Month: July 2025

“Under s. 9(1) of the Family Law Act, R.S.O. 1990, c. F.3, the Court has discretion to order advances on equalization payments: See Zagdanski v. Zagdanski 2001 CanLII 27981 (ONSC), [2001] O.J. No. 2886; Mikhail v Mikhail, 2023 ONSC 5289.  The factors to consider are summarized in Mikhail at para. 20 as follows:

▪  Whether there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

▪  Whether there will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;

▪  Whether there is a need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and

▪  Whether there may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been a delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.”

          Vargas-Hernandez v. Graff-Guerrero, 2024 ONSC 4164 (CanLII) at 22

“The appellant submits the trial judge erred in awarding any spousal support to the respondent because she erroneously applied the criteria under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) for determining eligibility to spousal support when she should have considered the factors under the Family Law Act. She also says the trial judge’s reasons are inadequate to explain the amount and duration of the support ordered, especially given the respondent’s failure to provide an evidentiary basis for his support claim.

This court in Ballanger v. Ballanger, 2020 ONCA 626, at paras. 22-23, recently and compendiously reiterated the well-established deferential appellate standard of review and its rationale in relation to support orders:

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.

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.

There is no dispute that in determining the respondent’s entitlement to spousal support, the trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. While this was an error, the question is whether this error is so material that it wholly undermines the trial judge’s decision.

In our view, it does not. There is significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self‑sufficiency within a reasonable period of time figures prominently in both statutes. Giving the trial judge’s reasons the generous reading they require, it is clear that she considered all the relevant factors in determining whether spousal support was warranted, including the respondent’s lack of contributions and work efforts, his mental health issues, his diminished resources, the appellant’s income, the parties’ lifestyle during their relationship, the parties’ ages, and the length of their relationship.”

          Boudreau v. Jakobsen, 2021 ONCA 511 (CanLII) at 13-16

“The respondent mother sought to file two video recordings to support her allegations regarding the applicant’s drinking and abusive behaviour. The applicant was not able to view the videos until after he filed his reply materials.

Both of the video recordings are presumptively inadmissible. The prejudicial effect of secret recordings is presumed to outweigh their probative value in family law proceedings except in the most limited circumstances:  Whidden v. Ellwood, 2016 ONSC 6938 at paras. 96-98, Van Ruyen v. Van Ruyven, 2021 ONSC 5963 at para. 41.

Making a surreptitious video of one’s intimate partner offends the privacy interests of the partner and the family. Such videos are destructive to the maintenance, restructuring, and encouragement of constructive family relationships: Veljanovski v Veljanovski, 2016 ONSC 2047 (CanLII) at para. 49. As Justice Pazaratz observed in Whidden v Ellwood at para. 86, the “obvious reality is that taking videos is a strategic act of aggression and escalation”.”

            Kidd v. Mokrenko, 2024 ONSC 4002 (CanLII) at 35-37

“If I am incorrect with respect to my conclusions pertaining to ostensible authority and a deeper analysis of Derrick’s instructions to Mr. Smith was required to deal with Derrick’s argument that Mr. Smith did not have instruction, then Mr. Smith’s evidence in this regard is highly relevant and I find an implied waiver of privilege with respect to discussions surrounding Derrick’s instructions to settle.  In raising this issue, Derrick has placed Mr. Smith’s authority and conduct directly in issue, and Mr. Smith’s evidence bears directly on this question.

In making these findings I have considered the following legal principles:

