Author: dawi

“Clear direction was provided today to counsel for the Respondent as to what is required.

This court emphasized that just because counsel or opposing counsel may have previously filed voluminous materials, single spaced, fonts reduced, and with improper attachments – this does not mean that you can do so as a matter of practice or ought to do so at all.

Simply put, it is bad practice.

To then say ‘well I did it last month Your Honour’ is simply not an adequate explanation from an Officer of this Court.

Briefs are not supposed to be long. The word brief means brief. As Justice MacLeod-Beliveau was fond of saying, ‘Less is more in pleadings’.

Offers to Settle are not to be attached to Case Conference Briefs.

The list of permitted attachments is clear.

Generally speaking and to confirm by way of example, pages of texts and emails and offers and photos and character letters and screen shots are all examples of improper attachments.

The Practice Directions are not suggestions.  Without leave of the court the staff at the counter are expected by their employer to follow them. Counsel are as well. For the information of the parties and counsel in this case, and as conveyed today orally, the staff frequently bring problematic filings to the attention of the court and the court will permit such filings in the exercise of discretion in appropriate cases and does so often as called for by the individual case.

In situations where filings are chronically problematic, it becomes impossible to bring each and every one to the attention of the court. In such circumstances the situation may arise that strict compliance is the only option for counsel and parties. The relentless need to grant leave and indulgences regarding incorrect and improper filings is not workable nor reasonable.

In particular when counsel are on record, as an Officer of the Court, the expectation of the court is that the Rules and Practice Directions will be followed. Leave and indulgences may be granted when needed, on occasion and not as a matter of course. Mistakes and occasional oversights occur and will be considered by this court as needed and in light of the facts of the case and the nature of the breach.

A chronic pattern of inattention to Rules and Practice Directions will not be ignored by the court and allowed to form a new methodology of court process.”

          Bron v. Thompson, 2022 ONSC 5674 (CanLII) at 4-15

“Rule 31(5) of the Family Law Rules sets out the parameters for the consequences of a contempt finding. They are very broad, and include imprisonment, payment of a fine, paying an amount to a party as a penalty, payment of costs, and doing “anything else the court decides is appropriate”.  Consequently, it is helpful to consider what sanctions have been imposed by other courts in similar circumstances.

Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] O.J. No. 3019 (S.C.J.) outlines some of the factors to be considered, including the primary purpose of preserving the integrity of the administration of justice; denunciation of the conduct; deterrence; proportionality of the sentence to the wrongdoing; similarity of sentences in like circumstances; aggravating and mitigating factors; appropriateness of a fine; and appropriateness of incarceration.

The case of N.H. v. J.H., 2017 ONSC 4867, further outlines these considerations, including that a custodial sentence is not generally imposed for a first finding of contempt: at para. 610.

N.H. also has many similarities factually with this case.  It too involved a first finding of contempt. However, as is the case here, the breaching behaviour had gone on for some time. It was described as “serious and long standing” and had resulted in serious disruption to the relationship with the father (at para. 612). Mackinnon J. described the mother at para. 3 in ways that are similar to Ms. Smart – “[h]er mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations”. One of the children also suffered from a significant anxiety disorder, and as in this case, the mother arranged for counselling for the child without involving the father or seeking his consent, contrary to an order for joint decision making (paras. 577-581). As in this case, the mother relied on the defence of justification and of having made good faith reasonable efforts to have the children see their father, which defence was rejected.  The mother was found to be “not remorseful, rather appeared to be feel [sic] fully justified.” The experienced judge held: “She gave me no confidence that in future she would comply with an order she disagrees with”. One significant difference from this case is that the mother was a person of greater financial means.

In these circumstances, the sentence included a penalty component and a component for make-up time, in addition to costs on a full recovery basis. The penalty required the mother to contribute a total of $15, 000 to the RESP the father had set up for the two children. The make-up time extended the father’s time with the children on various occasions. While it was not part of the contempt sentencing order, an order was also made in that case requiring the mother to retain a behavioural therapist “with a view to changing her reactive behaviour”.

