Author: dawi

“Add to the recipe for disaster one further ingredient – a self-represented litigant.  One who manages to try the patience of the Judge to a degree that is beyond description.  Frequent interruptions of others who are speaking, including myself.  Huffs and puffs from the counsel table while others are testifying.  Sighs.  Shaking of the head in disgust or disagreement.  Verbal outbursts, while seated, from the counsel table while others are testifying.  A ringing cellular telephone in the Courtroom, more than once.  Documents that cannot be found.  Special (and unreasonable) requests for things like immediate recordings or transcripts of entire day’s proceedings and the ability to stay inside the sealed Courtroom after hours to work.  Crying.  Complaining about having no legal representative.  Complaining about having too many boxes of documents.  Complaining about not having enough time to prepare.  Engaging in frequent lengthy diatribes with the Court.  Asking witnesses irrelevant questions.  Asking witnesses the same question over and over and over again.  Asking convoluted, incomprehensible, compound, disjointed and extremely lengthy questions in cross-examination, after receiving much assistance from the Court to try to avoid that.  Getting bogged-down in the tiniest of details from eons ago, despite repeated warnings from the Court to focus on the key issues at trial.  Giving evidence from the counsel table.  Editorializing during cross-examination of opposing witnesses.  Failing or refusing to comply with repeated suggestions by the Court as to what issues to focus on in cross-examination.  Failing or refusing to comply with clear and repeated warnings from the Court, to the point where costs were ordered, twice, to sanction verbal outbursts.  An opening statement that needed to be rescued by this Court in order to have any relevance at all.  Evidence-in-chief from the witness box that required constant reminders by this Court to stay on focus and to talk about facts that are relevant to the issues to be decided. Evidence in cross-examination that was long-winded, repetitive, and often delivered with a snarky and sharp tone, despite a concerted effort by counsel for the opposing party to be polite and straightforward.  Direct examinations that meandered and were chock-full of improper questions.  Being late for Court.  Flagrantly disobeying rulings of the Court by, for example, continuing to speak about something in the witness box that the Court had just ruled was improper and shall not be discussed.  And, finally, despite this Court spending more than one hour discussing the purpose of a closing address and answering numerous questions on that topic, and after having the ensuing weekend to prepare the closing argument, delivering one that was largely irrelevant and improper.”

         Kirby v. Kirby, 2018 ONSC 6958 (CanLII) at 5

“The wife wishes to satisfy a small portion of the EP she owes the husband by way of a direct rollover from her pension into a LIRA or LIF in the name of the husband to the extent allowed by her pension plan administrator in the sum of $8,069.42. The husband did not oppose this request.

Pursuant to s. 10.1 of the FLA,

   …

(3)  An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

(4)  In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. 1. 1. 1. 1. 1. 1. The nature of the assets available to each spouse at the time of the hearing.
                  2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
                  3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
                  4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
                  5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

As can be seen, even before the legislation was changed, the court was empowered to transfer property from one spouse to the other in order to satisfy an EP obligation. However, courts could seldom transfer pensions without the consent of the parties because of various statutes governing those pensions.  Now s. 10.1 of the FLA has been enacted in order to overcome that problem. That does not mean, however,  that a transfer of a lump sum will always be granted.  In fact, the court has discretion and should consider the matters outlined in subsection (4) together with “such other matters as the court considers appropriate” : see VanderWal v. VanderWal, 2015 ONSC 384, para. 9.

There is not presumption of statutory onus that an EP will be made by a transfer of a lump sum out of a pension plan. Each case depends on its own facts.”

            Ramezani v. Najafi, 2021 ONSC 7638 (CanLII) at 151-154

“I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:

• • • •  The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
      • It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
      • Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
      • Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
      •  While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute(para. 159);
      •  As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
      • Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
      • The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
      •  In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions(para. 157).

Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn-Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”

            Minish v. Timmons, 2021 ONSC 7622 (CanLII) at 46-47

“Is there any distinction between striking out pleadings and prohibiting future filings?  The applicable Family Law Rules regarding this question in this particular case are Rules 1(8)(c); 1(8.4) and 10(5), which read as follows:

1(8)  If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c)  an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party,

1(8.4)  If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. 1. 1. 1. 1. 1. 1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
                  2. The party is not entitled to participate in the case in any way.
                  3. The court may deal with the case in the party’s absence.
                  4. A date may be set for an uncontested trial of the case.

10(5)  The consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply, with necessary changes, if a respondent does not serve and file an answer.

Rule 1(8) (c) includes “notice of motion” and “any other document filed by a party” in the list of documents that may be struck out.  However, Rule 1(8.4) does not include either of those items in its corresponding list of documents.  Therefore, the striking of a notice of motion does not have clearly-defined consequences.  Obviously, the relief sought in a notice of motion that is struck out will not be granted, but is the moving party precluded from seeking the same relief at a future date?  If the latter, how is the analysis influenced by the jurisprudence under Rule 14(21), wherein the court may prohibit future motions without permission only where a party is found to have abused the court’s process?  Is non-compliance under Rule 1(8.4) akin to abuse of process under Rule 14(21)?  Although these questions are not directly before me at this time, I highlight them as they may well present themselves should Father seek to revive his motion vis-à-vis the residency arrangements for C.G.S.

