Author: dawi

“I am not deciding whether Ms. Addeo is entitled to spousal support or the quantum and duration of any support to which she may be entitled. I am only deciding the threshold issue of whether Mr. Elkind and Ms. Addeo were spouses. The parties agree that if they were not spouses, Ms. Addeo’s claim for spousal support should be struck. If, however, they were spouses, the merits of Ms. Addeo’s claim for spousal support will be decided another day.

The term “spouse” is defined in various ways in the Family Law Act. For support purposes, spouse includes three categories of people: (a) people who married, (b) people who are not married but who have cohabited continuously for a period of three years, (c) people who “have cohabited, in a relationship of some permanence, if they are the parents of a child”: Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1) and 29. Because Ms. Addeo and Mr. Elkind were never married and lived together for only a year, they can only be spouses for the support purposes if they “cohabited in a relationship of some permanence”, and if “they are the parents of a child.”

Mr. Elkind acknowledges that he and Ms. Addeo lived in a relationship of some permanence. But he argues they are not parents of a child because their daughter died before they separated.

The only issue on this motion is the meaning of the phrase “are the parents of a child” in s. 29 of the Family Law Act (“FLA”). For the reasons that follow, I find that s. 29 of the FLA should be interpreted to mean that two people who have a child together while cohabiting in a relationship of some permanence are spouses. How long the child lived and whether the child is alive on the date of separation may be relevant to a spouse’s entitlement to receive support but are not relevant to whether the parents of the child were spouses and, therefore, entitled to make a claim for support.

I find that Ms. Addeo and Mr. Elkind were spouses. Mr. Elkind’s motion is dismissed and Ms. Addeo’s application for spousal support shall proceed.”

Addeo v. Elkind, 2022 ONSC 2173 (CanLII) at 3-7

“At present there is both a common law and statutory basis for an order of temporary child support. In Michel v. Graydon, 2020 SCC 24, Brown J., writing for the majority, offered a common law basis for child support as follows:

41  Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation …

Until that pronouncement, it was generally understood that the jurisdiction to order temporary child support is solely a statutory one, founded in both federal and provincial jurisdiction.

The federal jurisdiction, which applies in divorce cases such as this, is found in s. 15.1(1),(2) and (4) of the Divorce Act, R.S.C. 1985,s. 3 (2ns Supp.) as amended, which reads as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

…

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

A motion such as this highlights the tensions between the usual purpose of a temporary child support order and the factors which govern the retroactivity of child support obligations.

On the one hand is the principle that interim support is a short-term remedy meant to ensure that a dependant maintains, as best possible, a reasonable lifestyle until trial. In that regard, the court does not embark on an in-depth analysis of the merits of the case: Charbonneau v. Charbonneau 2004 CanLII 47773 (ON SC), [2004] O.J. No. 5059 (S.C.J.), at paras. 15-16, Orsini v. Orsini, 2016 ONSC 3332, at para. 60.

Generally, then, in cases in which retroactive support is sought, the trial judge is best situated to determine the issue based upon a full factual record. Nonetheless, the issue of retroactivity cannot be completely ignored at the interim stage of proceedings. That is because of the need of dependants who may have been deprived of timely support and to avoid incentivizing delay by the payor in meeting their obligations to their dependants.

In Orsini, supra, at para. 61(c), Ricchetti J. wrote that a court adjudicating a motion for a retroactive temporary child support order should “consider the factors in [D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”)] based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion.”

In D.B.S., the Supreme Court of Canada instructed lower courts to consider four factors in determining a request for retroactive support: delay, payor conduct, the child’s circumstances and potential hardship to the payor if an order for retroactive support is made: see the summary of these factors in Colucci v. Colucci 2021 SCC 24, (“Colucci”) at para. 37.

D.B.S. also provides a presumption that retroactive child support will not commence more than three years from the date of effective notice of the claim: D.B.S. at para. 123.  Nonetheless, the court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the circumstances of a particular case: D.B.S. at para. 99, Colucci at para. 96.

