Author: dawi

“During the case conference Mr. Bastien advised that his clients did not wish the examination for discovery of Mr. Fenton to proceed by videoconference. However, in light of the implementation of social distancing in response to the pandemic, conducting an in-person examination at this time is not possible. Therefore, they request a delay in the proceedings until the requirement for social distancing is ended.

The plaintiffs object to a videoconference examination because they maintain:

a.   that they need to be with their counsel to assist with documents and facts during the examination;

b.   it is more difficult to assess a witness’s demeanour remotely;

c.   the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and

d.   the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

The Rules of Civil Procedure, RRO 1990, Reg. 194, that govern how lawsuits are conducted, have provided for videoconferencing for more than 20 years. In 1999, Rule 1.08 was added to the Rules as follows:

1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):

1. 1. 1. 1. 1. 1. 1. A motion (Rule 37).
                  2. An application (Rule 38).
                  3. A status hearing (Rule 48.14).
                  4. At trial, the oral evidence of a witness and the argument.
                  5. A reference (Rule 55.02).
                  6. An appeal or a motion for leave to appeal (Rules 61 and 62).
                  7. A proceeding for judicial review.
                  8. A pre-trial conference or case conference.  O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1; O. Reg. 438/08, s. 3 (1).

(2) If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements.  O. Reg. 288/99, s. 2.

(3) If the parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just.  O. Reg. 288/99, s. 2; O. Reg. 438/08, s. 3 (2).

(4) The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3).  O. Reg. 288/99, s. 2.

(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter.  O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.

Initially, an order for the use of remote proceedings required the consent of all parties or, in the absence of consent, that a party bring a motion. In 2008, Rule 1.08(3) was amended to enable the court to require remote proceedings at the court’s own initiative. This reflects an evolution of the acceptance of the use and perceived value of remote communication technology whereby it can be ordered even where neither side asks for it or wants it.

Rule 1.08(1) is written very broadly. It allows for the use of remote technology in any step in a motion, application, trial, etc. I have no hesitation finding that an examination for discovery ordered in association with a mini-trial of a summary judgment motion is a step in a motion and a trial.

Looking at the factors in Rule 1.08(5), the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion. Neither is demeanour a factor in this case. The transcript of an examination for discovery of Mr. Fenton can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour.

I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.”

Arconti v. Smith, 2020 ONSC 2782 (CanLII) at 17-26

“The father argues that the order should be set aside. There are serious issues, including custody.  Some latitude must be given for his noncompliance since he was a self-represented litigant.

The mother argues that this is but another example of the father’s conduct in delaying and not cooperating and that, in any event, a review of the facts would lead to the conclusion that there is no reason to set aside the sole custody order.

The parties agree, following Gray v. Gray, 2017 ONCA 100 that the appropriate procedure in this case is a motion under Rule 25(19)(e) of the Family Law Rules.

The parties also agree that the test for setting aside a default judgment is as in Mountain View Farms Ltd.  v. McQueen, 2014 ONCA 194:

[47] The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski, [2012] O.J. No. 2971, 2012 ONSC 3836 (S.C.J.), at paras. 19-20 and 23-24.

[48] The court must consider the following three factors:

(a)     whether the motion was brought promptly after the defendant learned of the default judgment;

(b)     whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

(c)     whether the facts establish that the defendant has an arguable defence on the merits.

[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 87 O.R. (3d) 479, [2007] O.J. No. 1685, 2007 ONCA 333, at para. 2:

(d)     the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e)     the effect of any order the motion judge may make on the overall integrity of the administration of justice.

[50] These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

[51] For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.”

A.C. v. T.D., 2019 ONSC 2815 (CanLII) at 10-13

“The parties agree that, when determining whether to grant leave to intervene under r. 13.02 Rules of Civil Procedure, the court must consider:

a.      The nature of the case;

b.      The issues that arise in the case; and

c.      The likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without injustice to the immediate parties: see, e.g., Jones v. Tsige, 2011 CanLII 99894, 106 O.R. (3d) 721 (C.A.), at para. 22, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 CanLII 6886, 74 O.R. (2d) 164 (C.A.).

