REPORTS of FAMILY LAW Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit De La Famille VOLUME 88 (Cited 88 R.F.L

REPORTS OF FAMILY LAW Seventh Series/Septième série Recueil de jurisprudence en droit de la famille VOLUME 88 (Cited 88 R.F.L. (7th)) EDITOR-IN-CHIEF/REDACTEUR´ EN CHEF Philip Epstein, Q.C., L.S.M. Epstein Cole LLP, Toronto, Ontario ASSOCIATE EDITORS/REDACTEURS´ ADJOINTS Aaron Franks, B.COMM., LL.B., M.B.A. Melanie Kraft, LL.B. Roslyn Tsao, LL.B. Ilana Zylberman, LL.B. Epstein Cole LLP, Toronto, Ontario David C. Day, Q.C. E.F. Anthony Merchant, Q.C., B.A., Lewis, Day LL.B., D.ADMIN. St. John’s, Newfoundland Merchant Law Group Regina, Saskatchewan Donald M. Hendy, B.C.L. Harold Niman, B.A., LL.B. Hendy, Greenberg Niman Zemans Gelgoot Montréal, Québec Toronto, Ontario Marie L. Gordon, Q.C. Andrew J. Freedman, CA•IFA, Gordon Zwaenepoel CBV, ASA Edmonton, Alberta Duff & Phelps Toronto, Ontario EDITORIAL STAFF/REDACTION´ Cheryl L. McPherson, B.A.(HONS.) Andrea Benjamin, M.A., J.D. Director, Content Operations — Primary Law & Product Development Manager Quebec Nicole Ross, B.A., LL.B. Julia Fischer, B.A.(HONS.), LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Martin-Fran¸cois Parent, LL.B., LL.M., Barbara Roberts, B.A.(HONS.), LL.B. DEA (PARIS II) Lead Legal Writer Bilingual Legal Writer Jennifer Weinberger, B.A.(HONS.), J.D. Andrea Andrulis, B.A., LL.B., LL.M. Lead Legal Writer Lead Legal Writer Annie Chan, B.A. Content Editor REPORTS OF FAMILY LAW, a national series of topical law reports, is Recueil de jurisprudence en droit de la famille, une série nationale de published twice monthly. recueils de jurisprudence, est publié deux fois par mois.

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[Indexed as: Cunningham v. Seveny] Frances Joyce Cunningham (Appellant) and Yvon Leonard Seveny (Respondent) Alberta Court of Appeal Docket: Edmonton Appeal 1603-0193-AC 2017 ABCA 4 Marina Paperny, Frederica Schutz, Jo’Anne Strekaf JJ.A. Heard: November 29, 2016 Judgment: January 12, 2017 Family law –––– Support — Child support under federal and provincial guidelines — Determination of spouse’s annual income — Shareholding spouses –––– Parties were in 12-year common law relationship which ended in 2000 and there was one child of marriage — Order in 2001 granted mother child support, spousal support and s. 7 Alberta Child Support Guidelines expenses — Father applied for variance based on undue hardship and amounts were reduced in 2002 — In 2014, consent order was granted terminating child support for child who was at time in his early 20s and had ceased attending university — Child returned to post-secondary school full-time and continued to live with mother — Mother applied for retroactive child support, s. 7 expenses and spousal support — Chambers judge accepted father’s submissions that there had been overpayment of child support for one year and underpayment in others during period between 2007 and 2009 and reset father’s Guideline income for those years — Mother appealed — Appeal allowed and matter remitted for rehearing once father had provided full financial disclosure including all relevant information relating to certain expenses deducted from income — Sections 18-21 of provincial Guidelines recognize that taxable income declared in tax return completed by self-employed parent or parent who was shareholder, director or officer of corporation whose income derived from corporation or business undertaking may not fairly reflect amount of parent’s annual income for child support purposes — There was no indication that father provided all information required under s. 21(1)(d)(ii) — This provision includes not only requirement to provide statement of all payments or benefits, but also sufficient explanation to 2 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

facilitate recipient’s assessment of reasonableness of these payments or benefits in context of determining income available for discharge of child support obligations — Court could not make informed decision under income sections of Guidelines unless and until full and complete disclosure was made under s. 21(1) or (2) — Parent challenging reasonableness of corporate or business expenses was not legally required to first establish prima facie case that such expenses were unreasonable before disclosure became necessary — In matters concerning child support, required disclosure arose at outset and continued to be obligation of disclosing parent throughout duration of all child support proceedings — Obligation to provide reasonable explanation for expenses fit soundly within initial onus on claiming parent under s. 21 to provide adequate disclosure on their corporate and personal income and expenses — Placing disclosure obligations on self-employed parent or on parent who derived income from closely- held corporation or other form of business arrangement squarely and purposively met objectives of child support guidelines. Cases considered by Schutz J.A.: Goett v. Goett (2013), 2013 ABCA 216, 2013 CarswellAlta 987, 33 R.F.L. (7th) 301, 85 Alta. L.R. (5th) 190, 553 A.R. 275, 583 W.A.C. 275, [2013] A.J. No. 616 (Alta. C.A.) — considered Hickey v. Hickey (1999), [1999] S.C.J. No. 9, 1999 CarswellMan 254, 1999 Car- swellMan 255, 172 D.L.R. (4th) 577, 240 N.R. 312, 46 R.F.L. (4th) 1, [1999] 8 W.W.R. 485, 138 Man. R. (2d) 40, 202 W.A.C. 40, [1999] 2 S.C.R. 518 (S.C.C.) — referred to McCaffrey v. Dalla-Longa (2008), 2008 ABQB 183, 2008 CarswellAlta 408, 441 A.R. 122, 67 R.F.L. (6th) 12, [2008] A.J. No. 335 (Alta. Q.B.) — considered Roseberry v. Roseberry (2015), 2015 ABQB 75, 2015 CarswellAlta 153, 57 R.F.L. (7th) 162, 13 Alta. L.R. (6th) 215 (Alta. Q.B.) — considered Roseberry v. Roseberry (2015), 2015 ABCA 218, 2015 CarswellAlta 1146, 68 R.F.L. (7th) 30 (Alta. C.A.) — referred to S. (D.B.) v. G. (S.R.) (2005), 2005 ABCA 2, 2005 CarswellAlta 18, 7 R.F.L. (6th) 373, [2005] A.J. No. 2, 249 D.L.R. (4th) 72, 38 Alta. L.R. (4th) 199, 361 A.R. 60, 339 W.A.C. 60, [2005] 5 W.W.R. 229 (Alta. C.A.) — followed S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2006] S.C.J. No. 37, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231, [2005] S.C.C.A. No. 100 (S.C.C.) — referred to Wildeman v. Wildeman (2014), 2014 ABQB 732, 2014 CarswellAlta 2313, 53 R.F.L. (7th) 113, 603 A.R. 335 (Alta. Q.B.) — considered Cunningham v. Seveny 3

Statutes considered: Family Law Act, S.A. 2003, c. F-4.5 Generally — referred to s. 65(1) — considered s. 65(4) — considered Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 12.41 — considered R. 12.42 — considered R. 12.42(2) — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to Family Law Act, S.A. 2003, c. F-4.5 Alberta Child Support Guidelines, Alta. Reg. 147/2005 Generally — referred to s. 7 — considered ss. 15-20 — referred to s. 18 — considered s. 18(2) — considered ss. 18-21 — pursuant to s. 19 — considered s. 19(2) — considered s. 21 — considered s. 21(1) — considered s. 21(1)(d)(i) — considered s. 21(1)(d)(ii) — considered s. 21(2) — considered

APPEAL by mother from judgment resetting father’s income for period respecting claim for retroactive child support.

Frances Joyce Cunningham, Appellant, for herself M.L. Furman, for Respondent 4 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Schutz J.A.: Introduction 1 Who bears the burden of proof under sections 18–21 of the Alberta Child Support Guidelines, Alta Reg 147/2005 [Guidelines], where a parent is self–employed or controls a corporation, to demonstrate that certain business expense deductions being claimed are reasonable for the purposes of calculating income for child support? The short answer is the person who is claiming them. 2 The self–represented appellant, Ms Frances Cunningham, appeals a chambers decision varying the respondent’s Guideline income for the years 2007 to 2009 on her application for retroactive child support. The appellant argues that the chambers judge erred in relying on the income calculations submitted by the respondent in determining income pursuant to the Guidelines. And, in doing so, effectively placed an onus on the appellant to demonstrate that the respondent’s corporate expenses were unreasonable and should be imputed to his income. 3 For the reasons that follow, the appeal is allowed and this matter is remitted to the Court of Queen’s Bench for a re–hearing once the respondent has provided full financial disclosure, including all relevant information relating to certain expenses deducted from income, whether in the partnership or in his own professional corporation, which disclosure shall be made forthwith.

Background 4 The appellant and the respondent were in a 12–year common law relationship which ended in 2000. There is one child of the marriage, a son, born in 1991. A 2001 Order granted the appellant child support, spousal support and section 7 expenses. The amounts set out therein were de- creased in a subsequent Order granted in mid–2002, after the respondent applied for a variance based on undue hardship. 5 The payments as varied remained unchanged until May 2014 when a Consent Order was granted terminating child support; at the time, the child of the marriage was in his early 20’s and had ceased attending university. Spousal support payments continued. In the interim period between the 2002 Order and the 2014 Order, the respondent had moved to Toronto (in 2010), re–married and had assumed new parenting responsi- bilities. Although he continued practising law until his retirement in 2015 (after which he obtained a position with an Ontario tribunal), his law Cunningham v. Seveny Schutz J.A. 5

partnership continued to be based in Edmonton, Alberta and he continued serving clients in Alberta. The respondent’s tribunal appointment will expire in May 2017. 6 The appellant previously worked for Canada Post, but has been on disability income since 1991. 7 The parties’ child has now returned to post–secondary school full–time and continues to live with the appellant. There is a disagreement between the parties as to the extent to which the son suffers from a hearing impairment or other fine and gross motor skills problems. 8 The appellant ultimately brought the application under appeal, heard in June 2016, in which she sought retroactive child support, section 7 expenses and spousal support. She contended that the respondent had not been honest about his income and expense calculations while practising with the law partnership, or in respect of his professional corporation which was incorporated in 2010, after she filed an application to disclose under the Family Law Act, SA 2003, c F–4.5 in May 2011. 9 Following the June 2016 hearing, the Court below accepted the respondent’s submission that there had been overpayment of child support for one year, and underpayment in others during the period between 2007 and when the child reached the age of majority in 2009. In resetting the respondent’s Guideline income for those years, the chambers judge stated: . . . I’m going off [the respondent’s counsel’s] chart because Mr. Seveny has sworn in his affidavit the process whereby he withdraws from his firm after the firm has expensed the firm expenses but that goes into the [professional corporation] and he has further expenses that only the [professional corporation] has. There is no evidence to the contrary. 10 Adjustments were also made to the section 7 expenses for those years. With respect to any subsequent years, the Court held that before anything further could be ordered after 2009, more information was needed with respect to the section 7 expenses, particularly the cost of the child’s education and his personal income. The appellant’s application to vary spousal support was also adjourned for further argument by both parties; however, the Court found that the respondent’s Guideline income declared for the years 2007, 2008, and 2009 was also accepted for the purpose of calculating spousal support. 11 The respondent takes the position on appeal that he provided what was required by the Notice to Disclose, as well as other information 6 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

sought by the appellant, and the Court below made no error in setting income based on the respondent’s Line 150 income as stated by him. 12 The appellant contends that the Court below erred by misappre- hending the respondent’s income and the evidence pertaining to the respondent’s deducted expenses and, further, misapplied the onus of proof. 13 The appellant’s assertion that respondent’s counsel gave evidence at the hearing is without substantive merit.

Standard of Review 14 As stated in Goett v. Goett, 2013 ABCA 216 at para 9, 553 A.R. 275 (Alta. C.A.) [Goett], this Court will only interfere with a child support order if there has been an error in principle, a misapprehension of the evidence, or the award is clearly wrong. The refusal to exercise the discretion to impute income is subject to the same standard: Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras 10–12, 172 D.L.R. (4th) 577 (S.C.C.).

Applicable Legislation 15 In this case, the relevant child support provisions are found in the Guidelines. In matters involving a parent who is also a shareholder, director or officer of a corporation, the following provisions apply: Shareholder, director or officer 18(1) Where a parent is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent’s annual income as determined under section 16 does not fairly reflect all the money available to the parent for the payment of child support, the court may consider the situations described in section 17 and determine the parent’s annual income to include (a) all or part of the pre–tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year, or (b) an amount commensurate with the services that the parent provides to the corporation, provided that the amount does not exceed the corporation’s pre–tax income. (2) In determining the pre–tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or Cunningham v. Seveny Schutz J.A. 7

other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre–tax income, unless the parent establishes that the payments were reasonable in the circumstances. Imputing income 19(1) The court may impute the amount of income to a parent that it considers appropriate in the circumstances, and those circumstances include the following: (a) the parent is intentionally under–employed or unemployed, except where the under–employment or unemployment is required by the needs of a child of the parents or any child under the age of majority or by the reasonable educational or health needs of the parent; (b) the parent is exempt from paying federal or provincial income tax; (c) the parent lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the parent’s property is not reasonably uti- lized to generate income; (f) the parent has failed to provide income information when under a legal obligation to do so; (g) the parent unreasonably deducts expenses from income; (h) the parent derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; (i) the parent is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. 8 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(2) For the purpose of subsection (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). Income Information Obligation of applicant 21(1) A parent who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application: (a) a copy of every personal income tax return filed by the parent for each of the 3 most recent taxation years; (b) a copy of every notice of assessment and reassessment issued to the parent for each of the 3 most recent taxation years; (c) where the parent is an employee, the 3 most recent statements of earnings indicating the total earnings paid in the year to date, including overtime or, where such statements are not provided by the employer, a letter from the parent’s employer setting out that information, including the parent’s rate of annual salary or remuneration; (d) where the parent is self–employed, for the 3 most recent taxation years (i) the financial statements of the parent’s business or professional practice, other than a partnership, and (ii) a statement showing a breakdown of all sala- Cunningham v. Seveny Schutz J.A. 9

ries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent does not deal at arm’s length; (e) where the parent is a partner in a partnership, confirmation of the parent’s income and draw from, and capital in, the partnership for its 3 most recent taxation years; (f) where the parent controls a corporation or has an interest of 1% or more in a privately held corporation, for its 3 most recent taxation years (i) the financial statements of the corporation and its subsidiaries, and (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length; (g) where the parent is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s 3 most recent financial statements; (h) where the parent is a student, a statement indicating the total amount of student funding received during the current aca- 10 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

demic year, including loans, grants, bursaries, scholarships and living allowances; (i) in addition to any income information that must be included under clauses (c) to (h), where the parent receives income from employment insurance, social assistance, a pension, workers’ compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information. (2) A parent who is served with an application for a child support order and whose income is necessary to determine the amount of the order must, within 30 days after the application is served if the parent resides in Canada or the United States or within 60 days if the parent resides elsewhere, or within another time period specified by the court, provide to the court as well as the other parent, order assignee or other person referred to in section 50(1) of the Act who is seeking child support the documents referred to in subsection (1). (3) Where, in the course of proceedings in respect of an application for a child support order, a parent requests an amount to cover expenses referred to in section 7(1) or pleads undue hardship, the parent who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the parent resides in Canada or the United States or within 60 days if the parent resides elsewhere, or within another time period specified by the court, pro- Cunningham v. Seveny Schutz J.A. 11

vide to the court and the other parent the documents referred to in subsection (1). (4) Where, in the course of proceedings in respect of an application for a child support order, it is established that the income of the parent who would be paying the amount of child support is greater than $150 000, the other parent must, within 30 days after the income is established to be greater than $150 000 if the other parent resides in Canada or the United States or within 60 days if the other parent resides elsewhere, or within another time period specified by the court, provide to the court and the parent the documents referred to in subsection (1). 16 Rule 12.42 of the Alberta Rules of Court, Alta Reg 124/2010 provides that where a written request for financial information has been made under section 65(1) and (4) of the Family Law Act, the information must be provided within one month after the request is received. Further, rule 12.42(2) states: 12.42(2) For the purposes of section 65(1) and (4) of the Family Law Act, the following documents may be requested under this rule: (a) with respect to an application or order for child support, those documents listed in section 21(1) of the Al- berta Child Support Guidelines (AR 147/2005); (b) with respect to an application or order for spousal support or adult interdependent partner support, those documents listed in section 4(1) of the Family Law Act General Regulations (AR 148/2005).

Analysis 17 Goett at paras 10–12, stipulates that the Federal Child Support Guidelines, SOR/97–175 are to be interpreted purposively and are meant to establish a fair standard of support for children which ensures that they will continue to benefit from the financial means of both parents after separation and divorce. The same applies to the provincial Guidelines applicable to this appeal, as the latter guidelines were established for the same purpose and are to like effect. 18 Consistent with the federal guidelines, sections 18–21 of the provincial Guidelines recognize that the taxable income declared in a tax return 12 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

completed by a self–employed parent or a parent who is a shareholder, director or officer of a corporation whose income derives from a corporation or business undertaking, may not fairly reflect the amount of the parent’s annual income for child support purposes. If a court is of the opinion that the amount of the parent’s annual income is not fairly reflected, it may consider some or all of the pre–tax income of the parent’s corporation or an amount commensurate with the services that parent provides to the corporation, as long as that amount does not exceed the pre–tax income of the corporation. It is manifest that a determination of the reasonableness of expenses claimed in reduction of annual income is a core, and critical, aspect of the court’s decision–making function. 19 The appellant asserts that the respondent has failed to provide any receipts or disclosure as to the corporate expenses that were deducted from the income calculations completed by the respondent, and ultimately accepted by the Court below. The respondent submits that he provided everything the appellant requested in terms of disclosure and, furthermore, there was no evidence of wrongdoing by the respondent or that the expenses were not incurred and legitimate, and all were otherwise approved by the Canada Revenue Agency. 20 The respondent’s contention is that it is the appellant who must obtain an expert’s opinion about the respondent’s corporate expenses if she is claiming they are unreasonable, or alternatively, a court should appoint an assessor. In sum, the respondent contends that he fully complied with the applicable rules, guidelines and the disclosure order granted by the Court of Queen’s Bench. Although respondent’s counsel acknowledged that it is common for a corporate accountant to provide an opinion as to what percentage of corporate expenses should reasonably be considered to be of personal benefit, no such opinion or breakdown existed in this case and the respondent was not obliged to produce such an opinion. 21 In S. (D.B.) v. G. (S.R.), 2005 ABCA 2 at para 133, 249 D.L.R. (4th) 72 (Alta. C.A.), rev’d on other grounds 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.), this Court made abundantly clear that “the obligation to provide the proper amount of financial support for a child does not depend on the existence of a duty to disclose. It works the other way around. The duty to disclose is part of the obligation to pay support where the regime requires information about the payor’s income to determine the appropriate level of support.” 22 In our view, the respondent did not fully comply with his disclosure obligations. While his counsel has stated that he provided all financial Cunningham v. Seveny Schutz J.A. 13

statements required under section 21(1)(d)(i) of the Guidelines, there was no indication that the respondent provided all of the information required under section 21(1)(d)(ii) – “a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent does not deal at arm’s length.” 23 The latter provision must also be interpreted broadly for child support purposes where a parent’s corporation or business undertaking is the primary vehicle through which he or she earns income. It includes not only a requirement to provide a statement of all payments or benefits, but also a sufficient explanation to facilitate the recipient’s assessment of the reasonableness of these payments or benefits in the context of determining income available for discharge of child support obligations. 24 This separate and additional requirement to disclosing financial statements under section 21(1)(d)(i) is reinforced by section 18(2) of the Guidelines, which provides that where a Court is of the opinion that a parent’s annual income does not fairly reflect the money available for child support, “all amounts paid by the corporation as . . . payments or benefits . . . must be added to the pre–tax income, unless the parent establishes that the payments were reasonable in the circumstances” (emphasis added). A court cannot make an informed decision under the income sections of the Guidelines (sections 15–20), unless and until full and complete disclosure is made under section 21(1) or (2) of the Guidelines. 25 We endorse the dicta in Roseberry v. Roseberry, 2015 ABQB 75 at paras 61-99, 13 Alta. L.R. (6th) 215 [Roseberry], rev’d on other grounds 2015 ABCA 218, 68 R.F.L. (7th) 30 (Alta. C.A.). To establish a parent’s income for Guideline purposes, income declared at Line 150 of the disclosing party’s annual tax return may not accurately reflect the value of personal benefits that parent receives from self–employment, a partnership or a corporation controlled by the parent, or over which the parent has more than a 1% interest. Common examples include personal use of corporate vehicles, computers, cellphones, personal benefits associated with travel, entertainment and promotional expenses, and other non–arm’s length expenditures. A parent whose income is derived from such a source, where the source deducted expenses for income tax purposes that may have resulted in a personal benefit to the parent and, therefore, may be relevant in determining child support obligations, must disclose those deductions. In addition, if the parent takes the position that 14 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

those deductions did not result in the parent obtaining a personal benefit, an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes. 26 Furthermore, a parent challenging the reasonableness of the corporate or business expenses is not legally required to first establish a prima facie case that such expenses are unreasonable before disclosure becomes necessary. Simply put, in matters concerning child support, the required disclosure arises at the outset and continues to be the obligation of the disclosing parent throughout the duration of all child support proceedings. 27 The content of required disclosure must be sufficient to allow meaningful review by the recipient parent, and must be sufficiently complete and comprehensible that, if called upon, a court can readily discharge its duty to decide what amount of the disclosing parent’s annual income fairly reflects income for child support purposes. The issue is whether full deduction of an expense results in a fair representation of the actual disposable income of the party, and the court must balance the business necessity of an expense against the alternative of using that money for child support: Julien D Payne, “Some Notable Family Law Decisions from 2014 to 2015” (2015) 44:3 The Advocates’ Quarterly 271 at 295. 28 So as to leave no doubt about the correct principle: the evidential and persuasive onus under sections 18–21 of either the federal or provincial Guidelines as to the reasonableness of expenses, rests with the self–employed or corporate parent throughout, and is the most effective means by which to serve the best interests of the child. “Because this information is required in order to properly assess the amount of child support that is payable, its disclosure is part of the obligation to pay support”: Roseberry at para 86. As provided by Yungwirth J in Roseberry, information regarding corporate expenses is within the knowledge, possession and control of the shareholder, director or officer parent, not the challenging parent, and that information is relevant and necessary to determine income for child support guideline purposes. Moreover, the obligation to provide a reasonable explanation for expenses fits soundly within the initial onus on the claiming parent under section 21 of the Guidelines to provide adequate disclosure of their corporate and personal income and expenses. As noted in Roseberry at paras 61 and 67, lack of full disclosure or “[n]on–compliance with disclosure requirements causes great difficulty for litigants, creates a backlog of retro–active support ap- Cunningham v. Seveny Schutz J.A. 15

plications, and most importantly, interferes with the ability of the payor, recipient, and the Court to make a timely and proper assessment.” That is what has occurred in this matter. 29 To the extent that McCaffrey v. Dalla-Longa, 2008 ABQB 183, 441 A.R. 122 (Alta. Q.B.), Wildeman v. Wildeman, 2014 ABQB 732, 603 A.R. 335 (Alta. Q.B.), and other cases suggest a different approach to pre–trial disclosure with respect to the provincial and federal Guidelines, or a shifting of burdens, these cases do not represent the law in Alberta. 30 The respondent’s contention that it is either the appellant’s responsibility to hire, or the Court’s obligation to appoint, an accountant to assess the reasonableness of expenses being claimed is neither correct, nor does it overcome the respondent’s initial obligation to provide full disclosure under the Guidelines. As in Roseberry at paras 91–92, [91] It is not reasonable for the recipient of child support to have to pay a lawyer to question the shareholder spouse, and to embark on other discovery processes, including the hiring of experts, in order to obtain the information that is in the possession or control of the shareholder spouse and is required to make a proper assessment of the income available for child support. That approach utilizes financial resources that would otherwise be available for the children in the care of the recipient of child support and goes against the objectives of the Guidelines. [92] Children do not benefit when the costs of obtaining proper disclosure exceed the benefit of the increased support. Recipients of child support are sometimes left in the position of choosing not to pursue complete disclosure rather than incurring significant costs for an uncertain outcome. It is the disclosing parent who has the financial information, and it is therefore he or she who bears the responsibility to provide relevant and material pre–trial disclosure. 31 Moreover, the respondent’s proposition that the expenses claimed have been approved for income tax purposes and should thereby be found to be reasonable is neither persuasive, nor is it the test for analyzing those expenses when calculating Guideline income for child support purposes. Expense deductions can legitimately be made under the In- come Tax Act, RSC 1985, c 1 (5th Supp) to decrease corporate or personal tax exposure. But, calculating Guideline income for child support purposes engages an entirely different legislated methodology, as the disclosure requirements of section 21 make clear. Moreover, as provided in section 19(2) of the Guidelines, “the reasonableness of an expense de- 16 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

duction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).” Child support is the right of the child. A parent’s legal obligation to pay child support that fairly reflects the parent’s income in accordance with child support guidelines is not to be constrained or limited by income tax statutes that may confer entitle- ments in relation to deductibility of business expenses. 32 In family law matters, although disclosure obligations are modified as to the method of disclosure in rule 12.41 by replacing the standard affidavit of records with the Notice to Disclose, the basic disclosure obligation under Part 5 is the same. In most cases, pre–trial disclosure utilizing the Notice to Disclose will be sufficient to achieve the purposes of that disclosure because this method of disclosure will create a solid and fair plat- form for settlement. 33 Less commonly, threshold pre–trial disclosure via the Notice to Dis- close may need to be followed by some form of questioning, this being a further method of pre–trial discovery of relevant and material information. Whether additional steps must be taken following threshold disclosure will depend on the circumstances, with court advice and directions as and when needed. Logic compels the view, however, that expenses claimed by closely–held corporations, and sole proprietorship business arrangements will more likely justify the expenditure of more time and money on further inquiries than would other primarily arm’s–length business arrangements. 34 In this case, for example, the respondent probably had little control over the law partnership expenses, and it is quite likely that the expenses claimed by the law partnership as a business entity conferred no personal benefit on the respondent. Accordingly, unless there was something in the relevant and material disclosure made by the law partnership that raised a legitimate concern about any of the claimed expenses, the appellant might reasonably assume their fundamental legitimacy. Examples of expenses that might be assumed to be legitimate would be the arm’s–length premises lease and triple net costs, normal firm staffing costs, and other reasonable ordinary course of business expenditures. (Or, had this case involved a larger law partnership, then relevant and material disclosure might have been most quickly and cheaply achieved by having the managing partner provide a letter confirming that expenses claimed in the partnership financial statements conferred no personal benefit on the disclosing parent.) Here, scrutiny of expenses properly fo- cussed on the disclosing parent’s professional corporation, over which he Cunningham v. Seveny Schutz J.A. 17

presumably had sole control. In short, the level of scrutiny that is justified will be commensurate with the level of control the disclosing parent has over the business entity’s overall financial choices. 35 Simply put, parties ought not to be put to time–wasting, money–draining line–by–line justifications of every dollar that has been spent. In keeping with the foundational rules, pre–trial disclosure must not become a process that wholly consumes the very parental resources that otherwise would be available for child support. And, parties must bear in mind that supervising courts will continue to take a very dim view of litigation antics or abuses that detract from, or thwart, the overarching objectives of child support legislation, the foundational rules and disclosure obligations. 36 With this in mind, the four fundamental and pressing objectives of child support guidelines are usefully reiterated: 1) to establish a fair standard of support for children that ensures they benefit from the financial means of both parents; 2) to reduce conflict and tension between parents by employing an objective calculation for child support; 3) to improve efficiency of the legal process by giving courts and parents guidance in setting levels of child support and encouraging settlement; and finally, 4) to ensure consistent treatment of parents and children who are in similar circumstances. These objectives reflect not only our collective standards as a society, but also key public policy principles relating to the support of our children. It is through the broad lens of these objectives and principles that the provisions of sections 18–21 of the Guidelines must be viewed, interpreted, and applied. Placing disclosure obligations on the self–employed parent or on the parent who derives income from a closely–held corporation or other form of business arrangement squarely and purposively meets these objectives.

Conclusion 37 The appeal is allowed. Paragraphs numbered 1 and 2 of the Order granted June 30, 2016 and filed July 14, 2016 are set aside, as is any conclusion of the lower court that may be seen to be a conclusion in respect of income related to a future determination of retroactive spousal support. 38 Once the respondent has provided adequate disclosure, which disclosure shall be provided forthwith, the Court of Queen’s Bench shall re–hear the appellant’s application. In the interim, so as to minimize any potential prejudice to the appellant, the effect of this appeal shall be 18 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

stayed, with the result that the Order appealed from shall remain fully enforceable until the conclusion of the re–hearing. 39 Nothing in these reasons shall preclude either party from raising evidence and argument as they see fit at the re–hearing.

Paperny J.A.:

I agree.

Strekaf J.A.:

I agree. Appeal allowed. L. (N.) v. M. (R.R.) 19

[Indexed as: L. (N.) v. M. (R.R.)] N.L. (Applicant / Respondent on Appeal) and R.R.M. (Respondent / Appellant) and D.M. and M.M. (Children / Respondents on Appeal) and Chief of Police, Toronto Police Services (Third Party / Respondent on Appeal) Ontario Court of Appeal Docket: CA C61823, C62184 2016 ONCA 915 K.M. Weiler, R.A. Blair, K. van Rensburg JJ.A. Heard: September 22, 2016 Judgment: December 5, 2016 Family law –––– Custody and access — Factors to be considered in custody award — Conduct of parent — Parental alienation –––– Parties married in 1996 and had two sons born in 1997 and 1999 — Both parents were verbally aggressive and physically violent — Parties separated in 2012 and sons remained in mother’s primary care for three years following separation — Final order for custody made in February 2015 incorporated, on consent, terms of arbitration award granting sole custody for sons to father — Arbitrator found that father’s relationship with sons was seriously damaged by campaign of parental alienation by mother — Order prohibited communication between sons and mother and between sons — Older son refused to go with father, younger son ran away from father, and both sons refused to attend reunification treatment — Sons continued to reject order and refuse all contact with father — Police were called to enforce order in respect of younger son only — Police made some attempts but did not persist — Police successfully brought motion to remove police enforcement provisions from order — Mother was partially successful in motion to change order to provide her with custody of sons — Father brought motion to enforce existing custody order — Sons supported both motions to change order and asked that there be no custody order — Father appealed and asked court to reinstate prior final custody order granting him exclusive custody of older son — Appeal dismissed — Motions judge carefully considered father’s submissions and gave cogent reasons for rejecting them, having regard to older son’s best interests — In absence of any palpable and overriding error in exercise of discretion, which had not been demonstrated, court cannot intervene in change of custody order. Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — Facilitating access by other parent. 20 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Cases considered by K.M. Weiler J.A.: Daniels v. Canada (Minister of Indian Affairs and Northern Development) (2016), 2016 SCC 12, 2016 CSC 12, 2016 CarswellNat 1037, 2016 Car- swellNat 1038, 395 D.L.R. (4th) 381, [2016] S.C.J. No. 12, 481 N.R. 348, [2016] 1 S.C.R. 99, 355 C.R.R. (2d) 1 (S.C.C.) — referred to Danso-Coffey v. Ontario (2010), 2010 ONCA 171, 2010 CarswellOnt 1290, 65 B.L.R. (4th) 179, 99 O.R. (3d) 401, [2010] 4 C.T.C. 83, (sub nom. Danso- Coffey v. R.) 2010 G.T.C. 1673 (Eng.), 265 O.A.C. 345 (Ont. C.A.) — referred to Decaen v. Decaen (2013), 2013 ONCA 218, 2013 CarswellOnt 3922, 303 O.A.C. 261, [2013] O.J. No. 1549 (Ont. C.A.) — referred to Glegg, Re (2016), 2016 ONSC 5292, 2016 CarswellOnt 13379 (Ont. S.C.J.) — considered Gordon v. Goertz (1996), [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321, 141 Sask. R. 241, 114 W.A.C. 241, [1996] 2 S.C.R. 27, (sub nom. Goertz c. Gordon) [1996] R.D.F. 209, 1996 Carswell- Sask 199, [1996] S.C.J. No. 52, 1996 CarswellSask 199F (S.C.C.) — followed Khadr v. Canada (Prime Minister) (2010), 2010 SCC 3, 2010 CarswellNat 121, 2010 CarswellNat 122, 71 C.R. (6th) 201, 251 C.C.C. (3d) 435, 397 N.R. 294, 315 D.L.R. (4th) 1, [2010] S.C.J. No. 3, (sub nom. Canada (Prime Minister) v. Khadr) [2010] 1 S.C.R. 44, (sub nom. Canada (Prime Minister) v. Khadr) 206 C.R.R. (2d) 1 (S.C.C.) — referred to L. (A.G.) v. D. (K.B.) (2009), 2009 CarswellOnt 188, 93 O.R. (3d) 409, [2009] O.J. No. 180, 65 R.F.L. (6th) 146 (Ont. S.C.J.) — referred to Ladisa v. Ladisa (2005), 2005 CarswellOnt 268, 193 O.A.C. 336, 11 R.F.L. (6th) 50, [2005] O.J. No. 276 (Ont. C.A.) — referred to McBride v. McBride (2013), 2013 CarswellOnt 1536, 2013 ONSC 938 (Ont. S.C.J.) — referred to O. (C.) v. O. (D.) (2010), 2010 ONSC 6328, 2010 CarswellOnt 9698, [2010] O.J. No. 5465 (Ont. S.C.J.) — referred to Pettenuzzo-Deschene v. Deschene (2007), 2007 CarswellOnt 5095, 40 R.F.L. (6th) 381, [2007] O.J. No. 3062 (Ont. S.C.J.) — referred to Sharpe v. Sharpe (1974), 14 R.F.L. 151, 1974 CarswellOnt 95, [1974] O.J. No. 89 (Ont. H.C.) — referred to Supple v. Cashman (2014), 2014 ONSC 3581, 2014 CarswellOnt 7991, 45 R.F.L. (7th) 273 (Ont. S.C.J.) — referred to Tock v. Tock (2006), 2006 CarswellOnt 8553, [2006] O.J. No. 5324 (Ont. S.C.J.) — referred to Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 20 — considered L. (N.) v. M. (R.R.) K.M. Weiler J.A. 21

s. 20(7) — considered Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 2(1) “child of the marriage” — considered s. 2(1) “child of the marriage” (a) — considered s. 16(1) — considered s. 17(5) — considered Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A Generally — referred to Rules considered: Family Law Rules, O. Reg. 114/99 R. 14(1) — considered R. 14(2) — considered R. 25(19)(d) — considered

APPEAL by father from decision reported at L. (N.) v. M. (R.R.) (2016), 2016 ONSC 809, 2016 CarswellOnt 1639, [2016] O.J. No. 601, 76 R.F.L. (7th) 428 (Ont. S.C.J.), which granted motion to change final custody order with respect to two sons.

Gary S. Joseph, Elissa H. Gamus, Meghann P. Melito, for Appellant Michael J. Polisuk, for Respondent, N.L. Jesse L. Mark, Emily Chan, for Respondents, D.M. and M.M. Sharon C. Wilmot, for Respondent, Toronto Police Services

K.M. Weiler J.A.:

1 The motions judge granted a motion to change a final custody order with respect to two boys, M.M. and D.M., born in 1997 and 1999 respectively [reported at 76 R.F.L. (7th) 428]. The appellant father appeals and asks this court to reinstate the prior final custody order granting him exclusive custody of D.M. He also appeals a related change order relieving the Toronto Police Services Board from enforcing the provisions of the custody order. By way of cross-appeal, the younger son, D.M., seeks a declaration that he has withdrawn from parental control and is therefore no longer a child of the marriage for whom a custody order can be made. 2 For the reasons that follow, I would dismiss the appeal as well as the cross-appeal. 22 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

A. FACTS 3 The appellant father and respondent mother were married in 1996. They initially separated in November 2005, but reconciled in August 2006. They separated finally in January 2012. The sons remained in the mother’s primary care throughout the three years following the separation. 4 The parties submitted their parenting and some economic issues to a senior family law specialist for mediation and arbitration. The arbitrator conducted a hearing in September and October 2014, which lasted 14 days, 12.5 of which were spent on parenting issues. 5 The arbitrator found that each parent had been verbally aggressive and physically violent. Between 2005 and 2012, the father was charged with assault three times. He was acquitted on each charge. The mother was charged with assaulting the father in September 2012. She was convicted, but was successful on appeal. Although a new trial was ordered, the Crown elected not to proceed. 6 The arbitrator found that the father’s relationship with his sons was seriously damaged by a campaign of parental alienation by the mother. Relying on uncontroverted evidence from clinical psychiatrist, Dr. Gold- stein, and custody assessor, Barry Brown, that the price of the boys not seeing their father is too high, he concluded that the children deserved the opportunity to have a relationship with both their parents and extended families. Thus, in his award on January 16, 2015, the arbitrator awarded custody of the children to the father. The father was to take the boys to attend the Family Bridges Program,1 an educational and experiential program which aims to resolve issues between parents and alienated children. Although it was unclear whether the award would have the intended result, the arbitrator held, “[I]t is my statutory duty as I see it, to

1 The Family Bridges Program, or “Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships” is an educational and experiential program which aims to resolve issues between parents and alienated children. According to the award of the arbitrator, Herschel Fogelman, dated February 11, 2015, in this particular case, the Program was meant to assist the children in adjusting to living with their father as the custodial parent. The Program includes a workshop phase, generally lasting four days, with their protocol including an unstructured vacation following the workshop, generally five to seven days in duration. There may be follow-up counseling with an Aftercare Special- ist as designated by the Family Bridges team leaders. L. (N.) v. M. (R.R.) K.M. Weiler J.A. 23

take such steps as I feel are reasonable and necessary to give the relationships the best chance of success.” Following the January 16, 2015 award, the arbitrator entertained further submissions on the detailed, operative terms that should be put into a further award governing the parenting arrangements during the Family Bridges Program, including no contact with the mother or any of her relatives. He released an award outlining these operative terms on February 11, 2015. 7 On February 17, 2015, Justice Goodman made an order on consent incorporating the terms of the arbitral award. The order by Justice Good- man provided that the father was to have sole custody of the parties’ two sons, M.M. and D.M. It also required the children to attend the Family Bridges Program with the father and ordered the Toronto Police Ser- vices, and other police forces to “assist as required” to enforce the provisions of the order and specifically to “take all such action as is required to locate, apprehend and deliver the children to the Respondent.” 8 Neither party appealed or sought judicial review of the arbitrator’s awards. 9 The January 16, 2015 arbitral award directed the parties not to inform the children of the arbitrator’s decision. The February 11, 2015 arbitral award reiterated this requirement. On February 17, 2015, the children came to the arbitrator’s office and were informed of the decision. The father claimed the children did not appear surprised, while the mother denied she told the children the terms of the January 16 award. The father alleged that as D.M. was leaving the building with his father to head to the Family Bridges Program, M.M. said to his younger brother, “Re- member the plan” and told him to hide until he turned 16. Neither of the sons denied this. The mother denied there was a plot to defeat the arbitral award. 10 On leaving the building, D.M. ran off and disappeared. He went to his brother, M.M.’s apartment. His mother went there, picked him up, and drove him to a police station. D.M. told the police he did not want to return to the father, but the police turned him over to the father upon seeing the court order from that day. 11 The father and D.M. got in the car to travel to the Family Bridges Program. The motions judge noted the evidence was contradictory on this point, but D.M. got out of the car at a red light or when it slowed down for it. D.M. ran away and again went to his older brother’s apartment. The mother saw him there and deposed that she told him to return 24 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

to his father. D.M. refused to do so, saying he “would rather live on the street” and ran away again. 12 The father filed a missing person report with the Toronto and Durham police. D.M. called the police on February 20, 2015, saying he was not missing, did not wish to live with his father, and refused to give his contact information. 13 On February 23, 2015, the Chief of Police filed a motion to remove the police enforcement clause from the order. 14 Over the following months, the father received conflicting information from the two police forces about the investigation. The Toronto Po- lice received an additional call from D.M. on April 22, 2015 and he met with police officers in person on May 6, 2015. The police made a note saying they were concerned for his safety if they enforced the custody order and closed their missing person investigation. 15 The mother brought a motion to change the custody order by awarding custody to her or, alternatively, that there be no custody order. 16 At the time of the motions judge’s change order in December 2015, M.M. was at university but resided with the mother when he was not in school. D.M., age 16, lived alone in an apartment and was completing high school.

B. DECISION BELOW 17 With respect to the Chief of Police’s motion, the motions judge noted that there were two technical procedural problems, but the case proceeded as if proper procedure had been followed. The motions judge found that the Chief had standing under either rule 14(1)-(2) or 25(19)(d) of the Family Law Rules, O. Reg. 114/99. The motions judge held that motions under those rules do not require a material change. The motions judge refused to deny the Chief a right of audience because of any reported improper actions or comments by individual members of the force. 18 The motions judge rejected the father’s arguments, made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and those invoking the Superior Court’s parens patriae jurisdiction, in aid of his submission that the children were being unlawfully withheld. Instead, the motions judge concluded that the police enforcement clause should be removed from the order, noting that it was not in the children’s best interests to maintain a provision for physical compulsion as it was unlikely to work and L. (N.) v. M. (R.R.) K.M. Weiler J.A. 25

would likely make it harder for the relationship between the father and sons to be repaired. 19 The motions judge next considered the parents’ motions for custody and access. He found that both sons were “children of the marriage” within the meaning of the Divorce Act at the time of the final custody order and held that, although the older son was now over 18, he might still qualify as a child of the marriage, at least for some purposes. 20 The motions judge discussed the issue of material change in circumstances, noting that this was a pre-requisite to the court’s exercise of jurisdiction to change the custody and access terms of the February 17, 2015 order. 21 He found that there were material changes, including: • The older son turned 18 and younger 16; • The father effectively abandoned his effort to secure custody or control of the older son; • The younger son physically resisted going into the father’s custody; • Almost one year has passed since the order was made and no contact had been restored between the sons and the father; • Both sons appeared before the court to assert they cannot be compelled to go to a reunification program, or to live where they do not want to live; and • Police were unwilling to enforce the order. 22 The motions judge also considered the issue of withdrawal from parental control. He noted that the sons stated that they wanted to establish their own lives, but did not show that they have set up homes of their own, struck out from the former family unit on a new path of associa- tions, or made their own decisions about medical care. He further noted that the younger son lives in an apartment rented by the mother and the older son returns to the mother’s home when he is not attending university courses. The motions judge concluded that the evidence did not establish that either of the sons had withdrawn from parental control and thus they remained children of the marriage. 23 Having found a change of circumstances, the motions judge held it was not in the children’s best interests to continue the existing custody order. Given the extent of acrimonious litigation between the parents he could not make an order for joint custody. The older son was 18 and a 26 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

custody order was not needed for any purpose. The younger son was almost 17, had registered in school on his own, and did not need anyone to consent to health care on his behalf. Thus, for practical purposes he did not need a custody order either. The motions judge decided to make no custody order. At para. 150 of his reasons, he stated: To be clear, my decision is that no person has custody or access rights over either of the sons under any statute or under any non statutory jurisdiction of the court. Each of the sons is his own master in that respect. 24 The motions judge further held that the parents did not have any right to secure information from providers of medical or educational services, or from each other. Access to information about each son was entirely within D.M.’s and M.M.’s own control.

C. ISSUES 25 The major issues in this appeal can be characterized as follows: 1. Did the motions judge err in finding a material change of circumstances? 2. Did the motions judge err in changing the custody order from Jus- tice Goodman’s February 17, 2015 custody order? 3. Should the children be ordered to attend the Family Bridges Pro- gram? Did the motions judge err in finding that the Family Bridges Program was a medical treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2 that required the children’s consent? 4. Did the motions judge err in removing the police enforcement clause from the order? 5. Have the children withdrawn from parental control (raised on cross-appeal)?

D. ANALYSIS (1) The motions judge did not err in finding a material change of circumstances 26 A court cannot vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child,” as required by s. 17(5) of the Divorce Act. 27 The father’s preliminary argument is that the trial judge erred in not ordering a full hearing. Such a hearing was required to determine L. (N.) v. M. (R.R.) K.M. Weiler J.A. 27

whether there had been a material change in circumstances, rather than relying on conflicting affidavit evidence. 28 It does not appear from the record that any party sought to question the other on their affidavit evidence. Moreover, there are no significant credibility findings required to be made. I would thus dismiss this preliminary argument. 29 The father’s first argument is that the trial judge erred in finding a change of circumstances. He submits that the change of circumstances found is not in accordance with the decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), at paras. 10- 13. That decision states that there are three components to a material change of circumstances: 1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs; 2) the change must materially affect the child; and 3) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. 30 The father submits that it was foreseeable that the children would age, and the other factors that the trial judge mentioned all go to the ongoing conflict between the father and D.M. It was foreseeable that D.M. would resist being in the custody of his father and going into the Family Bridges Program. There was no material change in circumstances as the relationship between the father and D.M. had not changed. The trial judge did not give sufficient weight to the arbitrator’s decision in finding that there had been a material change of circumstances. The arbitrator found that the relationship between the children and their father had been good at one time and that the Family Bridges reunification program was the last opportunity to salvage the relationship. There was evidence that it was not in the long term best interests of the children not to have a relationship with their father. Self-help is not to be encouraged. Enforce- ment of the consent court order embodying the arbitrator’s decision is essential to respect the rule of law. 31 The father seeks to isolate the individual factors found by the trial judge which, considered as a whole, amount to a change of circumstances. In considering whether there had been a change in the condition, means, needs and circumstances of the child, the trial judge was entitled to look at the intervening circumstance, namely that the younger son ran away and went underground. What the father seeks to have us do is take a different view of the evidence that was before the trial judge. While resistance to the consent custody order was foreseeable, what was not 28 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

foreseen was the extreme resistance by D.M. He put his health and safety at risk in opposing the custody order and the evidence indicated he would continue to do so. The fact that D.M. was now over 16 meant that he had a greater capacity to frustrate the consent custody order. The trial judge did not err in holding that there had been a material change of circumstances.

(2) The motions judge did not err in changing the custody order 32 The father’s second argument is that the trial judge erred in concluding that the risk to D.M. of continuing the custody order in his favour outweighed the impact on him if he did not develop a relationship with his father. He submits that parental alienation has been found to be akin to emotional abuse and is not in D.M.’s long term best interests. It was an error for the trial judge to rule based on the wishes of D.M. because his voice is that of an alienated child, not an independent voice. The father submits that the best interests of D.M. require reinstatement of the final order. 33 In support of his submission, the father cites a number of decisions in which he argues the court ignored the child’s wishes because those wishes were irreparably tainted by the alleged parental alienation. See, for example, L. (A.G.) v. D. (K.B.) (2009), 93 O.R. (3d) 409 (Ont. S.C.J.), at paras. 143-149; Pettenuzzo-Deschene v. Deschene (2007), 40 R.F.L. (6th) 381 (Ont. S.C.J.), at para. 55; Tock v. Tock, [2006] O.J. No. 5324 (Ont. S.C.J.), at paras. 121-123; O. (C.) v. O. (D.), 2010 ONSC 6328 (Ont. S.C.J.), at para. 16; Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261 (Ont. C.A.), at paras. 42, 44-45. 34 The father’s submissions are in essence the same submissions he made before the motions judge. At para. 140 of his reasons, the motions judge gave his conclusions on this issue as follows: The wishes of an alienated child may be warped and misconceived, but they are nonetheless real. The father says that the children’s wishes should be disregarded, because they are not truly the children’s own wishes. At this point, does that really matter? The expressed wishes are strong, consistent, and long lasting, and they have been acted on by the children in defiance of the authority of both parents, the arbitrator, the police, and this court’s order. The fact is that the current custody order in favour of the father has not worked. 35 The motions judge acknowledged that the arbitrator accepted the expert evidence that the father had one last chance, in the form of the Fam- ily Bridges residential reunification program, to rebuild a relationship L. (N.) v. M. (R.R.) K.M. Weiler J.A. 29

with his sons. That last chance opportunity had regrettably been missed. He was convinced that D.M. would go into hiding and drop out of school again if he renewed the custody order in favour of the father. It would not be in D.M.’s best interests if his education and career options were disrupted. The motions judge also observed that the two sons were bonded to each other, the mother and her family. Were he to enforce the order the sons would have no family, not even each other (while following the Family Bridges Program). He was of the opinion that it was not in the children’s best interests to maintain these barriers any longer. The motions judge was also of the opinion that renewing the existing custody order would likely only serve to strengthen the children’s opposition to it. 36 I agree with the father’s submission that the jurisprudence indicates the wishes of the child and the best interests of the child are not necessarily synonymous. However, the motions judge referred to this existing jurisprudence as well as the jurisprudence that, as a practical matter, older children will make their own residential choice: see, Supple v. Cashman, 2014 ONSC 3581, 45 R.F.L. (7th) 273 (Ont. S.C.J.), at para 17; Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50 (Ont. C.A.), at para 17. The motions judge carefully considered the father’s submissions and gave cogent reasons for rejecting them, having regard to D.M.’s best interests. In the absence of any palpable and overriding error in the exercise of his discretion, which has not been demonstrated, this court cannot intervene in the change of the custody order.

(3) Disposition on remaining issues on appeal 37 My decision makes it unnecessary for me to consider the issue of whether D.M.’s forced participation in the Family Bridges Program amounted to treatment and required his consent under the Health Care Consent Act, 1996. 38 As the father’s request to reinstate the original custody order in his favour with respect to D.M. has been dismissed, his appeal of the motion judges’ decision removing the enforcement clause in the custody order at the behest of the Chief of Police’s must also fail. 39 The appeal is dismissed. 30 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

E. THE CROSS-APPEAL (1) The motions judge’s order effectively grants the relief requested 40 Both D.M. and M.M. seek an order that no person has custody or access rights over either of them as well as an order that no person may force them to attend or participate in the Family Bridges Program. The father did not appeal the motions judge’s order in respect of M.M. In dismissing the father’s appeal with respect to D.M., above, this court affirmed the motions judge’s order that no person has custody or access rights over him. It follows that no person has custody or access rights over D.M. or M.M. and neither can be forced to attend or participate in the Family Bridges Program. Thus, this requested relief has already in effect been granted.

(2) No additional declaration on D.M.’s withdrawal is required; the motions judge’s declaration stands 41 D.M. also seeks a declaration that he has “withdrawn from parental control and has all of the statutory and common law rights of an independent minor”. 42 Section 2(1) of the Divorce Act defines a “child of the marriage”. For ease of reference the relevant portion is as follows: Child of the marriage means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge... 43 The motions judge held at para. 127 of his reasons that, “There must be some credible evidence of withdrawal from or resistance to the authority of both parents.” On the evidence before him, he was not persuaded that either of the sons had actually withdrawn from their parents’ charge or from parental control. He concluded that they remained “children of the marriage”. 44 The father submits that, as the motions judge held, a child cannot unilaterally withdraw from the control of one parent thereby removing the court’s jurisdiction to make a custody order over him with respect to that parent. Nor can a child who is being supported by a parent be said to have withdrawn from that parent’s control. The father’s position is that D.M. remains a child of the marriage and the motions judge had to make a custody order. He says that he is the only person in whose favour a L. (N.) v. M. (R.R.) K.M. Weiler J.A. 31

custody order can be made having regard to the mother’s conduct in alienating D.M. from him. 45 I disagree that the motions judge was obliged to make a custody order. Section 16(1) of the Divorce Act provides: A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. [Emphasis added.] 46 Even assuming that D.M. continues to be a child of the marriage over whom the court has jurisdiction to make a custody order, s. 16 does not oblige the court to make an order. The use of the word “may” is indica- tive that the court has a discretion which it may or may not choose to exercise. The motions judge was entitled to exercise his discretion as he did and decline to make any order as to custody. Although such orders are rare, they do exist: see, for example, McBride v. McBride, 2013 ONSC 938 (Ont. S.C.J.), Sharpe v. Sharpe (1974), 14 R.F.L. 151 (Ont. H.C.). 47 After rescinding the custody order in favour of the father, the motions judge did not simply refuse to exercise any jurisdiction that he had. Para- graph 2 of his December 19, 2015 order states: There shall be no order respecting the custody of or access to M.M., born July 30, 1997, and M.D., born March 11, 1999 under any statute or any non-statutory jurisdiction of this court. 48 Thus, the presumptive custody provisions contained in s. 20 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 that apply in the absence of a court order or separation agreement have been altered by the court’s order. In this regard I note that s. 20 (7) of the Children’s Law Reform Act states: Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. 49 D.M. agrees with the motion judge’s order insofar as it does not grant any person custody of or access to him. Nonetheless, he seeks, “A declaration that D.M. has withdrawn from parental control and has all of the statutory and common law rights of an independent minor.” 50 In support of his submission D.M. relies, in part, on the decision of Kiteley J. in Glegg, Re, 2016 ONSC 5292 (Ont. S.C.J.), granting similar 32 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

declaratory relief. That decision is under appeal to this court and the reasons are yet to be released. 51 Insofar as declaratory relief is concerned, I note that the jurisprudence is to the effect that the Superior Court’s jurisdiction to grant declaratory relief is not to be exercised in a vacuum; a court must have a reason to exercise its discretion to grant declaratory relief; where legislation exists dealing with the subject matter, the court should consider whether a legislative gap exists that would give rise to a jurisprudential reason for exercising the court’s discretion to grant declaratory relief. See, for example, Danso-Coffey v. Ontario, 2010 ONCA 171, 99 O.R. (3d) 401 (Ont. C.A.), at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose- leaf (2016-Rel. 3), (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can only be granted if it will have practical utility in settling a “live controversy” between the parties: see Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12, 395 D.L.R. (4th) 381 (S.C.C.), at para. 11, Khadr v. Canada (Prime Min- ister), 2010 SCC 3, [2010] 1 S.C.R. 44 (S.C.C.), at para. 46; Brown and Evans, at p. 1-73. None of this jurisprudence was the subject of submissions before us. 52 In any event, in my opinion, para. 2 of the motions judge’s order is a declaration. It is not the precise wording that D.M. seeks. However, D.M. has not shown that the motions judge erred in principle in exercising the inherent discretion of a Superior Court judge to make the declaratory order he did. Accordingly, I would dismiss the cross-appeal.

