Siegel's Family Court Calendar

“There is no disagreement about the applicable test. In order to obtain a certificate of pending litigation, the requesting party must have a triable claim to an interest in the land.  He does not have to show that he will succeed. Certain equitable considerations also apply.

In this matter, they are:

a.   whether the property is unique;

b.   the ease or difficulty in calculating damages;

c.   whether damages would be satisfactory compensation;

d.   the presence or absence of a willing purchaser; and

e.   the harm to both parties if the certificate is or is not granted.

The onus is on the respondent to show that there is no triable issue.”

Ahmad v. Marques, 2023 ONSC 6007 (CanLII) at 2-4

“A parent who faces criminal charges in a parenting dispute faces a very difficult conundrum: while the complainant parent may provide a detailed account of alleged events which resulted in charges being laid, the accused parent in a criminal trial has an ongoing right to silence. The accused parent is also presumed innocent, and it is the Crown who bears the burden of proving guilt beyond a reasonable doubt. The accused parent often cannot fully respond to (or even address) the allegations in the family law context without potentially compromising their defence in the criminal matter. This Catch-22 situation for the accused parent is one that must be considered when assessing the evidence of the criminal allegation in the family law dispute (see C. v. C., 2024 ONSC 4319, at paras 65-78).

          Piaskoski v. Piaskoski, 2024 ONSC 5474 (CanLII) at 29

“The mother argues that this court has jurisdiction to hear the appeal because the Vaccination Order was made under the Divorce Act and because its effect is final. She submits that vaccinating a child is an irreversible act.

Based on the Form 8 Application, I accept that this aspect of the order was made under the federal Divorce Act. As such, it would not be caught by s. 19(1)(a.1) of the CJA, which gives the Divisional Court jurisdiction to hear appeals from final orders of the Family Court that were made only under provincial legislation. An appeal from a final order under the federal Divorce Act lies to this court: Mattina v. Mattina, 2018 ONSC 1569, 11 R.F.L. (8th) 69, at para. 33. However, this does not end the inquiry. Contrary to the mother’s submission, this court does not have jurisdiction over all appeals arising from the Divorce Act. This court only has jurisdiction if the order appealed from is also final and therefore not captured by s. 19(1)(b) of the CJA: Goldberg v. Goldberg (1989), 68 O.R. (2d) 124 (H.C.); see also Elgner v. Elgner, 2011 ONCA 483, 105 O.R. (3d) 721, leave to appeal refused, [2011] S.C.C.A. No. 341. In my view, the decision in this case was interlocutory and this court therefore does not have jurisdiction.

The motion judge made the order in the context of a motion to decide various issues between the parties on an interim basis. This is evident from the notice of motion, which seeks interim relief. This is also evident from the disposition paragraph in the motion judge’s decision that states that the orders are made on a temporary basis. Finally, while the parties have not yet obtained an issued order from the court, the form approved between them is for a temporary order.”

          J.M. v. B.S., 2024 ONCA 727 (CanLII) at 6-8

“Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345. In that case, Justice Aston indicated as follows at para 9:

Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.”

Jumale v. Mahamed, 2022 ONSC 5571 (CanLII) at 28

“Under part 1 of the SDA, both the grantor and attorney for property must be 18 years of age. The grantor must have the mental capacity to give a power of attorney at the time of execution (s. 8(1))

Under s. 8(1), a person is capable of giving a continuing power of attorney if he or she:

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c)  knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f)  appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

Formally, the power of attorney form must be signed by the grantor in presence of two witnesses, both of whom must also sign (s. 10(1)). The witnesses to the grantor’s signature may not include the attorney, the attorney’s spouse or partner, the grantor’s spouse or partner, child or any person under guardianship or under the age of eighteen years old: s. 19(2).”

McDonald v. McDonald, 2025 ONSC 5536 (CanLII) at 12-14

“The proper approach to determining support for an adult child who is attending school away from home was set out by Wright J. in Coghill v. Coghill, 2006 CanLII 28734 (Ont. S.C.). It was summarized succinctly by Price J. in Liscio v. Avram, 2009 CanLII 43640 (Ont. S.C.), at para. 36:

The proper approach, in these circumstances, is the one taken by this Court in Coghill v. Coghill, at paras. 44 to 53. In that case, Justice Wright calculated the child’s expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, apportioned the net expenses between the parents in proportion to their respective incomes and required them to pay their respective shares directly to the child. He then calculated the table amount of the non-residential parent’s obligation to pay child support for the four summer months, when the child was living with the residential parent, as if the child were a minor, based on the income imputed to the non-residential parent and required him to pay that amount to the residential parent. He then required the non-residential parent to pay one third of the table amount to the residential parent for the eight months when the child was at university to help defray that parent’s costs of maintaining a home for the child to return to on holidays and during the summer. [Citations omitted.]”

