Siegel's Family Court Calendar

“Generally, a litigant will not be permitted to continue with proceedings where a costs order remains unfulfilled: Munro v. Canada (Attorney General) (1994), 1994 CanLII 7517 (ON SC), 120 D.L.R. (4th) 746, at paras. 9, 12.  Justice Dunphy summarized the principles that guide the court’s exercise of discretion under these rules, which include that:

a.   where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused;

b.   the right of access to the courts must be accompanied by the responsibility to abide by the Rules of Civil Procedureand to comply with orders of the court; and

c.   the court ought not to sit in appeal of the prior cost awards as seeking relief against prior costs orders constitutes a collateral attack on orders previously made: Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50.”

Wilcox v. Abittan, 2024 ONSC 3180 (CanLII) at 10

“When considering the difference between examinations for discovery and cross-examinations on an affidavit, I always start with the seminal decision of MacKinnon ACJO in Chitel et al. v. Rothbart et al., 1982 CanLII 1956 (ON CA). The Associate Chief Justice reminded the profession that although the two procedures look alike, they are not the same. MacKinnon ACJO wrote:

Counsel seemed to have confused, in part at least, the right to limit “fishing expeditions” on examination for discovery with a severe limitation on the extent of proper cross-examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross- examine and effectively frustrate its legitimate purpose.

Discovery, as discussed below, is compelled disclosure of private information. However, as discussed by MacKinnon ACJO, cross-examination out of court on an affidavit is different. It replicates a cross-examination on sworn evidence in open court.”

            Wu v. Di Iorio, 2023 ONSC 3352 (CanLII) at 44-45

“This court owes substantial deference to the trial judge’s findings of fact and mixed fact and law. The court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1; see also Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. In addition, the imputation of income for support purposes is a discretionary and fact-specific exercise: Levin v. Levin, 2020 ONCA 604, at para. 12; see also Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561.”

            White v. White, 2024 ONCA 431 (CanLII) at 14

“Certainty in the resolution of financial issues flowing from the dissolution of family relationships has been a policy imperative underlying much of the recent reform of family law in Canada. Child support, spousal support, and the division of family property have all been clarified through legislative and regulatory reform. While certainty should be tempered by limited judicial discretion to ensure fairness, certainty facilitates two essential policy objectives of family law: the encouragement of settlement and the avoidance of costly litigation to resolve financial issues.

The Government of Ontario enacted legislation that came into effect in 2012 amending the Pension Benefits Act, R.S.O. 1990, c. P.8 (the “PBA“) and the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA“), to simplify the valuation of pensions for purposes of calculating net family property. This legislation brought much-needed certainty to the valuation of what, in many cases, is the most significant asset held by litigants on their valuation date. A formula was established for pension valuations and the responsibility for calculating that value was imposed on pension administrators. Thus, courts largely got out of the business of pension valuation. For litigants this provided both certainty and fairness. It also allowed them to avoid the costly process of retaining actuarial experts and litigating competing pension valuations.

The Ontario rules for valuating provincially regulated pensions for equalization purposes are relatively clear and easily applied. However, the valuation of federally regulated pensions is not as certain. Parliament has not reformed the law regarding pension valuations to bring it in line with the Ontario legislation. Until it does, Ontario courts must apply, to the extent reasonably possible, the provincial approach to valuing federal pensions for family law equalization.”

Van Delst v. Hronowsky, 2020 ONCA 329 (CanLII) at 1-3

“For the benefit of the parties, I include the following excerpts from Steps to Justice: Your Guide to Law in Ontario:

Parenting coordination is an alternative dispute resolution, also called family dispute resolution process.  Parents can meet with a parenting coordinator for help with following the parts of their court order, family arbitration award, or separation agreement that are about parenting.

…

A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders.

A parenting coordinator doesn’t decide major things like decision-making responsibility or parenting time. These used to be called custody and access. But a parenting coordinator can decide minor issues like:

•    small changes to a parenting access plan such as vacations and holidays
•    scheduling activities and arranging for pick up and drop off to activities like ballet, hockey, or tutoring
•    children’s travel and passport arrangements
•    how your children’s clothing and school items are moved between your and your partner’s homes

A parenting coordinator helps you speak with each other to try and agree on your parenting issues. If you can’t agree, they can decide for you. Their decision is based on information they get from the parents, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.

