“This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary”: Oliveira v. Tarjay Investments Inc., [2006] O.J. No. 1109, at para. 2 (C.A.), referring to Scherer v. Paletta, 1996 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co., 2006 CanLII 3954 (ON CA), [2006] O.J. No. 547, at para. 20 (C.A.).”
Author: dawi
November 4, 2022 – Refusing to Mediate and Costs
“L.D.’s refusal to submit to arbitration, especially when the Court later validated her position that the parties’ education plan, and the choice of schools it entailed, was still in the children’s best interests, does not disentitle her to her costs. In Baldwin v. Daubney, (2006) 2006 CanLII 33317 (ON SC), 21 B.L.R. (4th) 232 (Ont. S.C.J.), at para. 12, Spence J. declined to consider a refusal to mediate as a factor in the exercise of his costs discretion:
The plaintiffs say that the defendants refused the request of the plaintiffs to mediate and thereby caused the motion to proceed with its attendant costs, which a successful mediation would have avoided. The defendants say they considered they had a good defence and were not obliged to mediate. Mediation is most likely to be successful where each party considers it has something material to gain from a settlement and appreciates that to achieve a settlement it will need to accept a compromise of its position. Where one litigant is confident that its position will succeed in court, it has little reason to take part in a process that would yield it a lesser result and it is not bound to do so. Indeed, to take part in a mediation in such circumstances could simply prolong the process and add to the cost.
[Emphasis added]
Where mediation has a reasonable prospect of success, and a refusal to participate reflects a party’s unwillingness to entertain a less expensive and speedier means of resolving the issues in a just manner, it can be regarded as unreasonable conduct and attract a costs sanction. Mediation often offers a less expensive means of resolving family law disputes than adjudication. See: Joanne Gross, An Introduction to Alternative Dispute Resolution, 1995 CanLIIDocs 178, at page 9, in which the author cites research conducted in 1990 by J. Kelly, Past President of the Academy of Family Mediators, which showed that the mean cost of the adversarial process for both the husband and wife combined was 134 percent higher than the costs of comprehensive mediation.
In their article, Resolving Family Law Disputes, Infographic, Canadian Forum on Civil Justice, 2018 CanLIIDocs 11081, https://canlii.ca/t/t1n5:, the authors report that they asked 166 lawyers practicing family law in Alberta, British Columbia, Ontario and Nova Scotia questions about the benefits, limitations, cost, and suitability of Collaboration, Mediation, Arbitration and Litigation to resolve different types of family law problems. The authors state:
A majority of lawyers agreed that mediation, arbitration and collaboration are usually cost-effective. Typical low-conflict cases resolved through collaboration or mediation cost almost half that of low- conflict cases resolved through arbitration or litigation….
Joanne J Paetsch, Lorne D Bertrand and John-Paul Boyd came to the same conclusion in An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, Canadian Forum on Civil Justice (www.cfcj-fcjc.org) 2018 CanLIIDocs 11070; as do Noel Semple and Nicholas Bala in an article, Reforming Ontario’s Family Justice System: An Evidence-Based Approach, 2013 CanLIIDocs 498, at pages 147-148.”
November 3, 2022 – Voice of the Child Reports
“A VOCR is a report intended to provide information about a child’s views and preferences for use in resolving parenting disputes. Generally non-evaluative, a VOCR is not comparable to a clinical investigation such as that conducted by Ms. Garibotti or a more comprehensive assessment pursuant to s. 30 of the Children’s Law Reform Act. It is typically short and the time from engagement of the interviewer to delivery of a report is very brief. Typically, no contextual information is gathered and no recommendations are made. A VOCR’s practical benefit is giving a child a chance to be heard. Not uncommonly, recourse to a VOCR is challenged because one or both parents are concerned that it can be used by a parent to manipulate a child’s views, that it has potential to alienate a child and further the goals of the alienator parent: Gajda v Canepa, 2018 ONSC 5154 at para. 23. Where there is an imbalance in a child’s relationship with its parents or where one or both of the parents decline to acknowledge that the other is capable of identifying and responding to children’s needs, caution must be exercised in giving undue weight to the report.”
November 2, 2022 – Maher & Equalization
“[S]4(2).6 of the FLA operates as an exception to the general rule and allows spouses to agree to exclude certain property from the NFP calculation. The issue in this case is whether the parties agreed to exclude the Maher payment from the wife’s NFP, as they had in Khanis. The trial judge erred in law by not reviewing the Maher to determine whether the spouses had actually made such an agreement.
