Author: dawi

“The rules of court set out the procedural jurisdiction for the granting of orders on a case conference.  Subrule 17(8) contains the following paragraphs relevant to the issue raised by the applicant:

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i)  an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii)  an order preserving assets generally or particularly,

(iii)  an order prohibiting the concealment or destruction of documents or property,

(iv)  an order requiring an accounting of funds under the control of one of the parties,

(v)  an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi)  an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

(c)  make an unopposed order or an order on consent;

Beginning with para. (b.1), the requirement of notice appears to have been satisfied by the service of the Case Conference Brief, paragraph 13 of which listed the interim remedies.  The court has commented in the past that the rule does not state what form the notice must take: Hoque v. Mahmud, 2007 CanLII 39366 (ON SC), at para. 15.

However, at para. 14, the court stated it was less clear whether the rule conferred authority to grant relief on substantive issues.  The ambiguity can be resolved readily by assuming the drafters followed the usual rules of legislative construction.  On first impression, it would appear that para. (b.1) is limited by subject matter to preservation orders and maintenance of financial status quo.  However, the specific list of preservation mechanisms follows a general phrase “any temporary order” (emph. added) and is connected by the word “including.”  This grammatical structure takes the meaning outside the ejusdem generis rule (limited class interpretation) and protects the generality of the antecedent.  See: Sullivan, The Construction of Statutes, Seventh Ed. (Toronto: LexisNexis, 2022), at p. 242, citing National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 SCR 1029, at 1040-41.  It therefore follows that the case conference judge is authorized to grant any temporary orders, if satisfied that the other party has been given due notice.

While is does not appear necessary to interpret para. (c), specifically “unopposed order,” this concept is analogous to the unopposed order on a motion in the Civil division of the court, specifically subrule 37.12.1(1) of the Rules of Civil Procedure, O. Reg. 1990, Re. 194 (RCP), providing for unopposed motions.  Under that provision, the moving party must file a notice from the respondent stating that the party does not oppose.  I do not infer from this requirement of an affirmation of a negative to change the nature of an unopposed motion as one in which there is no position or interest adverse to the proponent.  The failure to respond to a motion or to appear at the hearing places the respondent in substantive jeopardy, provided notice has been given (RCP, r. 37.07).

I conclude from the foregoing that subrule 17(8) of the FLR confers jurisdiction on a case conference judge to award interim relief of the kind sought by the mother, provided notice is clearly given and stated in the Case Conference Brief and the relief is an appropriate remedy in the circumstances.  This interpretation of the rule places the burden on the erstwhile non-participatory spouse/parent to bring a motion to set the order aside, instead of requiring the presumed recipient of support to bring a separation motion.  This would have the effect of reducing steps in most cases and promoting general principles of the FLR in streamlining cases, getting payor spouses used to the idea of paying support, and of rounding up recalcitrant parties into the precinct of the court.”

            Laxmikantha v. Adapa, 2023 ONSC 7151 (CanLII) at 5-9

“Given the frequency with which improper motion materials are filed in family proceedings, it is worth reminding counsel in this case and the profession more generally of what is appropriate in support of a family motion.

a.   A Notice of Motion should succinctly set out the relief sought and may cite the statutory basis for the relief.  However, it is not appropriate to recopy the text of rules or statutory provisions or cite and re-copy portions of caselaw within a Notice of Motion.

b.   Evidence on a motion may be given by way of affidavit or other admissible evidence in writing, a transcript of questions and answers from questioning under rule 20, or with the court’s permission, oral evidence: R. 14(17) Family Law Rules.

c.    An affidavit should contain only relevant facts that are material to the issues raised in the motion.  The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy.  It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties.  The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought.  It creates an irrelevant distraction.

d.    An affidavit should contain detailed facts in support of an allegation or position taken on the motion.  For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence.

e.    An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts.  These matters should be in a factum.

f.     An affidavit must contain admissible evidence.  In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies.  However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations.  Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits than are permitted under the Court’s Practice Direction.

g.    In family cases, opinions of doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists are often relevant to the outcome of a case.  Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit.  It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.