The process is similar to mediation-arbitration. But the parenting coordinator cannot make major decisions. Their job is to help you follow the parts of your court order, family arbitration award, or separation agreement that are about parenting.

Parenting coordinators are trained to:

•    understand the needs of children
•    help each parent discuss their parenting issues
•    help parents to manage and keep children out of conflicts

…

Some of the reasons to use parenting coordination are:

•    You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children’s needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
•    It can be faster than going to court once you have agreed on all of the process details and signed a parenting coordination agreement.
•    It can be cheaper than going to court to resolve minor parenting issues.

Community Legal Education Ontario, “What is Parenting Coordination?” (1 March, 2021), online: https://stepstojustice.ca/questions/family-law/what-parenting-coordination/?gclid=.

It is not within this court’s jurisdiction to order the parties into Parenting Coordination absent their consent.”

L.M. v. K.P., 2024 ONSC 2959 (CanLII) at 104-105

“What Bilah is seeking from this Court does not fall under the scope of s.6 of the Arbitration Act. Rather, Bilah argues that the Arbitrator’s finding that he lacked jurisdiction to make the financial disclosure order she requested is the reason she comes to this Court asking for relief.

There are cases where this Court has made financial disclosure orders in the context of a family law case in the midst of an arbitration. However, these orders have been made generally to compel a non-party to make disclosure because he/she or a company have not been a party to the Mediation/Arbitration agreement and, as a result, the Arbitrator has no jurisdiction over the non-party.

For example, in Garnet v. Garnet et. al., 2016 ONSC 949 (CanLII), Jarvis, J. considered a request by the wife for financial disclosure which the husband claimed was in the possession and control of a third party in the midst of an arbitration. Since the third party was not bound by the arbitration agreement, the arbitrator had no jurisdiction to order production against him. Jarvis, J. held that the arbitrator’s lack of jurisdiction “does not preclude this court from ordering such disclosure in appropriate circumstances.”

At paragraphs 10-13, Jarvis, J. stated:

[10]  Family law arbitrations are governed by the Arbitrations Act, S.O. 1991, c. 17 and the Family Law Act and, in the event of a conflict, the latter Act prevails.  Paragraph 9.7 of the parties’ Arbitration Agreement requires the parties, unless they agree otherwise, to comply as in court proceedings with the Family Law Rules.

[11]  Family Law Rules 19 (11) and 20 (24) deal with documentary disclosure from a non-party and the confidentiality obligation imposed on the recipient of that disclosure.

(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original.

(24) When a party obtains evidence under this rule, rule 13 (financial disclosure) or rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the exceptions in subrule (25).

[12]  The third party in this case is not a signatory to, or bound by, the Arbitration Agreement signed by the spousal parties and so the arbitrator has no jurisdiction to order production against him.  But that does not preclude this court from ordering such disclosure in appropriate circumstances: Lafontaine v. Maxwell, 2014 ONSC 700 (CanLII).

[13]  In Lafontaine, disclosure was ordered from non-party business associates of the husband.  Accepting that considerable efforts had already been made by the husband and non-party in that case to answer the wife’s information requests, the court was not prepared to disagree with the arbitrator’s decision that certain specified information needed to be produced.  This case is little different in my view.  No appeal was taken by the husband to the award made by the arbitrator on May 20, 2015 that documents be produced and, equally as pertinent, the arbitrator expressed no view about the relative probity of the disclosure sought.”

Medjuck v. Medjuck, 2024 ONSC 2980 (CanLII) at 29-32

“A decision to pursue self-employment where a payor earns no income, is not a reasonable choice. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children.: Norris v. Riley, 2023 ONCH 121 (CanLII), at para. 95 (g) and 98(c).

However, income cannot be imputed to a party without there being sufficient evidence to ground an income to impute. The party attempting to impute income must provide a breakdown of how the figure being sought to impute was calculated. While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610.

