Author: dawi

“When a party fails to comply with a court order, Family Law Rule 1(8) gives the court the power to make “any order that it considers necessary for a just determination of the matter”. This includes an order striking the pleading.

A pleading should only be struck in circumstances that are “exceptional and egregious”.

As the court stated in Manchanda v. Thethi, 2016 ONCA 909 at para. 13, the obligation to disclose financial information is the most basic obligation in a family law proceeding. The obligation is strict, immediate and ongoing. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. A party who chooses “not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

In Roberts v. Roberts, 2015 ONCA 450 at para.12, the court warned that the “[f]ailure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.” Further, it should not be necessary to issue court orders to obtain compliance with this immediate obligation.

In Norris vs. Norris, 2019 ONSC 2795 at para 20 the court set out a three-step test governing the exercise of judicial discretion to strike a party’s pleadings:

1. 1. 1. 1. 1.    Is there a triggering event justifying the striking of pleadings?
            2.    Is it appropriate to strike the pleadings in the circumstances of the case?
            3.    Are there other remedies in lieu of striking pleadings that might suffice?”

         McCormack v. Fishbayn, 2020 ONSC 351 (CanLII) at 64-68

“Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:

2. Who may be compelled to make partition or sale

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

3(1) Who may bring action or make application for partition

Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

In Batler v. Batler (1988), 1988 CanLII 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.), Grainger J. held that a joint tenant has a prima facie right to sale prior to trial.  This right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.

Grainger J. held that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession, or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale.

The Court of Appeal addressed the issue further in both Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 and Martin v. Martin (1990), 1990 CanLII 1225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff’d at (1991), 1991 CanLII 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.). The Court recognized that a joint owner has a prima facie right to partition and sale; however, as stated by the court in Silva at para. 23:

… where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A.  Putting it more broadly, the application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

In Martin, the Ontario Court of Appeal confirmed that the sale of the matrimonial home prior to trial should not be made as a matter of course. At para. 26:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders.  In my view, an order directing the sale of the matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate.  Orders for the sale of the matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization) should not be made as a matter of course.  See Binkley v. Binkley (1988), 1988 CanLII 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.).  In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. See Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).

The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible See Kereluk v. Kereluk 2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.

Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. See Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).

A pending equalization claim may also be relevant. While the court cannot compel one joint tenant to sell to the other, or give either joint tenant a right of first refusal, a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable, a sale should be delayed to allow proper consideration of that option. See Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).”

            Dombrowski v. Dombrowski, 2021 ONSC 445 (CanLII) at 34-42

“The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. The failure to abide by this fundamental principle impedes the progress of the action; causes delay; disadvantages the opposing party; and impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6.

Indifference or willful blindness to the most basic disclosure obligations is more than a nuisance or irritant. Such contemptuous behaviour undermines the integrity of the court process and public confidence in our system. To the extent that inadequate disclosure creates a strategic advantage — by causing delay, frustration and needless expense for the opposing party — the court has both an obligation and a self-interest to severely sanction such mischief: see Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111.”

         Taylor v. Schultz, 2021 ONSC 334 (CanLII) at 27-28

“The Court of Appeal for Ontario has stated in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47 that

…the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: (citations omitted).”

         M.M. v. E.M., 2020 ONSC 352 (CanLII) at 147

“As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence.

The most common internet definition of a spoofed email is when the email address in the “From” field is not that of the sender. It is easy to spoof an email, and not always so easy to detect. For sophisticated senders – such as actors who are “phishing” for information of commercial value – the origins of a spoofed email may never be detected.

Spoofing originates from the idea of a hoax or a parody, and in the early days of the internet, it was a legitimate tool for managing communications so that a user believed that an email came from one source, when it actually came from another.

Spoofing first arose as a term in family law (more commonly referred to in the U.S.A. as divorce law) to describe cell phone users hiding their identity and/or location for nefarious purposes. As a result of advances in mobile apps, websites, forwarding services and other technologies, callers are now able to change how their voice sounds, to evade a blocked number or to pretend to be a person or institution with whom their target was familiar. Targets can be tricked into disclosing sensitive information, harassed, stalked and frightened.

Any electronic medium can be spoofed:  texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents.

What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage.

In R. v. C. B., the Ontario Court of Appeal foreshadowed the relevance of inauthentic electronic evidence. “[T]endered as bogus” is a critical catch that is not always apparent. A party’s lament that “it wasn’t me” may appear credible at one stage of the proceeding but may no longer be credible at a later stage. An email or text that on first reading appears authentic might later be found to be inauthentic when examined within the evidence as a whole.

Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence:  direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.

In a digital landscape, spoofing is the new “catch-me-if-you-can” game of credibility.

I urge lawyers, family service providers and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well. High conflict litigation not only damages kids and diminishes parents; it weakens society as a whole, for generations to come.”

 “Whether a solicitor-client relationship exists is a question of fact. A formal, written retainer agreement is neither necessary nor determinative. The issue is “whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd v General Motors of Canada Ltd, 2015 ONSC 3824 at para 413, citing Jeffers v Calico Compression Systems, 2002 ABQB 72 at para 8.

In determining whether a solicitor-client relationship exists, the following indicia are considered, although not all indicia need be present:

(a) the existence of a contract or retainer;

(b) a file opened by the lawyer;

(c) meetings between the lawyer and the party;

(d) correspondence between the lawyer and the party;

(e) a bill rendered by the lawyer to the party;

(f) a bill paid by the party;

(g) instructions given by the party to the lawyer;

(h) the lawyer acting on the instructions given;

(i) statements made by the lawyer that the lawyer is acting for the party;

(j) a reasonable expectation by the party about the lawyer’s role;

(k) legal advice given;

(l) any legal documents created for the party;

(m) the party’s vested interest in the outcome of the proceeding; and

(n) the belief of other parties to the litigation that the party was represented by the lawyer.

See Jeffers, supra at para 8; Trillium, supra at para 412; Rye & Partners v 1041977 Ontario Inc., [2002] OJ No. 4518 at paras. 13-14.”

Lenihan v. Shankar, 2021 ONSC 330 (CanLii) at 247-256

“This is a matter under the Children’s Law Reform Act, R.S.O., 1990 c. C.12 [“CLRA”] as the parties were never married.  Section 29 of the CLRA provides that a court shall not make an Order varying an Order in respect of custody or access unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.

Case law makes clear that there is a significant difference between applying to vary an interim Order versus a final Order. In general, an interim Order is intended to continue until trial. Interim Orders are most commonly varied only in “compelling” or “exceptional” circumstances. See for example Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708, in which the court stated as follows regarding the variation of interim Orders:

Given that interim Orders are ‘meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,’ requests to change them should be rare. [emphasis added]

See also Lonsdale v. Smart, 2018 ONSC 3991, in which the court held that “compelling reasons” are required for an interim variation under the CLRA.”

            Lusted v. Bogobowicz, 2021 ONSC 269 (CanLII) at 24-26

“At the outset of the motion, the applicant’s counsel properly raised a concern about the respondent’s affidavit and disclosure of his settlement offer. The respondent’s explanation confirmed the disclosure was intentional. I ruled that the settlement communication was improperly before the court, that I would ignore it, and no further reference should be made to it during submissions. Rule 18(8) of the Family Law Rules is clear. Offers are confidential and the terms of an offer shall not be mentioned in any document filed in the Continuing Record and shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. I also note the common law and following statement by the Supreme Court of Canada in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII), [2014] 1 S.C.R. 800, [2014] S.C.J. No. 35, at para. 31:

Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in the litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement.”

Hamilton v. Hamilton, 2021 ONSC 274 (CanLII) at 4

“In Titova v. Titov, 2012 ONCA 864 (CanLII), [2012] O.J. No. 5808 (Ont.C.A.) at paragraph 23 Justice Rouleau for the Court set out the principles governing the recognition of s. 7 expenses:

23  In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

In Hawkins v. Hawkins, 2019 ONSC 7149 Justice Gregson at paragraphs 73 and 74 elaborated on those principles:

73  The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. 1695, (Ont. C.A.).

74  To determine reasonable and necessary the court in Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) and Correia v. Correia, 2002 MBQB 236 stated the following factors should be taken into consideration:

1.The combined income of the parties;

 2.The fact that two households must be maintained;

 3.The extent of the expense in relation to their combined income;

 4.The debt of the parties;

 5.Any prospect for a decline or increase in the parties’ means in the  near future; and

6.Whether the non-custodial parent was consulted about the expenses before they were incurred.”

Meszen v. Meszen, 2021 ONSC 224 (CanLII) at 115-116

“I turn to the nature of an RESP, which is dealt with both in the Income Tax Act, as well as in certain case law. 

Firstly, an RESP is not a section 7 expense.  Parents cannot be compelled by Court Order to contribute into one, absent an agreement.  See Popovski v. Pirkova, 2017 ONSC 2363 at 49; see also Smith v. Smith, 2011 NSSC 269 at 80. Despite that, in this case, the parents initially agreed to contribute into RESPs in a certain way and to allocate that money in a certain way.  And they subsequent altered that agreement.