Instead, the purported expert who is expressing an opinion should prepare their own affidavits.  If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met.  It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination.  If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.

However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: Evidence Act, RSO 1990, c. E.23, s. 35.  Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker. See Catholic Children’s Aid Society of Toronto v. L. (J.), 2003 CanLII 57514 (ON CJ), 2003 39 RFL (5^th) 54 (ON CJ), at paras. 10 – 11; Dworakowski v. Dworakowski, 2022 ONCSC 7209 at para. 52.

h.    Only necessary, relevant and material exhibits should be attached to an affidavit.  The exhibit must be legible.  The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate.

i.     Counsel have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court.  A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered.  Counsel may also consider, within the text of the affidavit, explaining the context in which the message was sent or received.  If not readily apparent, the text message should make clear who is saying what.

j.      It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently.  Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit.

k.    Font, spacing and page limits prescribed in the Practice Direction must be followed.

l.      It is improper to attach as an exhibit to an affidavit an affidavit of a different person to overcome the restriction in the Practice Direction that only one primary affidavit may be filed for a motion or cross-motion.

m.    It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit.  If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, Noshina Ashmeade” or “she”).  Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it.

n.    An affidavit should be reviewed by a party’s lawyer for proper spelling and grammar prior to the party swearing an affidavit.  While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used.

o.    It is improper to mention the substantive contents of an Offer to Settle when the substance of the Offer is the subject of the motion.  Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case.

p.     Factums should be laser-focussed.  In numbered paragraphs and in an organized manner with subheadings, they should:

i.   Identify the relief that is sought as set out in the Notice of Motion;

ii.   Provide a brief factual background of the case that is relevant to the motion;

iii.     Identify the issues to be decided on the motion;

iv.    Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw;

v.    Pinpoint the paragraphs within the affidavit evidence that establish the facts relevant to the legal test to be applied. Parties should not simply cut and paste an affidavit into a factum.  The facts should be synthesized and applied to the legal test; and

vi.    Conclude by explaining how the legal test has been met and what orders should be granted.”

Dupont-Goode v. Ashmeade, 2024 ONSC 7092 (CanLII) at 10

“AN seeks a restraining order against IF and BOF, based on his fear that they will continue to engage in spiteful, accusatory and abusive behaviour against him. The authority on which AN relies on for the court to make a restraining order is set out in s. 46(1) and (2) of the Family Law Act, R.S.O. 1990, c. F.3., which provides as follows:

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

I find that s.46 of the Family Law Act only permits the court to make a restraining order against a spouse, or a former spouse of someone who has cohabited with AN for a period of time. Since AN is seeking a restraining order against IF and BOF, the maternal grandparents, the authority for the restraining order he seeks is s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which allows AN to ask for a restraining order against any person. Section 35 provides as follows:

35(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

For me to grant AN the restraining order he seeks against both IF and BOF, I must be satisfied that AN has reasonable grounds to fear for his safety or the safety of E.: s. 35(1).

In Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), the Court held that the onus of proof is on the person asking for a restraining order and that the standard of proof is on a balance of probabilities: at para. 36.

A person’s fear sufficient to justify a restraining order may be entirely subjective, so long as it is reasonable and legitimate.

In R.K.K. v. J.L.M., 2007 ONCJ 223, Dunn, J. held at paras. 33-34:

When a court grants a restraining order in an applicant’s favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.

In McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order:

What I take from these cases is:

• • • • • •  The fear must be reasonable;
          •  The fear may be entirely subjective so long as it is legitimate; and
          •  The fear may be equally for psychological safety, as well as for physical safety.

The above analysis from McCall, supra, was adopted by Kiteley J. in Lawrence v. Bassett, 2015 ONSC 3707 (Ont. S.C.J.). Kiteley J. underscored the point that the fear may be equally for psychological safety as well as physical safety.