            Craig v. Niro, 2022 ONSC 5178 (CanLII) at 54

“The parties have several frozen embryos kept in storage at a facility operated by Boston Reproductive Medicine, PLLC, also referred to as “CCRM Fertility” or “CCRM Boston”. This facility is located in the area of Boston, Massachusetts. It is not disputed that CCRM Fertility requires both parties to consent, or a Court Order, before embryos can be destroyed or otherwise dealt with.

The father seeks an order for the destruction of the frozen embryos. The mother does not want the embryos to be destroyed, citing moral and religious concerns. Instead, she wishes to relocate the embryos to a more economically efficient facility for indefinite storage at her cost (it currently costs $1,000 U.S. to keep them stored at CCRM Fertility). After the deaths of one or both of the parties, the mother wishes to have the embryos donated to a credible facility to assist a family in reproduction.

The parties’ rights and obligations in relation to the embryos are governed by the detailed contract that they signed with CCRM Fertility. The law applicable to this contract is that applicable in the State of Massachusetts, not the Canadian Assisted Human Reproduction Act, S.C. 2004, c. 2. In my view, this Court does not have jurisdiction to make an order related to embryos that are located outside of Canada.

Therefore, I decline making any order in relation to the parties’ embryos.”

          Malone v. Cappon, 2023 ONSC 5365 (CanLII) at 2-5

“On August 12, 2024, counsel for the Respondent in the Appeal advised the Court that the Respondent in Appeal took the position that the Divisional Court did not have jurisdiction over the appeal since the final orders of MacPherson J. were made in relation to parenting time, child support and divorce under the Divorce Act, and therefore does not fall within the jurisdiction of the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

The relevant parts of s. 19(1) of the Courts of Justice Act provide:

19 (1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario;

(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,

(a) for a single payment of not more than $50,000, exclusive of costs;

(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;

(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or

(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b).

In light of this objection, on August 20, 2024, I invited the parties to file submissions to address the jurisdictional issues raised by the Respondent in Appeal, and directed them to consider this Courts decisions in C.C. v. J.B., 2021 ONSC 2174, at paras. 8 – 10;  Mattina v. Mattina, 2018 ONSC 1569; and, Young v. Vanleer, 2020 ONSC 3606.

The parties’ respective positions were received.

Since the trial judge severed the divorce from the corollary relief, the Appellant argues that no federal legislation or regulations were involved in the Order granted and under appeal.

The Respondent in Appeal takes the position that the final order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). The proceedings were brought in the context of divorce proceedings, and while divorce was severed from the corollary relief, the corollary relief dealt with by the judge included all of the other issues raised in the divorce proceedings: mobility, parenting and support. Since the parents were married, these orders were all made under the Divorce Act.

A review of the decision of the trial judge supports the position of the Respondent in Appeal.

In resolving the parties dispute in relation to “Decision-Making, Parenting Time and Mobility”, MacPherson J. expressly references s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp) when considering the best interests of the child at paras. 182 and 183 of his decision. Similarly, he relied on the definition of a “child of the marriage” in s. 2 of the Divorce Act at para. 229 of his decision.

With regard to the issue of the Appellant’s intention to move the children to Switzerland, MacPherson J.’s decision, at paras. 243-244, relies on s. 16.9 of the Divorce Act. MacPherson J. declined to authorize a relocation of the children, and this is one of the Appellant’s grounds of appeal.

Financial issues such as spousal support and child support were also dealt with pursuant to the applicable sections of the Divorce Act: see paras. 260 and 272-276.

While MacPherson J. does make reference to the Family Law Act and the Children’s Law Reform Act as interpretive aids, it is clear from his decision that his orders stemmed from the provisions of the Divorce Act.

Moreover, as the Respondent in Appeal notes, once divorce proceedings are commenced, the provisions of the Divorce Act govern. Any claims relating to decision making, parenting time, mobility and support are dealt with under the Divorce Act and can be addressed even if the divorce is severed from the corollary relief and dealt with at a later date. See Bridgeman v. Balfour, 2012 ONSC 6583, at paras. 9-10:

The Parliament of Canada has been granted the power to deal with divorce pursuant to section 91(26) of the Constitution Act, 1867. This power allows Parliament to legislate respecting the issues of custody and access when these matters are raised in the context of divorce.  The final order of Lafrenière, J. dated February 16, 2006 as it related to the custody and access issues was not made pursuant to the CLRA, but rather pursuant to section 16 of the Divorce Act, in the context of a divorce proceeding in which the Applicant also requested corollary relief.  This is apparent from paragraph 9 of the order, which refers to the divorce being dealt with at a later date on an uncontested basis.

