“”Consideration” in law is a contractual concept. It is the value that flows from a promisee to a promisor as a result of a bargain. There can be no consideration, however, when there has been no bargain or — to put it another way — consideration cannot flow from a promisee who does not know he or she is negotiating, much less passing value to a promisor in an exchange he or she doesn’t know exists.”
Author: dawi
July 25, 2022 – Motions to Strike
“In Holder v. Wray, 2018 ONSC 6133, Emery J. reviewed a number of cases dealing with the question of whether a court should hear a motion to strike inadmissible paragraphs from an affidavit in advance of the main application or whether the admissibility of affidavit evidence is a question best left to the court that hears the application. He concluded, at para. 40:
An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One “special reason” to make such an order in advance of the main hearing would be where the affidavit at issue is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party.” See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death, 2007 CanLII 31756.
Emery J. adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion.
Where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the question to the court hearing the application because relevance can often only be assessed in the context of the application as a whole. The judge who hears the application on its merits is usually best situated to make that determination.
There are other cases, such as those described by Emery J., where screening inadmissible evidence at a preliminary stage will result in a more efficient use of parties’ and the court’s time and resources. For example, affidavits often contain inadmissible legal argument, opinions or comments on the legal position of the opposing party. “Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out”: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at para. 27. Permitting such inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.
In this regard, I adopt the following statement of the Divisional Court in Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, at paras. 7 and 8, which indicates a preference for having the record determined at a preliminary stage:
We are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058 (Div. Ct.), If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.
To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.
If the inadmissible evidence accounts for one or two isolated paragraphs in an affidavit, it may be more efficient to wait and have the issue of admissibility determined by the court hearing the case on its merits. In cases in which the affidavit is replete with inadmissible paragraphs, it may be fairer and more efficient to have the questions of admissibility determined in advance.
The question of whether a motion to strike paragraphs from an affidavit should proceed as an interlocutory motion or at the same time as the primary motion was also considered by Perell J. in Gutierrez. After reviewing a number of cases that canvassed the advantages and disadvantages of each procedure, Perell J. summarized the law at para. 35:
By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.”
July 22, 2022 – Obligation to “Follow Through” With Secondary Arbitration
“Having considered the circumstances, the Court is of the view that family mediation and arbitration as agreed upon by the parties and accordingly ordered by Justice Kershman should prevail over a return before the Court as proposed by the Applicant.
To be clear, the Court is very mindful of the fact that the “Dispute Resolution” clause in this matter is not a valid arbitration agreement. There is no question that it does not contain the required standard provisions set out in the Family Arbitration Regulation 134/07. However, what is clear is that the parties consented to the terms set out in the said clause which unequivocally reveal a common intent to resolve future disputes through the mediation/arbitration process. The wording makes mediation and arbitration mandatory. It states:
− “If the parties Disagree about the parenting, they shall first try to resolve the dispute…”
− “If the parties are unable to resolve the dispute through negotiation and/or mediation within 30 days… they shall arbitrate the issue…”
It is noted that both parties entered into comprehensive Minutes of Settlement being represented by counsel. These Minutes resolved all the issues and formed the basis for Justice Kershman’s final orders.
The parties’ common intent for the resolution of future disputes clearly falls within the definition of “secondary arbitration” found under section 59.7(2) of the Family Law Act:
Sec. 59.7(2): In this section, “secondary arbitration” means family arbitration that is conducted in accordance with the separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.
The Court agrees and adopts Justice Gray’s analysis found at paragraph 58 of Lopatowski v. Lopatowski, 2018 ONSC 824:
[58] In this case, the parties had entered into a clear agreement to the use of a parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities could be required, including statutory formalities. At the outset, when they made their agreement, if either party was concerned about whether something in a potential parenting coordinator agreement might be an impediment, one might have expected experienced counsel to raise it, or at least see a draft parenting coordinator agreement before executing the Minutes of Settlement. Similarly, if either party thought any of the statutory formalities were in issue, one might have expected counsel to raise it.
