Family Law Case Lists

Do you need to know how the courts have ruled on a particular family law issue, or at least the cases that Judges are referred to?

There is a page on the Superior Court of Justice web site which has all of this information – a list of all of the cases broken down on a case by case basis.

That page is at http://www.ontariocourts.ca/scj/practice/practice-directions/list/#cpcl

The court goes out of its way to point out that this is not legal advice. In fact it may be the reverse, with people being inundated with cases, which have to be read for comprehension, understanding the “ratio decidendi” or deciding reasons of the case, and the “obiter dicta” or collateral comments on the law by the presiding Justices which may be a wish for the law to be particular way.

I am taking the liberty of reproducing the lists of Family Law Cases and the Child Protection Case List here.

In my volunteer life, I am the Chairman of the Welland County Law Association Library Committee, and I can say that most of you still will need the assistance of a lawyer or up to date Family Law Texts for interpretation of the cases, updating how the courts have interpreted these cases, and how these cases apply to your particular case.

You can of course purchase your own Family Law Library. A good Family Law Library will set you back between $500.00 to $5,000.00 and there may be an annual subscription cost, which your lawyer already pays, but who am I to dissuade you from purchasing law books from Carswell Publishing, when the same money would get you actual competent legal representation?

I also note that  these lists are current only to June 2015. Some of the cases may have new interpretations, have been distinguished, or have been overruled.

 

Back to the Topic at Hand –  the lists are:

 

 

Family List of Cases

This list contains certain frequently relied on cases which are supplied to judges hearing family law cases in the Superior Court of Justice in the Central West, Central South, North West, South West, and Toronto Regions, as directed by the provisions in the Consolidated Provincial Practice Direction that address often cited family law cases.

The cases in question appear on this list under various headings or topics which are not in any way intended to provide legal advice.

Parties in family law proceedings in the Superior Court of Justice in the Central West, Central South, North West, South West, and Toronto Regions need no longer include authorities on this list in any book of authorities relied on. However, extracts from those authorities which counsel intend to refer to the court shall be included in the factum or book of authorities.

Family Law Cases
Family Law Appeals Case List Updates
Child Protection Case List

Family Law Cases

Parenting

  1. Gordon v. Goertz,[1996] 2 S.C.R. 27 (mobility, best interests of the child, variation of custody and access orders, material change in circumstances)
  2. Young v. Young,[1993] 4 S.C.R. 3 (religion, rights of an access parent, best interests of the child)
  3. Kaplanis v. Kaplanis (2005),249 D.L.R. (4th) 620 (Ont. C.A.) (joint custody, best interests of the child)
  4. Ladisa v. Ladisa (2005),193 O.A.C. 336 (C.A.)
  5. Linton v. Clarke (1994),21 O.R. (3d) 568 (Div. Ct.) (assessments)

Child Support

  1. B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra,2006 SCC 37 (retroactive child support)
  2. Lewi v. Lewi (2006),80 O.R. (3d) 321 (C.A.) (child support for adult children)
  3. Park v. Thompson (2005),77 O.R. (3d) 601 (C.A.) (adult children)
  4. Francis v. Baker,[1999] 3 S.C.R. 250 (section 4 of the Guidelines)
  5. R. R. (2002), 58 O.R. (3d) 656 (C.A.) (section 4 of the Guidelines)
  6. Contino v. Leonelli-Contino,2005 SCC 63 (child support where both parents have the children more than 40% of the time)
  7. Mehling v. Mehling, 2008 MBCA 66 (section 9 of the Guidelines)
  8. Froom v. Froom (2004),C.W.S. (3d) 331 (section 9 of the Guidelines)
  9. Maultsaid v. Blair, 2009 BCCA 102(section 9 of the Guidelines)
  10. (L.) v. C.(M.), 2013 ONSC 1801(section 9 of the Guidelines)
  11. Chartier v. Chartier,[1999] 1 S.C.R. 242 (child support payable by a step-parent)
  12. Ewing v. Ewing,2009 ABCA 227, leave to appeal to SCC refused [2009] S.C.C.A. No. 386 (section 4 of the Guidelines)
  13. Tauber v. Tauber (2000),48 O.R. (3d) 577 (C.A.) (section 4 of the Guidelines)
  14. Tauber v. Tauber (2001),203 D.L.R. (4th) 168 (Ont. Sup. Ct.) (section 4 of the Guidelines and spousal support)
  15. Drygala v. Pauli (2002),61 O.R. (3d) 711 (C.A.) (section 19 of Guidelines, intentional underemployment)
  16. DiFrancesco v. Couto (2001),56 O.R. (3d) 363 (C.A.) (rescission of arrears)
  17. Senos v.Karcz,2014 ONCA 459 (child support for ODSP recipients)

Spousal Support

  1. Miglin v. Miglin,2003 SCC 24 (spousal support in the face a spousal support release)
  2. Fisher v. Fisher,2008 ONCA 11 (the Spousal Support Advisory Guidelines)
  3. Bracklow v. Bracklow,[1999] 1 S.C.R. 420 (entitlement to spousal support)
  4. Boston v. Boston,2001 SCC 413 (pensions and “double dipping”)
  5. Willick v. Willick,[1994] 3 S.C.R. 670 (variation of support orders, material change in circumstances)
  6. Moge v. Moge,[1992] 3 S.C.R. 813  (entitlement to spousal support, objectives of spousal support, self-sufficiency)
  7. Davis v. Crawford,2011 ONCA 294 (broadens the circumstances in which lump sum spousal support payments can be awarded)

Variations and Material Change

  1. Willick v. Willick[1994] 3 S.C.R. 670(variation of support orders, material change in circumstances)
  2. M.P. v. L.S.,2011 SCC 43

Property

  1. Stone v. Stone (2001),55 O.R. (3d) 491 (C.A.) (equalization of net family property, unequal division of net family property)
  2. Rawluk v. Rawluk,[1990] 1 S.C.R. 70 (equalization of net family property, resulting trusts, constructive trusts)
  3. Peter v. Beblow,[1993] 1 S.C.R. 980 (constructive trusts)
  4. Serra v. Serra,2009 ONCA 105(unequal division of net family property)
  5. Levan v. Levan,2008 ONCA 388 (setting aside domestic contracts, unequal division of net family property), leave to appeal to SCC refused ([2008] S.C.C.A. No. 331)
  6. Czieslik v. Ayuso,2007 ONCA 305 (unequal division of net family property)

Marriage Contracts

  1. Hartshorne v. Hartshorne,2004 SCC 22
  2. Le Van v.Le Van,2008 ONCA 388, leave to appeal to SCC refused [2008] S.C.C.A. No. 331.

