Author: dawi

“The Marriage Act, R.S.O. 1990, Chapter M.3, contains these provisions relevant to formal validity of a marriage:

s. 4      No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

s. 20     No person shall solemnize a marriage unless he or she is authorized by or under section 24 or is registered under this section as a person authorized to solemnize marriage.

s. 21     The Minister shall keep a register of the name of every person registered as a person authorized to solemnize marriage . . .

s. 24(1)            A judge, a justice of the peace or any other person of a class designated by the regulations may solemnize marriages under the authority of a licence.

s. 24(3)            No particular form of ceremony is required except that in some part of the ceremony, in the presence of the person solemnizing the marriage and witnesses, each of the parties shall declare:

I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.

And each of the parties shall say to the other:

I call upon these persons here present to witness that I, AB, do take you, CD, to be my lawful wedded wife (or to be my lawful wedded husband. . . )

After which the person solemnizing the marriage shall say:

I, EF, by virtue of the powers vested in me by the Marriage Act, do hereby pronounce you AB and CD to be married.

s. 25     Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28.

s. 28(1)            Every person shall immediately after he or she has solemnized a marriage,

(a)        where the marriage was solemnized in a church, enter in the church register kept for the purpose,

(b)        where the marriage was solemnized elsewhere than in the church, enter in a register kept by him or her for that purpose,

the particulars prescribed by the regulations, and the entry shall be authenticated by his or her signature and those of the parties and witnesses.

s. 28(2)            Every person who solemnizes a marriage shall, at the time of the marriage, if required by either of the parties, give a record of solemnization of the marriage specifying the names of the parties, the date of the marriage, the names of the witnesses, and whether the marriage was solemnized under the authority of a licence or publication of banns.  Emphasis added

The Civil Marriage Act, S.C. 2005, c. 33, establishes the requirements of essential validity of a marriage including the following:

2.1      Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

In her decision in Torfehnejad v. Salimi, 2006 CanLII 38882 (ONSC), [2006] O.J. No. 4633, Greer J. summarized the principles applicable in cases of annulment. Annulment in Ontario is governed by the provisions of the Annulment of Marriages Act (Ontario), R.S. 1970, c. A-14, which established that the law of England applies and that the Superior Court of Justice has jurisdiction. The Applicant was at all times both resident and domiciled in Ontario and hence this court has jurisdiction to hear the Application.

Formal validity of marriage is determined with reference to the jurisdiction where the marriage was celebrated (“lex celebrationis”). Essential validity of marriage is determined in accordance with where the parties were domiciled prior to the marriage (“lex loci domicilii”).  Given that the Applicant was domiciled in Ontario and the marriage was celebrated in Ontario, the law of Ontario applies.

Black’s Law Dictionary, (10^th ed.) defines the term “annulment” as follows:

A judicial or ecclesiastical declaration that a marriage is void.  An annulment establishes that the marital status never existed.  So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.”

M.A. v. B.B., 2018 ONSC 4582 (CanLII) at 24-28

“First, the appellant says that the trial judge made a palpable and overriding error by discounting the promissory note by 90%. The appellant says that several of the 33 factors considered by the trial judge involved irrelevant considerations, and if these are excluded, what remains could not justify the discount applied.

We do not agree with this submission.

Substantial deference is owed to the trial judge’s determinations of fact and mixed fact and law, especially in family law cases. This court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1.

The trial judge correctly considered the applicable law. The case law relied on by the trial judge is consistent with this court’s guidance in Zavarella v. Zavarella, 2013 ONCA 720, 117 O.R. (3d) 641, at para. 40, that the debt is to be valued based on the reasonable likelihood that it will ever be repaid.

The trial judge’s application of that law to the facts and her decision to discount the promissory note by 90% as a true reflection of the practical reality of the situation is owed substantial deference.

We also do not agree that any of the factors listed by the trial judge were irrelevant. She set out the nature of the parties’ relationship based on all the evidence and evaluated whether there was any reasonable likelihood that there would ever be a call to repay the debt. We see no basis to interfere.”

Rados v. Rados, 2019 ONCA 627 (CanLII) at 21-26

“There is no doubt that the issue of mobility came up relatively late in the proceedings [arbitration]. However, the father, who was represented throughout, knew of the issue prior to the start of the hearing and neither requested an adjournment nor objected to the issue being addressed.

For eight days while evidence was being presented, he was not impeded from presenting his case, nor from cross-examining the mother or the experts. At no point did he request a further assessment with respect to St. Jude’s to challenge the evidence that the school would benefit the children. Instead, the father simply gave evidence that the children were fine and should stay at their Toronto school.