F. COSTS 53 No costs were ordered by the motions judge at first instance. In the event that this court held the motions judge wrongly exercised his discretion in not awarding costs, he would have awarded the mother costs of $12,500. 54 At the conclusion of this appeal, counsel advised the court of a wish to make submissions in writing once these reasons had been released. Accordingly, any party seeking costs shall serve costs submissions within ten days of the release of these reasons on the party from whom costs are sought. Responding submissions are to be served within a further ten days. There are to be no reply submissions. Submissions are limited to two pages not including a Bill of Costs on a partial indemnity scale which may be attached. L. (N.) v. M. (R.R.) K. van Rensburg J.A. 33

R.A. Blair J.A.:

I agree

K. van Rensburg J.A.:

I agree Appeal dismissed. 34 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: O. (A.) v. E. (T.)] A.O. and A.F. (Appellants / Petitioners) and T.E. (Respondent / Respondent) Saskatchewan Court of Appeal Docket: CACV2876 2016 SKCA 148 Ottenbreit, Whitmore JJ.A., Wilkinson J. (ad hoc) Heard: October 7, 2016 Judgment: November 28, 2016 Family law –––– Custody and access — Factors to be considered in custody award — Best interests of child generally — Multiple factors considered –––– Father was in common law relationship with mother — Mother was pregnant at time of separation from father — Father was not sure of paternity in circumstances and held belief that child was likely not his — Mother and male individual claiming to be child’s birth father placed child for adoption — Child spent time in three different foster homes before being placed with couple for adoption — As result of DNA test, father ascertained he was biological father of child and was intent on parenting her — Parties sought ruling on custody and access, and father was granted custody of child with specified access granted to couple — Couple appealed on basis that trial judge erred in best interests of child analysis — Appeal dismissed — Trial judge reviewed entirety of evidence with care and consideration and structured couple’s access to child in manner that addressed their principal concern, which was fear that they would only be allowed access on ad hoc basis or at father’s whim — Trial judge did not give inordinate emphasis to father’s more significant experience in parenting — In terms of overall parenting capability, it was father’s personality and parenting qualities as much as his experience edging some of parenting considerations in his favour — In trial judge’s analysis, cultural factors were reviewed in context of opportunities available to child in either home — Trial judge did not place unwarranted emphasis on biological connection and no error was found in his reasoning on this aspect — Although trial judge’s reasons may sometimes appear to stress one factor over another, this is inevitable in custody cases that are heavily fact driven and did not open door as redetermination of facts of court of appeal — In terms of weight ascribed to various components of best interests test, trial judge approached task with sensitivity and care and there were no errors in his conclusions. Family law –––– Custody and access — Evidence –––– Father was in common law relationship with mother — Mother was pregnant at time of separation from O. (A.) v. E. (T.) 35 father — Father was not sure of paternity in circumstances and held belief that child was likely not his — Mother and male individual claiming to be child’s birth father placed child for adoption — Child spent time in three different foster homes before being placed with couple for adoption — As result of DNA test, father ascertained he was biological father of child and was intent on parenting her — Parties sought ruling on custody and access, and father was granted custody of child with specified access granted to couple — Couple appealed and sought to introduce fresh evidence on appeal, consisting of psychological evaluation obtained from clinical psychologist, B, that was unavailable until eve of appeal hearing — Diagnosis offered by B was that child suffered from anxious/avoidant attachment disorder — Application for admission of fresh evidence dismissed — First requirement of relevant test was met, as experts at trial acknowledged that attachment disorder could not be diagnosed at child’s level of cognitive development at relevant time — Second requirement was not met, as was not highly relevant to making determination on accurate picture of situation at hand — B’s report was based on select documentary materials provided by couple, which did not include trial judge’s decision — B’s report manifested troubling weaknesses, including insinuation that father was awarded custody on no other basis than fact that he was biological parent — Regarding credibility of report, there was no opportunity to explore B’s qualifications or her opinion — Report had not been subjected to cross-examination or any kind of rigorous questioning that might provide context for child’s statements — Trial judge was fully alive to task of accommodating child’s need for comfort and assurance in making successful transition to father’s primary care. Cases considered by Wilkinson J. (ad hoc): British Columbia Birth Registration No. 99-00733, Re (2000), 2000 BCCA 109, 2000 CarswellBC 256, (sub nom. Birth Registration No. 99-00733 (Re)) 182 D.L.R. (4th) 280, 73 B.C.L.R. (3d) 22, 4 R.F.L. (5th) 17, [2000] B.C.J. No. 251, 217 W.A.C. 193, 133 B.C.A.C. 193, 71 C.R.R. (2d) 224 (B.C. C.A.) — considered Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) (1994), 2 R.F.L. (4th) 313, [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 18 O.R. (3d) 160 (note), 1994 CarswellOnt 376, 1994 CarswellOnt 1157, [1994] S.C.J. No. 37, EYB 1994-67657, 18 O.R. (3d) 160 (S.C.C.) — followed D. (R.) v. Children’s Aid Society of Owen Sound & Grey (County) (2003), 2003 CarswellOnt 3972, 178 O.A.C. 69, 44 R.F.L. (5th) 43, [2003] O.J. No. 3999 (Ont. C.A.) — followed Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193, 220 N.R. 161, 99 B.C.A.C. 161, 162 W.A.C. 161, [1997] 3 S.C.R. 1010, 1997 CarswellBC 2358, 1997 CarswellBC 2359, [1997] S.C.J. No. 108, [1998] 1 C.N.L.R. 14, [1999] 10 W.W.R. 34, 66 B.C.L.R. (3d) 285 (S.C.C.) — referred to 36 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Haider v. Malach (1999), [1999] S.J. No. 315, 1999 CarswellSask 310, 177 Sask. R. 285, 199 W.A.C. 285, 48 R.F.L. (4th) 314 (Sask. C.A.) — considered K. (K.) v. L. (G.) (1985), [1985] 1 S.C.R. 87, [1985] 3 W.W.R. 1, [1985] N.W.T.R. 101, 16 D.L.R. (4th) 576, 57 N.R. 17, 58 A.R. 275, 44 R.F.L. (2d) 113, [1985] S.C.J. No. 7, 1985 CarswellNWT 54, 1985 CarswellNWT 58 (S.C.C.) — followed L. (B.) v. Saskatchewan (Ministry of Social Services) (2012), 2012 SKCA 38, 2012 CarswellSask 232, 393 Sask. R. 57, 546 W.A.C. 57, [2012] 12 W.W.R. 468, [2012] S.J. No. 201 (Sask. C.A.) — followed L. (S.A.) v. H. (K.) (2011), 2011 SKQB 397, 2011 CarswellSask 775, 14 R.F.L. (7th) 437, 384 Sask. R. 263 (Sask. Q.B.) — considered M. (C.G.) v. W. (C.) (1989), 40 B.C.L.R. (2d) 145, 23 R.F.L. (3d) 1, 63 D.L.R. (4th) 216, 1989 CarswellBC 189, [1989] B.C.J. No. 1970 (B.C. C.A.) — considered Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital (1994), [1994] 2 W.W.R. 609, 87 B.C.L.R. (2d) 1, 18 C.C.L.T. (2d) 209, [1994] 1 S.C.R. 114, 110 D.L.R. (4th) 289, (sub nom. Toneguzzo-Norvell v. Savein) 162 N.R. 161, (sub nom. Toneguzzo-Norvell v. Savein) 38 B.C.A.C. 193, (sub nom. Toneguzzo-Norvell v. Savein) 62 W.A.C. 193, (sub nom. Toneguzzo-Norvell v. Savein) [1994] R.R.A. 1, 1994 CarswellBC 101, 1994 CarswellBC 1232, [1994] S.C.J. No. 4, EYB 1994-67076 (S.C.C.) — considered Van de Perre v. Edwards (2001), 2001 SCC 60, 2001 CarswellBC 1999, 2001 CarswellBC 2000, [2001] S.C.J. No. 60, 204 D.L.R. (4th) 257, 94 B.C.L.R. (3d) 199, 19 R.F.L. (5th) 396, [2001] 11 W.W.R. 1, (sub nom. P. (K.V.) v. E. (T.)) 275 N.R. 52, (sub nom. K.V.P. v. T.E.) 156 B.C.A.C. 161, (sub nom. K.V.P. v. T.E.) 255 W.A.C. 161, [2001] 2 S.C.R. 1014, REJB 2001-25876 (S.C.C.) — followed Young v. Young (1993), [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 160 N.R. 1, 49 R.F.L. (3d) 117, 34 B.C.A.C. 161, 56 W.A.C. 161, [1993] R.D.F. 703, [1993] S.C.J. No. 112, 1993 CarswellBC 264, 1993 CarswellBC 1269, EYB 1993-67111 (S.C.C.) — followed Treaties considered: Convention on the Rights of the Child, 1989, C.T.S. 1992/3; 28 I.L.M. 1456; 3 U.N.T.S. 1577; G.A. Res. 44/25 Generally — referred to Article 9 — considered

APPEAL by couple from judgment reported at O. (A.) v. E. (T.) (2016), 2016 SKQB 92, 2016 CarswellSask 178 (Sask. Q.B.), transitioning care of child to child’s biological father; APPLICATION by couple to admit fresh evidence. O. (A.) v. E. (T.) Wilkinson J. 37

Joleen McCullagh, for Appellants Loretta Pete Lambert, for Respondent

Wilkinson J. (ad hoc): I. Introduction 1 This epic custody battle has arisen in uncommon circumstances. A five-year-old child, who I will refer to as C in the body of this judgment, is at the center of the dispute between a biological father and the couple who had intended to become the child’s adoptive parents. 2 The appellants were candidates for adoption of the child and have been the child’s caregivers since C was under a year old. The respondent, the non-consenting biological father, secured access to the child within a few months of C’s placement for adoption with the appellants. For four years he has pressed for C’s return, and for four years the appellants have resisted. A court-appointed custody and access assessor eventually recommended the child be placed in the care of the biological father. 3 Following a four-day trial, the trial judge agreed with the assessor’s recommendations and ordered that the child should be transitioned to the biological father’s home. The appellants appeal that decision. 4 Issues of attachment and potential disruption to the child largely dom- inated this appeal. The appellants seek to fortify their argument with fresh evidence regarding the psychological impact on the child arising from a change in custody. The fresh evidence application will be addressed in the context of its subject matter, the issue of attachment. 5 For the reasons that follow, I conclude the application to admit fresh evidence must be denied and the appeal must be dismissed.

II. Facts 6 The appellants, who I will refer to individually as the Husband and the Wife, are resident in a small north-central community. The Husband is a member of the Cree nation, and is employed in northern work that takes him away from home for lengthy periods. The Wife is a former teacher and resident of Newfoundland. She is of European ancestry but connected to Cree culture through her husband. The Husband’s family is engaged in a traditional lifestyle, and he maintains close ties to the north. The appellants met when both were working in northern Saskatchewan. The Wife is engaged in the delivery of educational programs for parents. 38 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

7 The respondent’s cultural heritage is Nakoda. He lives on a First Na- tion reserve in southern Saskatchewan [FN Reserve]. He has three adult children from his first marriage who are well-educated, stable and responsible individuals. He has two young sons (who were both under the age of 13 at the time of trial) from his second relationship with the biological mother of C. The respondent has sole custody of the two boys. He is a long-time band councillor, has served as a foster parent, and is active in the delivery of child and family services in his community. His family possesses a proud history. His mother [paternal grandmother] is an Elder, a social worker, and played an instrumental part in the establishment of the FN Reserve. She lives in close proximity to the respondent. One of his four sisters lives nearby. The respondent’s four siblings are engaged in social work, education and daycare management. 8 The child was born six months after the biological parents separated. C’s biological mother was involved with another man during her relationship with the respondent. As a result, paternity was unclear. Un- known to the respondent, the child was placed for adoption through the Ministry of Social Services [Ministry] in a community some seven hours’ drive from his residence on the FN Reserve. The biological mother named another individual, not the respondent, as the father of the child. 9 After a number of foster placements for the purposes of adoption, the child was placed with the appellants in November of 2011. C was then under the age of one. A prior adoption placement with another couple had ended abruptly due to the child’s failure to bond with the male applicant. 10 Within a few months of the child’s placement with the appellants for adoption purposes, the respondent learned of the situation, retained legal counsel and secured DNA tests that established he was the biological father. The Ministry then advised the appellants that an individual had come forward claiming paternity and the adoption process stalled. The appellants retained legal counsel. 11 At a point when the child had been in their care for roughly five months, the appellants learned that the biological father was intent on pressing for custody. The Ministry withdrew its support for their adoption application. 12 In the spring of 2012, arrangements were made through counsel to facilitate an introduction of the respondent to the child. The paternal grandmother accompanied him to the first meeting. Three such meetings O. (A.) v. E. (T.) Wilkinson J. 39

between the appellants and the respondent resulted, which were initially civil but deteriorated when the respondent declared his intent to have the child in his care. The Wife declared he would not see C again without an agreement in place. 13 Legal proceedings quickly followed. Interim orders in the summer of 2012 gave the respondent specified access on a rotating schedule of weekend access (Weekend 1: overnight access Saturday/Sunday at the FN Reserve; Weekend 2: Sunday access near the appellants’ locale). The child’s primary residence remained with the appellants. Travel between the parties’ respective residences was onerous. 14 The respondent’s access got underway; however, two of the initial visits in the summer of 2012 were cancelled by the Wife due to her grandmother’s passing and, on another occasion, a family wedding. 15 Between May and October of 2012, the appellants were receiving information and instruction on attachment and bonding through sessions with a certified attachment therapist. It can be assumed they became versed in the essential principles of attachment theory. 16 An incident on January 13, 2013, had a chilling effect on relations between the parties. The respondent was attending to administrative matters for his Band, and confused the pickup time for his access visit. He sent the paternal grandmother in his place. The paternal grandmother and the Wife had an uncordial exchange in the child’s presence. The Wife was upset by the respondent’s tardiness and threatened to leave with the child. The paternal grandmother stood in front of the vehicle to prevent her departure. The Wife threatened to take court action to have the paternal grandmother removed from the access exchanges. Of her own volition, the paternal grandmother stopped attending. 17 The child had a birthday in the spring of 2013. 18 A pretrial settlement conference was held on April 12, 2013. Mr. Francis Stewart, a psychologist experienced in the preparation of custody and access assessments was proposed by the appellants as the court-appointed assessor. He has prepared well over 400 such assessments. The respondent agreed, but not wholeheartedly. 19 Mr. Stewart was directed to conduct an assessment with a focus on attachment issues, cultural issues and any other issues he deemed appropriate. He was directed to recommend a transition plan in the event of a change in custody. By consent, the matter was set for trial on September 9, 2013. At the eventual trial of the matter, which did not commence 40 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

until September of 2015, Mr. Stewart was accepted as an expert in custody and access assessments and on the long-term effects of childhood experiences, including attachment theory. 20 The respondent had difficulties raising his share of the cost and the custody and access assessment could not be completed in an expeditious fashion. 21 The appellants had growing concerns about C’s behaviour following access visits with the respondent. 22 A child therapist was engaged by the appellants in June of 2013 to assess these behaviours. The therapist surmised that C’s mixed reactions to the Wife following access visits (alternately seeking her out and rejecting her) was an ambivalent response that could be explained by attachment theory. The behaviours derived from the child’s confusion over the Wife’s absence and her perceived inability to provide the child with a needed sense of safety. 23 Three access visits in the summer of 2013 did not occur due to the appellants’ commitments or concerns. 24 The custody trial scheduled for September 9, 2013, was adjourned as the custody and access assessment was not yet complete. A second scheduled trial date (October 22, 2013) came and went because the respondent’s counsel withdrew shortly in advance of the trial, and Mr. Stewart had encountered a serious medical issue that prevented him from completing his assessment. 25 In the period from late August of 2013 to December of 2013, the respondent’s access was disrupted for a variety of reasons. The appellants indicated the child was having bouts of diarrhoea. It was learned that there had been a cryptosporidium outbreak in swimming pools in the appellants’ locale. On other occasions, access was cancelled by the appellants due to inclement weather or because the Wife was concerned about travelling on her own. The respondent was responsible for one missed visit, but the rest were as a result of the appellants’ decision to cancel. 26 The appellants terminated all overnight access in December of 2013, citing profound changes in the child’s behaviours following access visits with the respondent. They drew on their own observations, bolstered by the opinions of the child’s doctor, therapist and early education instruc- tors, to conclude that the child was experiencing distress and separation anxiety as a result of access visits with the respondent. The concerning O. (A.) v. E. (T.) Wilkinson J. 41

behaviours included sobbing, sleep disturbances, regression, and ambivalent behaviour towards the appellants, more commonly toward the Wife. 27 In an application by the appellants in January of 2014, to vary access to daytime access only, the Court elected to order supervised exchanges of the child utilizing a supervised facility in the north and the services of the child’s former foster parents in the south. The Court made no other changes to the existing access protocols. 28 The child turned three in the spring of 2014. 29 By May of 2014, the respondent was cooperating in the completion of the custody and access assessment. Around that time, the former foster parents in the south decided to withdraw from the process. The respondent declined to utilize a supervised facility. Overnight access became problematic. 30 The child therapist retained by the appellants issued another report on May 9, 2014. She concluded the three-month cessation in overnight visits with the respondent (November of 2013 to February of 2014) coincided with improvement in the child’s behaviours. She expressed the view that a child’s extended relationships were most effectively formed in the secure presence of their primary attachment figures, in this case the appellants, and this was the key to the child building other relationships. She cautioned that distress and impaired development could result from forced separation from primary attachments. She closed her report by ac- knowledging that with the passage of time, the child’s behaviours while transitioning to and from C’s biological father’s home had become re- portedly less traumatic. 31 By August of 2014, the supervision facility in the north had also withdrawn from the process after a disagreement with the respondent. This was precipitated by the respondent sending his daughter for the Sunday visit in his place. He was unavailable to attend on that occasion because his youngest son was undergoing emergency appendectomy surgery. The supervision facility objected to the impromptu arrangement and withdrew its services. 32 As a result of these developments, the respondent had no access to C at all between August of 2014 and January of 2015. 33 The custody and access assessment was concluded by Mr. Stewart on September 5, 2014 [Stewart Report]. I will touch on select areas of the report relevant to the appeal, while others will be addressed in more detail later. 42 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

34 Extensive assessment and testing were performed: home visits were conducted, references for the parties were interviewed and underlying documentary evidence was examined. In keeping with his mandate, detailed attention was given in the report to “separation anxiety” (a normal stage of development in children) and “separation anxiety disorder” (a recognized anxiety disorder under the DSM-V, which is unlikely to be caused simply by short-term separation from primary caregivers). The DSM-V, the Diagnostic and Statistical Manual of Mental Disorders, is the authoritative manual on the classification, diagnosis and treatment of psychiatric disorders. Mr. Stewart explained that the roots of separation anxiety disorder are more commonly multi-causal, a combination of ge- netic and environmental vulnerabilities. 35 He underscored the significance of one environmental variable, referred to as “social referencing”, whereby a child uses the behaviour or emotional reaction of the parent to gauge their own reaction to an event. Anxious parents engender anxious responses in their children, who are cued by the facial expressions and emotions of the adults. Assessment of the Wife yielded signs of anxious parenting. 36 Mr. Stewart accepted that the child was experiencing some separation anxiety and had limited ability to process what was happening. Children of C’s age might well think they were being abandoned simply because they were being transferred to another parent’s home. He emphasized that C required reassurance and comfort from parental figures to reduce stress. 37 A section of his report was devoted to “parent-child attachment considerations” with explanation of various tests administered to the parties, the results of that testing, and the importance of direct observation of interactions between parent and child in both homes. In terms of attachment, Mr. Stewart found insubstantial differences between the parties and determined that all three adults had a healthy level of attachment with the child. One notable area of difference was that the Wife perceived significant difficulties in the child’s ability to transition and adapt when the child moved from one home to the other. Neither of the men identified any problems in that area. 38 Mr. Stewart’s ultimate recommendation, based on the entirety of his analysis and observations, was that C be placed in the respondent’s custody. Critically, he emphasized that he would not have made the recommendation for a change in custodial care if the child did not recognize the respondent as a father. He was alert to the negative consequences of O. (A.) v. E. (T.) Wilkinson J. 43

fracturing secure parent-child attachments; however, in his view, a healthy attachment had formed between them as a result of the respondent’s constancy in C’s life over a two-year period. 39 The appellants could not accept the recommendations. 40 A third trial date was scheduled for January of 2015. The appellants sought an adjournment of the trial in order to obtain a critique of Mr. Stewart’s assessment by Dr. Donna Darbellay [Darbellay Report], a doc- toral psychologist with expertise on the long-term effects of childhood experiences and attachment theory. 41 The court ordered that the respondent’s daytime access would resume in January of 2015 and overnight access in late February of 2015. 42 After five months devoid of interaction between the respondent and the child, access was reinstated. The appellants immediately asserted that the child’s behavioural problems and aggressive behaviours had abated during the five months of separation from the respondent, but reappeared immediately after access was restored. 43 On February 17, 2015, the child had a day visit with the respondent in Saskatoon at the indoor water slides. There was a routine exchange for the return home. The child began acting defiantly, crying and called the Wife “stupid”. In the Wife’s description at trial, the child had a “meltdown”, and kept repeatedly asking for “dad”. The Wife took this to be a request for the Husband, who happened to be away working. 44 At the time, the Husband was away from home on his regular schedule of 21 consecutive days on, followed by 7 days off. As a result of his rigorous work schedule, the Husband was largely uninvolved in the 2015 exchanges of the child. 45 Dr. Darbellay witnessed the February 17, 2015, exchange of the child from the respondent to the Wife at the conclusion of his day visit. During that event, the child remained asleep. She continued to observe the sleeping child for some 20 minutes, and then departed. The Wife called Dr. Darbellay at a later time, telling her the child had slept all the way home but when the child was roused from sleep to go into the house, a meltdown ensued. The Wife supplied Dr. Darbellay with the video recording of the child’s outburst. The video of the child’s “strong protests” led Dr. Darbellay to form the view that the child was not adjusting to the visits with the respondent, and was suffering. 46 The resumption of overnight visits with the respondent began in Feb- ruary of 2015 after a nine-month hiatus. 44 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

47 The weekend of March 6-8, 2015, was just the child’s second overnight visit with the respondent since of the summer of 2014. Just prior to the return exchange, the child was involved in the pleasurable activity of making preparations for an upcoming birthday party. Unsurprisingly, the child was unhappy to leave in the middle of excitement over birthday planning. 48 Following the second overnight visit, the Wife again unilaterally terminated the respondent’s overnight access. She described the child’s behaviour on the return from the March 6-8 visit as “the worst week ever” in terms of the child’s behaviours. She recalled it was following that visit that the child first said “you’re not my real mother”. 49 Dr. Darbellay finished her report on March 19, 2015. Other than wit- nessing the brief handover of the sleeping child in February of 2015, she did not undertake any observation of the respondent and child together. She concluded that the Stewart Report did not display sufficient consideration of C’s best interests in light of attachment theory and research. 50 In simplistic outline, attachment theory proposes that a child’s primary attachment figure is a child’s nucleus. It is the secure base from which all other relationships and situations are entertained and accepted by a child. Protests surrounding separation are a child’s efforts to be re- united with that secure base/primary attachment, usually the mother. Re- peated separations decrease a child’s feelings of security and can cause a child to become psychologically detached, indifferent and aloof. How- ever, the resilience of any particular child is not a matter that can be predicted. Casual observations by untrained observers in unstructured situations are of very limited use in evaluating attachment. The absence of protest can mean a child is simply “coping”. With children under the age of 12, educating the adults remains the primary focus. 51 The Darbellay Report’s primary criticisms of the Stewart Report were as follows: (a) insufficient recognition of disrupted attachments as a result of foster placements and a failed adoption placement, which increased the child’s sensitivity to another separation; (b) insufficient recognition of the fact that C, unlike children of divorce, was not going house to house with established attachment figures — C was going to a “distant unfamiliar place with a virtu- ally unfamiliar person” (appeal book at 222a); O. (A.) v. E. (T.) Wilkinson J. 45

(c) failing to recognize that most positive attachments, even with fa- thers, are fostered through the primary attachment (the mother); (d) attachment is most apparent in stressful situations, not while the child is engaged in pleasurable play; (e) good behaviour with the respondent did not mean there was an attachment, it might simply be a coping mechanism — some children tend to be compliant as a matter of survival; (f) the video-recorded incident of February 17, 2015, suggested the child was greatly distressed, and not simply experiencing the mild distress common to normal separation anxiety; and (g) the Stewart Report failed to support the appellants’ concerns about separation anxiety and to understand the child’s difficulty master- ing a new environment without the Wife, the primary attachment. 52 Dr. Darbellay recommended immediate termination of the respondent’s access in order that the child be allowed to re-stabilize. She recommended that the adults receive education on attachment needs, that any resumption of visits be in the appellants’ presence and in the appellants’ home, and that when overnight visits resumed at the respondent’s home, the appellants must accompany the child and be house-guests in his residence. 53 The child turned four in the spring of 2015. 54 A fourth trial date was scheduled for May of 2015. Pending trial, the respondent’s access (both overnight and daytime) was directed to continue, but with daytime access to continue in Saskatoon and overnight access at the FN Reserve. 55 The trial did not proceed, but a pretrial conference conducted on May 12, 2015, yielded agreement on some compensatory access for the respondent and an understanding that the parties would endeavour to spend some time together in the child’s presence, thus addressing one of Dr. Darbellay’s concerns. 56 The fifth and final trial date was scheduled for September 28, 2015. Access between January and September of 2015 was specified in detail, providing for continued overnight and daytime access to the respondent. 57 At some point in the summer of 2015, the adults made an effort to abide by the pretrial agreement and get together in the child’s presence. The appellants did not touch on the subject at all in their testimony, but the paternal grandmother recounted inviting the appellants to attend a barbecue at the FN Reserve. The Wife attended with her friend, a social 46 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

worker. They were welcomed into the community. The paternal grandmother gave them gifts to honour their presence as guests. In her recollection, the child had a wonderful day, playing with the respondent, the brothers, and all of the young relatives. The child made a particular point of asking the respondent to be taken to his house for the purpose of seeing the child’s room. 58 On September 6, 2015, the appellants video-recorded another occasion where the child exhibited some distress, after a transition out of the respondent’s care. Both appellants were present on that occasion. They were in the front seat of the vehicle and the child was in the back. C cried and repeatedly said “I want my daddy”. The Husband went in the back of the vehicle with C, but C refused to calm down, hit him and pushed him away. 59 The paternal grandmother acknowledged that there was an occasion on a visit to the FN Reserve when the child cried when experiencing some stomach distress. It was one of the rare times the child asked for the Wife, and then for “Daddy”. The respondent came to C’s assistance and they sought out some remedies to ease the discomfort. The paternal grandmother said she had never seen the child sob in the fashion dis- played in the February of 2015 video and could recall no other occasion when the child seemed ill at ease or uncomfortable during the visits. 60 The respondent’s final overnight visit with the child prior to trial was between September 18-21, 2015. 61 Dr. Darbellay attended at the appellants’ home immediately prior to that visit. She attempted to engage with the child, who largely ignored her efforts. After about 15 or 20 minutes, the child whispered something to the Wife who asked Dr. Darbellay to come and see the child’s room. The child turned on nightlights, explaining they scared away monsters. C showed Dr. Darbellay a copy of a photo album. As C jumped on the bed and was told it was time to leave, C didn’t want to go to “that place”, it was scary. C wouldn’t say why. C then went and jumped on the parents’ bed, sat at the piano and asked the Husband to play. C left for the visit when prompted and the Wife was able to speak positively about the upcoming visit. Dr. Darbellay described the final exchange of the child from the appellants to the respondent as “neither drawn or dramatic”. The appellants kissed C who walked to the car with the respondent, head down, and didn’t wave to the appellants. 62 Mr. Stewart attended the FN Reserve for the last visit between the respondent and child in September of 2015. He observed the child inter- O. (A.) v. E. (T.) Wilkinson J. 47

acting with the respondent and two brothers for a period of four hours in the respondent’s home. 63 His observations included the following: on his arrival, the child moved immediately toward the respondent. C played for a while in a small tent in the living room. C played with one of the brothers in a fort in the basement. C referred to the respondent as “Dad” throughout, and was helped by the older brother when C wanted to get glow sticks. C showed the glow sticks to the respondent who said how nice they looked. C briefly watched a children’s movie with a brother. C leaned on the respondent’s knees while he brushed the child’s hair. They talked quietly together. The respondent took the three children to the playground. C reached for his hand as they walked. Later on, C walked hand in hand with the brothers. At the playground, C called to “Dad” asking him to watch C go down the slide. He caught C at the bottom. There were 35 minutes spent there laughing and playing. The respondent pushed C on the swing. C wanted to go higher. The respondent was attentive to the child while the brothers played together. At times, the three children played together. They went back to the house for lunch, holding hands part of the way. There was a brief visit from the paternal grandmother. The respondent made lunch, and afterwards there was more play, a car- toon episode on television and the children returned to play in the fort in the basement. 64 Mr. Stewart observed no behaviour that suggested the child was uncomfortable with the respondent or brothers. C seemed to value the time with them and laughed and played consistently. He noted the child did seek proximity to the respondent at the time he, the assessor, first arrived, and a second time when holding the respondent’s hand to go to the playground. He considered that the quality of the interactions was similar to what he had witnessed during the course of his custody and access assessment. In his view, the child’s level of comfort was a likely reflection of the care the respondent had provided throughout their time together. 65 Dr. Darbellay witnessed the child’s return from the visit on Septem- ber 21, 2015. The exchange was rapid. The appellants drove home with Dr. Darbellay following behind in her vehicle. The appellants pulled over shortly after departure because C had started to cry. Dr. Darbellay joined them in their vehicle. C didn’t want to talk. After a while C asked for “Daddy” and the Wife said “Daddy” was driving. C looked out the win- dow and asked again. C smiled as they approached their house and a 48 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

familiar landmark came in sight. C went to the bed-room and, in conversation with Dr. Darbellay, said the clothes were from “T-man” (as discussed at trial, the blend word [T-]man was seen as combining the respondent’s name and other experiences while with the respondent). Dr. Darbellay asked if C had a good visit, and C said “no, it was scary and there were monsters”. C told of sleeping with “T-man”, and of sleeping on the floor. When asked who “T-man” was C said “I don’t like him. He gets mad at me when I call him that, he wants me to call him Dad but he’s not my real dad”. 66 Dr. Darbellay’s summation after this visit was that C was a slow-to- warm child, the appellants’ home was a safe place, the appellants were the primary caregivers, and C was greatly distressed by visits with the respondent. C’s distress created ambivalence toward the appellants, and the visits were not respecting the child’s attachment to the home and caregivers. This worked against building a long-term relationship with the respondent and was psychologically damaging to the child.

III. The Trial Judgment 67 In broad overview, the trial judge’s material findings were as follows: (a) C was bonded and attached to both the appellants and the respondent, saw them all as parents, and felt at home in both places — neither home had deficits; (b) the correlation between the respondent’s overnight access and C’s behavioural issues was ambiguous at best, and absent on many occasions. The Wife was more concerned about overnight visits than warranted; (c) the appellants controlled and limited the respondent’s access and spread misleading information about him; (d) C’s separation anxiety was not entirely attributable to feelings of abandonment. It was also due to confusion over having two homes, tension between the two families, the exigencies of long travel, and the intensity of the adult conflict, with each side vying to obtain primacy in terms of parenting. This placed unfortunate pressure on the child. Attributing the child’s behaviours to anxiety at being abandoned was not warranted on the totality of the evidence; O. (A.) v. E. (T.) Wilkinson J. 49

(e) the parties’ negative attitudes to each other, and the distance between their home communities, precluded shared parenting, which was not in the child’s best interests; (f) the child’s separation anxiety was part of the normal process of a child having different parental visitations. Separation from one attachment is not necessarily destructive to a child in the long term if the child moves to another attachment in a nurturing environment with professional support; and (g) the evidence established it was in the child’s best interests to transition to the respondent’s home, aided by the professional assistance of a counsellor.

IV. Standard of Review 68 In Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 (S.C.C.) at 121 and 122, the Supreme Court of Can- ada indicated that an appellate court is not entitled to interfere merely because it takes a different view of the evidence. The finding of facts, the drawing of evidentiary conclusions from those facts and the weight to be assigned to the various pieces of evidence is essentially the province of the trial judge who has observed the witnesses and stands better situated to assess the quality, substance and veracity of the evidence. 69 In Van de Perre v. Edwards, 2001 SCC 60 at para 13, [2001] 2 S.C.R. 1014 (S.C.C.) [Van de Perre], Bastarache J., writing for the Court, discussed the “applicable standard of appellate review in custody cases”: [13] As I have stated, the Court of Appeal was incorrect to imply that Hickey [[1999] 2 SCR 518] and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and rein- forces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and 50 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. 70 These decisions call for a standard of considerable deference to the decision of a trial judge in a custody determination. Intervention on appeal requires material error, a serious misapprehension of the evidence, or an error of law.

V. Issues on Appeal 71 The appellants have advanced fourteen grounds of appeal that I have distilled down to three principal spheres of complaint with the trial judge’s analysis. 72 At issue is whether, in terms of the “best interests of the child” analysis, the trial judge gave undue weight to the preservation of biological or kinship ties, to the parties’ differential experiences in parenting, to cultural factors, and to the findings of the court-appointed assessor, Mr. Stewart, in preference to the opinion of the appellants’ expert, Dr. Darbellay. 73 The corollary proposition is that the trial judge gave insufficient weight to the appellants’ strengths in those areas and, particularly, to the importance of attachment, and continuity in the child’s care, and in so doing failed to appreciate the risk of traumatic, long-term impact on the child should C be removed from the primary caregivers. 74 The appellants further submit that in conducting the “best interests” analysis, the trial judge failed to give adequate consideration to the respondent’s unwillingness to facilitate access.

VI. Analysis A. Best Interests of the Child 75 The “best interests” principle involves a child-centred analysis, representing the child’s right to “the best possible arrangements in the circumstances of the parties” (Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.) at 84 [Young]). 76 A frequently cited passage in Young is Justice L’Heureux Dub´e’s comment at pages 65 and 66: A determination of the best interests of the child encompasses a myriad of considerations, as child custody and access decisions have been described as “ones of human relations in their most intense and complex form”. In contrast to most issues that come before the O. (A.) v. E. (T.) Wilkinson J. 51

courts, such decisions are “person oriented” rather than “act-oriented” and require an evaluation of “the whole person viewed as a social being” [citations omitted]. Courts are required to predict the happening of future events rather than to assess the legal import of past acts and judge the effect of various relationships on the best interests of the child, all the while weighing innumerable variables without the benefit of a simple formula. 77 It is indisputable that the focus in the law is not upon parental rights to custody. Rather, it is upon the child and the child’s best interests. The “best interests” analysis is approached from the perspective of significance to the child, not from the perspective of parental rights. The principle was enshrined in K. (K.) v. L. (G.), [1985] 1 S.C.R. 87 (S.C.C.) [K. (K.)], which held that parental claims were entitled to serious consideration but must be set aside where the welfare of the child demands it. 78 The K. (K.) decision involved competing claims to custody between a biological mother and adoptive parents. The Supreme Court upheld the trial judge’s finding that the child had a primary attachment to the adoptive parents and that it could be too disruptive to the child’s future development to return him to his biological mother. In K. (K.), there was considerable evidence at trial about bonding and attachment. As a result of the finding that it would be traumatic for the child to be moved, the child’s best interests demanded that the ties of blood and kinship be set aside. 79 The trial judge reviewed the Supreme Court of Canada decisions, relevant Saskatchewan authorities, and Article 9 of the United Nations Con- vention on the Rights of the Child [Convention] to which Canada is a signatory. The Convention calls on members to recognize the integrity of the parent-child relationship, but subject always to the best interests of the child. 80 The trial judge concluded that the respondent’s blood tie to C was an important, but not a controlling consideration. The best interests of the child remained paramount. He expressly stated that should the evidence establish that the child’s best interests lay with the appellants, the fact the respondent was the biological parent would have to be set aside. 81 The trial judge examined the extent to which witnesses’ conclusions were supported by direct observation and objective evidence, or weak- ened by reliance on hearsay, informational gaps, predisposition to one side or the other, or outright misinformation. Where conflicts in the evi- 52 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

dence appeared, these conflicts were addressed. When evidence was accepted or rejected it was always on a reasoned and supportable basis. 82 In his analysis, the trial judge reviewed the entirety of the evidence with care and consideration. He undertook the laborious task of examining how access visits correlated to the child’s ascribed behaviours, and concluded that the connections were ambiguous at best and absent on many occasions. 83 On the question of unwillingness to facilitate access, although he found the appellants to have been more uncooperative in this aspect than the respondent, he structured access for the appellants in a manner that addressed their principal concern, which was the fear that they would only be allowed access on an ad hoc basis, or at the whim of the respondent, in the event custody was changed. 84 The trial judge explored the relevant principles and conducted the “best interests of the child” analysis with detailed attention to each of the relevant components — the quality of the child’s relationships with the parties and relevant others, biological connections, siblings, the respective home environments, parenting capacity, the child’s personality, character and emotional needs, C’s physical, psychological, social and economic needs, opportunities in each home, future plans for the child, and, finally, the concept of “the psychological parent” and the impact on the child of a change in custody. 85 He reviewed the child’s relationships with siblings, parental figures, and extended family members. Unavoidably, the trial judge’s review compelled him to state the obvious, such as the fact that the appellants are a two-parent home while the respondent is a single parent, or that the child would have siblings in the respondent’s home while there were none in the appellants’ home. This does not signal inappropriate weight- ing in terms of one position or the other, but is simply the fulfillment of a trial judge’s duty to canvass the evidence in its totality. 86 In terms of the assertion that the trial judge favored the respondent’s more significant experience in parenting, an examination of his reasons indicates that past experience was not a matter of inordinate emphasis. His express concern was with the Wife’s rather anxious approach to parenting and her susceptibility to stress contrasted with the respondent’s more even tendencies. He remarked on the evidence that suggested the child was indeed picking up on the Wife’s anxieties. In terms of overall parenting capability, it was the respondent’s personality and parenting O. (A.) v. E. (T.) Wilkinson J. 53

qualities, as much as his experience, which edged some of the parenting considerations in his favour. 87 The appellants say the trial judge gave too much weight to the child participating in Nakoda culture in determining custody, and insufficient recognition to the Husband’s Cree heritage, or the cultural heritage on the biological mother’s side, which is Dakota Sioux. On this last point, the trial judge had evidence before him that the respondent’s father is of Dakota heritage and that the Nakoda/Dakota traditions bear close similarities. 88 In any event, in the trial judge’s analysis, the cultural factors were reviewed in the context of the opportunities available to the child in either home. The trial judge recognized that blending the child’s multicul- tural influences, family networks and the rich history each possessed could only have benefited the child had the litigants paid heed to the advice received from others. Sadly, this was not the case. His ultimate determination was that the child would have a wealth of opportunities in either home, but greater access to family relationships, assistance, guidance and tutelage with the respondent, given the depth of the family community that surrounded the child there. I see no unfairness or imbalance in the judge’s approach to cultural issues and find no error in his conclusions. 89 The appellants say the biological connection was given disproportion- ate emphasis, notwithstanding the trial judge’s correct articulation of the law. However, as counsel for the appellants acknowledged, there is a line of authority holding that all other factors being equal, the biological connection can tip the balance and this does no offence to the principle laid down in K. (K.). In M. (C.G.) v. W. (C.) (1989), 40 B.C.L.R. (2d) 145 (B.C. C.A.), and in British Columbia Birth Registration No. 99-00733, Re, 2000 BCCA 109, 182 D.L.R. (4th) 280 (B.C. C.A.), the British Co- lumbia Court of Appeal accepted the proposition that where the scales are otherwise even, a biological factor can be the decisive factor. As there expressed, the benefits that flow to a child from blood ties are in- tangible and not readily put into words. 90 Accordingly, had the trial judge found no difference between the parties in the areas of culture, parenting, parenting experience, sibling considerations, cultural factors and other relevant considerations, the outcome might well have been the same. I conclude the trial judge did not place unwarranted emphasis on the biological connection and find no error in his reasoning on this aspect. 54 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

91 The trial judge summed up his analysis by saying that in all the circumstances, and on the unique facts of the case, it was in the child’s best interests to be resident with, and in the custody of, the respondent. Those circumstances included, but were not restricted to, the combination of the respondent’s long-term parenting ability and experience, direct blood connection to the child, custody of other siblings, proximity to other family members, including C’s paternal grandmother, aunts, uncles and cousins, their connection to Nakoda culture, and the respondent’s leader- ship role in the community. 92 It is from this synopsis that many of the appellants’ complaints de- rive, but a summation cannot be extracted from a decision in complete disregard of everything that preceded it. 93 As noted in Van de Perre at para 10, although a trial judge’s reasons may sometimes appear to stress one factor over another, this is inevitable in custody cases that are heavily fact-driven. This does not open the door to a redetermination of the facts by the Court of Appeal. In terms of the weight he ascribed to various components of the best interests test, namely blood ties, parenting capability, and cultural factors, the trial judge approached his task with sensitivity and care, and I find no error in his conclusions.

B. Attachment 94 Reduced to its essence, the appellants’ issue is that the child’s attachment and continuity of care should have been the consideration that outweighed all others in the “best interests” analysis and tipped the balance in their favour. This subsumes the question whether the trial judge erred in accepting the opinion of Mr. Stewart in preference to the opinion of Dr. Darbellay. Further, the question of attachment is what drives the application to admit fresh evidence. It is to these questions that I now turn. 95 Appropriately in the circumstances, a significant part of the trial judge’s analysis was devoted to questions of attachment, the child’s needs, and whether C would be adversely affected on a long-term basis should one or other of the parties be given sole custody. 96 The trial judge recognized the importance of determining who the child identified as “psychological parents”, citing Haider v. Malach (1999), 177 Sask. R. 285 (Sask. C.A.), and L. (S.A.) v. H. (K.), 2011 SKQB 397, 384 Sask. R. 263 (Sask. Q.B.). He gave full recognition to the strength of the bond that exists between the appellants and the child, but also found on all the evidence that a strong mutual attachment existed O. (A.) v. E. (T.) Wilkinson J. 55

between the child and the respondent, one that had formed over a considerable period of time. 97 He underscored the significance of the question whether the child would be adversely affected on a long-term basis should one party or the other be given sole custody. As this is a predictive exercise, the trial judge looked closely at the expert opinion tendered on the issue. 98 Mr. Stewart had been accepted at trial as an expert in the preparation of custody and access assessments, as well as the long-term effects of childhood experiences, including attachment theory. His extensive experience in conducting assessments of this nature was duly noted by the Court. 99 The trial judge found that both Mr. Stewart and Dr. Darbellay had acknowledged that the child was experiencing separation anxiety. The significant departure in their opinions was the severity of the child’s experience, what long-term effect it might have, and the best way forward in the matter. 100 Mr. Stewart’s opinion was that the child had a healthy level of attachment to each of the parties. While the child was experiencing symptoms of separation anxiety, he considered that this was temporary and a normal phase of development for most infants and toddlers, and the child did not meet the diagnostic criteria for separation anxiety disorder. C was too young, and lacked the cognitive abilities important to the development of the disorder. 101 The trial judge noted that in the course of Mr. Stewart’s observations at the respondent’s home, he had seen many comfortable, familial interactions and was persuaded that the child was at ease in the respondent’s company. C enjoyed playing with the brothers. C was demonstrably af- fectionate with the respondent. C would often come to him, hug him, and crawl onto his lap. C consistently referred to the respondent as Dad. The trial judge was satisfied that the respondent and C had a healthy, reciprocal bond of attachment. The trial judge accented Mr. Stewart’s caution that judgments cannot be made about the level or quality of attachment between a parent and child unless these first-hand observations are made and that to do otherwise causes injustice to both parent and the child. 102 The trial judge remarked that, in contrast, Dr. Darbellay had observed only two brief exchanges of the child at a distance. She could offer little in the way of conclusions regarding the child’s level of attachment to the respondent. Indeed, Dr. Darbellay had cautioned in her own report that 56 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

“casual observations in unstructured situations are of very limited use in diagnosing attachment issues” (appeal book at 223a). The trial judge noted that the access period between May and September of 2015 had proceeded with the benefit of the recommendations of Dr. Darbellay in hand, but had proved unworkable nonetheless. 103 Dr. Darbellay’s recommendations — namely, terminating the respondent’s access entirely, educating the adults on attachment, and having the appellants remain with the child during every access visit — while moti- vated by genuine concern for the child were, to his thinking, quite pa- tently unrealistic in light of the evidence and the adversarial history between the parties. 104 Although not noted in his discussion, the appellants had in any event been educated on attachment theory by virtue of their 2012 sessions with a certified attachment therapist. It is unclear what further education on the subject might have accomplished. 105 The child’s occasional references to the respondent as “T-man” rather than “Dad” were raised by the appellants at trial as proof positive that the child did not perceive the respondent to be a father. Dr. Darbellay was hesitant on the point, entertaining the possibility that the child may have simply combined the respondent’s first name and the FN Reserve and put the two words together. 106 On the appellants’ own evidence, the child’s initial use of the term was on two occasions during C’s early learning program. These two recorded occasions coincided with periods when the appellants were attempting to terminate overnight access (early 2015) or when overnight access was due to be reinstated after a nine-month interruption. In the latter case, it happened on February 12, 2015, the very day before overnight access was set to recommence. 107 The trial judge noted the usage of the term only occurred in the presence of the appellants or their circle of acquaintances. There was no occasion during Mr. Stewart’s observations of the child where C used the term “T-man”. The evidence suggested to the trial judge that the termi- nology was an effort on the Wife’s part to distance the child from the respondent. He was not particularly persuaded that any of the parties involved had controlled their attempts to influence the child regarding preference. 108 Dr. Darbellay stated in her testimony that she expressly cautioned the Wife about displaying anxiety in front of the child. She also advised the Wife that asking leading questions such as “did anything bad happen at O. (A.) v. E. (T.) Wilkinson J. 57

Dad’s?” is harmful to the child. If asked enough times, she said, it leads the child to believe something bad has actually happened. Dr. Darbellay advised the Wife that “If you really care for [C], deal with your anxiety, but deal with [C’s] need first” (trial transcript at T817). 109 The trial judge was unconvinced this had happened. He spoke to the appellants’ negative demeanour during exchanges, Dr. Darbellay’s express cautions to them, and the appellants’ difficulties in terms of presenting the respondent in a positive light. The respondent did not es- cape criticism, but the Stewart Report persuaded the trial judge that the respondent was considerably more positive when speaking of the appellants and their contributions to the child’s upbringing. 110 The trial judge addressed whether the stress experienced by the child could have been reduced by a more child-centred approach. He laid significant blame at the appellants’ door, saying “the strongest hand has been held by the [appellants] with them controlling [the respondent’s] access. They have often impeded it through cancelled visits or disallow- ing it entirely” (O. (A.) v. E. (T.), 2016 SKQB 92 (Sask. Q.B.) at para 237). 111 He concluded the use of the term “T-man” was not a reflection of poor attachment but a concern in the parenting domain and, in particular, whether the appellants were influencing the child unduly despite the cautions they had received. 112 In preferring Mr. Stewart’s assessment of matters, the trial judge emphasized the assessor’s greater expertise in the area of custody and access assessments. He contrasted this with Dr. Darbellay’s lack of direct involvement with both parties and her inability to conduct an extensive investigation given the constraints of her limited retainer, which was to simply provide a critique of the Stewart Report. He noted the inherent frailties in her report and the one-sided perspective adopted. The trial judge found Mr. Stewart’s opinion had weight and cogency that the opinions of the appellants’ expert lacked. 113 The limits to the scope of appellate review of the findings of fact by a trial court also apply to the review of the findings of a trial court based on expert testimony: see Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.) at paras 78-79. No fault can be taken with the trial judge’s comparative analysis, or his preference for the conclusions of the court-appointed assessor. I find no error in the trial judge’s decision to accept the Stewart Report in preference to the opinion of Dr. Darbellay. 58 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

C. The Application to Admit Fresh Evidence 114 The appellants sought to tender fresh evidence on the issue of attachment, which included a psychological evaluation obtained from Dr. Leigh Baker [Baker Report], a clinical psychologist in Denver, Colorado. The author is the director of a trauma centre that evaluates, diagnoses and treats traumatized children. The report is based on evaluations of the child at the trauma centre between September 29, 2016, and October 1, 2016. Prepared on October 5, 2016, it was unavailable until the very eve of the appeal hearing. The diagnosis offered by Dr. Baker is that the child suffers from anxious/avoidant attachment disorder. 115 The test for admission of fresh evidence is addressed in L. (B.) v. Saskatchewan (Ministry of Social Services), 2012 SKCA 38, [2012] 12 W.W.R. 468 (Sask. C.A.) [L. (B.)], which adopted the test laid down in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.) [M. (C.)]. Both decisions called for flexibility in applying the test in child welfare cases. In this regard, L. (B.) states the overarching principle is that the court has all the necessary authority to receive further evidence in the best interests of the child. 116 The rationale is explained further in D. (R.) v. Children’s Aid Society of Owen Sound & Grey (County) (2003), 178 O.A.C. 69 (Ont. C.A.), where the Court stated the following: [21] Given the inevitable fluidity in a child’s development, in most cases it would be beneficial for a reviewing court to have the most current information possible to assist in evaluating whether a change in the factual matrix of previous best interests determination warrants interference with that finding. 117 The test in M. (C.) qualifies fresh evidence for admission if the following hold: (a) the evidence could not have been adduced before; (b) the evidence is highly relevant in that it enables the court to make a determination on an accurate picture of the situation at hand; (c) the evidence is potentially decisive as to the child’s best interests; and (d) the evidence is credible. 118 The first requirement has been met. The experts at trial acknowledged that attachment disorder could not be diagnosed at the child’s level of cognitive development at the time. O. (A.) v. E. (T.) Wilkinson J. 59

119 The second requirement has not been met. The information is potentially relevant to the question of the child’s best interests and based on current information, but whether it is highly relevant or promotes an accurate understanding of the situation, or enables the court to make determinations contrary to those of the trial judge are questions that have not been answered. 120 As to whether the fresh evidence is potentially decisive on the question of the child’s best interests, for the reasons below I am of the view the threshold has not been met. 121 Firstly, Dr. Baker’s report is based on select documentary materials provided by the appellants. It is troubling that Dr. Baker was not provided a copy of the trial judge’s decision that synthesizes all the information and reviews evidence tested in the crucible of cross-examination. The trial judgment represents a comprehensive compilation and analysis of the factual matrix to which the best interests test was applied. 122 Speaking to the materials provided, Dr. Baker criticized the staleness of Mr. Stewart’s assessment, saying it was simply a snapshot view taken in 2014. She stated that when Mr. Stewart conducted his evaluation, the child was 2-3 years old. Clearly, she was not provided information about Mr. Stewart’s final home visit at the FN Reserve in September of 2015, which was the last overnight access visit before trial. There is no indication she was told that Mr. Stewart had the opportunity at trial to consider and respond to the concerns raised by Dr. Darbellay. Further, at the close of the trial, the trial judge expressly sought guidance from counsel as to whether the Stewart Report should be updated. Both parties stated in no uncertain terms that they wished to make closing argument based on the existing evidence. 123 Secondly, the issue of “social referencing” (or “reciprocal causality” as Dr. Darbellay termed it) was a feature in both experts’ testimony at trial. This is the concept whereby a child mirrors the anxieties of a parent. The Wife’s anxieties as a parent were a feature in her psychological parenting assessment, and are evident overall in her past conduct. As earlier noted, Dr. Darbellay made a point of cautioning the Wife about displaying anxiety in front of the child or asking leading questions. It would seem that in situations where social referencing is identified as a potential concern, one cannot simply examine the child’s conduct in isolation. Reciprocal attention must be paid to the parents’ behaviour. The trial decision addresses that feature, but it finds no expression in the new evidence, beyond Dr. Baker’s statement that the appellants demonstrated a 60 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

tendency to “indiscriminately endorse unusual symptomatology” in the child. She indicated their tendency to over-report was taken into consideration but does not explain in what manner. 124 Thirdly, the root principle in Dr. Baker’s report, as in Dr. Darbellay’s, is that a child’s attachment to others can only be authenticated and promoted through and by the child’s primary attachment, usually the mother. If a child cannot form other meaningful attachments without the mother’s permission, surely with great power comes great responsibility. If a mother is unwilling or unable to create the necessary conditions or to alleviate a child’s discomfort, what then? Does the primary bond become simply a form of bondage? 125 The Baker Report states no declaration can be made involving “parental rights” since the respondent has not been interviewed, nor have his interactions with the child been evaluated. This characterization insinu- ates that the respondent was awarded custody on no other basis than the fact he was a biological parent. Again, without the ability to cross-examine, this cannot be clarified. If the premise is that little to no existing attachment exists between the respondent and the child, the evidence accepted by the trial judge was to the contrary. The evidence further suggested it was questionable whether that attachment would ever be genuinely promoted or authenticated by the appellants. The one-sided perspective in the Darbellay Report was a genuine concern for the trial judge, and the concern persists with the fresh evidence the appellants propose to adduce. 126 Mr. Stewart was, and remains, the only expert who has investigated both sides of the matter, who has witnessed the child in both homes, and in the presence of the parental figures. He was, and is, the only witness capable of speaking to the level of attachment that exists between the respondent and the child. Dr. Darbellay candidly acknowledged she was unable to speak to that issue. She noted that the appellants as a couple had never taken the child to visit the FN Reserve. At the outset of her report, Dr. Baker, similarly, acknowledged that she had not interviewed the respondent nor had she evaluated his interactions with the child. She was concerned only with the psychological state and needs of the child. 127 In attachment theory, as Dr. Darbellay noted, the resilience of the child is another key factor that cannot be predicted. It can be safely said that the child has managed frequent and prolonged absences from the Husband without any appreciable impairment in their relationship. At trial, the Husband acknowledged he was only home roughly 80 days in a O. (A.) v. E. (T.) Wilkinson J. 61

year due to his rigorous work schedule. The child has been accustomed to third-party care from a very young age due to both of the appellants’ work schedules. At an earlier age than many, C was enrolled in the Early Learning Program. No one questioned the impact of these separations, or whether these might have been traumatic for the child. 128 In all these areas the Baker Report manifests troubling frailties that preclude me from determining it would be potentially decisive on the issue of the child’s best interests. 129 Regarding the fourth requirement, Dr. Baker is well-credentialed; however, in the circumstances, there has been no opportunity to explore her qualifications or her opinion. Further, Dr. Baker acknowledges that reactive attachment disorder is the only diagnosis for attachment disorders that is presently recognized in the DSM-V. She conceded in her report that the child does not fit into the recognized category of reactive attachment disorder. Her diagnosis of anxious/avoidant attachment disorder derives from an article in 2011 by Dr. Dan Siegel. No publication details are provided. As a result, I am not satisfied the fourth requirement has been met. 130 From a factual perspective, what can be considered new information in the Baker Report is as follows: (a) the child said “T-man hit the boys” and the boys are mean and called C fat and ugly — the child went on to acknowledge that the respondent had never hit or hurt C in any way; (b) “T-man” wants C to live with him because “mommy’s skin is white and mine is brown”; and (c) the child asked Dr. Baker if it was possible to live with her and sleep in her playroom, and mentioned wanting to live with some neighbours who have a farm. 131 The report has not been subjected to cross-examination, or any kind of rigorous questioning that might provide context for the child’s statements. Dr. Baker referred to the fact that during play therapy sessions the child ignored the dolls representing parental figures, but this was a feature in evidence before the trial judge. The child’s use of the term “T- man” was fully explored at trial. Dr. Baker indicates the child’s comments demonstrate the respondent has attempted to alienate the child from the appellants, particularly the Wife. A contrary conclusion was reached at trial, but these reasons were not provided to Dr. Baker. 62 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

132 Rejecting information on the strict application of fresh evidence rules undoubtedly appears harsh, and offers no comfort to those who apprehend that a much-loved child is experiencing distress and who believe that they, and only they, can provide meaningful solace. 133 To this, the response must be that the trial judge was fully alive to the sensitive task of accommodating the child’s need for comfort and assurance in making a successful transition to the respondent’s primary care. Indeed, he crafted a careful and thorough plan incorporating a staged and gradual timetable. The transition plan fully detailed all exchanges of the child, and the obligations in sharing transportation. Importantly, the trial judge ordered the involvement of one or more professionals with appropriate insight and experience to assist the child through the process. He made the transition plan expressly contingent on the hiring and retention of qualified professional support. Of additional significance, he gave the parties leave to return the matter to him if disagreements arose. This was the natural and appropriate forum in which to canvass ongoing concerns about the child. 134 Had the child’s needs and best interests truly been at the forefront, this is where time and energy might have been invested, aided by the trial judge’s willingness to remain seized of the matter in the event of disagreement. Instead, the focus has been on securing further and better evidence, and prolonging this very long-standing dispute. 135 The application for fresh evidence must be denied, having particular regard to the second, third and fourth requirements in M. (C.).