Separation Agreements and Disclosure Obligations

  1. Rick v. Brandsema,2009 SCC 10.
  2. Marinangeli v. Marinangeli (2003),66 O.R. (3d) 40 (C.A.).

Experts

  1. Westerhof v. Gee Estate,2015 ONCA 206

Summary Judgment

  1. Hryniak v. Mauldin, 2014 SCC 7

Interim Costs and Disbursements

  1. British Columbia (Minister of Forests) v. Okanagan Indian Band,2003 SCC 71
  2. Biddle v. Biddle (2005),13 R.F.L. (6th) 63 (Ont. Sup. Ct.)
  3. Stuart v. Stuart2001 CanLii 28261 (Ont. Sup. Ct.)

Partition and Sale

  1. Latcham v. Latcham (2002),27 R.F.L. (5th) 358 (Ont. C.A.)
  2. Silva v. Silva(1990), 1 O.R. (3d) 436 (C.A.)
  3. Martin v. Martin(1992), 8 O.R. (3d) 41 (C.A.)
  4. Batler v. Batler(1988), 67 O.R. (2d) 355 (Ont. C.J.)

Occupation Rent

  1. Griffiths v. Zambosco (2001),54 O.R. (3d) 397 (C.A.)
  2. Higgins v. Higgins (2001),19 R.F.L. (5th) 300 (Ont. Sup. Ct.)

The Trust Doctrines

  1. Rawluk v. Rawluk,[1990] 1 S.C.R. 70
  2. Pettkus v. Becker,[1980] 2 S.C.R. 834
  3. Peter v. Beblow,[1993] 1 S.C.R. 980
  4. Campbell v. Campbell (1999),43 O.R. (3d) 783 (C.A.)
  5. Kerr v. Baranow,2011 SCC 10 (clarifies the law on constructive and resulting trusts and unjust enrichment on the breakdown of domestic partnerships)
  6. McConnell v. Huxtable,2014 ONCA 86
  7. Martin v. Sansome, 2014 ONCA 192

Preservation Orders

  1. Lasch v. Lasch(1988), 64 O.R. (2d) 464 (H.C.J.)
  2. Bronfman v. Bronfman (2000),51 O.R. (3d) 336 (Ont. Sup. Ct.)

Prejudgment and Postjudgment Interest

  1. Debora v. Debora (2006),83 O.R. (3d) 81 (C.A.)
  2. Burgess v. Burgess (1995)24 O.R. (3d) 547 (C.A.)
  3. LeVan v. LeVan,2008 ONCA 388, application for leave to appeal to the Supreme Court of Canada dismissed [2008] S.C.C.A. No. 331.

Costs

  1. Serra v. Serra,2009 ONCA 395.
  2. Islam v. Rahman,2007 ONCA 622.
  3. ( A.C.) v. M.(D.)(2003), 67 O.R. (3d) 181 (C.A.)
  4. Boucher v. Public Accountants Council for Ontario (2004),71 O.R. (3d) 291 (C.A.)
  5. Fong v. Chan(1999), 46 O.R. (3d) 330 (C.A.)
  6. Biant v. Sagoo (2001),20 R.F.L. (5th) 284 (Ont. Sup. Ct.)
  7. Fong v. Chan, 2001 CanLII 7484(Ont. C.A.)
  8. Cindy Jahn-Cartwright v. John Cartwright,2010 ONSC 2263
  9. Cassidy v. Cassidy,2011 ONSC 791
  10. Jordan v. Stewart, 2013 ONSC 5037

Motions Before Case Conferences

  1. Rosen v. Rosen (2005),2005 CanLII 480 (Ont. Sup. Ct.)

Hague Cases

  1. Thomson v. Thomson,[1994] 3 S.C.R. 551 (interpretation and application of Convention, wrongful removal)
  2. v. M.,2002 NSCA 127 (child’s objection)
  3. Jabbaz v. Mouammar (2003),226 D.L.R. (4th) 494 (Ont. C.A.) (harm threshold)
  4. Chan v. Chow,2001 BCCA 276 (habitual residence)
  5. Korutowska-Wooff v. Wooff (2004),242 D.L.R. (4th) 385 (Ont. C.A.) (habitual residence)
  6. Katsigiannis v. Kottick-Katsigiannis (2001),55 O.R. (3d) 456 (C.A.), (subjective approach to acquiescence)
  7. Finizio v. Scoppio-Finizio (1999),46 O.R. (3d) 226 (C.A.) (adjustment periods)
  8. Pollastro v. Pollastro (1999),43 O.R. (3d) 485 (C.A.) (determination of risk of harm)
  9. Beatty v. Schatz,2009 BCSC 707 (child to meet with psychologist), aff’d 2009 BCCA 310
  10. Ellis v. Wentzell-Ellis,2010 ONCA 347

Declaration of Parentage Cases

  1. Trociuk v. British Columbia (Attorney General),2003 SCC 34  (unconstitutional for legislation to allow arbitrary exclusion of father from birth registration process, significance of fathers’ interests and dignity)
  2. A. v. B.B.,2007 ONCA 2 (declaration of third parent pursuant to parens patriae jurisdiction, importance of declaration)
  3. Raft v. Shortt (1986),54 O.R. (2d) 768 (Ont. C.J.) (no declaration of non-parentage under CLRA but available under CJA, issue estoppel, blood tests)
  4. R. v. L.H., [2002] O.T.C. 764 (Ont. Sup. Ct.) (surrogacy, birth registration, custody, declaration of non-parentage under CJA, best interests of the child, sealing court file)
  5. D.L. v. L.R.L. (1994),114 D.L.R.(4th) 709 (Ont. Sup. Ct.) (anonymous sperm donor, standing in the place of a parent, CLRA declaration, access)
  6. Rypkema v. British Columbia,2003 BCSC 1784 (surrogacy, birth registration, genetic parents)
  7. S.K. v. T.L.T.(2003), 168 O.A.C. 73 (C.A.) (sealing court file, best interests of the child)
  8. v. P.(1982), 35 O.R. (2d) 325 (Ont. Sup. Ct.) (support, delaying exchange of financial information, sealing court file)

Family Law Appeals Case List Updates

Standard of Review

  1. Housen v. Nikolaisen,2002 SCC 33 [Standard of review is palpable and overriding error.]
  2. (H.) v. Canada (Attorney General),2005 SCC 25

Deference

  1. (G.C.) v. New Brunswick (Minister of Health and Community Services),[1998] 1 S.C.R. 1073[Deference should be given to trial judge.]
  2. New Brunswick (Minister of Health and Community Services) v. L. (M.),[1998] 2 S.C.R. 534 [Deference should be given to trial judge.]
  3. Hickey v. Hickey,[1999] 2 S.C.R. 518 [Need for deference in family law cases.]

