Siegel's Family Court Calendar

“In this case, the parties seek a decision on costs where there is no judge who has dealt with the step who could render a costs decision. I would have been the trial judge, but no trial proceeded before me. I thus come to this costs determination without any prior knowledge of the parties’ litigation, positions or evidence. I have no record of judicial fact finding on issues relevant to costs, and no evidentiary record before me on which to make findings.

The parties’ minutes of settlement expressed a preference for written submissions to deal with costs, no doubt to save expense. This is not a silly concern. As Leach J. observed in Witherspoon v. Witherspoon, 2015 ONSC 6378 at para. 42, attempts to address cost issues in a post-settlement context are unlikely to promote judicial economy. He wrote:

…application of the cost rules presupposes that the court is in a position to rely on factual or other objective findings that either support or detract from the parties’ respective submissions. However, that self-evidently will not be the case where the parties rely on matters and considerations that have never been the subject of any judicial fact finding, or corresponding judicial determination on issues or reasonableness, unreasonableness, or alleged misconduct. The parties in the case before me seem to have come to such a realization either consciously or instinctively, given their respective efforts to now revisit contentious issues and evidence, and belatedly have such matters resolved in their favour in order to justify their cost positions. However, an exercise that effectively encourages and requires the parties and the court to revisit and essentially litigate such issues, which supposedly have been resolved by a substantive settlement, seems entirely and inappropriately retrograde in nature.”

            Hassan v. Hassan, 2019 ONSC 1199 (CanLII) at 10-11

“As conceded by Ms. Amorim, the application judge started with the correct legal test. Section 44(1) of the Pension Benefits Act provides that every pension paid to a member who has a spouse is to be paid out on a “joint and survivor pension” basis unless, pursuant to s. 44(4)(b), the member and his or her spouse are living “separate and apart” on the date that the first pension payment is due. (Footnote: The Pension Benefits Act has since been amended and the “living separate and apart” exception to the definition of “spouse” is now found in s. 44(1.1). In determining whether Mr. Carvalho and Ms. Amorim were living “separate and apart” at the relevant time, the application judge turned to the case law under s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He described the following indicia, derived from Greaves v. Greaves (2004), 2004 CanLII 25489 (ON SC), 4 R.F.L. (6th) 1 (Ont. S.C.), at para. 34, as relevant to his determination of whether the parties were living separate and apart:

a.   Physical separation, however, this is not the deciding factor as spouses may remain together for economic reasons;

b.   A withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship;

c.   the absence of sexual relations however this is not a conclusive factor;

d.   discussions of family problems and communications between the spouses;

e.   presence or absence of joint social activities; and

f.   the true intent of a spouse as opposed to a spouse’s stated intent.”

            Carvalho v. Amorim, 2022 ONCA 158 (CanLII) at 11

“In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada explained at paras. 206-208:

a.   Similar considerations to those set out in the context of child support (as per D.B.S. v. S.R.G., 2006 SCC 37) are relevant to deciding the suitability of a retroactive award of spousal support:

b.    The factors include:

1. 1. 1. 1. 1. 1. The needs of the recipient;
               2. The conduct of the payor;
               3. The reason for the delay in seeking support; and
               4. Any hardship the retroactive award may occasion upon the payor spouse.

c.   The factors may be weighted differently in retroactive child support v. spousal support cases and in particular, concerns regarding notice, delay and misconduct generally carry more weight in relation to claims for retroactive spousal support.

Generally, in assessing claims for retroactive adjustments of spousal support, the default commencement date is the date of effective notice, to a maximum of three years prior to the date of formal notice: Kerr at para. 211. Effective notice is the date that the support recipient “broached” the subject of an increase in support with the payor: see D.B.S. at paras. 118-121. In the case before this court the date of effective notice and the date of formal notice are one and the same: Mr. Nault was served with Ms. Nault’s Motion to Change on April 4, 2019. There is no suggestion that the topic of a variation of the March 2013 Order was ever raised between the parties in the intervening period of time.

