadly that there were procedural fairness issues, evidentiary issues, and that the judge of first instance did not make the proper order.

The ONCA dismissed all three grounds of appeal, noting that the findings of the motion judge were based on the record, and pointing out that all four children continued to want to be Crown wards.

The court appeared somewhat sympathetic to the appellants, taking pains to carefully outline the steps that CCAS had indicated the parents would need to accomplish in order for CCAS to vary the no access order.

Interestingly, the CCAS was reprimanded for filing a French language plan of care. The court cautions that in the future the CCAS should obtain a certified translation of all relevant documents in advance and that “[h]aving to adjourn in order to have documents translated into the appropriate language is a hindrance to the due administration of justice and unnecessary delay is not in the best interests of the children whom the CCAS is mandated to protect.”

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0493.pdf

 

Green v. Green, 2015 ONCA 541

Sharpe, Pepall and van Rensburg JJ.A

This is a very lengthy judgment dealing with a variety of appeals and cross-appeals between various members of the Green family and the wife’s former solicitors — a dispute rendered even more complex by the wife’s assignment into bankruptcy.

The facts are far too complicated to adequately summarize them here. Instead I will note a few highlights from this case:

  1. Where a s. 38 Bankruptcy and Insolvency Act order does not explicitly require a creditor to pursue a particular claim, the creditor is not required to do so. [In this case, the wife’s former solicitors had obtained a s. 38 order, and had later assigned that right to the wife’s son. Neither had advanced the wife’s equalization claim.]
  2. A discharged bankrupt who is discharged prior to trial does not have the capacity to assert an equalization claim at trial where that claim vested in the Trustee upon her assignment into bankruptcy.[The effect of the two points above were that the trial judge erred in making an equalization order in favor of the wife.
  3. The trial judge erred in ordering an assessment of the former solicitors’ accounts (it’s “provable claim”) and the legal fees associated with the s. 38 proceedings. With respect to the provable claim, the ONCA noted that no challenge had been made under the BIA, the Trustee had accepted the amounts, and allowing claims accepted by the Trustee to be attacked in collateral proceedings would disrupt the orderly administration of bankruptcies. With respect to the legal fees, again the court held that it was for the Trustee to question or challenge the amounts. However, the court had strong words of caution for any lawyer considering whether to pursue a s. 38 claim and criticized the wife’s former solicitor in this regard, upholding a costs order made personally against him.
  4. Errors in the calculation of spousal support do not automatically justify a change to the quantum on appeal. The trial judge erred in calculating the lump sum spousal support award by using the wife’s 2006 income when in fact the wife’s income had increased post-2007 when she began to receive CPP and OAS. However, in the circumstances, the ONCA declined to change the amount awarded by the trial judge.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0541.pdf

 

Holman v. Holman, 2015 ONCA 552 

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

The wife appealed the decision of the motion judge regarding child support and spousal support, arguing that:

  1. The motion judge made a number of calculation errors with respect to child support;
  2. The motion judge erred in not increasing spousal support after terminating child support;
  3. The motion judge erred in terminating spousal support.

The ONCA accepted the wife’s first two arguments but dismissed the third.

With respect to (1), the court held that there were various problems with the way the motion judge had calculated child support, including the motion judge’s assumption that the amount of child support for one child is the amount of child support for two children divided by half.

With respect to (2), the ONCA agreed with the wife’s argument that the motion judge erred in failing to consider the without child formula under the SSAGs which applies in the so-called “crossover cases” in which the child support obligation has ended.

With respect to (3), the ONCA noted that the decision to terminate spousal support did not constitute reversible error and pointed out that the duration of the spousal support in this case fell within the SSAG guidelines.

Link to the decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0552.pdf

 

Rego v. Santos, 2015 ONCA 540

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

The mother appealed an order finding her in contempt and ordering her to pay a fine of $5000 to the father along with costs of $10,000, which amounts were to be set off against the father’s child support arrears and future child support obligation.