As set out above, one key D.B.S. factor is payor conduct. That factor looks, in large measure, to the presence or absence of blameworthy conduct by the payor. The Mother relies on that factor in this motion.

Blameworthy conduct is any conduct that has “the effect of privileging [the payor’s] interests over the child’s right to support”. The payor’s subjective intentions are rarely relevant: D.B.S., at para. 106, Colucci at para. 101. Two potential forms of blameworthy conduct are a refusal to pay support when it is merited and a failure to provide income disclosure. As Bastarache J. wrote at para. 124 of D.B.S.: “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.”

While a motion court may consider blameworthy conduct within the context of a claim to temporary retroactive support, it should be cautious in making such a finding because a trial judge is in the best position to conduct the necessary holistic analysis of the D.B.S. factors: Palaganas v. Marshall, 2016 ONCJ 445 at para. 47.

All of that being said, where there are substantial issues in dispute regarding the entitlement of a party to retroactive support, the analysis should be left to the trial judge: Palaganas, at para. 56, citing K.B.A.S. v. G.E.S. 2006 S.J. No. 604 (Q.B.); A.L.Y. v. L.M.Y., [2001] A.J. No. 506 (Q.B.); and Villeneuve v. Lafferty, [1999] N.W.T.J. No. 128 (S.C.).”

Spencer v. Spencer, 2024 ONSC 1970 (CanLII) at 15-27

“To avoid compelling children to give evidence in family law trials, hearsay evidence of the children is admissible as a principled exception to the hearsay rule if the evidence is necessary and if it is reliable.

Necessity is satisfied if the circumstances are such that it would be inappropriate to call the child as a witness to give evidence.

Reliability will be met if the evidence is not objected to, if the child has repeated the same statement to more than one person, or where the statement has been made to a person who has a demonstrated skill in interviewing children.  If admitted, the weight to be given to the hearsay statement of a child will depend on the age of the child, both mental and physical, the circumstances surrounding the taking of the statement, the risk the child was influenced or manipulated when giving the statement or that the statement itself was edited or manipulated, and the desire of the child to please or appease the parent taking or requesting the statement: Wilson v. Wickham, 2018 ONSC 2574, at paras. 30 and 31. This is not a strict list of considerations for reliability as the factors to be taken into account will vary with each child and with the circumstances affecting or influencing that child: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at para.11.”

            A.M. v. D.M., 2023 ONSC 2113 (CanLII) at 5-7

“Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage — the term “status quo” is not specifically mentioned in the legislation. However, section 24(3)(d) of the CLRA lists “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”.  Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

a.    It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial:  Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Wang v. Tang, 2023 ONSC 3609 (SCJ); Easton v. McAvoy, 2005 CarswellOnt 7379 (OCJ); Levesque v. Bond, 2023 ONSC 1895 (SCJ)

b.    The status quo – and avoiding reckless creation of a new status quo – are important considerations at the interim stage.  Cosentino v. Cosentino, 2016 ONSC 5621 (SCJ); Cabral v. Parker2021 ONSC 4574 (SCJ); Viveash v. Viveash 2021 ONSC 7456 (SCJ); N.D. v. R.K ., 2020 ONCJ 266 (OCJ).   The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change.   W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda 2013 ONSC 7869 (SCJ); Green v. Cairns, 2004 CanLII 9301 (SCJ); Papp v. Papp, 1969 CanLII 219 (ON CA); MacDonald v. Cannell, 2021 ONSC 7769 (SCJ).

c.    Temporary orders are “band-aid” solutions pending a full hearing.  The status quo is ordinarily maintained pending trial unless the evidence demonstrates that the best interests of the child require some modification.  Sullivan v. Senechal, 2022 ONSC 557 (SCJ)

d.    To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger if the status quo is maintained.  The evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests. Miranda v. Miranda, 2013 ONSC 4704 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); A.L. v. C.M.,2023 ONCJ 412 (OCJ); Tomkinson v. Baszak 2023 ONSC 4092 (SCJ).

e.    The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings based on incomplete and untested evidence. R.C. v. L.C., 2021 ONSC 1963 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); Chaput v. Chaput, 2021 ONSC 2809 (SCJ);”

Churchill v. Elliot and Ward, 2024 ONSC 1907 (CanLII) at 36

“On an initial application for child support pursuant to s. 15.1(1) of the Divorce Act, a court may make an order for the payment of child support for “any or all children of the marriage”. For children who are at the age of majority or older, s. 2(1) of the Divorce Act defines them as being a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge: Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263; Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49; Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education: see W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18.”