Having received the evidence of both parties on the mobility issue, the arbitrator preferred the mother’s evidence and found in her favour, as he was entitled to do so: see Arbitration Act, s. 21. The proceedings were not rendered unfair simply because the arbitrator found in favour of the mother on this issue.

The father acquiesced in the notice

The father acquiesced in the late notice. Instead of raising the issue and seeking an adjournment, he proceeded with the hearing, submitting that the children should stay at their school and only raising an objection when the result was not to his liking.

In Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, this court dealt with a challenge to an arbitration decision where the arbitral panel met with a witness ex parte without notice to the parties. On appeal, the appellant, Mr. Popack, who had not objected to such a meeting when the issue was raised during the hearing, argued that the award should be set aside because of this procedural breach. In dismissing the appeal and upholding the arbitral award, this court said, at para. 39:

Mr. Popack sought to gain an advantage in the arbitration proceedings when he learned of the ex parte meeting…[He] positioned himself so that he could decide to raise the issue formally…if he was not satisfied with the award given by the panel. To reward that tactic by setting aside the award would eviscerate the finality principle that drives judicial review of arbitral awards and would cause “a real practical injustice”.

Similarly, here, the father was not entitled to stay silent, participate in the proceedings without objection, wait to see what the ruling was and then claim procedural unfairness when the decision was against him.

Further, the father’s conduct after the hearing confirms his acquiescence in the process. He did not seek a stay of the mobility order but raised the issue for the first time on appeal.

As a general rule, an appellate court will not permit an issue to be raised for the first time on appeal. This rule is grounded, in part, on society’s interests in finality and the expectation that matters will be dealt with at first instance: see R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal refused [2016] S.C.C.A. No. 432.  This principle is particularly important when the lives of children are impacted by the proceedings.”

Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 41-48

“The appellant’s principal submission that joint custody was inappropriate focused on a portion of the trial judge’s reasons where he said that there was “a realistic hope that these parties will be able to work together for the benefit of their children and without the difficulties of rules and demands”.  The appellant relies upon decisions from this court such as Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a “hope” that communication between the parties will improve.  These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.”

May-Iannizzi v. Iannizzi, 2010 ONCA 519 (CanLII) at 2

“This is also a motion for the sale of the home under s. 3 of the Partition Act which read as follows:

3.  (1)  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.

The case law generally favours an order for partition and sale of a home by a co-tenant unless the opposing party can demonstrate prejudice.  The onus is on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale.  Alternatively, partition and sale should not be granted where the sale will cause hardship to the responding party which amounts to oppression:  see Afolabi v. Fala, 2014 ONSC 1713 at para. 29 and 33 to 35.  The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5^th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.

There is, however, authority that a sale of the home will not be ordered where it cannot be demonstrated that the moving party would benefit from the sale, but these results appear to have occurred only where a trial is close at hand:  see Ludmer v. Ludmer, 2012 ONSC 4478 and Magnella v. Federico, 2012 ONSC 5696.  Barring this, malicious, vexatious or oppressive conduct must be proven by the party resisting the sale.  In fact, it might be interpreted as being oppressive conduct to request an order for the sale of a home when a trial is only months away; that is certainly not the case here, and although an income report was obtained in June, 2016, the parties still have not moved this matter along and now a further income analysis will be necessary to confirm the respondent’s 2016 income.   The trial of this matter appears to be in the distant future.”

Duskocy v. Duskocy, 2017 ONSC 4479 (CanLII) at 7-9

“I do not doubt that in a true emergency there is a residual discretion in judges of this court to entertain a motion even if a trial decision is under reserve.  Short of such a true emergency (of the sort that would justify immediate injunctive relief) in circumstances where the trial judge is not available, I cannot readily envision a situation in which such a motion ought to be dealt with by another judge.  In a family court case involving custody and access, the parenting issues are the very issues before the trial judge and to seek additional interim orders dealing with those matters from another judge is in effect to usurp her role: McKay v. Proprietary Mines Ltd. 1938 CanLII 284 (ON CA), [1938] 2 DLR 770 (note) and Jupp v. Jupp 2008 CarswellOnt 3756 (SCJ). 

Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record.  There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized.  On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings.  Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits: see Chitsabesan v. Yuhendran, 2016 ONCA 105 (CanLII) and Pastore v. Aviva Canada Inc., 2012 ONCA 887 (CanLII).  I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons.  The trial is not technically concluded until the judgment is entered.  In my view the trial is still in progress.