•       Solicitor-client privilege is a fundamental right, but not an absolute one:  Laurent v. Laurent, 2019 ONSC 3535 (CanLII), paras. 35-36.
•       Privilege may be waived expressly or impliedly by the client.
•       The law governing waiver of privilege by implication focuses on (1) implied intention and (2) fairness and consistency:  Lawless v. Anderson,2009 CanLII 58602 (ONSC), at para. 10.
•       Intention is determined objectively, including when a party has taken a position that would make it inconsistent to maintain the privilege:  Lawless v. Anderson,at para. 10; Froates v. Spears, [1999] O.J. No. 77, 1999 CarswellOnt 60 (Gen. Div.), at para. 12.
•       Implied waiver has been found in circumstances where the relevance in question is high and the principles of fairness and consistency require disclosure to permit a party to defend itself or in the interests of justice, when the client puts the advice and conduct of the lawyer in issue, and when a party pleads reliance on legal advice for justify actions taken:  Mathews, Dinsdale & Clark LLP v. 1772887 Ontario Limited et al., 2021 ONSC 2563 (CanLII), paras. 30 and 31, citing Martin v. GiesbreschtGriffin, 2018 ONSC 7794 (CanLII); Dramel Limited v. Multani, 2020 ONSC 4440, at para. 60; Laurent v. Laurent, at para. 37.
•       Implied waiver has been found when a client alleges that his or her counsel did not have instructions to proceed with a course of action or accept terms of settlement.  Denying that instructions were given to settle a matter puts that question into issue, thereby waiving privilege over communications related to any such instructions.  Therefore, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter:  Tsakiris v. Tsakiris, 2007 CanLII 44184 (ONSC), at paras. 21-22; Bentley v. Stone, 1998 CanLII 14710 (ONSC), at paras. 4-12; Laurent v. Laurent, at para. 38, citing Benson v. Kitt, 2018 ONSC 7552 at para. 16.”

Lamarche et al. v. Labrash, Labrash v. Lamarche et al., 2023 ONSC 4186 (CanLII) at 70-71

“This Court must regularly consider allegations of family violence on an interim motion when, like in this case, there are competing versions of facts.  The Legislature has nonetheless directed this Court to consider family violence and its implications even when making parenting orders – temporary or final.  The allegations cannot be ignored.  This presents challenges when the Court is forced to make interim findings on a contested affidavit record.

Regrettably, there are cases where one parent makes false allegations of abuse, in the hopes of securing an “upper hand” in the family litigation.  This is a reprehensible tactic because it can wrongfully deny children time with a parent.  Alleged abusers often respond by saying the allegation is false and a mere tactic.  When criminal charges are laid against an alleged abuser, that party may be instructed by criminal cases to be careful in responding to abuse allegations in the family proceeding.”

De Rocchis v. De Rocchis, 2024 ONSC 3983 (CanLII) at 27-28

“Pursuant to Rule 24(18) of the Family Law Rules, the court “may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees”.

General principles relating to the exercise of that jurisdiction include the following:

a.   As indicated by the permissive wording of the rule, the making of such orders is discretionary.  In exercising that discretion, courts strive to ensure that the primary objective of fairness under the Family Law Rulesis met; e.g., by ensuring that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial.  Simply described, such awards are made to “level the playing field” between family law litigants, especially in situations involving an impecunious  party and a much more prosperous opponent; i.e., where one party in a matrimonial or family case is demonstrably at a severe financial or economic disadvantage: see Rule 2(3)(a) of the Family Law Rules; Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.), at paragraphs 8-9; Ludmer v. Ludmer, 2012 ONSC 4478 (CanLII), [2012] O.J. No. 3681 (S.C.J.), at paragraphs 14-16; Rea v. Rea, 2016 ONSC 382, at paragraph 14; and Romanelli v. Romanelli, 2017 ONSC 1312, at paragraphs 15-16, 19 and 41.

b.   Such awards are no longer made only in “exceptional” cases, or dependent on a finding of “exceptional” circumstances”, in the context of family law litigation: see Stuart v. Stuart, supra, at paragraph 9; Ludmer v. Ludmer, supra, at paragraph 15; Rea v. Rea, supra, at paragraph 14; and Romanelli v. Romanelli, supra, at paragraph 15.

c.    Nor is the making of such orders limited to cases where the requested payment is to be “taken out of” an expected equalization payment.  Such orders are possible even in cases where there will be no equalization payment; e.g., in cases where spousal support is the only meritorious claim: see Stuart v. Stuart, supra, at paragraph 14; Ma v. Chao, 2016 ONSC 585 (Div.Ct.), at paragraph 10; Rea v. Rea, supra, at paragraph 14; and Romanelli v. Romanelli, supra, at paragraphs 19 and 42.  As emphasized in Stuart v. Stuart, supra, at paragraph 14, leveling of the playing field “should not be limited to those with an expected equalization payment”.  As emphasized in Romanelli v. Romanelli, supra, at paragraph 41, a party whose only meritorious claim is spousal support still cannot pursue settlement or consider settlement offers without knowing where he or she stands; something which may very well require valuations of the property and income of the opposing spouse, and an order for payment of interim disbursements and fees pursuant to Rule 24(18).  That was found to be the case in Romanelli v. Romanelli, supra, where the business affairs of the spouse facing a claim for spousal support were complex and involved numerous corporations.  Ibid., at paragraphs 37-41. More generally, demonstration of a moving party’s ability to repay amounts a litigation opponent is required to pay pursuant to Rule 21(18) of the Family Law Rulesis not required before the court will make such an order: see Romanelli v. Romanelli, supra, at paragraphs 18-20.

