Month: September 2025

“The legislative criteria under the Divorce Act for granting temporary spousal support orders is identical to those relating to a final support order.   However, the following general principles are applied by the courts in dealing with motions for temporary spousal support:

a.    The party claiming interim spousal support has the onus of establishing that there is a triable (prima facie)case, both with respect to entitlement and quantum.  The merits of the case in its entirety are to be dealt with at trial: Kowalski v. Grant, 2007 MBQB 235 (CanLII), 2007 CarswellMan 422 (Man. Q.B.); Charbonneau v. Charbonneau, 2004 CarswellOnt 5211 (Ont. S.C.J.);  Robles v. Kuhn, 2009 BCSC 1163 (CanLII), 2009 CarswellBC 2239 (B.C. Master).

b.    In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay: Belcourt v. Chartrand,2006 CarswellOnt 2272 (Ont. S.C.J.);  Gerlitz v. Gerlitz, 2005 CarswellAlta 1841 (Alta. C.A.), reversing in part 2005 CarswellAlta 1240 (Alta. Q.B.).

c.    The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial: Kowalski v. Grant, 2007 MBQB 235 (CanLII), 2007 CarswellMan 422 (Man. Q.B.). Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial: Ibid.

d.    The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.   That task is for the trial judge: Ibid.

e.    Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs: Lila v. Lila, 1986 CarswellOnt 294 (Ont. C.A.).;  Kowalski v. Grant,Supra.;  Robles v. Kuhn, Supra.   The objective of encouraging self sufficiency is of less importance: Robles v. Kuhn, Ibid.;  Ridgeway-Firman v. Firman, 1999 CarswellOnt. 1201 (Ont. Gen. Div.).

            Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII) at 38

“There was considerable overlap in the arguments made by Optiva seeking to set aside the arbitration award under s. 46 and the arguments seeking leave to appeal that award under s. 45 of the Act. The application judge addressed the application to set aside the award first. His treatment of many of the same issues in the context of the leave to appeal application was considerably briefer.

The application judge described as “without merit” the argument that leave to appeal should be granted on the ground that the arbitrator based his decision on the limitation of liability clause on a legal theory not advanced by the parties. The application judge had addressed and rejected the same argument on the motion to set aside the award earlier in his reasons: Optiva Inc., at paras. 57-64. I have considered that argument in the context of the appeal from the refusal to set aside the arbitrator’s award: see supra, at paras. 51-59.

The application judge also refused to grant leave to appeal on the interpretation of the limitation of liability clause in the contract. He held that this argument did not raise a question of law alone, as required under s. 45 of the Act. In his view, the arbitrator’s interpretation of the relevant clause involved a question of mixed fact and law: see Optiva Inc., at para. 67.

Optiva has a preliminary problem in advancing the submission that the application judge erred in refusing to grant leave to appeal. The refusal to grant leave under s. 45 of the Act is, as a general rule, not appealable to this court. A refusal to grant leave will be appealable if it reflects an erroneous declining of the jurisdiction given to the Superior Court judge to grant leave under s. 45: Denison Mines Ltd. v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181, at paras. 5-8; Ottawa (City) v. Coliseum Inc., 2016 ONCA 363, 398 D.L.R. (4th) 34, at paras. 23-29.

The application judge did not decline to exercise his jurisdiction to determine whether leave to appeal should be granted under s. 45. He refused leave on the merits. He described one argument based on the arbitrator’s alleged reliance on a legal theory not advanced as “without merit”. He referred to the second argument arising out of the interpretation of the limitation of liability provisions in the contract as raising a question of mixed fact and law. Optiva could only obtain leave to appeal on a question of law alone.

Optiva submits that the application judge was wrong in characterizing the contractual issue as one of mixed fact and law. That error, says Optiva, amounts to “an arbitrary decision that is a declination of jurisdiction.”

The rationale underlying restrictions on appeals to this court from the refusal to grant leave to appeal in the Superior Court would be defeated if this court were to engage in an assessment of the merits of the decision refusing leave under the guise of considering whether the court below declined to exercise its jurisdiction. Under the terms of s. 45 of the Act, the question on which leave is given must be a question of law. The characterization of the issue is part of the merits of the leave application. The application judge’s conclusion that the question raised by Optiva involved a question of mixed fact and law, whether right or wrong, was a determination on the merits of Optiva’s application for leave to appeal. That decision is not appealable to this court.”

          Optiva Inc. v. Tbaytel, 2022 ONCA 646 (CanLII) at 60-66

“The relevant provisions are s. 38(2) and (3) of the Trustee Act.

Section 38(2) provides as follows:

Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

The two-year limitation period applicable to claims under s. 38(2) is set out in s. 38(3) of the Trustee Act, as follows: “An action under this section shall not be brought after the expiration of two years from the death of the deceased.”

In Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.), at para. 8, this court confirmed that the two-year limitation period under s. 38(3) of the Trustee Act is a strict limit and the discoverability principle does not apply to actions under s. 38: “[r]egardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.”

I agree with the appellants’ and intervener’s submissions that the inapplicability of the discoverability principle and the clear two-year limit for bringing an action under s. 38 of the Trustee Act demonstrate the legislative intent that actions against estates be subject to the shorter limitation period. The shorter, two-year limitation period for estate matters reflects the long-established duty of estate trustees to administer estates promptly and diligently, including ascertaining the estate’s liabilities and debts as quickly as possible, as the expeditious administration of estates is in the interests of justice: Appleyard v. Zealand, 2022 ONCA 570, 162 O.R. (3d) 494, at para. 60; Omiciuolo v. Pasco, 2008 ONCA 241, 90 O.R. (3d) 175, at para. 25; Euring Estate (Re), (1997), 1997 CanLII 1080 (ON CA), 31 O.R. (3d) 777 (C.A.), at p. 792. It is also consistent with the interest of finality in the administration of estates: Roth v. Weston Estate, 1997 CanLII 1125 (ON CA), [1997] O.J. No. 4445 (C.A.), at para. 11.”

            Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII) at 23-27

“In Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at paras. 52-54 the court discussed the equitable doctrine of fraudulent concealment:

52               Fraudulent concealment is an equitable doctrine that prevents limitation periods from being used “as an instrument of injustice” (M. (K.), at pp. 58-59).  Where the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud (Guerin v. R., 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 (S.C.C.), at p. 390).  It is a form of “equitable fraud” (Guerin, at p. 390; M.(K.), at pp. 56-57), which is not confined to the parameters of the common law action for fraud (M.(K.), at p. 57).  As Lord Evershed, M.R. explained in Kitchen v. Royal Air Force Assn., [1958] 2 All E.R. 241 (Eng. C.A.), at p. 249, cited in M. (K.), at pp. 56-57:

It is now clear … that the word “fraud” in s. 26(b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S., Ltd., [1949] 1 All E.R. 465, that no degree of oral turpitude is necessary to establish fraud within the section.  What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is unconscionable thing for the one to do towards the other. [Emphasis added in M. (K.).]

 53         While it is therefore clear that equitable fraud can be established in cases where a special relationship subsists between the parties, Lord Evershed, M.R. did not limit its establishment to such circumstances, nor did he purport to define exhaustively the circumstances in which it would or would not apply (see T.P. v. A.P., 1988 ABCA 352, 92 A.R. 122, at para. 10). Indeed, he expressly refused to do so: “[w]hat is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now” (Kitchen, at p. 249, emphasis added).

54           When, then, does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action.  This was the Court’s point in Performance Industries Ltd. v. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] S.C.R. 678 (S.C.C.), at para. 39:

 [Equitable fraud] “… refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained (p. 37).  Fraud in the “wider sense” of a ground for equitable relief “is so infinite in its varieties that the Courts have not attempted to define it”, but “all kinds of unfair dealing and unconscionable conduct in matters of contract come within its ken” [Emphasis added.]

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of taking advantage of a special relationship with the plaintiff.  Nor is the doctrine’s application limited, as my colleague suggests, to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant (paras. 171 and 173-74).  While a special relationship is a means by which a defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour,  such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” (M.(K.), at p. 57, citing Halsbury’s Laws of England (4th ed. 1979), vol. 28, para. 919). In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself.”

            Sanchez v. Sotomarino, 2024 ONSC 5030 (CanLII) at 26

“The court’s discretion not to enforce a settlement is a limited one given the importance of certainty in the resolution of family disputes: see Van Delst v. Hronowsky, 2020 ONCA 329, 318 A.C.W.S. (3d) 504, at para. 1.”

            Dembo v. Hannas, 2020 ONCA 564 (CanLII) at 17

“Everyone is familiar with the importance of financial disclosure to family law litigation: the failure to make this disclosure “impedes the progress of the action, causes delay”, prejudices the requesting party, and wastes judicial time, and stalls disposition of the proceeding. See Roberts v Roberts, 2015 ONCA 450, at para 12.

But the failure to properly litigate these motions is part of the problem. Parties can disagree about the relevance and scope of disclosure. But they should do reasonably—they and their lawyers have to cooperate and communicate about the issues, no matter their feelings about the other side. Anything less will just cost money, take time, and frustrate the process.”