 …

Courts have identified several principles that apply when considering whether a proposed intervener may make a useful and distinct contribution to a proceeding:

a.  The proposed intervener must have a real, substantial and identifiable interest in the subject matter and a distinct perspective to be articulated that is different from that of the parties: Craft et. al. v. City of Toronto et. al., 2019 ONSC 1151, 302 A.C.W.S. (3d) 499, at para. 63;

b.  The likelihood of intervention is a function of many variables including, but not only, the experience and expertise of the proposed intervener: Jones, at para. 25;

c. The proposed intervener must offer something more than the repetition of a party’s argument, though some overlap may be permitted: Craft, at para. 62, Halton, at para. 45.

d.  It is desirable to have all relevant possibilities brought to the court’s attention, including submissions on the impact of its judgment. This is true even where the intervener may bring only a slightly different perspective to be considered: Craft, at para. 64.

e.  The fact that the position of a proposed intervener is generally aligned with the position of one of the parties is not a reason to deny it leave if the proposed intervener can make a useful contribution to the analysis of the issues before the court: Seaduto v. Cucu, 2017 ONCA 224, 227 A.C.W.S. (3d) 283, at para. 11.”

A.P. v. L.K., 2020 ONSC 2520 (CanLII) at 35 & 52

““Cohabit” means to live together in a conjugal relationship whether within or outside marriage.” See s. 1(1) of the FLA.

Ms. Naegels submits that parties can cohabit without living under the same roof and relies on Justice J. Blishen’s analysis in Vanesse v. Seguin, 2008 CanLII 35922 (ON SC), 2008 CarswellOnt 4265, (Ont.S.C.J.), appealed on other issues. See Kerr v. Baranow, (2011) SCC 10, (sub nom. Vanasse v. Seguin).  In Vanesse, Blishen J. found that the parties had been cohabiting for approximately 14 months before they moved into the same residence.  To arrive at this conclusion, she considered the decisions in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.), Stephen v. Stawecki, [2006] O.J. No 2412 (Ont. C.A), M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 and Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).

In Hodge, the Supreme Court of Canada said cohabitation is a constituent element of a common law relationship but cohabitation is not synonymous with co-residence. “Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.” (See paragraph 42).  In keeping with Hodge, the Ontario Court of Appeal in Stephen v. Stawecki said a finding of cohabitation is not precluded by the fact that one party continues to maintain a separate residence. The court went on to say that considering the range of potential living arrangements between couples, a definitive, bright line test for cohabitation was not possible. The court in Stephen also noted that such a test would be inconsistent with the flexible approach taken in M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, paragraph 60.

In Molodowich v. Penttinen (1980),1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) the court listed several factors to consider when determining whether parties are cohabiting or not. The shelter arrangements made by the parties is but one factor. The others include their sexual and personal behaviour, the services provided to one another, their social activities, the perception of the community, the economic ties and supports between them, and whether there are children.  There can be many elements in each general category.  The factors identified in Molodowich have been referred to in many cases over the past four decades including the Supreme Court of Canada’s decision in M.v. H. The factors also received implicit approval in Hodge.

…

The decision in Hodge v. Canada (Minister of Human Resources Development), also addressed when a common law relationship ends. The court said, “a common law relationship ends when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”[emphasis added].

Consideration of the Molodowich factors is also relevant to determining the date of separation.”

Naegels v. Robillard, 2019 ONSC 2662 (CanLII) at 22-25 & 37-38

“I turn now to address the trial judge’s description of the award as “transitional” support. In my view, this description does not reflect what the trial judge actually awarded. For that reason, I address the concept of transitional support and its connection to limited-term support.