Trials are of course subject to formal procedures.  Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial.  The party is not permitted to try to bring more evidence to bolster its case after that party’s case is closed.  It is for that reason that rules and principles have evolved concerning this issue of re-opening the case.  Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April.  She referred with approval to the factors outlined in Hughes v. Roy, 2016 ONCJ 65 (CanLII).  Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.”

N.H. v. J.H., 2017 ONSC 4414 (CanLII) at 18-21

“I find the conflict between the parties stems primarily from Ms. Brissett’s unrelenting interference with access and her frequent refusal to communicate with Mr. Coughlan rather than any inherent communication difficulty between them. There is no evidence of conflict over child related decisions or their respective parenting views. Mr. Coughlan’s emails tend to be thorough and to the point although over time, they indicate increasing frustration and resentment toward the situation. I find his frustration also manifested itself in his decision to attend at the daycare and ultimately resort to self-help by withholding Leah in an effort to recoup lost access time. Those decisions were wrong and should not be repeated. Ms. Brissett’s written communications, on the other hand, are often vague and unresponsive. The conflict is more fundamental. It rests in Ms. Brissett’s resistance to Mr. Coughlan’s desire and determination to be a parent to Leah.

The Divisional Court recently said, “Gatekeeping is born of a fundamental disrespect for the other parent, as a parent. An order for sole custody to the gatekeeping parent can reinforce that disrespect. Where, as here, parental conflict arises because of the gatekeeping, the intractable nature of the problem is obvious: awarding sole custody to the gatekeeper supports and rewards past gatekeeping and reinforces its lessons for the future.” See J.Y. v. L.F.-T, 2019 ONSC 1718, (Div.Ct), para 15. In that case, the Divisional Court upheld the trial judge’s decision that a joint custody order was the “best way forward” to ensure the continued involvement of a parent in the child’s life in the face of efforts by the other parent to marginalize him or her.”

Brissett v. Coughlan, 2019 ONSC 4330 (CanLII) at 72-73

“The Family Law Act permits an award of retroactive child support: s. 34(f). Whether the Court retroactively increases child support based on the payor’s increased income raises the principles articulated by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

Before I consider the application of the D.B.S. principles, I will address the terms of the annual adjustment of child support in the Separation Agreement. I do not find that these terms are such that take this matter outside of the application of the D.B.S. principles into one of contractual enforcement.

I find this for three reasons. First, both parties are in breach of their contractual obligation under the Separation Agreement to exchange annual income disclosure. I acknowledge that Ms. Delulio’s obligation to provide income disclosure is significantly different during this period than Mr. Persi’s, given that her income is not relevant to the determination of the table child support when the children primarily reside with her. However, as a matter of contract, Ms. Delulio is also in breach of the agreement. Second, the agreement does not mandate automatic adjustments to child support. The agreement provides for an adjustment only if a party determines there should be one. Third, the agreement provides for an amount of monthly child support, $448, which is below the table amount payable for Mr. Persi’s annual income of $47,000 (fn: The table amount payable for two children for income of $47,000 under the May 1, 2006 tables was $710/m). This reduction reflects the parties’ agreement that child support is not determined solely by the application of the Child Support Guidelines table amount but may be adjusted to an amount that, using their words, “was appropriate given the circumstances of the parties and the needs of the children.”

I find, therefore, that the D.B.S. principles apply to Ms. Delulio’s claim for retroactive child support. D.B.S. makes it clear that there is no automatic right to retroactive child support, nor is it an exceptional remedy: para 97. Whether retroactive child support will be granted is a matter of judicial discretion. Three major interests in play in retroactive support cases are:

1. 1. 1. The need on the part of the child and the custodial parent for financial support;

1. 1. 2. The payor’s interest in certainty and predictability when financial obligations appear settled; and

1. 1. 3.    The need for flexibility to ensure a just result.

Ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. This focus includes the core principles that apply to child support, such as that child support is the right of the child, and that ultimately the goal is to ensure that children benefit from the support they are owed when they are owed it.

Within these overarching principles, the court should consider the following four factors in determining whether to allow a retroactive claim:

1. 1. 1. Whether there was a reasonable excuse as to why a variation in support was not sought earlier;

1. 1. 2. The conduct of the payor parent;

1. 1. 3. The circumstances of the child and;

1. 1. 4.    Any hardship occasioned by a retroactive award.

The general rules from D.B.S. are that a retroactive child support order should start from the date of formal notice and that it will usually be inappropriate to make a support award retroactive to a date more than three years before the formal notice was given.”