In Bedzow-Weisleder v. Weisleder, 2018 ONSC 1969, one of the issues at trial was whether a permanent restraining order ought to be issued. The evidence in support of the restraining order centered around communications from Ms. Bedzow consisting of e-mails, texts and Instagram posts. These were found to be “harassing, abusive, vulgar, and hateful”: at para. 13. Akbarali J. also found that a legitimate fear for one’s psychological safety and not just physical safety is sufficient to conclude that the grounds for a permanent restraining order were made out since Ms. Bedzow’s communications engendered a legitimate fear in Dr. Weisleder for his psychological safety, were emotionally abusive and that Dr. Weisleder should not be subject to them: at paras. 34-35.”

            B.F. v. A.N., 2022 ONSC 7125 (CanLII) at 171-179

“A section 30 assessment has already been ordered, so the court need not reconsider the issue. But the court must consider whether Ms. Lieberman should be appointed. Ms. Lieberman is highly qualified, and has been appointed as a s. 30 assessor before. She has consented to the appointment, and would complete the assessment in three months. The mother has agreed to pay for the assessment, subject to reallocation at trial.

The father objects to the appointment of Ms. Lieberman on the grounds that she is Jewish, like the mother. His objection is that his daughter is Black. And that only an assessor who is Black would be appropriate. He later stated that the assessor must specifically be “Black Caribbean,” like him, or “Black Chinese Caribbean,” like him.

The court does not appoint, or refuse to appoint, professionals based solely on their race. And it would be improper for a court to do so. Section 30 assessors are experts, appointed by the court, because of their technical and professional skills, to report on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child. Assessors may use several methods to learn about the parents and the child, including interviews with the parents, observations of parent-child contact, interviews with third parties who have had significant involvement with the child, a review of records or reports about the child or the parents, and psychological tests.

Given Canada’s diverse and multicultural society, assessors are called on to provide parenting assessments for parents and children with diverse cultural, linguistic, religious, and spiritual upbringing and heritage. There is, and should never be, a requirement that an assessor share the same upbringing or heritage. But being alert to what a child’s upbringing and heritage mean, in the context of parenting, is part of the technical and professional skills that will inform the recommendations. Both the Divorce Act and the CLRA require judges to determine parenting issues based on the best interests of the child, which includes a consideration of the child’s cultural, linguistic, religious, and spiritual upbringing and heritage. If the father participates in the parenting assessment, the father will be able to bring forward the issues important to him based on what he told the court is his identity as a Black Caribbean man.”

            Trotta v. Chung, 2023 ONSC 7080 (CanLII) at 5-8

“The Applicant relies on a number of cases in which the Superior Court of Justice has ruled that it does not have jurisdiction to vary a final order made by the OCJ as the subject separation agreement constitutes a final order of that court through the statutory mechanism provided by s.  35 of the FLA, and the OCJ has affirmed its exclusive jurisdiction to vary a s. 35 FLA order:  Ridley v. DeRose, 2015 ONSC 5635; Houle v. Trottier, 2012 ONSC 786, rev’d on different grounds, 2012 ONSC 6661 (Divisional Court); Doherty-Mulder v. Mrowietz, (2003), 43 R.F.L. (5^th) 313 (Ont. S.C.), 2003 CanLII 5374; Maves v. Whitsitt, 11 R.F.L. (7^th) 399, 2011 CarswellOnt 11869 (Ont. S.C.); Sadowski v. Sadowski, 2011 ONCJ 403; Gow v. Gow (1989), 1989 CanLII 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.); Stafichuk v. Iaboni, 2012 ONCJ 785.

In Maves, the Divisional Court overturned the motion judge’s determination that the Superior Court of Justice lacked jurisdiction to hear an application for corollary relief under the Divorce Act (in the face of a separation agreement that was filed with the OCJ under s. 35 of the FLA) on the basis that the application was not to vary the OCJ order but was a stand-alone independent application.  The Divisional Court stated, at paras 10 – 13:

[10]  The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s. 37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s. 15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.

[11]  The hearing judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court…..

[12]  In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the separation agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.