In this case, Ms. Nault urges the court to find that Mr. Nault engaged in blameworthy conduct, by failing to disclose his income annually in accordance with the requirements of the 2013 Final Order of MacPherson J. Such a finding would permit the court to vary the support award retroactively to August 1, 2013, in the court’s discretion.

In circumstances wherein a payor is found to have engaged in blameworthy conduct, the “presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially”: D.B.S., at para 124. The blameworthy conduct of payors has again been explored more recently in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102, and Colucci and Colucci, 2021 SCC 24, [2021] S.C.J. No. 24. Notably, all of these Supreme Court of Canada authorities relate to requests for retroactive adjustment of child support rather than spousal support. In these appellate cases the court explains that, since the advent of the federal and provincial Child Support Guidelines, parents are generally presumed to know about the existence and extent of their support obligations, in accordance with the applicable child support Table. It is therefore logical that any failure to disclose increases in income and to make upward adjustment of support in the amount prescribed by the Guidelines may constitute blameworthy conduct warranting a retroactive adjustment which predates effective or formal notice by the recipient: see Colucci, at para. 44. It is abundantly clear that proactive, fulsome disclosure of income is a fundamental obligation of any payor parent.

However, as explained in Kerr, the obligations of a payor spouse are vastly different than the obligations of a payor parent. In spousal support cases, the quantum of support ordered payable by the court is presumed to be correct until the parties agree or a court orders that the quantum payable is (or was) no longer appropriate: at para 208. There is no presumptive entitlement to increases in spousal support commensurate with a payor’s income, as is the case with child support, because the basis of the entitlement and the needs of the recipient, amongst other things, are also important features of most spousal support claims. In A.E. v. A.E., Chappel J. concluded that, despite the Supreme Court of Canada’s recent revisions made to the law of retroactive child support in Michel and Colucci, reflecting a further acceptance and expansion of the concept of blameworthy conduct, the applicable framework for determination of retroactive spousal support claims remains as set out in Kerr v. Baranow: 2021 ONSC 8189 at para. 479. I agree.”

            Nault v. Nault, 2022 ONSC 904 (CanLII) at 49-53

“The Supreme Court of Canada set out the standard of appellate review in family matters in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, followed by the Ontario Court of Appeal in Sferruzzi v. Allan, 2013 ONCA 496, at para. 43.

The standard for review on issues of law is correctness.

On issues of fact, there is deference given to the trial judge. To succeed in an appeal from a finding of fact, an appellant must show that the trial judge made a “palpable and overriding error” on an issue of fact.

Absent an error or misapprehension of relevant evidence, the assignment of weight to any piece of evidence or to any of the factors to consider, is for the trial judge to decide. The deference principle prevents an appellate Court from conducting a de novo hearing or de novo weighing of evidence or of the factors to consider: Pike v. Cook, 2005 CanLII 39322 (Ont. C.A.), at para. 4.

Custody and access decisions require a trial judge to conduct a careful balancing of competing interests based on the evidence.  For that reason, a trial judge’s decision on custody and access must be approached by the appellate court with considerable respect and deference: C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14; Marcus v. Lebedoff, 2003 CanLII 32921 (Ont. S.C.).”

            Myrda v. Kajko, 2024 ONSC 948 (CanLII) at 26-30

“The court’s authority to choose which school the child will attend is found in section 28(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“CLRA”) which permits the court to “determine any aspect of the incidents of the right to decision-making … with respect to a child.”  The governing principle in making that determination is that the decision be in the best interests of the child (CLRA, s. 24).  In this respect, it is important to emphasize that the interests of the parents are relevant only insofar as those interests influence the best interests of the child.  The parents’ self-interest is otherwise not relevant.  As Black J. put it in Al-Naib v. Shnyin, 2023 ONSC 3125, at para. 33, “it is [the child’s] commute time, and not of the applicant, that matters for the purposes of the court’s analysis.”