Transitional support is not a category of support. It is a word that is sometimes used to describe a spousal support award that is for a brief period of time, in other words, a short limited-term support award. It was the word “transitional” that appears to underlie the appellant’s submission that the amount of the award was excessive. Since the phrase “transitional support” is vernacular rather than a recognized legal term, it is generally not advisable to use it.

A limited-term support award is generally designed to enable the recipient, after a short term marriage, to either achieve self-sufficiency or adjust to a lower standard of living. According to Moge, limited-term support should be rarely awarded in marriages of long duration. Where limited-term support is awarded after a long term marriage, particularly one with children, the term must be long enough to satisfy the objectives of the Divorce Act.

In Fisher v. Fisher 2008 ONCA 11, the parties had been married for 19 years and had no children. At the time of separation, the wife was 41 and the husband was 42. The trial judge made a step-down support order which provided support at decreasing amounts for three years followed by a review, if requested. Since the wife had received interim support, the total term of support was four years. This court set aside the trial award and substituted a support order for an increased amount and for a term of seven years, without the possibility of a review. Although the marriage was lengthy, the court considered that after a period of seven years, the wife, who was still young, would either earn a higher income or adapt to a different lifestyle.”

Racco v. Racco, 2014 ONCA 330 (CanLII) at 38-41

“Rule 24 (1) of the Family Law Rules creates a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.  This presumption applies equally to custody and access issues.  See Mattina supra at paragraph 12.

As such, “success” is the starting point in determining a costs award. See Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 at paragraph 1.

In assessing the success of a party, the court looks to the positions taken by the parties at trial, see Berta v. Berta, 2015 ONCA 918 at paragraph 102 as well as to the offers to settle exchanged by the parties as compared with the terms of the final order see Lawson v. Lawson 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 and Smith-Howarth v. Bilcliff supra at paragraph 9.

Where there are a number of issues before the court, it can have regards to the dominant issue at trial see Firth v. Allerton, [2013] O.J. No 3992 and Mondino v. Mondino, 2014 ONSC 1102.  Success may also be determined on an issue by issue basis.  However, not all issues bear equal weight in determining success.  See Jackson v. Mayerle, 2016 ONSC 1556.”

Rogers v. Rogers, 2020 ONSC 2610 (CanLII) at 7-10

“Providing full financial disclosure is the most basic obligation in family law. In Burke v. Poitras, 2018 ONCA 1025 (CanLII) at para 11-12 the court addressed this obligation:

11   It is well-established that the most basic obligation in family law is the parties’ duty to disclose financial information and that this requirement is immediate, automatic, and ongoing. As a result, it should not require a court order to enforce: see Roberts v. Roberts, 2015 ONCA 450 (CanLII), 65 R.F.L. (7th) 6, at paras. 11-14. As this court warned in Manchanda v. Thethi, 2016 ONCA 909 (CanLII), 84 R.F.L. (7th) 374, at para. 13: “Those who choose 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.”

12   This is because, as this court recognized in Roberts, at para. 12, breach of the disclosure obligation causes real harm:

Failure 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.

[Emphasis added.]

As stated in Burke v. Poitras at para. 7, an order striking a pleading can be made at any time in the proceeding to promote the overarching purpose of the Family Law Rules:   

7         The express purpose of the Family Law Rules is to ensure fairness, save time and expense, and give appropriate resources to the case (while allocating resources to other cases), in order to manage the case, control the process, ensure timelines are kept, and orders are enforced. As clearly stipulated in subrules 1.(7.1), (8) and (8.1), an order, including an order to strike pleadings, can be made at any time in the process, including the settlement conference, to promote these overarching purposes. In this way, any order that promotes the overall objectives of the rules may be made at any time, including at a settlement conference.”

C.A. v. K.G., 2019 ONSC 2571 (CanLII) at 114-115

“As I have said, under the Guidelines, child support is calculated on the payor’s total income for income tax purposes. Lifestyle is clearly not a type of income, receipt or benefit included in total income. Canadians are not taxed on lifestyle.