VII. Conclusion 136 In my view, the appellants’ argument that the trial judge improperly weighed the relevant factors in determining the child’s best interests cannot be sustained. The weighing exercise is not performed to calibrated standards. Nor is it a recipe to be assessed according to its constituent ingredients, in disregard of the final product. It is a task that lies, particularly, within the trial judge’s purview and expertise. 137 It is clear from the trial judge’s reasons that he recognized that the child’s best interests had to be decided on a consideration of all relevant factors, including the very difficult question of the effect of removing the child from the care of the appellants. It was not a case in which the child would be at risk in either home. The trial judge’s findings went beyond continuity of care and touched on all the myriad considerations that have an impact on the child’s present and future well-being. O. (A.) v. E. (T.) Whitmore J.A. 63

138 In the circumstances, it is my respectful view that this Court must accord deference to the trial judge’s assessment of the evidence and to the discretion he exercised in arriving at his conclusion. I find no error in his reasoning or in the result. Finality is important and Van de Perre suggests it should be so. A child should not be unsure of a home for four years, as happened in this case. 139 For these reasons, the appeal must be dismissed. 140 The respondent will have his costs of the appeal, which are fixed in the amount of $4,000 inclusive of the costs of the motion to stay before Herauf J.A. and the motion to admit fresh evidence.

Ottenbreit J.A.:

I concur.

Whitmore J.A.:

I concur. Appeal dismissed; application to admit fresh evidence dismissed. 64 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: Unger v. Unger] Jeremy David Unger, Applicant and Victoria Ambre Unger, Respondent Ontario Superior Court of Justice Docket: Toronto FC-16-20742 2016 ONSC 4258 L.E. Fryer J. Heard: June 2, 2016 Judgment: June 27, 2016*** Conflict of laws –––– Family law — Children — Custody — Child removed from jurisdiction by spouse or spouse refusing to return child — Habitual residence –––– Mother lived in Ontario while father lived in Texas — Parties had extended family in Israel and met there while father was studying there — Parties lived in Texas after marrying there in 2011, and they had child there in 2012 — Parties moved to Israel with child in 2013 — Parties and child started vacation in Ontario in August 2015 and expected to return to Israel in mid-Octo- ber 2015 — Mother ultimately remained in Ontario with child, initially with consent of father — Father brought application in Ontario under Hague Conven- tion on the Civil Aspects of International Child Abduction, 1980 (Hague Con- vention) for order requiring mother to return child to Israel — Application dismissed — Hague Convention did not apply since child was habitually resident in Ontario at relevant time — Child’s habitual residence changed from Israel to Ontario around middle of October 2015 — Parties had mutually agreed to change their habitual residence from Israel to Ontario for foreseeable future — Parties had opened joint bank account in Ontario and enrolled child in daycare — Father had planned to return to Ontario after winding up parties’ affairs in Israel — Father later changed his mind and decided to remain in Israel while mother and child remained in Ontario — Child had been habitually resident in Ontario for appreciable period of time since father had not sought return of child until March 2016.

* A corrigendum issued by the court on December 19, 2016 has been incorporated herein. ** Affirmed at Unger v. Unger (2017), 88 R.F.L. (7th) 86, 2017 CarswellOnt 4796, 2017 ONCA 270 (Ont. C.A.). Unger v. Unger 65

Cases considered by L.E. Fryer J.: Chan v. Chow (2001), 2001 BCCA 276, 2001 CarswellBC 868, 15 R.F.L. (5th) 274, 199 D.L.R. (4th) 478, 90 B.C.L.R. (3d) 222, [2001] 8 W.W.R. 63, [2001] B.C.J. No. 904, 152 B.C.A.C. 176, 250 W.A.C. 176 (B.C. C.A.) — referred to Cornaz v. Cornaz-Nikyuluw (2005), 2005 CarswellOnt 4714, 20 R.F.L. (6th) 99, [2005] O.J. No. 4121, [2005] O.T.C. 837 (Ont. S.C.J.) — referred to Csoke v. Fustos (2013), 2013 ONSC 2417, 2013 CarswellOnt 5137, [2013] O.J. No. 1927 (Ont. S.C.J.) — referred to Fasiang v. Fasiangova (2008), 2008 BCSC 1339, 2008 CarswellBC 2096, 87 B.C.L.R. (4th) 118, [2009] 3 W.W.R. 327, [2008] B.C.J. No. 1892 (B.C. S.C. [In Chambers]) — considered Garelli v. Rahma (2006), 2006 CarswellOnt 2582, 28 R.F.L. (6th) 455, [2006] O.J. No. 1680 (Ont. S.C.J.) — referred to Gavriel v. Tal-Gavriel (2015), 2015 ONSC 4181, 2015 CarswellOnt 10112, 65 R.F.L. (7th) 452 (Ont. S.C.J.) — considered H. & S. (Minors), Re (1990), [1991] 3 W.L.R. 68, [1991] 2 A.C. 476, [1991] 3 All E.R. 230, [1991] 2 F.L.R. 262, [1991] Fam. Law 427 (Eng. C.A.) — referred to H. (A.) v. H. (F.S.) (2013), 2013 ONSC 1308, 2013 CarswellOnt 2510, 28 R.F.L. (7th) 163, [2013] O.J. No. 1011 (Ont. S.C.J.) — considered H. (Minors), Re (1996), [1998] A.C. 72, [1997] 2 W.L.R. 563, [1997] 2 All E.R. 225, [1996] H.L.J. No. 43, [1997] 2 F.C.R. 257, [1997] 1 F.L.R. 872, [1997] Fam. Law 468 (Eng. H.L.) — referred to Hammerschmidt v. Hammerschmidt (2013), 2013 ONCA 227, 2013 Carswell- Ont 4008, [2013] O.J. No. 1609 (Ont. C.A.) — referred to J. (A Minor) (Abduction: Custody Rights), Re (1990), [1990] 2 A.C. 562, [1990] 2 All E.R. 961, [1990] 2 F.L.R. 442, [1990] 3 W.L.R. 492 (U.K. H.L.) — considered Jackson v. Graczyk (2007), 2007 ONCA 388, 2007 CarswellOnt 3216, 86 O.R. (3d) 183, 283 D.L.R. (4th) 755, [2007] O.J. No. 2035, 45 R.F.L. (6th) 63 (Ont. C.A.) — considered Katsigiannis v. Kottick-Katsigiannis (2001), 144 O.A.C. 387, 2001 CarswellOnt 2909, 203 D.L.R. (4th) 386, 18 R.F.L. (5th) 279, 55 O.R. (3d) 456, 12 C.P.C. (5th) 191, [2001] O.J. No. 1598 (Ont. C.A.) — referred to Korutowska-Wooff v. Wooff (2004), 2004 CarswellOnt 3203, 242 D.L.R. (4th) 385, 5 R.F.L. (6th) 104, (sub nom. M.K.-W. v. M.S.W.) 188 O.A.C. 376, [2004] O.J. No. 3256 (Ont. C.A.) — referred to Mozes v. Mozes (1999), 239 F.3d 1067 (U.S. C.A. 9th Cir.) — considered P. v. P. (1997), [1997] 3 F.C.R. 550 (Eng. Fam. Div.) — referred to Pollastro v. Pollastro (1999), 1999 CarswellOnt 848, 171 D.L.R. (4th) 32, (sub nom. J.A.P. v. R.S.P.) 118 O.A.C. 169, 43 O.R. (3d) 485, (sub nom. 66 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Pollastro c. Pollastro) 43 O.R. (3d) 497 (Fr.), 45 R.F.L. (4th) 404, [1999] O.J. No. 911 (Ont. C.A.) — referred to Proia v. Proia (2003), 2003 ABQB 576, 2003 CarswellAlta 948, 41 R.F.L. (5th) 371, [2003] A.J. No. 846, 340 A.R. 363 (Alta. Q.B.) — followed T. (J.) v. T. (S.L.) (2016), 2016 ONCJ 83, 2016 CarswellOnt 2116, 129 O.R. (3d) 453 (Ont. C.J.) — referred to Thomson v. Thomson (1994), [1994] 10 W.W.R. 513, 173 N.R. 83, [1994] 3 S.C.R. 551, 6 R.F.L. (4th) 290, 97 Man. R. (2d) 81, 79 W.A.C. 81, 119 D.L.R. (4th) 253, 1994 CarswellMan 91, 1994 CarswellMan 382, [1994] S.C.J. No. 6, EYB 1994-67190 (S.C.C.) — referred to Wentzell-Ellis v. Ellis (2010), 2010 ONCA 347, 2010 CarswellOnt 2981, 78 R.F.L. (6th) 245, [2010] O.J. No. 1987, 320 D.L.R. (4th) 370, 262 O.A.C. 136, 102 O.R. (3d) 298 (Ont. C.A.) — referred to deHaan v. Gracia (2004), 2004 ABQB 74, 2004 CarswellAlta 224, 1 R.F.L. (6th) 140, (sub nom. H. (S.) v. G. (P.)) 351 A.R. 354, [2004] A.J. No. 94 (Alta. Q.B.) — considered Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 20(1) — considered s. 46 — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 14(20) — considered Treaties considered: Hague Convention on the Civil Aspects of International Child Abduction, 1980, C.T.S. 1983/35; 19 I.L.M. 1501 Generally — referred to Article 1 — considered Article 2 — considered Article 3 — considered Article 4 — considered Article 5(a) “rights of access” — considered Article 5(b) “rights of custody” — considered Article 12 — considered Article 13 — considered Article 13(a) — considered Article 13(b) — considered Article 16 — referred to

APPLICATION by father for order requiring mother to return child to Israel. Unger v. Unger L.E. Fryer J. 67

M. Stangarone, K. Maurina, for Applicant A. Feldstein, for Respondent

L.E. Fryer J.: I. Introduction 1 This is an Application by the Applicant Father, Jeremy David Unger, brought under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (entered into force 1 December 1983), (“Hague Convention” or “Con- vention”) seeking the return of his daughter Naomi Rachelle Unger (born June 13, 2012) to Tiveria, Israel. 2 The family travelled from Israel to Toronto in August 2015 on a planned vacation. At the end of the vacation the Mother, Victoria Ambre Unger and Naomi remained in Toronto. 3 The Father’s position is that Israel remains Naomi’s habitual residence. He consented to the Mother and Naomi extending their holiday and remaining in Toronto for a further fixed period of time. At the end of the temporary stay the Mother refused to return to Israel with Naomi and she is wrongfully retaining the child in Ontario. The Father states that he repeatedly asked the Mother and Naomi to return home. He delayed bringing this Application as he was (a) initially unaware of his rights under the Hague Convention and (b) seeking to placate the Mother and repair their relationship. 4 The Mother agrees that the family initially intended only a temporary stay in Ontario. However, for various reasons including her health, she and the Father agreed to move to Toronto for the foreseeable future. The parties took a number of concrete steps to start their new life in Toronto and wind-up their life in Israel. The Mother’s position is that the parties mutually agreed to change the child’s habitual residence from Israel to Ontario. Alternatively, even if Israel was found to be Naomi’s habitual residence, the Father consented or acquiesced to her remaining in On- tario with Naomi.

II. Background 5 The Mother is 29 years old and the Father is 28 years old. They met in Israel where the Father was studying. After they returned to their respective homes, the Mother in Toronto and the Father in Dallas, Texas, they carried on a long-distance relationship. 68 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

6 The Mother’s parents and other family live in Toronto. The Father’s parents and other family live in Dallas. The Mother and Father both also have extended family in Israel. 7 The parties were married on August 22, 2011 in Dallas and they remained living there. Their daughter Naomi was born the following year on June 13, 2012. 8 The Mother and Father decided that they wished to raise their family in Israel. They were accepted to the Nefesh B’Nefesh (NBN) Go North Program that provides financial grants and supports to families who undertake to permanently relocating in Israel. The parties executed a contract confirming this commitment. The contract required the parties to repay the financial grant should they leave Israel within three years. 9 The parties moved with Naomi to Tiveria, Israel in or around Febru- ary 2013. 10 The Father works from home as a web-developer. He was contracted through an Israeli company to work for EyeCarePro the head office of which is located in North York, Ontario. 11 The Mother has training as a make-up artist and hair stylist but she has not worked since Naomi was born.

III. Analysis 12 Canada and Israel are contracting states under the Hague Convention. Section 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), incorporates the Convention into the law of Ontario.

1. General Principles of the Hague Convention 13 Article 1 sets out the objects of the Convention which are: a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. 14 Pursuant to Article 3 of the Convention: The removal or the retention of a child is to be considered wrongful where — a) it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under Unger v. Unger L.E. Fryer J. 69

the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. 15 Article 4 of the Convention states: The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. 16 The Father relies upon Article 12 of the Convention in seeking to have Naomi returned to Israel; Article 12 states: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. 17 A person who applies for an order for the return of the child must establish the following on the balance of probabilities: (a) that the State to which he/she asks the child to be returned is the child’s habitual residence; (b) that he/she had a right of custody and was exercising that right at the time of removal or retention; and 70 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(c) that the removal or retention was wrongful, and done without his/her consent or acquiescence: T. (J.) v. T. (S.L.), 2016 ONCJ 83, 129 O.R. (3d) 453 (Ont. C.J.), at para. 8. 18 In considering an application under this part, the court is not to consider the subject child’s best interests as would be the case in a custody hearing: Article 16 of the Convention and Thomson v. Thomson, 1994 CanLII 26, [1994] 3 S.C.R. 551 (S.C.C.), at para. 578. The presumptive interests which do apply in deciding whether to return a child promptly are those set out in the preamble to the Convention, namely the interests of children generally in not being wrongfully removed from their habitual residence: Pollastro v. Pollastro, 1999 CanLII 3702, (1999), 43 O.R. (3d) 485 (Ont. C.A.), at para. 495.

2. Expeditious Process & Initial Procedural Orders 19 Article 2 of the Convention requires that the contracting states adopt expeditious procedures for the disposition of Convention applications for the return of a child or children. The normal practice is to make the necessary order based on a summary application: Korutowska-Wooff v. Wooff, 2004 CanLII 5548, (2004), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 19; and Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075, (2001), 55 O.R. (3d) 456 (Ont. C.A.), at para. 59. 20 This matter proceeded before me on the basis of affidavit evidence. I also permitted the Father to show a short video clip made by the Mother (touring their new apartment in Tiveria) with respect to what I have found to be a non-contentious issue. 21 The Mother made preliminary evidentiary objections. For oral reasons already given, I made the following rulings: • The Mother made a general objection that the Father raised new issues in his Reply Affidavit sworn May 20, 2016 contrary to rule 14(20) of the Family Law Rules, O. Reg. 114/99. I allowed the Father’s reply evidence with the exceptions noted below. • The Mother objected to the Father seeking to introduce in his Re- ply Affidavit dated May 20, 2016 a letter from a family lawyer in Israel regarding the law of custody in that state. I allowed the evidence but ruled that I would consider the objection when assessing weight. • I declined to consider an expert report by one, Alan Kaine put forward by the Father. Unger v. Unger L.E. Fryer J. 71

3. Determination of Child’s Habitual Residence 22 The court must first make a finding with respect to ‘habitual residence’ as this is the “sole connecting factor triggering the child’s return”: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183 (Ont. C.A.), at para. 27. 23 There is no definition of ‘habitual residence’ in the Convention. A child’s ‘habitual residence’ is a question of fact to be decided based on all of the circumstances. It is the place where the child resides for an appreciable period of time based on the joint, settled intention of the child’s parents. One parent’s settled intention is not sufficient. Parents need not intend for a place to be their permanent home for it to be deemed to be their habitual residence. See Korutowska-Wooff, at para. 8; Wentzell-Ellis v. Ellis, 2010 ONCA 347, 102 O.R. (3d) 298 (Ont. C.A.), at paras. 22-23; and H. (A.) v. H. (F.S.), 2013 ONSC 1308, 28 R.F.L. (7th) 163 (Ont. S.C.J.), aff’d Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, [2013] O.J. No. 1609 (Ont. C.A.). 24 It is not disputed that until the parties travelled to Toronto in August 2015, their habitual residence and that of Naomi was Israel. The family travelled from Israel to Canada on a return ticket and they were scheduled to return two months later on October 14, 2015. The parties left a furnished apartment in Tiveria for which they had paid a full years’ rent. They had prepaid Naomi’s daycare in Israel for the year. The family also left behind their dog. 25 The Father stressed that the parties had also entered into a binding contract with the Nefesh B’Nefesh Program that tied them to Israel. This contract would require the parties to repay the original grant of $7,500 if they left Israel within three years. 26 Between August 2015 and October 2015 the family travelled in the U.S. to attend the Mother’s sister’s wedding and to visit some of the Fa- ther’s family in Dallas, Texas. At this time, it was still the parties’ intention to return to Israel and habitual residence remained Israel. 27 After this point each party’s interpretation of the evidence diverges. Where the evidence of the parties conflicted, and in many of the important details it did not, I prefer that of the Mother. The Mother’s affidavit evidence was for the most part carefully stated and presented a more co- hesive narrative. The Father’s evidence contained more generalizations that were not supported by the extrinsic evidence. For example, the Fa- ther’s allegation of a ‘devious plan’ orchestrated by the Mother to retain Naomi in Ontario was not founded in the evidence. 72 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(i) Settled Intention to Change Habitual Residence 28 As Justice Kruzik stated in H. (A.) v. H. (F.S.), at para. 13, it is “this court’s task to determine the intention of the parents as of the last time that their intentions were shared.” 29 I find upon a review of all of the evidence that while the parties were in Toronto they mutually agreed to change their habitual residence from Israel to Ontario: this was the last time that they had shared intentions. The Father later changed his mind and decided to remain living in Israel while the Mother and Naomi remained in Ontario. On March 4, 2016 the Father communicated his wish that the Mother and Naomi return to Israel. 30 The Father submitted that the existence of a ‘settled intention’ is determined by reference to intention immediately prior to the physical move to the new residence. For this position he relied on Fasiang v. Fa- siangova, 2008 BCSC 1339, 87 B.C.L.R. (4th) 118 (B.C. S.C. [In Cham- bers]), at para. 64, citing deHaan v. Gracia, 2004 ABQB 74, 351 A.R. 354 (Alta. Q.B.). 31 In deHaan, the court found that the last time the parties’ intentions were shared was immediately prior to the move, this was the relevant time to determine the parties’ settled intention on the facts of that case. However, I do not interpret that case as standing for the proposition that the only time a court can consider a shared intention of the parties to change habitual residence is immediately prior to the physical move. 32 The United States Court of Appeals for the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (U.S. C.A. 9th Cir. 1999), at p. 1075, found that a settled intention need not be determined at the moment of departure from the prior habitual residence; the parties’ actions when abroad may indicate a settled intention to abandon the former habitual residence for a new habitual residence. 33 Although Mozes is a decision by a U.S. court, it has been followed in a number of Canadian authorities for the determination of habitual residence; include Proia v. Proia, 2003 ABQB 576, 340 A.R. 363 (Alta. Q.B.); Fasiang; T. (J.) v. T. (S.L.), and Csoke v. Fustos, 2013 ONSC 2417, [2013] O.J. No. 1927 (Ont. S.C.J.). In Ellis at para. 20 the court held that: [A]lthough foreign case law is not binding, the court should nevertheless take care to ensure consistency with the interpretations adopted by the courts of other states parties, particularly where a con- sensus has emerged from among them. To do otherwise would...not Unger v. Unger L.E. Fryer J. 73

only weaken the Convention but also run contrary to the will of the legislature which has chosen to enact it into domestic law. 34 When the family left Israel for Toronto in August 2015 in addition to attending the wedding, they also wished to seek treatment for the Mother’s medical condition of hypothyroidism with a background of autoimmune thyroiditis. The Mother deposed that upon her arrival, her parents were shocked at the state of her health. She had put on 80 pounds and was depressed. The Father suggested that the state of the Mother’s health was only a secondary reason for the trip as she could have continued to receive treatment from her doctor in Israel. However the evidence, including that of the Father’s employer, suggested that the Mother’s health and the desire to access Canadian health care services was a prime reason for the trip to Toronto. 35 The Mother returned to her Canadian doctors and her health improved. In or around the middle of October 2015, the parties agreed to remain in Ontario for the foreseeable future and they took steps to implement this plan. 36 The return flight to Israel was originally booked for October 14, 2015. The Mother’s mother changed the parties’ flights. The Father’s ticket was changed to a departure on or about November 8, 2015. The Mother’s ticket was changed to have no fixed return date. The Father stated that that this was done without his consent but he was aware of these arrangements at the time. However, as further set out below, these flight changes were consistent with the mutual intentions of the Mother and Father. 37 On October 22, 2015 the parties opened a joint bank account at the Bank of Nova Scotia in North York. On the account application the Mother listed her address as her parents’ home in North York, Ontario. The Father listed his address as 203 Creekside Lane, Coppell, Texas, not Tiveria, Israel. The Mother also attempted to close or freeze her bank accounts in Israel. Her visa through the Bank of Jerusalem had already been cancelled due to fraud activity. 38 The parties enrolled Naomi in the Prosserman Daycare on a full time basis; the form indicates that registration is for a twelve month period ending June 30, 2016. The enrolment form was signed by the Father on October 26, 2015, and he lists the Mother’s parents’ address in North York as his home address. The Father stated that he agreed to the daycare to allow the Mother time to go to the gym and to doctor’s appointments while she was staying in Canada as this was important for her health. 74 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

However, the cost of the daycare was $580 bi-weekly and the means of the family did not appear to be such that this would be an affordable expense simply to permit the Mother some time to go to the gym. For example the Father delayed his return trip to see Naomi by over a month in order to save “several hundred dollars” on the cost of his flight. 39 In his Affidavit sworn March 18, 2016 the Father stated: “Unless documentation was filed without my knowledge or consent, Naomi is not a Canadian citizen and has never resided in Canada”. The Father may not have been aware of documentation being filed but on November 5, 2015 he had signed the Canadian citizenship application form for Naomi. 40 On November 8, 2015 the Father returned to Israel. 41 The Father suggests that he agreed to the Mother and Naomi having a time-limited visit that he extended to December 2015. He stated in his Affidavit sworn March 18, 2015: The Respondent assured me that she was returning to Israel, with her mother, in December 2015, during which time I was hoping to speak to her about saving our marriage and remaining in Israel together with Naomi Rachelle. I continued to attempt to convince her to return. However, as December approached, she informed me that she would not be returning to Israel with her mother. 42 I prefer the evidence of the Mother which is that the Father returned to Israel in order to wind-up their affairs there and that at least initially, he planned to return to join them in Toronto. 43 On November 10, 2015 the Father sent by courier to the Mother original government documents including birth certificates, a social security card and vaccine records. The Father stated that these documents were required by the daycare. Around the same time as he couriered the documents, the Father sent three or four boxes of clothing, toys and other personal belongings. The Father says that he did this so that the Mother and Naomi would be more comfortable on their time-limited visit. 44 I query why the Father would go to the expense and trouble of ship- ping important documents and belongings to Canada when, according to him, the family was expected to return to Israel a few weeks later. 45 On December 6, 2015, the Father sent an e-mail to the Mother about future employment opportunities for her including links to various orga- nizations in and around Toronto. In his Affidavit evidence for this application, the Father stated that he wanted the Mother to acquire skills that she could bring back to Israel with her. However, in the same e-mail he Unger v. Unger L.E. Fryer J. 75

jokes about her and her father (a child psychologist and professor at York University), among others, forming part of a “wellness dream team”. 46 The Mother filed an Affidavit sworn by her sister, Carina Rock. The Father was close to Ms. Rock and it was through her that the parties met in Israel. Ms. Rock attaches a text message exchange that was initiated by the Father on November 17, 2015 after his return to Israel the relevant parts of which are set out below: Carina Rock: How’s it going in Israel? Father: So far so good! Trying to get everything in order, and cope with leaving....all that good stuff. Carina Rock: Enjoy yourself there. Before you head out. Take time to soak eretz Yisroel in Father: Yeah, I will! Carina Rock: Is that the plan. To head to TO?? Father: Yeah. The plan is be in Toronto until further notice...which basically means forever.... Carina Rock: Do you still have your job? Father: Yes I do! Which is good. At least then I won’t have to look for a new one in Toronto! Carina Rock: Yes. At least you have some money coming in Father: That’s true. And hopefully Vicky will get to working soon, too! Carina Rock: I wish you all the clarity and strength. To heal and move forward in a positive manner with forethought and irat Hashem Father: Thanks Carina! We need all of it! 47 The Father in submissions stressed that undue weight should not be placed on this ‘isolated’ text message exchange and he directed me to Gavriel v. Tal-Gavriel, 2015 ONSC 4181, 65 R.F.L. (7th) 452 (Ont. S.C.J.), at paras. 62-63, in support of this proposition. In Gavriel the family had moved to Guelph so that the mother could study at the university there. The parties separated three months after arrival. The mother commenced a divorce proceeding in Israel but later sought to have the children remain in Ontario. The father sought to have the children returned to Israel and relied on the mother’s divorce proceeding as an ‘admission’ that Israel was the habitual residence. The court found that on review of all of the evidence, the family had a settled intention to reside in Guelph. 76 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

48 In the case at hand the text message exchange supports the Mother’s assertion that the Father had returned to Israel to wind-up their affairs rather than the Father’s position that he was expecting the Mother to return home after her finite stay in Ontario. Rather than being an isolated admission it is consistent with other evidence of steps taken to facilitate a move. 49 The parties’ relationship during this time was rocky. Just prior to his leaving for Israel in November 2015, the Mother’s father observed what he felt was inappropriate behaviour by the Father toward Naomi. The Mother also disclosed to her parents that she had concerns about the Fa- ther’s actions toward Naomi while they were living in Israel. 50 The Father included in his affidavit evidence, the file from Jewish Family & Child Services (“JF&CS”) which was contacted for the first time on November 5, 2015 by a third party regarding alleged inappropriate behaviour by the Father toward Naomi. JF&CS conducted an investigation including an interview with and physical examination of Naomi the results of which were inconclusive and the file was closed. JF&CS also contacted the police; no charges were laid. I reviewed the JF&CS notes. I make no finding as to whether the Father did anything improper with respect to his child. 51 Sometime after his return to Israel in November 2015, the Father appeared to have second thoughts about whether he would return to live in Toronto. However, even then he did not insist that the family return to Israel but rather suggested that he would stay in Israel and visit Naomi who would remain living in Toronto with the Mother. 52 The JF&CS notes are helpful to the extent that they were prepared by a neutral third party and corroborate the parties’ intentions with respect to where they intend to reside: • November 9, 2015 — the Mother told Sabrina Propper, JF&CS Family Service Worker that the Father “left to Israel. Will probably be there are least a few months”. • November 23, 2015 — the Mother told Sabrina Propper that she had been communicating with the Father and that he “wants to start working on things over Skype while he is in Israel ... [the Mother] said that [the Father] will decide if he returns or not based on the outcome of the counselling”. Unger v. Unger L.E. Fryer J. 77

• December 14, 2015 — the Mother told Sabrina Propper that she thinks that the Father is “going to come back to Toronto and rent a place so they can go to therapy”. 53 On December 1, 2015 the Mother and Father had the following text message conversation: Mother: when can I tell her you’re coming home? Father: You can tell her I’m coming to see her as soon as I can! It’ll have to be at the beginning of February. It’s the first time I can afford to come, since prices dip by a few hundred dollars in February. Mother: Are you staying or leaving us? Father: I’ll be asking you to come back home with me. 54 The Father emphasizes that this statement supports the fact that he always expected the Mother and Naomi to return to Israel. However, two weeks later, on December 13, 2015, the Father sent the Mother a text message asking her to find him a “small affordable place in Toronto to stay at while we fix this [sic] ourselves up.” 55 The Mother contacted JF&CS again in early January 2016 as further similar concerns regarding Naomi had arisen. Again the JF&CS notes provide insight into the parties’ intentions with respect to their place of residence: • January 11, 2016 — the Mother advises Sabrina Propper that the Father gave her “conditions if he is to reconcile that she has to go to the shul everyday. He has to be able to take Naomi to the potty, put her to sleep and stay in bed with her all night. For Victoria to go out with friends so he can stay home alone with Naomi.” There is no mention of a return to Israel being a condition of reconcilia- tion. The Mother confirms that the Father is intending to come for a visit between February 6 and March 7 and she does not know with whom he will be staying. • February 10, 2016 — the Father advises Sabrina Propper that “he will likely stay in Israel and come visit [Naomi] when he can”.

(ii) Temporary Stay does not Change Habitual Residence 56 Under the Hague Convention, “if the removal of the children from their habitual residence was consented to, there has been no breach of custody rights unless the children’s retention in their non-habitual resi- 78 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

dence extends beyond the limits of the consent to their removal”: Kat- sigiannis, at para. 33. 57 A parent’s consent to a time limited stay does not shift habitual residence: see Cornaz v. Cornaz-Nikyuluw, 2005 CanLII 34802, (2005), 20 R.F.L. (6th) 99 (Ont. S.C.J.); Ellis; H. (A.); and Katsigiannis. 58 A “wrongful retention occurs in a situation of a refusal to return a child after a trip abroad, made with the consent of a rightful custodian.... [and] begins from the moment of the expiration of the period of access, where the original removal was with the consent of the rightful custodian of the child”: Cornaz, at paras. 40, 41, citing Thomson, at paras. 73 and 74. 59 The Father asserts that he only agreed to a time limited stay in On- tario for the Mother to get medical treatment and to spend time with family; it was a good time to do this as Naomi was not yet in full time school. He says that the expected duration of the stay was to be about three months. He relies, in part, upon a letter produced by the Mother from her doctor dated January 21, 2016 that states that the Mother should require “3 months to stabilize”. However, the Father’s assertion appears to have come up after the fact and was designed to tie in the doctor’s letter later produced by the Mother. 60 The evidence as detailed above does not suggest that the Father made known to the Mother that he expected her to return to Israel within three months or any other fixed time. 61 The Father in his Factum submitted that he was “attempting to placate the Mother and convince her to return in the face of her refusals because he knew that she would otherwise attempt to terminate his contact with Naomi.” His “communications and actions must be viewed through the lens of a desperate father trying to bring his daughter back home. He was without legal counsel and had no understanding of the Hague Convention.” 62 I do not agree with the Father’s characterization of the evidence. 63 Residing in Israel was clearly very important to the Father and he expressed regret that the family would not be living together in Israel for the foreseeable future. The parties attended marriage counselling with Rabbi Kass in October 2015 and the Father advised that he felt betrayed by the Mother’s reluctance to return to Israel (both parties requested and consented to the release of Rabbi Kass’ notes). However, there was scant Unger v. Unger L.E. Fryer J. 79

evidence to support the Father’s position that he repeatedly asked and the Mother repeatedly refused to return to Israel with Naomi. 64 The Father also submitted that the Mother’s evidence should be viewed critically as part of a devious plan that she “has been orchestrat- ing...to remain in Canada with Naomi and shut [him] out of her life”. This plan apparently related to the Mother making false allegations about the Father’s inappropriate behaviour toward Naomi. I did not find evidence of an orchestrated plan by the Mother devious or otherwise. 65 The Mother contacted the JF&CS in November 2015 and again in January 2016 regarding statements that she alleges Naomi made. The Fa- ther suggests that the timing of the Mother’s contact with JF&CS was strategic and designed to gain an edge in a possible legal battle. On Feb- ruary 2, 2016 the Mother did tell Sabrina Propper that she had seen a lawyer and he had asked if JF&CS would support her position on supervised access. Generally, however, the JF&CS notes reflect that the Mother had reservations about bringing her concerns about the Father forward. In a later conversation on February 10, 2016, the Mother stated that she hoped that her concerns were unfounded and if they were, she would feel terrible for falsely accusing the Father and “destroying his life and their marriage.” 66 The Father acknowledged to Sabrina Propper that the Mother was a good mother and that she was just doing what she needed to protect Naomi. He also agreed that some of the comments made by Naomi were concerning and he did not know why she was making them. Further- more, the Mother facilitated regular visits between Naomi and the Father when he returned to Ontario in February 2016. It was Sabrina Propper who cautioned the Mother several times to ensure that she keeps Naomi safe. 67 Both parties wanted to work on the marriage and both were struggling to deal with the disclosures that Naomi was making. The Father, although willing to participate in counselling was also setting criteria for a continuation of his marriage. On February 10, 2016, just prior to separation the Mother told JF&CS worker Sabrina Propper that “she feels lost, she doesn’t want any of this to be true, but she can’t take risks, especially when [the Father] is willing to talk about it, and go to therapy. [B]esides this, she feels that they could be very compatible.” 68 In my view the Father’s lack of knowledge of the Convention was not a significant factor. The evidence does not demonstrate that he was repeatedly asking the Mother to return to Israel rather that he had initially 80 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

agreed to move to Ontario and later consented to the Mother and Naomi living in Ontario when he decided to remain in Israel. While it is possible that the Father might have taken a different position with the benefit of legal advice, this is speculative. Similarly, I saw no evidence that the Mother had orchestrated a plan, devious or otherwise, to remain living in Ontario with Naomi without the Father’s consent.

(iii) Parties must first abandon former Habitual Residence 69 The Father submitted that the parties did not have a settled intention to move to Ontario as they had not taken steps to abandon Israel as their habitual residence. 70 The United States Court of Appeals for the Ninth Circuit in Mozes v. Mozes, at p. 1075, following J. (A Minor) (Abduction: Custody Rights), Re, [1990] 2 All E.R. 961 (U.K. H.L.), at p. 965, with respect to the issue of abandoning the prior place of habitual residence held: [O]ne need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended. 71 The Alberta Queen’s Bench in Proia set out some indicia of abandonment to be considered on the facts of each case: • Written documentation of the parties’ joint decision to leave the former habitual residence; • Execution of the plan to leave, not just an intention to leave; • Sale of property in the former habitual residence; • Resignation of employment in former habitual residence; • Registration of children in day-care or school in new habitual residence; and • Movement of possessions from former habitual residence to new habitual residence. 72 The court in Proia also found that factors such as immigration status, location of house or term of tenancy in new habitual residence, and continued ties with former habitual residence, were not necessarily determinative of a failure to abandon the former habitual residence. 73 The Father asserted that he “did not give up his employment in Israel”. However, the Father works from home, remotely for a Canadian company and it appears that even while in Israel he was working on Unger v. Unger L.E. Fryer J. 81

North American business hours. In the text message exchange with Ca- rina Rock, the Father expressed thanks that he did not have to look for work in Canada as he already had a job. 74 The Father stated that he did not terminate the lease on the parties’ apartment nor cancel the child’s daycare in Israel. However, the parties had prepaid both of these obligations for the year and it was not clear from the documents (which were in Hebrew without an accompanying translation) if a refund would even be available. 75 The Father stated that the parties’ apartment “remains fully furnished” and they did not sell their furniture. According to the lease agreement that was in English, the apartment that the parties lived in just before they moved in Tiveria came furnished. As their current lease agreement was not translated from Hebrew, I was not able to determine if this was true for this apartment as well. 76 Furthermore, at some time after the Father returned to Israel, he decided that he would remain living there and would return to Ontario to visit with Naomi. For this reason, it would make sense that he did not terminate the prepaid lease on the apartment in Tiveria. 77 The Father stated that he has no status in Canada and did not seek to obtain status. There was no evidence that the Father had raised this at any time as a concern before initiating this Application. In his text exchange with Carina Rock, he confirms that he will be working in Toronto. Ulti- mately this issue was moot as the Father made a decision to remain living in Israel.

(iv) Appreciable Time 78 In Fasiang, at para. 68, citing Mozes, the court held: “Settled intention alone is not enough, for habitual residence to be established the child actually has to move and an appreciable period of time must pass”. The court in Fasiang went on to confirm that an appreciable period of time is a question of fact and not a fixed period: at paras. 69-70. In Fasiang a period of 23 days was deemed an appreciable period of time. 79 The period of time necessary to establish habitual residence can be as short as one day: see Gavriel, at para. 55; and Fasiang, at para. 71. 80 In the middle of October 2015 the parties decided to make Ontario the habitual residence of Naomi. Over the next two months they took steps to implement the decision. Sometime thereafter, the Father changed his mind and he decided that he would remain living in Israel; the 82 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Mother and Naomi continued to live in Ontario per the original plan. It was only on March 4, 2016 that the Father communicated his desire to have Naomi returned to Israel. In my view this constitutes an appreciable period of time.

(v) Summary re Change in Habitual Residence 81 I find that when the parties’ intentions were last shared, their settled intention was to reside indefinitely in Ontario. This finding is supported by the parties’ various statements made to each other and to third parties and also by the steps that they took to affect this shared intention. 82 The Father later changed his mind and decided to remain living in Israel and to visit with the Mother and Naomi who would remain living in North York. This is again supported by the statements made by both parties to each other and to third parties and also by the steps taken or not taken. 83 I find that Naomi’s habitual residence changed from Israel to Ontario in or around the middle of October 2015. 84 As I have found that Naomi was not habitually resident in the contracting state of Israel but rather that her habitual residence is Ontario, the Convention does not apply: Jackson, at para. 39.

4. If Israel is Habitual Residence 85 If I am not correct in finding that the parties mutually agreed to change the child’s habitual residence to Ontario, then her habitual residence would be Israel as submitted by the Father. 86 Pursuant to Article 3 of the Convention if Israel is Naomi’s habitual residence then the Mother’s retention of Naomi in Ontario is wrongful if it is in breach of the Father’s rights of custody under the law of Israel immediately before the retention and those rights were actually being exercised or would be exercised but for the wrongful retention.

(i) Was the Father exercising rights of custody? 87 Article 5 of the Convention states: For the purposes of this Convention — a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; Unger v. Unger L.E. Fryer J. 83

b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. 88 The Court of Appeal for Ontario held in Jackson, at para. 41, that rights of custody under “Article 3(b) ‘must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent’. See H. & S. (Minors), Re, [1991] 2 A.C. 476 (Eng. C.A.) at 500.” 89 According to the letter of lawyer, Edwin Freedman attached to the Father’s Affidavit sworn May 20, 2016 under the law of Israel “both parents share joint decision making authority regarding their children’s place of residence. In the event that both parents cannot agree as to the child’s place of residence, only the court is authorized to make that determination.” 90 If I were to reject this opinion evidence as submitted by the Mother, there would be no evidence before me with respect to the law of Israel and the applicable law would be that of the lex fori — Ontario: T. (J.) v. T. (S.L.), at para. 88, citing Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222 (B.C. C.A.). 91 In Ontario, the CLRA, s. 20(1) states that “except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.” 92 If it were found that Israel was the child’s habitual residence, the Mother retaining Naomi in Ontario would be in contravention of the Fa- ther’s custody rights including his right to determine the place of residence for Naomi. 93 Pursuant to Article 12 of the Convention this conclusion would require the court to return Naomi to Israel unless the Mother can demonstrate that one of the exceptions under the Convention applies. 94 Article 13 of the Convention reads in part as follows: Notwithstanding the provision of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that — a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or 84 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

b) there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 95 The courts in Ontario have held that Article 13 should be given a narrow interpretation in order to support the overall purpose of the Hague Convention: Garelli v. Rahma (2006), 28 R.F.L. (6th) 455, 2006 CarswellOnt 2582 (Ont. S.C.J.), at para. 35.

(ii) Grave Risk of Harm 96 The Mother raised but did not strenuously argue that Naomi would be at grave risk of harm if returned to Israel as she would lose the attachment to her. However, she advised the court that if Naomi was to return to Israel, she would return with her. With respect to the allegations of the Father’s inappropriate behaviour toward Naomi, those allegations would quite properly be put before the court in Israel as part of a determination of custody and access. Lastly, the Father confirmed that he was not necessarily seeking that Naomi be returned to his sole care. For these reasons, the Mother has not demonstrated that Article 13(b) applies.

(iii) Did the Father Consent or Acquiesce 97 The Mother took the position that pursuant to Article 13(a) the Father had explicitly consented to Naomi being retained by her in Ontario or that he had so acquiesced. 98 The Court of Appeal in Katsigiannis, at para. 43, citing P. v. P., [1997] 3 F.C.R. 550 (Eng. Fam. Div.), aff’d March 6, 1998 (C.A.), held that “although consent does not have to be evidenced in writing or expressly stated, it must ‘amount to clear and cogent evidence of an une- quivocal consent’” and that acquiescence must meet the same standard. 99 Under Article 13(a) acquiescence is a question of fact that can be in- ferred from conduct and statements: Katsigiannis, at para. 38, citing H. (Minors), Re, [1997] 2 All E.R. 225 (Eng. H.L.). In assessing the issue of acquiescence “more weight should be attached to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of intention”: Katsigiannis, at para 39, citing H. (Minors), Re. 100 The Court of Appeal for Ontario in Katsigiannis, at para. 41, went on to state that “even if a wronged parent has never in fact acquiesced in the child’s removal or retention, if he or she has said or done something which is clearly and unequivocally inconsistent with the summary return Unger v. Unger L.E. Fryer J. 85

of the child, the wronged parent’s actual subjective intention will be disregarded.” 101 For all the same reasons set out above with respect to my finding on habitual residence, I find that the Father unequivocally consented and/or acquiesced to Naomi remaining in Ontario. Even when he later changed his mind about his residing in Ontario, he did not oppose the Mother and Naomi doing so and confirmed that he would return from time to time for visits with Naomi. His actions as detailed above were consistent with his having consented to Naomi and the Mother remaining in Ontario indefinitely. He later changed his mind and initiated this Application. 102 For these reasons, even if Israel was found to be Naomi’s place of habitual residence she is not being wrongfully retained in Ontario by the Mother and there has been no contravention of the Father’s rights of custody as he provided his consent and/or he acquiesced to this arrangement.

IV. Order 103 The Application of Jeremy David Unger under the Convention on the Civil Aspects of International Child Abduction is dismissed. 104 The Respondent shall make written submissions with respect to costs not to exceed 5 pages excluding any offers to settle and Bill of Costs on or before July 15, 2016. The Applicant shall deliver responding submissions also not to exceed 5 pages excluding offers and Bill of Costs on or before July 23, 2016. Any reply submissions shall not exceed 2 pages and shall be delivered on or before July 28, 2016. All submissions to be delivered to my assistant by e-mail. Application dismissed. 86 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: Unger v. Unger] Jeremy David Unger (Appellant / Applicant) and Victoria Ambre Unger (Respondent) Ontario Court of Appeal Docket: CA C62497 2017 ONCA 270 K. Feldman, Robert J. Sharpe, L.B. Roberts JJ.A. Heard: March 27, 2017 Judgment: March 31, 2017 Conflict of laws –––– Family law — Children — Custody — Child removed from jurisdiction by spouse or spouse refusing to return child — Habitual residence –––– Parties married in 2011 and had child in 2012 in Texas — Parties moved to Israel with child in 2013 or 2014 — Parties and child went to Ontario in August 2015 and expected to return to Israel three months later — Mother ultimately remained in Ontario with child, while father returned to Israel — Ap- plication judge dismissed father’s application in Ontario under Hague Conven- tion on the Civil Aspects of International Child Abduction, 1980 for order requiring mother to return child to Israel — Judge held that Hague Convention did not apply since child was habitually resident in Ontario at relevant time — Judge found that parties mutually agreed to change habitual residence from Israel to Ontario around middle of October 2015, but that father later changed his mind and decided to remain in Israel while mother and child remained in Ontario — Judge found that child had been habitually resident in Ontario for appreciable period of time since father had acquiesced to child remaining in On- tario and had not sought return of child until March 2016 — Father appealed — Appeal dismissed — Judge did not make palpable and overriding errors in her findings of fact or conclusion that father acquiesced to child remaining in On- tario — It was not for appellate court to reassess evidence, as father requested. Cases considered: Balev v. Baggott (2016), 2016 ONCA 680, 2016 CarswellOnt 14331, 84 R.F.L. (7th) 291, 405 D.L.R. (4th) 98, 133 O.R. (3d) 735 (Ont. C.A.) — referred to I. (A.M.R.) v. R. (K.E.) (2011), 2011 ONCA 417, 2011 CarswellOnt 3972, 106 O.R. (3d) 1, 333 D.L.R. (4th) 577, 278 O.A.C. 166, 2 R.F.L. (7th) 251, 236 C.R.R. (2d) 342, [2011] O.J. No. 2449 (Ont. C.A.) — considered Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 46(5) — considered Unger v. Unger Per curiam 87

Treaties considered: Hague Convention on the Civil Aspects of International Child Abduction, 1980, C.T.S. 1983/35; 19 I.L.M. 1501 Generally — referred to Article 3 — considered Article 12 — considered Article 13(a) — considered

APPEAL by father from judgment reported at Unger v. Unger (2016), 88 R.F.L. (7th) 64, 2016 ONSC 4258, 2016 CarswellOnt 10374 (Ont. S.C.J.), dismissing his application for order requiring mother to return child to Israel.

Michael J. Stangarone, Kristy A. Maurina, for Appellant Andrew Feldstein, Nick Slinko, for Respondent

Per curiam:

1 The appellant appeals the dismissal of his application against his former spouse, under Articles 3 and 12 of the Convention on the Civil As- pects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 (“Hague Convention”) and s. 46(5) of the Chil- dren’s Law Reform Act, R.S.O. 1990, c. C.12, for a declaratory order that their child is habitually resident in Israel and that she was wrongfully retained by the respondent in Canada, and for an order that their child be returned to Israel. 2 Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 3 Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return. 4 There are limited defences to the operation of Articles 3 and 12. For instance, where the habitual residence of the child has changed, a de- 88 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

fence against an application for his or her mandatory return to the former habitual residence will be available. Further, Article 13(a) of the Hague Convention provides that the mandatory return of the child is not required where the person having the care of the child had consented to or subsequently acquiesced in the removal or retention of the child. 5 From February 2014 to August 2015, the appellant and the respondent lived in Israel with their daughter. In August 2015, they travelled to Toronto, Ontario to visit the respondent’s parents and to allow the respondent to seek medical treatment for various, serious medical issues. At the end of three months, the appellant returned to Israel; the respondent and their daughter remained in Toronto. 6 The application judge found that while the parties were in Toronto, they mutually agreed to change their habitual residence from Israel to Ontario, but that the appellant later changed his mind and decided to remain in Israel, and wanted the respondent and their daughter to return to Israel as well. The application judge also determined that the appellant had acquiesced in the respondent and their daughter remaining in On- tario. As a result, the application judge determined that she was not bound to order the return of the daughter to Israel. 7 The application judge’s determinations that the daughter’s habitual residence is Ontario and that the appellant had consented to or acquiesced in Ontario as the daughter’s habitual residence are factual findings that are subject to considerable deference on appeal: Balev v. Baggott, 2016 ONCA 680, 405 D.L.R. (4th) 98 (Ont. C.A.), at para. 53; I. (A.M.R.) v. R. (K.E.), 2011 ONCA 417, 106 O.R. (3d) 1 (Ont. C.A.), at para. 88. 8 The appellant submits that the application judge made palpable and overriding errors in her consideration of the evidence and findings of fact with the result that she erred in determining that the appellant had consented to or acquiesced in Ontario as the habitual residence of his daughter. 9 We disagree. 10 The application judge carefully and thoroughly reviewed the evidence presented by the parties. Her findings that the appellant had consented to or acquiesced in Ontario as his daughter’s habitual residence were open to her on the record. In particular, the application judge looked to the appellant’s own conduct and communications with the respondent and others to support her findings. For example, in a text message exchange with the respondent’s sister on November 17, 2015, after his return to Unger v. Unger Per curiam 89

Israel, the appellant wrote that he was “[t]rying to get everything in order, and cope with leaving. . .” and that “the plan is to be in Toronto until further notice. . .which basically means forever. . .”. In later texts to the respondent in December 2015, the appellant advised that he would come to Toronto from time to time to visit, asked her to find him a place in Toronto where he could stay, and forwarded employment training opportunities for the respondent in Toronto. 11 The appellant’s main complaint is that the application judge should have weighed the evidence differently and in his favour. This is an entirely fact–driven appeal and the appellant asks this court to reassess the evidence on the application. That is not our task. Appellate review of a decision under the Hague Convention is not “a hearing de novo or an invitation to re-litigate the matters determined on the application”: I. (A.M.R.), at para. 88. 12 We see no error in the application judge’s dismissal of the appellant’s application. There is no basis to interfere. 13 Accordingly, the appeal is dismissed. 14 The parties agreed that, as the successful party on appeal, the respondent is entitled to costs in the amount of $10,000, inclusive of disbursements and taxes. Given the relative modest means of the appellant, we order that the appellant shall have six months to pay the costs awarded to the respondent. Appeal dismissed. 90 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: Norris v. Norris] Anderson Llewlyn Norris (Applicant) and Ellen Seville Norris (Respondent) Ontario Superior Court of Justice Docket: FC-15-240 2016 ONSC 7077 Sylvia Corthorn J. Heard: October 21, 2016 Judgment: November 21, 2016 Family law –––– Division of family property — Order for division of property — Ancillary order –––– Parties separated number of years ago, but date of separation was in issue — Trial was set for purposes of determining date of separation, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Wife brought motion for interim relief, including refinancing line of credit — Motion granted in part — Parties agreed line of credit should be refinanced, but they disagreed on terms on which refinancing should be carried out — Given significant contradictions with respect to handling of parties’ assets, including joint bank accounts, line of credit was not set aside — Wife claimed she would be able to save $600 per month if she refinanced at lower interest rate, and having her continue to pay $600 more per month than was necessary toward reducing encumbrance on home negatively affected ability of both parties to make equalization payment if and when they were ordered to do so — It was reasonable for wife to proceed with refinancing matrimonial home to maximum of $187,000, and court dispensed with requirement for husband to consent to refinancing, which would hopefully be satisfactory to bank. Family law –––– Division of family property — Matrimonial home — Deter- mination of share of ownership — General principles –––– Parties separated number of years ago, but date of separation was in issue — Trial was set for purposes of determining date of separation, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Wife brought motion for interim relief, including vesting title to matrimonial home in her name only — Motion granted in part — Unless and until order for equalization payment or some other order dealing with matrimonial home was made, and Norris v. Norris 91 other relevant criteria were met, court did not have power to make order pursuant to s. 9 of Family Law Act vesting title to matrimonial home in wife’s name. Family law –––– Division of family property — Matrimonial home — Order for possession — Interim possession — Factors to be considered by court –––– Parties separated number of years ago, but date of separation was in issue — Trial was set for purposes of determining that issue, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Wife brought motion for interim relief, including granting her exclusive possession of matrimonial home — Motion granted in part — Until date of separation and equalization payment were determined it would be inappropriate to grant wife exclusive possession of matrimonial home — It would be unfair to husband to make order that defeated his right, as joint owner, to pursue partition and sale of matrimonial home. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Practice and procedure — General principles –––– Parties separated number of years ago, but date of separation was in issue — Trial was set for purposes of determining date of separation, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Wife brought motion for interim relief, including order treating payments she made as spousal support — Motion granted in part — Even if payments toward line of credit were treated as spousal support, evidence did not establish that they would receive tax treatment applicable to spousal support payments made in ordinary course of family law proceeding — Expert evidence was required in field of income tax to determine applicable tax treatment of payments. Civil practice and procedure –––– Pleadings — Application to strike — General principles –––– Parties separated number of years ago, but date of separation was in issue — Trial was set for purposes of determining date of separation, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Wife brought motion for interim relief, including striking paragraphs of husband’s factum — Motion granted in part — Impugned paragraphs of factum were inflammatory within meaning of R. 1(8.2) of Family Law Rules and they were struck from record. Civil practice and procedure –––– Admissions — Request to admit –––– Par- ties separated number of years ago, but date of separation was in issue — Trial 92 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

was set for purposes of determining date of separation, which would have effect on husband’s claim for equalization payment as wife took position that claim was statute-barred — Wife had been paying balancing owing on line of credit, secured against matrimonial home, which husband obtained without her consent — Husband brought motion for order extending deadline by which he was to file response to request to admit — Motion granted in part — In support of motion for summary judgment, wife sought to rely on deemed admissions arising from failure of husband to deliver response to request to admit, and deemed admissions were central to issue of date of separation — If husband was not granted leave to deliver response to request to admit, his lack of success on motion was likely to lead to his claim for equalization payment being statute- barred — In circumstances, husband was granted leave to bring motion for order extending deadline by which to deliver response to request to admit. Cases considered by Sylvia Corthorn J.: Aning v. Aning (2002), 2002 CarswellOnt 1990, 30 R.F.L. (5th) 237, [2002] O.J. No. 2469 (Ont. S.C.J.) — referred to Arlow v. Arlow (1990), 27 R.F.L. (3d) 348, 1990 CarswellOnt 274 (Ont. Dist. Ct.) — referred to Arlow v. Arlow (1991), 33 R.F.L. (3d) 44, 1991 CarswellOnt 276 (Ont. C.A.) — referred to Barker v. Barker (2011), 2011 ONCA 447, 2011 CarswellOnt 4563, 5 R.P.R. (5th) 247, 6 C.P.C. (7th) 16, 278 O.A.C. 395 (Ont. C.A.) — referred to Batler v. Batler (1988), 18 R.F.L. (3d) 211, 67 O.R. (2d) 355, 1988 CarswellOnt 321, [1988] O.J. No. 2115 (Ont. H.C.) — referred to Buttar v. Buttar (2013), 2013 ONCA 517, 2013 CarswellOnt 11488, 116 O.R. (3d) 481, 309 O.A.C. 222, 35 R.F.L. (7th) 1, [2013] O.J. No. 3725 (Ont. C.A.) — considered Caracciolo v. Ruberto (2010), 2010 ONSC 525, 2010 CarswellOnt 305 (Ont. S.C.J.) — referred to Filipponi v. Filipponi (1992), 40 R.F.L. (3d) 296, 1992 CarswellOnt 259 (Ont. Gen. Div.) — referred to Groulx v. Groulx (1990), [1990] O.J. No. 1299, 1990 CarswellOnt 2345 (Ont. H.C.) — considered Kennedy v. Sinclair (2001), 2001 CarswellOnt 1634, 18 R.F.L. (5th) 91, [2001] O.J. No. 1837 (Ont. S.C.J.) — referred to Lynch v. Segal (2006), 2006 CarswellOnt 7929, 82 O.R. (3d) 641, 33 R.F.L. (6th) 279, 26 B.L.R. (4th) 14, 277 D.L.R. (4th) 36, 219 O.A.C. 1, [2006] O.J. No. 5014 (Ont. C.A.) — followed Lynch v. Segal (2007), 2007 CarswellOnt 4425, 2007 CarswellOnt 4426, 375 N.R. 392 (note), 241 O.A.C. 396 (note), [2007] S.C.C.A. No. 84 (S.C.C.) — referred to Maguire v. Maguire (2003), 2003 CarswellOnt 3346, 45 R.F.L. (5th) 430, [2003] O.J. No. 3060 (Ont. S.C.J.) — referred to Norris v. Norris 93

Misner v. Misner (2010), 2010 ONSC 2284, 2010 CarswellOnt 2713, 83 R.F.L. (6th) 264 (Ont. S.C.J.) — referred to Morrison v. Barclay-Morrison (2008), 2008 CarswellOnt 6956, [2008] O.J. No. 4663 (Ont. S.C.J.) — referred to Panchalingam v. Pathmalingam (2013), 2013 ONSC 4284, 2013 CarswellOnt 8578, 38 R.F.L. (7th) 326 (Ont. S.C.J.) — referred to Sutchy v. Sutchy (2013), 2013 ONSC 160, 2013 CarswellOnt 147 (Ont. S.C.J.) — referred to Verch v. Verch (2012), 2012 ONSC 2621, 2012 CarswellOnt 5803, 21 R.F.L. (7th) 367 (Ont. S.C.J.) — distinguished Statutes considered: Courts of Justice Act, R.S.O. 1990, c. C.43 s. 100 — considered Family Law Act, R.S.O. 1990, c. F.3 s. 5 — considered s. 5(6) — considered s. 7 — referred to s. 9 — referred to s. 9(1) — considered s. 9(1)(a)-9(1)(d) — referred to s. 9(1)(d) — considered s. 21 — considered s. 21(1) — considered s. 21(1)(b) — considered s. 21(2) — considered s. 23 — considered s. 23(b) — considered s. 23(d) — considered s. 24 — considered s. 34(1)(a) — considered s. 34(1)(e) — considered Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to S. 56.1(2) — considered s. 60.1(2) — considered Rules considered: Family Law Rules, O. Reg. 114/99 Generally — referred to R. 1(8) — considered R. 1(8.2) [en. O. Reg. 322/13] — considered R. 2 — referred to R. 2(2) — referred to 94 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

R. 2(3) — referred to R. 2(4) — referred to R. 14(23) — considered

MOTION by wife for interim relief respecting matrimonial home; MOTION by husband for order extending deadline by which he was to file response to request to admit.