Duty to Give Reasons

  1. v. Sheppard, 2002 SCC 26[Why a duty to give reasons.]
  2. Lawson v. Lawson(2006), 81 O.R. (3d) 321 (C.A.) [Tension between right to adequate reasons and deference.]
  3. Young v. Young(2003), 63 O.R. (3d) 112 (C.A.) [Rationale for the need to give reasons in family law context.]

Adequacy of Reasons

  1. v. Sheppard,2002 SCC 26 [Functional test.]
  2. v. Gagnon,2006 SCC 17 [Two stage analysis for functional test.]

Appeal of Costs

  1. Mete v. Guardian Insurance Co. of Canada(1998), 165 D.L.R. (4th) 457 (Ont. C.A.) [High discretion given to costs award.]
  2. Hamilton v. Open Window Bakery Ltd.,2004 SCC 9 [Costs award should only be set aside if there is an error in principle or award is plainly wrong.]

Reasonable Apprehension of Bias

  1. Children’s Aid Society of the Regional Municipality of Waterloo v. R.C.,2009 ONCA 840 [Active participation of trial judge in child protection case does not necessarily indicate bias.]
  2. v. S. (R.D.) 1997 CanLii 324 SCC 
  3. Committee for Justice and Liberty v. National Energy Board[1978] 1 S.C.R. 369
  4. Wewaykum Indian Band v. Canada2003 SCC 45

Appeal from an Interim Order

  1. Sypher v. Sypher(1986), 2 R.F.L. (3d) 413 (Ont. C.A.) [The court should not interfere with an interim order unless the order is clearly wrong and exceeds the wide ambit of reasonable solutions.]

Fresh Evidence on Appeal

  1. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.),[1994] 2 S.C.R. 165 [Test for the admission of fresh evidence on appeal.]
  2. v. Palmer, [1980]1 S.C.R. 759

Child Protection Case List

Interpretation

  1. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.),[1994] 2 S.C.R. 165 [Mandate of the Child and Family Services Act, but decision is pre-amendment to S.1 of the Act.]
  2. Syl Apps Secure Treatment v. B.D.,2007 SCC 38 [Section 1 was amended to separate and give priority to the legislation’s paramount purpose to promote the best interests, protection and well-being of children.]

Jurisdiction

  1. Winnipeg Child & Family Services (Northwest Area) v. G. (D.F.),[1997] 3 S.C.R. 925 [The parens patriae jurisdiction of the court does not extend to unborn children and thus cannot support the detention order of an expectant mother.]
  2. (C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth(1998), 40 O.R. (3d) 334 (C.A.) [The procedure under the Child and Family Services Act is paramount thereby precluding an order for custody under the CLRA of a Crown Ward.]

Onus of Proof

Temporary Care and Custody Hearings (s. 51)

  1. Children’s Aid Society of London and Middlesex v. T.(A) and D. (N.), 2001 CanLII 37748(Ont. Sup. Ct.) [Test in a temporary care and custody hearing is a “likelihood” of harm, met on a balance of probabilities.]
  2. Children’s Aid Society of Ottawa-Carleton v. T. (2000),2000 CanLII 21157 (Ont. Sup. Ct.) [Test for temporary care and custody requires CAS to establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm.]
  3. Children’s Aid Society of Waterloo (Regional Municipality) v. B.A. (2004),2004 CanLII 12742 (Ont. Sup. Ct.) [Test for making a temporary placement order with a third party is a reasonable likelihood of risk on something less than the ordinary civil onus of proof on the balance of probabilities.]
  4. Durham Children’s Aid Society v. A.M.K. and M., 2002 CanLII 61270(Ont. Sup. Ct.) [Test for interim order under s. 51 listed in ascending order of intrusiveness for return with or without supervision or placement with third party in the community.]
  5. Catholic Children’s Aid Society of Toronto v. M. (C),2003 CanLII 54589 (Ont. Sup. Ct.) [Test for temporary care placement requires a reasonably grounded belief about the risk of harm that rises above the level of speculation.]
  6. Children’s Aid Society of Niagara Region v. M. (L) (2006),2006 CanLII 27227 (Ont. Sup. Ct.) [Test for temporary care and custody requires CAS to establish a risk of harm that cannot be adequately protected against by returning the child to a parent.]
  7. Children’s Aid Society of Brant v. M.S.,[2008] O.J. No. 5299 (Ont. Sup. Ct.) [Temporary care and custody requires CAS to prove it is more probable than not that the children would suffer harm and cannot be otherwise protected.]

Variation of orders pending trial

  1. Children’s Aid Society v. E.L.,[2003] O.T.C. 755 (Ont. Sup. Ct.) [There can be no variation of a temporary care order without a material change in circumstances.]
  2. Children’s Aid Society of the County of Simcoe v. B. (B.J.), (2005),20 R.F.L. (6th) 74 (Ont. Sup. Ct.) [Variation of a temporary care order is a two-stage process. The party wishing the changes must show: (a) that there has been a material change; (b) if there has been a material change, the court must consider the situation using the same risk criteria set out in s. 51.]
  3. Children’s Aid Society of Metropolitan Toronto v. C.Y. (1993), R.F.L. (3d) 24, (Ont. Div. Ct.) [On an adjournment of a status review application and a request for a change in interim care and custody pending trial, the test is best interests and not the risk test set out in section 51.]

Final Disposition

  1. H. v. McDougall, 2008 SCC 53 [There is only one standard of proof in a civil case and that is proof on a balance of probabilities. There are no degrees of probability within that civil standard.]
  2. Children’s Aid Society of the Niagara Region v. P.L.R.,[2005] O.T.C. 255 (Ont. Sup. Ct.) [The onus is on the CAS and while the evidence must be convincing, the ordinary civil burden has not been changed.]
  3. Re Brown, (1976) 9 O.R. (2d) 185 [Intervention is only justified when the level of care falls below that which no child in this country should be subjected to.]
  4. Catholic Children’s Aid Society of Hamilton v. J.I. (2006),2006 CanLII 19432 (Ont. Sup. Ct.) [Should not to judge parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s best interests.]

Procedural Issues

  1. Children’s Aid Society of London and Middlesex v. H. (S),[2002] O.T.C. 916 (Ont. Sup. Ct.) [Parties to a child protection case are not limited by the legislation and may be supplemented by the Court.]
  2. (C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998),40 O.R. (3d) 334 (Ont. Sup Ct.) [Foster parents may not apply for a status review hearing.]
  3. Catholic Children’s Aid Society of Toronto v. B. (D.),2002 CanLII 53290 (Ont. C.A.) [The test for leave to withdraw.]