The ONCA upheld the contempt finding and noted that while the decision to set-off costs payable to the father against the father’s support obligations was “unusual”, the motion judge had had the child’s best interests in mind. The motion judge had weighed the potential financial effect on the child versus the benefit of incentivizing the mother to facilitate the father’s access, finding the latter to be of greater overall benefit to the child.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0540.pdf

FamilyWatch June 2015 Edition

D.D. v. H.D., 2015 ONCA 409

Cronk, Gillese and Brown JJ.A.

This case presents a cautionary tale for any practitioner who seeks a substantive remedy against the opposing party, pursuant to Rule 1(8) of the Family Law Rules, where the case involves children’s issues, and also raises fascinating constitutional issues.

Because of the appellant’s breaches of various court orders, the respondent had been granted permission, pursuant to Rule 1(8), to argue his motion to vary a custody and access order in an uncontested manner. The appellant and her counsel had been allowed to be present in the courtroom when the motion to vary was argued, but had been prohibited from participating in the motion in any way.

Ultimately, the motion judge transferred sole custody of the children from the appellant to the respondent, terminated the respondent’s child and spousal support obligations, ordered the appellant to pay child support based on imputed income, and ordered that the appellant’s access to her children be supervised and subject to her providing the respondent with a psychiatric report that he found acceptable.

On appeal, the appellant argued that the motion judge erred in:

  1. Awarding custody to the respondent without properly considering the children’s best interests and without affording the appellant procedural fairness;
  2. Making the appellant’s access to the children conditional upon the respondent’s approval; and
  3. Her determination of the child and spousal support issues.

The appellant was successful on all three arguments.

With respect to the custody issue, the ONCA cited extensively from its earlier decision in King v. Mongrain and noted that “a full evidentiary record, including the evidence of both parents, is generally required in order for the court to determine the best interests of a child.” [The court was quick to point out that this does not mean that family courts can never strike pleadings in custody and access cases, but the one example the court provided is a case where the OCL was representing the children’s interests in the proceedings. Thus, it remains to be seen whether such a remedy might ever be appropriate in a case where the OCL is not involved…]

The ONCA raised further concerns with respect to the motion judge’s lack of reasons and apparent failure to consider, among other things, the history of domestic violence that had shaped the family’s circumstances. The ONCA emphasized that courts “cannot award custody to one parent to punish the other for non-compliance with court orders.”

With respect to the access issue, the court agreed with the appellant’s argument that the determination of access is a judicial function and cannot be improperly delegated, as the motion judge had done in making the appellant’s access conditional upon her providing a psychiatric report to the respondent that was satisfactory to him. The court noted that there is no statutory authority to delegate access decision-making to a third party. [Query how this jives with the common access orders in child protection matters that leave access “to be determined by the Society.”]

With respect to the child and spousal support issues, the lack of reasons provided by the motion judge led the ONCA to conclude that these orders similarly could not stand.

Case Commentary:

Perhaps the most interesting aspect of this appeal is a jurisdictional point that was not raised in the parties’ factums but was raised by the judges at the oral hearing.

Some background information is necessary to understand how and why a jurisdictional question was raised. Following the respondent’s successful motion to vary the custody and access order, child protection proceedings had been initiated by the province. Ordinarily, this would stay any further action in the family law case (including this very appeal to the ONCA), until the conclusion of the child protection proceedings, pursuant to s. 57.2 of the Child and Family Services Act.

The key fact upon which this entire issue rests is the fact that the respondent had brought his motion to vary pursuant to the Divorce Act — not the Children’s Law Reform Act — in the hopes of obtaining an order that would be enforceable Canada-wide. [A move he would later come to regret, no doubt.] Divorce Act custody orders have legal effect throughout Canada, which is not the case with custody orders made under the Children’s Law Reform Act. In order to enforce the latter, a person generally needs to fulfill the additional step of submitting their Ontario custody order to the court of the other province in order to have it recognized and enforced. See, for example, Alberta’s Extra-Provincial Enforcement of Custody Orders Act.

In the ordinary case, the respondent would likely have brought his motion to vary pursuant to the Children’s Law Reform Act — a far more common move. However, the appellant had moved the children to Alberta, and the respondent sought an order for the return of the children to Ontario that would be easier to enforce. Because he had previously been married to the appellant, bringing the motion to vary pursuant to the Divorce Act was an option available to him, and thus he proceeded under that act in lieu of the CLRA.