The essence of the Court’s decision is that the Applicant is bound by the terms of Justice Kershman’s order which are based on Minutes of Settlement to take steps necessary to make the order operative. This obligation is for him as well as the Respondent to enter into a formal and secondary arbitration agreement with the required standard provisions set out in the Family Arbitration Regulation 134/07. The Court must have the power to require parties subject of a court order to live up to their obligations.
The Court’s finding as to the parties’ intent is reinforced by the fact that they both participated in two mediation sessions as set out in the “Dispute Resolution” clause. The Applicant then refused to participate in the arbitration phase. In the absence of a valid “secondary arbitration” agreement, he was not obliged to participate. However, this does not relieve him to follow through with a valid agreement.
The Applicant’s obligation to follow through with “secondary arbitration” and enter into a valid agreement to that effect per Justice Kershman’s final orders, finds support in the Ontario Court of Appeal’s decisions in Geropoulos v. Geropoulos, 1982 CanLii 2020 and Owers v. Owers, 2009 ONC 296, which speak to the validity of family court orders that contravene formal statutory requirements. The Court notes the following analysis in Geropoulos:
In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them… no purpose is to be served in compelling agreements of this kind to comply with formalities of s. 54(1) and, if not, permitting parties to withdraw at will from compromises properly entered into by their legal representatives before trial of their action or … compromises concluded even during the trial of an action…”
July 21, 2022 – Appointing Amicus
“The considerations for appointing amicus in a family law case (other than a child protection case) were recently articulated by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, 2019 ONCA 1023. The Court applied the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 to the family law context. The Court said the following:
(a)The appointment of amicus is “exceptional” or “rare”. Trial judges routinely resolve family law disputes without counsel on one or even both sides. Self-representation, on its own, is an insufficient reason to appoint amicus;
(b) Trial judges must consider whether they can personally provide sufficient guidance to an unrepresented party, in the circumstances of the case, to permit a fair and orderly trial;
(c) The Court should also consider the availability of alternatives to appointing amicus. These might include the availability of legal aid or appointing the Children’s Lawyer in a case involving a child. But the Court may also balance against these potential alternatives, how invoking them might create more delay;
(d) Amicus may be appointed in rare or exceptional circumstances, when a judge requires assistance to ensure “the orderly conduct of proceedings”, and “the availability of relevant submissions”;
(e) A party has a right to self-represent. Nevertheless, amicus might be warranted where the self-represented party is “ungovernable or contumelious”, where the party refuses to participate or disrupts trial proceedings, or where the party is adamant about conducting the case personally but is “hopelessly incompetent to do so, risking real injustice”;
(f) The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case. The stakes must be high enough to warrant amicus;
(g) Amicus may assist in the presentation of evidence, but cannot control a party’s litigation strategy;
(h) “Very rarely”, amicus may mirror the duties of traditional counsel;
(i) However it is defined, the role of amicus must be clear, detailed and precise. During the trial, the Court must monitor the amicus, to ensure that he or she stays on course and remains within the limits of the role;
(j) The role may change or be refined as circumstances change during trial;
(k) Once appointed, the amicus is bound by a duty of loyalty and integrity to the Court, not to any of the parties to the proceedings; and
(l) A party may not discharge amicus; only the Court may do so.”
July 20, 2022 – Enforcing Family Arbitration Awards
“The Respondent submits that the statutory threshold for converting the Final Arbitration Awards into Court Orders in this case has been met.
The Respondent relies on the Arbitration Act, 1991 S.O. 1991, C.17, which confirms the binding nature of Final Arbitration Awards. Section 37 of the Arbitration Act provides that, “An award binds the parties, unless it is set aside or varied under section 45 or 46… .”
Section 59.8(2) of the Family Law Act, R.S.O. 1990, c. F.3 (the “Family Law Act”), and Rule 32.1(2) of the Family Law Rules, R.S.O. 1990, c. C. 43, provides that a party entitled to enforcement of an arbitration award shall make a motion in an existing proceeding rather than an application.