Time Line Restrictions

  1. Children’s Aid Society of Ottawa-Carleton v. K.F. (2003),123 A.C.W.S. (3d) 705 (Ont. Sup. Ct.) [The court’s discretion to extend the statutory time limit that a child can be in care under s. 70(4) of the legislation must be based on the best interests of the child.]

Appointing Counsel

For parents

  1. Family and Children’s Services of Rainy River v. C.J.S.,2010 ONCJ 75 [A minor parent is to be represented by OCL and this should not be lightly overridden without a request to do otherwise that is supported by a factual base for the court to exercise its discretion in that way.]

For the subject children

  1. R. v. Children’s Aid Society of Hamilton(2004), 70 O.R. (3d) 618 (Ont. Sup. Ct.) [Court may direct counsel be appointed for child under C.F.S.A., which is different than a referral to the OCL for consideration under the CLRA.]

Statutory Pathway For Protection Hearing

  1. (R.) v. Children’s Aid Society of Metropolitan Toronto(1995), 21 O.R. (3d) 724 (Ont. Sup.Ct.) [Importance of considering family/community placements and less restrictive alternatives throughout.]

Protection Findings

  1. Children’s Aid Society of the Niagara Region v. T.P.(2003), 35 R.F.L. (5th) 290 (Ont. Sup. Ct.) [(a) Intention is not required to prove risk of likely harm; (b) Harm must be more than trifling; (c) The finding is based on the situation at the time of apprehension.]
  2. Children’s Aid Society of Hamilton v. C.(M.) (2003),36 R.F.L. (5th) 46 (Ont. Sup. Ct.) [The relevant time for making a protection finding is not limited to the time of the apprehension and the initiation of the case.]
  3. Jewish Family and Child Service v. K. (R.), 2008 ONCJ 774[Domestic violence places a child at risk of harm.]
  4. Children and Family Services for York Region v. A.S.(2009), 79 R.F.L. (6th) 282 (Ont. Sup. Ct.) [The emotional harm to a child need not be intentional or an intentional failure to act, provided that the act is causally connected to the harm sustained by the child.]
  5. Children’s Aid Society of the Niagara Region v. T.P. (2003),35 R.F.L. (5th) 290(Ont. Sup. Ct.) [The CAS need not prove an intention to cause physical harm.]

Status Review Hearings

  1. Catholic Children’s Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165[Court’s function on a status review hearing; Status review hearing is a two part process.]
  2. Catholic Children’s Aid Society of Hamilton v. M.A.M.(2003), [2003] O.J. No. 1274 (Ont. Sup. Ct.) [The repealing of subsection 65(3) is consistent with the overall thrust of the amendments which focus the Court’s attention on the child in preference to the parent]
  3. Children’s Aid Society of Ottawa v. C.W. (2008),2008 CanLII 13181 (Ont. Sup. Ct.) [A status review hearing cannot retry the original need for a protection order. The issue is whether the child continues to be in need of protection and, if so, what order is in the best interests of the child.]
  4. Children’s Aid Society of the Region of Peel v. M.J.W. (1995),23 O.R. (3d) 174 (C.A.) [Role of familial plans in status review hearings as they relate to the least restrictive placement concept.]

Evidentiary Issues

  1. v. Khan,[1990] 2 S.C.R. 531 [Ability of child to testify and when to accept evidence of child’s spontaneous statements.]
  2. v. Blackman,2008 SCC 37 [Principled approach to the admissibility of hearsay evidence.]
  3. Stefureak v. Chambers (2006),6 R.F.L. (6th) 212 (Ont. Sup. Ct.) [Admissibility of hearsay evidence of a child’s out-of-court statements is governed by necessity and reliability.]
  4. E.C. v. G.P (2003),41 R.F.L. (5th) 250 (Ont. Sup. Ct.) [Considerations governing the compelled testimony of a child.]
  5. Children’s Aid society of Toronto v. L.L.,2010 ONCJ 48 [Admissibility of first-hand hearsay business records is governed by relevancy.]
  6. Children’s Aid Society of the Regional Municipality of Waterloo v. C. (R.),1994 CanLII 4520 (Ont. C.J.) [Boundaries for evidence on past parenting conduct.]
  7. Children’s Aid Society of Niagara Region v. D.P. (2003),36 R.F.L. (5th) 265 (Ont. Sup. Ct.) [If adoptability is an issue, expert evidence is required.]
  8. (R.) v. Children’s Aid Society of the Niagara Region(2002), 34 R.F.L. (5th) 44 (Ont. C.A.) [The Act does not envisage a contest between members of a child’s family and a foster parent at a hearing to declare whether the child should be declared to be a society or Crown ward.]

Access

  1. Children’s Aid Society of Niagara Region v. J.C.(2007), 281 D.L.R. (4th) 328 (Ont. C.A.)
    [(a) Presumptive burden of proof against access to a Crown Ward;
    (b) Person seeking access must prove that relationship is beneficial and meaningful to child based on relationship that exists at the time of trial and not one that is hoped for in the future.]
  2. Children’s Aid Society of Ottawa v. C. W.(2008), 2008 CanLII 13181 (Ont. Sup. Ct.) [Onus on parent to obtain access to a Crown Ward.]
  3. Children’s Aid Society of Toronto v. D.P.(2005), 19 R.F.L. (6th) 267 (Ont. C.A.) [Even where a Crown wardship order gives no right of access to a parent, the CAS may, as a custodial parent of the child, permit the parent to visit the child unless the order expressly states that there will be no contact.]

Charter Issues

  1. Winnipeg Child and Family Services v. K.L.W.,2000 SCC 48 [State apprehensions without prior judicial authorization in non-emergency situations do not violate s. 7 of the Charter, so long as there is a prompt post-apprehension hearing.]
  2. (R.) v. Children’s Aid Society of Metropolitan Toronto,[1995] 1 S.C.R. 315 [Crown wardship violates parents’ s. 7 rights to refuse medical treatment for their child, but does not violate the principles of fundamental justice.]
  3. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30[Court’s ability to mandate treatment for children under 16 years of age does not violate ss. 2(a), 7, or 15 of the Charter.]
  4. New Brunswick (Minister of Health and Community Services) v. G.(J.),[1999] 3 S.C.R. 46 [State-funded counsel required by s. 7 in the context of custody proceedings involving the state.]
  5. Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165[Section 11(b) of the Charter does not apply to the Child and Family Services Act.]
  6. Catholic Children’s Aid Society of Metropolitan Toronto v. S.(1989), 69 O.R. (2d) 189 (Ont. C.A.) [Denial of birth parent’s access to child after adoption is constitutional.]