          Licata v. Shure, 2022 ONCA 270 (CanLII) at 32-33

“The equalization provision is a feature of modern family law reform intended to resolve, inter alia, historical exclusion of women from property rights and the undervaluing of their contribution to the household economy in “traditional” marriages.  Subsection 5(7) is a legislated explanatory note to this effect.  The statutory wording, “unconscionable,” demands a high threshold beyond mere unfairness.  In Serra v. Serra, 2009 ONCA 105 (CanLII), at para. 47, the Court of Appeal stated: “To cross the threshold, an equal division of net family properties in the circumstances must ‘shock the conscience of the court.’”  The courts have considered countless instances where one party has brought the money into the marriage to buy the matrimonial home and the unfairness of equal division did not meet the threshold.  See, e.g., Heal v. Heal, 1998 CanLII 14896 (ON SC), [1998] O.J. No. 4828, 82 O.T.C. 188, 43 R.F.L. (4th) 88|83 A.C.W.S. (3d) 990, at paras. 24-27.  That said, the provision can support a reduction of 100% of the difference between the parties’ valuation of net assets: Czieslik v. Ayuso, 2007 ONCA 305 (CanLII), at para. 25. Ordinarily, the Serra decision drives an examination of the result.  However, even if the result may not be shocking, the provision can be applicable if other circumstances combine with the result in order to make the equalization award unconscionable: Lo v. Lo, 2011 ONSC 7663 (CanLII), at para. 236.

Close consideration of the economics of the parties’ relationship shows features of the mother’s role in a quasi-traditional marriage.  The mother, by looking after the son, did allow the father to earn income as a doctor and therefore contribute to the family finances as described in subsection 5(7).  The extreme nature of childcare expenses may mask this factor, but it does not eliminate the mother’s role.  I am also unable to rely on the conduct of the mother, including her role as the instigator of conflict and chaos, since it is not related to the acquisition or upkeep of the property.  The fact of the short marriage less than five years is not sufficient, of itself, to warrant the reduction of the equalization payment.”

McNally v. Modarres, 2023 ONSC 2057 (CanLII) at 44-45

“Courts have long recognized that agreements reached between spouses, particularly where they have both had independent legal advice, should be respected: Hartshorne v. Hartshorne, 2004 SCC 22, 1 S.C.R. 550 at para. 9. There are circumstances, however, where the court will set aside such agreements.

The statutory framework to set aside domestic contracts is found in s. 56(4) of the FLA, which states as follows:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

The onus is on the party seeking to set aside the agreement to prove that it should be set aside: Dougherty v. Dougherty, 2008 ONCA 302 at para. 11.

Grounds that would justify setting aside a domestic contract include the following contractual concepts: unconscionability, undue influence, duress, uncertainty, mistake, misrepresentation, fraud, and repudiation of a term of the contract: Ward v. Ward, 2011 ONCA 178 at para. 21.

In LeVan v. LeVan, 2008 ONCA 388 (Ont. C.A.) at para. 51, the court found that there was a two-part test to consider in an application to set aside an agreement pursuant to s. 56(4) of the FLA as follows:

a) The court must determine if the party seeking to set aside the agreement can demonstrate that one or more of the circumstances in subsections (a) to (c) have been engaged; and

b) If the moving party has fulfilled the first part, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement.