          Johal v. Johal, 2024 ONSC 4844 (CanLII) at 28-29

“The relevant principles surrounding a claim for constructive trust were succinctly set out in Stec v. Blair, 2021 ONSC 6212, at paras. 79-81:

[79]     In order to succeed in her request for an interest in the Property, Hana must first show that Shawn was unjustly enriched.  Unjust enrichment is found when the claiming party can show that the other party is enriched by his or her contributions, that he or she has suffered a corresponding deprivation, and there is no juristic reason for this result: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32.

[80]   If an unjust enrichment is established, the court must then determine the appropriate remedy. The first remedy the court should consider is a monetary remedy.  A monetary remedy can be calculated not only on the basis of value received or a quantum meruit calculation, but where a joint family venture is found, the “value survived” approach may be used.  In the later case, the unjust enrichment is the retention of inappropriately disproportionate amount of wealth by one party when the parties have engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the clamant to the accumulation of the wealth: Kerr, paras. 47, 55, 80-87, Lesko v. Lesko, 2021 ONCA 369, 57 R.F.L (8th) 305, at para. 14, Martin v. Sansome, 2014 ONSC 14, 118 O.R. (3d) 522, at para. 52.

[81] Finally, if and only if monetary damages is inappropriate or insufficient and here is a sufficient substantial and direct link or casual connection between the contributions and the acquisition, preservation, maintenance or improvement of the property, the court may make a proprietary award by impressing the property with a constructive trust. The onus is on the claimant to show that the monetary award is insufficient. The constructive trust interest should be proportionate to the claimant’s contributions: Lesko at para. 14, Martin at para. 58, Kerr at paras. 50- 51, Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R 303, at para. 91.

Hence, a claim of unjust enrichment can be established when the following three elements are found: (i) an enrichment of or benefit to Susan; (ii) a corresponding deprivation of Jaime; and (iii) the absence of a juristic reason for the enrichment.  The remedy for unjust enrichment is a monetary award, before imposing a constructive trust: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522.

As set out in McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66, “in the vast majority of cases, any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act” and that mechanism is by way of an equalization payment.”

Davidson v. Davidson, 2022 ONSC 4375 (CanLII) at 35-37

“The Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, the reasons in which were released on May 20, 2022, set out the framework for determining whether relocation is in the best interests of a child in light of the developments in the case law and legislation since Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, was decided. Karakatsanis J, writing for the majority, provided this summary:

[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.

[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).

[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.

[151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.

[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:

• • • • •       the reasons for the relocation;
        •       the impact of the relocation on the child;
        •       the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
        •       the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
        •       the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
        •       whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

[155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward.

The Berry v. Berry case, 2011 ONCA 750, is instructive.  In it, the court was dealing with a situation wherein the child had been living approximately half of the time with each parent in Toronto since their separation.  The issue was whether a relocation with the mother to Kingston after which he would see his father only every second weekend was in the best interest of the child.  The court found that “reducing the time the child lives with the father from approximately one half of the time to every second weekend and shuttling the child back and forth between two cities is “highly disruptive” and “did not attach proper weight to the maximum contact principle”: Berry v. Berry at para. 27.

In regard to this, I note that, although the Divorce Act has since been amended, the court is now, as it was then, required to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child: See also B.V. v. P.V. 2012 ONCA 262.

The legal principles (first set out in Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. 3234 at para. 7) applicable to interim motions regarding mobility are:

1. 1. 1. 1. 1.    A court will be more reluctant to upset the status quoon an interim basis and permit the move when there is a genuine issue for trial.
            2.    There can be compelling circumstances that might dictate that a judge ought to allow the move.  For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
            3.    Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial. See also Cesare v. Cesare2024 ONSC 34, para. 70

The importance of maintaining the status quo in interim matters was explained by J. Wright J. in Kimpton v. Kimpton [2002] O.J. 5367 at paras. 1 and 2, as follows:

1)      There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof.  On this consideration hangs all other considerations.  On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo.  This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, 1969 CanLII 544 (ON SC), [1969] 2 O.R. 631, (aff’d by Laskin J.A. at 1969 CanLII 438 (ON CA), [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 1992 CanLII 14032 (NS CA), 38 R.F.L. (3d) 373.  By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.  See on this issue Irwin v. Irwin (1986), 1986 CanLII 6303 (ON SC), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 1990 CanLII 7339 (SK KB), 28 R.F.L. (3d) 416.

2)      Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

This passage continues to be referred to in the case law.  For example, Garduno v. Golec [2024] O.J. 2735, para. 45.

This was explained further by MGJ Quigley J. in Datars v. Graham (2007), 2007 CanLII 34430 (ON SC), 41 RFL (6^th) 51 (Ontario SCJ), para.16:

The problem that this court faces on this motion [mobility]…is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”

          Belhadj v. Meddah, 2024 ONSC 4904 (CanLII) at 23-28

“Section 249(4) of the OBCA states as follows:

In an application made or an action brought or intervened in under this Part, the court may at any time order the corporation or its affiliate to pay to the complainant interim costs, including reasonable legal fees and disbursements, for which interim costs the complainant may be held accountable to the corporation or its affiliate upon final disposition of the application or action.