d.    However, the party requesting such an order bears the onus on such a motion, and must demonstrate clearly that the disbursements are necessary and reasonable, having regard to the needs of the case and the funds available: see Stuart v. Stuart, supra, at paragraph 11; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14.  In that regard, it has been emphasized that such necessity may be based not only on the complexity of legal issues to be litigated in a case, but also on indications the litigation will be hard fought; e.g., in cases where there are few if any admissions and extensive denials, such that proof of a claim will require the retention of counsel engaged in time-consuming effort, and a claimant is likely to be completely lost without the ongoing assistance of counsel.   See Romanelli v. Romanelli, supra, at paragraphs 34, 36 and 42. For example:

i.    if an expert is the subject of a disbursement in respect of which payment is sought, the party requesting the order must demonstrate that there is a clear need for the expert’s services, and should provide appropriate information and/or explanation in relation to the expert’s proposed fees: see Stuart v. Stuart, supra, at paragraph 11; and Ludmer v. Ludmer, supra, at paragraph 58.  Having said that, courts also recognize that provision of precise information and cost estimates in that regard may not be possible in situations where the litigation is at an early stage and a disbursement in question relates to the expert analysis of documentation and information that has yet to be provided and/or which is the subject of a disclosure dispute.  See Rea v. Rea, supra, at paragraph 18-19; and Romanelli v. Romanelli, supra, at paragraph 49 and 58.  The general circumstances may suffice to make it sufficiently clear that the matter is complicated and that an expert’s analysis necessarily will be involved and time-consuming. However, that does not mean that it is reasonable or necessary for the full amount of such an anticipated expense to be advanced “up front”.  See Rea v. Rea, supra, at paragraph 19; and

ii.    a claim for payment of past and/or anticipated lawyer fees should be supported by an affidavit from the party’s lawyer providing details of when and how outstanding fees were incurred and details of anticipated legal costs, including how much time the lawyer expects to spend on anticipated matters, (such as trial preparation and/or trial), who will do the work, and at what hourly rates: see Rosenberg v. Rosenberg, [2003] O.J. No. 2193 (S.C.J.), at paragraph 19; Ludmer v. Ludmer, supra, at paragraphs 59-62; Rea v. Rea, supra, at paragraphs 15 and 26; and Romanelli v. Romanelli, supra, at paragraphs 48-51. Requiring the provision of such information, to justify such awards, is a reflection of the court’s ongoing concern about controlling the process, particularly in current times where costs of litigation, including lawyers and experts have become prohibitive.  See Rosenberg v. Rosenberg, supra, at paragraph 19; and Rea v. Rea, supra, at paragraph 15.  Having said that, the court also recognizes that exact estimates of future legal costs inherently are speculative, difficult or impossible at the early stage of litigation, and that a party seeking a Rule 24(18) order in relation to future legal fees effectively may be limited to providing a general “plan of attack” and an outline of the future steps contemplated to bring a matter to trial; i.e., a summary of anticipated legal steps and the estimated expense of those steps, without providing a formal bill of costs.  See Harbarets v. Kisil, [2014] O.J. No. 4239 (S.C.J.), at paragraph 5; Rea v. Rea, supra, at paragraphs 27 and 33; and Romanelli v. Romanelli, supra, at paragraphs 46, and 49-51.