In Turk v. Turk, 2015 ONSC 5845, at para. 55, Kiteley J. summarized the factors the court must consider in exercising its discretion to determine if an agreement should be set aside as follows:

(a) whether there had been concealment of the asset or material misrepresentation;

(b) whether there had been duress, or unconscionable circumstances;

(c) whether the petitioning party neglected to pursue full legal disclosure;

(d) whether he/she moved expeditiously to have the agreement set aside;

(e) whether he/she received substantial benefits under the agreement;

(f) whether the other party had fulfilled his/her obligations under the agreement.

In J.L.S. v. D.B.S., 2016 ONSC 1704, Skarica J. set out a summary of the law regarding setting aside domestic contracts at para. 29 as follows:

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, [2014 ONSC 359] supra,

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan. 2008 ONCA 388 (CanLII), 2008 CarswellOnt 2738, ONCA.

          Malaviyar v. Dhir, 2023 ONSC 1993 (CanLII) at 75-81

“A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all the circumstances (see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 28).

The principles which the court should consider, among others, when considering a spouse’s capacity to earn income were very usefully summarized by Shelston, J. in the case of Verhey v. Verhey, 2017 ONSC 2216, at para. 35 as follows:

(a)  There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2013 ONSC 5500 (Ont. S.C.J.), at para. 99);

(b)    A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133 (B.C. C.A.), at para. 37);

(c)   A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866 (Ont. S.C.J.), at para. 48);

(d)    A spouse cannot avoid support obligations by a self-imposed reduction in income (L. (N.) v. P. (B.) (2000), 2000 CanLII 22516 (ON SC), 7 R.F.L. (5th) 335 (Ont. S.C.J.), at para. 27);

(e)    Where a spouse experiences an involuntary loss of employment, courts will grant a “grace period” to allow the spouse to seek out replacement work. However, the absence of a reasonable job search will leave the court with no choice but to find that the spouse is intentionally under-employed or unemployed (Filippetto v. Timpano, 2008 CarswellOnt 544, 2008 CanLII 3962).

The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (see Homsi v. Zaya, 2009 ONCA 322, at para. 28).”

            Lorimer v. Lorimer, 2020 ONSC 1923 (CanLII) at 66-68

“Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party as it considers appropriate.

The jurisprudence for imputation of income sets out the following:

a)         Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).

b)        The Ontario Court of Appeal in Drygala v. Pauliset out the following three questions which should be answered by a court in considering a request to impute income:

i)           Is the party intentionally under-employed or unemployed?

ii)         If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?

iii)      If not, what income is appropriately imputed?

c)         The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).

d)        Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima faciecase, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere,2016 ONSC 4719.

e)         As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (CanLII); DePace v. Michienzi,2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

f)         The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship.  The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson,2006 CanLII 26573 (ONCA).

g)        The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills,2020 ONSC 4785; Sobiegraj v. Sobiegraj, 2014 ONSC 2030 (S.C.J.); Lu v. Zhao,2012 ONSC 5354 (S.C.J.), at para. 26, aff’d 2014 ONCA 12 (C.A.), at para. 5).

h)        The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.).

i)         A person’s lifestyle can provide the basis for imputing income.  See: Aitken v. Aitken[2003] O.J. No. 2780 (SCJ); Jonas v. Jonas[2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 (CanLII).”

          J.W. v. C.W., 2024 ONCJ 159 (CanLII) at 49-50

“Justice Shore argues that persons exercising judicial functions, whether in court proceedings or otherwise in the course of their judicial function, are exempt from all civil liability for anything done or said by them in their judicial capacity.  This immunity is such that even if a judge’s acts or words complained of are alleged to have been spoken in bad faith, maliciously, corruptly, or without reasonable or probable cause, they are not actionable.

The content of what was written by Justice Shore is not pleaded, and thus not before the court for the purposes of this motion.  The statement of claim simply alleges that Justice Shore sent an email to all Superior Court judges in Toronto, making what the plaintiff says were defamatory remarks against him, and then reproduced those comments in a Case History Report in connection with a family proceeding which was before the court.