Summary Judgment Motions

  1. Children’s Aid Society of Toronto v. T. (K.) (2000),2000 CanLII 20578 (Ont. C.J.) [Where a prima facie case for summary judgment is made out, the responding party must present evidence to show there is a genuine issue for trial.]
  2. Children’s Aid Society of Toronto v. R.H.(2000), 2000 CanLII 3158 (Ont. C.J.) [Specific facts reflecting a genuine issue for trial must be provided, not simply a heartfelt expression of a desire to resume care of the child.] [Mere denials do not raise triable issue of fact.]
  3. Children’s Aid Society of the Regional Municipality of Waterloo v. R.S.,[2007] O.J. No. 1527 (Ont. Sup. Ct.) [The court must review the entire evidentiary record in deciding whether a genuine issue for trial exists.]
  4. A. v. Jewish Family and Child Services, [2001] O.J. No. 47 [Not every disputed fact or question gives rise to a finding that there is a genuine issue for trial.]
  5. B. v. S.G.(2001), 199 D.L.R. (4th) 554 (Ont. Sup. Ct.) [A “genuine issue” must relate to a material fact or facts.]
  6. Children’s Aid Society of Nipissing v. M. (M.) (1999),[1999] O.J. No. 5720 (Ont. Sup. Ct.) [A summary of the principles applicable to summary judgment motions.]
  7. C.J.-R v. Children’s Aid Society of Oxford County2003 CanLII 2388(Ont. Sup. Ct.) [« aucune véritable question litigieuse » équivaut à « aucune chance de réussite » et « il est évident que l’action ne va pas réussir ».]
  8. Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.),1995 CanLII 6216  (Ont. Sup. Ct.) [Summary judgment can be ordered when the outcome is a foregone conclusion.]

Appeals

  1. Housen v. Nikolaisen,2002 SCC 33 [Standard of review of law, fact, and mixed law and fact on appeal.]
  2. Children’s Aid Society of Toronto v. C. (S.A.),2005 CanLII 43289 (Ont. S.C.), affirmed on appeal, 2007 ONCA 474 [Standard of review in family law cases.]
  3. Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto,(1985) 53 O.R. (2d) 163 (Ont. C.A.) [Appeal court judge is granted a “wide discretion” in deciding whether or not to admit further evidence.]
  4. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165[Admission of fresh evidence on appeal.]
  5. B. v. S.G. (2001),199 D.L.R. (4th) 554 (Ont. Sup. Ct.) [The standard of review on an appeal from a court initiated summary judgment motion is correctness.]
  6. C. v. Catholic Children’s Aid Society of Metropolitan Toronto,2002 CanLII 2672 (Ont. Sup. Ct.) [Reasonable apprehension of bias and trial fairness.]
  7. (R.) v. Children’s Aid Society of Metropolitan Toronto(1995), 21 O.R. (3d) 724 (Ont. Sup. Ct.) [Appeal court may substitute the order when determining the appeal.]
  8. Children’s Aid Society of Toronto v. L.U. (2008),56 R.F.L. (6th) 186 (Ont. S.C.) [Court’s decisions on s. 70(4) extensions are discretionary, and reviewable on the standard of palpable and overriding error.]

Costs

  1. (R.) v. Children’s Aid Society of the Niagara Region(2003), 34 R.F.L. (5th) 62 (Ont. C.A.) [It is not usual for costs to be awarded in Child protection cases where an applicant is unsuccessful. Where unsuccessful parties are motivated by the best interests of the children a “no costs” award may be appropriate.]
  2. Children’s Aid Society of Ottawa-Carleton v. S.,(2003), 39 R.F.L. (5th) 209 (Ont. Div. Ct.)
    (a) The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a Society has a statutory obligation to initiate and pursue proceedings where there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by cost considerations.
    (b) The wording of Rule 24 (2) is unequivocal that the presumptive entitlement to costs does not apply in a child protection cases. Consequently, even between parents, for costs to be awarded there must be something more than merely the outcome of the case.]
  3. Children’s Aid Society of Ottawa-Carleton v. MR. and MS. V.(2001), 2001 CanLII 37747 (Ont. Sup. Ct.) [CAS should not be penalized for attempting to fulfill its mandate, unless they have acted in some indefensible manner. They are not ordinary litigants.]

Current as of June 2015

 

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Why Do Parents with Young Children Need a Will?

Introduction

Parents with children under the age of 18 have specific estate planning concerns that can be met with proper planning and a will.

Appointment of A Guardian of Minor Children

The first concern that parents with minor children will have is a guardian for their minor children.

In their wills, parents (or any other person having custody of a child) may appoint one or more persons have custody of their child immediately following their death. The chosen individual(s) must consent to the appointment, as guardian of minor children, on the person’s death. It is important that the parents discuss this with the proposed guardian well in advance, so that the request is not refused, when the proposed guardian is surprised by the request.

This appointment by will, or “testamentary custody”, is only effective for a maximum of 90 days from the date of death. Within that time the guardian must apply to the court for an order for permanent custody. In all cases, the final determination of custody is reserved to the Judge hearing the case, on application by the person(s) appointed in the will. The criteria is the same as any other application for custody of children – what is in the best interests of the children. Like any other family law matter, it can be settled by the parties prior to a trial.

Other individuals, usually family members may commence their own (competing) applications for permanent custody, even if a guardian is specified, however, a testator’s wishes will provide guidance to the Court in making a determination.

It is the best interests of the child that will govern, and the CLRA provides that a child’s views and preferences shall be taken into consideration to the extent that a child is able to express them.

There are a number of criteria to be considered by a Judge when he or she determines in any case what is in the best interest of the child. Those criteria can be found in the Children’s Law Reform Act, s. 24 ss. 1-5.)

Common sense tells us that parents should choose people who share their parenting style and values when consider who to select for a guardian. Once the choice is made, parents should discuss the matter with the chosen individual(s) to ensure that the individual will accept the important responsibility of raising their children, and then tell other family members of their choice.

Changes to the personal situation of the parents or the chosen individual may require a re-evaluation to ensure the right person is appointed with testamentary custody of minor children. This may require redoing your will or wills at that time.

The seond concern will be appointing a trustee to manage your children’s property

Guardianship of a Minor Child’s Property

When I draft wills, I recommend the appointment of a trustee for the minor children’s property until they reach the age of 18 (or 22 or 23.) This person does not need to be the person with testamentary custody of the children. Under the Children’s Law Reform Act, a parent who has custody of a minor child is not automatically the “guardian of property” of his or her minor child’s property.

A parent may appoint an individual with testamentary custody of their minor child, and provide that their named estate trustee manage the child’s assets until the child reaches 18 (or some other age).

Where parents dies without a will, the CLRA makes provision for this, by the appointment of a guardian of property for the minor children on application to the Court, This guardian of property can be a surviving paretn, or by any other person – usually a relative, or family friend.

A surviving parents has priority to be appointed as guardian of a child’s property, and more than one guardian of property may be appointed. Guardianship applications must be made on notice to the Children’s Lawyer.