Nevertheless, the RESPs are still assets that are owned by one or the other.  Although neither parent tendered her and his RESP plan documents setting out the terms of the plans, the statements do indicate that the mother is the owner of the plan for H.S., and the father is the owner of the plan for I.S. that he subsequently set up.

At paragraphs 34-38 of Vetrici v. Vetrici, 2015 BCCA 146, the British Columbia Court of Appeal wrote the following about the nature of RESPs:

[34]   The RESP is a type of investment registered pursuant to s. 146.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).  A RESP is a savings / investment vehicle for anticipated post-secondary education costs that provides two benefits: (a) income tax deferral on investment income (s. 146.1(6)); and (b) matching grants from the federal and some provincial governments.  Practically speaking, a RESP is an agreement between a “subscriber” (typically, a parent or grandparent) and the “promoter” (i.e., provider) of an investment product (often a chartered bank) to invest the subscriber’s contributions consistent with s. 146.1.  However, unlike contributions to a Registered Retirement Savings Plan (“RRSP”), the contributions to a RESP are made from tax-paid funds.

[35]   When a RESP is opened, the subscriber names a beneficiary (typically, a child or grandchild) (s. 146.1(1)).  If in the future the beneficiary enrolls in an eligible post-secondary institution, then the subscriber can request the promoter to make educational assistance payments to the beneficiary or to the subscriber for the beneficiary’s use (s. 146.1(2)(g.1)).  The educational assistance payments are comprised of the investment income earned on the contributions and any grants (s. 146.1(1)).  The subscriber also can request that the promoter pay out contributions to the beneficiary.  The beneficiary claims as his or her income funds attributable to the grants and investment income, which were subject to the tax deferral, but not the proportion drawn from the contributions (s. 146.1(7)).

[36]   As described by Mr. Justice Hall in Luedke v. Luedke, 2004 BCCA 327 (CanLII) at para. 25, 44 B.C.L.R. (4th) 35, a RESP is a way of “making provisions for an anticipated expense in the future”.  However, contributions to a RESP and any accumulated investment income remain the property of the subscriber until the subscriber directs payment to the beneficiary.  If for some reason the beneficiary does not attend an eligible post-secondary institution, the Income Tax Act provides several mechanisms to address the funds held in the RESP.  In some circumstances, the funds may be transferred to the subscriber’s RRSP, less any grants, or the beneficiary’s Registered Disability Savings Plan, if he or she is eligible for one (ss. 146.1(1.1) and (1.2)).  If one of those options is not available, then grant funds are returned to the government and the remaining funds are returned to the subscriber.  That portion of the remaining funds attributable to investment income is taxable in the hands of the subscriber (s. 146.1(7.1)).

[37]   Of particular note is that the subscriber may, at any time, withdraw from a RESP monies for which the subscriber is entitled to a refund of payments, i.e., monies that are not attributable to grants (s. 146.1(1)).  When this is done, the subscriber must pay tax on any monies attributable to investment income (ss. 146.1(1), (7.1), and (7.2)).  Where, on the breakdown of a marriage or common-law partnership, spouses divide a RESP by court order or agreement, the amount transferred is excluded from the recipient spouse’s income (ss. 146.1(7.1) and (7.2)).

[38]    Also of note is that because a RESP belongs to a subscriber, it forms part of a deceased subscriber’s estate and, accordingly, should be taken in account for estate planning purposes:  see Valorie Pawson, “Beneficiary Designations 101” (Materials prepared for the Continuing Legal Education Society of British Columbia’s Wills and Estate Planning Basics, May 2012) at 9.1.8-9.1.10.

Similarly, as Mesbur J. said in Popovski v. Pirkova at paragraph 49:

RESPs are savings vehicles, earmarked for post-secondary education of a child, but not necessarily required to be used for that purpose.  I have no evidence that Mr. Popovski is prohibited from withdrawing from the RESP he has established.  Importantly, I have no evidence A will necessarily attend a post-secondary institution.  If and when that occurs, the funds in the RESP, if any can be taken into account in apportioning the parent’s obligations to contribute to the cost of post-secondary education.

See also M. (C.S.) v. L. (W.S.), 2015 BCPC 252 at paras. 26-28 for other case law commentary about the nature of an RESP.”

            C.S. v. D.A.S., 2020 ONCJ 16 (CanLII) at 143-147

“In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:

Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.”

         A.P. v. L.K., 2021 ONSC 150 (CanLII) at 211