The onus is on Fiona, since she is seeking the imputation, to “establish an evidentiary foundation for the intentional unemployment or under-employment: employment”: McNeil v. Dunne, 2019 CarswellOnt 6388 (S.C.J.), para. 50. The spouse need only show a prima facie case: McNeil v. Dunne, supra, para. 72. Once established, the burden shifts to the other party “to satisfy the court as to their income level and that income should not be imputed”: A.E v. A.E., 2021 CarswellOnt 18880 (S.C.J.), para. 258. In other words, “the onus shifts to the individual seeking to defend the income position they are taking”: McNeil v. Dunne, supra, para. 72.”

            Bagust-Homes v. Devine, 2023 ONSC 2978 (CanLII) at 46-48

“Rule 31 of the Family Law Rules governs contempt motions based on a party’s alleged failure to comply with a court order.

The Court of Appeal in Ontario has clearly stated that in family law litigation, the civil contempt remedy is one of last resort. A contempt order should not be granted where other adequate remedies are available to the aggrieved party, such as a variation of an order or enforcement of one. Great caution should be exercised when considering contempt motions in family law cases. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.

The contempt power is to be used with restraint and in exceptional circumstances – essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2 (4) of the Rules: Teal v. Teal, 2020 ONSC 6395, at para. 37; Ricafort v. Ricafort, 2006 ONCJ 520, at para. 17.

In Ruffolo v. David, 2019 ONCA 385, the court stated the following:

[18]   We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

 The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]

[19]   Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.

In Chong v. Donnelly, 2019 ONCA 799, the court added:

[12]   In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.

In Moncur v. Plante, 2021 ONCA 462, Jamal J.A. set out the general principles governing the use of the court’s power to find a party in civil contempt for breaching a court order, at para. 10:

1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
            2.  Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes dePrescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
            3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo,at para. 19; Chong, at para. 11; and Valoris, at para. 41.

The contempt remedy is primarily remedial and aimed at encouraging compliance with the court order: Kim v. McIntosh, 2023 ONSC 5121, at para. 23.

In Jackson v. Jackson, 2016 ONSC 3466, at para. 56, Justice Chappel summarized the following principles regarding the use of contempt in family court proceedings:

a)      it ultimately remains a matter for the Court’s discretion;

b)     because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

c)      it cannot be reduced merely to a mechanism for enforcing judgments;

d)     it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

e)      it is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;

f)      the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

The onus is on the person alleging contempt to prove it beyond a reasonable doubt: Antoine v. Antoine, 2024 ONSC 1397, at para. 20; Kim, at para. 16; Snively v. Gaudette, 2020 ONSC 2895, at para. 19. Hearsay evidence is not admissible: Snively, at para. 19, unless it is not disputed: r.14(19). The criminal standard of proof beyond a reasonable doubt applies: Moncur v. Pante, 2021 ONCA 462 at para. 10(1).

If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing: Fischer v. Milo (2007), 2007 CanLII 40211 (ON SC), 44 R.F.L. (6th) 134 (Ont. S.C.); N.B. v. A.B., 2021 ONSC 3467, at para. 27.

Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence: Antoine, at para. 38.

Ultimately, in respect of each of the alleged breaches, the court must make the following findings:

1. 1. 1. 1. 1.   That the relevant order was clear and unambiguous;
            2.   The fact of the order’s existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
            3.   That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
            4.   That the respondent was given proper notice of the terms of the order. S.H. v. G.H., 2010 ONSC 5615, at para. 43.

A judge retains an overriding discretion to decline to make a contempt finding even where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. See: McKinnon v. McKinnon, 2018 ONCA 596, at para. 36.

The order alleged to have been breached must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favorable construction: Szyngiel v. Rintoul, 2014 ONSC 3298, at para. 20.

Although r. 31 of the Family Law Rules does not prescribe a particular format, contempt proceedings are generally bifurcated with the first phase addressing liability for contempt, and if liability is established, the second phase addressing the appropriate penalty: Antoine, at para 39; Carey v. Laiken, 2015 SCC 17, at para. 18.

If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Kim, at para. 22.”