As noted, the Maher in this case contains no express agreement that the Maher payment is to be excluded from the wife’s NFP. Moreover, there is no basis for inferring the parties intended to exclude it. The objective contractual intentions of the parties are to be determined at the time when the contract is made: Davidson v. Allelix Inc. (1991), 1991 CanLII 7091 (ON CA), 86 D.L.R. (4th) 542 at 547 (C.A.), [1991] O.J. No. 2230, at para. 16; Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, at para. 54; Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48 (CanLII), [2002] 2 S.C.R. 695, at para. 36; and Dumbrell v. Regional Group of Cos., 2007 ONCA 59 (CanLII), at paras. 48 and 53. Here, at the time they executed the Maher in Iran, the parties evidently contemplated their continued life in Iran. The Maher, for example, contemplated that the husband could take a second wife. It also required the husband to grant the wife a power of attorney so she could initiate a divorce if he defaulted on any of the prescribed behavioural requirements. There is no basis in this case to infer that the parties contemplated their mutual obligations under Ontario’s FLA.
Absent any evidence of an objective intention at the time of contract to treat the Maher differently, the Maher payment must be treated under the FLA like any other payment obligation between the spouses.
Counsel for the wife submitted that all transactions between spouses, irrespective of any domestic contract, should be excluded from NFP. Counsel submitted it is pointless to include transactions between spouses because they have no net effect on equalization. I reject this submission for three reasons. First, there is simply no provision in the FLA that excludes transactions between spouses. On the contrary, bona fide inter-spousal debts must be included in NFP: Burke (Public Trustee of) v. Burke Estate, [1994] O.J. No. 1342 (Gen. Div.), at paras. 37-40, 1994 CanLII 7442 (ON SC), 1994 CanLII 7442, at paras. 38-41; and Long v. Long, 1989 CarswellOnt 2687 (H.C.), at paras. 15-17. Second, because of the effect of the deeming provision in s. 4(5), transactions between spouses may affect the equalization payment where a spouse’s net assets would otherwise be negative. Transferred assets that fluctuate in value could also make a difference. Third, excluding transactions between spouses would be inconsistent with the separate property regime under the FLA, which continues during a marriage and terminates only on the triggering of the valuation date. As Feldman J.A. said in Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491 (C.A.), at para. 26:
The nature of the property regime established as between spouses under the Family Law Act was clearly described by Cory J. in Rawluk v. Rawluk … Spouses each own their separate property throughout the marriage. However, upon the happening of one of the five triggering events, there is a valuation date.
[Underlining added. Citations omitted.]
The wife’s submission that the Maher payment should be considered akin to a dowry also does not assist her. A dowry from the husband would be included as part of NFP since only gifts given by third parties after the date of marriage are excluded: FLA, s. 4(2)1.”
November 1, 2022 – DNA Paternity Testing
“As indicated earlier, the respondent was unsuccessful in an appeal of the decision of Trousdale J. regarding the DNA paternity testing in September 2019. The applicant and the child provided their DNA samples to the collection site on January 29, 2019. Trousdale J. had provided a deadline of March 5, 2019 to complete the testing. The testing was further extended after the unsuccessful Divisional Court appeal.
The respondent’s refusal to cooperate with DNA testing does not automatically lead to a finding of paternity. The applicant must prove on a balance of probabilities that the respondent is the parent of L. The court must weigh the refusal with the evidence as a whole: see Beith v. Tassone (2003), 2003 CanLII 88999 (ON CJ), 46 R.F.L. (5th) 248 (Ont. C.J.), at para. 44.
I am reminded of the quote from Hamlet and think that the respondent does “protest too much” in his denials of paternity or financial disclosure. By avoiding the DNA paternity testing, he can continue to deny parentage and maybe save face except to the person who is the most suffering – his Canadian son.”
October 31, 2022 – The Divisional Court Speaks
“This court does not ordinarily give reasons on motions for leave to appeal, mirroring the practice in the Court of Appeal and the Supreme Court of Canada. We give reasons in this case solely to provide some guidance in family law cases: there is a continuing pattern of unmeritorious motions for leave to appeal temporary support orders in family law cases, and this is undesirable for the parties and for the administration of justice.
In this case, the motions judge ordered Mr Khan to pay spousal and child support for two children to Ms Lokhandwala. The motions judge did not state that the children spend half their time with their father. The motions judge did not apply a s.9 offset, nor did he explain why he was not applying a s.9 offset, given the time the children spend with each parent.
Assuming without finding that the motions judge made a palpable and overriding factual error, this would be a basis on which to doubt the correctness of his order. However, that does not make the proposed appeal a matter of “such importance… [that] leave to appeal should be granted” (Rule 62.02(04)(a)). Nor does it make it “desirable that leave to appeal be granted” (Rule 62.02(04)(b)). Under either branch of the test under R.60.02(04), the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.). Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.
In family law, temporary support orders are designed to establish or maintain a reasonable state of affairs pending trial. Unless expressly stated otherwise, these orders are without prejudice to adjustment by the trial judge. Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings. Errors in temporary support orders – even ones that are straightforward – are almost always better addressed at trial rather than by way of interlocutory appeal. As argued by the responding party in her factum, “instead of expending their scarce resources on a potential appeal from a [temporary] Order, the parties should focus their attention on resolving the case on a final basis.”