Although the February 16, 2009 order of Lafrenière, J. was made prior to the divorce being granted, this does not alter the fact that the order was made pursuant to the Divorce Act.  Section 16 of the Divorce Act provides that a court may make an order respecting custody of or access to a child on application by either or both “spouses.”  It is significant that this provision does not refer to “former spouses,” as in section 17 dealing with variation proceedings, or in section 4 dealing with jurisdiction in separate corollary relief proceedings.  The use of the term “spouses” in section 16 reflects an intention that custody and access orders can be made pursuant to the Divorce Act in the context of a divorce proceeding prior to the divorce being made, provided that a divorce order is in fact subsequently granted.

See also: Mattina v. Mattina, 2018 ONSC 1569, at paras. 37-38:

When a divorce is claimed, as in this case, the federal statute prevails. The Divorce Act governs and claims for custody and access under the Children’s Law Reform Act are stayed as set out in s. 27 of the Children’s Law Reform Act:

27 Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court.

In Bridgeman v Balfour 2012 ONSC 6583 at paras. 8-11, the court correctly concluded that when parties seek claims under the Children’s Law Reform Act and the Divorce Act, the custody and access claims are governed by the federal act. Claims for custody and access are stayed pursuant to s. 27.

In this case, it is clear that the order was made under the Divorce Act and as a result the appeal must be heard by the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act: Mattina, at paras. 37-38; C.C. v. J.B., 2021 ONSC 2174, at paras. 8-10; Young v. Vanleer, 2020 ONSC 3606, at para. 4. See also: Janzen v. Cook, 2024 ONCA 654.”

Buhlmann v. Buhlmann-Miyake, 2024 ONSC 5265 (CanLII) at 4-17

“A constructive trust operates with the same force as an express trust. The difference is that one arises from circumstance, whereas the other is created by deed or another formal instrument. Ultimately, the facts must establish a compelling equitable justification for deeming someone’s property the property of another, in the absence of express settlement of a trust. In Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 33, the Supreme Court cautioned:

[A] proper equitable basis must exist before the courts will impress certain property with a remedial constructive trust. The cause of action in unjust enrichment may provide one such basis, so long as the plaintiff can also establish that a monetary award is insufficient and that there is a link between his or her contributions and the disputed property. … Absent this, a plaintiff seeking the imposition of a remedial constructive trust must point to some other basis on which this remedy can be imposed, like breach of fiduciary duty.”

Kimberley Jackson et al. v. Steven Jackson, et al., 2025 ONSC 4703 (CanLII) at 31

“In Anderson v. Anderson, 2023 SCC 13, the parties signed a simple Separation Agreement, which essentially provided that each party would keep the property held in their name and gave up all rights to the other’s property, except for the family home and household goods.  The agreement had been prepared by the wife, and signed at a meeting with two friends as witnesses.  There was no financial disclosure between the parties, and neither had the benefit of independent legal advice before signing it.  Nearly 17 months after the wife petitioned for divorce, the husband counter-petitioned and sought corollary relief, arguing that the agreement was signed without legal advice and under duress.

Although this case was dealt with under Saskatchewan’s legislation, and although one of the issues before the Court was whether the framework in Miglin v. Miglin, 2003 SCC 24 applied (it did not strictly apply), the Supreme Court articulated the following principles, or policy objectives behind paying deference to domestic contracts, at ¶ 33:

(a)   The proper interpretive framework for assessing a domestic contract is statute-specific;

(b)   Useful principles still emerge from Miglin and subsequent jurisprudence;

(c)   Domestic contract should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement;

(d)   Deference flows from the recognition that self-sufficiency, autonomy and finality are important objectives in the family law context;

(e)   The parties are better placed than courts to understand what is fair within the context of their relationship; and

(f)   The private resolution of family affairs outside the adversarial process avoid the costs and tumult of protracted litigation.

The Supreme Court went on to find at ¶ 34 that balanced against those principles, courts should recognize that negotiations take place in a “singularly challenging environment, often at a time of acute emotional stress, in which one or both of the parties may be particularly vulnerable”.  Judges should balance contractual autonomy and certainty, with concerns of fairness, sensitive to the vulnerabilities that can arise in the family law context, but without presuming that spouses lack agency because of the stressful context in which negotiations occur.

At ¶ 35-37, and 42 the Supreme Court wrote that concerns about vulnerabilities may be countered by the presence of procedural safeguards, including full and frank disclosure and professional assistance.  The rigor of a court’s review of a domestic contract though, depends on the statute.  Under Ontario’s legislation, there are minimum requirements that a domestic contract must be in writing, signed by the parties and witnessed:  see section 55(1) of the Family Law Act.  Beyond that, in general a court will look at the circumstances surrounding the contract’s execution and the substance of the agreement, where authorized by the legislation, and by reference to the governing legislative regime.  The purposes and criteria of the governing statute provide an objective yardstick against which to assess the parties’ subjective understanding of what is fair, and they limit the risk that parties will depart significantly from public policy goals expressed by the legislature.”

G.P.R. v. A.K., 2025 ONSC 5398 (CanLII) at 334-337