As the ONCA notes, had the respondent brought his motion to vary pursuant to the CLRA, it is clear that there would have been a stay of the proceedings once the child protection proceedings were initiated, and the appellant would not have been able to pursue her appeal to the ONCA. But because he brought the motion to vary pursuant to the Divorce Act — a statute that contains no stay provision akin to that in the CLRA — the question was whether the court could decide the appeal.

Thus, the peculiarity of the facts is what gave rise to the jurisdictional (and constitutional) question: Are proceedings brought pursuant to the federal Divorce Act immune to the stay that ordinarily occurs when the province initiates child protection proceedings? And the question I propose to answer: Was the ONCA right to have decided the appeal notwithstanding the child protection proceedings that were initiated after the order of the motion judge was made but before the appeal before them was heard?

Based purely on statutory language, the answer to these questions would appear to be yes. Section 20(4) of the Divorce Act states that custody orders made under the Divorce Act can only be varied in accordance with the Divorce Act. The Child and Family Services Act explicitly states that the automatic stays apply to “any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act.” Notably, the Divorce Act is not mentioned in that stay provision. On this point the ONCA opined that “given the doctrine of federal paramountcy, it is not readily apparent that the CFSA, a provincial law, could effect such a stay.”

Though it stated that it was not deciding the issue, the fact is that the ONCA did decide it. They proceeded to hear the appeal and overturn the motion judge’s custody order. They asserted jurisdiction to do so. Thus, they necessarily held that Divorce Act custody disputes can proceed notwithstanding ongoing child protection proceedings. And on the basis of existing statutory language, they were likely correct to do so.

In essence, what this means is that children of divorced parents are to be treated differently than those whose parents were never married. If your parents were divorced, then your parents can continue to battle over your custody regardless of the fact that child protection proceedings have been initiated by the state. On the other hand, if your parents were never divorced, and are battling over your custody pursuant to the Children’s Law Reform Act, then your parents are forced to have a time-out while the child protection issues are resolved.

Is this good policy? No. It shouldn’t matter whether the underlying custody order was made pursuant to the Divorce Act or the Children’s Law Reform Act — where child protection proceedings are initiated, the stay should apply regardless, so as to ensure that the sands are not continually shifting below the feet of the child protection proceedings. What this case highlights is the need for legislative intervention.

The federal government has jurisdiction over “marriage and divorce” pursuant to s. 26 of the Constitution. The province has jurisdiction over child protection pursuant to s. 92(13) of the Constitution (the property and civil rights provision). The province could amend the Children’s Law Reform Act such that it effects a stay of all family law custody proceedings once child protection proceedings are initiated, pursuant to its provincial jurisdiction over property and civil rights/child protection.

The federal government could then argue that the province is impinging upon the “core” of federal jurisdiction over marriage and divorce, or they could try a paramountcy argument (though what that argument would be is not readily apparent…paramountcy presupposes that there are two laws — one federal and one provincial — that conflict with each other. Because the Divorce Act says nothing about stays, the federal government would have to argue that the broad provincial stay “frustrates the purpose” of the Divorce Act…an argument that does not seem highly convincing).

Of course, all of this presumes that the federal government would oppose a broad stay enacted by the province. They might not.

It would be very difficult, if not impossible, to make any of the above arguments when the province itself has not passed legislation purporting to assert such a broad stay. That would be the first step – the constitutional debate would follow. Right now, what we have is a gaping hole – the province has not asserted a broad stay in the CLRA, and the Divorce Act says nothing about stays where child protection proceedings are initiated.

This case highlights a further statutory oddity. When the state initiates child protection proceedings, it does so pursuant to the Child and Family Services Act, not the Divorce Act. Throughout the course of the child protection proceedings, courts regularly make custody orders for children regardless of whether a previous custody order for those children was made pursuant to the Divorce Act. Based on the strict language of the Divorce Act — namely, s. 20(4), which states that a court may only vary a Divorce Act order in accordance with the Divorce Act — this would appear to be an error. Yet, imagine advancing such an argument in child protection proceedings:

“I’m sorry, your Honour. This court has no jurisdiction to make a custody order for Johnny. His parents were once married, and his mother has custody of Johnny pursuant to an Order made under the Divorce Act. Such a custody order cannot be varied except in accordance with the Divorce Act — and, well, the Society can only act pursuant to the Child and Family Services Act. Nothing in the Child and Family Services Act or any other act gives this court the jurisdiction to change a Divorce Act order, so the Society’s argument that Johnny should become a Crown ward must fail.”