Section 24 of the CLRA provides guidance about factors relevant to finding the child’s best interests.  For present purposes, the most germane of those factors are the child’s safety, security and well-being (s. 24(2)), her need for stability (s. 24(3)(a)), the nature and strength of her relationships with her parents and other family members (s. 24(3)(b)), plans for the child’s care (s. 24(3)(g)); the ability of the parents and others to care for the child (s. 24(3)(h)); and the ability of those people to co-operate on matters affecting the child (s. 24(3)(i) and (k)).

Specifically with respect to decisions relating to choice of school, the courts have found a variety of factors to be relevant.  Audet J. provides a helpful summary of those factors in Thomas v. Osika, 2018 ONSC 2712, at para. 37 (see also Hamid v. Hamid, 2016 ONSC 5013, at paras. 10 – 11).  In the circumstances of the present case, the most relevant of those factors is ensuring stability in the child’s life, as I explain below.

It is not the case that the other factors listed either in s. 24 of the CLRA or at para. 37 of Thomas v. Osika are not important or relevant, it is simply that they do not assist in resolving the particular problem presented to me because they apply equally well or equally poorly to the competing proposals of the parties.”

            Offer v. Lamorea, 2024 ONSC 927 (CanLII) at 13-16

“Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”. Long ago, in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the distinction between final and interlocutory orders:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

Since Hendrickson, the court has, on many occasions, considered and refined the distinction between final and interlocutory orders. For example, in Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order does “not finally dispose of the rights of the parties to the litigation”, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.” And in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97 (C.A.), the court held that an order disposing of an application is a final order if it ends the particular proceeding before the court, even if it does not finally determine another, quite possibly larger, issue between the parties which may be determined in a subsequent proceeding or process.

Recently, in Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the applicable principles as follows:

The main principles that determine whether an order is interlocutory or final are well known:

1. 1. 1. 1. 1. An appeal lies from the court’s order, not from the reasons given for making the order.
            2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right[.] Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.
            3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.
            4. The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case”. In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]

The decision of this court in Karbaliotis v. Anaheim Unit Investors (1996), 1996 CanLII 715 (ON CA), 89 O.A.C. 58 (C.A.) exemplifies these principles. There, a judge set aside an assessment officer’s certificate of assessment and directed a trial of an issue. On appeal to this court, the appeal was quashed on the basis that it was interlocutory in that it did not finally dispose of the rights of the parties.

Similarly, in Zaldin & Zaldin v. Carpenter, 1994 CarswellOnt 4517 (Div. Ct.), citing this court’s decision in Buck Brothers Ltd., the Divisional Court held that an order setting aside a certificate of assessment and remitting the matter for a new hearing was interlocutory. In contrast, in Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court held that an order that set aside an assessment officer’s report but settled the account was a final order. The motion judge had finally determined the substantive issue between the parties.

As in Kabaliotis and Zaldin, in the case before us, the motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject matter of the litigation between the parties and their substantive rights remain to be determined. As a result, the order Ms. Singh seeks to appeal is interlocutory.”

            Singh v. Heft, 2022 ONCA 135 (CanLII) at 9-14

“An award of full recovery costs does not necessarily mean that the applicant will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.

 In Jackson v. Mayerle, 2016 ONSC 1556 the court wrote at paragraph 91:

 Even where the “full recovery” provisions of the Rules are triggered — either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith — quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707(supra); Scipione v Scipione 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 (supra).”

            Fenton v. Charles, 2023 ONCJ 74 (CanLII) at 27-28

“The amendments to Part III of the Act [CLRA] in November 2020 reformulated the terms “custody” and “access’ in favour of decision-making responsibility, parenting time, contact and guardianship, all to be determined according to the best interests of a child. Section 18(1) defines “contact” or a “contact order”, as noted above, differently from parenting:

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child.

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.

What distinguishes a contact order from a parenting order is decision-making responsibility accorded to the latter definitions. Underpinning both, the foremost consideration involving “the time a child spends in the care of” the non-parent or parent is the best interests of the child. The issue then in this case is to what extent should the decision of Scriver and Gordon be overruled in favour of TDS having contact with Arbuzova?