[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather it supplants and supersedes the order under the provincial statute. See Pantry vs Pantry 1986 CanLII 2537 (ON CA), [1986] O.J. No., 2347 (Ont. C.A.) at para. 7. (emphasis added)”

Nodder v. Wasserman, 2023 ONSC 6982 (CanLII) at 24-25

“The Applicant relies on the ten-year limitation period under s. 4 of the Real Property Limitations Act, and submits that, as more than ten years has expired since the date of separation, the Respondent’s claim of a resulting trust is statute-barred.

Section 4 of the Real Property Limitations Act states, in material part:

No person shall …bring an action to recover any land…within ten years next after the time at which the right…to bring such action, first accrued to the person…bringing it.

In McConnell v. Huxtable, 2014 ONCA 86, the court held that s. 4 of the Real Property Limitations Act applies to claims based in unjust enrichment seeking to impose a remedial constructive trust over real property within the context of a family law dispute.  By the same rationale, the same limitation period applies to claims seeking a resulting trust over real property within a family law dispute (or a civil dispute for that matter) (see McConnell, at para. 29, quoting from Hartman Estate v. Hartman Holdings Ltd. (2006), 2006 CanLII 266 (ON CA), 263 D.L.R. (4th) 640 (Ont. C.A.)).

In McConnell at paras. 54 and 52, the Court of Appeal stated, albeit in the context of an constructive trust case, that “ordinarily the claim should be taken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation”  because “[i]n the family law context, this [discovery of the claim] may typically occur on the date of separation, when shared assets, including real property, are divided and the possibility therefore arises of one party holding onto more than a fair share”.

The key issue is what is the triggering date for the commencement of the ten-year limitation period.  Both parties have operated under the assumption that the triggering date is the date of separation.

I agree with this conclusion.  As at the date of separation, the Respondent knew that the Applicant was a joint tenant of the Property with him and could exercise a right to request a partition and sale as part of a request for division of assets.  It is uncontested that he had the facts that gave rise to his claim of resulting trust as at that date.

The limitation period commenced on the date of separation in the circumstances of this case, since that is the date upon which the family property is to be divided, and the possibility therefore arose that the Applicant would assert ownership over the Property. The date of separation is when the Respondent’s right to bring a proceeding first accrued, consistent with McConnell.

The date of separation is August 17, 2012.  The Respondent’s factum (reflecting first notice of the claim) is undated but was delivered just prior to the return of the motion. His Answer, pleading a resulting trust, is dated July 31, 2023.  More than ten years have passed since the agreed upon date of separation.

As more than ten years since the date at which his right to bring a proceeding accrued has lapsed prior to the Respondent bringing his proceeding claiming a resulting trust in his Answer, this claim is, in any event, barred from proceeding under s. 4 of the Real Property Limitations Act. As a result, there is no genuine issue requiring a trial as relates to the resulting trust claim.”

Hutton v. Wakely, 2023 ONSC 6964 (CanLII) at 60-61, 64-70

“Most of the caselaw provided to the court regarding the reasonableness of a payor’s decision to retire is found in the context of motion to change proceedings.  That is, in those cases the court was asked to decide whether the payor’s voluntary decision to retire constituted a material change in circumstances warranting a reduction or termination of spousal support.  Although not a motion to change proceeding and this court is tasked with determining the appropriate quantum of spousal support payable at first instance rather than the materiality of a change in circumstances (i.e. retirement), the following themes and principles identified within the caselaw provided are of assistance to the court:

1. 1. 1. 1.    A payor cannot voluntarily retire early in an effort to frustrate a spousal support obligation. It is appropriate to impute income in such circumstances:  Teeple v. Teeple, 1999 CanLII 3127 (ON CA), [1999] O.J. No. 3565 (Ont. C.A.), at para. 9.
         2.    Voluntary retirement, even if not intended to frustrate a spousal support obligation, does not give automatic right to a reduced spousal support obligation.  Voluntary retirement may constitute intentional unemployment.
         3.    There is no set age at which people expect to cease working:  Bullock v. Bullock, 2004 CanLII 16949 (ON SC), [2004] O.J. No. 909 (Ont. S.C.).
         4.    The effect of voluntary retirement due to a purported medical inability to work is entirely dependent on the specific facts of each case: Hesketh v. Brooker, 2013 ONSC 1122, at para. 22.
         5.    Even in the face of retirement, a spouse’s ability to pay may include his or her capacity to earn an income, either in the job he has chosen to leave or from other employment following retirement: Hickey v. Princ, 2015 ONSC 5596, at para. 60.”