In Alles v. Maurice, 1992 CarswellOnt 132 (Ont. Gen. Div.), Blair, J., as he then was, articulated the test a shareholder must meet in order to obtain an interim costs order:

i.   There is a case of sufficient merit to warrant pursuit; and

ii.  The complainant shareholder is genuinely infinancial circumstances which, but for an order under s. 249(4), would preclude the claim from being pursued: para 9.

As set out in Hames v. Greenberg, 2014 ONSC 245 (S.C.J.), the Alles test is a low bar to meet and does not require the complainant shareholder to make out a prima facie case of oppression.  Rather, a judge must be “satisfied that the claims advanced are well over the “frivolous and vexatious” marker – after all, money is being asked for – but without the need of establishing a claim on a balance of probabilities: para 22.

The first stage of the test may be satisfied even where the parties have put forward conflicting evidence on the merits of the oppression claim. The question is simply whether the complainant shareholder has established a case of sufficient merit to warrant pursuit: Alles, at para 19; Hames, at paras 37-38 and 43; Giffin v. Sootiens, 2010 NSSC 438 (CanLII) at paras 44-45.

The complainant shareholder must lack the financial resources to fund the litigation in order for interim costs to be awarded. However, impecuniosity is not a pre-condition to obtaining an order. A complainant shareholder is not required to sell his/her home, de-register RRSPs, or unreasonably reduce his/her standard of living in order to fund the litigation. Further, a complainant shareholder may qualify for interim costs because he/she is unable to fund litigation for the reason that his/her financial resources are tied up in the company that is the subject of the litigation: Alles, at para 19, Giffin, at paras 31, 34-37, 58 and 63.

In Hames, the court awarded interim costs to a complainant even though he had approximately $300,000 in assets, some of which were RRIFs. The complainant had not made any efforts to borrow money or mortgage his property to fund the litigation, but the court concluded that it was doubtful that he had the ability to raise the funds being requested on the motion. The applicant was elderly, did not have employment income, and had previously drawn down a line of credit. His legal fees were an obstacle to him bringing forward his meritorious oppression claim, so an award of interim costs was warranted: Hames, para 62-85.

When granting an order for interim costs, the Court is to consider the value of the complainant shareholder’s shares. In other words, the Court may consider the fact that, should the complainant shareholder fail to make out his/her case, the amount of interim costs awarded could be applied against the value of the complainant shareholder’s shareholdings: Hames, at para. 77.

          John v. John, 2020 ONSC 5337 (CanLII) at 79-85

“Reasons serve three main functions:  they communicate to the affected parties why the decision was made, they provide accountability, and they permit effective appellate review.  They also focus the decision-maker, to help ensure fair and accurate decision-making.  See R. v. R.E.M., 2008 SCC 51 ¶ 11, 12; see also R. v. Sheppard, 2002 SCC 26 ¶ 15, 24. 

At ¶35, 43, 44 of  R. v. R.E.M., the Supreme Court summarized three principles that guide appellate courts when considering what is required of a trier in terms of reasons.  First, appellate courts should take a functional, substantive approach to the sufficiency of reasons.  They are to read the reasons as a whole, in the context of the evidence and arguments at trial, and with an appreciation for the purposes or functions for which they are delivered.

Second, the basis for the decision must be “intelligible”, meaning capable of being made out, and logically connected to its basis.  The trier need not set out his or her process in arriving at the decision in detail, nor must he or she necessarily provide detailed recitations of the evidence or the law.  Rather, the reasons must show, when read in context of the record and the submissions, that the trier has “seized the substance of the matter”.  The degree of detail in any particular case may vary with the circumstances.

Third, to determine whether the logical connection exists, the appellate court should look to the evidence, the submissions and the history of the trial to determine the “live issues” as they emerged during the trial.

An appellate court must start from a stance of deference towards the trier’s perception of the facts.  It must ask itself whether the reasons in context explains the basis for the decision.  If the evidence is contradictory, it should ask itself whether the trier recognized and dealt with the contradictions.  It should do so similarly with difficult or novel questions of law.  The critical question to ask is whether the reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?  If the appellate court concludes that the trier, on the record as a whole, did not deal with the substance of a critical issue, then it may conclude that the deficiency constitutes an error in law.  See R. v. R.E.M. ¶ 52-57.

See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ¶ 79-91.”

Farmer v. Farmer, 2021 ONSC 5913 (CanLII) at 111-116