The Office of the Children’s Lawyer is a law office in the Ministry of the Attorney General. The Children’s Lawyer represents the interests of children before the court in custody and access matters, child welfare proceedings, and civil litigation and estate matters.

Guardianship applications must also be supported by affidavit evidence which addresses, among other things, the ability of the applicant to manage the property of the child (i.e. qualifications and experience of the applicant), and the views and preferences of the child, where such can be reasonably ascertained. A management plan for the child’s property must also be included in the application. The proposed management plan should address, at minimum, where the child will live, the child’s share of living expenses, discretionary expenses for the child (e.g. music lessons, sports fees and equipment, camps), the investment plan for any liquid assets, and the financial education of the minor child. The latter is important as a guardian of property is required to transfer all property to the child at age of majority, which is 18 years old.

The Camaro Clause

When I draft wills, I rarely recommend transferring all property to a minor child on the age of majority, which is 18 years old. I have seen the folly of this in cases where this is mandated by statute. The most common is dog bite cases where an 18 year old receives his or her settlement funds from a horrendous dog bite that happened when he or she was 4 or 5 years of age, and surprise, the first thing that they buy is a Camaro.

This can be avoided when you are preparing your will by directing that the minor’s child’s funds be held in trust to age 22, when he or she should have finished a first degree from college or university.

Caveat on General Legal Advice

As always, this is general legal advice, and you should have your specific situtation reviewed by a lawyer who does Wills and Estate Planning if you have any concerns about your particular situation. Choosing a Guardian could be one of the most important decisions in your life, and certainly in your children’s lives.

Contacting My Office

I would be pleased to discuss you needs for estate planning, whether it is drafting a simple or complex will, or powers of attorney for management of property or health care decisions.

You can call my office at 905-732-5529, or email me at doug.thomas@reallaw.ca.

A Precautionary Tale On Loans by Parents to Married Spouses

 

I came across a very interesting article in Phil Epstein’s weekly family law bulletin this morning. The case is Barber v. Magee, 2015 CarswellOnt 19620  2015 ONSC 8054  (Ont. S.C.J.). This case deals with a common  situation that can cause endless headaches in a family split up – the loan vs. gift question regarding funds advanced by parents to one of the warring spouses.

 

This was a case where the father of the husband had advanced him $90.413.49 for  downpayment for the purchase of the family home, and gave him $67,000.00 during the marriage. The issue was whether or not these funds were advanced by way of gift or loan. If they were by way of loans, the husband would be entitled to deduct them from his net family property.

 

This is an important case, in that it highlights the difference between a loan and a gift, and seems to run contrary to the presumption that an advance by a parent to a child is presumptively a loan and not a gift.

 

As the Justice noted:

 

38      The Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 (S.C.C.), at paras. 24-26, explained the doctrine of the presumption of resulting trust as follows:

24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

 

39      In Kerr, at para. 18, the Supreme Court of Canada explained how trial courts should consider the presumption of resulting trust:

18 The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention” [emphasis added].

 

40      The presumption of resulting trust applies when a parent makes a gratuitous transfer to an adult child: see Pecore, at para. 36. The presumption is that the adult child is holding the property in trust for the aging parent. In other words, the parent holds an interest in the subject asset whether it is real property, money loaned or some other item. The parent is presumed not to have intended a gift. However, this presumption can be rebutted by the evidence.

 

The law would therefor be that a loan is presumed but that presumption can be set aside by looking at the evidence in any one case.  In this case the Justice looked at the law relating to evidence necessary to rebut the presumption of loan, as stated by a number of provincial courts of appeal and cited the following cases:

 

41      Clearly, the evidence necessary to rebut the presumption depends on the facts of the case: see Pecore, at para. 55. Evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer: see Pecore, at para. 59.

 

42      The courts in British Columbia have been helpful in suggesting factors to look to when determining a resulting trust claim. The British Columbia Supreme Court recently reviewed the caselaw in Byrne v. Byrne, 2015 BCSC 318, 57 R.F.L. (7th) 215 (B.C. S.C.). The Court in Byrne referenced the factors adopted by their Court of Appeal that ought to be reviewed when determining whether a gift or loan was intended: see Kuo v. Chu, 2009 BCCA 405, 180 A.C.W.S. (2d) 903 (B.C. C.A.), citing Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850 (B.C. S.C.). Those factors are as follows:

  1. Whether there were any contemporaneous documents evidencing a loan;
  2. Whether the manner for repayment is specified;
  3. Whether there is security held for the loan;
  4. Whether there are advances to one child and not others or advances on equal amounts to various children;
  5. Where there has been any demand for payment before the separation of the parties;
  6. Whether there has been any partial repayment; and,
  7. Whether there was an expectation or likelihood of repayment.

 

43      The above factors are consistent with the approach taken by the Ontario Courts. Justice Mulligan provided a helpful review of our caselaw in Klimm v. Klimm, 2010 ONSC 1479, [2010] O.J. No. 968 (Ont. S.C.J.), where he noted the following factors, considered by Wood J. in Cade v. Rotstein, [2002] O.J. No. 4460 (Ont. S.C.J.), in determining the existence of a gift or loan:

  1. That joint debts are old, no demand has been made save one motivated by the separation of the parties;
  2. The monies were advanced to the parties to help them out;

iii. Dr. Rotstein testified that he would not have looked for the money, or would have taken action against his son. This leads to the clear conclusion that the demand was made as a result of the separation and to benefit their son in a subsequent litigation;

  1. Dr. and Mrs. Rotstein are elderly and Mrs. Rotstein is in poor health;
  2. Dr. Rotstein testified that he did not expect the money until the parties were able to afford to pay it back. The separation in this litigation has made that an improbability just as in the Poole case (referenced below); and,
  3. The Rotsteins Senior do not need the money.

 

44      Justice Mulligan in Klimm, at para. 29, also considered the following words of Heeney J. in Poole v. Poole, [2001] O.J. No. 2154, 16 R.F.L. (5th) 397 (Ont. S.C.J.), where he considered the role of fairness in the trust determination:

There is a compelling reason for taking this good hard look at the reality of the situation. A debt constitutes a credit in the equalization calculation, and reduces the net family property of the spouse claiming the debt. This has a direct impact on the equalization payment due, by either reducing the amount that the party has to pay to the other (if he has the higher net family property), or increasing the amount that he will receive (if his net family property is lower). Fairness dictates that he should not receive a credit for debt, with the financial benefits that flow from that credit, if he will never be called upon to pay the debt.

The case law is clear. If a spouse wishes to rely on a “loan” from a parent to reduce his or her net family property, he  better have clear proof that a loan was intended.