It is unlikely that any court would give effect to such an argument. To put it in constitutional language, it is likely that s. 20(4) of the Divorce Act impinges on the “core” of the provincial jurisdiction over child protection, pursuant to the doctrine of interjurisdictional immunity (IJI). Child protection necessarily requires the ability to change custody orders when necessary. It would not appear to be a hard sell to convince a court that whether or not a custody order was previously made pursuant to the Divorce Act should have zero import on the court’s ability to make such an order.

[Interestingly, IJI has thus far only been applied to protect federal heads of power from encroachment by the provinces. Theoretically, it also applies to protect provincial heads of power from encroachment by the federal government. If a court were to recognize that s. 20(4) of the Divorce Act impinges upon the core of provincial jurisdiction over property and civil rights/child protection, it would be the first time in Canada that IJI would apply to the benefit of a province.]

Link to the full decision here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0409.pdf

Harrison v. Arrocha, 2015 ONCA 432  

Simmons, Cronk and Blair JJ.A.

This was an appeal of the trial judge’s order requiring the appellant to pay child support and spousal support. The appellant took issue with (among other things) the trial judge’s findings with respect to his income and with respect to whether the child in question continued to be a child of the marriage.

In a short 8-paragraph endorsement, the ONCA dismissed the appeal, noting that “the appellant’s arguments are nothing more than an effort to have this court retry the case”. The ONCA reiterated the principle that “absent an error in principle, a serious misapprehension of the evidence or unless an award is clearly wrong, an appellate court must not intervene.” The court held that the trial judge’s conclusions were based on the evidence presented.

The court also declined to admit the appellant’s fresh evidence, as it was incomplete and lacked “the necessary cogency to warrant admission on appeal.” (For example, the appellant had sought to introduce an excerpt from his 2013 Notice of Assessment, which suggested a lower income than he had previously put on his financial statement at trial. The ONCA pointed out that they could not rely on a selective excerpt, as the appellant had not included his 2013 Income Tax Return or any supporting documentation upon which that return was based.)

Ultimately, costs of the appeal of $7500 were awarded against the appellant.

Link to the full decision here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0432.pdf

 

Roberts v. Roberts, 2015 ONCA 450

Feldman, Hourigan and Benotto JJ.A

The appellant’s pleadings had been struck by the motion judge for failure to comply with orders requiring him to disclose financial information, and the respondent had been granted leave to file a motion for an uncontested trial. The appellant sought to have this discretionary order overturned.

The ONCA (per Benotto J.) found no error with the motion judge’s exercise of discretion. The court noted that the power to strike out pleadings is to be used sparingly and only in exceptional cases — but this was such a case. There were three separate court orders ordering the appellant to produce the disclosure. He had been granted two extensions by the lower court. The last of these orders clearly indicated that a failure on the appellant’s part to produce the disclosure in question would renew the respondent’s motion to strike his pleading.

Costs of the appeal of $10,000.00 were ordered against the unsuccessful appellant.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0450.pdf

 

Waye v. Cook, 2015 ONCA 425 

Simmons, Cronk and Blair JJ.A.

The appellant appealed support orders made against him. In a 3-paragraph appeal book endorsement, the ONCA held that pursuant to s. 19(1.2) of the Courts of Justice Act, it did not have jurisdiction to entertain the appeal, and transferred it to the Divisional Court.

Section 19(1.2) of the Courts of Justice Act states that the Divisional Court has jurisdiction where the final order in question orders payment “of not more than $50,000.00, exclusive of costs”.

Case commentary:

In this case, the trial judge had ordered the payment of $53,800.00 — just slightly more than the maximum set out in s. 19(1.2). It is somewhat interesting that this fact does not appear to have been of concern to the court, as statutory provisions relating to jurisdiction are generally interpreted in a strict manner.