Cornale-Picone v. Picone, 2024 ONSC 6880 (CanLII) at 23

“Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

The jurisdictional test for granting a summary judgment is that there is no genuine issue requiring a trial, and at the heart of this test is a judicial gut check. Although she did not put it in quite that way, in Hryniak v. Mauldin at paras. 49 and 50, Justice Karakatsanis noted that in the context of an adversarial system, if a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial. She expressed this sentiment, as follows:

1. 1. 1. 1. 49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
            50. These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Part of this confidence or gut check that a summary judgment is fair and just is achieved if the judge is satisfied that he or she can justly and fairly decide the matter without the advantages of participating in the dynamic of a trial, where witnesses testify in their own words and can be observed through the rigors of both examination-in-chief and cross-examination, and where the judge has an extensive exposure to the evidence and sees the case unfold without having to piece it together in chambers working from affidavits, transcripts, and factums.

Although in Hryniak v. Mauldin the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course: Gubert v. 1536320 Ontario Limited, 2015 ONSC 3294. Where there are genuine issues for trial and the court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47; Yusuf v. Cooley, 2014 ONSC 6501; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.”

            Levac v. James, 2016 ONSC 7727 (CanLII) at 132-135

“As a general rule, a court will only permit a deduction for notional tax and disposition costs if it is more likely than not, on the evidence, that such costs will be incurred: See Long v. Long (1994), 1994 CanLII 18215 (ON SC), 8 R.F.L. (4th) 269 (Ont. Gen. Div.); ​ Gomez-Morales v. Gomez-Morales (1990), 1990 CanLII 12307 (NS CA), 30 R.F.L. (3d) 426 (N.S. C.A.); ​ Starkman v. Starkman (1990), 1990 CanLII 6793 (ON CA), 28 R.F.L. (3d) 208 (Ont. C.A.); ​and Leeson v. Leeson (1990), 1990 CanLII 12281 (ON SC), 26 R.F.L. (3d) 52 (Ont. Dist. Ct.).

The issue of notional costs of disposition was reviewed in the Ontario Court of Appeal’s decision in ​ Sengmueller v. Sengmueller. 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (Ont. C.A.). According to Justice McKinlay at p. 215:

In my view, it is equally appropriate to take such costs [i.e. tax consequences] into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as a deduction of a liability: the result is the same. While these costs are not liabilities in the balance-sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves.

Justice McKinlay went on to explain at p. 216:

If assets are transferred in specie or are realized upon to satisfy the equalization payment, the amount of tax and other disposition costs is easily proven, assuming the availability of a preliminary calculation of the equalization payment. The real problem arises when the equalization payment is satisfied with liquid assets not subject to disposition costs, and there are other assets to be valued for the purposes of s. 4(1) which will inevitably be subject to disposition costs at some time in the future. Two questions then arise: First, in what circumstances should disposition costs be deducted, and second, how should the amount of the deduction be calculated?

According to Justice Czutrin in the case Hawkins v. Huige,  2007 CarswellOnt 6762 (Ont. S.C.), the Court of Appeal’s decision in Sengmueller, has come to stand for the following propositions (paras. 101-102):

1)            notional costs of disposition are to be deducted as long as it is clear that these costs will be incurred;

2)            if the costs of disposition are so speculative that they can safely be ignored based on the evidence presented, they should not be considered; and

3)            the circumstances of each case should determine how notional income tax and disposition costs should be calculated.