In Agmon Sherr J. rejected the Chapman line of cases favouring parental autonomy where settled intent could be demonstrated, referencing s. 62(3) as conferring a higher status on a person demonstrating that intent. That section is found under Part III of the Act under the heading “Procedure” and, in my view, confers no such status. As with the unsuccessful argument in Ninkovic that the reference to “grandparent” in section 21(1) and section 24(2)(a)(i) conferred no enhanced status or higher standing on a grandparent, “settled intent” is but one of several factors relevant to determining whether a contact order, in the circumstances of this case, is in the best interests of TDS. Section 62 does no more than mandate the proper parties to an application under Part III of the Act. Even so, this court adopts the three-question test set out in Giansante and followed by Agmon and Hicks.”

          Arbuzova v Scriver et al, 2024 ONSC 832 (CanLII) at 21-23

“Non compensatory entitlement occurs when the support obligation arises from the marriage relationship itself when a spouse is unable to become self-sufficient.  It can be based on need.  Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. The needs based support could, therefore, consider the recipient’s ability to become self-sufficient for reasons such as health.

In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. Gray v. Gray, 2014 ONCA 659.

In Ford v. Waldhart, 2022 ONSC 6277, the court said:

Entitlement on a needs basis will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson (“SSAGs”). In the case before me, there is a large discrepancy in the parties’ incomes (regardless of whether I accept the Husband’s calculations or the Wife’s calculations of the Wife’s income).I find that the Husband suffered an economic hardship as a result of the breakdown of the long-term relationship. There is no question that the Husband cannot afford to maintain a standard of living similar to that enjoyed by the parties during the relationship.”

            S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 42-44

“…s. 10 of the FLA provides that questions of title must be settled before the property can be equalized: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 29; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, at pp. 90-91.

Questions of title may not always be resolved by simply looking to legal title; even if a party does not hold legal title, they may advance a claim that they hold beneficial ownership in the property through a resulting or constructive trust.

A resulting trust exists when a party makes a financial contribution to the initial purchase of a property, but then gratuitously transfers their title (i.e. transfers their title for nothing in return) to the other party, with the intention that the transferee holds the transferor’s title for the transferor’s benefit. In other words, one party contributes to the purchase of the property but then transfers their interest in the property to the other party for them to hold “in trust” for the transferring party: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16-19.

When dealing with a matrimonial home, s. 14 of the FLA creates a presumption of a resulting trust when there has been a gratuitous property transfer from one party to the other: Korman, at paras. 26-27. However, as Cromwell J. has observed, “the presumption of resulting trust … is neither universal nor irrebuttable”: Kerr v. Baranow, at para. 20. Accordingly, when the presumption applies, the party holding the interest may rebut the presumption by showing that the gratuitous transfer was a gift and there was no intention for them to hold the transferred interest for the other party’s benefit.

A constructive trust may arise where there was no financial contribution to the initial purchase of the property or gratuitous transfer of any interest, but where the party holding title to the property would be “unjustly enriched” (i.e. would unfairly benefit) if they were permitted to retain full ownership and benefit over the property. It is premised on the idea that one party contributed a benefit to the property, and it would be unreasonable in law or equity to allow the other party to retain that benefit. Accordingly, a constructive trust is a remedy for unjust enrichment.

As the Supreme Court explained in Kerr v. Baranow, at para. 50: “Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”.

There is no presumption of a constructive trust in the FLA, therefore, the party making a claim for a constructive trust has the burden to establish that unjust enrichment exists. Only then may a court impose a constructive trust to remedy the unfair benefit.

Kerr v. Baranow, at para. 32, articulates the three elements to an unjust enrichment claim: (1) an enrichment; (2) a deprivation; and (3) the absence of a juristic reason for the enrichment. To obtain a constructive trust as a remedy, the claimant must also demonstrate a “sufficiently substantial and direct” link, “causal connection”, or “nexus” between the party’s contributions and the relevant property, and that a monetary award would be insufficient in the circumstances: at paras. 51-52.”

          Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 66-72