Michael Rappaport, for Applicant, Respondent Party Steven Fried, for Respondent, Moving Party

Sylvia Corthorn J.: Introduction 1 The parties separated a number of years ago — in 2008 or 2009. The date of separation is an issue to be determined in this proceeding. A ‘Rule 2’ trial, for the purpose of determining that issue, is scheduled for January 2017. The determination of that issue will in turn play a role in the outcome of the applicant’s (“Mr. Norris”) claim for an equalization payment. The respondent (“Mrs. Norris”) takes the position that the claim for an equalization payment is statute–barred by reason of the expiration of the applicable limitation period. 2 Mrs. Norris brings a motion at this time for interim relief with respect to the matrimonial home. Mrs. Norris’ position is that she has, since the parties separated, been paying the balance owing on a line of credit, secured against the matrimonial home, which Mr. Norris obtained without her consent (“the Line”). The principal amount of the Line was $150,000. Mrs. Norris alleges that Mr. Norris used the entire amount for his purposes and has paid nothing towards the balance owing. Mrs. Nor- ris has paid approximately $80,000 towards principal and interest, the latter charged at nine per cent per year. The balance currently owing on the line is said by Mrs. Norris to be approximately $125,000. 3 Mrs. Norris seeks relief to address the burden of paying down the Line at an interest rate of nine per cent per year. She has explored the possibility of re–financing the Line. Based on her investigation of potential re–financing, Mrs. Norris believes that by re–financing the Line at a lower interest rate, she would be able to save approximately $600 per month as she continues to pay down the balance owing. The financial institution with which Mrs. Norris is dealing has declined re–financing to be secured against the matrimonial home. The reason given is the credit risk posed by Mr. Norris, who remains on title to the home. Norris v. Norris Sylvia Corthorn J. 95

4 The alternative forms of interim relief sought by Mrs. Norris with respect to re–financing the Line are as follows: a) An order vesting the title of the matrimonial home in her name; b) In the alternative to (a), above, an order permitting Mrs. Norris to: i) transfer the title of the matrimonial home from the couple’s names, jointly, to her name alone; and ii) re–finance the Line by obtaining a mortgage, secured against the matrimonial home, in the amount of $187,000 at an interest rate lower than nine per cent per year;1 c) In the alternative to (a) and (b), above, an order granting Mrs. Norris exclusive possession of the matrimonial home; d) An order that Mrs. Norris’ payments towards the Line in the amount of $1,329 per month be deemed as spousal support effective January 1, 2015, including that the payments be taxable to Mr. Norris and tax–deductible to Mrs. Norris; e) In the alternative to all of the above, an order that Mr. Norris pay the full monthly amount owing on the Line ($1,329 for principal and interest) effective July 2009;2 f) In the further alternative to all of the above, an order that Mr. Nor- ris pay to Mrs. Norris the sum of $230,000 as reimbursement of the principal amount of the Line ($150,000) and the amount paid by Mrs. Norris towards principal and interest on the Line ($80,000). 5 It is the position of Mr. Norris that regardless of which alternatives proposed by Mrs. Norris are considered, there is no support in the applicable statute or case law for the relief requested. Mr. Norris’ position is that the only relief which the Court has jurisdiction to grant is an order that Mrs. Norris purchase Mr. Norris’ interest in the matrimonial home or that the property be sold. Under either scenario, the monies paid/received would be held in trust or paid into Court pending a determination of the financial issues, including an equalization payment.

1 The figure of $187,000 is based on the $126,000 owing on the Line, a balance of $24,000 on a Bank of Montreal MasterCard, and $37,000 on a CIBC Visa. The Visa has an interest rate of 20 per cent per year. 2 It is Mr. Norris’ position that the date of separation is July 2009. Mrs. Norris’ position is that the date of separation is February 2008. 96 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

The Issues 6 The issue to be determined on this motion is whether Mrs. Norris is entitled to interim relief with respect to the matrimonial home pending the outcome of the Rule 2 trial with respect to the date of separation. The issues to be determined include the following: 1. Is Mrs. Norris entitled to an interim order pursuant to which title to the matrimonial home is vested in or transferred her name only, pending a determination of whether an equalization payment is to be made? 2. Is Mrs. Norris entitled to an interim order granting her exclusive possession of the matrimonial home? 3. Is Mrs. Norris entitled to an order the effect of which is to treat as spousal support the payments made to date and those made in the future by Mrs. Norris towards the Line (in its existing form and potentially as re–financed, respectively)?

Issue No. 1: Title to the Matrimonial Home 7 The general authority of the Court to make a vesting order is found in s. 100 of the Courts of Justice Act: “A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of encumbered or conveyed.”3 In the context of family law matters, the authority of the Court to make a vesting order is found in s. 9(1)(d) of the Family Law Act [FLA], which provides as follows: In an application under section 7, the court may order . . . (d) that, if appropriate to satisfy an obligation imposed by the order, (i) property be transferred to or in trust for or vested in a spouse, whether absolute, for life or for a term of years, or (ii) any property be sold or partitioned.4 8 It is Mrs. Norris’ position that a vesting order is available in the context of an application pursuant to Part I of the FLA for an equalization payment (ss. 5, 7, and 9 of the FLA). The notice of application on behalf

3 R.S.O. 1990, c. C.43. 4 R.S.O. 1990, c. F.3. Norris v. Norris Sylvia Corthorn J. 97

of Mr. Norris sets out his request for an equalization payment, although the document does not reference s. 5 of the FLA. 9 Not only does Mrs. Norris rely on statutory authority in support of her request for a vesting order. She also relies on the origin of vesting orders as relief granted in equity. It is submitted on her behalf that the jurisdiction of the Court to grant a vesting order is therefore “elastic”. 10 Mrs. Norris acknowledges that for a vesting order to be granted in the context of family law, the Court must be satisfied that: • The previous conduct of the party obligated to pay, and his reasonably anticipated behaviour, are such that the ‘payment order’ will not likely be complied with in the absence of a less intrusive order; • There is a reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability; and • The interests of any competing execution creditors or encum- brancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order.5 11 Mrs. Norris also relies on the prior conduct of Mr. Norris, in support of her request pursuant to Part II, ss. 21 and 23(b) or (d) of the FLA for the alternative relief sought — an order permitting her, without the consent of Mr. Norris, to re–finance the Line secured against the matrimonial home. 12 Mr. Norris admits he obtained the Line without the consent of Mrs. Norris. Based on that admission, Mrs. Norris submits that Mr. Norris contravened s. 21(1)(b) of the FLA. That section provides that, “[n]o spouse shall dispose of or encumber and interest in a matrimonial home unless . . . (b) the other spouse has released all rights under this Part or by a separation agreement.”

5 Lynch v. Segal (2006), 82 O.R. (3d) 641 (Ont. C.A.) at paras. 32 33, leave to appeal refused [2007] S.C.C.A. No. 84 (Ont. C.A.). 98 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

13 On the basis of Mr. Norris’ contravention of s. 21(1) of the FLA, Mrs. Norris submits that she is entitled to the relief set out in s. 23(b) or (d) of the FLA, namely to an order: (b) authoriz[ing] the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required, (i) cannot be found or is not available; (ii) is not capable of giving or withholding consent, or (iii) is unreasonably withholding consent, Subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate; . . . (d) direct[ing] the setting aside of a transaction disposing of or en- cumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate. 14 Based on the most recent municipal property tax assessment, it is Mrs. Norris’ belief that the value of the matrimonial home is $478,000. The home is said to be unencumbered, other than with respect to the Line. In her October 2016 affidavit, Mrs. Norris sets out her position with respect to the issue of an equalization payment. It is her position that she is entitled to an equalization payment of approximately $510,000 from Mr. Norris. Taking into consideration that the matrimonial home is the couple’s only significant asset, she questions how Mr. Norris will make the equalization payment if ordered in an amount approaching the amount calculated by Mrs. Norris. 15 Mr. Norris’ position is that Mrs. Norris is not entitled to any of the alternative relief she seeks. He relies in part on what he alleges is historical misconduct on the part of Mrs. Norris. He also submits that it is not possible to grant the types of relief Mrs. Norris is seeking because to do so fails to take into consideration such issues as occupation rent for the 7.5 years during which Mrs. Norris has been living in the matrimonial home. Mr. Norris also takes the position that Mrs. Norris essentially ‘slept’ on her rights by failing, prior to this motion, to seek relief with respect to the matrimonial home. 16 Mr. Norris proposes that Mrs. Norris purchase his interest in the home. Mr. Norris also raises the potential for the matrimonial home to be partitioned and sold. However, he is not pursuing that form of relief at this time, if at all. Norris v. Norris Sylvia Corthorn J. 99

17 In reply, Mrs. Norris points out that Mr. Norris has not included in the relief set out in his notice of application a claim for either of occupation rent with respect to or partition and sale of the matrimonial home.

Analysis a) Vesting Order 18 In considering the alternative forms of relief sought by Mrs. Norris with respect to the matrimonial home, I emphasize the introductory portions of s. 9(1) and of s. 9(1)(d) of the FLA. 19 Section 9(1) begins with, “[i]n an application under section 7, the court may order . . .” As a result, before the Court considers which, if any, of the forms of relief set out in sub–sections (a) to (d) might be granted, there must first be an order pursuant to ss. 5 or 7 of the FLA providing for an equalization payment or other relief related to net family property.6 That such an order must exist is reinforced by the introductory wording of s. 9(1)(d) of the FLA: “that, if appropriate to satisfy an obligation imposed by the order . . .” 20 In its recent decision in Buttar v. Buttar7 the Ontario Court of Appeal considered the powers granted to this Court pursuant to section 9 of the FLA. Writing for the Court, Rosenberg J. said: The scheme of the Act does not support the proposition that an application judge can simply redistribute properties among the parties. To interpret the Act in this way would be inconsistent with its overall scheme, which gives a judge only a very limited power to distribute properties in the circumstances set out in s. 9. That is, section 9 gives the court the power to transfer properties only “if appropriate to satisfy an obligation imposed by the order [for equalization of net family properties]”. In other words, the transfer power under section 9 is specifically connected to the satisfaction of the order for the equalization of net family properties rather than a general transfer power for the settlement of disputes arising from marital breakdown.8 21 Even before the Court of Appeal decision in Buttar, it was recognized by this Court that s. 9 of the FLA is “simply an enforcement mechanism

6 Morrison v. Barclay-Morrison, [2008] O.J. No. 4663 (Ont. S.C.J.), at para. 105. 7 2013 ONCA 517, 116 O.R. (3d) 481 (Ont. C.A.). 8 Buttar, at para. 53. 100 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

and nothing else [which] gives the court the power that is necessary to enforce its substantive order for an equalization payment.”9 22 The majority of the cases relied on by Mrs. Norris do not support granting as interim relief a vesting order or an order permitting the transfer of the matrimonial home to one spouse. Those cases involve a final determination of property issues. At least three of the cases involve a final determination of property issues on an uncontested basis.10 In another of the cases, a vesting order was made on the consent of the parties following the determination of the equalization payment issue.11 23 In only one of the cases relied on by Mrs. Norris was an order made pursuant to s. 9 of the FLA, transferring title of the matrimonial home to one spouse, on the basis of an interim order. In Verch v. Verch,12 Abrams J. made an order, on an interim motion, for title of the matrimonial home to be vested in Mrs. Verch. An equalization payment had not yet been ordered. The circumstances in Verch are distinguishable from the matter before me. 24 Mrs. Verch was not on the title to the matrimonial home. She had been granted exclusive possession of the home. Mr. Verch was ordered to pay the property taxes. Mr. Verch failed to do so. Mrs. Verch was not in a position to pay the property taxes herself. The couple were at risk of losing the matrimonial home — their most significant asset — to a tax sale proceeding. 25 In that scenario, in light of historical behaviour on the part of Mr. Verch, and out of concern that Mr. Verch would continue to disregard orders of the Court, Abrams J. made the vesting order. The historical behaviour of Mr. Verch included the failure of Mr. Verch to pay the sum

9 Maguire v. Maguire [2003 CarswellOnt 3346 (Ont. S.C.J.)], 2003 CanLII 64334 at para. 14; and Batler v. Batler (1988), 67 O.R. (2d) 355 (Ont. H.C.). 10 Barker v. Barker, 2011 ONCA 447, 278 O.A.C. 395 (Ont. C.A.); Kennedy v. Sinclair (2001), 18 R.F.L. (5th) 91 (Ont. S.C.J.); Morrison, supra; Panchalingam v. Pathmalingam, 2013 ONSC 4284 (Ont. S.C.J.); Sutchy v. Sutchy, 2013 ONSC 160 (Ont. S.C.J.); Aning v. Aning, [2002] O.J. No. 2469, 30 R.F.L. (5th) 237 (Ont. S.C.J.); Filipponi v. Filipponi (1992), 40 R.F.L. (3d) 296 (Ont. Gen. Div.); and Misner v. Misner, 2010 ONSC 2284 (Ont. S.C.J.). 11 Caracciolo v. Ruberto, 2010 ONSC 525 (Ont. S.C.J.), at para. 62. 12 2012 ONSC 2621 (Ont. S.C.J.). Norris v. Norris Sylvia Corthorn J. 101

of $143,760 into Court. In response to a contempt motion based on that failure, Mr. Verch had consented to certain other relief. 26 Abrams J. concluded that Mrs. Verch had a valid claim to ownership in the home which fell within this Court’s “broad general power to protect and preserve [property] pending the outcome of [the] litigation.”13 At para. 39 of his decision, Abrams J. said “I am persuaded that a Vest- ing Order is necessary to ensure compliance with that obligation and to ensure that the matrimonial home is protected pending the final outcome of this litigation.” 27 In making the order, Abrams J. also took into consideration the integrity of the administration of justice. He concluded as follows: It is axiomatic that a party ought not be allowed to create a payment liability to be dealt with in the final determination of the family law litigation, then refuse to pay the outstanding property taxes so that the house is sold, and thereby potentially avoid the obligation to pay the other party. The result would harm the integrity of the administration of justice.14 28 Abrams J. also relied on rr. 1(8) and 14(23) of the Family Law Rules.15 The effect of those rules, when read together, is that when one party fails to follow the Family Law Rules or fails to obey an order, the Court has the discretion to “make any order that it considers necessary for a just determination of the matter, on any conditions, that the court considers appropriate”.16 29 The circumstances of Mrs. Norris are distinguishable from those of Mrs. Verch: • Mrs. Verch was not on title to the couple’s matrimonial home. Mrs. Norris is on title and, as a result, has the protection afforded a spouse with respect to title to the property. • Mrs. Verch was unable to secure financing to pay the $8,500 (approximate amount) owing in property taxes. There is no evidence that Mrs. Norris is unable to pay down the Line on the existing terms. She has waited since the couple separated, in 2008 or 2009,

13 Verch, at para. 42. 14 Verch, at para. 37. 15 O. Reg. 114/99. 16 Verch, at para. 48. 102 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

to bring the motion for interim relief with respect to the payment of that debt. • Without an insurable interest in the matrimonial home, Mrs. Verch was unable to obtain home insurance for the home in which she and the couple’s children were living. There is no evidence in the matter before me that Mrs. Norris is unable to obtain home insurance. • The Verch home was said to be worth in excess of $350,000 and for the most part be unencumbered. Based on the evidence of Mrs. Norris, the Norris’ home appears to be worth more than $350,000. However, it is encumbered by the Line. • Prior to the order being made requiring Mr. Verch to pay the property taxes, an order had been made granting Mrs. Verch exclusive possession of the matrimonial home. An order for exclusive possession has not been made in the matter before me. An order to that effect is requested as alternative relief. See the discussion in section (b) below. 30 In my view, the order of Abrams J. was an enforcement order, as is contemplated by section 9 of the FLA. His order was in keeping with the criteria set out in Lynch, referenced at para. 10, above. 31 In my view, unless and until an order for an equalization payment or some other order dealing with the matrimonial home is made, and the other criteria from Lynch are met, I do not have the power to make an order pursuant to s. 9 of the FLA vesting title of the matrimonial home in Mrs. Norris. The request for a vesting order is dismissed. The request for an order transferring title of the matrimonial home to Mrs. Norris is also dismissed.

b) Re–Financing the Matrimonial Home 32 As noted in my February 1, 2016 endorsement, the parties are in agreement that the Line is to be re–financed, with a consolidated principal amount of $187,000. However, the parties disagree on the terms pursuant to which the re–financing is to be carried out. 33 Mrs. Norris relies on ss. 21 and 23 of the FLA. She requests an order pursuant to s. 21(2) of the FLA setting aside the encumbrance of the matrimonial home which she alleges was obtained by Mr. Norris without her consent. Alternatively, she requests an order pursuant to s. 23 dispensing with the requirement for Mr. Norris to consent to re–financing the Line. Norris v. Norris Sylvia Corthorn J. 103

As noted earlier in this endorsement, Mrs. Norris estimates that she will be able to reduce the monthly payments by $600 if she is able to re–finance the Line. 34 It is Mr. Norris’ evidence that Mrs. Norris closed the couple’s joint accounts and transferred $289,000 from those accounts for her use personally. His evidence is that in response to that conduct he registered the Line in the amount of $150,000 against the matrimonial home. 35 Given the significant contradictions with respect to the handling of the couple’s assets, including joint bank accounts, I am not prepared on the basis of the evidence before me to set aside the Line. 36 The evidence with respect to Mrs. Norris’ inability to re–finance the matrimonial home because of the financial institution’s concerns about Mr. Norris credit history is less than satisfactory. That evidence is hearsay, in as much as Mrs. Norris relies entirely on information provided to her by an individual, whose name Mrs. Norris identifies, with the Bank of Montreal (“the Bank”). There is no documentation from the Bank. During submissions, counsel for Mrs. Norris advised that documentation was requested; however, the Bank provides only confirmation of financing. It does not confirm in writing when a request for financing or re–financing is declined. 37 It is clearly in the interests of both parties that the expense incurred to pay the Line and other debt to which Mrs. Norris refers in her October 2016 affidavit be reduced. Having Mrs. Norris continue to pay $600 more per month than is necessary towards reducing the encumbrance on the home only serves to negatively affect the ability of either party to make an equalization payment if and when ordered to do so. The equity in the home is not increasing as quickly as it would if the $600 per month, or some portion of that amount, were applied towards reducing the principal amount of the Line and other debt. Increasing the equity in the matrimonial home is to the benefit of both spouses because the home is the most significant asset that they have. 38 In all of the circumstances, it is reasonable for Mrs. Norris to proceed with re–financing the matrimonial home to a maximum of $187,000. The assistance the Court is in a position to give her in that regard at this time is to dispense with the requirement for Mr. Norris to consent to the re–financing. With that relief granted, neither Mrs. Norris nor the Bank will be required to rely on Mr. Norris to co–operate with respect to the re–financing. 104 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

39 I am, however, concerned as to whether an order dispensing with the consent of Mr. Norris to re–financing the matrimonial home will be sufficient for the Bank’s purposes. Mrs. Norris’ evidence is that she was advised by the individual at the Bank with whom she has been dealing that, “due to the Applicant’s poor credit history, [she] will not receive financing unless the matrimonial home is transferred into [her] name alone.” It is also Mrs. Norris’ evidence that she approached other lenders and was denied re–financing for the same reason. 40 In an effort to address the concerns expressed by the Bank regarding Mr. Norris’ poor credit history, I also order that: a) Neither party shall have the ability to encumber title to the matrimonial home, other than as provided in this endorsement, without further order of the Court; and b) A copy of the order issued and entered pursuant to this endorsement shall be registered on title to the matrimonial home. 41 The relief granted in this endorsement may not be sufficient for the Bank’s purposes. If that turns out to be the case, then Mrs. Norris will be required to bring the matter before the Court again and rely on additional evidence in support of additional relief sought. In anticipation of that scenario, Mrs. Norris is granted leave to bring a further motion, before any Judge of this Court, related to re–financing the Line in the event the relief granted pursuant to this endorsement is insufficient to allow her to obtain the re–financing permitted by this endorsement. 42 As noted above, there are significant contradictions in the affidavit evidence of the parties with respect to their individual handling of joint assets. The parties were not cross–examined on their respective affidavits. As a result, I am unable to make findings of credibility required for me to address Mrs. Norris’ request for reimbursement of monies paid by her towards the Line and the principal amount of the Line. 43 The motion for the alternative relief requested at paragraphs 4(e) and (f), above, is dismissed.

Issue No. 2: Exclusive Possession 44 In support of her request for an order that she be granted exclusive possession of the matrimonial home, Mrs. Norris relies on s. 24 of the FLA. It is Mrs. Norris’ uncontradicted evidence that she intends to remain in the home, including after she retires in the next several years. The couple’s daughter continues to live in the home with Mrs. Norris. It Norris v. Norris Sylvia Corthorn J. 105

is Mrs. Norris’ intention that the home be bequeathed to the couple’s children. 45 Mrs. Norris relies on the decision of this Court in Groulx v. Groulx as support for her entitlement to an order for exclusive possession at this time.17 Like the majority of the decisions relied on by Mrs. Norris, the decision in Groulx is a final one. The order for exclusive possession, together with an order removing Mr. Groulx from title, was made after consideration of the equalization payment issue, including a request on behalf of Mrs. Groulx, pursuant to s. 5(6) of the FLA, for an unequal division of net family property. The relief with respect to the matrimonial home was granted at the same time that an order for divorce was made. 46 Until the date of separation and equalization payment, the latter if any, are determined, it would in my view be inappropriate to grant Mrs. Norris exclusive possession of the matrimonial home. 47 Reference is made in the Factum to a request on behalf of Mr. Norris for partition and sale of the matrimonial home. There is, however, no motion on his behalf before me in which that or any other relief is requested. In addition, the notice of application does not include a request for partition and sale of the matrimonial home. In the supplementary materials filed on behalf of Mr. Norris, it is acknowledged that he requires leave of the Court to bring a motion for partition and sale of the matrimonial home. There is no indication as to whether Mr. Norris intends to bring a motion for leave in that regard. 48 In any event, I find that it would be unfair to Mr. Norris to make an order which defeats his right, as a joint owner, to pursue partition and sale of the matrimonial home. His rights in that regard are not to be lightly interfered with.18 49 The motion for an interim order for exclusive possession of the matrimonial home is dismissed.

Issue No. 3: Fixed Periodic Payments 50 It is the uncontradicted evidence of Mrs. Norris that she has, for approximately 7.5 years, been paying the sum of $1,329 per month to pay down the principal and interest owed on the Line. The monthly payments

17 [1990] O.J. No. 1299 (Ont. H.C.) 18 Arlow v. Arlow (1990), 27 R.F.L. (3d) 348 (Ont. Dist. Ct.) at para. 8, aff’d, (1991), 33 R.F.L. (3d) 44 (Ont. Dist. Ct.). 106 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

include an interest component based on a fixed rate of interest set at nine per cent per year when the Line was obtained by Mr. Norris. 51 Mrs. Norris relies on ss. 34(1)(a) and (e) of the FLA, which provide as follows: In an application under section 33, the court may make an interim or final order, (a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; ... (e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant’s benefit. 52 Mrs. Norris addresses the tax consequences of the payment of spousal support to a third party by referring to a text with respect to income tax in the family law context and to the Federal Income Tax Act.19 Mrs. Nor- ris refers to these materials in support of her position that periodic payments made to a third party may be considered as spousal support and have the same consequences, from a tax perspective, as would support payments made directly to Mr. Norris. 53 Even if it is assumed that the $1,329 paid from January 1, 2015 forward is spousal support, I am not satisfied based on the materials before me that the payments, if made to a third party, have the tax consequences proposed by Mrs. Norris; namely that the payments are tax deductible to her and taxable to Mr. Norris. In the text reference provided, it is stated that the payments will be deductible for the payor and taxable to the recipient spouse “if they have the features noted below.”20 Under the heading of “Features Required to be Deductible”, the following criteria are listed: Third party payments will be deductible by the payor and taxable to the recipient if the payments have the following features: 1. The nature of the third party payment must be specified in a court order or a written agreement.

19 For the text reference, see Duff and Phelps, The Tax Principles of Family Law, Twentieth Edition, 2013. For the statute, see R.S.C. 1985, c. 1 (5th Supp.). 20 The Tax Principles of Family Law, at p. 14. Norris v. Norris Sylvia Corthorn J. 107

2. Both parties must agree that the third party payments will be deductible by the payor and taxable to the recipient. 3. The court order or written agreement should specifically refer to the intention of the parties to have subsection 60.1(2) and 56.1(2) of the Income Tax Act apply to the payments. This specific reference must be made in the court order or the written agreement.* 4. The payments are: a) made before a commencement day or pursuant to court orders or written agreements without a commencement day and are for the maintenance of the spouse, former spouse or dependant children in the custody of the spouse or former spouse; or b) made after a commencement day and are solely for the maintenance of the spouse or former spouse. Further, the third party payments must be clearly identified in the order or agreement as being solely for the benefit of the spouse or former spouse. 5. The parties must be living separate and apart, not only when the payment is made, but also at the time the expense is incurred. * Specific reference may not be required provided that the court order or written agreement contains a clear and unambiguous clause that the parties understand that the third party payments will be deductible / taxable. 54 The five criteria listed above appear to apply without exception to both court orders and written agreements. The second criterion is mandatory — both parties “must agree” to the proposed tax treatment of the payments. The third criterion, although not mandatory (“should” is the verb used), is to be read in conjunction with the wording of the related commentary. If the written agreement or court order does not contain reference to the parties’ stated intention with respect to the tax treatment, then the agreement or order is to contain clear and unambiguous wording confirming that the parties understand the tax treatment to be given to the payments. 108 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

55 I am not satisfied on the evidence before me that if I were to order that the historical and future payments towards the Line are treated as spousal support payments then they would receive the tax treatment applicable to spousal support payments made in the ordinary course of a family law proceeding. Given the contents of the text reference upon which Mrs. Norris relies, expert evidence is required from an expert in the field of income tax to confirm that if granted, the relief requested would result in the tax treatment applicable to spousal support payments, made in the ordinary course, even though Mr. Norris does not consent to the relief in that regard. 56 The motion for an order that the historical and future payments towards the Line be treated as spousal support, with the consequent tax treatment to each of the parties, is dismissed.

Additional Relief Requested a) Striking Paragraphs of the Applicant’s Factum 57 In the notice of motion filed on behalf of Mrs. Norris, a request is made for summary judgment in the form of a declaration that the date of separation is February 17, 2008. The motion for summary judgment is based on a request to admit served in September 2016 and to which no response to request to admit was delivered. 58 In response to the motion for summary judgment, counsel for Mr. Norris delivered a factum (“the Factum”). A request is made in the Fac- tum for an order dismissing the motion for summary judgment and awarding costs against counsel for Mrs. Norris personally. The contents of the Factum in turn generated a request on behalf of Mrs. Norris for an order that portions of the Factum be struck. 59 The request for paragraphs 48 to 53 of the Factum to be struck is based on r. 1(8.2) of the Family Law Rules. That rule provides as follows, “The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.” 60 The impugned paragraphs relate to the service of a request to admit and the reliance, in support of the motion for summary judgment, on the failure of Mr. Norris to respond to same within the 20–day period provided for same or at all. The impugned paragraphs include commentary questioning the competence and professionalism of counsel for Mrs. Norris. Norris v. Norris Sylvia Corthorn J. 109

61 The procedural history of the motion on behalf of Mrs. Norris for relief related to the matrimonial home is relevant to the additional relief requested by the parties. The issues with respect to the matrimonial home were first before me in January 2016 but not determined at that time. The delay in the matter being before the Court once again was entirely beyond the control of counsel and the parties. The October return date was agreed upon with counsel when the matter was spoken to in September 2016. The October 2016 date was set for the return of Mrs. Norris’ motion for relief with respect to the matrimonial home. At the same time the January 2017 date was set for the Rule 2 trial with respect to the date of separation. 62 The October 2016 date was intended exclusively for the motion for relief with respect to the matrimonial home. An hour was set for the hearing of the motion. When the matter was spoken to in September, counsel were advised that a factum was not required for the return of the motion. 63 It was, in my view, a matter of strategy for counsel for Mrs. Norris to include in the relief requested in the notice of motion served, summary judgment with respect to the date of separation with that relief based on the request to admit to which Mr. Norris did not respond. 64 For a number of reasons, counsel for Mrs. Norris could not have been certain that the motion for summary judgment would be heard on Octo- ber 21, 2016. For example, a request for an adjournment of the motion in its entirety could have been made on behalf of Mr. Norris if Mrs. Norris insisted on proceeding with the motion for summary judgment at the same time that the motion with respect to the matrimonial home was heard. I note that a request for an adjournment of the entire matter was not one of the forms of relief requested in the Factum. 65 There was also the possibility that the Court would refuse to hear the motion for summary judgment given that the date and amount of time for the motion with respect to the matrimonial home had been agreed upon by counsel in September 2016. This is in fact what happened. I declined to hear and adjourned the motion for summary judgment. That motion is to be pursued on a date prior to or at the commencement of the Rule 2 trial scheduled for January 2017, if the motion is pursued at all. 66 The conduct of litigation requires strategic thinking. A strategic step taken requires a strategic response. The latter does not, in my view, include inflammatory remarks with respect to the conduct of opposing counsel. In that regard, I refer to the “Commentary” section of rule 7.2 of 110 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

the Rules of Professional Conduct. The following guidelines for conduct as between counsel are set out: Personal remarks or personally abusive tactics interfere with the or- derly administration of justice and have no place in our legal system. . . A lawyer should avoid ill–considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners, but should be prepared, when requested, to advise and represent a client in a complaint involving another legal practitioner. 67 Nor does a strategic response include the reference, in a factum dealing with substantive issues, to a request for costs personally against opposing counsel. The appropriate point at which to deal with costs, including a request for costs against counsel personally, is following the determination of the substantive issues and when invited by the Court to address the issue of costs. A specific procedure is to be followed when a request is made for costs against counsel personally. That procedure was not followed in this matter including that the request made was ill–timed. 68 In all of the circumstances, I find that the contents of paragraphs 48 to 53 of the Factum are inflammatory within the meaning of r. 1(8.2) of the Family Law Rules. Those paragraphs are to be struck from the record.

b) Response to Request to Admit 69 During submissions on behalf of Mr. Norris a request was made for an order extending the deadline by which he is to file a response to the request to admit served in September 2016. In his affidavit sworn on Oc- tober 16, 2016 Mr. Norris provides some explanation as to why a response to request to admit was not delivered within the 20–day period prescribed by the Family Law Rules. The explanation provided is mini- mal and does not support the relief requested. 70 As noted above, I recognize that it was a matter of strategy for counsel for Mrs. Norris to (a) serve a request to admit and (b) in support of a motion for summary judgment rely on the failure of Mr. Norris to respond to same. That strategy involved a strict adherence to timelines set out in the Family Law Rules. ‘Technically’ there is merit to Mrs. Norris’ reliance on the failure of Mr. Norris to deliver a response to request to admit. However, the interests of justice must be considered. Norris v. Norris Sylvia Corthorn J. 111

71 The primary objective of the Family Law Rules is “to enable the court to deal with cases justly.”21 Dealing with cases justly includes the following: (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.22 72 The Court is mandated to apply the Family Law Rules so as to promote the primary objective. In addition, counsel are required to assist the Court in promoting the primary objective.23 73 In support of the motion for summary judgment, Mrs. Norris seeks to rely on deemed admissions arising from the failure of Mr. Norris to deliver a response to request to admit. The deemed admissions are central to the issue of the date of separation. If that issue is decided in Mrs. Norris’ favour, Mr. Norris’ claim for an equalization payment is out of time. In summary, if Mr. Norris is not granted leave to deliver a response to request to admit, his lack of success on a motion for leave in that regard is likely to lead to his claim for an equalization payment being statute–barred. 74 In all of the circumstances, I find that the primary objective of the Family Law Rules would not be promoted if I were to determine the request for an extension of the deadline within which to deliver a response to request to admit without: a) Requiring that a notice of motion be served on behalf of Mr. Nor- ris and that the relief requested is particularized; b) Giving Mr. Norris the opportunity to rely on fulsome evidence explaining the failure to deliver a response to request to admit within the time period prescribed by the Family Law Rules; and c) Giving Mrs. Norris the opportunity to respond, should she choose to do so, to the relief requested including by way of responding

21 Rule 2(2) of the Family Law Rules. 22 Rule 2(3) of the Family Law Rules. 23 Rule 2(4) of the Family Law Rules. 112 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

affidavit materials and/or cross–examination on the affidavit(s) relied on by Mr. Norris. 75 Mr. Norris is granted leave to bring a motion for an order extending the deadline within which to deliver a response to request to admit. Whether or not that deadline is extended is relevant to the conduct of the Rule 2 trial in January 2017 and to the motion, if pursued by Mrs. Norris, for summary judgment. As a result, the motion on behalf of Mr. Norris for an order extending the deadline within which to deliver a response to request to admit shall be heard prior to the end of the 2016 calendar year. 76 I am seized of this matter to the extent that I shall be hearing the Rule 2 trial in January 2017. My schedule is such that I am not sitting in Ot- tawa for the balance of 2016. As a result, it is not possible for me to hear the motion on behalf of Mr. Norris with respect to the deadline for a response to request to admit. Therefore, the motion is to be brought before any Judge of this Court.

Disposition 77 In summary, I order as follows: 1. Mrs. Norris is entitled to re–finance the matrimonial home on the following terms: a) The maximum amount for which she is entitled to re–finance the matrimonial home is $187,000; and b) The requirement for the consent of Mr. Norris to the re–financing is dispensed with. 2. The balance of the motion on behalf of Mrs. Norris, other than the motion for summary judgment, is dismissed. 3. The motion for summary judgment based on the request to admit served in September 2016 it adjourned to be brought back before the Court: a) Following a determination of the motion on behalf of Mr. Norris for an extension of the deadline by which to deliver a response to request to admit; b) At or prior to the beginning of the Rule 2 trial scheduled for January 2017; and c) In accordance with the Family Law Rules, unless a further order of the Court is made providing for relief related to the timing of delivery of materials on the motion for summary judgment. Norris v. Norris Sylvia Corthorn J. 113

4. Neither party shall encumber title to the matrimonial home, other than as provided in this endorsement, without further order of the Court. 5. A copy of the order issued and entered pursuant to this endorsement shall be registered on the title to the matrimonial home. 6. Mrs. Norris is granted leave to bring before any Judge of this Court a motion for further relief related to re–financing of the matrimonial home in the event she is unable to obtain re–financing based on the terms of the order issued and entered pursuant to this endorsement. 7. Paragraphs 48 to 53 of the factum dated October 21, 2016 filed on behalf of Mr. Norris (“the Factum”) shall be struck from the record. Mr. Norris shall, within 10 days of the date of this endorsement, take the steps necessary for the impugned paragraphs of the Factum to be struck. 8. Mr. Norris is granted leave, on the following terms, to bring a motion for an order extending the deadline by which a response to request to admit shall be served: a) The return date for the motion shall be prior to the end of the 2016 calendar year; b) The motion may be made before any Judge of this Court; c) The deadline requested for the delivery of a response to request to admit shall be at least 20 days prior to the date on which the Rule 2 trial with respect to the date of separation is scheduled to proceed; d) The evidence filed in support of the request for extension of the deadline shall provide the Court with a fulsome explanation as to why a response to request to admit was not served within the 20 days provided by the Family Law Rules; and e) The notice of motion, supporting affidavit(s), responding affidavit(s), and reply affidavit(s), the latter two if any, shall be served and filed in accordance with the Family Law Rules.

Costs 78 In accordance with my endorsement dated February 1, 2016, the costs of the portion of the motion and cross–motion heard in January 2016 and 114 REPORTS OF FAMILY LAW 88 R.F.L. (7th) of the matters heard in October 2016 shall be determined by the judge who conducts the trial of the balance of the application. Wife’s motion granted in part; husband’s motion granted in part. Kisilowsky v. Manitoba 115

[Indexed as: Kisilowsky v. Manitoba] KEVIN RICHARD KISILOWSKY (Applicant) and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF MANITOBA (Respondent) Manitoba Court of Queen’s Bench Docket: Winnipeg Centre CI 14-01-88873 2016 MBQB 224 Simonsen J. Judgment: November 21, 2016 Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of conscience and religion –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same-sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Re- quiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter — There were reasonable alternatives available to KK. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Equality rights — Miscellaneous –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same-sex couples 116 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Re- quiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter — There were reasonable alternatives available to KK. Family law –––– Marriage — Nature of marriage — Same sex marriage –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same- sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views. offended him — Requiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter. Family law –––– Marriage — Validity of marriage — Formalities — Cere- mony — Who may officiate –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Mar- riage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same-sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Requiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; how- Kisilowsky v. Manitoba 117

ever assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter. Human rights –––– What constitutes discrimination — Sex — Sexual orien- tation — Denial of public services or facilities –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same-sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Re- quiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter — There were reasonable alternatives available to KK. Human rights –––– Statutory exemptions — Bona fide requirement — Oc- cupational requirement –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Application dismissed — Effect of KK telling same-sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Requiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter — There were reasonable alternatives available to KK. 118 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Public law –––– Public authorities — Public officers — Exemptions from operation of statutes — Miscellaneous –––– In 2003, applicant (KK) was appointed marriage commissioner by Manitoba’s Vital Statistics Agency (VSA) under Marriage Act — In 2004, same-sex marriage was legalized and VSA required all marriage commissioners to marry all eligible couples — KK advised VSA that he would not marry same-sex couples since it violated his Christian religious beliefs — VSA revoked KK’s licence to perform marriages — KK applied for declaration that revocation of his licence infringed his right to freedom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms — Appli- cation dismissed — Effect of KK telling same-sex couples that he would not marry them would be significant, offensive and if allowed to do so, other marriage commissioners could follow suit — KK could practice his faith as he chose but was not permitted to use his faith as basis to not marry couples whose weddings, due to religious or moral views, offended him — Requiring marriage commissioners to marry same-sex couples may infringe their s. 2(a) Charter rights; however assuming infringement was more than trivial or insubstantial, decision was reasonable as it reflected proportionate balancing of KK’s rights under s. 2(a) and those of same-sex couples who wished to marry under s. 15(1) of Charter — There were reasonable alternatives available to KK. Cases considered by Simonsen J.: Canadian Federation of Students v. Greater Vancouver Transportation Author- ity (2009), 2009 SCC 31, 2009 CarswellBC 1767, 2009 CarswellBC 1768, 93 B.C.L.R. (4th) 1, [2009] 8 W.W.R. 385, 389 N.R. 98, 309 D.L.R. (4th) 277, 272 B.C.A.C. 29, 459 W.A.C. 29, [2009] S.C.J. No. 31, (sub nom. Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component) 192 C.R.R. (2d) 336, EYB 2009- 161351, (sub nom. Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component) [2009] 2 S.C.R. 295 (S.C.C.) — referred to Dichmont v. Newfoundland and Labrador (2015), 2015 NLTD(G) 14, 2015 Car- swellNfld 26, (sub nom. Dichmont v. Newfoundland and Labrador (Minister of Government Services and Lands)) 1122 A.P.R. 256, (sub nom. Dichmont v. Newfoundland and Labrador (Minister of Government Services and Lands)) 361 Nfld. & P.E.I.R. 256, (sub nom. Dichmont v. Newfoundland and Labrador (Government Services and Lands)) 80 C.H.R.R. 371, 1 Admin. L.R. (6th) 137 (N.L. T.D.) — considered Doré c. Québec (Tribunal des professions) (2012), 2012 SCC 12, 2012 Car- swellQue 2048, 2012 CarswellQue 2049, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, 34 Admin. L.R. (5th) 1, (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289 (S.C.C.) — followed Kisilowsky v. Manitoba 119

Eldridge v. British Columbia (Attorney General) (1997), 1997 CarswellBC 1939, 1997 CarswellBC 1940, 151 D.L.R. (4th) 577, 218 N.R. 161, 96 B.C.A.C. 81, 155 W.A.C. 81, [1998] 1 W.W.R. 50, 46 C.R.R. (2d) 189, 38 B.C.L.R. (3d) 1, [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, 3 B.H.R.C. 137 (S.C.C.) — considered J. (M.) v. Nichols (2009), 2009 SKQB 299, 2009 CarswellSask 474, [2009] 10 W.W.R. 513, 71 R.F.L. (6th) 114, 339 Sask. R. 35, 194 C.R.R. (2d) 230, 67 C.H.R.R. D/339 (Sask. Q.B.) — considered Loyola High School v. Quebec (Attorney General) (2015), 2015 SCC 12, 2015 CSC 12, 2015 CarswellQue 1533, 2015 CarswellQue 1534, 79 Admin. L.R. (5th) 177, 382 D.L.R. (4th) 195, 468 N.R. 323, [2015] S.C.J. No. 12, [2015] 1 S.C.R. 613, 331 C.R.R. (2d) 24 (S.C.C.) — followed Mouvement la¨ıque qu´eb´ecois v. Saguenay (City) (2015), 2015 SCC 16, 2015 CSC 16, 2015 CarswellQue 2626, 2015 CarswellQue 2627, 382 D.L.R. (4th) 385, 34 M.P.L.R. (5th) 1, [2015] S.C.J. No. 16, 22 C.C.E.L. (4th) 1, 470 N.R. 1, 83 Admin. L.R. (5th) 183, [2015] 2 S.C.R. 3, 332 C.R.R. (2d) 183, 83 C.H.R.R. D/291 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, [2008] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, 1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — followed Reference re Constitutional Act, 1978 (Saskatchewan) (2011), 2011 SKCA 3, 2011 CarswellSask 3, [2011] 3 W.W.R. 193, (sub nom. Reference re: Marriage Commissioners appointed under The Marriage Act, 1995 (Sask.)) 327 D.L.R. (4th) 669, 90 R.F.L. (6th) 245, (sub nom. Reference Re Marriage Act) 366 Sask. R. 48, (sub nom. Reference Re Marriage Act) 506 W.A.C. 48, (sub nom. Saskatchewan (Marriage Act, Marriage Commissioners), Re) 225 C.R.R. (2d) 266, (sub nom. Reference Re The Marriage Act) 71 C.H.R.R. D/198 (Sask. C.A.) — considered Trinity Western University v. Law Society of Upper Canada (2016), 2016 ONCA 518, 2016 CarswellOnt 10465, 398 D.L.R. (4th) 489, 4 Admin. L.R. (6th) 73, 131 O.R. (3d) 113, 349 O.A.C. 163 (Ont. C.A.) — referred to Vogel v. Canada (Attorney General) (2004), [2004] M.J. No. 418, 2004 Car- swellMan 527, [2005] 5 W.W.R. 154 (Man. Q.B.) — considered 120 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 2(a) — considered s. 15(1) — considered s. 24(1) — pursuant to s. 32 — considered Marriage Act, R.S.M. 1987, c. M50 s. 1 “religious denomination” — considered s. 2 — considered s. 3(3) — considered s. 7(1) — considered s. 21(1) — considered Marriage Act, 1995, S.S. 1995, c. M-4.1 Generally — referred to Rules considered: Queen’s Bench Rules, Man. Reg. 553/88 R. 39.01(5) — considered

APPLICATION by marriage commissioner seeking declaration that cancellation of his registration of marriage commissioner by Vital Statistics Agency of Mani- toba infringed his right to freedom of religion pursuant to s. 2(a) of Canadian Charter of Rights and Freedoms.

Jay Cameron, for Applicant Allison Kindle Pejovic, for Respondent

Simonsen J.:

1 The applicant seeks a declaration pursuant to s. 24(1) of the Charter that the cancellation of his registration as marriage commissioner (“the Decision”) by the Vital Statistics Agency (“the VSA”) of the Province of Manitoba because of his refusal to marry same-sex couples infringes his s. 2(a) right to freedom of religion. The Decision flowed from a Septem- ber 16, 2004 direction of the VSA requiring all marriage commissioners to marry all legally eligible couples, including same-sex couples. In response to that direction, the applicant, who had been a marriage commissioner, advised the VSA that he would not marry same-sex couples as it would violate his religious beliefs. As a consequence, the VSA later can- Kisilowsky v. Manitoba Simonsen J. 121

celled his registration. The applicant also seeks an order that the respondent cease violating his s. 2(a) rights and be required to accommodate him. 2 Manitoba takes the position that the Decision does not engage the applicant’s s. 2(a) rights, and that to allow marriage commissioners to refuse to marry same-sex couples would be discriminatory under s. 15(1) of the Charter. Manitoba also says that if the applicant’s s. 2(a) rights are engaged, the alternative measures provided by both The Marriage Act, C.C.S.M. c. M50 (“the Act”) and the practice of the VSA are a reasonable limit on those rights.

THE CHARTER AND THE LEGISLATIVE FRAMEWORK 3 Sections 2(a) and 15(1) of the Charter provide: 2. Fundamental freedoms - Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; ... 15.(1) Equality before and under law and equal protection and benefit of law - Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 4 Section 21(1) of the Act prescribes the requirements for a legal marriage in Manitoba, and essentially stipulates that both parties be of the age of 18 and that there be no lawful cause or legal impediment to bar the solemnization of the marriage. 5 Section 2, as follows, provides that religious officials may solemnize marriages: Authority of clergy to solemnize marriages 2 If duly authorized as herein provided a person 18 years of age or more who is (a) a member of the clergy, a rabbi, or an official of a religious denomination corresponding to a member of the clergy or a rabbi, duly ordained or appointed according to the rites and ceremonies of the religious denomination to which he belongs; or (b) a catechist, an evangelist, a missionary, or a theologi- cal student duly appointed or commissioned by the 122 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

governing body of a religious denomination with special authority to solemnize marriages; may solemnize the ceremony of marriage between any two persons not under a legal disqualification to contract the marriage. 6 Section 7(1) provides for the appointment of civil marriage commissioners: Appointment of marriage commissioners 7(1) The minister may appoint any person more than 18 years of age as a marriage commissioner for the province or any part thereof specified by the minister and the person may solemnize ceremonies of marriage in accordance with the tenor of the appointment. 7 Under the “religious stream”, religious officials apply to the Director of Vital Statistics to be marriage officiants — who are entitled to refuse to perform ceremonies that are not in accordance with their beliefs. As for the “civil stream”, the VSA appoints marriage commissioners and may also appoint an individual to perform a particular marriage — that is, a separate application for every marriage ceremony conducted.

THE BACKGROUND 8 The applicant is a Christian engaged in Christian ministry through the House of the Risen Son Ministries and the Bondslave Motorcycle Club. He ministers to inner city gang youth, prison inmates and outlaw motorcycle gangs. He is not an ordained minister and has no seminary background. Through his ministry, he periodically encounters people who desire a marriage ceremony with Christian content but who are not involved with, nor inclined to be involved with an organized church. 9 In 2003, the applicant was appointed a marriage commissioner by the VSA. The applicant alleges that when he applied to be a marriage commissioner, he informed the VSA that, due to his religious beliefs, he would be unable to perform non-Christian weddings, such as ceremonies for Wiccans, Hindus or Muslims. He also alleges that the VSA informed him that his objections were acceptable and that the VSA would put his name on a “private list” so that he could perform only marriages with Christian content. 10 However, according to Linda Harlos, the Assistant Director of the VSA (in 2014), there is no record of anyone advising the applicant that he would be put on a private list so that he could perform only marriages with Christian content. Ms. Harlos also attests that she spoke with Lise Meixner who worked with the VSA’s marriage unit in 2003 who told her Kisilowsky v. Manitoba Simonsen J. 123

that she had no recollection of the applicant advising her that he would be able to perform only marriages with Christian content, and she did not recollect ever advising him that he could be put on such a private list. 11 Manitoba says that, in 2003, there was no private list of people who would perform marriages with only Christian content; however, for reasons of which Manitoba is unaware, there was a private list of marriage commissioners as well as a public list at that time. But in 2004 following the decision in Vogel v. Canada (Attorney General), [2004] M.J. No. 418 (Man. Q.B.) (QL), the private list was abolished as being inappropriate. 12 On September 16, 2004, this court rendered the decision in Vogel de- claring that the opposite sex requirement for marriage violates the equality provision of the Charter, with the result that the common law definition of marriage in Manitoba was changed from the union of one man and one woman to the union of two persons. Therefore, the right of same-sex couples to become lawfully married was recognized. Immedi- ately following that court decision, indeed on the same day as the decision, the VSA issued a letter to all marriage commissioners in Manitoba informing them of the court decision and confirming that they were expected to comply with the law. The letter also requested that any marriage commissioner opposed to performing marriages for same-sex couples return their Certificate of Registration. 13 The applicant filed a complaint with the Manitoba Human Rights Commission arguing that the September 16, 2004 letter constitutes discrimination based on his religious beliefs. That complaint was dismissed and on November 10, 2005, the VSA informed the applicant that his registration as a marriage commissioner had been cancelled. 14 In the course of these proceedings, the applicant has also made it clear that, due to his religious beliefs, he will not marry individuals who are divorced for reasons other than abuse, and that it is very important to him that the ceremonies he conducts include a reference to God and Jesus. As well, his evidence is that he has only performed marriage ceremonies for people within his ministry or for individuals that he knows. Between 2007 and 2011, he applied for seven temporary marriage commission appointments and solemnized six marriages on this basis.

