Author: dawi

“Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court. I do not agree with the appeal judge’s criticism of the process which did not include pleadings and a record of the pre-arbitration meeting.

Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc.,2019 ONCA 254, at para. 20:

The starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.”

          Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 35-37

“Diana seeks an order that Pasquale pay her $26,450 in occupation rent. This represents half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This order is allowed. The reasons follow.

In Non Chhom v. Green, 2023 ONCA 692, at para. 8, the court confirmed that “[w]hile it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397.”

Occupation rent is “discretionary relief that can be considered to address the equities of a case”: Guziolek v. Guziolek, [2006] O.T.C. 329 (S.C.), at para. 21. The appropriate method of calculating occupation rent is one half of the rent that could have been earned if neither party lived in the property and it had been rented out: Doyle v. De Sousa, 2023 ONSC 3163, at para. 40.

The factors to consider when deciding if occupation rent should be awarded include the following, per Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53:

a.    The conduct of the non-occupying spouse, including a failure to pay support;

b.    The conduct of the occupying spouse, including a failure to pay support;

c.    The extent to which the non-occupying spouse was prevented from having access to his or her property in the home; and

d.    Whether the occupying spouse paid the mortgage and other carrying charges of the property.

The facts show that this is a clear case for awarding occupation rent.

Diana left the matrimonial home on July 12, 2022, on the advice of Pasquale’s nurse and because of his erratic behaviour. She intended to leave the home on a temporary basis and return when it was safe for her and the children. However, the following day, Pasquale had Diana charged with assault. Pasquale altered the video of the garage incident to leave the impression that there was no reason for Diana to grab him. As a result of her criminal undertakings, Pasquale and Diana were prohibited from communicating directly, and Diana could not return to the matrimonial home.

In August 2022, Diana’s counsel suggested a nesting arrangement so she and the children could continue to use the home. Pasquale refused. That month the parties agreed through counsel that the house had to be sold. Pasquale said that he wanted it sold “as soon as possible”. Initially Pasquale cooperated. The property was listed for sale and showings of the home started. However, his unreasonable behaviour interfered with the listing and sale of the home.”

Cirota v. Cirota, 2024 ONSC 4117 (CanLII) at 182-188

“On October 1, 2017, the applicant and his then wife returned to their native country, India, to visit relatives.  Two days later, the wife, the respondent Onam Vaid, decided not to return to Canada.  The applicant did return.  In 2019, they were divorced.  The applicant is now remarried and has a young child.  For years, the respondent has failed or refused to answer the applicant’s attempts to reach her, to refinance the mortgage on the home they bought as joint tenants.  The absence of the respondent’s co-signature on real estate financing documents has caused the applicant untold misery, not to mention economic strain on his new family.

Citing the Absentees Act, R.S.O. 1990, c. A.3, the applicant requested a declaration that he is the sole owner.  In order for a joint tenancy to devolve into sole ownership, one of the owners must die or be deemed to have died.  Absenteeism is not the same as de jure death, pursuant to the Declarations of Death Act, 2002, S.O. 2002, c 14, Sch.  There is no need to embark on that legal analysis, because there is no evidence before the court that the respondent has died or has even been suspected to have died.  The evidentiary requirements leading to a declaration of death are quite onerous, and the respondent’s decision to disappear into the Indian populace is not the same as someone missing and suspected of an untimely demise.  Survivorship leading to sole ownership is therefore not a remedy available to the applicant.  I will, instead, declare the respondent an absentee. The remedy under the Absentees Act is to appoint the applicant the committee of the absentee’s joint interest in the property.  I will first introduce the legislation, and then I will deal with the two substantive issues the court must consider to declare the respondent an absentee.

Most of the jurisprudence regarding the legal status of absentees arises from the courts’ reluctance to declare people dead under common-law principles.  The fear is that people who are alive can return from legal death, to cause havoc to innocent parties who have organized their affairs based on the declaration.  See Wasylyk v. Wasylyk, 2012 ONSC 7029, [2012] O.J. No. 5884 (S.C.J.), para. 8.  Absenteeism is a statutory invention of a status betwixt the quick and the living.  Under s. 2, any person is entitled to bring the application for the order under the Act.

In 1920, the Ontario legislature enacted the original Absentee Act in 1920 to deal with a Toronto man of considerable wealth who disappeared without any evidence to suspect his death: Re Taylor (1925), O.W.N. 497, cited in Kamboj v. Kamboj Estate, 2007 CanLII 14932, [2007] O.J. No. 1732, at para. 8.  The legislative purpose, consistent with a reading of this short statute in its entirety, is not the creation of a third class of vital statistic other than birth and death.  Nor is it to create some kind of transfer of property interests to joint tenants or to escheat property of missing persons to the Crown.  Rather, the purpose of the statute is to allow stakeholders in the missing person’s property to control, manage and dispose of it.”

Grover v Vaid, 2023 ONSC 5931 (CanLII) at 1-4

“The jurisprudence requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis: N.P. v. D.H., 2022 ONCJ 535, para 53.

The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a)   A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b)   There can be compelling circumstances which might dictate that a justice 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 of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c)   Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273):

a)         The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b)        Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

c)         Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d)        Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273.

e)         Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager.

f)         There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra.

g)        Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:

a.    The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)

b.    Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordonframework (par. 113).

c.     The so-called second stage of the Gordonframework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).

d.     In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).

e.     The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130).

f.     Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).”

Shapovalov v. Pantelousis, 2023 ONCJ 323 (CanLII) at 49-52

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

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

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

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

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

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

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

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

The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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