In Gagnon v. Martyniuk, [2020] ONCA 708, also a case with similarities to this one, the orders following the penalty hearing included an order that the mother comply with the order in respect of the father’s parenting time and that she enroll in a session for co-operative parenting. A fine was ordered to be paid to the father for each occasion that the mother missed one of the parenting program sessions or was late. The motion judge further indicated that the breach of those orders that lead to a second finding of contempt “shall result in further fines, or a period of incarceration, or both”.

The Court of Appeal held that this penalty was not improper and said the motion judge “demonstrated great restraint in penalizing the appellant’s flagrant contempt”: at paras. 23-26. It found nothing in the fine aspect of the order could be considered contrary to the best interests of the children: at para. 25. The court further held that the order that the mother comply with the order regarding the father’s parenting time was in the children’s best interests since it sought to prevent future disputes over parenting time.”

            Smart v. Belland, 2022 ONSC 5612 (CanLII) at 8-14

“An Arbitrator has an obligation to treat the parties fairly and equally under s.19 of the Arbitration Act.

In his Notice of Appeal, the father asserts that the Arbitrator was biased towards him which, in turn, resulted in a substantial miscarriage of justice. The father further states that he was unable to fully present his case, and that the Arbitrator erred in law by considering aspects of the mother’s evidence which the father perceives to have been irrelevant and inflammatory.

The test for a reasonable apprehension of bias is as follows. Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly, see Read v. Alto Properties Inc., 2019 ONSC 1451at para 33.

            Khan v. Khan, 2021 ONSC 8580 (CanLII) at 23-25

“The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4) [emphasis in original]. The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in in P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.” (See also Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children’s Aid Society of Toronto v. S.A.C., 2005 CanLII 43289 (ON SC), [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).

Finally, as the court stated in Children’s Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112: “the court owes a special duty to ensure that the safety and well-being of children are protected.  As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.””

N.P.B. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 5774 (CanLII) at 5-9

“As this court stated recently in Krebs v. Cote, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, “[p]arties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.”

To this end, under Ontario law, there is a high bar to set aside a domestic contract that complies with the enforceability requirements of s. 55(1) of the FLA: namely, that it is made in writing, signed by the parties and witnessed.”

            Li v. Li, 2021 ONCA 669 (CanLII) at 46-47

“Section 7 of the Guidelines defines “special or extraordinary expenses”.  The relevant portions of the section provide:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

…

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

In Titova v. Titov, 2012 ONCA 864, at para. 23, Rouleau J.A. set out the correct approach to be taken by a court under s. 7:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

No issue has been raised by Ms. Craig with Mr. Niro’s position that the parties’ pro rata shares should be the same as those set out in the July 2019 order or that anything other than the incomes upon which the October 2020 order was based should be used to decide the s. 7 issues.

Rather, Ms. Craig submits that neither the son’s moving expenses nor the daughter’s hockey expenses are extraordinary. With respect to the son’s expenses, however, this is irrelevant. As s. 7 itself and the excerpt set out above make clear, there is no requirement that post-secondary education expenses be extraordinary. Nonetheless, to qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In my view, that can only be true where the expense in question is not one that would otherwise have been incurred.

On this basis, I have no difficulty concluding that the expenses associated with the purchase of furniture, appliances, food, toiletries and even “shower flip flops” are all properly characterized as post-secondary education expenses for a temporary residence being shared with someone else while at university. The same can be said for the cost of a hotel room for a night or two while a student’s belongings are being moved into a temporary residence and for restaurant meals while this is being done.”

            Craig v. Niro, 2022 ONSC 5178 (CanLII) at 21-25

“Provincial fraud provisions are remedial in nature and their purpose is to ensure that creditors may set aside a broad range of transactions involving a broad range of property interests, where such transactions were effected for the purposes of defeating the legitimate claims of creditors (Ramgotra (Trustee of) v. North American Life Assurance Co., 1996 CanLII 219 (SCC), [1996] 1 S.C.R. 325, at para. 59).