ANALYSIS AND DECISION 15 As I have said, this is an application for a declaration that the cancellation of the applicant’s certificate of registration as a marriage commissioner violates his s. 2(a) rights. However, counsel for the applicant con- 124 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

cedes that the real issue is the validity of the underlying policy, namely that all marriage commissioners must perform marriages for anyone who is eligible to marry, including same-sex couples. That is to say, the cancellation of the applicant’s registration was not really the discriminatory decision of an administrative tribunal or official but followed directly from a rule of general application. This distinction is important to determine the proper analytical framework for assessing the validity of the Decision. I will come back to this later. 16 Both counsel have submitted that, before analyzing the VSA’s actions, I must first determine the applicable “standard of review”. On this issue, counsel referred to authorities such as New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), Mouvement la¨ıque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (S.C.C.), and Trinity Western University v. Law Society of Upper Canada, 2016 ONCA 518, 131 O.R. (3d) 113 (Ont. C.A.). Coun- sel for the applicant argued for a standard of correctness, taking the position that this case involves a question of “state neutrality” (Saguenay). Crown counsel suggested a standard of reasonableness (Dunsmuir). 17 However, unlike the “standard of review” cases referred to above, I am not being asked to review the reasons of a tribunal that determined whether a person’s Charter rights have been infringed. Rather, it is the decision of the tribunal itself (i.e., the cancellation of the registration) which is alleged to breach the applicant’s Charter rights. In such cases, the applicable analytical framework is set out in Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.), and followed more recently in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 (S.C.C.). In their briefs and submissions, counsel referred extensively to Doré. And in his brief, counsel for the applicant stated that the Doré framework of analysis governs the Charter issues in this case. 18 Before embarking on the Doré analysis, I note that it may have been better to recognize that the real issue before the court is the validity of the policy which underlies the Decision. If the focus was on the policy, then the correct analytical approach would be to determine if the policy breached the applicant’s s. 2(a) rights and, if so, whether it could with- stand s. 1 scrutiny (see Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2009 SCC 31, [2009] 2 S.C.R. 295 (S.C.C.)). The court in Doré explained the difference between a s. 1 approach and the Doré approach (paras. 36-39) Kisilowsky v. Manitoba Simonsen J. 125

19 That said, the parties have chosen to frame this as a challenge to the decision to cancel the applicant’s appointment as a marriage commissioner. I will accept that parameter because, in the end, both Doré and the s. 1 approach engage a similar proportionality analysis. 20 Under Doré, the task of a court reviewing a discretionary administrative decision is to determine whether the decision engages the Charter by limiting its protections, and if it does, to determine whether in “assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual context, the decision reflects a proportional balancing of the Charter protections at play” (para. 57). This analysis is a highly contextual exercise. 21 Before returning to Doré, I will address two preliminary issues raised by the applicant which are related to, but not directly based on an alleged infringement of his s. 2(a) rights. First, he says that he did not become a “civil servant” by being appointed a marriage commissioner — such that he had the right to decide when and how he would use his appointment. He takes the position that he was not obliged to perform any services. However, according to the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86 (S.C.C.) (QL), a private entity that implements a specific government policy or program acts as “government” and is subject to the Char- ter (para. 43). In J. (M.) v. Nichols, 2009 SKQB 299, 339 Sask. R. 35 (Sask. Q.B.), the Saskatchewan Court of Appeal, applying Eldridge, found that a marriage commissioner is properly characterized as “government” within s. 32 of the Charter and thus subject to its purview (para. 52). That is to say, a marriage commissioner is required to perform his authorized function in a manner that does not breach the Charter rights of others. 22 The applicant also says that the VSA was not statutorily authorized to cancel his appointment as a marriage commissioner. However, s. 3(3) of the Act gives the VSA the power to cancel if it is in “the public interest”, which, for the reasons that follow, was a proper basis for the cancellation in this case: Cancellation of registration 3(3) Where, in the opinion of the minister, a person registered under this Act (a) has ceased to be qualified as provided in section 2; or (b) should not, in the public interest, continue to be registered; 126 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

the minister may cancel the registration of that person; and thereupon that person ceases to be qualified to solemnize ceremonies of marriage. 23 Turning now to the Dor´e analysis, I must first decide whether the VSA’s Decision violates the applicant’s s. 2(a) rights. Justice Dickson, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 (S.C.C.) (QL), outlined the hallmarks of freedom of conscience and religion: 94 A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or re- prisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that. 95 Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect within reason from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct com- mands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense em- braces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. 24 The test to determine whether the Decision interferes with the applicant’s religious freedom was recently restated in Saguenay: 86 ... To conclude that an infringement has occurred, the court or tribunal must (1) be satisfied that the complainant’s belief is sincere, and (2) find that the complainant’s ability to act in accordance with his or her beliefs has been interfered with in a manner that is more than trivial or insubstantial .... Kisilowsky v. Manitoba Simonsen J. 127

25 The applicant argues that it would violate his sincere religious beliefs to marry a same-sex couple and that his ability to act in accordance with his beliefs has been interfered with in a manner that is more than trivial or insubstantial; the cancellation precludes him, as a marriage commissioner, from performing only those wedding ceremonies that conform to his religious beliefs. 26 Manitoba acknowledges that the applicant holds a sincere belief that due to his Christian faith, he cannot solemnize marriages of same-sex couples. But Manitoba says that he has not met the second part of the Saguenay test. It maintains that his ability to act in accordance with his beliefs has not been interfered with in a substantial manner. He is not forced by law to marry anyone. He chooses to apply to be a civil marriage commissioner. 27 This issue was addressed by the Saskatchewan Court of Appeal in Reference re Constitutional Act, 1978 (Saskatchewan), 2011 SKCA 3, [2011] 3 W.W.R. 193 (Sask. C.A.)). In that case, the court was asked to consider whether proposed amendments to the Marriage Act, 1995, S.S. 1995, c. M-4.1, which would grant marriage commissioners the right to refuse to marry same-sex couples, were unconstitutional. Writing for the court, Richards J.A. concluded that the religious freedom of marriage commissioners would be infringed in a manner that was not trivial or insubstantial, if required to perform same-sex marriages contrary to their religious beliefs: 63 In light of the very broad interpretation the Supreme Court has placed on s. 2(a) of the Charter, I conclude that the religious freedom of marriage commissioners would be infringed in such circumstances. As noted above, the Court said, in R. v. Big M Drug Mart Ltd., at p. 337, that freedom of religion means, among other things, “no one is to be forced to act in a way contrary to his beliefs” and, in Syndicat Northcrest v. Amselem, at para. 56, that “a practice or belief, having a nexus with religion, which calls for a particular line of conduct” can operate as the foundation of a s. 2(a) claim. Given this view of s. 2(a), it follows that s. 2(a) freedoms are implicated if a marriage commissioner is obliged to perform a ceremony contrary to his or her religious beliefs. 64 I note as well that, given the applicable authorities, there is no basis for concluding the infringement of rights arising in such circumstances would be merely “trivial or insubstantial” and hence not a cognizable breach of s. 2(a) of the Charter. The notion of a trivial or insubstantial interference with freedom of religion does not in- 128 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

volve an inquiry into the extent to which the measure in issue en- croaches on s. 2(a) freedoms in the sense of examining whether “core” or “peripheral” freedoms are in issue. Rather, it concerns an examination of the degree to which the freedom is burdened by the measure in question. See: R. v. Jones, [1986] 2 S.C.R. 284 (S.C.C.), at pp. 313-14. Thus, by way of example, when examining this point in Multani, supra, the Court did not ask how central the practice of wearing a kirpan was to the Sikh faith. Rather, it noted that Mr. Singh’s choice was between wearing his kirpan and leaving the public school system. It was because of the consequences of exercising his s. 2(a) freedoms that the interference with them was said to be neither trivial nor substantial. See also: Syndicat Northcrest v. Am- selem, supra, at paras. 58 and 59; Alberta v. Hutterian Brotherhood of Wilson Colony, supra at para. 34. 65 In the circumstances at issue here, marriage commissioners have to make a choice. They can either perform same-sex marriages or they can leave their offices. Accordingly, the obligation to perform same-sex ceremonies does not interfere in a trivial or insubstantial way with the s. 2(a) freedoms of those commissioners who would have to act contrary to their religious beliefs in order to solemnize a same-sex union. (Emphasis added) 28 I accept that requiring marriage commissioners to perform same-sex marriages may impinge on their rights under s. 2(a). However, I do not find that the impact of the Decision on the applicant is more than trivial or insubstantial. He says (on cross-examination on his affidavit) that he has only performed marriage ceremonies for people within his ministry and approximately five couples outside his ministry who were known to him. If he were now registered as a marriage commissioner, he would be willing to perform only specific and limited types of ceremonies that accord with his religious beliefs. He has not in the past, nor would he in the future, perform marriages for non-Christians or for Christians who offend his moral code (those who have been divorced for reasons be believes are not justified). He does not intend to conduct marriages for the public at large. 29 But even assuming an infringement of s. 2(a) rights that is more than trivial or insubstantial, the Decision is a reasonable one. It reflects a proportionate balancing of the Charter rights that are at play — the applicant’s rights under s. 2(a) and the rights under s. 15 of those wishing to marry. The applicant contends that it would not infringe the s. 15(1) rights of same-sex couples if he were allowed to continue to be a mar- Kisilowsky v. Manitoba Simonsen J. 129

riage commissioner because there would be other marriage commissioners who could perform their marriage ceremonies, and there is no evidence that he ever had to inform potential marriage applicants that he could not perform their ceremony due to his religious beliefs. So he says that there is no real clash of Charter rights, only a hypothetical one. 30 Manitoba counters that the clash is not speculative because the applicant has made his intentions very clear — he will refuse to marry same- sex couples. Manitoba also says that, on this issue, the following comments of Richards J.A. in the Marriage Reference are apt: 41 First, and most importantly, this submission overlooks, or inap- propriately discounts, the importance of the impact on gay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union. As can be easily understood, such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different. 42 Second, if either of the amendments is enacted, it is entirely possible that a significant number of commissioners will choose not to perform same-sex marriages. The impact of commissioners opting in this direction would be compounded by the fact there is nothing in the proposed amendments to ensure some minimum complement of commissioners will always be available to provide services to same- sex couples. Accordingly, if more than a very few commissioners do opt out of solemnizing same-sex marriages, it might well be more difficult than has been suggested for a gay or lesbian couple to find someone to marry them. They might be forced to make numerous calls and face numerous rejections before locating a commissioner who is prepared to assist them. 43 My third concern about the arguments aimed at minimizing the impact of the amendments is that they take no account of geography. The material filed with the Court suggests marriage commissioners are appointed with a view to ensuring that people in all areas of the Province have a commissioner or commissioners reasonably close at hand. It seems obvious that, if commissioners can opt out of the obligation to perform same-sex marriages, a situation might quickly emerge where gay and lesbian couples (particularly in northern and 130 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

rural areas or smaller centres) would have to travel some distance to find a commissioner willing to perform a marriage ceremony. 31 I agree that the effect of the applicant telling a same-sex couple that he cannot marry them would be significant and offensive. If the applicant were allowed to refuse to do so, other marriage commissioners may follow suit. This could result in more rejections and difficulty for same-sex couples finding a marriage commissioner who would marry them. This difficulty could be compounded in remote or small communities where the number of marriage commissioners is small. These concerns also apply to non-Christian couples, such as Wiccans, Hindus and Muslims, as well as the divorced couples whom the applicant has said he would also turn away. 32 In assessing proportionality, I also note that the Decision has had a limited impact on the applicant’s s. 2(a) rights because the VSA and the Act provide him with an alternative avenue to authorize him to perform marriage ceremonies. 33 The applicant says that if the Charter rights of same-sex couples under s. 15 are engaged, reasonable alternative measures involve placing his name on a private list of marriage commissioners, such that his name would be available only to those who know him and whose marriages would be consistent with his Christian values. This is what he says existed for him prior to 2004. Or he suggests a “Single Point Entry” Sys- tem, endorsed by the Saskatchewan Court of Appeal in the Marriage Reference. 34 Manitoba submits that it already provides two reasonable alternative options to the applicant, namely: he could seek to qualify as a religious official by having his organization recognized as a religious denomination; or he could apply for and obtain, as he has in the past, a temporary marriage commissioner’s appointment for any specific marriage ceremony he wishes to perform. 35 With respect to the religious official option, the applicant says that the key to his ministry is that the people he deals with desire Christian content in their marriage ceremonies but are not involved with and do not wish to be involved with an organized church. Therefore, he maintains that this is not a reasonable alternative. 36 Under s. 2 of the Act, the Director of Vital Statistics registers officials of “a religious denomination” as persons authorized to solemnize marriages in a religious ceremony. Kisilowsky v. Manitoba Simonsen J. 131

37 Religious denominations may appoint members of that faith to be registered to perform marriage ceremonies. Those individuals may then perform ceremonies in accordance with the tenets of their faith — provided the essential requirements of the Act for a legal marriage are met. 38 “Religious denomination” is defined under s. 1 of the Act, as follows: “religious denomination” means an organized society, association, or body of religious believers or worshippers consisting of not less than 25 persons professing to believe in the same religious doctrines, dogma, or creed and closely associated or organized for religious worship or discipline or both. 39 During cross-examination on his affidavit, the applicant explained that he meets each week with approximately 20 to 30 bikers for a ride, following which they gather to engage in prayer. He could apply to regis- ter this group as a religious denomination. According to the affidavit of Denise Koss, Director of the VSA, if a religious-based group of at least 25 individuals wishes to be recognized as a denomination, they must apply to the VSA, providing the following information: 1. The name of their religious denomination; 2. Proof that they are organized as a society, association or body of religious worshippers who profess to believe in the same religious doctrine, dogma, or creed, for the purposes of associating for religious worship or discipline; 3. The names and addresses of 25 adult members; and, 4. A statement of their religious doctrine, dogma or creed. Ms. Koss attests that the VSA recognizes a small number of independent religious denominations every year. 40 If the applicant’s organization was approved, it could designate him to perform marriages; he could then do so according to his faith and could refuse to marry couples for religious reasons. 41 With respect to the temporary marriage commissioner’s appointment, the applicant argues that this too is not reasonable. Many of the individuals who want to be married by him seek to do so on short notice, and the temporary appointment is often not issued until four to six weeks after application. As well, there is paperwork involved. 42 The appointment as a temporary marriage commissioner allows a person to perform a single particular marriage — and allows the applicant to apply to perform only those marriages that conform to his Christian beliefs. Indeed, as I noted earlier, the applicant has applied for seven tem- 132 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

porary marriage commission appointments and solemnized six marriages on this basis between 2007 and 2011. 43 On cross-examination, the applicant indicated that it is not actually the paperwork but rather the delay that makes this process difficult. That said, he was not prepared to identify the names of any individuals he says he has been unable to marry due to delay, nor any details about their requests. As well, following his cross-examination, Manitoba filed a supplementary affidavit of Ms. Koss, indicating that the VSA can issue a temporary marriage commissioner’s appointment within 24 to 48 hours after the application is received. During submissions, Crown counsel allowed that this would occur only in exceptional circumstances. 44 Therefore, the alternatives available to the applicant are reasonable. 45 For the above reasons, I am satisfied that the cancellation of the applicant’s appointment as a marriage commissioner reflects a proportional balancing of the Charter protections that are at play, and thus meets the test in Dor´e. 46 Given this conclusion, I need not address the other alternatives suggested by the applicant, but will nonetheless do so briefly as counsel made extensive submissions in this area. 47 With respect to the private list, this would allow the applicant to refuse to marry not only same-sex couples, but Wiccans, Hindus, Muslims and individuals who are divorced for reasons that do not accord with his religious beliefs. In support of his position that this list should be available to him as a further alternative, the applicant relies, in part, on what transpired at the time he applied to be a marriage commissioner. He says that this past practice is critical. 48 However, on cross-examination, he was unable to identify the individual at the VSA who told him that he could marry only Christian couples (although I appreciate that he was cross-examined more than ten years after any such discussion allegedly took place). And the VSA says that there was no conversation. Based on the evidence before me, I am unable to find that such a conversation occurred. Regardless, even if the alleged statement was made, it would, for the reasons outlined, be discriminatory for a marriage commissioner to be permitted to refuse to marry those who do not conform to his Christian beliefs. 49 The applicant raises not only the option of a private list, but also says that there should be a Single Point Entry System, which was recommended by Richards J.A. in the Marriage Reference (paras. 85-87) and Kisilowsky v. Manitoba Simonsen J. 133

also considered as potentially suitable by the Newfoundland and Labra- dor Supreme Court (Trial Division) in Dichmont v. Newfoundland and Labrador, 2015 NLTD(G) 14, 361 Nfld. & P.E.I.R. 256 (N.L. T.D.). Under this system, a central authority assigns marriage commissioners to couples seeking to be married. 50 Manitoba has filed an affidavit of Ms. Koss on this issue, the admissibility of which is challenged by the applicant on the basis that it is hearsay. Specifically, Ms. Koss attests that she has been advised by an officer with the Saskatchewan Marriage Unit that Saskatchewan does not use a Single Point Entry System and that marriage commissioners in that province are expected to marry all eligible couples and that all marriage commissioners are listed by name on the government’s website. Ms. Koss also attests that she has been advised by a representative of the Vital Statistics Branch of the Ontario government that at one point the Single Point Entry System was used in Toronto but that this policy had ended because the government determined that the questions being asked of the couples who were seeking a marriage commissioner violated the Human Rights Code. 51 With respect to the admissibility of this evidence, the fact that these systems are not in place is the kind of evidence that can be tendered based on information and belief; Queen’s Bench Rule 39.01(5) allows for affidavit evidence on applications with respect to facts that are not contentious if the source of the information is specified in the affidavit. Whether or not this system is in place in these provinces is a fact that could have been confirmed by simple inquiry or challenged by affidavits or cross-examination. None of that was done here. I find the evidence to be admissible and I accept it. 52 The evidence as to why the Single Point Entry System is not in place is another matter, however — that information is challenged and goes to the root of this application. That kind of hearsay is not admissible. 53 Regardless, I understand Manitoba’s submission that, with the Single Point Entry System, the necessary personal questioning of couples by provincial officials would be discriminatory. Presumably, the couples would be questioned on their race, religious beliefs, and sexual orienta- tion, in order to be referred to a suitable marriage commissioner. 54 Counsel for the applicant notes that, in the application for a marriage license form attached to the affidavit of Ms. Harlos, the applicants are required to complete a box identified as “Religious Denomination”. 134 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Crown counsel says that this too is discriminatory and will forthwith be removed from the form. 55 In any event, Manitoba need not choose the alternative measures that are least intrusive to the applicant’s rights. As I have explained, I am satisfied that Manitoba has provided reasonable alternatives to him in this case. 56 To conclude, I reiterate that the Decision reflects a proportional balancing of the Charter protections at play and the statutory objective of governing access to marriage. The positive effects of the Decision are significant. It was a rejection of discrimination against gays and lesbians and their right to marry in Manitoba. It has prevented the applicant from engaging in discriminatory behaviour against same-sex couples. At the same time, the effects on the applicant have been limited. He may practice his faith as he chooses but is simply not permitted to use his faith as a basis to refuse to marry couples whose weddings, due to religious or moral views, offend his. He may marry who he wishes by applying for a temporary marriage commissioner’s appointment. 57 For the foregoing reasons, the application is dismissed. Application dismissed. McCain v. Melanson 135

[Indexed as: McCain v. Melanson] Eleanor Marie Norrie McCain (Applicant) and Jeffrey James Melanson (Respondent) Ontario Superior Court of Justice Docket: FS-16-00409757 2016 ONSC 6350 Kiteley J. Heard: September 28, 2016 Judgment: October 18, 2016* Professions and occupations –––– Barristers and solicitors — Relationship with client — Conflict of interest — Miscellaneous –––– Wife applied for annulment claiming husband deliberately misrepresented himself and tricked her into marrying him — Husband retained lawyer whom wife claimed had consistently and repeatedly acted against wife in custody and access proceedings with her former spouse and had acted against two of her siblings in contentious family law disputes — Wife claimed lawyer obtained great deal of relevant confidential personal information, including information wife had disclosed to therapists, mediators and parenting coordinators and assessment that had been conducted by psychiatrist pursuant to s. 30 of Children’s Law Reform Act — Wife brought motion for order disqualifying husband’s lawyer and law firm from continuing to act as counsel for husband — Motion dismissed — Wife had not met onus on establishing sufficient relationship between wife and husband’s lawyer or his law firm — Legal issues in this proceeding were unrelated to legal issues in other proceedings, as there were different parties, different legal issues and different factual issues — Wife claimed that psychiatrist’s reports would take central role in proceeding was not realistic, as nothing psychiatrist said over 11 years ago about wife’s parenting capacity could be relevant to whether she could prove her allegations of misrepresentation and deceit — Wife never retained lawyer and he was always adverse to her, and it was hard to accept that communications she made to other professionals that became known to lawyer could constitute sufficient relationship — Information wife communicated to professionals did not create expectation of confidentiality that could be relied upon to disqualify lawyer for her former spouse from acting for her current spouse — That lawyer acted against wife’s siblings did not establish sufficient

* Leave to appeal refused at McCain v. Melanson (2017), 2017 CarswellOnt 400, 2017 ONSC 375 (Ont. Div. Ct.). 136 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

relationship because wife was not party to proceedings and was not directly involved, and wife provided no evidence as to extent to which issues in those matters bore any relationship to this proceeding — While lawyer had acted for husband’s former spouse, wife was not involved in that proceeding and former spouse waived right to challenge retainer — Husband did not have to offer explanation for retaining lawyer and allegation that lawyer was retained to intimidate wife was not accepted because her actions did not demonstrate that she was intimidated — Husband’s retainer of lawyer did not raise concerns of unfairness, and public confidence in integrity of justice system was not engaged. Evidence –––– Privilege — Privileged communications — Communications made without prejudice –––– Wife applied for annulment claiming husband deliberately misrepresented himself and tricked her into marrying him — Husband retained lawyer whom wife claimed had consistently and repeatedly acted against wife in custody and access proceedings with her former spouse and had acted against two of her siblings in contentious family law disputes — Wife claimed lawyer obtained great deal of relevant confidential personal information, including information wife had disclosed to therapists, mediators and parenting coordinators and assessment that had been conducted by psychiatrist pursuant to s. 30 of Children’s Law Reform Act — Wife brought motion for order disqualifying husband’s lawyer and law firm from continuing to act as counsel for husband — Lawyer brought motion to strike certain evidence led by wife — Motion granted — Letter in which husband’s then counsel took position respecting claim pursuant to marriage agreement and letters between counsel referring to settlement were protected by settlement privilege — While first letter was not marked “without prejudice”, it was implicit that correspondence was exchanged with view to achieving settlement — All of challenged exhibits were within category of settlement privilege — While letter did not ultimately lead to settlement, letter and exchange of communications that followed did not constitute bad faith — Wife had not established that husband waived privilege — Wife failed to meet burden of establishing that settlement privilege did not apply — Complaint made about psychologist fell within s. 36(3) of Regulated Health Professions Act, 1991 and was not admissible as evidence in this proceeding. Cases considered by Kiteley J.: Celanese Canada Inc. v. Murray Demolition Corp. (2006), 2006 SCC 36, 2006 CarswellOnt 4623, 2006 CarswellOnt 4624, 50 C.P.R. (4th) 241, 269 D.L.R. (4th) 193, 30 C.P.C. (6th) 193, 352 N.R. 1, 215 O.A.C. 266, [2006] 2 S.C.R. 189, [2006] S.C.J. No. 35 (S.C.C.) — considered Chapters Inc. v. Davies, Ward & Beck LLP (2001), 2001 CarswellOnt 178, 10 B.L.R. (3d) 104, 52 O.R. (3d) 566, [2001] O.J. No. 206, 141 O.A.C. 380 (Ont. C.A.) — considered McCain v. Melanson 137

Dobbin v. Acrohelipro Global Services Inc. (2005), 2005 NLCA 22, 2005 Car- swellNfld 99, 9 C.P.C. (6th) 103, 246 Nfld. & P.E.I.R. 177, 731 A.P.R. 177, [2005] N.J. No. 124 (N.L. C.A.) — considered MacDonald Estate v. Martin (1990), [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249, 121 N.R. 1, (sub nom. Martin v. Gray) [1990] 3 S.C.R. 1235, 48 C.P.C. (2d) 113, 70 Man. R. (2d) 241, 1990 CarswellMan 384, [1990] S.C.J. No. 41, 1990 CarswellMan 233, 285 W.A.C. 241, EYB 1990-68602 (S.C.C.) — followed Paylove v. Paylove (2001), 2001 CarswellOnt 4454, 23 R.F.L. (5th) 200, [2001] O.T.C. 917, [2001] O.J. No. 5009 (Ont. S.C.J.) — distinguished Regroupement des marchands actionnaires inc. c. M´etro inc. (2004), 2004 Car- swellQue 2732, [2004] R.J.Q. 2665, 2004 CarswellQue 11912, [2004] J.Q. No. 11004, REJB 2004-71938, [2004] Q.J. No. 11004 (C.A. Que.) — considered Roadrunner Apparel Inc. v. Gendis Inc. (2006), 2006 MBCA 137, 2006 Car- swellMan 395, 34 C.P.C. (6th) 114, 208 Man. R. (2d) 269, 383 W.A.C. 269, [2007] 3 W.W.R. 459, [2006] M.J. No. 425 (Man. C.A.) — considered Roberts v. Zoomermedia Ltd. (2015), 2015 ONSC 1120, 2015 CarswellOnt 2379, [2015] O.J. No. 811 (Ont. S.C.J.) — referred to Sable Offshore Energy Inc. v. Ameron International Corp. (2013), 2013 SCC 37, 2013 CarswellNS 428, 2013 CarswellNS 429, 359 D.L.R. (4th) 381, 37 C.P.C. (7th) 225, 22 C.L.R. (4th) 1, 446 N.R. 35, 1052 A.P.R. 1, 332 N.B.R. (2d) 1, [2013] S.C.J. No. 37, [2013] 2 S.C.R. 623 (S.C.C.) — referred to Wallace v. Canadian Pacific Railway (2013), 2013 SCC 39, EYB 2013-223917, 2013 CarswellSask 432, 2013 CarswellSask 433, 360 D.L.R. (4th) 389, [2013] S.C.J. No. 39, [2013] A.C.S. No. 39, 446 N.R. 1, [2013] 10 W.W.R. 629, 42 C.P.C. (7th) 1, 423 Sask. R. 1, 588 W.A.C. 1, (sub nom. Canadian National Railway Co. v. McKercher LLP) [2013] 2 S.C.R. 649 (S.C.C.) — referred to Statutes considered: Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14 Generally — referred to Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 30 — considered Civil Marriage Act, S.C. 2005, c. 33 Generally — referred to Family Law Act, R.S.O. 1990, c. F.3 s. 56(4)(c) — considered Regulated Health Professions Act, 1991, S.O. 1991, c. 18 s. 36(3) — considered 138 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Rules considered: Family Law Rules, O. Reg. 114/99 R. 7(2) — considered

MOTION by wife for order disqualifying husband’s lawyer and law firm from continuing to act as counsel for husband; MOTION by lawyer to strike certain evidence led by wife.

Gavin MacKenzie, Donald Jack, Jacqueline M. Mills, for Applicant Jonathan Lisus, Paul Michell, for Harold Niman and Niman Gelgoot & Associ- ates LL.P. Nadia Marotta, for Dr. Douglas Weir

Kiteley J.:

1 This is a motion by the Applicant for an order disqualifying Harold Niman and the law firm Niman Gelgoot & Associates (collectively, “Niman”) from continuing to act as counsel to the Respondent, Jeffrey Melanson. The Respondent did not participate in this motion. Dr. Doug- las Weir is an affected non–party. Counsel on behalf of Niman brought a motion to strike certain evidence led on behalf of the Applicant and counsel for Dr. Weir made written and oral submissions supporting one aspect of that motion but she did not otherwise participate in the motion. 2 For the reasons that follow, the motion to disqualify is dismissed and the motion to strike is allowed.

Background 3 On April 24, 2014, the Applicant and Respondent entered into a Mar- riage Agreement. They were married in a private ceremony on April 26, 2014 and held a public ceremony on November 22, 2014. 4 The parties separated in January 2015 and each party retained counsel, namely Jacqueline Mills for the Applicant and D. Smith for the Re- spondent, and counsel engaged in negotiations.

Application on behalf of McCain 5 On March 2, 2016, an Application was commenced in this court in which she seeks an annulment, and, if the Application was defended, she McCain v. Melanson Kiteley J. 139

claimed costs. The following is taken from the “overview” section of the 36 page Application. 3. As hereinafter particularized, Jeff lied to Eleanor, deliberately misrepresented himself to her and tricked Eleanor into going through a ceremony of marriage in April, 2014. 4. Eleanor seeks an annulment of the marriage. Eleanor states that she is entitled to an annulment under the Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A–14. 5. Eleanor further states that under the Civil Marriage Act, S.C. 2005, c. 33 marriage requires the free and enlightened consent of two persons to be the spouses of each other. Eleanor states that, since Jeff lied to her, deliberately misrepresented himself to her and tricked her into going through a ceremony of marriage with him, she did not give her free and enlightened consent to be married to him. Had she known the truth about Jeff, she never would have married him. 6. Eleanor respectfully asks that an annulment be granted so that she may treat the marriage she was tricked into with Jeff as if it never existed. 6 Paragraphs 7 to 33 include the “particulars of Jeff’s deceitful treatment of Eleanor” under these headings: Jeff Seeks Out Eleanor Jeff Relentlessly Courts Eleanor Jeff Insists on an Early Wedding and Leaves TBC (The Banff Cen- tre) in the Lurch Jeff and Eleanor Undergo a Ceremony of Marriage Jeff Abruptly Terminates the Marriage Jeff Deliberately Misrepresented Himself to Eleanor and Thereby In- duced Her into Marrying Him (which is followed by 10 detailed paragraphs). 7 The Application contains no reference to the Marriage Agreement. 8 The Application was served on March 8. On March 24, 2016, the Re- spondent retained Niman. On April 1, 2016, the Applicant’s counsel advised that she was considering whether to object to the retainer. Pursuant to the order of Corbett J. dated April 26, 2016, the Answer and Claim was filed on April 27. In the Answer there are 11 pages that respond to the allegations in the Application and the Answer also includes allegations against the Applicant. In the Claim, the Respondent asked for a divorce, and for an order that the Marriage Agreement dated April 24, 2014 be enforced, along with costs and prejudgment interest. 140 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

9 In her Reply filed May 6, 2016 the Applicant took the position that section 9.11 of the Marriage Agreement contemplated that the marriage might be annulled. She asserted that the Respondent was not entitled to the $5million payment set out in s. 4.2 or to any other pecuniary benefit because he had “disqualified himself through the misrepresentations made to Eleanor”. She also claimed that pursuant s. 56(4)(c) of the Fam- ily Law Act, the Marriage Agreement should be set aside. In the alternative she claimed that if the court was “inclined to consider Jeff’s claim to the $5million or other pecuniary benefits”, she sought an order for the “immediate repayment/recovery of same as restitution for unjust enrichment and as damages for deceit and civil fraud”. She asserted that the Respondent had “breached his duty of utmost good faith” and “deliberately misrepresented himself when entering into the Marriage Agree- ment. There is no juristic reason for any pecuniary benefit under the Marriage Agreement to be paid to or retained by Jeff”. Paragraphs 14 to 87 are described as particulars of the Respondent’s misrepresentations and the assertion that “Jeff is attempting to use these misrepresentations to divert attention away from his own unconscionable behavior”. In her Answer to his Claim, she did not agree with any of the claims made by the Respondent. 10 To say that the Applicant and Respondent have different perspectives on the relationship is an understatement. Be that as it may, the legal issues raised in these proceedings are as follows: Claimed by the Applicant * annulment of the marriage conducted on April 26, 2014 * set aside the Marriage Agreement pursuant to s. 56(4)(c) * restitution for unjust enrichment * damages for deceit and civil fraud Claimed by the Respondent * divorce (grounds not specified) * enforcement of the Marriage Agreement * pre–judgment interest. 11 In addition, both parties claim costs. 12 On June 3, 2016, Glustein J. held the initial case conference and established a timetable for the hearing of this removal motion (including the associated admissibility issues) which he scheduled for September 19, 2016 as well as the Respondent’s summary judgment motion which McCain v. Melanson Kiteley J. 141

he directed be heard by December 31, 2016. He also granted leave to the Respondent to bring a motion for interim disbursements.

A. Motion to disqualify Niman 13 On May 4, 2016, the notice of motion and affidavit of the Applicant sworn May 4, 2016 were served. The relief sought is an order disqualifying Harold Niman and Niman Gelgoot & Associates LLP from acting as counsel for the Respondent and costs. Mr. Niman’s affidavit was sworn May 30, 2016 as was the Respondent’s affidavit. The Applicant’s reply evidence consisted of the affidavit of Andrea Van de Velde sworn June 8, 2016 and the Applicant’s affidavit sworn June 10, 2016. Mr. Niman was questioned on August 2, 2016 and the Respondent on July 25, 2016 and transcripts were provided. 14 The following is taken from the “overview” section of the factum filed on behalf of the Applicant: 2. Over the past 12 years, Niman has consistently and repeatedly acted against Ms. McCain and her family in contentious family law disputes. By virtue of his previous solicitor–client relationships in relation to Ms. McCain, Niman has obtained a great deal of relevant confidential information of a highly personal nature, including sensitive information disclosed by Ms. McCain to various therapists, mediators, and parenting coordinators in confidence over the course of lengthy custody and access proceedings with her former spouse, Greg David. Niman also obtained confidential information relevant to this matter when acting against two of Ms. McCain’s siblings in similar disputes respecting contested marriage contracts. The Re- spondent has not challenged Ms. McCain’s evidence regarding the significant confidential information imparted to Niman. 3. In light of the extensive relevant personal and confidential information known to Niman, there is a real risk of prejudice to Ms. Mc- Cain if Niman is permitted to continue to act for Mr. Melanson against her. This court and appellate courts across Canada have on numerous occasions disqualified counsel from acting because counsel had received the opposing party’s confidential information in circumstances creating an expectation of confidentiality — without ever having a solicitor–client relationship with that party. The risk of prejudice is especially pronounced in family law matters, where clients are at their most vulnerable, and the confidential information imparted for the purpose of resolving the matter is directly personal and particularly sensitive. 142 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

4. In addition to the risk of prejudice to Ms. McCain arising from Niman’s knowledge of her confidential information, the circumstances in which Niman was retained also raise real concerns of unfairness that would unacceptably diminish public confidence in the integrity of the justice system if he is permitted to continue to act. Mr. Melanson had previously been represented by experienced and well–respected counsel in this proceeding, but he switched counsel and retained Niman knowing how much Niman’s involvement would intimidate and cause distress to Ms. McCain. Mr. Melanson has long known of Ms. McCain’s and her family’s acrimonious history with Niman. When Mr. Melanson’s former spouse retained Niman to act against him during his marriage to Ms. McCain, Mr. Melanson saw Niman’s involvement as a “sickening” ploy to “target [Ms. Mc- Cain’s] family, recognizing that Niman would “bring a nightmare into [Ms. McCain’s] life.” 5. The respondents allege this is a tactical motion. On the contrary, it was Mr. Melanson’s decision to switch counsel that was tactical. Mr. Melanson has offered no plausible reason for switching from a well–respected lawyer with whom he was content to a new lawyer with 12 years’ worth of confidential information from Ms. McCain, and whom he has acknowledged would “bring a nightmare into [Ms. McCain’s] life”. 6. Particularly in matrimonial litigation, a litigant’s decision to retain counsel who has obtained extensive relevant confidential information about the opposing party, and who was retained for tactical reasons, ought not be countenanced by this Court. Public confidence in the integrity of the legal profession and the administration of justice requires disqualification of Niman as counsel for Mr. Melanson in this proceeding. (emphasis added)

B. Analysis 15 Counsel have referred extensively to the authorities which largely relate to circumstances where the motion to disqualify is brought by a former client or a “near client”. None of the authorities relied on by either counsel directly relate to the circumstances of this case. I do not need to refer to the extensive authorities provided by counsel but I will be guided by the principles applicable on which counsel generally agree. McCain v. Melanson Kiteley J. 143

16 In MacDonald Estate1 the Supreme Court established a two–step test governing the removal of a lawyer or law firm for breach of a lawyer’s duty of confidence: (a) did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (b) is there a risk that it will be used to the prejudice of the client. 17 Counsel agree that that two step test applies to circumstances in which the moving party was a client in the course of a solicitor–client relationship and to situations in which the lawyer received relevant confidential information from a non–client. 18 The Supreme Court recognized that a party seeking to disqualify a law firm from acting on the basis of an alleged breach of confidence should not be required to place the information said to be confidential in the public record. Accordingly, a litigant seeking to disqualify a law firm from acting on the basis of the law firm’s possession of relevant confidential information may show one of these two things: (a) that the current retainer and previous retainer are sufficiently related, generating a presumption that the law firm possesses relevant confidential information; or (b) that the law firm actually possesses relevant confidential information. 19 In Celanese2, the Supreme Court addressed the issue as to whether there needed to be a previous solicitor–client relationship in a case in which the two law firms were disqualified from continuing to act on the basis that they had obtained confidential information through the execution of an Anton Pillar order. The court held that a solicitor–client relationship with the opposing party whose confidential information they had been obtained was not a pre–requisite: The relevant elements of the MacDonald Estate analysis do not depend on a pre–existing solicitor–client relationship. The gravamen of the problem here is the possession by opposing solicitors of relevant and confidential information attributable to a solicitor–client relationship to which they have no claim of right whatsoever.

1 MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.) at para. 45 2 Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (S.C.C.) at para. 46 144 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

20 Counsel who seeks to establish a presumption that the Applicant gave confidential information bears the onus under the first step of the Mac- Donald Estate test and according to the Ontario Court of Appeal in Chapters3 she must adduce clear and cogent evidence, not mere assertions, to show that a previous retainer is sufficiently related to the current retainer. Furthermore the moving party must show that the possibility of relevant confidential information having been acquired by the law firm is realistic, not just theoretical. The court must carefully review and com- pare the retainers to determine whether they are sufficiently related. 21 The moving party must provide evidence of a “sufficient relationship” in which allegedly confidential information obtained by the law firm under the previous retainer could be used against the former client in the current retainer and in some tangible manner.4 22 As the court held in Paylove v. Paylove5, “confidential information” is information one would not voluntarily reveal to an opposing lawyer and, in the family law context would extend to the personal habits, faults and foibles of the “client”, knowledge of which might be valuable to the lawyer in the adversarial world of litigation.

With respect to the David v. McCain proceeding, has the Applicant established a “sufficient relationship”? 23 The factum on behalf of the Applicant did not include an analysis as to how the prior proceedings in which the Applicant was adverse to Niman’s client constituted a “sufficient relationship” to this proceeding in which she is again adverse to Niman’s client. The evidence filed on behalf of the Applicant did not include a copy of the pleadings in the prior case and a brief was provided to the court during submissions by counsel for the Applicant to which counsel for Niman objected. Since it is an essential element of the motion before me, I received the brief of pleadings and gave both counsel an opportunity to make submissions. 24 Ms. McCain and Mr. David were married on September 18, 1999 and separated on August 11, 2004. Following the separation, the parents at-

3 Chapters Inc. v. Davies, Ward & Beck LLP, [2001] O.J. No. 206 (Ont. C.A.) at para. 29–30 4 Wallace v. Canadian Pacific Railway, [2013] S.C.J. No. 39 (S.C.C.) at para. 54 5 [2001] O.J. No. 5009 (Ont. S.C.J.) at para. 19 McCain v. Melanson Kiteley J. 145

tempted to implement a parenting plan and had attended mediation with Dr. Irving. When mediation did not lead to an agreement, the parties consented to an assessment pursuant to s. 30 of the Children’s Law Reform Act by Dr. Douglas Weir who delivered a report dated May 24, 2005. In June 2005, an Application [05–FA–13559FIS] was issued against Ms. McCain in which Mr. David asked for custody or access with respect to their daughter who was then 3 years old. According to the Application, Dr. Weir had attempted to mediate the implementation of a parenting plan prior to issuing his final report. The Application contains allegations with respect to his parenting, Ms. McCain’s parenting and the challenges he saw in continuing to maintain his relationship with his daughter. Mr. David asked for an order implementing Dr. Weir’s recommendations. The Answer and Claim are dated August 11, 2005 and include Ms. Mc- Cain’s position that she was the primary caregiver, that she had always encouraged the father–daughter relationship, and her position with respect to the assessment reports by Dr. Weir which she said indicated that he had “gone off on a frolic of his own”. Ms. McCain asked for an order for sole custody and retroactive and ongoing child support. Mr. David’s Reply is dated February 7, 2006. In the fall of 2005, Niman brought a motion on behalf of Mr. David in reliance on Dr. Weir’s s.30 report, seeking an order to change the de facto parenting arrangements and replace it with an order that Mr. David have interim custody of the child. The motion was argued on November 28, 2005 and was dismissed on December 9, 2005. 25 According to the Applicant in the proceeding before me, that 05–FA–13559FIS proceeding has continued for 12 years with Mr. Niman personally or someone in his firm acting for Mr. David. Niman agreed that he had acted for Mr. David since 2004 but he pointed out that it was not a consecutive retainer, from which I understood him to mean that it was not continuous throughout all those years. 26 At paragraph 40 of the factum, counsel asserted that the Applicant had disclosed a considerable amount of personal and confidential information to Niman through meetings with therapists, parenting coordinators and mediators including Ms. Pomerantz, Dr. Irving, Dr. Weir, Dr. Radovanovic and Dr. Butkowski all of whom reported to the parties’ counsel. These meetings required Ms. McCain “to work in an environment of open and honest coopera- tion” to determine custody and access arrangements in the best interests of her child. Ms. McCain had understood that the sensitive personal information she provided in these meetings was disclosed in 146 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

secrecy, not to be used except for the purposes of the custody and access arrangements at issue. By virtue of his solicitor–client relationship with Mr. David, Niman obtained a great deal of relevant confidential information about Ms. McCain. As in Metro, failing to recognize Niman’s relationship with Ms. McCain as giving rise to a conflict of interest would run the risk of encouraging parents to be reserved and guarded in attempts at settlement of custody and access arrangements, and to refrain from disclosing any information in such meetings unless absolutely necessary — to the detriment of their children’s best interests. 27 Central to the position taken by the Applicant on the disqualification motion is the role of Dr. Weir. As indicated above, on behalf of Mr. David, Niman relied on the May 24, 2005 report in the motion for an interim order. In the course of deciding that motion and costs, the motions judge found the report to be an unreliable basis upon which to change the status quo. As indicated at paragraph 64 of the factum, counsel on behalf of the Applicant pointed out that in the present proceeding, the Respondent has pleaded that Ms. McCain is a “vengeful, angry person” with “incredible amounts of rage” and that, in light of such allegations, the sensitive personal and confidential information Ms. McCain “imparted to Niman through these meetings is directly relevant to this matter”. In particular it is asserted that the hundreds of pages of Dr. Weir’s confidential notes could be used against her in this proceeding. 28 I am not persuaded that the Applicant has met the onus of establishing that a “sufficient relationship” occurred between the Applicant and Mr. Niman or his firm for these reasons. 29 First, it is clear that the legal issues in that 05–FS–13559FIS proceeding are unrelated to the legal issues in this proceeding as described in paragraph 10 above: different parties; different legal issues; different factual issues. 30 Second, the central role that the Applicant asserts the report(s) of Dr. Weir will take in the proceeding before me is conjecture or theoretical but not realistic. She has provided no evidence that the Respondent or his counsel intends to do so. She insists that the fact that in his questioning Niman did not answer the question as to whether he intended to rely on the Weir report(s) means that the court should infer that he will do so. I do not agree that that inference can or should be drawn. In this motion, the Applicant introduced the topic of Dr. Weir absent any evidence of any threat, let alone any suggestion, that the Respondent or his counsel would bring it into these legal proceedings. In any event, on the record McCain v. Melanson Kiteley J. 147

before me, I see no prospect that anything a psychiatrist said over 11 years ago about the Applicant’s parenting capacity could be relevant to whether she can prove her allegations of misrepresentation and deceit. The fact that Dr. Weir made reference to a personal characteristic such as anger in the context of a s. 30 assessment does not mean that it is realistic that such references or excerpts from Dr. Weir’s notes will be found relevant to the allegations in the Answer as to the Applicant’s anger. 31 Third, where the Applicant was always adverse to Mr. David and adverse to his lawyer, I find it difficult to accept that the communications she made to other professionals which “became known to Mr. Niman” could constitute a “sufficient relationship”.6 She does not allege that she gave any confidential information to Mr. Niman; rather, she alleges that what she said to others was communicated to him. No doubt what Mr. David said to those same others may have become known to her counsel. The information that she says she communicated indirectly is not in the category of “confidential information attributable to a solicitor client relationship to which they have no claim of right whatsoever”. Niman had the right to receive the information that he received indirectly. I do not accept that such information as she communicated to those professionals created an expectation of confidentiality that could be relied upon to disqualify the lawyer for her former spouse from acting for her current spouse. 32 I do accept that in the context of a high conflict parenting case that has persisted for an extended period of time, that it is in the public interest and in the best interests of the child that the parties conduct themselves in a way that will yield a settlement. But the Applicant has never retained Niman. Her former husband was Niman’s client and conse- quently, Niman was adverse to her. Throughout that prolonged period, particularly in this high conflict case, the parents have clearly been adverse as is demonstrated by what counsel describes as “Niman’s previous use of erroneous and hurtful allegations against Ms. McCain”.

6 The circumstances in this case cannot be considered in the category of “near client cases” such as Regroupement des marchands actionnaires inc. c. M´etro inc., [2004] Q.J. No. 11004 (C.A. Que.); Dobbin v. Acrohelipro Global Services Inc., 2005 NLCA 22 (N.L. C.A.); Roadrunner Apparel Inc. v. Gendis Inc., 2006 MBCA 137 (Man. C.A.) 148 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

With respect to claims involving her brothers, has the Applicant established a “sufficient relationship”? 33 Counsel for the Applicant additionally takes the position that Niman should be disqualified because he has acted against McCain’s brothers. In an effort to establish a sufficient relationship, the Applicant’s evidence is that Niman acted against two of her siblings, Scott and Michael in their respective “matrimonial proceedings” in which Niman, on behalf of each of their spouses, challenged the enforceability of a marriage contract. 34 I am not persuaded that the Applicant has established that that constitutes a special relationship for these reasons. First, the Applicant was not a party to either of those matters and there is no evidence that she was involved directly or indirectly in either matter. Second, the evidence is superficial in that it includes reference to the Michael McCain matter that involved legal proceedings for which the court file was sealed for confidentiality reasons but no information about the Scott McCain matter except that it involved a challenge to the marriage contract. Third, the fact that the enforceability of a marriage contract was in issue in the siblings’ cases does not make it similar to these proceedings where it is the Re- spondent who seeks to enforce the Marriage Agreement while the Appli- cant takes the position in her Reply that it is not enforceable. 35 The Applicant has provided no evidence as to the extent to which the issues in those matters bear any relationship to the issues in the matter before me. It may be that as a result of acting for the wives of her two brothers Niman received financial information about Michael and Scott McCain that might be related to the Applicant. But that does not meet the burden of “sufficient relationship”.

With respect to legal proceedings by Melanson’s former wife, has the Applicant established a “sufficient relationship”? 36 In a related submission, counsel for the Applicant takes the position that Niman should be disqualified because he had acted against Melan- son when he accepted the retainer of Melanson’s former wife. The Appli- cant’s evidence with respect to that retainer is sparse but on all of the evidence in this motion, it appears that the Applicant was not involved in that proceeding. In any event, Melanson’s former wife, who has the legal right to object, has waived her right to challenge the retainer. The Appli- cant has not established a sufficient relationship in regard to those proceedings. McCain v. Melanson Kiteley J. 149

Has the Applicant established that Niman actually possesses relevant confidential information? 37 Counsel concentrated on the submission that the Applicant had established a presumption that she gave confidential information to Niman during the course of the David v McCain litigation (or the disputes between her brothers and their ex–spouses or the dispute between Melan- son and his former wife). Having failed to fulfill the burden of proof of a “sufficient relationship” in respect of any of them, the Applicant is not entitled to the benefit of the presumption. 38 In response to my question, Mr. MacKenzie conceded that if I was not persuaded on that issue, that he had led no evidence on which I could find that Niman actually possessed relevant confidential information and accordingly the motion to disqualify Niman fails.

Applicant’s submission that the Respondent allegedly retained Niman to intimidate her 39 The last submission is that Niman should be disqualified on account of the Respondent’s alleged conduct in retaining Niman. The Applicant asserts that the Respondent has offered no plausible reason for switching from a well–respected lawyer with whom he was content to a new lawyer with 12 years’ worth of confidential information from Ms. McCain, and whom he has acknowledged would “bring a nightmare into [Ms. Mc- Cain’s] life”. 40 I disagree. The Respondent has no obligation to offer any reason for switching, let alone a “plausible” reason. A party has the right to choice of counsel. He did not have to give any explanation for the change but he did: once negotiations ended and litigation commenced, he wanted a lawyer with different skills. 41 It is the case that shortly after their wedding ceremony the Respon- dent exchanged text communications with the Applicant that were critical of his former wife for having retained Niman in their legal matter and that those communications demonstrated his understanding that his former wife’s choice of Niman was “sickening” and would “bring a nightmare into [Ms. McCain’s] life”. But that does not mean that the Re- spondent is deprived of his right to choose that same counsel, so long as his former wife agreed. The Applicant also asserts that by choosing Niman, the Respondent intended to intimidate the Applicant. In the context of the aggressive Application and the equally as aggressive disqualification motion, that assertion (which is denied by the Respondent) is not 150 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

realistic because her actions do not demonstrate that she is intimidated. I do not accept the submission that the Respondent’s retainer of Niman raises concerns of unfairness nor that any aspect of public confidence in the integrity of the justice system is engaged. B. Motion by Niman to strike 42 In his notice of motion, Niman seeks to strike two categories of documents and evidence. The first is what is alleged to be a settlement privileged letter attached as Exhibit I to the May 4, 2016 affidavit of the Ap- plicant as well as the affidavit of Van de Velde, particularly Exhibits D, F, G, H, I, J and N. The second category relates to documents and evidence arising from the complaint that the Applicant made to the College of Physicians and Surgeons with respect to Dr. Weir. 43 At the outset of the motion, counsel advised that they had agreed that they would make submissions on the disqualification motion and leave submissions on the motion to strike to the end of the day.

Are the documents in the category of settlement privilege? 44 In the notice of motion, counsel for Niman seeks to strike the following: (a) in the affidavit of the Applicant sworn May 4, 2016: Exhibit I which is a letter dated July 21, 2015 in which the Respondent’s then counsel took a position with respect to the Respondent’s claim pursuant to the Marriage Agreement. (b) affidavit of Van de Velde sworn June 8, 2016. 45 Exhibit I to the May 4 affidavit is the same as Exhibit D to the June 8 affidavit. Exhibits D,F,G,H,I,J and N of the Van de Velde affidavit are letters between counsel referring to settlement. The remaining exhibits to the Van de Velde affidavit (A,B,C,E,K,L,M and O) are not specifically challenged but counsel seeks to strike the entire affidavit. 46 The Applicant argues that the evidence is relevant to the disqualification motion because it shows the significant work Ms. Smith had conducted in her representation of the Respondent which the Applicant asserts is relevant to his choice of counsel. In submissions, Mr. Jack added that the settlement communications between counsel were relevant to the claim for an annulment and the claim to enforce the Marriage Agreement which was a contract “uberrimae fidei” that was prefaced on the Respon- dent “concealing nothing”. McCain v. Melanson Kiteley J. 151

47 Settlement privilege applies to a communication which meets the following test: (a) a litigious dispute was in existence or within contemplation at the time of the communication; (b) the communication was made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and (c) the purpose of the communication was to attempt to effect a settlement.7 48 The July 21, 2015 letter is not marked “without prejudice” however in reviewing all of the letters attached to the Van de Velde affidavit, it is implicit that the correspondence was exchanged with a view to achieving a settlement. Indeed, it was Mr. Jack’s letters dated July 7 (Exhibit C) and dated July 22, 2015 (Exhibit E) that made it clear that the communications were “without prejudice”. I am satisfied that all of the challenged exhibits are within the category of settlement privilege which, as a class privilege, presumptively applies, subject to being displaced by the party resisting the application of the privilege.8 49 Counsel takes the position that the exhibits are not settlement privilege because settlement or compromise was not the bona fide purpose of the Respondent’s communication and because there are indicia of bad faith.9 50 It is the case that the Respondent’s counsel took a position in the July 21 letter that did not ultimately lead to a written settlement agreement. But I will not draw the inference which counsel invites that that the letter dated July 21 or the exchange of communications that followed constitutes bad faith. A finding of bad faith cannot be made on the basis of bald assertions. 51 Counsel for the Applicant makes an alternative submission that the Respondent waived any privilege he had in the letter dated July 21, 2015 because he discussed the letter with third parties. The evidence of the Respondent is that he discussed with three people the “spirit of the letter”

7 Sopinka et al., Evidence (4th ed. 2014) at 1039 8 Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (S.C.C.) at para. 12 9 Roberts v. Zoomermedia Ltd., 2015 ONSC 1120 (Ont. S.C.J.) at para. 25 152 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

but that he did not show the letter to others nor discuss it with others. I do not agree that his actions in exploring outcomes with as many as three people constitute a waiver of privilege in the July 21 letter. 52 The Applicant has failed to meet the burden of establishing that settlement privilege does not apply. But had she met that burden, I would not have found the correspondence relevant to the disqualification motion in any event.

Documents and evidence concerning complaint to the College of Physicians and Surgeons of Ontario with respect to Dr. Weir 53 As indicated above, counsel for the Applicant has described the role that Dr. Weir played in the s. 30 assessment report prepared in May 2005. In her evidence and related materials, the Applicant expresses her concern that Niman may seek to rely on the s. 30 report again in this proceeding and therefore evidence as to Dr. Weir’s role in the David v McCain proceeding as well as the complaint to the CPSO and the outcome are relevant to the disqualification motion. 54 In her counsel’s Reply factum, it is asserted at paragraph 8 (without reference to evidence) that Niman’s continuing to act would make it inevitable that the discredited allegations in the David v. McCain litigation would be re–litigated in the present proceeding. 55 In the notice of motion, counsel for Niman seeks to strike out the following: (a) affidavit of McCain sworn May 4, 2016: paragraphs 21, 22, and 23 paragraph 24, in the middle of the first sentence, starting with “even though” and ending with “of the Weir report” paragraph 25, in the middle of the third sentence, starting with “and also ignored” and ending with “Dr. Weir.” Exhibit D which is a letter from the CPSO to the Applicant enclosing a copy of the decision of the Complaints Committee; (b) affidavit of McCain sworn June 10, 2016: paragraphs 5 and 6. McCain v. Melanson Kiteley J. 153

56 Section 36(3) of the Regulated Health Professions Act states as follows: No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. 57 Counsel for Dr. Weir took the position that her client was a “person who is affected by” this motion as provide in rule 7(2) of the Family Law Rules. Counsel for Niman agreed that Dr. Weir had standing but in his factum and submissions, counsel for the Applicant did not concede the point. I am satisfied the Dr. Weir has a legal right to seek compliance with s. 36(3) of the RHPA and has standing on that basis. Ms. Marotta limited her submissions to this narrow issue. At the conclusion of the hearing, she asked to broaden the request to strike to include all of paragraphs 24, 25 and 26, Exhibits D, F and G, as well as the passages in the Applicant’s factum on this issue. 58 Counsel for Niman and for Dr. Weir take the position that s. 36(3) constitutes a prohibition that is absolute. Counsel for the Applicant does not agree. I do not intend to analyze the authorities to which both refer because I need not resolve the point. I am satisfied that the situation before me falls within s. 36(3). I agree that all challenged documents and evidence must be struck. Furthermore, just as I concluded in paragraph 30 above, I see no prospect that anything a psychiatrist said over 11 years ago about the Applicant’s parenting capacity, and the subsequent complaint and outcome at the CPSO could be relevant to whether she can prove her allegations of misrepresentation and deceit in this proceeding. That evidence is not relevant to the disqualification motion. 59 In the course of the questioning of Niman in the disqualification motion counsel referred to 6 exhibits: letter dated April 10, 2006 from Mr. Niman to the Applicant’s lawyer; Dr. Weir assessment report brief (that included his s. 30 assessment report dated May 20, 2005; his Synopsis Report dated May 24, 2005; and his Addendum to Assessment Report dated June 3, 2005); two volumes of “correspondence and notes” of Dr. Weir; a letter dated April 3, 2006 from McCain’s then counsel to Mr. Niman; and a case conference brief in the David v McCain proceeding. In the hearing of this motion, counsel provided a brief that contained the 154 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

transcripts of the evidence of the Respondent and of Niman as well as most of the documents that had been marked as an exhibit at questioning. 60 In the course of conducting his s. 30 assessment Dr. Weir took notes that totaled over 200 pages which were produced to counsel at the time but not filed in court in the David v McCain proceeding. On this motion, counsel for the Applicant provided a brief that contained one volume of those notes referred to at the questioning of Niman. During his submissions, Mr. MacKenzie referred to 2 pages of those notes. At the conclusion of the hearing of these motions, it appeared that counsel for the Ap- plicant and Respondent had agreed that the brief of those notes should be returned to counsel. 61 Counsel ought not to file documents such as those notes on their expectation that they would be returned. However I see no reason for them to remain in the court file in this proceeding because they are not relevant and because they likely contain significant personal information of Mr. David.

