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Family Law

. Pond v. Taylor

In Pond v. Taylor (Div Ct, 2020) the Divisional Court considered a Small Claims appeal (dismissed) of a successful action by a common law spouse for tort and unpaid loans. I find the case is interesting for it's toleration of common law claims and remedies outside of the family law statute system, of which there was no mention:
[1] The Appellant, Rio Lancey Pond, appeals the June 30, 2017 decision of Small Claims Court Deputy Judge Twohig granting judgment to the Respondent, Melinda Taylor, in the amount of $25,000 with costs of $3,750 and disbursements of $175. The Appellant submits that Deputy Judge Twohig erred by failing to take into consideration evidence that he repaid part of the money he owed to the Respondent.

SUMMARY OF THE EVIDENCE

[2] The Respondent sued the Appellant to recover monies she claimed the Appellant owed her while they lived together from March 2011 to July 7, 2012. She claimed the following: $8,000 for general, special, and punitive damages based on the tort of assault and battery; $22,082.92 for money she loaned the Appellant’s business; a further $10,536.73 she loaned him for his personal expenses; and, $3,005 for belongings left at his residence. She waived the excess over $25,000 to bring her claim within the jurisdiction of the court: Reasons for Judgment, dated June 30, 2017. The Appellant brought a claim against the Respondent to recover $25,000 which he claimed she owed him for living expenses, for money she took from him and for money he gave her.
. J.S.-R. v. Children’s Aid Society of Ottawa

In J.S.-R. v. Children’s Aid Society of Ottawa (Div Ct, 2020) the Divisional Court stated the deferential approach that appeal courts have to family matters:
[14] In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 and Van de Perre v. Edwards, 2001 SCC 60, the Supreme Court held that because of the fact-based and discretionary nature of family matters, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. An appeal court must only intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, and it is not entitled to overturn an order simply because it would have made a different decision or balanced the factors differently.
. Ballanger v. Ballanger

In Ballanger v. Ballanger (Ont CA, 2020) the Court of Appeal confirms that support orders are subject to high deference on appeal:
[22] The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

[23] An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.

[24] In making a spousal support order, the Court may impute such income to a spouse as it considers appropriate in the circumstances, including where it appears that income has been diverted that would affect the level of child support, where the spouse has failed to provide income information when under a legal obligation to do so, and/or where the spouse unreasonably deducts expenses from income: Spousal Support Advisory Guidelines, Section 19(1) (d), (f), (g).

[25] In so doing, the amount selected must be grounded in the evidence. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), Tab 5, paras 44 and 45.[26] The Supreme Court confirmed that the court retains jurisdiction to retroactively vary a child support order after the child no longer qualifies as a “child of the marriage”: Michel v. Graydon, 2020 SCC 24.
. Vanleer v. Young

In Vanleer v. Young (Ont CA, 2020) the Court of Appeal pleads with the Ontario legislature to address problems the courts are having with family law appeals:
[54] For these reasons, the appeal is dismissed. I would make no order as to costs of the appeal or the attendance before the Divisional Court. I would, however, add my voice to so many others of this court in imploring the legislature to clarify family law appeal routes: see Mattina v. Mattina, 2018 ONCA 867, Marchildon v. Beitz, 2012 ONCA 668, 23 R.F.L. (7th) 316; Priest v. Reilly, 2018 ONCA 389, Christodoulou v. Christodoulou, 2010 ONCA 93, 75 R.F.L. (6th) 93.
. Children's Aid Society of Toronto v. J.G.

In Children's Aid Society of Toronto v. J.G. (Ont CA, 2020) the Court of Appeal extensively reviewed changes to children's aid society law brought about by the passage of the Child, Youth and Family Services Act (CYFSA), replacing the Child and Family Services Act (CFSA) [paras 15-66].

. Office of the Children’s Lawyer v. Balev

In Office of the Children’s Lawyer v. Balev (SCC, 2018) the Supreme Court of Canada canvasses the nature and function of the Hague Convention [the 'Convention on the Civil Aspects of International Child Abduction']:
A. The Hague Convention

[22] The Hague Convention was concluded on October 25, 1980. With more than 90 contracting parties, it ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law. Canada has been a party from the beginning. The Hague Convention is implemented by legislation in every province and territory.

[23] The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

[24] The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence: see Article 1; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.

[25] Prompt return serves three related purposes. First, it protects against the harmful effects of wrongful removal or retention: see R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 96; E. Gallagher, “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463, at p. 465; Thomson, at p. 559; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249 (E.W.C.A.), at p. 260.

[26] Second, it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody: see E. Pérez-Vera, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction (1981),[2] at p. 429; see also W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, at para. 36; Gallagher, at p. 465; A. M. Greene, “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105, at pp. 111-12.

[27] Finally, prompt return is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: see Schuz, at p. 96; Gallagher, at p. 465.

[28] The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is not defined in the treaty.

[29] If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:
(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

(3) The child of sufficient age and maturity objects to being returned (Article 13(2));

(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

(5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
[30] Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And only the third exception remains relevant — the children’s alleged objection to being returned to Germany.


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