The relevant legislative provisions applicable to Ms. Van Westerop’s motion for relief are found in the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and more specifically in sections 1 to 4:

Definitions

1. 1. 1. 1. 1. In this Act,

“conveyance” includes gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise;

“personal property” includes goods, chattels, effects, bills, bonds, notes and securities, and shares, dividends, premiums and bonuses in a bank, company or corporation, and any interest therein;

“real property” includes lands, tenements, hereditaments and any estate or interest therein.

Where conveyances void as against creditors

1. 1. 1. 1. 2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

Where s. 2 does not apply

1. 1. 1. 1. 3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section.

Where s. 2 applies

1. 1. 1. 1. 4. Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser.

Were the transfers of Mr. Van Westerop’s ownership interests in Policies no. 159-7, 670-3 and 579-5 fraudulent conveyances?

The cash surrender value in each of the three policies owned by Mr. Van Westerop on the lives of his children (“the children’s policies”) is personal property as defined by s. 1 of the Act.  The transfer of each of these policies by Mr. Van Westerop to each of his children was a conveyance as defined in s. 1 of the Act.  No consideration was paid by any of the children, who were fully aware, at the time they received ownership of these policies, that their mother was seeking to enforce her judgements against them.”

Van Westerop v. Van Westerop et al., 2022 ONSC 5406 (CanLII) at 27-29

“In Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32,  Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions.  This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not.  Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse.  If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion.  To do this properly, the court will need to have the parties’ cases before it.

The guidance that the Supreme Court gave in Hryniak as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system applies equally to how Rule 16 should be applied in the family law context. Karakatsanis J., on behalf of the Supreme Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case.  At para. 49, she stated:

 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.

Karakatsanis J. held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), (similar to Family Law Rule 16(6.1) with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

…Proportionality is assessed in relation to the full trial.  It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial.  This would involve a comparison of, among other things, the cost and speed of both procedures….It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Para. 57)

If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the powers under Rule 16(6.1), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

If a genuine issue is found, Rule 16(6.1) empowers the court to determine if a trial can be avoided by:

               (1) weighing the evidence;

               (2) making credibility findings on the evidence; and

               (3) drawing reasonable inferences of fact from the materials filed.

In the alternative, the Court may also direct a mini-trial or focused hearing under Rule 16(6.2) for any issues remaining on the motion for summary judgment.

A partial summary judgment will be ordered when it is clear that bifurcating the issues would result in a more expeditious, cost-effective, and just conclusion of the matter, having regard to Rule 2(2) of Family Law Rules, which prevides that the purpose of the Rules is to “enable the court to deal with cases justly”: Milne, supra, at paras. 89-90; Rules, Rule 2(2).”

            Shalaby v. Nafei, 2022 ONSC 5615 (CanLII) at 41-46

“Again, the question is whether to increase the Respondent’s access.  To my mind, the Applicant’s resistance to any increase at all appears to be, for whatever reason, punitive.  While she has clearly convinced herself that she is the only one who can adequately for the child, that the Respondent is incapable of doing so, and that there can be no disruption to the current breastfeeding schedule, there is just no other way to explain or characterize her staunch intractable position.  I appreciate the child is being breastfed – which is a factor I must consider (and weigh against the need to foster a loving relationship between the child and Respondent) – but the Applicant’s complaints otherwise ring hollow.  On the breastfeeding issue specifically, I am aware of no case that stands for the proposition that it should overwhelm any other relevant factor.  It is a factor, but one amongst many.