Case conference 62 Based on the endorsement made by Glustein J. dated June 3, 2016, the discussion at that initial case conference focused on a timetable for this disqualification motion. He also ordered that the Respondent’s summary judgment motion be heard by December 31, 2016 and he granted leave to the Respondent to bring a motion for interim disbursements. On the basis of that endorsement, I conclude that the parties have not yet had an opportunity to do what is expected pursuant to rule 17(a), (b) and (c) in an initial case conference, namely exploring the chances of settling the case, identifying the issues that are in dispute and those that are not in dispute; and exploring ways to resolve the issues that are in dispute. I will schedule a case conference to address those issues and to address such long motions as are appropriate, which, based on my knowledge of the availability of long motion dates, are unlikely to be heard before De- cember 31, 2016. For those reasons, I will schedule a case conference and will do so without consulting with any of the counsel or parties on the assumption that they will all make themselves available.

ORDER TO GO AS FOLLOWS: 63 Motion by the Applicant to disqualify Harold Niman and Niman Gelgoot & Associates LL.P. is dismissed. 64 Motion by Niman to strike portions of the evidence is granted. McCain v. Melanson Kiteley J. 155

65 As for the evidence relating to the complaint to the College of Physi- cians and Surgeons of Ontario with respect to Dr. Douglas Weir, within 7 days of receipt of this endorsement, counsel for the Applicant shall do the following: (a) in the affidavit of the Applicant sworn May 4, 2016, redact paragraphs 21 — 26 and remove exhibits D, F and G; (b) in the affidavit of the Applicant sworn June 10, 2016, redact paragraphs 5 and 6; (c) in the Applicant’s factum dated August 26, 2016 responding to the motion to strike, redact paragraphs 2, 3, 20, 23, 24, 27, 50, 55, 62, 63, 64, 65, 66, 67 and 68; (d) provide to counsel for the Respondent and for Dr. Weir copies of (a), (b) and (c) that comply with this endorsement. 66 As for the evidence relating to negotiations between counsel, within 7 days of receipt of this endorsement, counsel for the Applicant shall do the following: (a) remove from the court file the affidavit of Andrea Van De Velde sworn June 8, 2016; (b) in the affidavit of the Applicant sworn May 4, 2016, remove Ex- hibit I; (c) provide to counsel for the Respondent a copy of (b) that complies with this endorsement. 67 Within 7 days of receipt of this endorsement, counsel for the Appli- cant shall remove from the court file the brief of approximately 200 pages containing the notes of Dr. Weir. 68 If by October 31, 2016, counsel have not agreed on the costs of these motions then counsel shall make written submissions not exceeding 3 pages plus costs outline and offer to settle if any, as follows: (a) Counsel for Niman and Dr. Weir November 14, 2016 (b) Counsel for the Applicant November 28, 2016 (c) Reply by counsel for Niman and Dr. Weir December 12, 2016. 69 Counsel and the parties shall attend a case conference before me on October 31, 2016 at 4:00 p.m. at which time the following will be included in the agenda: (a) explore the chance of settling the case; 156 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(b) identify the issues that are in dispute and those that are not in dispute; (c) explore ways to resolve the issues that are in dispute; and (d) establish a timetable for next steps. Wife’s motion dismissed; lawyer’s motion granted. Lake v. Lake 157

[Indexed as: Lake v. Lake] Cory G. Lake (Applicant) v. Candice E. Lake (Respondent) Nova Scotia Supreme Court Docket: 1204-005954 2016 NSSC 255 Gregory M. Warner J. Heard: September 1-2, 2016 Judgment: September 26, 2016 Family law –––– Support — Child support under federal and provincial guidelines — Determination of award amount — Child care expenses –––– Father applied to vary parenting and child support — Application to vary parenting was dismissed — Child support was increased but father’s share of ongoing work-related childcare expenses was deferred — Submissions received on childcare expenses — Father’s income was $39,002 per year and mother’s income was $42,387 per year, and father’s share of net childcare costs was 47.5 per- cent — Total childcare expenses before subsidies, benefits, income tax deductions or credits was $4,867.42 — Taking into account what father had paid, he owed $65.51 per month for remainder of year, and was to pay $90 per month for 2017 for childcare expenses. Family law –––– Costs — In family law proceedings generally — Factors considered — Conduct of party –––– Father applied to vary parenting and child support — Application to vary parenting was dismissed, and child support was increased — Costs submissions received — Father was ordered to pay mother costs of $7,000 — Costs of application would impact both parents’ ability to provide for children — Father’s pursuit of application was not reasonable, and was really attempt to get out of child support provided for in consent order — There was no willingness by father to compromise — Mother was successful and she incurred substantial, unnecessary costs because of father’s unreasonable conduct — Mother should receive substantial contribution toward her reasonable legal expenses, but amount ordered was tempered by fact that children spent significant amount of time in father’s care and they would be financially impacted by order. Cases considered by Gregory M. Warner J.: Armoyan v. Armoyan (2013), 2013 NSCA 136, 2013 CarswellNS 891, 1067 A.P.R. 365, 337 N.S.R. (2d) 365, 37 R.F.L. (7th) 402 (N.S. C.A.) — followed 158 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Boulet v. Rushton (2014), 2014 NSSC 265, 2014 CarswellNS 820, 1111 A.P.R. 43, 351 N.S.R. (2d) 43 (N.S. S.C.) — considered Cameron v. Cameron (2014), 2014 NSSC 325, 2014 CarswellNS 656 (N.S. S.C.) — considered Clements v. Boutilier (2014), 2014 NSSC 32, 2014 CarswellNS 64 (N.S. S.C.) — considered Devereaux v. Taylor (2014), 2014 NSSC 397, 2014 CarswellNS 832 (N.S. S.C.) — considered Doncaster v. Field (2014), 2014 NSCA 39, 2014 CarswellNS 269, 373 D.L.R. (4th) 75, 1089 A.P.R. 63, 344 N.S.R. (2d) 63 (N.S. C.A.) — considered Elliott v. Melnyk (2015), 2015 NSSC 81, 2015 CarswellNS 192 (N.S. S.C.) — considered Gagnon v. Gagnon (2012), 2012 NSSC 137, 2012 CarswellNS 262 (N.S. S.C.) — followed Godin v. Godin (2014), 2014 NSSC 46, 2014 CarswellNS 98, 1077 A.P.R. 59, 340 N.S.R. (2d) 59 (N.S. S.C.) — considered Harris v. Durling (2016), 2016 NSSC 19, 2016 CarswellNS 32 (N.S. S.C.) — referred to Higgins v. Bourgeois Higgins (2015), 2015 NSSC 293, 2015 CarswellNS 958, [2015] N.S.J. No. 507 (N.S. S.C.) — considered L. (P.J.) v. C. (J.L.) (2015), 2015 NSSC 336, 2015 CarswellNS 969 (N.S. S.C.) — considered Lethbridge v. Lythgoe (2015), 2015 NSSC 252, 2015 CarswellNS 767 (N.S. S.C.) — considered Lyttle v. Bourget (2013), 2013 NSSC 346, 2013 CarswellNS 834 (N.S. S.C.) — considered Mahaney v. Malone (2014), 2014 NSSC 146, 2014 CarswellNS 306 (N.S. S.C.) — considered Maxwell v. Garner (2015), 2015 NSSC 337, 2015 CarswellNS 998, 74 R.F.L. (7th) 443 (N.S. S.C.) — considered Moore v. Moore (2013), 2013 NSSC 281, 2013 CarswellNS 676 (N.S. S.C.) — considered Pelley v. Peters (2013), 2014 NSSC 277, 2013 CarswellNS 1096, 1101 A.P.R. 13, 349 N.S.R. (2d) 13 (N.S. S.C.) — considered Poirier v. Poirier (2013), 2013 NSSC 366, 2013 CarswellNS 850 (N.S. S.C.) — considered Raven v. Lucas (2016), 2016 NSSC 100, 2016 CarswellNS 338 (N.S. S.C.) — considered Reid v. Reid (2014), 2014 NSSC 276, 2014 CarswellNS 658, 1100 A.P.R. 15, 348 N.S.R. (2d) 15 (N.S. S.C.) — considered Smith v. Smith (2015), 2015 NSSC 73, 2015 CarswellNS 778 (N.S. S.C.) — considered Lake v. Lake Gregory M. Warner J. 159

Wilman v. Sutton (2015), 2015 NSSC 193, 2015 CarswellNS 563 (N.S. S.C.) — considered Z. (C.D.M.) v. H. (R.E.) (2013), 2013 NSSC 347, 2013 CarswellNS 836 (N.S. S.C.) — considered Tariffs considered: Civil Procedure Rules, N.S. Civ. Pro. Rules 2009 Tariff A — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 s. 7 — considered s. 7(3) — considered s. 7(4) — considered s. 9 — considered

ADDITIONAL REASONS determining childcare expenses and costs.

Bryen E. Mooney, for Applicant Donald A. Urquhart, for Respondent

Gregory M. Warner J.:

1 Cory Lake’s (Dad’s) application to vary parenting and child support, filed May 25, 2016; was heard on September 1 and 2, 2016; and, determined by oral decision late on September 2, 2016. The application to vary parenting was dismissed and basic child support was increased; however, Dad’s share of ongoing work-related childcare expenses was deferred for written submissions, if necessary, when counsels’ Childview-based calculations were inexplicably irreconcilable. Written submissions respecting costs were also requested. Submissions dated September 15, 16 and 20, 2016 have been received. 2 This is the decision respecting prospective childcare expenses and costs. 3 In August 2014, the parties participated in a judicial settlement conference which resulted in a detailed Consent Corollary Relief Order (“Consent CRO”) dated August 20, 2014. The wording of that Consent CRO was central to whether there has been a material change in circumstances, a prerequisite to variation. 4 With respect to parenting, the Consent CRO specifically provided in para 2 that “Candice Lake [“Mom”] shall have primary care and control 160 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

of the children”, born November 2007 and March 2010, and, in paras 3 to 9, a detailed schedule basically gave Dad physical parenting times 1 equal to 6 /2 out of every 14 days. 5 With respect to child support, the Consent CRO identified Dad’s income as $29,800 and ordered him to pay child support of $435 per month (the s. 3 table amount for a primary care arrangement), together with a fixed contribution to work related childcare in the amount of $70 per month from September to June and $300 per month in July and August. Other section 7 expenses were to be prorated 60% to Mom and 40% to Dad. 6 Significantly, the Consent CRO provides that “the parties agree to review employment related day care expenses in September 2015 when [the youngest child] starts school” (para 13), and further that “[Dad] shall not make application pursuant to s. 9 of the Child Support Guidelines while these parenting arrangements are in place” (para 18). 7 The settlement and Consent CRO were unique in that the physical time the children spend with Dad constitutes a shared parenting arrangement for the purposes of s. 9 of the Guidelines, yet the parties agreed expressly to describe the arrangement as giving Mom primary care, and that Dad would pay child support other than by the application of s. 9. The only review provided in the Consent CRO was a review of childcare expenses when the youngest child commenced school. 8 In May 2016, Dad applied to vary custody and child support. He sought primary care with child support from Mom or, alternatively, a different shared parenting schedule together with the application of s. 9 of the Guidelines to the “new” shared parenting arrangement. In addition, he sought to reduce child support further on the basis of undue hardship because of a new support order for an older child from a prior relationship even though his income had increased (unbeknownst to Mom) to $39,000 since the Consent CRO. 9 Dad filed with his application a 155-paragraph affidavit, followed by other substantial and overlapping affidavits. 10 Mom unsuccessfully sought the dismissal of the application at the appearance (setting down day) in June 2016, on the basis there had been no material change of circumstances since the Consent CRO. Dad made an offer to settle, not responded to by Mom (but not near to or as good to Mom as the court’s decision), and an offer to participate in a settlement conference. Mom says she had offered to mediate through her Employee Assistance Program (i.e. at no cost to the parties), but declined to partici- Lake v. Lake Gregory M. Warner J. 161

pate in another settlement conference, because of the legal cost - “only to have [Dad] later disagree with what he had agreed upon, as he is doing now”. 11 In response to Dad’s disclosure of his increased income, first made during this application, Mom sought a retroactive adjustment of basic child support and childcare expenses. 12 The decision of the court, given orally at the end of the second day, was to the effect that there had been no material change in circumstances since the Consent CRO of August 2014. Dad was simply not satisfied with the terms of the Consent CRO and was effectively re-litigating what was agreed to in August 2014. The application and lengthy affidavits were filed immediately after the closing of an investigation by the De- partment of Community Services (“DCS”) into Mom’s household. The investigation was initiated by a phone call from a person at the IWK Mental Health Centre (“IWK”) to DCS on the same day that Dad’s partner (who is the ex-spouse of Mom’s partner and who are involved in high-conflict family situation themselves) contacted the IWK in respect of Dad’s issues with Mom’s parenting of their children, and reported the incidents passed on by the IWK employee to DCS. 13 In addition to finding no material change in circumstances, the court found that Dad’s reasons for more time with the children were entirely without merit. 14 With regards to child support, the court found that Dad’s income had increased by $10,000, or about 25%, and his hardship claim, based on a new child support obligation imposed for an older child from another relationship but for which he refused to disclose particulars to Mom, was not established. Child support for the two children in this proceeding was increased, but he was given credit for his obligation to the other child. The claim for retroactive adjustment of Dad’s childcare contribution was not proven. 15 In short, the court found Dad’s application was without merit and dismissed. 16 In closing submissions, counsel submitted to the court conflicting Childview calculations as to what the net childcare costs to Mom were and therefore how they would be prorated. Counsel were requested to recalculate and agree upon the net shareable childcare expenses. They have failed to do so and made submissions with their costs submissions. 162 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Childcare Expenses Decision 17 The Consent CRO required Dad to pay $70 per month from Septem- ber to June and $300 per month in July and August as his “contribution to s. 7 employment related daycare expenses ... arrived at after considering that [Mom] shall claim all daycare expenses on her income tax return.” 18 As noted previously, para 13 states that the parties agreed to review employment related daycare expenses in September 2015, when the youngest child started school. All other section 7 expenses were divided 60% to Mom; 40% to Dad. Dad’s income was identified as $29,800. 19 Mom sought retroactive adjustment of Dad’s contribution to these expenses, based on his higher income, not disclosed until this application. This was dismissed for several reasons. One was the court’s concern about the evidence as to what Mom’s actual childcare expenses have been. 20 Post hearing, the parties have exchanged further particulars of what Mom’s actual expenses have been. They were attached and identified in Dad’s brief of September 16, 2016. 21 I prefer and accept the analysis in Dad’s September 16th brief, pp. 2 to 4 and the attached Tabs A to E, as being the proper basis for an order for Dad’s prospective contribution to the childcare expense. 22 In Mom’s September 20th letter, she argues that the cost estimates in that submission are speculative and the court should rely upon the 2015 childcare costs. That is not appropriate because the youngest child was in daycare full time until September 2015 and we know that that is not the scenario on a go-forward basis. 23 Mom further submits that para 12 of the Consent CRO required Mom, for the purposes of the allocation of the expense, to only deduct from her childcare expense the tax savings. I do not interpret para 12 of the Consent CRO to suggest that Mom should keep the benefit of any subsidies, benefits, and credits related to the children’s childcare expenses except tax savings. 24 If I am wrong, there are two other reasons why it would be unfair. Section 7(3) of the Guidelines reads that, subject to s. 7(4), in determining the amount of a shareable expense, the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense or any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Paragraph 13 of the Consent Lake v. Lake Gregory M. Warner J. 163

CRO provides for a review of daycare expenses when the youngest child started school in September 2015. That means there is no need to prove a material change; the court starts with a clean slate for the purposes of calculation of those childcare expenses. 25 I find that the parties’ respective 2015 incomes were Dad - $39,002 and Mom - $42,387. Dad’s share of net childcare costs for 2016 is 47.5%. 26 Mom has paid in 2016, to date, total childcare expenses of $3,391.82. Based on Mom’s evidence, the childcare expenses for both children for September to December 2016 will likely be $1,475.60. The total for 2016, before subsidies, benefits, income tax deductions or credits, is $4,867.42. 27 Based on Mom’s 2015 income, and net of subsidies, benefits, and income tax deductions or credits, Mom’s net expense, according to the Childview calculation in Tab E, is $2,278.00. Dad’s share is $1,082.05. Dad has paid in 2016, to date, $820.00 and will owe for the rest of the year $262.05 or $65.51 per month. He shall pay that amount for the rest of this year. 28 I estimate, based on the evidence before me, that the childcare expense will approximate the same gross and net amounts in 2017 as in 2016. If the party’s respective incomes change in 2016, the proportionate sharing of that expense in 2017 might change slightly. 29 Based on the Childview calculation in Tab E of Dad’s September 16 brief, the court accepts and projects that Dad’s share of the childcare expenses for 2017 should be fixed at $90 per month. I order that effective January 1, 2017, he pay $90 per month in 2017. 30 Dad seeks to receive monthly records for daycare expenses and frequent adjustments. Because of the high level of conflict between these parties and their partners, I intend to minimize communications and any reason for frequent disputes. I therefore direct that childcare expenses shall be adjusted annually in May, for the preceding calendar year, on the basis of: (1) disclosure by each party of their actual income for the calendar year used to calculate their pro-rated share of any expenses, (2) by Mom’s production of the actual receipts for the expenses incurred, and (3) by application of the Childview calculation to determine the net cost and proportionate share of each parent. 164 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Costs Decision 31 In recent years, substantial costs awards have been issued in family proceedings to reflect what Justice Jollimore described in Poirier v. Poi- rier, 2013 NSSC 366 (N.S. S.C.), (“Poirier”) at para 45 as a recognition of Recommendation 26 in the Access to Justice Report: “judges should use costs awards more freely and more assertively to contain process and encourage reasonable behaviour”. 32 Armoyan v. Armoyan, 2013 NSCA 136 (N.S. C.A.), (“Armoyan”) sets out the principle that costs awards in family litigation should represent a substantial contribution to the successful parties’ reasonable expenses. 33 In the Family Division, the practice is to apply Tariff A to the hearing of family applications and to apply a rule of thumb of $20,000 for each day where the issues are not primarily monetary but involve parenting. In the Districts, where divorce petitions proceed as actions (CPR 4 and 66.22) and involve trials without affidavits, and interim motions and variation applications proceed by way of affidavit evidence and cross-examination, the practice is to apply Tariff C to chambers applications and Tariff A to trials and court applications. (See Harris v. Durling, 2016 NSSC 19 (N.S. S.C.)) 34 The end goal of costs awards is to do justice between the parties. The quantum of costs awards should not depend on whether Tariff A or Tariff C is applied, in circumstances where the issues, time and effort involved, are similar. 35 Costs awards in family matters should reflect the same factors as costs awards in civil litigation generally. Traditionally cost awards in family matters were low because of the court’s concern about the adverse impact upon the resources available to support children. That concern has diminished in circumstances where the emotions and ill-will of parents causes them to lose objectivity and sight of the impact of litigation on the best interests of their children, and act unreasonably. 36 The following family costs decisions are examples of the new approach. They apply the general principle that costs awards on a solicitor- client basis should be reserved for rare and exceptional occasions, but that costs awards in family litigation should follow the general principle that, subject to the factors identified in the decisions, the loser should pay the winner a substantial contribution of their reasonable legal expenses. Lake v. Lake Gregory M. Warner J. 165

1. Doncaster v. Field, 2014 NSCA 39 (N.S. C.A.), upholding an award of $16,000. 2. Moore v. Moore, 2013 NSSC 281 (N.S. S.C.), award of $23,250 1 or 60% of the successful party’s actual legal costs; 5 /2-day variation hearing. 3. Lyttle v. Bourget, 2013 NSSC 346 (N.S. S.C.), award of $15,000 on the successful party’s actual costs of $30,000; 3-day hearing. 4. Z. (C.D.M.) v. H. (R.E.), 2013 NSSC 347 (N.S. S.C.), award of $13,000 on actual costs of $29,000; 2-day hearing. 1 5. Poirier, award of $8,750 on actual costs of $15,484; 1 /2-day variation hearing. 6. Clements v. Boutilier, 2014 NSSC 32 (N.S. S.C.), award of $8,000 on actual costs of $10,594. 7. Godin v. Godin, 2014 NSSC 46 (N.S. S.C.), award of $28,375, described as substantial contribution to the successful party’s costs; 6-day hearing;. 8. Mahaney v. Malone, 2014 NSSC 146 (N.S. S.C.), award of $6,000 on actual costs of $16,000; variation application. 9. Boulet v. Rushton, 2014 NSSC 265 (N.S. S.C.), award of $22,063 1 on estimated total expenses of $55,000; 2 /2-day divorce respecting property division and spousal support. 10. Reid v. Reid, 2014 NSSC 276 (N.S. S.C.), award of $16,000; 2- day trial; 11. Pelley v. Peters, 2014 NSSC 277 (N.S. S.C.), award of $20,000 against a party represented by Legal Aid despite hardship to the losing party, because of bad behaviour. 12. Cameron v. Cameron, 2014 NSSC 325 (N.S. S.C.), award of $29,000, representing 67% of actual legal expenses. Denied solicitor-client expenses despite other party’s non-disclosure and intransigence. 13. Devereaux v. Taylor, 2014 NSSC 397 (N.S. S.C.), award of $11,000 on actual costs of $20,000; 1-day hearing respecting spousal support. 14. Smith v. Smith, 2015 NSSC 73 (N.S. S.C.), award of $10,000 on actual costs of $30,000; a 1-day hearing based on the applicant’s unfounded allegations and unreasonableness. 166 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

15. Elliott v. Melnyk, 2015 NSSC 81 (N.S. S.C.), award of $4,000 on actual costs of $21,000; half-day chambers appearance. 16. Wilman v. Sutton, 2015 NSSC 193 (N.S. S.C.), award of $15,000; 2-day variation application respecting parenting. Declined to award solicitor-client costs. 17. Lethbridge v. Lythgoe, 2015 NSSC 252 (N.S. S.C.), award of $7,000; hearing regarding parenting. 18. Higgins v. Bourgeois Higgins, 2015 NSSC 293 (N.S. S.C.), award 1 of $15,000 on actual costs of over $50,000; 3 /2-day hearing. Los- ing party forced the hearing by taking unreasonable positions. 19. L. (P.J.) v. C. (J.L.), 2015 NSSC 336 (N.S. S.C.), award of $5,000 on claim for $11,250. The applicant sought to vary custody based on legitimate concerns and obtained more access, but not the remedies sought. 20. Maxwell v. Garner, 2015 NSSC 337 (N.S. S.C.), award of $7,688; 2-day hearing on application regarding the child’s school. The court commented costs should act as a reality check to encourage child focused objectivity by parents. Costs are not reserved for instances of unreasonable conduct in litigation. 21. Raven v. Lucas, 2016 NSSC 100 (N.S. S.C.), award of $3,500; application regarding parenting issues. 37 Mom seeks solicitor-client costs on the basis of the court’s finding that the Dad’s conduct was unreasonable, the application was without any merit and, in particular, there had been no material change in circumstances from the comprehensive Consent CRO issued following a judicial settlement conference. Her actual legal expenses are about $14,000, inclusive of over $11,000 in fees. 38 Mom earns $40,000 a year as a civil servant. 39 Alternatively, Mom seeks elevated costs under Tariff A. The rule of thumb for a two-day hearing involving non-monetary issues like parenting is to impute an ‘amount involved’ of $40,000, for purposes of applying Tariff A. This produces a cost award (adding $2,000 for each day of trial) of between $8,688 (scale 1), $10,250 (scale 2) and $11,813 (scale 3). 40 Dad submits that each should pay their own costs. He acknowledges the factors enumerated in Gagnon v. Gagnon, 2012 NSSC 137 (N.S. S.C.), but emphasizes only three factors: Lake v. Lake Gregory M. Warner J. 167

1. Costs are discretionary; 2. Deference to the children’s best interest may justify no award to a successful party; and, 3. The inability of Dad to pay is relevant. 41 He submits that his concerns about the discipline of the children were legitimate; that Mom refused to participate in a settlement conference; that she was not completely successful; and, most important, the best interests of the children, in the context of his impecuniosity, would be adversely affected as any costs award would “highly impact the children and [Dad’s] ability to financially support them while in his care.” 42 There is some merit to what each party submits. There is no spare change in either parent’s pocket. The cost of this application will impact both parents’ ability (not just Dad’s) to provide for their children when in their care. 43 Dad’s pursuit of this application was unreasonable. On its face, the application was for primary care or, alternatively, more shared parenting time. Dad’s statement that he did not have enough time with the children made no sense. It appeared that the application was in part a play for power and control by Dad. This is reflected in the back-and-forth contest 1 regarding sports registration. It makes no sense for someone who has 6 /2 days out of 14 to complain that they do not have enough time. 44 I conclude that the application was equally an attempt to get out from the child support provisions of the Consent CRO and, in particular, para 18. 45 Dad complains that Mom refused to participate in a settlement conference. Her reply is that her refusal to participate in a settlement conference, with the additional legal costs, which she was skeptical would deter Dad, was not unreasonable. She offered to have his concerns mediated through her work plan at no costs to the parties; he declined. I did not sense any willingness on the part of Dad to compromise, either in his lengthy affidavits or his cross-examination. I doubt the matter would have settled or saved any expense to the parties. 46 It was Dad who commenced this application respecting parenting, in part to get out from under his child support obligations. He also sought to reduce his childcare contributions. Mom’s claim for increased child support (retroactive and prospective) was only claimed after Dad’s disclosure during the application of a substantial increase in his income. Only 168 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

the retroactive part of her claim was rejected. This consumed a small part of the application’s time and effort. 47 Both parents incurred costs that neither could afford. Mom was successful. She has incurred substantial, unnecessary costs because of Dad’s unreasonable conduct. I agree with the principle set out in the Access to Justice Report cited in Poirier and with the Court of Appeal analysis in Armoyan. 48 Mom should receive a substantial contribution to her reasonable legal expenses of about $14,000. 49 Her entitlement to this should only be tempered by the practical reality that the children will be financially impacted when in Dad’s care — a reality that lies entirely at Dad’s feet. It is in the best interests of the children that they spend significant time with their Dad. That is the only reason that I temper the amount of “substantial contribution” that is ordered. 50 Costs are ordered to Mom in the amount of $7,000. Order accordingly. Kumagai v. Campbell Estate 169

[Indexed as: Kumagai v. Campbell Estate] Chong Ae Kumagai, aka, Chong Ae Campbell, aka, Chongae Campbell, aka, Chong Ae Kumagai, aka, Chongae Kumagai, aka, Chong Kumagai, aka, Chong Campbell, aka, Chong Ae Shin, aka, Chongae Shin (Claimant) and Barbara Saganiuk, Executrix of the Estate of Earl Campbell, Deceased, and Maple Meadows Mobile Home Park Ltd. (Respondents) British Columbia Supreme Court Docket: New Westminster E44609 2016 BCSC 1161 G.C. Weatherill J. Heard: May 13, 2016 Judgment: June 23, 2016 Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Miscellaneous –––– Parties met when wife was living in Hawaii and husband convinced wife to move to Canada and marry him — Husband was very successful businessman and was very generous to wife but he was also controlling — Relationship lasted seven years before marriage broke down — Wife had very limited education and she had never learned to read or write — Husband was ordered to pay spousal support of $5,000 per month but he died one week after order was made and order was not complied with — Wife successfully applied for relief, including spousal support — Counsel sought clarification of whether estate was bound to pay ongoing spousal support — Based upon estate’s and wife’s annual income of $293,367 and $75,588 respectively, Guidelines indicated mid-range spousal support payment of $2,223 payable by estate to wife — Estate had sufficient means to make payments — Wife was entitled to order that spousal support in amount of $2,223 per month from and after September 1, 2013 was debt of estate until grandnephew turned 30 years old, at which time spousal support will terminate and wife will be eligible to receive 10 per cent of residue of estate as per will — This was in addition to $5,000 per month that she would continue to be entitled to receive as per will. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Retroactivity of order –––– Parties met when wife was living in Hawaii and husband convinced wife to move to Canada and marry him — Hus- band was very successful businessman and was very generous to wife but he was also controlling — Relationship lasted seven years before marriage broke down — Wife had very limited education and she had never learned to read or write — Husband was ordered to pay spousal support of $5,000 per month but 170 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

he died one week after order was made and order was not complied with — Wife successfully applied for relief, including spousal support — Estate sought order retroactively varying amount of spousal support payable by estate to wife, as well as order that amount paid pursuant to order in excess of such varied amount be set-off against amount payable under will — Appropriate amount of spousal support to which wife was entitled was $2,223 prospectively — There was no basis upon which court could order that support obligation be made retroactively — Estate continued to be indebted to claimant in respect of unpaid portion of $15,000 per month support payments, pursuant to Crawford Order for period ending March 31, 2016 — Thereafter, support obligation was reduced to $2,223 per month until grandnephew turned 30 years old, at which time spousal support will terminate — Estate was also indebted to wife in amount of $5,000 per month pursuant to terms of will. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Lump sum award — General principles –––– Parties met when wife was living in Hawaii and husband convinced wife to move to Canada and marry him — Husband was very successful businessman and was very generous to wife but he was also controlling — Relationship lasted seven years before marriage broke down — Wife had very limited education and she had never learned to read or write — Husband was ordered to pay spousal support of $5,000 per month but he died one week after order was made and order was not complied with — Wife successfully applied for relief, including spousal support — Wife sought reconsideration of portion of decision wherein estate was given right to elect to pay compensation order of $1,859,301 to wife at rate of $20,000 per month instead of as lump sum — Wife would like at least portion of compensation order paid to her as lump sum in order to facilitate purchase of home — Issue was fully canvassed at trial and was fully considered by court prior to issuing decision — It would not be appropriate to exercise discretion to reconsider decision in this regard which, again, should only be exercised sparingly. Cases considered by G.C. Weatherill J.: Austin v. Goerz (2007), 2007 BCCA 586, 2007 CarswellBC 2852, 36 E.T.R. (3d) 161, 74 B.C.L.R. (4th) 39, 287 D.L.R. (4th) 69, [2007] B.C.J. No. 2546, 249 B.C.A.C. 70, 414 W.A.C. 70 (B.C. C.A.) — referred to Bell ExpressVu Ltd. Partnership v. Rex (2002), 2002 SCC 42, 2002 CarswellBC 851, 2002 CarswellBC 852, 100 B.C.L.R. (3d) 1, [2002] 5 W.W.R. 1, [2002] S.C.J. No. 43, 212 D.L.R. (4th) 1, 287 N.R. 248, 18 C.P.R. (4th) 289, 166 B.C.A.C. 1, 271 W.A.C. 1, 93 C.R.R. (2d) 189, [2002] 2 S.C.R. 559, REJB 2002-30904, 2002 CSC 42 (S.C.C.) — followed Chutter v. Chutter (2008), 2008 BCCA 507, 2008 CarswellBC 2661, 86 B.C.L.R. (4th) 233, 60 R.F.L. (6th) 263, [2009] 3 W.W.R. 246, 301 D.L.R. Kumagai v. Campbell Estate 171

(4th) 297, [2008] B.C.J. No. 2398, 263 B.C.A.C. 109, 443 W.A.C. 109 (B.C. C.A.) — referred to Chutter v. Chutter (2009), 2009 CarswellBC 1386, 2009 CarswellBC 1387, [2009] S.C.C.A. No. 41, 398 N.R. 390 (note), 284 B.C.A.C. 319 (note), [2009] 1 S.C.R. vi (note) (S.C.C.) — referred to Clayton v. British American Securities Ltd. (1934), [1934] 3 W.W.R. 257, [1935] 1 D.L.R. 432, 49 B.C.R. 28, 1934 CarswellBC 62, [1934] B.C.J. No. 4 (B.C. C.A.) — referred to Gosbjorn v. Krompocker Estate (2008), 2008 BCSC 219, 2008 CarswellBC 515, 38 E.T.R. (3d) 39, 50 R.F.L. (6th) 83, 82 B.C.L.R. (4th) 147 (B.C. S.C.) — referred to J. (K.M.) v. N. (J.H.D.) (2014), 2014 BCSC 1895, 2014 CarswellBC 3003 (B.C. S.C.) — referred to Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Adrien v. Ontario Ministry of Labour) 98 C.L.L.C. 210-006, 50 C.B.R. (3d) 163, [1998] S.C.J. No. 2, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173 (S.C.C.) — followed Statutes considered: Family Law Act, S.B.C. 2011, c. 25 s. 149 — considered s. 165 — considered s. 167(2) — considered s. 170 — considered s. 171 — considered s. 171(3) — considered Interpretation Act, R.S.B.C. 1996, c. 238 s. 8 — referred to Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 s. 19(1)(e) — considered

ADDITIONAL REASONS to decision reported at Kumagai v. Campbell Estate (2016), 2016 BCSC 450, 2016 CarswellBC 691 (B.C. S.C.), which granted spousal support order of $5,000 per month.

D.H. Goodwin, for Claimant A.T. Briscoe, for Respondents 172 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

G.C. Weatherill J.: INTRODUCTION 1 The parties separated in July 2013. On August 13, 2015, Madam Jus- tice Brown ordered, inter alia, that Mr. Campbell pay the claimant $5,000 per month in spousal support on an interim and without prejudice basis (“Brown Order”). 2 Mr. Campbell died on August 21, 2013. 3 On October 2, 2013, Mr. Justice Crawford ordered, inter alia, that Mr. Campbell’s Estate pay the claimant interim spousal support in the amount of $15,000 per month until further order of the court (“Crawford Order”). 4 The trial of action took place before me in February 2016. 5 On March 15, 2016, I issued my Reasons for Judgment, indexed as: Kumagai v. Campbell Estate, 2016 BCSC 450 (B.C. S.C.) (“Kumagai #1”). The order in respect of those reasons has not yet been entered. 6 Counsel seeks clarification of one aspect of my decision and a reconsideration of others.

IS THE ESTATE BOUND TO PAY ONGOING SPOUSAL SUPPORT — FAMILY LAW ACT S. 171(3)? 7 In Kumagai #1, I determined on the basis of the unfortunate wording of s. 171(3) combined with that of s. 165 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], that the Court was unable to make an order that the Campbell Estate pay spousal support to the claimant. My reasons were as follows: [159] Both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the FLA provide that the court may require a spouse to pay spousal support. However, both statutes define “spouse” as a person. [160] The Divorce Act defines “spouse” as “either of two persons who are married to each other”. The FLA defines spouse as “a person [who] is married to another person”. Neither definition contemplates the payment of spousal support by the Estate of a deceased spouse. Neither the deceased Mr. Campbell, nor his Estate is a “person”. Hence, a support order cannot be made once the person required to pay it is dead: British Columbia (Public Trustee) v. Price (1990), 43 B.C.L.R. (2d) 368 at paras. 25 – 26 (C.A.). [161] At common law, the obligation to pay spousal support died with the payor: Milne v. MacDonald Estate (1986), 5 B.C.L.R. (2d) Kumagai v. Campbell Estate G.C. Weatherill J. 173

46 (C.A.). The court left open whether an order for the payment of spousal support that is made during the payor’s lifetime could be made binding on the estate: [26] I have not considered, and say nothing about, whether an order could be made during the lifetime of the parties that would continue after the death of the person against whom the order was made. [162] The legislature has now expressly provided in ss. 170 and 171 of the FLA that the court has authority to bind an estate to pay support. [163] Section 170(g) of the FLA provides that a court may order that an obligation to pay spousal support continues after the death of the payor and becomes a debt of the estate for the period fixed by the court. [164] Section 171 of the FLA provides that: 171(1) Before making an order under section 170(g). . .the court must consider all of the following factors: (a) that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support; (b) that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; (c) that no other practical means exist to meet the need referred to in paragraph (a). ... (3) If a person having a duty to pay . . . spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate, (a) the person receiving support may make an application under section . . .. 165 [orders respecting spousal support], and 174 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay. . . spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court. [165] It is plain from the wording of these provisions that the court cannot bind the estate of a deceased to pay support unless, while the payor was living, “an agreement or order” requiring the payment of support was made. [166] Here, although there was no final order or determination made prior to Mr. Campbell’s death regarding his obligation to pay spousal support, an interim order was made prior to his death in the form of the Brown Order, which provided that Mr. Campbell pay interim spousal support of $5,000 per month plus $2,000 per month towards the claimant’s credit card expenses. [167] The FLA does not define the word “order”. However, the Su- preme Court Family Rules define “final order” as “an order that finally resolves a claim in a family law case even though the order may be subject to change”. The Supreme Court Civil Rules define “order” to include “a judgment and a decree”. [168] In my view, the word “order” in s. 171(3) of the FLA means any order, including an interim order. If the legislature had intended that the section would not apply unless the court had made a final order for support while the payor was living, it could and likely would easily have said so, as it did when it specifically defined the meaning of “final order” in the Supreme Court Family Rules which were enacted at the same time as the FLA was enacted. [169] Because Mr. Campbell had a duty to pay spousal support under the Brown Order at the time of his death, the claimant is entitled pursuant to s. 173(3)(a) of the FLA to pursue a claim for spousal support “under s. 165”. That section provides, in relevant part: 165 (1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse]. [Emphasis added] [170] However, as pointed out above, a support order cannot be made once the person required to pay it is dead because that person is, by definition, no longer “a spouse”. Kumagai v. Campbell Estate G.C. Weatherill J. 175

[171] In the result, given the unfortunate wording of s. 171(3) of the FLA, the court will never be in a position to make an order under that section. Had the section read: 171 (3)(a) the person entitled under the order to receive support may make an application for ongoing child support or spousal support, and . . . the problem would not have arisen. [172] Accordingly, given the language of s. 171(3) combined with that in s. 165, the court is precluded from making a support order that is a debt of the Estate. 8 Given that the order in respect of the trial judgment has not yet been entered, I have discretion to reconsider this determination. However, that discretion should only be exercised sparingly and with the greatest care: Clayton v. British American Securities Ltd. (1934), 49 B.C.R. 28 (B.C. C.A.) at 59, 60, 70, 77 and 78. 9 Counsel for the claimant correctly points out that the foregoing determination was made without the issue having been fully argued at trial and without the relevant principles and case authorities being provided to the court. Given the circumstances, it is my view that my discretion should be exercised in favour of reconsideration. Otherwise, an injustice might occur. 10 The Supreme Court of Canada summarized the principles to be followed by the court when interpreting a statute in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (S.C.C.) as follows: [21] Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre–André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro–Québec, [1997] 3 S.C.R. 213*; Royal Bank of 176 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto–Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103. [22] I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. [23] Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. 11 These principles were reiterated by the court in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (S.C.C.): [26] In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Qu´ebec (Communaut´e urbaine) v. Corp. Notre–Dame de Bon–Secours, [1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 200 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I–21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. [27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal arti- Kumagai v. Campbell Estate G.C. Weatherill J. 177

cle “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, [1993] 2 S.C.R. 1069, at p. 1079; Pointe–Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.) [28] Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. 12 The foregoing approach has been adopted and applied by the courts in this province: see for example Austin v. Goerz, 2007 BCCA 586 (B.C. C.A.); Gosbjorn v. Krompocker Estate, 2008 BCSC 219 (B.C. S.C.); J. (K.M.) v. N. (J.H.D.), 2014 BCSC 1895 (B.C. S.C.) at paras. 137 – 163. 13 Here, the statutory section requiring interpretation is s. 171(3) of the FLA. That section must be construed as being remedial and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objectives: Interpretation Act, s. 8. 14 Counsel for the respondents submits that ss. 170 and 171 of the FLA were not intended to replace the common law (as set out in Kumagai #1), but rather were intended as security in respect of spousal support payable during the lifetime of the payor and not to create new obligations upon an estate after the death of the payor. The respondents submit further that the intention was to incorporate in legislation the practice of legal counsel to obtain court orders or include in separation agreements wording that would allow the payment of spousal support to continue after the death of the payor. 15 Counsel for the respondents points out that, in this case, that was not done. Rather, the claimant had been granted only an interim order for spousal support prior to the death of Mr. Campbell and that there is a marked difference between an interim order and a final order. For example, an interim order merely addresses a claimant’s immediate needs based upon affidavit material and does not address compensatory support 178 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

issues, all of which are subsequently and finally determined at trial after the presiding judge has had an opportunity to hear the evidence of both parties as to life style, living expenses, matrimonial promises and expec- tations, etc. Here, that has not occurred because Mr. Campbell died. 16 The respondents submit that ss. 170 and 171 of the FLA were intended to apply only in circumstances where a final support order had been made prior to the death of the payor and after full consideration of the condition, means, needs and other circumstances of each spouse. 17 I disagree. In my view, the legislative intent behind s. 171(3) of the FLA was clearly to provide a mechanism for the ongoing payment of spousal and/or child support upon the death of a payor spouse. Such intent is obvious from the following words of s. 171(3): 171(3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate, . . . 18 Unfortunately, as I pointed out in Kumagai #1, the wording used by the legislature as a means of implementing this intent is problematic, beginning with the wording in the immediately following subsection (a): (a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal support], and . . . 19 While an application under s. 149 (for ongoing child support) may be made by a child’s parent, guardian or another person acting on the child’s behalf, an application under s. 165 (for ongoing spousal support) can only be made by a “spouse”. Once the payor has died, the survivor is, by definition, no longer a “spouse”. 20 However, I agree with counsel for the claimant that, where the object and intent of the Legislature is clear, as it is here, it would be an absurd result if that object and intent was thwarted by inclusion of redundant and needless verbiage. 21 In all of the circumstances, I am persuaded that the claimant is not precluded by the wording of s. 171(3) from applying for an order that the deceased Mr. Campbell’s spousal support obligation continues despite his death and becomes a debt of his Estate for a period fixed by this Court. I determined in my previous Reasons for Judgment that the word “order” in s. 171(3) of the FLA means any order, including the interim order that had been made in this case prior to Mr. Campbell’s death. Kumagai v. Campbell Estate G.C. Weatherill J. 179

22 In Kumagai #1, I found as follows: [184] On the whole of the evidence before me, I find that the claimant has demonstrated a significant need for support beyond the $5,000 per month that she is entitled to receive under the provisions of the Will. I find that that additional need is $5,000 per month. 23 However, because I erroneously concluded that the court was precluded from making an order under s. 171(3) of the FLA, I did not at that time consider whether the claimant’s additional need of $5,000 per month should be reduced given that it will be received by the claimant as a tax–free payment from the Estate. In my view, it should be. Indeed, the claimant’s counsel conceded the point in his written Reply Submissions: 8. Recognizing that the payment by the Estate of spousal support to a surviving spouse is not tax deductible to the estate and not taxable in the hands of the spouse is simply a factor to be taken into consideration when considering the quantum of the spousal support payment relative to any other obligations the Estate may have. 24 Moreover, the spousal support that the claimant is entitled to receive from the Estate must reflect the reality of the Estate and whether it is sufficient to meet the payee’s need including, in this case, the Estate’s income of $293,367 per year, or $24,447 per month. 25 The SSAGs include a feature to “gross–up” non–taxable income. The receipt by the claimant of $60,000 per year from the Estate, tax–free, is equivalent to the receipt of $75,588 of taxable income. 26 Although the respondents submit, in reliance on s. 19(1)(e) of the Guidelines, that the court should impute additional income to the claimant arising from post–judgment interest payments or speculative income that the claimant could earn from the investment of her monthly compensation payments, I decline to do so. There is no evidence upon which any determination can be made as to what portion of the claimant’s monthly compensation payments can be invested without encroaching upon the claimant’s ability to maintain a reasonable standard of living: Chutter v. Chutter, 2008 BCCA 507 (B.C. C.A.) at para. 90, leave to appeal ref’d [2009] S.C.C.A. No. 41 (S.C.C.). 27 Based upon the Estate’s and the claimant’s annual income of $293,367 and $75,588, respectively, the SSAGs indicate a mid–range spousal support payment of $2,223 payable by the Estate to the claimant. I am satisfied on the evidence that the Estate has sufficient means to make these payments. 180 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

28 The claimant is entitled to an order that spousal support in the amount of $2,223 per month from and after September 1, 2013 is a debt of the Estate until Zatchery turns 30 years old, at which time the spousal support will terminate and the claimant will be eligible to receive 10% of the residue of the Estate as per the Will. This is in addition to the $5,000 per month that she will continue to be entitled to receive as per the Will.

DEDUCTION OF THE INTERIM SPOUSAL SUPPORT PAYMENTS FROM THE JUDGMENT 29 By virtue of the Crawford Order, the claimant has received interim spousal support from the Estate in the amount of $15,000 per month from and after October 1, 2013. Because Kumagai #1 determined that no spousal support was payable after the death of Mr. Campbell, his Estate has ceased paying spousal support and has taken the position that the spousal support the claimant received pursuant to the Crawford Order was an overpayment and is thus a debt owing by the claimant to the Estate. 30 In addition, the Estate has not made any payments to the claimant in respect of the $5,000 per month she is entitled to be paid under the Will, being $155,000 ($5,000 per month for 31 months). 31 The Estate seeks an order retroactively varying the amount of spousal support payable by the Estate to the claimant, as well as an order that the amount paid pursuant to the Crawford Order in excess of such varied amount be set–off against the amount payable under the Will. 32 There is no indication that, when the Crawford Order was made, any consideration was given for the fact that the Estate’s income would not be tax free as it had been when the income was earned by Mr. Campbell while he was alive. The evidence before me is that the tax–free status of income flowing out of Estate’s companies no longer applies after Mr. Campbell’s death. Moreover, at the time of the Crawford Order, no apparent consideration was made for the fact that spousal support payments would not be deductible by the Estate and would be tax–free in the claimant’s hands. 33 The claimant submits that, if the Estate took issue with the Crawford Order, its remedy was an appeal. I agree. Kumagai v. Campbell Estate G.C. Weatherill J. 181

34 While it is clear that the Crawford Order was an interim order only, s. 167(2) of the FLA makes it clear that it was and is open to revision only if the court is satisfied that: a) a change in the condition, means, needs and circumstances of the claimant has occurred since the interim order was made; b) evidence of a substantial nature that was not available at the time the interim order was made has become available; or c) evidence of a lack of financial disclosure by either party was discovered after the order was made. 35 There is no evidence before me that any of those circumstances exist. The condition, means, needs and circumstances of the claimant are essentially no different now than they were at the time of the Crawford Order. Moreover, evidence relating to the tax implications of the support payments was available at that time but was not presented to the court. Finally, there is no suggestion that either party is guilty of failing to make financial disclosure. 36 I have now determined that the appropriate amount of spousal support to which the claimant is entitled is $2,223 prospectively. In view of the foregoing, there is no basis upon which I am able to order that this support obligation be made retroactively and I decline to do so. Accordingly, the Estate continues to be indebted to the claimant in respect of the unpaid portion of the $15,000 per month support payments, pursuant to the Crawford Order for the period ending March 31, 2016. Thereafter, the support obligation is reduced to $2,223 per month until Zatchery turns 30 years old, at which time spousal support will terminate. 37 The Estate is also indebted to the claimant in the amount of $5,000 per month pursuant to the terms of Mr. Campbell’s will.

PAYMENT OF A PORTION OF THE JUDGMENT AS A LUMP SUM 38 The claimant also seeks a reconsideration of para. 188(b) of Kumagai #1, wherein the Estate was given the right to elect to pay the compensation order of $1,859,301 to the claimant at the rate of $20,000 per month instead of as a lump sum. The claimant would like at least a portion of the compensation order paid to her as a lump sum in order to facilitate her purchase of a home. 39 This issue was fully canvassed at trial and was fully considered by me prior to issuing Kumagai #1. I am not persuaded that it would be appro- 182 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

priate to exercise my discretion to reconsider my decision in this regard which, again, should only be exercised sparingly. 40 The claimant’s application for such reconsideration is dismissed. Order accordingly. Morwald-Benevides v. Benevides 183

[Indexed as: Morwald-Benevides v. Benevides] Melinda Morwald-Benevides (Applicant) and Jeffrey Mark Benevides (Respondent) Ontario Superior Court of Justice Docket: FS-15-51 2016 ONSC 3505 E.J. Koke J. Heard: April 29, 2016 Judgment: May 30, 2016 Family law –––– Custody and access — Practice and procedure — General principles –––– Amicus curiae — Father was resident and citizen of Bermuda — Mother and father were involved in highly fractious family law litigation that involved complex legal and jurisdictional issues — Mother was self-represented when trial commenced — Mother collapsed in courtroom and was taken to hospital by ambulance — Trial judge appointed amicus curiae to represent mother during trial — Father’s counsel successfully brought motion to be removed from record, and second amicus was appointed to act on behalf of father — Attorney General of Ontario unsuccessfully brought intervenor motion objecting to appointments — Attorney General commenced appeal, and two amici were appointed to argue appeal — Attorney General brought motion for order setting aside appointment of two amici for appeal — Motion dismissed — Appeal was stayed, but stay could be lifted when Attorney General and amici negotiated mutually acceptable rate of compensation for amici, or pursuant to further order of court — There was no compelling reason to set aside order appointing two amici for appeal — Since mother was siding with Attorney General, her involvement as proposed intervenor on appeal would not provide required assistance to court — Attorney General’s policy of fixing rate for all amicus appointments at legal aid rate ignored direction in Supreme Court of Canada authority that Attorney General had to engage in negotiations with amici — Mandate to negotiate implied Attorney General should adopt flexible policy in setting rates for amici — There might often be very sound juridical and practical reasons why court selects particular lawyer to act as amicus in given case — If these reasons were clearly articulated by court, Attorney General should attempt to negotiate mutually acceptable rate with proposed amicus even if this rate exceeded legal aid rate — Refusing to do so unnecessarily impeded court in exercise of its judicial role. 184 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Cases considered by E.J. Koke J.: R. v. Imona-Russell (2013), 2013 SCC 43, EYB 2013-225080, 2013 Carswell- Ont 10507, 2013 CarswellOnt 10508, [2013] S.C.J. No. 43, (sub nom. R. v. Russel (W.I.)) 447 N.R. 111, (sub nom. Ontario v. Criminal Lawyers’ Association of Ontario) 4 C.R. (7th) 1, 300 C.C.C. (3d) 137, (sub nom. R. v. Russel) 308 O.A.C. 347, 363 D.L.R. (4th) 17, (sub nom. Ontario v. Criminal Lawyers’ Association of Ontario) 291 C.R.R. (2d) 265, (sub nom. Ontario v. Criminal Lawyers’ Association of Ontario) [2013] 3 S.C.R. 3 (S.C.C.) — followed

MOTION by Attorney General of Ontario to set aside appointment of two amici.

William Manuel, Chantal Blom, for Ministry of the Attorney General, as Inter- venor, for Moving Party D. Andrew Thomson — Amicus Bonnie C. Oldham — Amicus

E.J. Koke J.: INTRODUCTION 1 This is a motion by the Attorney General of Ontario (the “AG”) to set aside the appointment by this court of two amici. The motion raises issues that impact on the constitutional relationship between the judiciary and other branches of government in our constitutional democracy. 2 The motion is brought in the context of an appeal by the AG of a trial decision of the Ontario Court of Justice. During the course of the trial the trial judge made two orders appointing amicus curiae. Following the appointments, the AG brought an intervenor motion objecting to the appointments. The trial judge denied the motions and the AG has now appealed this decision to this court. 3 Upon receipt and review of the Notice of Appeal, I concluded that the parties to the original proceeding before the Ontario Court had neither the interest nor the resources to respond to the appeal. In order to ensure that I had the benefit of full written and oral responding submissions, I appointed the same two amici who had been appointed to respond to the intervenor motion to assist the court with the appeal. 4 In my decision appointing the amici I noted that my appointment was made without notice and without the benefit of submissions from either the AG or the two amici, and accordingly I invited representations concerning the appointments. Morwald-Benevides v. Benevides E.J. Koke J. 185

5 The AG responded by bringing this motion for an order setting aside the appointment of the amici. 6 For the reasons which follow, I am denying the relief requested in the motion and am ordering that the appeal be stayed. The stay can be lifted when the AG and the amici have negotiated a mutually acceptable rate of compensation for the amici, or pursuant to further order of this court.