Where such particularity has not been provided in relation to a motion of this nature, (i.e., where a motion for payment of interim disbursements and fees fails to supply proper evidence of the reason for such disbursements and fees, and estimated costs in that regard), a court may make adverse findings, make downward adjustments in the amount to be awarded, or dismiss or adjourn the Rule 24(18) aspects of a motion without prejudice to the party seeking such an order renewing the request on the basis of “better and proper” evidence outlining, with greater detail and supporting evidence, the basis of the request: see Hall v. Sabri, [2011] O.J. No. 4178 (S.C.J.), at paragraphs 73 and 78-79; Ludmer v. Ludmer, supra, at paragraph 62; and Romanelli v. Romanelli, supra, at paragraphs 44, 61, 63 and 65.

e.    The party requesting such an order also must demonstrate that he or she is incapable of funding the requested amounts: see Stuart v. Stuart, supra, at paragraph 12; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14.  In that regard, it nevertheless also has been noted that a spouse with significant assets but little income, (especially in comparison with the other spouse), should not be required to deplete his or her resources, however substantial, in order to advance a claim.  See Hughes v. Hughes(2009), 2009 ABQB 154 (CanLII), 68 R.F.L. (6^th) 119 (Alta.Q.B.), at paragraph 25.  Demonstration of the responding party’s “ability to pay” is also a relevant consideration: see Ludmer v. Ludmer, supra, at paragraphs 34 and 51-56; and Rea v. Rea, supra, at paragraph 31.  In that regard, while a responding party similarly should not be required to erode capital in order to satisfy an award of interim disbursements, in the absence of exceptional circumstances, doing so may be considered reasonable and necessary in situations where there is a wide disparity between the parties’ respective financial positions and/or where the party has a demonstrated history of eroding capital or using it to finance past expenditure.  See Rea v. Rea, supra, at paragraph 31.

f.    Moreover, the claim or claims being advanced by the party requesting such an order must be meritorious, insofar as that can be determined on the balance of probabilities at the time of the request for disbursements: see Stuart v. Stuart, supra, at paragraph 13; and Ludmer v. Ludmer, supra, at paragraph 16.  In this context, the issue of whether a claim is meritorious is nevertheless a fairly low threshold, especially at an early stage of proceedings: see Rea v. Rea, supra, at paragraph 24; and Romanelli v. Romanelli, supra, at paragraph 26.  It certainly does not mean that a claimant has to prove his or her case prior to obtaining such an order; a requirement that clearly would be too high, as someone who has proven his or her case then would have no need for such an order to facilitate proof of his or her case.  In this context, demonstration of a “meritorious” case only requires that the claimant have a prima faciecase, in the sense of there being no reason to conclude that a claim is clearly without merit, and the claimant having a case which “makes sense to prosecute” having regard to facts presented by way of affidavit; i.e., a reasonable case on the face of the material filed.  In that regard, the test may be close to the test for approval of a legal aid certificate; i.e., would counsel advise a client of modest means to proceed with the claim? See Rea v. Rea, supra, at paragraph 24; and Romanelli v. Romanelli, supra, at paragraphs 24-25.

g.    Furthermore, any order made pursuant to Rule 24(18) of the Family Law Rulesshould not immunize a party from adverse cost awards.  Such orders are made to allow a case to proceed fairly.  They should not be such that the recipient of such a payment feels like he or she has a “licence to litigate”: see Stuart v. Stuart, supra, at paragraph 10; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14.

Not surprisingly, the quantum of awards made pursuant to what is now Rule 24(18) of the Family Law Rules has been rising in a manner commensurate with the significant increases in the cost of litigation witnessed over the past several decades.  For example, in Rosenberg v. Rosenberg, supra, it was noted that such awards in relation to interim disbursements and fees were not known to have exceeded $35,000.  By 2016-2017, that upper range figure was considered “out of date”, as a recent review of more contemporary reported decisions indicated various cases in which such awards had been made in the range of $100,000 to $500,000; see Rea v. Rea, supra, at paragraph 16, and Romanelli v. Romanelli, supra, at paragraph 57.  Having said that, it also has been suggested that awards in the upper level of that range were outliers dependent on their particular facts; e.g., with claims for $200,000 or more pursuant to Rule 24(18) still being regarded as “staggering” and amounts which risked such awards effectively providing a claimant with litigation carte blanche, which was not the intended purpose of the ruleS: see Gold v. Gold, [2009] O.J. No. 4000 (S.C.J.), at paragraphs 43-45; and Romanelli v. Romanelli, supra, at paragraphs 59-60.