To the question of caring for young pre-school children generally, the authorities filed by the Respondent were most helpful.  While Applicant counsel ably drew distinctions between those cases and the matter at hand, there are still several passages that have relevance to the issues I must grapple with.  For example, in Huess v. Surkos, 2004 CarswellOnt 3517, at para. 30 Spence J. writes that:

30.    I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children.  What I glean from these cases are the following principles:  First, it is important to maximize the contact between access parents and young children.  Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish.  Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits.  And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.

The Saskatchewan Court of Queen’s Bench in Lygouriatis v. Gohm, 2006 CarswellOnt 448 takes a similar view, rejecting the idea that, in that case a three month old child, was not “ready” to spend overnight visits away from her primary residence.  Wilson J. cites Joan Kelly and Michael Lamb’s work in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” published originally in the Family and Conciliation Courts Review, where the authors write:

Such unnecessarily restrictive and prescriptive guidelines were not based on child development research and, thus, reflected an outdated view of parent-child relationships.  Furthermore, such recommendations did not take into account the quality of the father-child or mother-child relationship, the nature of both parents’ involvement, or the child’s need to maintain and strengthen relationships with both parents after separation.  Research and experience with infant day care, early preschool, and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized.  Indeed, a child also thrives socially, emotionally, and cognitively if the caretaking arrangements are predictable and if parents are both sensitive to the child’s physical and developmental needs and emotionally available.

The evening and overnight periods (like extended days with nap times) with non-residential parents are especially important psychologically not only for infants but for toddlers and young children as well.  Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide.  These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.”

            Holomey v. Hillis, 2020 ONSC 6299 (CanLII) at 17-19

“The purpose of the PBA was commented upon in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 38, as being of vital importance to long-term income security:

The Act is public policy legislation that recognizes the vital importance of long-term income security. As a legislative intervention in the administration of voluntary pension plans, its purpose is to establish minimum standards and regulatory supervision in order to protect and safeguard the pension benefits and rights of members, former members and others entitled to receive benefits under private pension plans[.]

Adrianna points to this “long-term income security” purpose of the PBA as antithetical to the appellant’s position. After all, once someone has died, there is no longer a need for income security. The difficulty with this approach – with this singular emphasis on the purpose of the PBA – is that it ignores the equally important legislative context of the FLA. The answer to this appeal lies at the intersection of these two pieces of legislation.

The equalization provisions within the FLA serve a very different purpose from the PBA, as reflected in the preamble to the FLA:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children[.] [Emphasis added.]

If the sharing of in-pay pension payments cannot continue to an estate, in many cases, dividing pension payments at source would lose force as a proxy for what would otherwise be entitlement to equalization of net family property under ss. 5(1), 7(1), and 9(1) of the FLA. This would be particularly true in situations like this one where, from an actuarial perspective, the retired member spouse’s life is likely to be long, but the non-member former spouse’s life is predicted to be short.

As before, s. 5(1) of the FLA provides that, when spouses separate and there is no reasonable prospect of resuming cohabitation, “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.” Section 9(1)(a) of the FLA allows the court to order one spouse to pay the other the amount to which that spouse is entitled under the equalization regime. The idea here is that the value of property accumulated during the marriage partnership, in which spouses are assumed to have been equal partners, should be shared equally when that marriage ends. This includes the accumulation of a pension over the course of a marriage.

It is true that pensions have been referred to as “sometimes elusive assets for equalization purposes, being in reality a right to a future stream of income, rather than a current and exigible fund”: Kendra D.M.G. Coats et al., Ontario Family Law Practice 2020, Volume 2 (Toronto: LexisNexis Canada, 2019), at p. 537. It is because of the elusive nature of the pension that a new regime was introduced in 2009 to address these difficult issues. At the same time, the FLA was amended so that the family law value of an Ontario-regulated pension would be determined by the pension administrator pursuant to a formula set out in the regulations to the PBA: see FLA, ss. 4(1)(c), 10.1; PBA, s. 67.2. Section 67.2(1) reads:

The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse.”

Meloche v. Meloche, 2021 ONCA 460 (CanLII) at 100-105