BACKGROUND The Decision of the Trial Judge 7 The original trial in the Ontario Court of Justice herein was a family law proceeding involving issues of support, custody and access of children. It took place over a 23 day period, commencing on April 11, 2014 and concluding in late June, 2015. 8 The trial judge reported that the proceeding was highly fractious and involved complex legal and jurisdictional issues. The father is a resident and citizen of Bermuda. One issue dealt with access of the father in Ber- muda, with the mother taking the position that the children would be ab- ducted if the father was permitted visits in that country. The mother filed materials to indicate that courts in Bermuda have a poor compliance with the Hague convention. The mother also alleged domestic violence and the father alleged parental alienation. 9 Child support issues were also complicated and included issues pertaining to gross-up because of the different tax treatment of the father’s income in Bermuda and the high cost of the father exercising access in Canada. 10 There were also logistical issues. The mother alleged that she was fearful of the father and did not want to be in the same courtroom with him or give evidence with him in the courtroom. The court was asked to explore the possibility of integrating the courts in Bermuda with the On- tario Court of Justice in Parry Sound, with a view to strengthening compliance with the Hague Convention. 11 Prior to trial the mother had dismissed 5 lawyers. The trial judge reported that before the trial even commenced a pattern had developed by the mother of seeking to delay the proceedings and he concluded that the mother did not want to proceed to trial. 12 The trial opened with the mother self-represented. According to the trial judge, on the first morning of trial the mother’s behavior bordered 186 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

on the hysterical. She later collapsed in the courtroom and was taken to the hospital by ambulance. 13 The trial judge decided to appoint amicus curiae to represent the mother during the trial. His reasons for doing so are summarized as follows at paragraph 70 - 74 of his decision: 70 I needed assistance in a significant way. This case was not remotely close to the garden variety case as mentioned by the Supreme Court of Canada, wherein an amicus order should not be routinely made. Because of the sharp polarization and conflict of the expected evidence, I wanted a micus to play an adversarial role to properly test the evidence, so I could make findings of facts and credibility — which would then allow me to effectively adjudicate on the best interest test. 71 Aside from the complexities of findings of facts and credibility, this case had complex legal issues. As a matter of law, what is required to terminate access to a parent or to direct permanent supervision of access? What are the legal requirements for parental alienation? What is the law of Bermuda as such relates to an application in the Bermuda courts under the Hague Convention? What are the legal principles for grossing up child support because of different tax treat- ments of income in different jurisdictions? What are the legal principles for the deductions from child support of travel expenses to facilitate access? The mother would not have been able to assist me, even if she was emotionally stable. 72 I knew at the time I made the amicus order that it was likely I would be ordering a psychological assessment. The mother was strongly against this and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist. 73 With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father’s evidence would not be properly tested, whereas the mother’s would; leaving me in a deficit position on the material facts and legal issues. 74 I am satisfied that the high threshold required to make an amicus curiae order has been met. This case constitutes exceptional circumstances. 14 The decision by the trial judge to appoint a second amicus to act on behalf of the father was in response to a motion by the father’s counsel to be removed from the record. His reasons for appointing the father’s law- Morwald-Benevides v. Benevides E.J. Koke J. 187 yer to act as amicus curiae are set out as follows in paragraphs 81-87 of his reasons: 81 It appeared that she had a sound basis for being removed from the record, given the substantial increase in the expected trial time, which she could not have reasonably expected to know when dis- cussing fee arrangements with her client. 82 Letting her off the record would greatly destabilize the trial especially with her client being a foreign resident. It was doubtful that he could carry on litigation of this magnitude from a foreign country. Given what I learned about his finances, it was doubtful that he would be able to retain another counsel. 83 Not letting Ms. Oldham off the record would have forced her to proceed on a pro bono basis. Conducting a matter of this magnitude on a pro bono basis would not have been fair and would have added another layer of tension to an already difficult trial. Given the role Ms. Oldham plays in the local administration of justice, I was not prepared to do this. 84 Adjourning to ascertain whether the father qualified for legal aid was not an option. I was confident he would not qualify. His income was too high, he owned property in Bermuda and he had no legal status in Canada. 85 The decision to appoint amicus for the father was influenced by the reasons to appoint amicus for the mother. The two are connected. I could not consider the father’s situation independent of the mother. Without counsel for the father, there would have been an imbalance in testing the evidence in the way I required. A lopsided situation, whether it is from the mother’s perspective or the father’s, would not have been of assistance to me. Although the father was being benefited, there is a nexus between that benefit and the assistance I required. 86 So I focused on my needs, already articulated which have not changed. Though the father did not have the emotional volatility of the mother, he could not have self-represented on a complex case such as this. I needed the adversarial system in order to properly test the evidence, not only from the perspective of the mother, but also from the perspective of the father. Further I needed a counsel for the father to deal with the courts in Bermuda. 87 The decision to appoint amicus for the father was for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process. 188 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

15 In the intervenor motion the AG argued that the court had exceeded its jurisdiction in granting the orders. 16 Following submissions by counsel for the AG and by amicus counsel the trial judge confirmed his earlier ruling. This ruling is now the subject of the appeal herein.

Grounds for the Appeal of the Decision of the Trial Judge by the AG 17 The grounds for the appeal as set out in the Notice of Appeal can be summarized as follows: (a) The two amici were appointed for the primary purpose of acting as counsel for the parties. This constituted an improper exercise of the court’s jurisdiction. (b) The corresponding orders that the AG fund amici whose purpose was primarily to act as counsel for the parties improperly infringed upon the AG’s role in the administration of justice.

Reasons for the appointment of Amici to act on this Appeal 18 In my reasons for appointing the two amici I noted that the issues raised by the AG in the appeal were significant, from both a policy and legal perspective. They involved jurisdictional and constitutional questions and I expected that the decision would likely have an impact on a developing area of the law. 19 I noted as well that at this stage of the proceedings, with the trial completed, the named parties no longer had a need to respond to the AG’s appeal; nor did I expect that they had the financial resources to do so. It appeared to me that unless the court appointed counsel, the court would not have the benefit of responding submissions. 20 I provided the following reasons for selecting these particular two individuals to act as amicus curiae: (a) Both counsel had the benefit of many years of experience as prac- ticing lawyers; they are also highly regarded among their peers for their hard work and professionalism. (b) They were already familiar with the factual matrix underlying the motion, as well as many of the legal issues...there are efficiencies to be realized in retaining the same counsel; Morwald-Benevides v. Benevides E.J. Koke J. 189

(c) They were independent of the office of the AG, and therefore represented a credible buffer between the court and the AG. 21 I authorized the two amici to file responding materials to the motion, and instructed and authorized them to make full and complete oral submissions at the hearing of the appeal.

Remuneration for the Amici 22 With respect to remuneration for the amici, I noted in my decision that initially the AG refused to pay the amici to attend and make submissions at the intervenor motion in the Provincial Court. In response to this refusal, the two amici offered to appear on the motion on a pro bono basis, which they did. The judge then requested them to bill the AG in any event and eventually the motion accounts were paid. 23 I also noted that in R. v. Imona-Russell, [2013] 3 S.C.R. 3 (S.C.C.) (“Criminal Lawyers”) the majority on the Supreme Court ruled that the person appointed and the Attorney General should meet to set rates and modes of payment. Although the judge may be consulted, and can play a persuasive role in setting the rate of remuneration for an amicus, the court should not make binding orders regarding payment. If the rate of compensation cannot be amicably resolved between the amicus and the AG, then the judge’s only recourse may be to exercise his jurisdiction to impose a stay. 24 I expressed my hope that the payment issues which arose in the context of the original intervenor motion could be avoided on this appeal. I encouraged the AG and the two amici to use their best efforts to agree on a fair rate of compensation. I also advised that I was prepared to provide them with guidance on this issue if they so requested, and I provided them with the following comments and observations: a. It was implied by the Supreme Court in the Criminal Lawyers’ case that the rate of compensation be reasonable. b. In determining a reasonable rate, the importance of the assignment being undertaken, the legal complexity of the work, the skill and experience of counsel and counsel’s usual hourly rate are all relevant considerations. c. It is appropriate to take into consideration that the amicus is performing a public service paid for with public funds, and counsel could expect to be paid a rate which was less than his or her usual hourly rate. For cases which are more challenging or complex, or 190 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

might be expected to have broader policy implications or contrib- ute to the further development of the jurisprudence, the rate should not be so low as to effectively impede the ability of the court to select the most appropriate candidates to assume the role of amici; to do so could have the effect of infringing on the jurisdiction of the court to appoint counsel. d. In this case the AG was the moving party on the motion. The AG was also being called upon to fund the amici who would be responding to its motion. In these circumstances there was a risk that the failure of the AG to agree to a reasonable rate of compensation for the amici could have the effect of undermining public confidence in the overall administration of justice.

GROUNDS FOR THE MOTION 25 The AG has cited the following grounds for its motion: a. The amici who have been appointed by the court expect to be paid more than the legal aid rate. The AG has established a policy that it will pay no more than the legal aid rate to an amici. The AG has identified three qualified lawyers who are independent of the Crown and willing to act as amicus at rates agreeable to the Crown; b. The court does not require two lawyers to assist it. One qualified lawyer will be able to provide the Court with the assistance it requires given the narrow issues on appeal and limited appeal record; c. The applicant mother has retained counsel and will be seeking leave to intervene on the Crown’s appeal;

ANALYSIS 1. The Funding Issue. Position of the Parties 26 The amici submit that it is incumbent on the office of the AG to negotiate a fee with them which is fair and reasonable. They acknowledge that there are public interest considerations which should be taken into account and they are prepared to accept an hourly rate which is substan- tially lower than their normal rate. Mr. Thomson’s usual hourly rate is $350 per hour and he is prepared to accept a rate of $250.00 per hour. Morwald-Benevides v. Benevides E.J. Koke J. 191

Ms. Oldham’s usual hourly rate is $345.00. She is prepared to reduce this amount to $200 an hour. 27 The amici point out that because of their earlier involvement at the trial, the AG will realize considerable savings if they are retained. They are already acquainted with the factual matrix of the trial and have previously argued the issue of whether they should be retained as amici before the trial judge. Furthermore, they both practice in Parry Sound (as compared to the three potential amici identified by the AG who practice in the Toronto area) and therefore the AG will not have to incur travel and accommodation expenses. Also, they are in possession of the transcripts of the entire trial proceedings, transcripts which will cost other counsel many thousands of dollars. 28 The AG does not argue that the rate requested by the amici is unfair or unreasonable. It submits instead that the AG has a strict policy that it will pay no more than the legal aid rate to an amicus. It can provide to the court a list of lawyers who are prepared to act as amicus for legal aid rates (the “list”) and has provided the names of three lawyers from this list who it submits have the necessary qualifications to assist in this case. 29 The AG has not entered into negotiations with the amici. It argues that it has no legal obligation to do so, even in circumstances where the amicus has already been appointed by the court. 30 According to the AG, if an amici who has been appointed by a judge is not prepared to accept the legal aid rate then the court is compelled to choose a different amicus who is prepared to work for this rate.

Requirement to Negotiate 31 The Criminal Lawyers’ Case was decided by a 5-4 margin. Karakat- sanis J. wrote the majority decision and Fish J. wrote for the minority. 32 The question which the Supreme Court was asked to answer in the Criminal Lawyers’ case was whether a courts’ inherent or implied jurisdiction extended to fixing the rates of compensation for amici curiae. 33 The majority answered this question in the negative and the minority in the affirmative. 34 Although they answered the main question differently, in my view both the majority and the minority contemplated that some form of negotiations should take place between the AG and the amicus in determining the rate to be paid to the amicus. 192 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

35 At paragraph 75 and 76 of the decision Karakatsanis J. stated for the majority: 75 In those exceptional cases where Charter rights are not at stake but the judge must have help to do justice and appoints an amicus, the person appointed and the Attorney General should meet to set rates and mode of payment. 76 In the final analysis, if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found. If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear. 36 Fish J. suggested the following more detailed procedure at paras. 132 - 135 in the minority decision: 132 Once a trial judge names and defines the role of an amicus curiae — with or without the assistance of the parties — a consensual approach ought to be favoured. This approach would invite the Attor- ney General and the amicus to meet and agree on the rate of remuneration and on the administration of the budget. 133 Both parties should negotiate in good faith and with due regard for their respective obligations to the judicial process: Attorneys General should consider their duty to promote the sound administration of justice and amici curiae should keep in mind both the element of public service inherent in their role and the “privilege of belonging to a profession that is not simply a business”: Ontario v. Figueroa (2003), 64 O.R. (3d) 321 (C.A.), at para. 28. 134 The provincial Attorney General and the amicus should be given a limited time to negotiate based upon the state of proceedings and the urgency of the appointment. In general, negotiations should be given as little time as is practicable. Any dispute regarding remuneration should be resolved expeditiously, in a manner that does not delay, much less derail, the proceedings. Moreover, the amicus should not be permitted to hold proceedings hostage by extending negotiations in order to secure more generous compensation. 37 As I see it, the main difference between the two approaches is that the minority was of the view that if a stalemate was reached between the AG and the court appointed amicus, then the court should decide the rate of compensation, whereas the majority favoured an approach whereby the action was stayed, “until the amicus can be found”. However, both approaches contemplated that some form of negotiations should take place between the parties before such steps were taken by the court. Morwald-Benevides v. Benevides E.J. Koke J. 193

38 In this case, the AG refuses to negotiate with the 2 amici. It argues that paragraphs 75 and 76 of the Criminal Lawyers’ case should be interpreted to mean that a judge must select a candidate from the list if the amicus appointed by the court refuses to work for the legal aid rate. 39 In my view, the AG’s policy of fixing the rate for all appointments at the legal aid rate ignores the direction from the Supreme Court that the AG must engage in negotiations with the amicus.

The Need for a Flexible Approach 40 The mandate to negotiate implies that the AG should adopt a flexible policy in setting rates for amici. There is no need to negotiate if the rate has been pre-determined. 41 There are many factors which a judge may wish to consider in selecting an amicus. These include factors such as the nature and complexity of the issues to be decided by the court, the anticipated length of the trial, the benefit of appointing counsel with prior involvement in the case, scheduling and conflict issues, the qualifications or particular expertise of the amicus, the needs of children and the risks to them if an appointment is not made expeditiously, and the judge’s prior dealings with counsel. 42 In my view, if a judge is to give consideration to the above factors in selecting an amicus, the choice of amicus cannot be limited by a policy which necessarily requires the judge to restrict his or her selection to an amicus who is prepared to work for legal aid rates. 43 In many cases the legal aid rate may very well constitute a fair and acceptable rate. For example, in circumstances where a court appointed amicus is expected to perform essentially the same services as a defence counsel who is funded by legal aid there may be good policy reasons for insisting that the amicus accept the same rate of pay as a defence counsel. This was the argument made by the AG in the Criminal Lawyers’ case. However, this does not mean that a legal aid rate is fair and reasonable in all cases in which a court deems it necessary to appoint an amicus. 44 The role of the amici who have been appointed to assist with this appeal is fundamentally different than the role of the counsel who were the subject of the Criminal Lawyers’ appeal. The amici in the Criminal Lawyers’ case had been directed to assume a role akin to that of counsel for a party. In contrast, the amici in this case have been appointed to provide assistance directly to the court in relation to certain disputed le- 194 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

gal issues. They will likely have little or no communication with the named parties. They have not been asked to participate as trial counsel, but to provide submissions in relation to an appeal. The reason they have been selected is because the court has deemed that they are uniquely qualified to assist the court due to their experience, qualifications and prior involvement in the case. 45 There may often be very sound juridical and practical reasons why a court selects a particular lawyer to act as amicus in a given case. In my view, if these reasons are clearly articulated by the court, as I have attempted to do in this case, then the AG should attempt to negotiate a mutually acceptable rate with the proposed amicus, even if this rate ex- ceeds the legal aid rate. Refusing to do so unnecessarily impedes the court in the exercise of its judicial role. 46 At paragraph 73 of the Criminal Lawyers’ case the Supreme Court suggests that the policy of the Province may include the creation of a roster or list of qualified counsel who are prepared to act at the rate offered by the Attorney General. In my view, this suggestion refers to the selection of amici who are referred to in the Criminal Lawyers’ case as amici appointed “to assist, but not act for the unrepresented accused”... in other words amici whose roles are the same as those who were the subject of the appeal in that case. 47 In many cases a court should not have an objection to selecting a lawyer from such a list, particularly in those cases where the amicus is appointed to undertake a role similar to that of trial counsel. In fact, I can see that in many situations the existence of such a roster of available amici would be a convenient way to identify a suitable candidate. 48 There are cases however where the court should not be expected to select an amicus from such a list. These include situations where the court has clearly expressed its preference for a particular amicus. There will also be situations where the list does not include lawyers who have the required qualifications, or it would be impractical for the court to appoint them. 49 For example, I have reviewed the credentials of the three lawyers who have been identified by the AG as suitable to assist the court in this case. All three practice primarily in the area of family law. The issues in this appeal however are constitutional and jurisdictional and there is no evidence before me that they are qualified to act in relation to this appeal. 50 What also adds to the difficulty of selecting one of these three amici is that all three practice law in the Greater Toronto Area, which is at least Morwald-Benevides v. Benevides E.J. Koke J. 195

a five hour round trip from Parry Sound. I would be surprised if counsel who are paid legal aid rates would be prepared to travel such a considerable distance to act as amici. 51 Finally, if I accept the position of the AG that it is incumbent on me to select amici from its list, presumably I would have to find a way to vet the list in order to locate a qualified candidate. I do not believe that judicial resources should be expended to carry out such a process, particularly in circumstances where the court has already selected a qualified amici who is prepared to negotiate a reasonable rate of remuneration.

Summary...the Funding Issue 52 In the Criminal Lawyers’ case the Supreme Court held that it is within the jurisdiction of the Province to set the fees payable to amici. However, in deciding this jurisdictional issue, the court also contemplated that the fees which would be paid to an amicus would be the subject of negotiations between the AG and the amicus. 53 The mandate by the Supreme Court in the Criminal Lawyers’ case that directs the parties to negotiate suggests that the policy established by the Province should be a flexible policy, which takes into consideration the unique circumstances of the case. 54 It is my view that the existing policy, which restricts the choice of amicus to an amicus who is willing to work for legal aid rates, unduly weakens the courts’ appointment power.

2. The appointment of more than one Lawyer 55 The AG objects to the appointment of two lawyers to assist the court, submitting that one lawyer is sufficient. 56 As I pointed out above under the heading “The Decision of the Trial Judge”, the trial judge made two orders, at separate times, appointing amicus. He articulated different reasons for each appointment. During the intervenor motion the appointed counsel were requested by the court to make responding submissions with respect to their respective appointments. These same counsel have now been requested by the court to make responding submissions on their respective appointments in relation to this appeal. They are already acquainted with the underlying facts and circumstances in relation to their appointments. 57 I see no compelling reason to set aside my order appointing two amici on this appeal and I decline to do so. 196 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

3. The appointment by the mother of a lawyer 58 The applicant submits that the mother has now retained counsel and will be seeking leave to intervene on the Crown’s appeal. 59 A review of the file reveals that the mother has appealed the decision of the trial judge. One of the grounds for her appeal is that the appointment of amicus by the trial judge breached the principles of natural justice and interfered with her right to procedural fairness and her Charter rights. 60 As I see it, the mother is taking a position that supports the position of the AG, namely that the appointments should not have been made. As- suming she receives leave to intervene, I do not believe her involvement will provide the required assistance to the court. 61 In the circumstances, the motion also fails on this ground.

DECISION 62 For the above reasons, this motion brought by the AG fails. The court appointed amici and the office of the AG have failed to reach a fee arrangement in this case. Therefore I find it necessary to issue a stay in this proceeding. Motion dismissed. Children’s Aid Society of Toronto v. C. (A.) 197

[Indexed as: Children’s Aid Society of Toronto v. C. (A.)] CHILDREN’S AID SOCIETY OF TORONTO and A.C. and HER MAJESTY THE QUEEN Ontario Court of Justice Docket: None given. 2016 ONCJ 750 M.L. Cohen J. Judgment: December 20, 2016 Family law –––– Children in need of protection — Practice and procedure in custody hearings — Discovery — Discovery of documents –––– Mother was subject of child protection proceedings when she was child, and she came into care of children’s aid society — Mother became pregnant when she was 19 years old, and based on its experience with mother as foster child, society be- lieved that her son would be at risk of physical and emotional harm if placed in her care or if she exercised unsupervised access to him — Mother’s son was apprehended when he was about one month old, society commenced protection application, and order was made placing him in temporary care and custody of paternal grandmother — Society brought motion for access to police records created and kept under Youth Criminal Justice Act in relation to mother — Mo- tion granted in part — Bulk of police records sought fell outside access periods set out in s. 119(2) of Act, and only two offences were still within access periods, which pertained to robbery charge and failing to comply with recognizance — Offences within access periods were decided under s. 119(1)(s) of Act, society established that it had valid interest in records and that access to records was desirable in interest of proper administration of justice — Access was granted to two records within access period — Section 123 of Act applied to remaining records that fell outside access period, and society must establish that its interest was valid and substantial, and that access was necessary in interest of proper administration of justice — Society failed to establish valid and substantial interest, as records sought had little or no probative value. Cases considered by M.L. Cohen J.: D. (J.), Re (2009), 2009 ONCJ 505, 2009 CarswellOnt 6729, [2009] O.J. No. 6384 (Ont. C.J.) — considered G. (A.) (Litigation Guardian of) v. F. (S.) (2007), 2007 ONCJ 577, (sub nom. R. v. F. (S.)) 88 O.R. (3d) 304, 2007 CarswellOnt 9355, 57 R.F.L. (6th) 457, [2007] O.J. No. 4772 (Ont. C.J.) — considered G. (R.), Re (1999), [1999] B.C.J. No. 1106, 1999 CarswellBC 3077 (B.C. Prov. Ct.) — considered 198 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

L. (S.) v. B. (N.) (2005), 2005 CarswellOnt 1417, 196 O.A.C. 320, 195 C.C.C. (3d) 481, 252 D.L.R. (4th) 508, 12 C.P.C. (6th) 34, [2005] O.J. No. 1411 (Ont. C.A.) — considered N. (F.), Re (2000), 2000 SCC 35, 2000 CarswellNfld 213, 2000 CarswellNfld 214, 146 C.C.C. (3d) 1, 188 D.L.R. (4th) 1, 35 C.R. (5th) 1, [2000] 1 S.C.R. 880, 191 Nfld. & P.E.I.R. 181, 577 A.P.R. 181, [2000] S.C.J. No. 34 (S.C.C.) — considered R. v. B. (D.) (2008), 2008 SCC 25, 2008 CarswellOnt 2708, 2008 CarswellOnt 2709, 56 C.R. (6th) 203, 231 C.C.C. (3d) 338, 374 N.R. 221, 293 D.L.R. (4th) 278, [2008] S.C.J. No. 25, 237 O.A.C. 110, [2008] 2 S.C.R. 3, 171 C.R.R. (2d) 133, 92 O.R. (3d) 399 (note) (S.C.C.) — considered Statutes considered: Child and Family Services Act, R.S.O. 1990, c. C.11 Generally — referred to s. 37(2)(a) — considered s. 37(2)(b) — considered s. 37(2)(i) — considered s. 45 — referred to s. 45(3) — referred to s. 45(9) — referred to s. 45(10) — referred to s. 54 — considered s. 85(3) — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 579(2) — considered Youth Criminal Justice Act, S.C. 2002, c. 1 Generally — referred to Pt. 6 — referred to s. 10(4) — considered s. 40 — referred to s. 40(2)(d)(iv) — referred to ss. 114-116 — referred to s. 115 — considered s. 118 — considered s. 119 — considered s. 119(1) — considered s. 119(1)(n) — considered s. 119(1)(n)(ii) — considered s. 119(1)(s) — considered s. 119(1)(s)(ii) — considered s. 119(2) — considered s. 119(2)(a) — referred to s. 119(2)(b) — referred to Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 199

s. 119(2)(c) — referred to s. 119(2)(d) — referred to s. 119(2)(f) — referred to s. 119(2)(h) — referred to ss. 119-123 — referred to s. 123 — considered s. 128 — considered s. 128(1) — considered s. 129 — considered Words and phrases considered: valid interest A “valid interest” in a record is an interest in the record which is legitimate and relevant to the purpose for which the record is sought.

MOTION by children’s aid society for access to police records in relation to mother.

No one for Crown Michelle Cheung, for Children’s Aid Society of Toronto Renatta Austin, for A.C.

M.L. Cohen J.:

1 This is my ruling on an application by the Children’s Aid Society of Toronto for access to police records created and kept under the Youth Criminal Justice Act in relation to A.C., who is now an adult. The society seeks access for purposes of a child protection proceeding regarding A.C.’s child, J.C-W., born October 20, 2015. A.C. opposes the application. 2 Records created in the course of police investigations and prosecutions of young people are strictly controlled under the Youth Criminal Justice Act in order to protect the privacy of the young persons involved. An application for access to such records requires the court to balance “some valid public interest with the benefits of maintaining the privacy of young persons who have come in conflict with the law”: L. (S.) v. B. (N.), [2005] O.J. No. 1411 (Ont. C.A.), par. 42.) 3 In this case the society argues that the “valid public interest” lies in supporting the society’s ability to carry out its duties under the Child and Family Services Act. Accordingly I begin with a brief account of A.C.’s 200 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

own history with the society, and of the child protection proceeding regarding her son.

A.C.’s History with the Society 4 A.C. was the subject of child protection proceedings when she was a child. At the age of thirteen, she came into the care of the society. Based on its experience with A.C. as a foster child, the society believes her son would be at risk of physical and emotional harm if placed in her care, or, alternatively, if she were to exercise unsupervised access to him. 5 The following account of A.C.’s child protection history is taken from the society’s pleadings in the child protection case regarding J.C- W, and the society’s affidavit filed on this application. 6 According to the pleadings, the society’s involvement with A.C. began in January, 2010, as a result of difficulties her mother was experiencing managing A.C. and her two sisters. At that time A.C.’s, mother reported that A.C., then age 13, was “engaging in high risk behaviours, including smoking marijuana, drinking alcohol and engaging in sexual activity”. A.C.’s mother told the society that when she attempted to enforce rules, A.C. would become verbally abusive towards her. 7 On May 12, 2010, A.C., then age 14, was placed in foster care pursuant to a Temporary Care Agreement entered into between the society and her mother. At that time “...the main concerns involved [A.C.’s] anger, outbursts and inability to limit her reaction when in conflict, as well as her incurring multiple Youth Criminal Justice Act charges for assault.” 8 On May 26, 2011, the society commenced a protection application, and on November 17, 2011, A.C. was found to be a child in need of protection under section 37 (2) (i) of the Child and Family services Act. On June 11, 2013, A.C. was made a Crown Ward, and placed in the permanent care of the society. 9 While in foster care, A.C. was moved many times as a result of what was described as her unmanageable and threatening behaviour. Accord- ing to the society, A.C. made poor peer choices, used a variety of il- licit/illegal drugs, accumulated further charges, ran away from her group homes frequently, and had multiple police contacts. 10 In February, 2015, A.C. was assessed by a psychologist who concluded that she was developmentally delayed (1st percentile), had difficulty regulating her emotions and impulses, and placed a “premium on Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 201

using physical aggression or intimidation as a way of achieving her goals.” The report stated that A.C. “...can be very angry and volatile...” 11 The society maintains that many of these issues continues to exist today.

Protection Application Regarding J.C-W. 12 At the age of 19, A.C. became pregnant. She refused the opportunity for extended care, and rejected offers of assistance from the society with her pregnancy. The society decided to apprehend the child at birth. 13 J.C-W. was born earlier than his due date, October 20, 2015, and, due to an administrative error, the hospital did not inform the society of his birth. The mother and the paternal grandmother cared for J.C-W. until November 30, 2015, when he was apprehended and placed in temporary foster care. 14 On December 4, 2015, the society commenced a protection application regarding J.C-W. In the application the society sought a finding that the child is in need of protection under sub-sections 37 (2) (a) and (b) of the Child and Family Services Act, and an order of society wardship for six months, with access to the mother at the discretion of the society. 15 On March 23, 2016, an order was made placing J.C-W. in the temporary care and custody of his paternal grandmother, subject to society supervision. While A.C. was granted access to her son, the order requires that the access be supervised by the father or the paternal grandmother. 16 On April 5, 2016, the society filed an amended protection application, seeking a finding under section 37 (2)(b), and a final order placing J.C.W. in the care of the paternal grandmother, subject to society supervision, for 6 months. The society asks for a final order that A.C.’s access be supervised, and at the discretion of the Society. The application remains before the court. 17 A.C. opposes the protection application. She disputes that the child was at risk at the time of apprehension. If the child is found in need of protection, she asks for an order placing J.C-W. with the paternal grandmother under a supervision order. In the alternative, she asks for an order placing J.C-W. with her under a supervision order. If the child is placed with the paternal grandmother, A.C. seeks unsupervised access. She plans to reside with the paternal grandmother and to support her in caring for J.C-W. 202 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

18 The father has filed an Answer seeking placement with him, or with him and the paternal grandmother, subject to society supervision. 19 The paternal grandmother was made a party on January 5, 2016, and she has filed an Answer seeking an order placing the child with her subject to society supervision.

The Records Application — Position of the Parties 20 In its application, the society states that: Information in [A.C.]’s youth records combined with the above- noted information related to concerning incidents involving [A.C.] since she turned 18, constitute a continuous pattern of concerning behaviour on the part of [A.C.] which would place her child at risk of physical and emotional harm if he was exposed to it. The details contained within [A.C.]’s youth records are relevant to the child protection court’s determination of the following issues, which will be raised in the child protection proceedings as they per- tain to A.C.’s request to resume a caregiving role to her young infant child, or to be permitted unsupervised access to him: How long-standing a problem is [A.C.]’s inability to control her anger and/or regulate her emotions? Does [A.C.] have a pattern of being able to follow court imposed conditions such as bail and/or probationary orders? What services have been offered to [A.C.] through the criminal justice system and has [A.C.] shown an ability to collaborate and work effectively with these service providers? 21 Thus the society argues that the records are necessary to assist it in assessing the risk of physical and emotional harm to the child were he to be placed in A.C.’s care, or if she has unsupervised access to the child. Although the society has much of the information in its own records, counsel argues that the police records are the best evidence of the mother’s history of involvement in the youth criminal justice system. 22 In addition, counsel argues that, at this time, the society requires access to the police records for purposes of an assessment under section 54 of the Child and Family Services Act. The society wishes to provide the assessor with the entire police record. 23 In addressing the privacy issues, the society argues that relative to other civil litigation, child protection litigation itself contains many privacy safeguards, for example, the hearings are private (section 45), publication of information identifying a child or parent is prohibited (section Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 203

45(3)), distribution of court transcripts is limited, (45(10)), the court can prohibit publication of identifying information (45 (9)), and penalties are provided for breaches of these provisions(s. 85 (3)). 24 A.C. opposes the application. She argues that the society has no valid interest in the records since she is now an adult, and records created when she was a youth are not relevant to the protection application. Fur- ther, she argues that the society the society has been dealing with her since 2010, and has abundant evidence, from its own observations, relevant to the issues it raises. She submits that, insofar as the protection proceedings are concerned, the prejudice created by the records would outweigh their probative effect, and therefore access would not be desirable, or necessary, in the interest of the administration of justice. 25 Finally, A.C. argues that access to the records would significantly breach her privacy rights under the YCJA, and that the order requested is not in keeping with the spirit of the YCJA in that it undermines the presumption of diminished responsibility of young persons which is central to the Act.

Access to Records under Part Six of the Youth Criminal Justice Act 26 Part 6 of the YCJA protects the privacy of young persons dealt with under the Act. Under Part 6, publication of information that would identify a young person as having been dealt with under the Act, and access to records created or kept for the purposes of the Act, are strictly limited. 27 Sections 114 to 116 of the Act permit courts, police forces and government agencies to keep YCJA records. Under the YCJA a record ...includes anything containing information, regardless of its physical form or characteristics, including microform, sound recording, video- tape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act. (dossier) 28 Police forces are permitted to create and keep records under section 115 of the Act. Access to Section 115 records is affected by Section 118 which provides that, ...except as authorized or required by the Act, no person shall be given access to such records (and the information contained in the record), where to do so would identify the young person to whom the record relates as having been dealt with under the Act. 204 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

29 Thus the society will be denied access to A.C.’s police record unless access is authorized or required by the Act. 30 Sections 119 to 123 of the Act set out rules governing access to YCJA records, including police records. Section 119(1) sets out specific categories of persons who may apply for access to records, and sub-section 119 (2) provides for time periods (“access periods”), during which those persons may be entitled to, or authorized, to have access to records. The access periods are generally a function of the outcome of the prosecution, the nature of the crown election, and the gravity of the offence. 31 Once an access period has expired, sub-section 128(1) provides that Subject to sections 123...no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act... 32 Section 128 provides that after the access periods have expired, youth records will be inaccessible, subject to certain exceptions. Section 123, is one such exception. Section 123 provides for access by any person whose application is made after the relevant access period has expired. 33 Whether an application for access is governed by section 119, or by section 123, will depend on whether the records fall within or outside the access periods. The test to be applied by the court under each section is different. A more stringent test must be satisfied under section 123. As a result, determining which section applies is the essential first step in an application. 34 On a records application under either section 119 or section 123, it is important to bear in mind why access periods exist. Youth records are not treated the same way as adult criminal records, which, generally speaking, and subject to limitations, remain accessible in perpetuity. Sec- tion 128 is one of several sections that expresses this difference. 35 The fact that access periods are defined under section 119, and that records are more difficult to access under section 123, is consistent with the presumption of diminished moral blameworthiness for young persons, upon which the criminal justice system for young persons is based. It is also consistent with the emphasis on rehabilitation and reintegration which is a central principle of the Act. The relative inaccessibility of YCJA records protects young people from the long term negative consequences of their youthful offending behaviour, and is in keeping with the rehabilitative intentions of the Act. Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 205

The Records 36 I have reviewed the police records produced to the court by the To- ronto Police Service under subpoena, and have advised counsel of the substance of the records for purposes of their argument. 37 Among the police records are records in which A.C. was identified as a victim of an alleged crime, copies of occurrences which did not result in charges, and “field reports” in which AC was named. The society advised it was not seeking access to these records. The remaining records, to which the society is seeking access, involve charges that were withdrawn, stayed, or resulted in dispositions. The bulk of these records fall outside the access periods set out in section 119(2). Access to those records will be decided under section 123 of the Act. However, records in relation to two offences are still within the access periods, and will be decided under section 119(1) (s). 38 The following table sets out in chronological fashion the records to which the society seeks access. Since the disposition date governs the commencement of the access period, I list the records below by disposition date: Offence Offence Disposition Disposition Access Access Date Date Period Period Ends Robbery April 30 June 27 2013 4 months 119 (2)(h) June 27 2012 PTD*/12 2019 months probation Fail to com- June 1 2012 June 27 2013 withdrawn 119 (2)(b)/2 Septem- ply recog months ber 27 2013 Fail to com- June 1 2012 June 27 2013 withdrawn 119 (2)(b) Septem- ply undertak- ber 27 ing 2013 Fail to com- February 12 June 27 2013 12 mos. Pro- 119 (2)(h) June 27 ply recog 2012 bation (in- 2019 dictable) Obstruct po- February 18 June 27 2013 withdrawn 119 (2)(b) August lice 2012 27 2013 Fail to Appear February 15 June 27 2013 withdrawn 119 (2)(b) August 2012 27 2013 Fail to com- October 14, July 19 2012 stayed 119 (2)(d) July 19, ply recog. 2011 2013 206 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Offence Offence Disposition Disposition Access Access Date Date Period Period Ends Fail to com- October 7 July 4 2012 stayed 119 (2)(d) July 4 ply recog 2011 2013 Fail to com- August 19 July 19 2012 stayed 119 (2)(d) July 19 ply recog 2011 2013 Disobey Court August 19 July 19 2012 stayed 119 (2) (d) July 19 Order 2011 2013 Fail to appear June 18 2012 July 20 2012 stayed 119 (2)(d) July 20 2013 Fail to com- December 16 July 20 2012 stayed 119 (2)(d) July 20, ply recog 2011 2013 Threatening October 30 July 12, 2012 stayed 119 (2)(d) July 20, 2011 2013 Fail to com- July 15 2011 July 20 2012 stayed 119 (2)(d) July 20 ply recog 2013 Fail to Appear unknown October 2 Conditional 119 (2)(f) October 2012 discharge 2 2015 Fail to com- April 9 2011 August 4 withdrawn 119 (2)(c) October ply undertak- 2011 4 2011 ing Cause distur- December August 29 Withdrawn/ 119 (2)(c) or October bance 28, 2010 2011 Extrajudicial 119 (2)(a) 29 sanction 2011/EJS date unknown Assault December 28 August 29 Withdrawn/ 119 (2)(c) October 2010 2011 Extrajudicial or119 (2)(a) 29 sanction 2011/EJS date unknown Assault with December 28 August 29 Withdrawn/ 119 (2)(c) or October intent to resist 2010 2011 Extrajudicial 119 (2)(a) 29 arrest Sanction 2011/EJS date unknown Assault September 5, February 11 withdrawn 119 (2)(c) April 11 2010 2011 2011 Notes: Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 207

* Pre-trial detention 39 The above access period calculations are based on the premise that A.C. was not convicted of an additional offence as an adult during the access period (section 115 (6)). There was no evidence the applicant has been charged or convicted of any offence as an adult. 40 As is apparent from the table, the only records which remain within the access periods are the robbery charge from April 30, 2012, and the charge of failing to comply with recognizance from February 12, 2012, upon which the Crown proceeded by indictment. The access period in relation to these records expires June 27, 2019. As a result, access to these records will be decided under section 119. Access to the remaining records, which fall outside the access period, will be governed by section 123.

Section 119 Records 41 Section 119 (1) sets out the categories of persons who may be entitled to, or may be authorized, to have access during the access periods. Sec- tion 119 (1) (n) provides that children’s aid societies may be permitted access to police records which fall within the access periods. The section provides that, on request, a person may be given access to a police record during the specified access period if that person is (n) a member of a department or agency of a government in Canada, or of an organization that is an agent of, or under contract with, the department or agency, who is ... (ii) engaged in the supervision or care of the young person, whether as a young person or an adult, or in an investigation related to the young person under an Act of the legislature of a province respecting child welfare, 42 Although the question was not argued before me, I have considered whether this section applies to the application in this case. 43 On its face, subsection119(1)(n) appears designed to facilitate access to YCJA records by child protection agencies involved in the supervision or care of young persons, or former young persons. Child welfare agencies have an interest in the records for such purposes. A.C. is no longer in the care of the society, nor is she subject to society supervision as a result of a child protection order. Because her son is the subject of child protection proceedings, absent a crown wardship order, or the termination of the proceedings, A.C.’s parenting will likely be subject to some 208 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

form of society supervision. In my view supervision of her as a parent is not the kind of “supervision” contemplated by this sub-section. 44 In any event, and if I am wrong in my interpretation, the society’s ability to access the records does not change. Because all access to YCJA police records is discretionary, rather than mandatory, even if the applicant may have a right to request access to police records under s.119 (1) (n), the police have a right to decline production. Justice Doherty described this process in L. (S.) v. B. (N.), [2005] O.J. No. 1411 (Ont. C.A.), in relation to a request for access to YCJA records by a victim of an offence. From the perspective of section 119(1), a victim is in the same position in relation to access to police records as the society applying under section 119(1)(n). Justice Doherty said that A victim could first request access to the records in the court and in the possession of the Crown Attorney. If dissatisfied with the access granted pursuant to those requests, counsel for the victim could bring a motion under s. 119(1) (s) for more complete access. (par. 51) 45 As the records keeper, the Toronto Police Service (“TPS”) was served with the Society’s application for access to the records. The TPS did not appear on the application, but a letter from counsel for the TPS accompanied the subpoenaed documents. The letter states, inter alia, that With respect to the application, the TPS takes no position as to the likely relevance of the enclosed YCJA records and defers to the Court on this matter. As a result, the society’s application for access to records which are within the section 119 access period will be determined under section 119(1) (s) of the Act. 46 An order under section 119 (1) (s) also better serves the society’s purposes. As Blacklock, J. noted in G. (A.) (Litigation Guardian of) v. F. (S.), 2007 ONCJ 577 (Ont. C.J.), ... the fact that these parties have a statutory right to access these documents does not mean by virtue of that right that they are entitled to reveal the document’s content to others in the context of civil litigation or otherwise. When a party is seeking access to documents for a purpose which will of necessity expose the document or its contents to a broader audience, it is appropriate in my view, for the court to consider the matter under section 119(s). This is because what is being sought in that situation is not just that the victim have access personally. In reality access is being sought for the victim and a class of other persons. In this case the additional class of persons would be Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 209

those who may of necessity have access to the documents in issue during the course of the civil litigation. (par. 25) 47 All of the foregoing leads me to the conclusion that the application for the police records within the access periods will be governed by section 119(1)(s).

Records Within the Access Period 48 As I have indicated, there are two records within the access period. The first is a record in relation to a charge of robbery while armed with a firearm, with an offence date of April 30, 2012. It is important to note with respect to this charge, that A.C. pled guilty to the lesser offence of robbery. The robbery involved a home invasion by several armed males. There is no allegation that the applicant possessed or used a weapon during this robbery. 49 The second record within the access period is related to a charge of failing to comply with recognizance, with an offence date of February 12 to 18, 2012, upon which the crown proceeded by indictment. The breach of recognizance was a failure to reside at the address specified in the recognizance. 50 On June 27, 2013, A.C. was sentenced on both charges to a period of probation of 12 months, taking into account four months A.C. spent in pre-trial detention. The youth sentence was completed at the end of the 12 month probation period, June 27, 2014. She was not found guilty of an offence after these dispositions. The access period expires June 27, 2019.

Section 119(1)(s) 51 Section 119 (1) (s) provides that 119 (1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record kept under section 114, and may be given access to a record kept under sections 115 and 116: (s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is ... (ii) desirable in the interest of the proper administration of justice. 210 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

... 52 To succeed in its application under section 119 (1) (s), the society must establish that it has a “valid interest” in the record, to the extent directed by the court, and that access to the record is “desirable in the interest of the proper administration of justice”. 53 A “valid interest” in a record is an interest in the record which is legitimate and relevant to the purpose for which the record is sought. In this case access is sought for purposes of a child protection proceeding. The society is seeking to establish that its intervention is necessary to protect the health and well-being of a child. Evidence that the applicant was found guilty on a charge of robbery, an offence of violence which, in this case involved a home invasion and the presence of guns, is prima facie relevant to the issue of risk to the child. 54 The society also seeks access to the breach of recognizance charge from 2012. The society argues that access to this record is relevant to the question of A.C.’s ability to comply with court orders which will be an issue in the proceeding. This possibility is also sufficient to find the society has a valid interest in the proceedings. As Binnie, J. pointed out in N. (F.), Re, [2000] 1 S.C.R. 880 (S.C.C.), A “valid interest” has been held to include institution of civil proceedings: Re Smith and Clerk of Youth Court, (1986) CanLII 2858 (ON SC), 31 C.C.C. (3d) 27 (Ont. U.F. Ct.) (par 34) 55 My finding that the society has a valid interest in the record does not, however, dispose of the application. The society must also satisfy the court that access to the record is desirable in the interest of the proper administration of justice. This test is a limiting factor. 56 The requirement that access be desirable in the interest of the proper administration of justice brings us to the balancing of interests required under Part 6 of the Act. In L. (S.) v. B. (N.), [2005] O.J. No. 1411 (Ont. C.A.), Doherty, J. said As Cory J.A. observed in Cook, Parliament and provincial legisla- tures can validly limit access by civil litigants to documents in the possession of entities that are not parties to that litigation. While such legislation places some restraint on the ability of litigants to obtain relevant information, it serves other equally valid public policy concerns: see Babcock v. Canada (Attorney General), 2002 SCC 57 (CanLII), [2002] 3 S.C.R. 3 at paras. 58-60 (my emphasis) 57 In applications for access to YCJA records, the public policy concern in the legislation is the “premium placed on the privacy interests of all Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 211

young persons” involved in proceedings under the YCJA (L. (S.) v. B. (N.), par. 36). Thus the society’s interest in the child protection litigation must be balanced with A.C.’s privacy interests within the youth justice system. 58 A.C. is an adult and a mother. The records were created when she herself was a vulnerable youth. A.C.’s child is also vulnerable and requires protection. A court will need to assess A.C.’s capacities in order to determine whether she can be entrusted with the care of her child. The records may assist in that exercise. I leave it to the child protection court to determine the weight to be given to the evidence of this offence, considering A.C.’s relatively minor role, the date of the offence (four years ago), and the applicant’s age at the time (sixteen). 59 The threshold for access to records during the access period is low, relative to the threshold which applies once the access period has expired. Access must simply be “desirable” in the interest of the proper administration of justice. In considering this issue, I have taken into account the fact that the child protection proceedings are subject to the many privacy protections I have described earlier, which limit publicity and publication in child protection proceedings. 60 The YCJA records may not reflect the person A.C. is today, as she maintains, but her privacy interests must yield to the imperatives of the child protection case. To quote Smith, J. in G. (R.), Re, [1999] B.C.J. No. 1106 (B.C. Prov. Ct.), As important as privacy is for youth records under the YOA, there is an overriding importance, in certain circumstances, of allowing disclosure in order to protect other children. 61 I find that the society has met the test in section 119(1)(s) and access will be granted to the two records within the access period.

Section 123 Records 62 I turn then to the remaining records, all of which fall outside the access period. Section 123 applies where access is sought to these records. 63 Section 123 provides a more stringent test than section 119(1)(s): A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person, (a) if the youth justice court judge is satisfied that 212 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

(i) the person has a valid and substantial interest in the record or part, (ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice, and (iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province... 64 Under section 123, the applicant’s interest must be “valid and substantial”, rather than merely valid, and the court must be satisfied that access is “necessary”, rather than simply “desirable,” in the interest of the proper administration of justice. As Katarynych, J. stated in D. (J.), Re, [2009] O.J. No. 6384 (Ont. C.J.), I cannot use the principles of s. 119 to inform application of the criteria required by s. 123 of the Act to this adjudication. The fact that a victim might have had an access to information under s. 119 of the Act, had the victim reached for that access within the statutory access period, does not mean that the access is available after the expiry of the access period. The test prescribed by the Act is a stringent test. Access to a record that is “desirable” in the interest of the proper administration of justice is not synonym for access that is “necessary”. Section 123 rests nothing in “desirability”. Access to a record because the interest in it is shown to be valid is not enough under s. 123 of the Act. An interest in a record that is “valid” may or may not rise to the level of an interest that is both “valid” and “substantial. Moreover, the task in an application under s. 123 is to show that it is “necessary” for access to be given to the record or part of it in the interest of the proper administration of justice. See YCJA s. 123 (1) (a).(emphasis in the original) 65 The distinction between the tests for the two sections exists for a number of reasons: Firstly, as we have seen, the effect of the end of access periods means that ... no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Of- fenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. (s.128(1)) Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 213

66 Secondly, the end of the access periods also means, generally, that the records will be destroyed or archived under section 128.1

1 Effect of end of access periods 128 (1) Subject to sections 123, 124 and 126, after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offend- ers Act, chapter Y-1 of the Revised Statutes of Canada, 1985. Disposal of records (2) Subject to paragraph 125(7)(c), any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for any province, at any time before or after the end of the applicable period set out in section 119. Disposal of R.C.M.P. records (3) All records kept under subsection 115(3) shall be destroyed or, if the Libra- rian and Archivist of Canada requires it, transmitted to the Librarian and Archi- vist, at the end of the applicable period set out in section 119 or 120. Purging CPIC (4) The Commissioner of the Royal Canadian Mounted Police shall remove a record from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police at the end of the applicable period referred to in section 119; however, information relating to a prohibition order made under an Act of Parliament or the legislature of a province shall be removed only at the end of the period for which the order is in force. Exception (5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect. Authority to inspect (6) The Librarian and Archivist of Canada may, at any time, inspect records kept under sections 114 to 116 that are under the control of a government institution as defined in section 2 of the Library and Archives of Canada Act, and the archivist for a province may at any time inspect any records kept under those sections 214 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

67 While section 128 is subject to section 123, the end of the access period nonetheless entails that records will be more difficult to access under section 123. Making access to the records more difficult is consistent with the rehabilitative objectives of the Act, which require that youth be protected from premature labelling as “outlaws” ...thereby facilitat[ing] their rehabilitation and their reintegration into the law-abiding community: Re F.(N.) (2000), 2000 SCC 35 (Can- LII), 146 C.C.C. (3d) 1 at paras. 14-15 (S.C.C.); YCJA, s. 3(1)(a)(ii), s. 3(1)(b)(i), s. 3(1)(b)(iii). S.L. v. N.B., par.35) 68 The overall scheme of Part 6 is intended to protect youth from the collateral harms of the justice system created by criminal records. Youth should not be followed by a record acquired during their adolescent years. Indeed the variations in access periods are themselves an indicator of relevance. The access periods vary with the gravity of the offence. The shorter the access period, the less likely it will have relevance to the proper administration of justice in a future proceeding. 69 Bearing this interpretation in mind, I turn to the section 123 records in this case. 70 These records are comprised of 18 dispositions respecting offences alleged to have occurred between 2010 and 2012. A.C. was born in April, 1996, so the records span a period when she was between 14 and 16 years of age. Of the records, nine relate to charges that were withdrawn, and eight to charges that were stayed. Three of the withdrawals were associated with extrajudicial sanctions, presumably, but not necessarily, completed prior to the withdrawal. Only one record arises from an actual adjudication: a disposition of a conditional discharge on a fail to appear charge with an offence date of October 2, 2012.

that the archivist is authorized to inspect under any Act of the legislature of the province. (7) For the purposes of subsections (2) and (3), destroy, in respect of a record, means (a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and (b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form. 2002, c. 1, s. 128; 2004, c. 11, s. 49; 2012, c. 1, s. 159. Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 215

71 What can we conclude about the records relating to the 17 charges that resulted in a stay or withdrawal? In my view, very little of relevance to the child protection proceedings. Withdrawals and stays involve an exercise of crown discretion not to proceed with a charge. No reason need be given. Where a charge is withdrawn, a youth is entitled to the presumption of innocence. Insofar as a stay is concerned, Section 579(2) of the Criminal Code provides that where the proceedings are not recommenced within one year of the date of entry, “the proceedings shall be deemed never to have been commenced.” None of the proceedings in respect of these charges were recommenced. Again, A.C. retains the presumption of innocence. 72 Extrajudicial sanctions were imposed in three of the seventeen withdrawn or stayed matters. It appears that these extrajudicial sanctions were imposed in 2011 in relations to alleged offences from 2010, when A.C. was fourteen. Extrajudicial sanctions do involve an acceptance by a young person of “the act or the omission that forms the basis of the offence”. However in my view they are of little relevance to the child protection proceedings. 73 First of all, the sanctions are extrajudicial. This means that the allegations which led to the sanctions have never been subject to judicial scrutiny. The facts underlying the offence, for which the young person took responsibility, cannot be ascertained with any measure of certainty. Sec- ondly, the access periods for the records of the extrajudicial sanctions in this case have expired. In the sentencing context, no reference to these reference to these sanctions is permitted in a pre-sentence report.2 This means that the imposition of an extrajudicial sanction is not considered

2 Section s.40 sets out the requirements for the contents of a pre-sentence report. Section 40 (2) (iv) provides that (2) A pre-sentence report made in respect of a young person shall, subject to subsection (3), be in writing and shall include the following, to the extent that it is relevant to the purpose and principles of sentencing set out in section 38 and to the restrictions on custody set out in section 39: ... (iv) subject to subsection 119(2) (period of access to records), the history of ... extrajudicial sanctions used to deal with the young person and the response of the young person to those measures or sanctions... 216 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

relevant in a sentencing context after the access period has expired. Thirdly, and most conclusively, section 10(4) of the Act provides that Any admission, confession or statement accepting responsibility for a given act or omission that is made by a young person as a condition of being dealt with by extrajudicial measures is inadmissible in evidence against any young person in civil or criminal proceedings. 74 The last record to canvass in this application is the record of the fail to appear charge that resulted in a conditional discharge. This is the only offence of failing to appear and, considering the penalty imposed, was minor. 75 In considering the number of charges A.C. accumulated, it is important to bear in mind that A.C., who resided in group homes for most of her adolescence, was more likely to come to police attention and arrest, than a young person who ran from her parent’s home. The sheer number of the charges does not thereby make them more relevant. 76 Considering all of the foregoing, it is my view that the society’s application under section 123 must fail on the issue of “valid and substantial interest”, alone. The society cannot have a valid and substantial interest in a record that has little or no probative value. 77 If I am wrong in this conclusion, I find that access to the record is not necessary in the interest of the proper administration of justice. 78 Firstly, A.C. was in the care of the society throughout the years these records were accumulated, and its own records will provide direct evidence of A.C.’s interactions with the police. The police records almost entirely consist of hearsay and opinion and are not reliable. Furthermore, they do not assist in answering the questions formulated by the society in its application. Finally, in my view, a record of arrests and proceedings that did not result in findings of guilt has greater prejudicial effect than probative value. As such the proper administration of justice would not be served by making the records accessible. 79 Young persons who are dealt with under the Youth Criminal Justice Act are entitled to a presumption of diminished moral culpability as a principle of fundamental justice. This principle is, in part, based on the recognition that “youth-ful offenders who act out of immaturity, impul- siveness, or other illconsidered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals.” R. v. B. (D.), [2008] 2 S.C.R. 3 (S.C.C.), (par.63). Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 217

80 In B. (D.) Justice Abella, quotes Professor Bala, who described the YCJA as: ...premised on a recognition that to be a youth is to be in a state of “diminished responsibility” in a moral and intellectual sense. Adoles- cents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or selfawareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. ... This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their ac- countability should, in general, be more limited than is the case for adults. 81 Youth records should be regarded in this light. It is important to reiterate that they are distinguishable from adult criminal records. 82 The society has had an opportunity to observe A.C. since she was thirteen years of age. They have been investigating her abilities as a parent since J.W. was born. They likely have a great deal of evidence upon which to base their on-going assessment of her parenting abilities. Should the matter proceed to trial, the case will be decided based on probative evidence. What the production of police records has revealed is a large number of charges and very few findings of guilt. 83 I have indicated earlier, records applications involve a balancing of a valid public interest and the privacy interests of young people dealt with under the YCJA. There is a great public interest in child protection proceedings, and there is also a great public interest in maintaining the privacy of records generated when young people are the subject of police investigations and criminal prosecutions. It is fair for A.C. to say “I am not the person that I was when I was in care.” Although she is an adult, A.C. remains entitled to the privacy protections under the Act. In my view the society does not have a valid and substantial interest in the records governed by section 123, and access to the records is not necessary in the interest of the proper administration of justice. 84 I have granted the society access to the records regarding the robbery and a charge of failing to comply with recognizance that was subject to the five year access period. The society wishes to use the documents, in 218 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

part, for purposes of a parenting capacity assessment. Indeed, Society counsel indicated she intends to provide the assessor with copies of all the records. 85 The fact that access to the society is granted with respect to those records does not mean that any third party chosen by the society society is entitled to access to them. The police records are not eye witness accounts. They contain a great deal of hearsay, and there is no guarantee of their credibility, reliability, or accuracy. In my view this use of the records would be prejudicial to A.C., and may jeopardize her privacy under the Act. 86 An order granting access under section 119 (1) (s) does not entitle the society to provide access to these records to third parties. This proposition flows from section 129 of the Act which provides as follows: No subsequent disclosure 129 No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. 87 I am not prepared to authorize further distribution to the assessor of the documents beyond the children’s aid society and A.C.’s counsel. 88 My Order is as follows: 1. The Children’s Aid Society of Toronto per M. Cheung, counsel, is granted access to the youth records attached hereto (being the records in respect of the robbery charge with offence date April 30, 2012, and the fail to comply recognizance charge with offence date between and including February 12, 2012 and February 18, 20120) and marked as “Schedule ‘A’”; 2. The balance of the application is dismissed and there will be no access to any other police records dealt with in the application; 3. The records are released to the Society for purposes of use in child protection proceedings File No. C82107/15, regarding the child J.C., born October 20,2015. Such use does not include distribution to a person or persons involved in any assessments pursuant to section 54 of the Child and Family Services Act or retained for purposes of a psychological or psychiatric assessment of A.C.; 4. The records may not be possessed, distributed, published, or used in any way other than as required for the child protection proceeding; Children’s Aid Society of Toronto v. C. (A.) M.L. Cohen J. 219