            Barbara v. Cordeiro, 2024 ONSC 2951 (CanLII) at 3-18

“The rebuttable presumption of resulting trust arises upon gratuitous transfers between adults.  This means the transferee holds the beneficial ownership of the property in trust for the transferor unless the presumption is rebutted.  A beneficial owner has been described as “the real owner of property even though it is in someone else’s name”: Pecore v. Pecore, 2007 SCC 17 at para 4, citing Csak v. Aumon (1990), 1990 CanLII 8070 (ON SC), 69 D.L.R. (4th) 567 (Ont. H.C.J.), at p. 570.  The presumption of resulting trust can be rebutted by evidence establishing, on a balance of probabilities, the transferor’s intention to gift the property: Pecore, at paras. 24, 43 and 44.

This standard of proof requires “clear, convincing and cogent” evidence: F.H. v. McDougall 2008 SCC 52, at para. 46; MacIntyre v. Winter, 2021 ONCA 516 at para. 25.  In other words, absent this evidence, the presumption will determine the result: Pecore, at para. 44.

A party that seeks to establish that a transfer was a gift must show the following three conditions have been met, as set out in Falsetto v. Falsetto, 2023 ONCA 469, at para. 27:

a.   The donor intended to gift the property;

b.   The gift was accepted by the recipient; and

c.   A sufficient act of delivery or transfer of the property occurred to complete the transaction.”

McCready v. McCready, 2024 ONSC 2922 (CanLII) at 8-10

“The court of appeal dealt with contingent liabilities in Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271.  In Greenglass, at the valuation date, the husband faced contingent legal costs associated with litigation that had begun during the marriage.  In determining how to value this contingent liability, Epstein J.A., writing for the court, made the following observations, at paras. 26-27:

[C]ontingent liabilities are to be taken into account so long as they are reasonably foreseeable. See Leslie v. Leslie (1987), 1987 CanLII 8321 (ON SC), 9 R.F.L. (3d) 82 (Ont. H.C.); Nicol v. Nicol (1989), 1989 CanLII 8825 (ON SC), 21 R.F.L. (3d) 236 (Ont. H.C.); Crutchfield v. Crutchfield (1987), 1987 CanLII 8303 (ON SC), 10 R.F.L. (3d) 247 (Ont. H.C.); and Drysdale v. Drysdale (1994), 1994 CanLII 7453 (ON SC), 9 R.F.L. (4th) 20 (Ont. U.F.C.J.).

In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date: Johnston v. Johnston, [1998] O.J. No. 5495 (Gen. Div.), at para. 59, aff’d on other grounds 2000 CanLII 14718 (ON C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 234.  In Drysdale, at paras. 14-17, Beckett J. noted that where courts have found no or a very low risk that a guarantee would be called at the valuation date, the value of the contingent liability has been determined to be nil.  However, in Drysdale it was found that there was a real possibility that the guarantee would be called upon, though the amount could not be predicted with any certainty.  Finding it unrealistic to value the liability at either zero or the full amount of $200,000, Beckett J. valued the liability at 50 percent of the amount in question: see also Salamon v. Salamon, [1997] O.J. No. 852 (S.C.J.).  This approach was approved by this Court in Cade v. Rotstein (2002), 2004 CanLII 24269 (ON CA), 181 O.A.C. 226 (C.A.). [Emphasis added].

For equalization purposes, the court is to value a contingent debt based on the probability that it would be collected.  Courts are frequently called upon to assess the actual worth of a claim, asset or liability, by discounting its face value where the evidence indicates it is unlikely that the debtor will ever be called upon to pay: see Zavarella v. Zavarella, 2013 ONCA 720, 117 O.R. (3d) 641, at para. 38.  To fairly calculate equalization, the court must make a realistic determination of the value of debt in a net family property calculation, and that determination is based on the reasonable likelihood that the debt will ever be paid: Zavarella, at para. 39.

This court has observed that it may be necessary to have expert opinion evidence to arrive at the present value of a future judgment on the valuation date: see Sheikh v. Sheikh, 2010 ONSC 1407, at para 47.  While hindsight evidence may not be permissible under any circumstances, it does not even arise in this case since the estate litigation was no further ahead at trial than it was on the valuation date.  This lack of progress may inform the assessment of the foreseeability or probability of the applicant being found liable to pay anything in the estate litigation.”

            Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII) at 88-90