This case is not important to the development to the law. Any error there may have been calculating temporary child support may be adjusted by the trial judge in due course. And any error made by the trial judge on these issues can be pursued by way of an appeal from a final order.
Finally, we wish to be clear that we are not criticizing counsel for the moving party in this endorsement. The practice of seeking leave to appeal in cases like this has been commonplace in family law matters. By this endorsement we signal to the family law bar that this practice should not continue.”
October 28, 2022 – Entitlement to Spousal Support & Disparity of Incomes
“Disparity in incomes does not establish, in and of itself, an entitlement to spousal support. The Spousal Support Advisory Guidelines (SSAG) Users Guide is very clear that a determination of entitlement under the Divorce Act is still a condition precedent to an order for support.
One of the objectives of a support order under s.15.2(6) of the Divorce Act is the promotion of self sufficiency. To establish entitlement based on “need” a spouse is first required to show their inability to become self sufficient, in whole or in part. The assessment of “need” is based on a reflection of the standard of living the parties had while together, so the husband in this case is not limited to the modest lifestyle he has adopted.”
October 27, 2022 – Motions Before Case Conferences: Urgency
“On a motion under Rule 14(4.2), the Court’s role is to assess if the matter is urgent. The jurisprudence provides that abductions, threats of harm or dire financial circumstances are examples of urgent matters: Yelle v Scorobruh, 2016 ONSC 3300. In some situations, a complete denial of access, or the imposition of very strict conditions akin to a denial of access, could certainly amount to a “threat of harm”. The harm need not be physical. Here, the type of harm alleged is one resulting from a sub-optimal parenting schedule (from the applicant’s perspective). It is very common for separating parties to disagree on the parenting arrangements that are in the best interests of their children. Parties should be encouraged to make, and to accept, reasonable offers. A balance must be struck between, on the one hand, dispending swift justice in situations where there are immediate concerns affecting serious health, safety and economic concerns and, on the other hand, making family law orders based on a complete evidentiary record, providing the parties with sufficient time to present their case, and making judicious use of scarce judicial resources. Where, as here, a parent is prepared to agree to reasonable parenting time, these arrangements should be fully explored before resorting to an urgent motion: Porter v. Maclennan, 2011 ONSC 5298.”
October 26, 2022 – Test for Motion to Stay Pending Appeal on Parenting Cases
“There is no dispute with respect to the legal test applicable on this motion. In appeals involving custody and access matters, the three-part test for a motion to stay pending appeal is formulated as follows: see generally, D.C. v T.B., 2021 ONCA 562 (”D.C. v. T.B.”), at paras 9-10:
i. whether, on a preliminary assessment, the appeal raises a serious question to be tried;
ii. whether the child will suffer irreparable harm if a stay is refused; and
iii. the balance of convenience, namely, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal.
The overriding consideration in parenting cases is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B.; K.K. v. M.M., 2021 ONCA 407, at para 17. Moreover, the onus is on the moving party to demonstrate that the stay of the original order pending appeal should be granted.
The standard for appellate review of a custody or parenting decision is exacting. The function of the reviewing court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious apprehension of the evidence, or an error of law. It should also be noted that although all three parts of the test for a stay must be satisfied, the three criteria are not watertight compartments and the strength of one may compensate for the weakness of another: Mudry v. Danisch, 2014 ONSC 435 (Div. Crt), at para. 166.”
October 25, 2022 – Grandparent Contact with Children
“The grandparents Ms. and Mr. Hameed in this matter in arguing the importance of preserving their relationship with Sydney, presented a number of decisions set out below that emphasized that deference to a parent should only be shown if that parent’s decisions are reasonable. They suggest that Alicia’s actions and decisions in blocking contact with Sydney should be seen as unreasonable.
The grandparents argue that while courts frequently cite Chapman as their legal starting point in a grandparent access case, they often distinguish it and order access, or interpret it as suggested in McLaughlin v. Huehn, 2004 ONCJ 426 (CanLII), 2004 ONCJ 426 (Ont. C.J.) (Quicklaw or CanLII). In that case, McSorley, J. interpreted Chapman to mean that courts are to show deference to parental decisions where such decisions are reasonable. The judge wrote:
27 The case of Chapman v. Chapman and Chapman does not stand for the proposition that the wishes of a parent on the issue of access by a member of the extended family should take precedence over the factors in section 24 of the Act. It is but one factor that must be considered. It is always important to defer to the decisions of parents regarding their children. But deference is only accorded when those decisions are reasonable. When the decision to end all contact between a child who has a positive relationship with grandparents, aunts, uncles, cousins and great aunts and grandmothers is made entirely because of hurt feelings from 3 to 5 years ago, then the decision is not reasonable and is no longer entitled to deference.
The Nova Scotia Court of Appeal in Simmons v. Simmons, 2016 CarswellNS 1017 (N.S. C.A.) noted that Chapman “has not had the effect of making the parental autonomy model the singular way to proceed in grandparent access cases.” The Court of Appeal noted:
In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5 (CanLII).”