In my view, such reported decisions confirm that Rule 24(18) awards in the six-figure range outlined above are certainly possible, but also emphasize that courts should take a cautious approach in that regard.  Such awards are not made as a matter of course, and must still be demonstrably justified in the manner outlined above.

          Baker v. Baker, 2023 ONSC 4082 (CanLII) at 65-68

“Courts have repeatedly said that joint custody (when that terminology was used) requires “a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own differences behind those of the child’s best interests”: Giri v. Wentages, 2009 ONCA 606, at para. 10; see also Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.).

In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at paras. 11-12, the Court of Appeal stated:

[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.  On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.  There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. […]

[12] Insofar as the ability of the parties to set aside their personal differences and work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration.

In L.B. v. P.E., 2021 ONCJ 114, at paras. 95-97, the Court summarized the additional applicable case law as follows:

[95] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.

[96] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict.  A standard of perfection is not required and is obviously not achievable.  See: Griffiths v. Griffiths 2005 ONCJ 235 (CanLII), 2005 CarswellOnt 3209 (OCJ).  The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

[97] Financially supporting one’s children in a responsible manner is an important part of being a parent.  The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests.  Jama v. Mohamed, 2015 ONCJ 619.

[98] In S.S. v. S.K., 2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate.  Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents’ conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent.  Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a joint custody order can be a recipe for disaster.  It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.”

            T.P. v. A.E., 2021 ONSC 6022 (CanLII) at 131-133

“On the other hand, I am of the view that the CAS records are significantly more reliable. CAS records can be admitted as business records in some circumstances, even if the author is not called as a witness. Sears v. Corstine, 2020 ONSC 7968. How reliable those records are well be determined on whether the CAS records record something that was directly said by a witness, or whether they record second- or third-party opinions. O.G. v. A.M., 2022 ONSC 2478. Finally, CAS records are subject to more scrutiny in a case where the CAS is a party. The Children’s Aid Society of Carleton v. V.M., 2020 ONSC 221.”

          Lopatowski v. Lopatowski, 2024 ONSC 3833 (CanLII) at 48

“The principles for the creation of a new tort were discussed by this court in Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494. There, the trial judge had recognized the new tort of harassment. This court cautioned that common law change is evolutionary. It happens slowly and significant change is best left to the legislature. At paras. 20-21:

Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically, as McLachlin J. explained in Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, [1989] S.C.J. No. 94, at p. 760 S.C.R.:

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.

When remedies already exist, a new tort is not required. As stated in Merrifield, “legal remedies [are] available to redress conduct that is alleged to constitute [the new tort.]. The tort of [intentional infliction of emotional distress] is one of these remedies…” (at para. 42).

A new tort is not required when the only difference from established torts is the quantum of damages. In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, the court explained, at para. 27, that the tort of sexual battery was not necessary because the harms suffered by the plaintiff were addressed by the established tort of battery and the sexual component only went to damages.

Merrifield left open the possibility that there could be a situation arising where existing torts do not address the impugned conduct. This is what occurred in Caplan v. Atas, 2021 ONSC 670, where the tort of internet harassment was recognized. Corbett J. concluded that existing torts did not adequately respond to the extraordinary behaviour before him. The conduct spanned over 20 years and went beyond the bounds of decency and tolerance. Yet, the plaintiff had not established injury, so intentional infliction of emotional distress was not available. At paras. 168-170, he explained:

In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them.

…

The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. …

I do not have evidence that the plaintiffs have suffered visible and provable illnesses as a result of Atas’ conduct. One would hope that a defendant’s harassment could be brought to an end before it brought about such consequences. To coin a phrase from Sharpe J.A., quoted by the Court of Appeal in Merrifield, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.” The law would be similarly deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.

          Ahluwalia v. Ahluwalia, 2023 ONCA 476 (CanLII) at 50-53

“The Court of Appeal has repeatedly cautioned against granting motions for partial summary judgment where there is a risk of re-litigation of issues and inconsistent outcomes: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at paras. 33-35.  The Court of Appeal has ruled that courts should only grant partial summary judgment “in the clearest of cases”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 26-29; Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497, at para. 17.”

          Docherty v. Catherwood, 2024 ONSC 3824 (CanLII) at 78