Delulio v. Persi, 2019 ONSC 4303 (CanLII) at 36-42

“It is based on Ms. Beischer’s challenge to paragraph 64 of the Final Order of Justice Warren that Mr. Cournoyer seeks an order for disclosure of Ms. Schon’s file. Ms. Beischer is adamantly opposed to such an order, based on the sacrosanctity of solicitor/client privilege. It is trite law that solicitor-client privilege is “a principle of fundamental justice and civil right of supreme importance in Canadian law”Lavallee, Rackel & Heintz v. Canada (Attorney General); R. Fink, [2002] 3. S.C.R. 209, 2002 SCC 61, paragraph 36, including in the sphere of Family Law: Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ONSC), paragraph 16. It is also trite law that the privilege is not absolute: Lavallee, supra, paragraph 36, with reference to paragraphs 32 and 34-35 of R. v. McClure, [2001] 1 S.C.R.445, 2001 SCC 14 (CanLII). Mr. Cournoyer agrees that the contents of Ms. Schon’s file are privileged, but he takes the position that Ms. Beischer has waived her privilege in taking the position she has. I agree.

This case is, in my view, very much like that of Einstoss v. Starkman, 2010 CarswellOnt 4685, wherein the wife was seeking: “An order setting aside the equalization payment made pursuant to J. Chapnick [sic] dated May 2, 2000 and a determination of a proper equalization payment to the Respondent/Mother”: pargraph 8. Although not properly plead in these proceedings, this is essentially exactly what Ms. Beischer is seeking.

In Einstoss, the wife’s position was that she did not receive full disclosure at the time of the settlement, and that the husband was hiding something. Ms. Starkman denied that “in advancing this position she is questioning the legal advice provided to her by Torkin Manes at the time.”: paragraph 29.

Ms. Beischer is taking the position in this case that the fault lies with Mr. Cournoyer and/or his counsel in British Columbia, Mr. Cote and Mr. Sekhon. She submits that she and her counsel were materially mislead (she goes so far as to suggest knowingly and purposely so) by Mr. Sekhon, in particular, in relation to his “on the fly” calculation of the value of Mr. Cournoyer’s pension on August 29, 2017, which he confirmed by email to Ms. Schon on August 30, 2019. Ms. Beischer suggests that her position with respect to the faulty nature of her waiver has nothing whatsoever to do with Ms. Schon, but everything to do with this alleged material misrepresentation by Mr. Sekhon. Her position is that access to Ms. Schon’s file is irrelevant, and the privilege she enjoys in respect thereto should not therefore be interfered with.

However, as Justice Kelly stated in Einstoss, at paragraph 32 of the judgment:

1. 1. 32. Where a client puts in issue his or her state of mind or knowledge with respect to matters on which she alleges a breach of duty by his or her solicitors, the client will be deemed to have waived privilege as to all communications and advice received by him or her relating to such matters.”

     Beischer v. Cournoyer, 2019 ONSC 4269 (CanLII) at 15-19

“Every Canadian province has tried to address in some way the inequities or difficulties arising out of the distribution of family assets after the breakdown of a marriage or of a common law relationship to which the same rules apply. Broadly speaking, the provincial legislatures have chosen between two different models: equalization and division of property (R. A. Klotz, Bankruptcy, Insolvency and Family Law (2nd ed. (loose-leaf)), at pp. 4-29 to 4-30).

The equalization model involves a valuation of the family assets and an accounting. The value of the assets is then divided between the spouses, usually in equal parts, although family courts have a limited discretion to order an unequal division. The valuation and the division give rise to a debtor-creditor relationship in the sense that the creditor spouse obtains a monetary claim against the debtor spouse. But the assets themselves are not divided. Each spouse retains ownership of his or her own property both before and after the breakdown of the marriage. Neither acquires a proprietary or beneficial interest in the other’s assets. Assets are transferred only at the remedial stage, as agreed by the parties or as ordered by the family court in exercising its discretion, as a form of payment or execution of the judgment (T. A. Gutkin, “Family Law and Bankruptcy” (1999), 16 Nat’l Insolv. Rev. 26, at pp. 31-32; Balyk v. Balyk (1994), 113 D.L.R. (4th) 719 (Ont. Gen. Div.), at pp. 723-25; Burson v. Burson (1990), 4 C.B.R. (3d) 1 (Ont. Gen. Div.), at paras. 24-25). The division of property schemes, on the other hand, give rise to a proprietary or beneficial interest in the assets themselves, not just in their value (Balyk, at pp. 723-24).”

         Schreyer v. Schreyer, 2011 SCC 35 (CanLII) at 14-15