A requirement of the rules of pleading, as they pertain to defamation proceedings, is that particulars of the allegedly defamatory words must be pleaded: Catalyst Capital Group Inc. v. Veritas Investment Research Corp. (2017), 136 O.R. (3d) 23, 2017 ONCA 85, at para. 23.  The Statement of Claim does not set out either the contents of the January 2021 email or the Case History Report.  Mr. McIntosh alleges that the impugned remarks “cannot be repeated as it would risk undermining the impartiality [of] the adjudication of this matter.”  Unsurprisingly, the statement of claim also does not plead, as it should, the allegation that the words used were defamatory of Mr. McIntosh in their plain or ordinary meaning, or by innuendo.   Corthorn J. was forgiving of these shortcomings, writing, at para. 61 of her endorsement:

Mr. McIntosh is a self-represented litigant attempting to navigate the complexities of a claim based in defamation.  Even in the absence of the particulars of the wording of the January 2021 email, the context within which the email was sent, and the manner in which the email was presented, Mr. McIntosh is to be given the benefit of the doubt.

I will follow Justice Corthorn’s lead, and set to one side the pleading’s deficiencies for the purposes of considering this motion.

Turning to the substantive issue of judicial immunity, in Morier and Boily v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, the Supreme Court of Canada addressed a claim that members of the Commission de police du Québec, who were entitled to the judicial immunity of Superior Court judges, could not invoke that immunity when they acted without jurisdiction and contravened the rules of natural justice by failing to comply with the provisions of the governing legislation and the Charter of Rights and Freedoms.

At para. 90 of the decision in Morier, Chouinard J., writing for the majority of the Supreme Court of Canada, cited, with apparent approval, the following excerpts from Halsbury’s Laws of England, 4th ed., vol. 1, 1973, at pp. 197 et seq.:

1. 1. 1. 1. 206. Persons protected. Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process.

1. 1. 1. 1. 210. Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra‑judicial or alien to the judicial duty of the defendant; and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected.

The protection extends to all judges, juries, advocates, parties and witnesses, for words spoken or written in the course of a judicial inquiry and having any reference thereto, however remote.

At paras. 95 and 96 of Morier, reference was made to the judgment of Lord Denning M.R. in Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.), a decision of the England & Wales Court of Appeal, at p. 136, said to have been frequently cited as the correct statement of the contemporary rule of immunity:

Every judge of the courts of this land ‑‑ from the highest to the lowest ‑‑ should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction ‑‑ in fact or in law ‑‑ but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill‑will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

At the conclusion of an extensive discussion of the development of judicial immunity in England, the Court in Morier concluded, at para. 110, that the possibility that the members of the Commission had:

a.    Exceeded their jurisdiction by doing or failing to do the actions mentioned in the statement of claim;

b.   Contravened the rules of natural justice in that they had not informed the respondent of the facts alleged against him, or had not given him an opportunity to be heard; or,

c.   Contravened the Charter,

were not allegations which may be used as the basis for an action in damages against a judge.

Mr. McIntosh raises similar complaints to those raised by the claimant in Morier.  He says that he did not know about the comments made by Justice Shore at the time that she made them and, thus, was not provided an opportunity to respond to the comments, infringing his right to a fair proceeding.

The Supreme Court’s decision in Morier was considered by the Federal Court of Appeal in Taylor v. Canada (Attorney General), [2000] 3 F.C. 298, 2000 CanLII 17120 (FCA).  At para. 41 of Taylor, the Court concluded that it could not be said that the Supreme Court of Canada in Morier had definitively decided whether a bad faith exception to judicial immunity is good law in Canada.  However, the Federal Court of Appeal was inclined to accept the proposition that judicial immunity does not apply where it is shown that a judge knowingly acts beyond her jurisdiction. [Emphasis added.]  The Federal Court of Appeal went on to conclude that if there is an exception to absolute immunity, it is a narrow one – stating, at para. 60: “It will be the rare case indeed where a plaintiff can show that a judge acted with the knowledge that he or she had no jurisdiction”.”

McIntosh v. Shore, 2024 ONSC 1767 (CanLII) at 34-43