 

That evidence should include:

 

  1. a promissory note or other proof of loan
  2. a clear manner for repayment
  3. provision of some security for the loan
  4. proof that this was not a gift as part of a gifting scheme to all of the lender’s children – ie an advance on an inheritance
  5. demands for repayment during the marriage
  6. partial payment on the loan during the marriage
  7. that there was an expectation of repayment

 

Loans to married children by parents should be properly documented at the time that the loan was made. If this is not done, the parent who is expecting repayment may not get it, after his child’s separation.

The moral of the story for parents of married children are if you are advancing  money  to your child, you are giving to his spouse as well, even if things go bad later on, unless clear steps are taken to prove that this was a loan.

What has to  be done for parents loaning money to married children is that it has to be a loan, and treated as one, just as if you were loaning money to a stranger.

This is not a simple matter for any parent, and he or she should get some legal advice before loaning or gifting money to a married child.

 

As always, this is my opinion, and is general legal advice only.

 

Doug Thomas

Welland, Ontario

 

March 9, 2015

Grandparents’ Access

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Grandparents’ Access – Contrary to popular belief, there is no legislation giving grandparents an automatic right of access to or time with their grandchildren.

In Hrycun v. Theriault, 2015 CarswellAlta 2295 (Alta. Q.B.), Justice Veit reviewed the law relating to grandparent access and stated:

Case law has established that, where parents who are living together are able to meet their children’s needs, their decisions concerning their children, including who and where and when their children will associate with others will be respected: it is not in the children’s best interests to expose them to the animosity produced by forced access against both parents’ wishes. Moreover, a lawsuit which has no chance of success will both deprive the children’s family of money which could be used for the benefit of the family, including the children, and likely prove to be emotionally draining for the children’s parents and for the older children themselves.

In Ontario the leading case is Chapman v. Chapman (2001), 2001 CarswellOnt 537, 141 O.A.C. 389, 15 R.F.L. (5th) 46, 201 D.L.R. (4th) 443 (Ont. C.A.).

This is a case where access to a grandmother was denied on the basis that there was no grounds to force parents to expose their children to a protracted battle between a difficult grandmother and the parents.

A very recent case in Ontario on this point is Kerton v. Kerton-Moir 2015 CarswellOnt 15872, 2015 ONSC 5956, [2015] W.D.F.L. 6263, 259 A.C.W.S. (3d) 92, a case out of London Ontario where Justice Mitrow stated:

D. Principles in Relation to Grandparent Access
56 The principles that inform the decision to be made in the case at bar are found in the decision of the Court of Appeal for Ontario in Chapman v. Chapman [2001 CarswellOnt 537 (Ont. C.A.)], 2001 CanLII 24015, a case that involved grandparent access.
57 In Chapman, there was an emphasis on the rights of parents to make decisions on their children’s behalf. The court stated, in part, at para. 21:
[21] … In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.
58 The right to decide the extent and nature of grandparent access is not the right of the grandparent, and neither the grandparent nor a court should be permitted to impose their perception of a child’s best interests where parents are “demonstrably attentive” to the needs of their child: Chapman, para. 22.
59 In Chapman, it was pointed out that a court may intervene where a positive relationship between a child and his or her grandparent is arbitrarily imperiled:
[19] A relationship with a grandparent can — and ideally should — enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra).
60 In Giansante v. Di Chiara [2005 CarswellOnt 3290 (Ont. S.C.J.)], 2005 CanLII 26446, Nelson J. summarized Chapman as follows:
[18] In summary, Chapman provides that courts should generally defer to a parent’s decisions about grandparent access unless all three of the following questions are answered in the affirmative:
(i) Does a positive grandparent-grandchild relationship already exist?
(ii) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
(iii) Has the parent acted arbitrarily?

In posting this information, keep in mind that it is general legal information, and does not presume what will or will not happen in any particular case, as it will depend on the facts of the matter.

As always you should consult with competent counsel before making the decision to proceed or not proceed in any particular matter.

Estate Planning to Avoid Probate Fees

As many of you know the Ontario Government in its insatiable quest for tax dollars has decided to increase the reporting requirements for Estate Trustees who are required to pay the 1.5% Estate Tax.

One of  the ways around having property fall into your estate is to transfer the property to yourself and a child or children as joint tenants. It avoids what we used to call Probate Fees, but opens up a whole new can of worms.

The first is that some or all of the home, if you are transferring the home that you live in you may lose the principal residence deduction for the remaining years that you are in the home, attracting a large tax bill on your death.

The second problem is that your child could mortgage his half, or lose it to creditors, which means that either your pay your child’s debts or your home could be sold out from under you.

In addition to the registration of a transfer, you should also have a written agreement about the home after your death – is it to be owned outright by that child, or is he or she expected to share his or her good fortune with your other children.

There is case law which states that an adult child holds a joint property in trust for the transferor parent, so without a proper agreement, this could open up a new opportunity for your children to sue each other after your death.

One of the unfortunate facts about children is that without a parent there, no one will rein in their inherent desire to fight over money and property with their brothers and sisters – again something that no one really wants to set out to do.

Our office has been doing wills and powers of attorney for property and health care decisions for over 30 years now. If you need a will or power of attorney, and want a diligent lawyer who is up to date on the law doing your work, please give my office a call, at 905-732-5529 or email me at Doug.Thomas@Reallaw.ca

 

 

 

Cohabitation Agreements – Worth the Paper They are Written On?

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A Cohabitation Agreement is a Domestic Contract, which allows parties to opt out of some or all of the rights and protections that he or she may have under the Family Law Act.

It is an absolute essential for anyone who is considering living together, or marrying, to have.

The purpose of Support Orders is to redistribute income after separation. Once two people have lived together for more than three years, or if they have a child together, three minutes, the income redistribution scheme under the Spousal Support Guidelines kicks in. It does not matter that the two of you never intended to claim support from the other, or that there are no children of the relationship, or whatever else you may have verbally agreed, to, without a cohabitation agreement, someone is paying support to someone else, simply based on the difference in their incomes.

We live in a Society of Serial Monogamy. There is a very good chance that your relationship will end, and if you make more money than your spouse, support is probably payable, unless there is a cohabitation agreement in place in which each party releases the other from any claim for support.

Cohabitation Agreements have to be well drafted, and there are rules of financial disclosure that have to be followed if you want to be able to rely on your cohabitation agreement.

I will write later, on the importance of cohabitation agreements to protect your property from a spouse on separation.