In contrast, the connection between Rule 10(5) and Rule 1(8.4) clearly confirms that the striking out of an Answer is equivalent to a prohibition on its future filing.  Thus, the analysis applies equally.  Father argues that, practically speaking, extensions of thirty (30) days to serve and file Answers are granted routinely even in the face of the language of Rule 10(5).  He submits that it would be procedurally unfair to him not to provide a reasonable extension to serve and file his responding documents.  Further, the absence of his participation would negatively impact upon the Court’s ability to address critical parenting issues for the parties’ children.  These submissions go not to the scope of potential relief under Rule 10(5) but rather to the question of appropriate remedy; they will be addressed at that stage of the analysis.”

         C.T. v. C.S., 2021 ONSC 7578 (CanLII) at 20-22

“In making an order for spousal support, a trial judge must consider “the condition, means, needs and other circumstances of each spouse”, including (a) the length of time the spouses cohabited, (b) the functions performed by each spouse during cohabitation, and (c) any order, agreement or arrangement relating to support:  Divorce Act, s.15.2(4).  In applying this section of the Divorce Act, I am mindful of the following:

a)    The word “condition” has a flexible meaning that includes, among other things, social standing or position of a person in the community and also the person’s physical and mental condition: Harris v. Harris, 2005 CanLII 10889 (Ont. S.C.), at para. 23.  A recipient spouse’s health condition may be relevant if it prevents them from working or interferes with their ability to contribute to their own support.  In some circumstances the law may require that a healthy spouse continue to support a disabled spouse, absent contractual or compensatory entitlement: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 48; Gray, at para. 28.

b)   The word “means” is broader than income.  Determining a party’s means may include consideration of such things as a substantial equalization payment, the availability of non-monetary support by family members (e.g. who may provide rent-free housing accommodations), or property ownership that has unrealized potential to generate rental income.

c)    The recipient spouse’s need “should be assessed through the lens of viewing marriage as an economic partnership”: Gray, at para. 27. In determining need, the trial judge “ought to be guided in partby the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased”: Gray, at para. 27 (emphasis added); Marinangeli v. Marinangeli(2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 74. As mentioned above, however, maintenance of the marital standard of living may not be feasible post-separation, particularly in cases where there are concurrent child support obligations.”

K.K. v. M.M., 2021 ONSC 7522 (CanLII) at 41

“Section 31 of the Marriage Act, which is the saving provision to deal with circumstances of non or imperfect compliance with Section 4 of the Act, provides:

1. 1. 1. 1. 31. If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

In the case of Isse v. Said, 2012 ONSC 1829, the court thoroughly canvassed the issue of the validity of a marriage for the purposes of divorce and property considerations. At paragraph 16, Justice Broad analysed Section 31 of the Marriage Act to include the following four necessary elements:

1. 1. 1. 1. 1.   The marriage must have been solemnized in good faith;
            2.  The marriage must have been intended to be in compliance with the Marriage Act;
            3.  Neither party was under a legal disqualification to contract marriage; and,
            4.  The parties must have lived together and cohabited as a married couple after solemnization.”

            Aden v. Mohamud, 2019 ONSC 6493 (CanLII) at 16-17

“Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 19-23

“Rule 24 of the Family Law Rules sets several factors relevant to the preliminary issue of liability for costs.  Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs.  This presumption may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.  Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.  The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)).  Rather, it requires a global and contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to those issues (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), at para. 66; Slongo v. Slongo, 2017 ONCA 687 (C.A.), at para. 3; Vanleer v. Young, 2020 ONCA 459 (C.A.), at para. 46).  Where the court concludes that success was in fact divided, it may decline to order costs, or may award costs to the party who was more successful overall or on the primary issues, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.);  Boland v. Boland, [2012] O.J. No. 1830, 2012 ONCJ 239 (O.C.J.);  Beaver v. Hill, 2018 ONCA 840 (C.A.)).

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 14

“Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy:  It is often tantamount to child abuse.   It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 418-419

“The mother seeks a retroactive variation of all support back to July 1, 2013.  It is her position that if this variation is ordered, the father owes her $1M.  If the court orders a review retroactive to July 1, 2013, the father vigorously disputes this amount.

While the Separation Agreement provides for a review as of July 1, 2013, the court has the discretion to consider if such a long retroactive reach is appropriate given the facts of this case.

Colucci v Colucci, 2021 SCC 24, at paras. 6, 71-73, and 114, provides a revised approach for cases where the recipient of child support seeks a retroactive increase. The approach is summarized in para. 114 as follows:

114   It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a)   The recipient must meet the threshold of establishing a past materialchange in circumstances. While the onus is on the recipient to show amaterial increase in income, any failure by the payor to disclose relevant information allows the court to impute income, strike pleadings, draw adverse inferences and award costs.  There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)   Once a material change in circumstances is established, a presumptionarises in favour of retroactively increasing child support to the date therecipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to  In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)   Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)   The court retains discretion to depart from the presumptive date ofretroactivity where the result would otherwise be unfair. The B.S. factorscontinue to guide this exercise of discretion, as described in Michel.  If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)   Once the court has determined that support should be retroactivelyincreased to a particular date, the increase must be quantified. The properamount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

While this application is not brought under s. 17, Colucci remains the framework, with one exception. Proof of a material change in circumstances is not required because the Separation Agreement provides for the review.  In any event, there is a material change in circumstances given the change in each party’s financial circumstances.

There is a presumption in favour of retroactively increasing child support “to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary” Colucci, at para. 114.”

D.A.S. v. P.S., 2021 ONSC 7358 (CanLII) at 233-237