Equally clearly, however, a payor’s lifestyle often will be relevant to whether a court may impute income under s. 19(1) of the Guidelines. For example, it may be apparent from lifestyle that a payor is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings, and yet declares minimal income for tax or child support purposes. In such a case, the recipient who calls evidence of the payor’s lifestyle will ask the court to draw the reasonable inference that the payor must have a greater income than he or she has disclosed.

This occurred in Davids v. Davids, [1998] O.J. No. 2859, 66 O.T.C. 321 (Gen. Div.), where a chartered accountant was able to demonstrate from the husband’s financial data that he was receiving income from a source he could or would not explain. Given the absence of any explanation, the court drew an inference that the husband’s earnings were more than reported. Similarly, in Biamonte v. Biamonte, [1998] O.J. No. 541, 36 R.F.L. (4th) 349 (Gen. Div.), based on evidence of the parties’ lifestyle, income was imputed to a husband who was shown to have a cash component to his restaurant business in addition to his declared income. While these cases demonstrate that a party’s lifestyle can inform the question of whether the payor has diverted income, or underreported income, lifestyle is not a stand-alone ground for imputing income.

On this issue, I conclude that lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.”

Bak v. Dobell, 2007 ONCA 304 (CanLII) at 40-43

“The appellant submits that the trial judge was required to make a finding of custody and that his failure to do so constitutes an error of law. 

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons (emphasis added).

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.”

M. v. F., 2015 ONCA 277 (CanLII) at 37-40

“The ODSPA (Ontario Disability Support Program Act) recognizes the right of disabled adults to apply in their own right for income support.  This is a fundamentally important element of the statute.  It furthers one of the program’s underlying purposes:  to effectively serve persons with disabilities who need assistance (see s. 1(c) of the ODSPA). 

Although Jocelyn lives with her mother and her mother receives child support, Jocelyn has an independent right under the ODSPA and the Regulation to apply for income support.  The Director recognized her right to do so because Jocelyn was assessed as an independent adult.  Thus, for the purpose of calculating her entitlement to income support, she alone is a “benefit unit”.  Her mother is not included in that unit.  Characterizing child support paid to her mother as income to Jocelyn is inconsistent with this important element of the statutory scheme.  This inconsistency is evident from an examination of the features of the child support payments to Jocelyn’s mother:

•      The child support order itself stipulates that the support is paid to Jocelyn’s mother, not to Jocelyn;

•        The order does not say how Jocelyn’s mother is to spend the money.  Thus, although she voluntarily uses the money for disability related expenses, the order does not require her to do so;

•        Jocelyn’s mother is not required to account for how she spends the money;

•       Jocelyn’s mother must report the child support as income on her personal income tax return.  Jocelyn does not report the payments on her own return;

•       The child support payments are tied to Jocelyn’s mother.  They end if she dies;

•        Jocelyn is not a party to the court order and has no legal right to enforce it.

These features show that, in her mother’s hands, the child support payments are not Jocelyn’s income.  Jocelyn has no legal entitlement to them, no ability to access them, and no control over how they are spent.  Her mother could use the child support to repair the roof, pay a hydro bill or buy a new television set.  Although these expenditures might be said to benefit Jocelyn indirectly, they are not the kind of expenditures that would be characterized as income attributable to Jocelyn under s. 37(1) of the Regulation.  They are not payments to her or on her behalf or, at a practical level, even for her benefit. 

In short, although the payment of child support is a duty owed to Jocelyn, it does not necessarily follow that all, or even any portion of it can properly be characterized as payments to her or on her behalf or for her benefit. To include child support as income under the Regulation could deprive applicants of disability benefits under the ODSPA, even though none of the child support is used for the applicant’s benefit. 

Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309 (CanLII) at 27-30