Doug Thomas

18/03/2015

My Reflections on Cyber Bullying in Social Media,Facebook in Particular, and Its Dreadful Effect on It’s Victims, and Political Discourse

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Cyber bullying is a serious problem. The Courts do take it seriously. In ordering the removal and deportation of an Irish woman from Canada who had been living here for the most of her life, the Federal Court in Dunne v. Canada (Minister of Public Safety and Emergency) 2014 FC 835, 2014 CF 835, 2014 on September 2, 2014 stated:

“In regards to the seriousness of the offences, the Tribunal concluded that the applicant’s convictions are for offences that “fall on the serious side of the spectrum because they not only involved threats of violence and violence against the victims but also the victims were vulnerable individuals.” In addition, the seriousness was “exacerbated” by aggravating circumstances, including that the applicant “boasted about her actions and humiliated the victims through social media” (decision at para 16). The cyber-bullying and girl-to-girl violence has led to considerable media interest as well.”

In a Manitoba Family law case Grant v. Chester 2014 MBQB 211,Manitoba Court of Queen’s Bench, October 31, 2014 Justice Rivoalen considered a motion to have a party found in contempt y cyber bullying by text messaging and stated:

In certain cases of extreme cyber-bullying or cyber-stalking, imprisonment may be appropriate. In this case, counsel for the petitioner is not seeking imprisonment or a fine. He suggests that I order that communications be limited to one e-mail of 100 words to notify and discuss urgent matters affecting the child or with respect to cancellation or rescheduling of pick-up or drop off times. He is also seeking costs against the respondent on a solicitor and client basis or Class IV Tariff costs.

Cyber bullying is unacceptable to the Courts, and should be to all of us. Cyber bullying via Facebook is particularly hateful, as the lies that the cyber bully states go so far, and the victim has no remedy, other than to sue, or in an extreme case to have the bully charged under the Criminal Libel Provisions of the Criminal Code. He or she can not answer the false allegations, and if he or she attempts to, it engages and empowers the bully rather than chastises him.

There are two remedies available to those of us who learn of cyber bullies and their actions. When you read their posts, reply and let them know that their conduct is unacceptable, and follow up immediately by unfriending them, and whatever you do, do not repost their comments. Prior to reposting, ask yourself, would you want this said about you?

I did run for Political Office – if you call running for municipal office, politics. I can appreciate how much work offering to work for the people does entail. Cyber bullies pose a particular threat to all political candidates, as they seem to know no limits in what they will say to poison the environment for the candidate whom they do not like. We have to be particularly vigilant in denouncing the cyber bullying of our political candidates, otherwise we will have no candidates.

When you see someone reposting untested allegations about a candidate, which imperil their livelihood and good name to paraphrase the words of the great New York Trial Lawyer Louis Nizer “weaving an inky black film of deceit to obscure the vision of the electorate” please do not repost without verification, and unfriend the cyberbully.

Incidentally, the reference to Louis Nizer is from his book “My Life in Court,” in which he set out a libel trial that he ran on behalf of Quentin Reynolds, a famous Second World War correspondent, who was defamed by a muckracking journalist Winfield Pegler, by his labelling of Reynolds as a communist in the McCarthy era in the 1950’s.

While I am on the subject of Louis Nizer, one of his other quotes seems very timely. -When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.
Louis Nizer

Finally as a miscellaneous shout out to my friends in the Welland Ats community, like James Takeo, Frank Crites and Craig Elcich, Louis Nizer’s take on artists:

“A man who works with his hands is a laborer; a man who works with his hands and his brain is a craftsman; but a man who works with his hands and his brain and his heart is an artist.”

An Absolutely Essential Form for all Family Law Lawyers and Litigants – For Free

If you practice family law, or are a family law litigant, or know one, or know someone who is trying to get through a family law action on their own, this is probably the one entry this year that you must like in order to get it out. This gem is a link to the Province’s Suggested Standard Orders Clauses. If you ever wondered what do I claim in a Family Law Action, or what do I put in my draft order, or my offer to settle, this the file to have downloaded. It is almost impossible to find on the Province’s Web site which is why I am reproducing it here.

This link to this form is: http://www.ontariocourtforms.on.ca/forms/family/clauses/Standard-Clauses-for-Orders-EN.doc

Are You Actually Married if the Ceremony was performed by someone not licenced to perform marriages?

Wow, two postings in one day. I meant to share this case earlier, but I did not get a chance to do so.

This is a decision of Justice Victor Mitrow, who was an experienced family law litigator before his appointment. You see you get the whole scoop here, not just the dry details.

The case Matthews v. Mutiso 2014 CarswellOnt 9313, 2014 ONSC 4010, [2014] W.D.F.L. 3375, 242 A.C.W.S. (3d) 878, 46 R.F.L. (7th) 248

In this case the parties thought that they were married by a person licenced to perform marriages, but were subsequently told by the province that the person was not licenced to perform marriages.

Justice Mitrow found that there was the four elements necessary to create a valid binding marriage.

From the case:

The Law
32      Section 31 of the Marriage Act states as follows:
If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.
33      In Isse v. Said, 2012 ONSC 1829 (Ont. S.C.J.), D. A. Broad J. canvassed s. 31 of the Marriage Act on the facts before him. The four necessary elements for s. 31 to apply are summarized as follows by Broad J. at para. 16:
There are four necessary elements for the deeming provision in paragraph 31 to apply, namely:
1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act;
3. Neither party was under a legal disqualification to contract marriage; and
4. The parties must have lived together and cohabited as a married couple after solemnization.
34      The present case turns on the fourth element: the issue of whether the parties have lived together and cohabited as a married couple after solemnization. The evidence in the present case establishes compliance with the first three elements: that the marriage was solemnized in good faith, that the marriage was intended to be in compliance with the Marriage Act, and that neither party was under a legal disqualification to contract marriage.
Justice Mitrow found that they had met the first three grounds, which are the grounds most often used to obtain an annulment, and found that they had lived together as a married couple after the solemnization of their marriage. In this case the parties only lived together for a few weeks, but it was sufficient to constitute cohabitation as a married couple.
This is a most interesting case as it deals with one of those small points that can bedevil a family law practitioner.

Children of 90 Year Old Widow Added as Parties to a Support Action She Brought Against Her Deceased Husband’s Estate

Brash v. Brash Estate 2014 CarswellOnt 9887, 2014 ONSC 4066, [2014] W.D.F.L. 3594, 242 A.C.W.S. (3d) 539

This is an interesting case, at least interesting to me. This is a case where the widow of the deceased decided to claim an equalization payment and support from her deceased husband’s estate. Each of  the parties had been married before, and each had grown children from previous marriages.  The judge decided that  her children should be added as parties, as under the Family Law Act, they also may have a legal obligation to provide support to their mother.

One of my friends brought an action in St. Catharines many years ago on behalf of a mother against her adult children. This is similar to that one, but in this case the widow wanted her pound of flesh from her husband’s estate, but was ordered, against her wishes to bring her adult children into the action.