How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Tom B. Your Own Question
Tom B.
Tom B., Barrister & Solicitor
Category: Canada Law
Satisfied Customers: 2415
Experience:  25 years in practice
28667836
Type Your Canada Law Question Here...
Tom B. is online now
A new question is answered every 9 seconds

Is there a case in small claims court where the applicant

Customer Question

Hi, is there a case in small claims court where the applicant won an unlawful confinement case based on the defendant refusing to let the applicant talk to his children who live with the defendant and the applicant's x-wife? thank you
Submitted: 2 years ago.
Category: Canada Law
Expert:  Tom B. replied 2 years ago.
Hello
I did not want you to wait for an answer but am shy to disappoint you. I can certainly understand the reasoning behind your question but such an action cannot work for a couple of reasons. No, in 24 years I have not heard of a successful case as you have asked about.
Firstly, the Small Claims Court is restricted in the type of cases they can hear. Perhaps if children desired to sue as victims of an assault, that court could hear the point for financial damages.
But, unlawful confinement is a criminal charge and unless brought as such, the Provincial Courts have no jurisdiction to hear such a matter.
A Superior Court in Ontario can hear claims that the Provincial Court cannot. However, the facts as related really is whether there has been an alienation of affection as opposed to unlawful confinement.
Alienation of affection was a Tort (civil wrong) but it is now defunct in Canada. It started as a law suit where spouses had affairs resulting in marriage break down. But both Statutes and the Common law in Canada have basically rid the law of such a claim.
It has however been attempted to revive in the issue of one parent denying access to children. Here is a link to a 2010 case where it was attempted. The case explains the history of the law and quotes the Supreme Court of Canada and Ontario court rulings.....
https://www.canlii.org/en/nt/ntsc/doc/2010/2010nwtsc1/2010nwtsc1.html?searchUrlHash=AAAAAQAZImFsaWVuYXRpb24gb2YgYWZmZWN0aW9uIgAAAAAB&resultIndex=6
As you will see, our Supreme Court has made it clear that issues involving children must be decided within the framework of family law and not the law of Torts.
In short, a Small Claims Court cannot hear matters that they are not allowed to hear by their mandate. Anything like this they can't hear. The Superior Courts can hear innovative arguments as you suggest but that course of action is expensive and complicated and anyone should at least consult their own lawyer before embarking. Perhaps there is a new angle that has not been tried yet. But currently, the law as set down by our Supreme Court is that no one can sue in Tort on a matter involving children and access.
Again, sorry to disappoint but I did not want you waiting. Please consider rating my answer well for my research and consideration of your matter.
Sincerely,
Tom
Customer: replied 2 years ago.
Thank you
Expert:  Tom B. replied 2 years ago.
You are welcome.
Please rate my answer well :)
Tom

Related Canada Law Questions