Section 59.8(4) of the Family Law Act further governs enforcement of family arbitrations awards and provides that:
(4) If the family arbitration award satisfies the condition set out in subsection 59.6(1), the court shall make an order in the same terms as the award, unless:
(a) the period for commencing an appeal or an application to set the award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; or
(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.
Section 59.8(5) of the Family Law Act provides that if clause (4)(a) or (b) above applies, the Court may make an order in the same terms as the award; or order, on such conditions as are just, that the enforcement of the award is stayed until the period has elapsed without an appeal or application being commenced or until the pending proceeding [i.e. an appeal or application to set aside or for a declaration of invalidity] is finally disposed of.
Paragraph 15.1 of the parties’ Arbitration Agreement with Mr. Grant confirms that the Final Arbitration Awards were intended to bind the parties within this statutory context:
Subject to the appeal remedies and rights to apply to set aside Mr. Grant’s Award under sections 45 and 46, respectively, of the Arbitration Act and subject to the other applicable provisions of the Arbitration Act, and the Family Law Act, Mr. Grant’s awards are binding on the parties. Any temporary, interim or final award may be incorporated into a consent order of the Ontario Superior Court of Justice. Either party may apply for the enforcement of any award under section 59.8(5) (a) of the Family Law Act.
The Respondent relies on this Court’s decision in DeCraemer v. Decraemer, 2012 ONSC 1182 (“DeCraemer”), in which the parties entered into minutes of settlement which formed the basis of a consent arbitration award. In that case, both parties sought enforcement of the minutes of settlement as a final settlement of all issues. Justice Bielby found that the parties’ agreement met the criteria set out in s. 59.6 of the Arbitration Act and was therefore enforceable. Justice Bielby stated the following (at paras. 34-35):
34 The Family Law Act, sections 59.6 and 59.8 allow for the enforcement of arbitration awards by the court. I find that the agreement met the criteria set out therein and that the agreement is enforceable. Accordingly, I can make an order in accordance with the award. An action remains outstanding and the matter was properly brought before the court by way of a motion.
35 If an order is made incorporating an arbitration award, it is subject to all the powers of the court: Thibodeau v. Thibodeau, 2009 CarswellOnt 2638 (Ont. S.C.J.). The court has the authority to make orders on the same terms as the award: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.).
In Thibodeau v. Thibodeau, 2011 ONCA 110, the Court of Appeal described the operation of s. 59.8 of the Family Law Act as a mechanism for enforcing arbitration awards, not an opportunity to update or vary such awards (at para. 72):
Section 59.8 is essentially an enforcement proceeding designed to turn a family arbitration award into a court order with the enforceability that goes with such an order. Respectfully, it is not an opportunity for the Superior Court judge hearing the application to tweak or alter the arbitration award to conform to what the judge may think the arbitrator should have done. Nor is it an opportunity to “correct” the award retroactively, the better to protect a payee spouse in the event of a subsequently occurring bankruptcy at the expense of other creditors.
The Respondent submits that the conditions in the Family Law Act and the Arbitration Act for the enforceability of the Final Arbitration Awards have been met in this case.
I agree.
The 2016 Arbitration Agreement, under which the Final Arbitration Awards were made, was executed by both parties, as well as Mr. Grant.
Each of the parties was represented by experienced senior legal counsel at the time of the Arbitration Agreement. The parties’ counsel signed Certificates of Independent Legal Advice.
Both parties also were represented when the terms of the Final Arbitration Awards were agreed upon.
Mr. Grant issued the Final Arbitration Award in writing and delivered the issued awards to the parties’ respective counsel.
The Awards were made on consent, and there has been no application to set the Awards aside or for a declaration of invalidity.