5. Counsel for the Children’s Aid Society shall forthwith provide copies of the records to counsel for the respondents in the proceeding. The copies of the records are to be maintained in counsels’ file under conditions of strict confidentiality. The records may not be possessed, distributed, published, or used in any way other than as required for the child protection proceeding. 6. The records are not to be copied for the Respondents, who may review the records in the presence of their counsel in the proceeding. If the respondents become unrepresented, they may arrange to view the documents at the society offices. No copies or images of the records are to be made by the respondents; 7. The society shall keep a copy of the records within its legal file for viewing by the service team in the legal department and the society will not upload the records to the remainder of the file or to any data base; 8. Any issue regarding the admissibility of the records in the child protection proceeding will be determined by the Court having car- riage of the proceeding; 9. The records are to be destroyed at the conclusion of the proceeding regarding J.C. Any further access to the records will be determined by a Youth Justice Court Judge on a fresh application. Motion granted in part. 220 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: S. (R.) v. M. (M.S.)] R.S., Applicant and M.S.M., Respondent Ontario Court of Justice Docket: D81475/15 2016 ONCJ 297 S.B. Sherr J. Heard: May 20, 2016 Judgment: May 24, 2016 Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Determination of spouse’s annual income — Imputed income –––– Parties married in Pakistan, mother had child there, and father then sponsored mother and child to come to Canada — Parties separated after 10 years of marriage, and temporary order was made giving mother custody of child — At first case conference, father represented that his income was $22,900 per annum — However, on father’s sponsorship application he represented his annual income to be $64,200, and on mortgage application he represented his annual income to be $35,000 — Father deposed that he lied about his income in these instances to get mother and child into Canada and to qualify for mortgage — Mother brought application for temporary orders for child support and spousal support — Application granted — Father’s annual income for support purposes was imputed to be $53,300 per annum, which was total of imputed employment income of $42,500 and rental income of $10,800 that father admitted earning — Employment income imputed to father was calculated based on pay stubs indicating that he worked 50 hours per week at $17 per hour — Fa- ther’s evidence regarding his income could not be trusted — Evidence indicated that father would represent his financial information in any manner that he felt was to his advantage — Father was clearly earning or was capable of earning much more income than he had reported to court — It was questionable whether father had arm’s length relationship with his employers given inconsistencies between income stated in employer’s letters as compared to father’s pay stubs and income tax return. Family law –––– Support — Child support under federal and provincial guidelines — Determination of spouse’s annual income — Imputed income — Financial disclosure –––– Parties married in Pakistan, mother had child there, and father then sponsored mother and child to come to Canada — Parties separated after 10 years of marriage, and temporary order was made giving mother custody of child — At first case conference, father represented that his income was $22,900 per annum — However, on father’s sponsorship appli- S. (R.) v. M. (M.S.) 221 cation he represented his annual income to be $64,200, and on mortgage application he represented his annual income to be $35,000 — Father deposed that he lied about his income in these instances to get mother and child into Canada and to qualify for mortgage — Mother brought application for temporary orders for child support and spousal support — Application granted — Father’s annual income for support purposes was imputed to be $53,300 per annum, which was total of imputed employment income of $42,500 and rental income of $10,800 that father admitted earning — Employment income imputed to father was calculated based on pay stubs indicating that he worked 50 hours per week at $17 per hour — Father’s evidence regarding his income could not be trusted — Evi- dence indicated that father would represent his financial information in any manner that he felt was to his advantage — Father was clearly earning or was capable of earning much more income than he had reported to court — It was questionable whether father had arm’s length relationship with his employers given inconsistencies between income stated in employer’s letters as compared to father’s pay stubs and income tax return. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Interim support — Entitlement –––– Parties married in Paki- stan, mother had child there, and father then sponsored mother and child to come to Canada — Four months after mother and child arrived in Canada, parties separated after 10 years of marriage — Temporary order was made giving mother custody of child — Mother brought application for temporary order for spousal support — Application granted — Father was ordered to pay temporary spousal support of $1,150 per month based on imputed income of $53,300 per annum — Mother established her entitlement to temporary spousal support on both compensatory and non-compensatory basis — Mother was sole caregiver, which would likely compromise her ability to earn income — Immigration sponsorship agreement was strong factor in favour of ordering spousal support — Mother and child had become economically vulnerable due to having being sponsored to come to Canada by father and relationship breaking down — Mother had no family support in Canada, she and child were receiving public assistance, and there was no evidence that mother had ability to be self-supporting on temporary basis — Father had ability to support mother and child given his income and given that he had no other support obligations or unusual expenses. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Interim support — Quantum –––– Parties married in Pakistan, mother had child there, and father then sponsored mother and child to come to Canada — Four months after mother and child arrived in Canada, parties separated after 10 years of marriage — Temporary order was made giving mother custody of child — Mother brought application for temporary order for spousal support — Application granted — Father ordered to pay temporary spousal sup- 222 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

port of $1,150 per month based on imputed income of $53,300 per annum — Quantum of support ordered was at high end of range suggested by Spousal Support Advisory Guidelines (“SSAG”) based on father’s income and mother being on social assistance — There were several reasons for ordering support at high end of range — Mother had prima facie compensatory claim for spousal support — Mother was in particularly vulnerable economic position — Father sponsored mother to come to Canada — Mother needed support towards high end range of SSAG range to meet her basic needs — Taxpayer should not be supporting mother, to extent that father was able to do so. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Retroactivity of order –––– Parties married in Pakistan in 2005, mother had child there, and father then sponsored mother and child to come to Canada — Mother and child arrived in Canada in February 2015 — Parties separated on June 14, 2015, and temporary order was made giving mother custody of child — Mother brought application for temporary order for spousal support — Application granted — Father ordered to pay temporary spousal support of $1,150 per month based on his income of $53,300 per annum — Support was ordered to start on June 15, 2015, which was 11 months prior to date of judgment — This was case where retroactive order on temporary motion was justified — Period of retroactive support sought was short, mother and child required support now, and mother had overwhelming case for retroactive support based on factors from leading case — Mother moved promptly to obtain support once she had financial disclosure — Father had engaged in blameworthy conduct by misrepresenting his income and assets and delaying full financial disclosure — Mother and child were living subsistence lifestyle as result of receiving inadequate support from father — It did not appear that father would suffer hardship if retroactive order was made given that he had equity in his home. Family law –––– Support — Child support under federal and provincial guidelines — Retroactive award — Multiple factors considered –––– Parties married in Pakistan in 2005, mother had child there, and father then sponsored mother and child to come to Canada — Mother and child arrived in Canada in February 2015 — Parties separated on June 14, 2015, and temporary order was made giving mother custody of child — Mother brought application for temporary order for child support — Application granted — Father was ordered to pay child support in amount of $482 per month, which was Child Support Guide- lines table amount based on his income of $53,300 per annum — Support was ordered to start on June 15, 2015, which was 11 months prior to date of judgment — This was case where retroactive order on temporary motion was justified — Period of retroactive support sought was short, mother and child required support now, and mother had overwhelming case for retroactive support based on factors from leading case — Mother moved promptly to obtain support once she had financial disclosure — Father had engaged in blameworthy conduct by S. (R.) v. M. (M.S.) 223 misrepresenting his income and assets and delaying full financial disclosure — Mother and child were living subsistence lifestyle as result of receiving inadequate support from father — It did not appear that father would suffer hardship if retroactive order was made given that he had equity in his home. Family law –––– Restraining orders –––– Parties married in Pakistan, mother had child there, and father then sponsored mother and child to come to Can- ada — Four months after mother and child arrived in Canada, parties separated — Temporary order was made giving mother custody of child — Mother alleged that father had been violent and threatening during marriage, and that after separation, he threatened to kill her and instigated harassment of her relatives in Pakistan — Mother brought application for order restraining father from coming within 500 metres of anywhere that she or child might reasonably be expected to be — Application granted — Mother’s fear of father was reasonable — Even if extent of mother’s fear of father was subjective, it was legitimate — Mother feared for her psychological safety as well as her physical safety — Terms of restraining order sought by mother were reasonable and proportionate — It was recognized that mother’s allegations were denied and untested by cross-examination, were based on oral statements, and were not supported by documentation — However, evidence of mother was preferred to evidence of father at this stage — Father was not credible witness given that he had misrepresented his income to court, to federal government, and on mortgage application. Cases considered by S.B. Sherr J.: Bracklow v. Bracklow (1999), 1999 CarswellBC 532, 1999 CarswellBC 533, 169 D.L.R. (4th) 577, [1999] S.C.J. No. 14, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196 W.A.C. 211, [1999] 1 S.C.R. 420, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, [1999] R.D.F. 203 (S.C.C.) — referred to Camilleri v. Camilleri (2001), 2001 CarswellOnt 2329, 148 O.A.C. 141, 19 R.F.L. (5th) 15, [2001] O.J. No. 2602, [2001] O.T.C. 361 (Ont. Div. Ct.) — considered Cardoso v. Cardoso (2013), 2013 ONSC 5092, 2013 CarswellOnt 11144 (Ont. S.C.J.) — referred to Carty-Pusey v. Pusey (2015), 2015 ONCJ 382, 2015 CarswellOnt 10607 (Ont. C.J.) — considered Chaitas v. Christopoulos (2004), 2004 CarswellOnt 4956, 12 R.F.L. (6th) 43, [2004] O.J. No. 907 (Ont. S.C.J.) — referred to Dickie v. Dickie (2001), 2001 CarswellOnt 2551, 17 R.F.L. (5th) 304, [2001] O.J. No. 2885 (Ont. S.C.J.) — referred to Elgner v. Elgner (2010), 2010 ONSC 794, 2010 CarswellOnt 1113, [2010] O.J. No. 562 (Ont. Div. Ct.) — referred to 224 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Fisher v. Fisher (2008), 2008 ONCA 11, 2008 CarswellOnt 43, [2008] O.J. No. 38, 88 O.R. (3d) 241, 47 R.F.L. (6th) 235, 232 O.A.C. 213, 288 D.L.R. (4th) 513 (Ont. C.A.) — considered Gidey v. Abay (2007), 2007 CarswellOnt 6145, [2007] O.J. No. 3693 (Ont. S.C.J.) — referred to Gutierrez v. Petten (2011), 2011 ONCJ 549, 2011 CarswellOnt 13900 (Ont. C.J.) — considered Hubbard v. Gore-Hickman (2005), 2005 SKQB 265, 2005 CarswellSask 402, [2005] S.J. No. 383, 266 Sask. R. 192, [2005] 11 W.W.R. 489, 19 R.F.L. (6th) 55 (Sask. Q.B.) — considered Javed v. Kaukab (2010), 2010 ONCJ 606, 2010 CarswellOnt 9697 (Ont. C.J.) — considered Kerr v. Baranow (2011), 2011 CarswellBC 240, 2011 CarswellBC 241, 14 B.C.L.R. (5th) 203, 411 N.R. 200, 328 D.L.R. (4th) 577, [2011] S.C.J. No. 10, [2011] A.C.S. No. 10, 93 R.F.L. (6th) 1, 274 O.A.C. 1, [2011] 1 S.C.R. 269, (sub nom. Vanasse v. Seguin) 108 O.R. (3d) 399, 509 W.A.C. 1, 2011 SCC 10, 64 E.T.R. (3d) 1, 300 B.C.A.C. 1, [2011] 3 W.W.R. 575 (S.C.C.) — followed Kowalski v. Grant (2007), 2007 MBQB 235, 2007 CarswellMan 422, 43 R.F.L. (6th) 344, 219 Man. R. (2d) 260, [2007] M.J. No. 386 (Man. Q.B.) — followed Kuznetsova v. Flores (2016), 2016 ONCJ 203, 2016 CarswellOnt 5613, [2016] O.J. No. 1912 (Ont. C.J.) — considered Lakhani v. Lakhani (2003), 2003 CarswellOnt 3928, 43 R.F.L. (5th) 125, [2003] O.J. No. 4041 (Ont. S.C.J.) — referred to M. (D.R.) v. M. (R.B.) (2006), 2006 BCSC 1921, 2006 CarswellBC 3177, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299 (B.C. S.C.) — referred to M. (T.) v. G. (M.A.) (2006), 2006 BCPC 604, 2006 CarswellBC 3438, [2006] B.C.J. No. 3479 (B.C. Prov. Ct.) — referred to MacKinnon v. MacKinnon (2005), 2005 CarswellOnt 1536, 13 R.F.L. (6th) 221, [2005] O.J. No. 1552, 75 O.R. (3d) 175, 199 O.A.C. 353, 256 D.L.R. (4th) 385 (Ont. C.A.) — referred to McCall v. Res (2013), 2013 ONCJ 254, 2013 CarswellOnt 5865 (Ont. C.J.) — followed Orsini v. Orsini (2016), 2016 ONSC 3332, 2016 CarswellOnt 7928 (Ont. S.C.J.) — referred to Rioux v. Rioux (2009), 2009 ONCA 569, 2009 CarswellOnt 4077, 66 R.F.L. (6th) 256, 252 O.A.C. 126, 97 O.R. (3d) 102, [2009] O.J. No. 2949 (Ont. C.A.) — referred to Robles v. Kuhn (2009), 2009 BCSC 1163, 2009 CarswellBC 2239, [2009] B.C.J. No. 1699 (B.C. Master) — considered S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2006] S.C.J. No. 37, 61 Alta. L.R. (4th) 1, 351 N.R. 201, S. (R.) v. M. (M.S.) S.B. Sherr J. 225

[2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231, [2005] S.C.C.A. No. 100 (S.C.C.) — followed Samis (Litigation Guardian of) v. Samis (2011), 2011 ONCJ 273, 2011 Cars- wellOnt 3637, 2 R.F.L. (7th) 476 (Ont. C.J.) — referred to Trombetta v. Trombetta (2011), 2011 ONSC 394, 2011 CarswellOnt 318, [2011] O.J. No. 281 (Ont. S.C.J.) — referred to Turk v. Turk (2008), 2008 CarswellOnt 512, [2008] O.J. No. 397, 50 R.F.L. (6th) 211 (Ont. S.C.J.) — referred to Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 s. 30 — considered s. 33(8) — considered s. 33(9) — considered s. 34(1)(f) — considered Regulations considered: Family Law Act, R.S.O. 1990, c. F.3 Child Support Guidelines, O. Reg. 391/97 Generally — referred to

APPLICATION by mother for temporary child and spousal support and for restraining order against father.

Lauren Israel, for Applicant Wiri Kapurura, for Respondent Rita Liang, for Assignee, City of Toronto

S.B. Sherr J.:

1 The applicant (the mother) has brought a motion seeking temporary orders for child support and spousal support and a temporary restraining order against the respondent (the father). 2 The mother asks the court to impute the father’s income at $62,500 per annum for support purposes. She asks that the support orders start as of June 15, 2015. 226 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

3 The father asks the court to dismiss the mother’s motion for spousal support and a restraining order. He proposes to pay ongoing temporary child support based on an annual income of $35,000.1 4 The issues for this court to determine on this motion are: a) What is the father’s income for the purpose of temporary child and spousal support? b) Is the mother entitled to temporary spousal support? c) If so, what amount of temporary spousal support should the father pay? d) When should temporary support start? e) Should a temporary restraining order be made against the father?

Part Two - Background facts 5 The mother is 35 years old. The father is 37 years old. 6 The parties are first cousins. 7 The parties were married in Pakistan on March 20, 2005. 8 The father moved to Canada about one month after the marriage and has continued to live here. He went back to Pakistan several times to visit his family. 9 The mother stayed in Pakistan and lived with the father’s parents. 10 The parties have one child together (the child). He was born in Paki- stan in 2007. He has always lived with the mother. 11 The father sponsored the mother and the child to come to Canada. They arrived in Canada on February 15, 2015 and lived together with the father. 12 The parties separated on June 14, 2015. The mother took the child and they went to a shelter. 13 The parties have remained separated. 14 The mother issued her application on August 25, 2015. 15 The parties consented to a temporary order on November 30, 2015. The mother has custody of the child and the father has access to the child, supervised at the Toronto Supervised Access Centre. On a without

1 The father submitted that he was prepared to pay support at this income level even though he was only earning about $31,000 per annum. S. (R.) v. M. (M.S.) S.B. Sherr J. 227

prejudice basis, the father pays child support of $183 per month to the mother, based on his represented income of $22,900 per annum. The start date for support was September 1, 2015. The parties also agreed to a detailed financial disclosure order for the father. The father was given leave to bring a motion regarding temporary access. 16 The father did not bring a motion to increase his access. He did not comply with the financial disclosure order by the return date of March 31, 2016. The mother was given leave to bring this motion and was given permission to move to strike the father’s pleadings if his financial disclosure was not provided within 14 days. The court also endorsed that the father would be required to pay the costs of the March 31, 2016 court appearance - the issue of quantum and repayment to be determined on the return date. 17 The father subsequently changed counsel and provided the financial disclosure ordered. 18 The mother is in receipt of social assistance. She has assigned her interest in support to the City of Toronto (the assignee).

Part Three - Assessment of the father’s income 19 The father’s evidence about his income was not reliable or credible. 20 The father claims that he is employed as a general labourer in an au- tomotive garage. 21 In his first financial statement, sworn on November 6, 2015, the father deposed that he earns $19,800 per annum. He attached a letter from his present employer in support of this. He deposed that he did not own any property. He did not declare any rental income. 22 The father provided notices of assessment stating that his gross income in the three prior years was as follows: a) 2014 - $17,328 b) 2013 - $22,750 c) 2012 - $21,880 23 At the first case conference held on November 30, 2015, the father represented his income was $22,900 per annum. The temporary support order was based on this representation. 24 The mother subsequently learned that the father had purchased a home in 2015, with a down-payment of about $100,000. Although the father had been living in this property when he swore his first financial 228 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

statement, he used a different address on his court papers. It is a reasonable inference that he did not want the mother or the court to know about this property. 25 The mother produced the sponsorship application of the father dated July 1, 2012. The father represented in his application that he is employed as a mechanic. He claimed an annual income of $45,000 working for one company and self-employed annual income of $19,200, for a total annual income of $64,200. The father had attached a letter from his employer confirming that he worked for them as a mechanic and earned $25 per hour on a full-time basis. 26 This information bears no resemblance to the annual income of $21,880 that the father reported on his 2012 income tax return. 27 The father deposed that he lied to the federal government about his income to get the mother and the child into Canada. If so, it appears that his employer also lied for him. 28 The father was required to disclose his mortgage application. In this application, dated in 2015, the father represented his annual income was $35,000. There is a co-signer for this mortgage. The co-signer is someone who works with the father. 29 The father submitted that he misrepresented his income to the mortgagee to qualify for the mortgage. 30 The father filed a second financial statement sworn on April 13, 2016. In this financial statement, he reported his employment income at $20,400 per annum. 31 The father revealed his home ownership in this financial statement. He is the sole owner of the property. He purchased it on July 27, 2015. He deposed that the current value of the property is $485,000.2 The father also declared annual rental income from this property of $10,800. 32 The father produced a letter from his employer representing that he is paid $425 per week. This letter was clearly unreliable because it also stated that the father is paid $17 per hour and works 50 hours per week. This amounts to $850 per week.

2 This valuation of the property is probably low. The mortgage application values the property at $485,000. The property value has likely increased since this application was made. S. (R.) v. M. (M.S.) S.B. Sherr J. 229

33 The three employee pay stubs (all from 2016) produced by the father also made little sense. They state that the father’s regular pay is 50 hours per week @ $17 per hour. This comes to $850 per week. However, the stubs also state that his net pay is $850 for the pay period (appearing to be two weeks). No deductions for tax, CPP or employment insurance are recorded on these stubs. 34 The father was unable to explain these inconsistencies. 35 The father claimed that he paid for his home by borrowing money from family and friends and through his own savings. Loan agreements were not produced. 36 The evidence indicates that the father will represent his financial information in any manner that he feels is to his advantage. His evidence cannot be trusted. He is clearly earning or is capable of earning much more income than he has reported to the court. 37 The evidence also makes the court question whether the father has an arm’s length relationship with his employers. The first employer’s letter in support of the sponsorship application bore no resemblance to the income reported by the father in his income tax returns. The pay stubs and employment letter from the father’s current employer are internally inconsistent. 38 At this preliminary stage, the court will fix the father’s income at $53,300 per annum for support purposes. This is based on his employer’s representation that he works 100 hours every two weeks at $17 per hour.3 Allowing two weeks each year for vacation, this comes to an annual income of $42,500 ($850 × 50). The court has added $10,800 for the annual rental income that the father admitted he is earning to come to the total amount. 39 The Child Support Guidelines (the guidelines) table amount for one child at this income is $482 per month.

Part Four - Spousal support 4.1 Entitlement 40 Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the

3 The father acknowledged that he is working 50 hours each week at $17 per hour. 230 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order. 41 Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux (2009), 97 O.R. (3d) 102 (Ont. C.A.). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow [1999 Car- swellBC 532 (S.C.C.)], 1999 CanLII 715. 42 In Kowalski v. Grant, 2007 CarswellMan 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions: 1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. 2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge. 3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage. 4. Interim support is to be based on the parties’ means and needs assuming that a triable case exists. The merits of the case in its entirety must await a final hearing. 43 In Robles v. Kuhn, 2009 BCSC 1163 (B.C. Master), the court added the following considerations: 1. On interim support motions, needs and ability take on greater significance. 2. On interim motions, the need to achieve self-sufficiency is of less importance. 3. Interim support should be ordered within the Spousal Support Ad- visory Guideline (SSAG) range unless exceptional circumstances dictate otherwise. S. (R.) v. M. (M.S.) S.B. Sherr J. 231

4. Interim support should only be ordered where a prima facie case for entitlement has been set out. 44 It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092 (Ont. S.C.J.). It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”. See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (Ont. S.C.J.). 45 The mother established her entitlement to temporary spousal support based on both a compensatory and non-compensatory basis. 46 The mother has a compensatory claim for spousal support based on the roles she has assumed during the marriage. She is the sole caregiver for the child. The father only exercises supervised access. This role will likely compromise the mother’s ability to earn income. She will be the parent who needs to be available to meet with the child’s teachers, take the child to medical appointments and arrange his activities. It will likely affect the jobs she can take and the hours she can work. 47 The mother also has a non-compensatory claim for spousal support based on her need for support and the father’s ability to pay it. 48 Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri, [2001] O.J. No. 2602 (Ont. Div. Ct.); Carty-Pusey v. Pusey, 2015 ONCJ 382 (Ont. C.J.); Javed v. Kaukab, 2010 ONCJ 606 (Ont. C.J.)4; Gutierrez v. Petten, 2011 ONCJ 549 (Ont. C.J.) and this court’s decision in Kuznetsova v. Flores, [2016] O.J. No. 1912 (Ont. C.J.).

4 In Javed, the court writes at paragraph 24: 24 The case law is clear that any agreement can be considered. It does not matter whether the agreement is between the sponsor and the immigrant, or whether, as in this case, it is between the sponsor and the government. It is also noted that the precise wordings of the agreements may vary, although in most cases, as in this case, the text of the sponsorship agreement was not provided. Clause 33(9)(m) of the Family Law Act (reproduced in full above) specifically directs the court to consider “any other legal right of the dependant to support” in determining the amount and duration of support. Thus, far from negating his obligation to pay spousal support, the existence of a sponsorship agreement actually strengthens the obligation. 232 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

49 The father promised to support the mother for three years and signed an undertaking to Citizenship and Immigration Canada to do this once she became a permanent resident. 50 Here, the mother and child have become economically vulnerable due to having being sponsored to come to Canada by the father and the relationship breaking down. The mother speaks limited English. The parties had a traditional relationship. She stayed at home with the child. She has no family support in Canada. She and the child are in receipt of public assistance. There is no evidence that she has the ability to be self-supporting on a temporary basis. 51 At this stage, the evidence points to the father contributing to the mother’s economic disadvantage by his perpetration of domestic violence.5 52 The father has the ability to support the mother and the child. His previous employer wrote that the father was employed as a mechanic. The father earns a good income. He has no other support obligations or unusual expenses.

4.2 Amount of spousal support 53 The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) stated that the Spousal Support Advisory Guidelines, (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See M. (D.R.) v. M. (R.B.), [2006] B.C.J. No. 3299 (B.C. S.C.). 54 A software analysis, based on the mother being on social assistance and the father’s annual income of $53,300, indicates that the SSAG low range of support is $961 per month. The mid-range of support is $1095 per month and the high range of support is $1232 per month. 55 In a short marriage, with young children, most of the primary caregiver’s disadvantage lies ahead of her, not behind her, namely the labour market consequences for the parent of ongoing child care. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.

5 The details of the father’s domestic violence are set out below. S. (R.) v. M. (M.S.) S.B. Sherr J. 233

56 The existence of a sponsorship agreement can be a factor in ordering support at the high end range of the SSAG. See: The Spousal Support Advisory Guidelines, A New and Improved User’s Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson, where the authors write: Short marriages: immigration sponsorship cases One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advi- sory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipients’ basic needs and preclude resort to social assistance. See Gidey v. Abay, [2007] O.J. No. 3693 (Ont. S.C.J.); and M. (T.) v. G. (M.A.), [2006] B.C.J. No. 3479, 2006 BCPC 604 (B.C. Prov. Ct.). Some of the identified exceptions may be relevant in these cases to justify a departure from the formula ranges: • the compensatory exception in short marriages • the exception for compelling financial circumstances in the interim • the basic needs/hardship exception However, it does appear that the sponsorship agreement may be an independent factor in short marriages, leading to either an amount or a duration outside the formula ranges. 57 The father submits that his support obligation should be reduced because the parties only lived together for 4 months, despite being married for over 11 years. The court gave this factor limited weight at this stage. The evidence indicates that the mother and the child have been wholly dependent on the father (and his family) for the entirety of the marriage. He sponsored them to come to Canada, recognizing in his sponsorship application that the mother and child would continue to be dependent upon him. 234 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

58 The evidence supports making an order towards the high end range of the SSAG on a temporary basis for the following reasons: a) The mother has a prima facie compensatory claim for spousal support. b) The mother is in a particularly vulnerable economic position at this time. This was a traditional marriage. The mother stayed at home with the child and was supported by the father and his family. The mother speaks no English. She has no family in Canada and is isolated. She has spent most of her time in Canada in a shelter. It appears that she is a victim of domestic violence. c) The father sponsored the mother to come to Canada. The father undertook in the sponsorship application to provide for the basic requirements of the mother and the child and to provide food, clothing, shelter, household supplies and other goods and services and health needs for them. The father agreed that his undertaking remains in effect no matter what may change in his life - for example, if he becomes divorced. His undertaking sets out that he will be in default if a government makes a payment that he has promised to pay - for example, if the mother or the child receive social assistance, he is in default of his undertaking. d) The mother needs support towards the high end range of the SSAG range to meet her basic needs. e) The mother is on social assistance. The taxpayer should not be supporting the mother, to the extent that the father is able to do so. 59 The father shall be required to pay the mother temporary spousal support of $1,150 per month. The software analysis shows that this payment, together with the child support payment, will provide the mother and the child with 50.9% of the family’s net disposable income - the father with 49.1%.

4.3 Start date of support 60 This court has jurisdiction to make a temporary retroactive support order. Subsection 34 (f) of the Family Law Act reads as follows: Powers of court 34. (1) In an application under section 33, the court may make an interim or final order, (f) requiring that support be paid in respect of any period before the date of the order; S. (R.) v. M. (M.S.) S.B. Sherr J. 235

61 The leading case on retroactive child support is S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.) (CanLII), (referred to as S. (D.B.)). At paragraph 133 of S. (D.B.), the Supreme Court of Canada held that in determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility. The court listed the following factors for consideration and provided that there is no priority among them; none are decisive and all should be considered: 1) Has the applicant provided a reasonable excuse for delay in applying to court? 2) Conduct of the payor 3) Circumstances of the child 4) Hardship for the payor 62 The Supreme Court in Canada in Kerr v. Baranow, [2011] S.C.J. No. 10 (S.C.C.) decided that S. (D.B.) factors apply, as modified, for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that S. (D.B.) emphasized the need for flexibility and a holis- tic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.6 63 Where retroactive financial support is sought on the interim motion, the motions court is not making the ultimate decision as to whether the party is entitled to retroactive financial support in the Application. That is for the trial judge to determine on a complete evidentiary record. The issue for the motions judge is to consider the factors in S. (D.B.) based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion. See: Orsini v. Orsini, 2016 ONSC 3332 (Ont. S.C.J.). 64 Many courts have ordered temporary retroactive spousal support where the “circumstances of the case justify immediate relief with some retroactive award of support.” See: Lakhani v. Lakhani [2003 Carswell-

6 This is discussed in Paragraphs 207-211 of the decision. 236 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

Ont 3928 (Ont. S.C.J.)], 2003 CanLII 2161, at para. 16); Dickie v. Dickie (2001), 17 R.F.L. (5th) 304 (Ont. S.C.J.); Elgner v. Elgner, 2010 ONSC 794 (Ont. Div. Ct.); Trombetta v. Trombetta, 2011 CarswellOnt 318 (Ont. S.C.J.); Turk v. Turk, 2008 CarswellOnt 512 (Ont. S.C.J.); Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273 (Ont. C.J.) (CanLII). 65 Other courts have been disinclined to back-date temporary support to a date prior to the filing of the motion because of the limited evidence available in proceedings for temporary relief, which are based on affidavit evidence. In Hubbard v. Gore-Hickman, 2005 SKQB 265 (Sask. Q.B.), the court writes at par. 23.8: Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Re- quests for retroactive orders are more properly dealt with at trial or after a hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence. 66 The mother moved promptly to court to obtain support. Her delay in moving for temporary spousal support is understandable since the father represented that he was earning a minimum-wage level income that would not justify making a temporary spousal support order. Once she had financial disclosure, the mother moved promptly for relief. 67 The father has engaged in blameworthy conduct. He has misrepresented his income and assets. He delayed in delivering full financial disclosure. He has paid an inadequate amount of support. 68 The circumstances of the mother and the child have been disadvan- taged due to the father’s failure to pay adequate support. They are on public assistance, have spent most of their time in Canada living in a shelter and have been living a subsistence lifestyle as a result of receiving inadequate support from the father. S. (R.) v. M. (M.S.) S.B. Sherr J. 237

69 It does not appear that the father will suffer hardship if the court makes a retroactive order. The retroactive relief sought by the mother is minor.7 The father has equity in his home. It is likely that he can obtain funds to pay the arrears created by this order. 70 This is a case where a retroactive order on a temporary motion is justified. The period of retroactive support sought is short, the mother and the child require the support now and the mother has an overwhelming case for retroactive support based on the S. (D.B.) factors. 71 Support shall start as of June 15, 2015.

Part Five - Restraining order 5.1 Legal considerations 72 Justice Robert J. Spence, in McCall v. Res, 2013 ONCJ 254 (Ont. C.J.) (CanLII), reviewed the legal principles with respect to restraining orders. This court adopts his analysis, which is set out in paragraphs 27- 31 as follows: 2. The statutory scheme [27] The statutory authority for the making of a restraining order em- anates from section 35 of the Children’s Law Reform Act (“CLRA”) and section 46 of the Family Law Act (“FLA”). Section 35 of the CLRA provides [my emphasis]: Restraining order 35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15. Provisions of order (2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate: 1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

7 The mother is seeking retroactive relief from June 15, 2015, until she issued the application on August 25, 2015. Any support claimed after an application is issued is prospective support, not retroactive support. See: MacKinnon v. MacK- innon (2005), 13 R.F.L. (6th) 221 (Ont. C.A.). 238 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

2. Restraining the respondent from coming within a specified distance of one or more locations. 3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2. 4. Any other provision that the court considers appropriate. Section 46 of the FLA provides [my emphasis]: Restraining order 46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35. Same (2) A restraining order under subsection (1) may be made against, (a) a spouse or former spouse of the applicant; or (b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35. Provisions of order (3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate: 1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody. 2. Restraining the respondent from coming within a specified distance of one or more locations. 3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2. 4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35. [28] Although the legislation permits the court to make a restraining order prohibiting or restricting the father’s contact with the mother or the child, it does not permit the court to make a restraining order which extends to “family”, “friends” and “acquaintances” of the mother, which the mother has requested in this case. Accordingly, that particular request for relief by mother cannot be granted. S. (R.) v. M. (M.S.) S.B. Sherr J. 239

3. Case law [29] Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 CarswellOnt 146 (Ont. S.C.), Justice McDermot had this to say, at paragraph 31 [my emphasis]: It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. [30] In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]: More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety. [31] What I take from these cases is: • The fear must be reasonable • The fear may be entirely subjective so long as it is legitimate • The fear may be equally for psychological safety, as well as for physical safety 240 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

5.2 Findings 73 The mother seeks an order that the father be restrained from mo- lesting, annoying or harassing her or the child or coming within 500 me- ters of anywhere that she and the child may reasonably be expected to be. 74 The evidence supports, on a balance of probabilities, findings that: a) The mother’s fear of the father is reasonable. b) Even if the extent of the mother’s fear of the father is subjective, it is legitimate. c) The mother fears for her psychological safety as well as her physical safety. d) The terms of the restraining order sought by the mother are reasonable and proportionate. 75 The mother alleged that the father has been violent, threatening and controlling with her. 76 The mother said that when she came to Canada, the father would threaten to deport her and take the child from her. When enraged, he threw objects across the room and would swear at her. She said that these episodes took place in front of the child. She said that the father’s outbursts escalated and she fled to a shelter with the child. 77 The mother claimed that the father controlled her in Canada by not letting her communicate with her friends and family in Pakistan. 78 The mother said that the father threatened that if she did not leave Canada quietly that he would make sure she left Canada alive or dead. 79 The mother did not move immediately for a temporary restraining order. 80 At the case conference on March 16, 2016, the mother sought leave to bring a motion for a temporary restraining order. She claimed that the father was threatening her through family members. 81 The mother deposed that the father’s harassment of her has escalated since March 16, 2016. 82 The mother provided evidence of a false Facebook account created in her name. Her face was photo-shopped on the body of a woman in her bra only. This Facebook page was sent to all of the mother’s family. This was particularly humiliating to a traditional Muslim woman. 83 The father denied creating the Facebook account. The mother had been advised by her brother that the father blamed his brother for doing this. S. (R.) v. M. (M.S.) S.B. Sherr J. 241

84 The mother deposed that the child recently refused to see the father at the supervised access centre. The father’s brother then called her brothers in Pakistan threatening that the mother would “see the consequences”. 85 The mother said that she was advised by her brother that the father contacted him and told him that the mother owed him five million rupees for all the expenses associated with her. 86 The mother said that last month her father was taken to a police station in Pakistan at the behest of her father-in-law, who had claimed he was withholding property. Her father-in-law allegedly told her father, “you took away our grandson, what if we kidnap your grandson?” 87 The mother alleges that the father recently contacted her brother and told him that “I will not spare her; I will punish her; I will punish anyone who takes her side; and I will show her how I can take her child from her.” 88 The mother deposed that she is now receiving pressure from her family to either return to live with the father or return to Pakistan - due to the threats of the father and his family. 89 The father denies that he has threatened the mother.8 He believes that the mother never had any intention to live with him and has concocted these allegations to be able to remain in Canada with the child. 90 The court recognizes that there are limitations with the mother’s evidence. She did not provide affidavits from her family members. These allegations are denied and untested by cross-examination. They are based on oral statements - there is no documentation to support them. The veracity of her allegations is primarily based on an assessment of the mother’s credibility against the father’s. 91 The father also submitted that the mother’s failure to provide any shelter or police records that would indicate she reported abuse undermines her credibility. The court is not prepared to draw that conclusion. Domestic violence is complicated and a victim’s actions, or lack of action must be looked at in context. Here, the mother is very alone in Can- ada. She speaks limited English. If her evidence is accurate, she has been controlled by the father and his family for a long time. She is afraid of

8 The father stated that the mother was not afraid of him or his family and was making up her abuse allegations. He did not specifically deny the alleged actions of his family members set out by the mother. He submitted that what happens in Pakistan is not relevant to the case. 242 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

them. There is a significant power imbalance between them. She is afraid they have the power to deport her and the child. She and the child are economically vulnerable. She is humiliated by what has happened. She is likely concerned about a government’s ability to protect her and the child. It would not be easy for a woman in these circumstances to come forward and report what has happened to her. 92 The court prefers the evidence of the mother to the father at this stage. 93 The father is not a credible witness. He misrepresented his income to the court. He did not initially reveal that he owned a home or received rental income. He provided the court with an incorrect address, likely to hide the fact that he is a homeowner. It appears that he has colluded with one or both of his employers to provide inaccurate financial information. 94 The father has a history of being dishonest. He admitted that he lied to the federal government about his income in his sponsorship application and that he lied about his income to his mortgagee to obtain a mortgage. His representations of his income to Revenue Canada appear to have no relationship to his actual earnings. 95 This propensity to dishonesty gives the court no confidence in the father’s evidence. 96 The court is also very concerned about the escalation in threats after this motion was scheduled. 97 The father argues that he cannot control what happens in Pakistan. The evidence indicates that it is more probable than not that the father is instigating this harassment to put pressure on the mother to resolve this court case to his satisfaction. It is confirmatory evidence of the controlling behaviour that the mother alleged. 98 This behaviour needs to be stopped now. The father needs to know that he will be held responsible for this behaviour if it continues. 99 A separate endorsement for the temporary restraining order will be prepared.

Part Six - Conclusion 100 A temporary order shall go on the following terms: a) The father shall pay the mother child support of $482 per month, starting on June 15, 2015. This is the guidelines table amount for one child, based on an income assessed to the father of $53,300 per annum. S. (R.) v. M. (M.S.) S.B. Sherr J. 243

b) The father shall pay the mother spousal support of $1,150 per month, starting on June 15, 2015. c) The father will be credited with all support paid to the mother since June 15, 2015, as reflected in the records of the Director of the Family Responsibility Office. d) The Director of the Family Responsibility Office shall amend their records to be in accordance with this order. e) A separate temporary restraining order endorsement shall be issued. 101 If the mother wishes to seek costs, she shall serve and file written submissions by June 7, 2016. The father shall then have until June 14, 2016, to serve and file any written response. The submissions shall not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinators office on the second floor of the courthouse. 102 The court thanks counsel for their excellent presentation of this motion Application granted. 244 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

[Indexed as: M. (D.L.) v. W. (D.R.)] D.L.M. (Applicant) v. D.R.W. (Respondent) Nova Scotia Family Court Docket: Antigonish 097303 2016 NSFC 28 Timothy G. Daley Fam. Ct. J. Heard: January 21; March 4, 2016 Judgment: May 20, 2016 Family law –––– Costs — In family law proceedings generally — Factors considered — Multiple factors considered –––– In family law matter, husband took position that all issues concerning spousal support were contested — Hus- band denied that wife was entitled to retroactive spousal support — Retroactive child support was also in dispute, with husband opposing wife’s position that retroactive child support was due and owing — It was not until hearing was completed and before final submission that husband conceded that issue and amount was agreed upon by parties — At end of hearing, husband’s counsel advised that husband conceded issue of spousal support entitlement; however, husband argued that any claim for spousal support be based on non-compensatory principles and that duration should be set at 12.5 years, and that he should be credited with 2.5 years’ spousal support based on his maintenance of family home since separation — Husband further submitted that quantum of spousal support be at lowest end of recommended range — At trial, spousal support was awarded on basis of compensatory and non-compensatory grounds on indefinite basis — Retroactive spousal support was awarded in total amount of $12,000 for period pre-dating date of application but after separation date — Wife was clearly successful party in matter — Wife sought party and party costs — Al- though she did not obtain full relief sought, she was successful in almost every respect — Only reason that wife did not obtain full relief sought was her request for quantum of support at highest end of range under Spousal Support Advisory Guidelines and her request for support retroactive to date of separation — Wife was successful party and were payable by husband — There was nothing in position or behaviour of wife that would suggest that costs be denied or reduced; while husband, at times, conducted himself in ways that unnecessarily delayed and increased costs of proceedings — Matter was set for, and took, half day of hearing time, and parties returned for final submission for half day — Addi- tional half day was added for additional time taken to deal with husband’s failure to disclose and file his financial information and affidavit in timely fashion — On application of rule of thumb of $20,000 per day for each day of trial, M. (D.L.) v. W. (D.R.) Timothy G. Daley Fam. Ct. J. 245

total over amount involved was $30,000 — On application of Tariff A from Civil Procedure Rules to amount involved of $30,000, basic scale cost amount was $6,250 — Total cost of $6,250 was payable forthwith by husband to wife. Cases considered by Timothy G. Daley Fam. Ct. J.: Gomez v. Ahrens (2015), 2015 NSSC 3, 2015 CarswellNS 53 (N.S. S.C.) — followed T. (D.M.C.) v. S. (L.K.) (2007), 2007 NSFC 35, 2007 CarswellNS 376, 41 R.F.L. (6th) 204, (sub nom. J.P., Re) 257 N.S.R. (2d) 334, (sub nom. J.P., Re) 820 A.P.R. 334 (N.S. Fam. Ct.) — considered Rules considered: Civil Procedure Rules, N.S. Civ. Pro. Rules 2009 Generally — referred to R. 77.01(1) — considered R. 77.02(1) — considered R. 77.02(2) — considered R. 77.06 — considered Family Court Rules, N.S. Reg. 20/93 R. 11.01 — considered Tariffs considered: Civil Procedure Rules, N.S. Civ. Pro. Rules 2009 Tariff A — referred to

ADDITIONAL REASONS to judgment reported at M. (D.L.) v. W. (D.R.) (2016), 2016 NSFC 13, 2016 CarswellNS 454, 77 R.F.L. (7th) 489 (N.S. Fam. Ct.), regarding costs.

Karen Killawee, for Applicant Adam Rodgers, for Respondent

Timothy G. Daley Fam. Ct. J.:

1 This is a decision on costs in this matter following hearing that took one and a half days to complete. This consisted of one day trial time and one half day for an oral decision in the matter [reported at 77 R.F.L. (7th) 489]. 2 The court’s authority to award cost was summarized by Levy, J.F.C. in T. (D.M.C.) v. S. (L.K.), 2007 NSFC 35 (N.S. Fam. Ct.) at paragraph 3: 3. The Family Court Act, section 13, grants authority to the court to award costs “...in any matter or proceeding in which it has jurisdic- 246 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

tion...”. Family Court Rule 17.01 (1) states simply: “...The amount of costs shall be in the discretion of the court”. While Family Court Rule 1.04 provides that recourse can be had to both the Interpretation Act and the Civil Procedure Rules, at the discretion of the court, this recourse is limited to situations where “no provision” is made in the Family Court Rules for the point in issue. In this case the discretion to grant or refuse costs and to determine the amount of any costs is fully, if succinctly, covered in Rule 17.01 (1) and therefore Family Court Rule 1.04 does not apply in these respects. That said, a court’s discretion is to be exercised judicially and the best way to do so is to take one’s guidance from Civil Procedure Rule 63 and related case law. 3 The relevant current Civil Procedure Rule is Rule 77 which states in part: Scope of Rule 77 77.01 (1) The court deals with each of the following kinds of costs: (a) party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation; (b) solicitor and client costs, which may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation; (c) fees and disbursements counsel charges to a client for representing the client in a proceeding. ... General discretion (party and party costs) 77.02 (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties. (2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. ... Assessment of costs under tariff at end of proceeding 77.06 (1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act, a copy of which is reproduced at the end of this Rule 77. M. (D.L.) v. W. (D.R.) Timothy G. Daley Fam. Ct. J. 247

(2) Party and party costs of an application in court must, unless the judge who hears the application orders otherwise, be assessed by the judge in accordance with Tariff A as if the hearing were a trial. (3) Party and party costs of a motion or application in chambers, a proceeding for judicial review, or an appeal to the Supreme Court of Nova Scotia must, unless the presiding judge orders otherwise, be assessed in accordance with Tariff C. 4 In Gomez v. Ahrens, 2015 NSSC 3 (N.S. S.C.), Justice Beryl Mac- Donald of the Family Division, summarized some of the applicable case law at paragraphs 16 and 17: [16] At one time it was generally considered inappropriate to grant costs in cases involving custody of or access to children. That no longer is accepted as a general rule. Costs have long been considered as a deterrent to those who would bring unmeritorious cases before the Court. Many parents want to have primary care or at the very least shared parenting of his or her children but that desire must be tempered by a realistic evaluation about whether his or her plan is in the best interest of the children. The potential for an unfavorable cost award has been suggested as a means by which those realities can be bought to bear upon the parent’s circumstances. Nevertheless there will always be cases where a judge will exercise his or her discretion not to award costs. [17] Some of the more common principles that guide decision making in cost applications are found in Landymore v. Hardy (1992), 112 N.S.R. (2d) 410 (T.D.); Campbell v. Jones et al. (2001), 197 N.S.R. (2d) 212 (T.D.); Grant v. Grant (2000), 200 N.S.R. (2d) 173 (T.D.); Bennett v. Bennett (1981), 45 N.S.R. (2d) 683 (T.D.); Kaye v. Camp- bell (1984), 65 N.S.R. (2d) 173 (T.D.); Kennedy-Dowell v. Dowell, 2002 CarswellNS 487; Urquhart v. Urquhart (1998), 169 N.S.R. (2d) 134 (T.D.)); Jachimowicz v. Jachimowicz (2007), 258 N.S.R. (2d) 304 (T.D.). My summary of the principles relevant to this case are that: 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3. A decision not to award costs must be for a “very good reason” and be based on principle. 4. Deference to the best interests of a child, misconduct, oppres- sive and vexatious conduct, misuse of the court’s time, unnecessarily increasing costs to a party, and failure to disclose information may justify a decision not to award costs to an otherwise successful party or to reduce a cost award. 248 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

5. The amount of a party and party cost award should “represent a substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity”. 6. The ability of a party to pay a cost award is a factor that can be considered, but as noted by Judge Dyer in M.C.Q. v. P.L.T., 2005 NSFC 27: Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of public or third- party funding) but at a large expense to others who must “pay their own way”. In such cases, fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65]. 7. The Tariff of Costs and Fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the “amount involved”, required for the application of the tariffs and for the general consideration of quantum, is the dollar amount awarded to the successful party at the Trial. If the Trial did not involve a money amount other factors apply. The nature of matrimonial proceedings may complicate or preclude the determination of the “amount involved”. 9. When determining the “amount involved” proves difficult or impossible the Court may use a “rule of thumb” by equating each day of trial to an amount of $20,000.00 in order to determine the “amount involved”. 10. If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonable expenses “it is preferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departure from the tariff should be infrequent. 11. In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factor among many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the Civil Procedure Rules in relation to offers and also examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the Court. M. (D.L.) v. W. (D.R.) Timothy G. Daley Fam. Ct. J. 249

5 As with all decisions regarding costs, the necessary first step in the analysis is to determine whether there has been a successful party and, if so, which party that is. Determining success in any civil litigation matter is often a nuanced exercise. In family law cases, parties often contest various issues in including custody, access, child support and spousal support and within each of those issues the parties will take various positions. For example in a custody dispute one party may seek sole custody with supervised access. That party may be successful on the sole custody claim but unsuccessful on the supervised access claim. Thus, overall success or failure of a party for purposes of determining costs usually and necessarily involves an analysis of all of the issues at play at the hearing and the relative level of success or failure of each party both on individual issues and in the overall context of the matters before the court. 6 In this matter, the respondent D.R.W. took the position both before and throughout the hearing that all issues concerning spousal support, including entitlement, quantum and duration were contested. He maintained that he did not owe any spousal support to D.L.M. The applicant, D.L.M., maintained that she was entitled to spousal support, that it would be based on either or both of compensatory or non-compensatory principles, that it should be at the high end of the amount recommended under the Spousal Support Advisory Guidelines (SSAG) and that it should be of indefinite duration. 7 On the issue of a retroactive spousal support, D.R.W. took the position that he should not have to pay any whatsoever both because he opposed any finding of entitlement to begin with and, secondarily, because he said he maintained that the matrimonial home at his own expense after separation and this should effectively set off any claim for such retroactive support. 8 D.L.M. argued that she was entitled to a retroactive spousal support and that it should be effective as of the date of separation, which was agreed to be September 2013, through to the date of hearing. 9 The final issue in dispute in the hearing was that of retroactive child support. D.R.W. denied that he owed any and opposed D.L.M.’s position that retroactive child support was due and owing. It was a not until the hearing was completed and before final submission that D.R.W. conceded that issue and an amount was agreed upon between the parties. 10 At the end of the hearing, counsel for D.R.W. put on the record that he had changed his position with respect to spousal support entitlement and conceded that issue in submission. With that concession, D.R.W. ar- 250 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

gued that any claim for spousal support be based on non-compensatory principles and that the duration should be set at 12 1/2 years. D.R.W. argued that he should be credited with 2 1/2 years spousal support based on his maintenance of the matrimonial home since separation in Septem- ber 2013. He further argued that the quantum of support should be at the lowest end of the recommended range under the SSAG. 11 In my decision I found that entitlement was clearly made out and that spousal support was founded on both compensatory and non-compensatory grounds. I went on to find that spousal support in the amount of $1000 would be payable on an indefinite basis, subject to review. Retro- active support was awarded in the total amount of $12,000 which, based on the monthly award, meant that it will be for a period predating the date of the application but after the date of separation. 12 Given those findings, it is clear that D.L.M. is the successful party in this matter. While she did not obtain the full relief sought, she was successful in almost every respect. The only reason which she failed to achieve full result was her request for a quantum of support at the highest end of the range under the SSAG and her request for retroactive support back to the date of separation. 13 Having determined the successful party, costs will be awarded to D.L.M. and payable by D.R.W.as there is no good reason for such costs to be denied. 14 I further find that there is nothing in the position or behavior of D.L.M. that would suggest that costs should be denied or reduced. She was timely in her disclosure and filing obligations throughout and there is no evidence before me to suggest that she unnecessarily increased cost to either party. 15 On the other hand, D.R.W. did, at times, conduct himself in ways that unnecessarily delayed and increased the costs of these proceedings. Spe- cifically, the initial hearing date for this matter was scheduled for No- vember 3, 2015. Deadlines for disclosure were provided by the court to the parties in an appearance on September 15, 2015. At that time, D.R.W. was directed to file his full financial disclosure as well as further clarification of the disclosure already provided. His initial disclosure indicated an income of the approximately $76,000 per year and later it was determined that his income was over $100,000 that year and the previous year. M. (D.L.) v. W. (D.R.) Timothy G. Daley Fam. Ct. J. 251

16 Despite the filing deadlines having been set, D.R.W. failed to meet the deadline as of the date of hearing and the hearing had to be postponed as a result. 17 A conference call was arranged between counsel and the court on Oc- tober 28, 2015 at which time a new hearing date was set for January 18, 2016 and counsel for D.R.W. was informed that his client’s updated and sworn financial statement was due to be filed by November 12, 2015. Further, his affidavit was to be filed by December 10, 2015. It was clarified with D.R.W.’s counsel that certain other financial information was to be obtained and disclosed as part of his filings. This telephone conference was reduced to writing in the form of the pretrial memorandum and, pursuant to Family Court Rule 11.01, became an order of the court. 18 Despite the clarity of that order, D.R.W. again failed to meet the deadline for his filings. As a result, a further adjournment of the hearing was required. Another pretrial conference call was required the matter was scheduled for January 21, 2016. The reply affidavit of D.L.M. was rescheduled for filing by January 20, 2016. 19 As well, it is relevant that D.R.W. maintained his position opposing entitlement to spousal support both before and during the hearing and only conceded the issue after the hearing and before summation. While I cannot say that maintaining that position, which I find was unreasonable in all of the circumstances, added to the hearing time required, it is relevant to the assessment of costs. I have no doubt that by failing to concede that issue, D.R.W. increased D.L.M.’s legal costs by some amount as her counsel had to prepare to address that issue at the hearing. 20 D.R.W. position on the issue of retroactive child support would have added cost to D.L.M. in preparation for addressing the issue at hearing as well. I find that the issue was clearly before the court and should have reasonably been conceded without the use of a hearing time to address the issue well before the hearing took place. D.R.W. only conceded the after the hearing and before summation. 21 D.L.M. seeks party and party costs. As a result, I must refer to the tariff of costs and fees contained within the Civil Procedure Rules and in doing so must determine the “amount involved”. Given that a component of this claim was ongoing spousal support which I determined to be for an indefinite period, determining the amount involved is difficult notwithstanding the other awards of retroactive child and spousal support made. 252 REPORTS OF FAMILY LAW 88 R.F.L. (7th)

22 I therefore find it reasonable and necessary to apply the “rule of thumb” identified by Justice McDonald in Gomez supra of $20,000 for each day of trial. 23 The determination of days of trial is discretionary as well. The matter was set for and took one half day of hearing time. In addition, the parties returned for final submission for a one half day. I find it reasonable and necessary to also account for the additional time taken to deal with D.R.W.’s failure to disclose and file his financial information and affidavit in a timely fashion, the resulting two adjournments of the hearing and the time it took to deal with those delays and necessary rescheduling on two occasions. I will therefore add an additional one half day to my assessment of the amount involved in the matter for a total of 1 1/2 days. 24 Applying the rule of thumb amount of $20,000 per day, the total over the amount involved I find to be $30,000. 25 I therefore apply Tariff A from the Civil Procedure Rules to the amount involved of $30,000 and determine the basic scale cost amount of $6,250. Given that I have already taken into account the behavior of D.R.W. in assessing an additional one half day to the analysis of the amount involved, I will not increase costs further. The total cost were will therefore be $6,250 and will be payable forthwith by D.R.W. to D.L.M. 26 I had asked counsel to discuss an appropriate arrangement for the payment of the retroactive spousal support, child support and medical costs and if they were unable to agree to terms for payment of same, they were to provide written submission to the court on the issue. Counsel for D.L.M. has done so. Counsel for D.R.W. has not 27 In the event the parties have not agreed on the payment schedule for these amounts, which total $18,894, I further order that any tax refund obtained for the taxation year 2015 by D.R.W. will be applied forthwith to these amounts and will therefore be payable directly to D.L.M.. Any remaining amount will be payable in equal instalments over a 12 month period commencing June 1, 2016. Order accordingly.