Link to the decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0425.pdf 

FamilyWatch May 2015 Edition

May was a very busy month at the ONCA for everything except family law. The court released a total of 89 decisions in May — only two of which involved family law.

Stafford v. Stafford, 2015 ONCA 306

Doherty, Pepall and van Rensburg JJ.A.

The parties were both in their 40’s. The husband had entered into a consumer proposal and had been discharged prior to the family law trial. Under the provisions of the Bankruptcy and Insolvency Act, the wife’s claim for an equalization payment was stayed by virtue of the consumer proposal, and rendered unenforceable as a result of its successful completion.

However, the husband’s pension was an exempt asset that survived the consumer proposal. This did not go unnoticed by the wife, who brought an application for post-retirement spousal support, in lump sum form payable now (and despite the uncertainty regarding the husband’s future retirement date).

The trial judge held that this issue was best addressed by way of a spousal support review upon the husband’s retirement because at that future point in time, matters relevant to support (i.e. the parties’ means and needs) would have crystallized.

The ONCA found no error in the trial judge’s exercise of discretion, particularly given the time-limited spousal support order that the trial judge had made and the ages of the parties.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0306.pdf

D.G. v. A.F., 2015 ONCA 366  

Laskin, Lauwers and Hourigan JJ.A.

FamilyWatch reported on the disposition of this appeal in April 2015. (Back then it was known as Gallicano v. Faber — the case with the curious functus officio argument.)

This two-paragraph costs endorsement is only noteworthy in that it highlights how minimal the costs of an appeal are where both parties are self-represented. Each party spent less than $900.00 for the appeal (mostly on disbursements). Ultimately the ONCA awarded costs to the respondent of $800.00.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0366.pdf

FamilyWatch April 2015 Edition

Welcome to the inaugural FamilyWatch newsletter! This monthly newsletter summarizes recent family law decisions of the Ontario Court of Appeal.  April was a fairly quiet month for family law at the ONCA. The court released a total of 76 decisions in April, but only 5 involved family law.

Chand v. Chand, 2015 ONCA 228

Feldman, Benotto and Brown JJ.A.

In this 7-paragraph decision, the ONCA quickly dismisses an appeal regarding the calculation of an equalization payment.  The husband appealed the trial judge’s calculation of the equalization payment, arguing that the judge erred by:

(1) including in his NFP money that the husband said belonged to his sister;

(2) including in his NFP proceeds from his share of the sale of a Florida property that had already been divided with the wife;

(3) not including in the wife’s NFP approximately $60,000 which the husband said was in her ING bank account as well as income he said she earned from her rental property in Holland;

(4) incorrectly valuing home contents and artwork. The Court of Appeal was quick to point out that issue (1) involved a credibility finding made against the husband that was based on extensive evidence.

With respect to issue (2), the Florida property had been sold nine years prior to separation and any funds left in the husband’s bank account flowing from that sale were properly included in his NFP.

With respect to issue (3), the ONCA held that evidence was clear that on the valuation date, $4190 was in the account, not $60,000. Further, it was open to the trial judge to find that there was no undisclosed income from the Holland property.

Finally, with respect to issue (4), the Court pointed out that the trial judge’s findings were based on the evidence.

Ultimately, the husband’s appeal was dismissed and costs were awarded against him of $15,000. If nothing else, this appeal had the effect of delaying the equalization payment for almost two years.

Link to the full decision here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0228.pdf

 

Essa v. Mekawi, 2015 ONCA 244  

Weiler J.A. (In Chambers)

The trial judge had ordered the mother to return the two children to Egypt. The mother sought to stay the removal order pending the appeal. Applying the stay test from RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Justice Weiler granted the stay, noting the following considerations:

1) an expedited appeal date was available for August;

2) there was merit to the mother’s grounds of appeal;

3) the father had not submitted any plan of care for the children regarding who would be physically caring for the children in the event the trial judge’s order was not stayed and the children returned to Egypt (which plans, the court noted, “are valuable and show the regard of the parent seeking the return of the child for the welfare of the child”);

4) the mother had always been the primary caregiver of the children;

5) if the children were sent to Egypt now, they would lose the balance of their school year in Ontario.