The Court of Appeal in Sengmueller, noted that RRSPs are “taxable in full, regardless of the time of realization and regardless of whether they are cashed in full or taken by way of annuity” (at p. 218).  It is now generally accepted that RRSP funds, like pensions, will be reduced by a reasonable amount to account for the income tax ultimately payable when brought into income: Lackie v. Lackie, 1998 CarswellOnt 2200 (Ont. Gen. Div.); Appleyard v. Appleyard (1998), 1998 CanLII 4974 (ON CA), 41 R.F.L. (4th) 199 (Ont. C.A.); and Hawkins, at para. 101.

In the current case, the Respondent’s RRSPs are taxable, and they have been collapsed.  For these reasons, they satisfy the threshold for a deduction based on notional disposition costs.

The court in Virc v. Blair 2016 ONSC 49, at para. 198 stated:

Courts have adopted various approaches to deal with the lack of evidence in these cases. In some cases, the Court will allow a deduction in the absence of any evidence and will simply insert a percentage without further discussion. In other cases, a deduction may be allowed but at a reduced rate. However, in some cases the Court disallows the deduction altogether due to lack of evidence. Courts have considered hindsight evidence of post-separation tax rates and actual costs of disposition incurred when RRSPs were sold after separation but before trial: Ibid, citing Stacie R. Glazman & Susan Blackwell, “New Developments in Disposition Costs and Why They Matter” (2014), 33 C.F.L.Q. 49 (WL).

In Hawkins v. Huige, the wife proposed the tax rate of 30% be used for both parties’ RRSPs.  Justice Czutrin concluded that while 30% “may appear reasonable, it does not take into account future contingencies and the present values given the age of the parties.”  Disappointed that neither party had provided reliable evidence as to likely disposition dates and the present value of any possible future disposition, Justice Czutrin decided to allow a 23% notional tax reduction on all potentially taxable assets, being half the current top marginal rate of 46%.  Justice Czutrin expressed: “Absent reliable evidence and following case law, I find this is the fairest way to deal with this issue for both parties” (para. 112).

In Ali v. Williams, 2008 CarswellOnt 1757 (Ont. S.C.), Justice van Rensburg allowed disposition costs on both parties’ RRSPs, as a result of the Court of Appeal’s decision in Sengmueller v. Sengmueller, noting: “Costs of disposition should be calculated in particular with respect to RRSPs which will be subject to tax whether they are cashed in or received subsequently as an annuity” (at para. 102).  Justice van Rensburg used the tax rate of 25% for both parties.

I have applied a notional disposition cost of 25% for the Respondent’s RRSPs which is fair and proportionate.”

M.A. v. J.M., 2023 ONSC 6876 (CanLII) at 127-136

“Specific performance of an agreement is an equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 29, leave to appeal refused, [2015] S.C.C.A. No. 50; Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 22, leave to appeal refused, [2019] S.C.C.A. No. 420. As the Supreme Court instructed in Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415, at para. 22, specific performance should not be ordered automatically as the default remedy for breach of a contract for the sale of lands, “absent evidence that the property is unique to the extent that its substitute would not be readily available” or absent “a fair, real and substantial justification” for the claim to specific performance.

The overarching question is whether the land rather than its monetary equivalent better serves justice between the parties: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, 25 R.P.R. (6th) 177, at paras. 69-71; Dhatt v. Beer, 2021 ONCA 137, 68 C.P.C. (8th) 128, at para. 42. The governing factors that typically inform the determination of that question include: the nature of the agreement and the property, the objective uniqueness of the agreement and the property, and their subjective uniqueness to the purchaser at the time of purchase; the adequacy of damages as a remedy; and the behaviour of the parties having regard to the equitable nature of the remedy: Matthew Brady, at para. 32; Lucas, at para. 71.  This discretionary determination is a fact-specific inquiry that requires a consideration of all the particular circumstances and the equities of the case: Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 55; Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2021 ONCA 201, 32 R.P.R. (6th) 1, at para. 288.”

            Gill v. Gill, 2024 ONCA 877 (CanLII) at 15-16