Link to the full decision here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0244.pdf

 

M. v. F., 2015 ONCA 277

MacFarland, Tullock and Benotto JJ.A

The trial judge ruled, after a 34-day trial that resulted in a $500,000.00 costs award against the mother, that the father should be permitted to have overnight access visits with the 6-year old child.

The appellant mother’s grounds of appeal were:

(1) the trial judge gave insufficient reasons;

(2) the trial judge’s reasons were not supported by the evidence;

(3) the trial judge erred in making no order as to custody of the child; and

(4) the trial judge exceeded his jurisdiction by purporting to bind the parties to a private dispute resolution process without the parties’ consent.

These four grounds of appeal were rejected.

With respect to the first issue, the ONCA noted that “the appellant’s submission with respect to the sufficiency of reasons is actually a complaint that the trial judge made the findings that he did.” (Undoubtedly a frequent occurrence at the ONCA.

With respect to the second issue, the ONCA held that the trial judge did not err in preferring the evidence of Dr. Butkowsky, who had known the child for many years, over that of Dr. Jaffe, who had never met the child. The ONCA noted that critique evidence, like that of Dr. Jaffe in this case, must meet the Mohan test and that it would be “rarely appropriate” to admit it at trial. While the ONCA questions the trial judge’s decision to admit the evidence in the first place, it approves of his decision to accord it little weight.

With respect to the third issue, the ONCA points out that the CLRA does not require a judge to make a custody order.

On the fourth issue, the ONCA noted that a judge cannot make an order requiring parties to attend mediation/arbitration in the absence of consent. However, the trial judge did not err in this respect because there was evidence of consent.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0277.pdf

 

Baiu v. Baiu, 2015 ONCA 288

Doherty, Pepall and van Rensburg JJ.A.

In this very short 6-paragraph endorsement, the Court of Appeal dismissed the majority of the appellant’s appeal which largely focussed on custody and parenting time. However, it commented on two issues worth noting:

(1) the trial judge erred in ordering spousal support of $1 per year to the wife (ostensibly to keep the wife’s future options open) when the wife had not asked for any spousal support at trial; and

(2) a shareholder loan made by a shareholder to the shareholder’s company is “property” subject to equalization pursuant to s. 4(1) of the FLA. The trial judge did not err in discounting the loan by 50% to take account of the likelihood of repayment.

Link to the decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0288.pdf

 

Gallicano v. Faber, 2015 ONCA 290

Laskin, Lauwers and Hourigan JJ.A.

This was a high-conflict matter involving a custody and access dispute. The appellant’s two main grounds of appeal were:

(1) the motion judge had improperly seized herself of the matter; and

(2) the motion judge did not provide the appellant with the chance to argue the issue of costs.

On the first issue, the appellant argued that, by seizing herself of the matter, the motion judge effectively put herself in a conflicting position because any motions to change custody or access would inevitably involve the motion judge reviewing her own decisions. The ONCA rejected this argument, pointing out that active case management is one of the underlying principles of the Family Law Rules and that nothing in the Rules prevents a judge from seizing himself or herself of a case.

The ONCA notes that active case management, as occurred in this case, “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.”

With respect to the second issue, the ONCA quickly rejected the appellant’s arguments, noting that the motion judge’s costs award of $80,000.00 was based on the evidence.

This case is also noteworthy for a discussion of the principle of functus officio (which Wikipedia defines as “a branch of the doctrine of res judicata prevents the re-opening of a matter before the same court, tribunal or other statutory actor which rendered the final decision in the absence of statutory authority”). The appellant tried to argue that this principle should apply to bar the motion judge from seizing herself of the matter. The ONCA rejected this argument, noting that the Divorce Act, the Federal Child Support Guidelines, and the Family Law Rules all expressly contemplate that final orders will, on occasion, need to be altered. The respondent had followed the procedure set out in the Family Law Rules by bringing a motion to change, and therefore the doctrine of functus officio was not violated.

Link to the full decision here:

http://www.ontariocourts.ca/decisions/2015/2015ONCA0290.pdf