Justice Nelson dealt with a similar situation in A.S. v. A.S, 2005 CanLII 20817 (Ont. S.C.J), involving a request for a court order incorporating Ontario arbitration awards in circumstances where the child in question was no longer habitually resident in Ontario. Nelson J. held (at para. 13):
[13] I raised the question with counsel of whether jurisdiction could be lost by the arbitrators, notwithstanding the jurisdiction provisions of the separation agreements, as a result of the child no longer being habitually resident in Ontario. Counsel for the mother took the [sic] position that the jurisdiction of the arbitrators was lost due to this fact. It is my view however, that simply because [sic] an Israeli court has made an order in relation to this matter does not mean the jurisdiction of the arbitrators is lost. Under the present circumstances involving an access dispute, which was well within the contemplation of the parties when they signed the agreements, the arbitrators still have jurisdiction. On this motion I am simply deciding whether to incorporate the terms of an arbitration award into an order pursuant to the Arbitration Act. The contracts between the parties with respect to the issues of access, custody, and jurisdiction are valid and subsisting contracts. …
On Appeal, the Court of Appeal affirmed Justice Nelson’s conclusion that where the statutory conditions have been satisfied, it is justified for the Court to enforce an arbitration award as a Court Order (Shoval v. Shoval, 2006 CanLII 60347 (Ont. C.A.).
For similar reasons, I find that the Final Arbitration Awards in this case are enforceable as Court Orders.”
July 19, 2022 – Balev & The Hague
“The first case in Ontario to consider the effect of Balev on Hague decisions was Justice Pawagi’s decision in Andegiorgis v. Giorgis, 2018 ONCJ 965. In that case, the children had moved between Canada and Norway, but last lived in Norway with their parents. The parties separated, and the mother left Norway for Toronto with the children. The father commenced a Hague Application for the return of the children to Norway. The mother took the position that as a result of Balev, the Court must consider the circumstances of the children after the alleged wrongful removal and gave significant evidence that the children were now more connected to Canada and therefore Canada was their place of habitual residence. Justice Pawagi stated at para. 34:
Father’s counsel submits, on the other hand, that, contrary to popular belief/fear, a close reading of Balev would demonstrate this is not what Balev has done. I agree with the father’s counsel’s interpretation that Balev has not actually eviscerated the Hague Convention. (emphasis added)
Justice Pawagi clarified the conflicting interpretations of Balev, highlighting that the Supreme Court of Canada decision is clear that when using the hybrid approach, “the judge must determine the focal point of the child’s life – the family and social environment in which its life has developed” – immediately prior to the removal or retention. Subsequent links are relevant only to the exception under Article 12.
At para. 39, Justice Pawagi offered further clarification:
The Supreme Court is clear that while the child’s circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The court is clear that the child’s circumstances following the wrongful removal or retention can only be considered when the Hague application is not brought within a year of the wrongful removal or retention.
Thus, in an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the state, but also the children’s circumstances, including connections they form, during the agreed-upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention.
…
Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed-upon temporary stay.
Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year).
In the case before me, I cannot consider the children’s connections to Ontario created after their wrongful retention in Ontario. In using the hybrid approach set out in Balev, I can still only consider the relevant factors in place prior to the children’s wrongful retention and not those formed since returning to Ontario.”
July 18, 2022 – Imputing Income for Child Support
“Before I turn to consider the evidence and make my findings, it is prudent to review the legal principles that apply to the determination of a payor’s income for the purposes of determining child support. To begin with, the determination of income for the purposes of child support is governed by ss. 15 to 20 of the Federal Child Support Guidelines, SOR/97-175. Section 19 concerns the imputation of income and provides as follows:
19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
The list is not exhaustive and it is not intended to circumscribe the court’s general discretion to impute income in other situations where it might be appropriate to do so. The only limitation on the court’s discretion rests with the requirement that there be some basis in the evidence for the amount that court chooses to impute: see Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1.
The leading case on this subject is Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). In that case, the Ontario Court of Appeal stated that imputing income is one method that the court may use to give effect to the joint and ongoing obligation of parents to support their children. To meet that obligation, parents must earn what they are capable of earning: at para. 32. If they fail to do so, they will be found to be intentionally under-employed. The applicable principles that emanate from Drygala, which were summarized recently in C.V. v. S.G., 2019 ONCJ 159, at para. 329, are the following:
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- One of the objectives of the Guidelines is to establish a fair amount of support for children to ensure they benefit from the financial means of both parents after separation;
- It is not necessary to find a specific intent to evade child support obligations before income can be imputed. There is no requirement of bad faith;
- There is a duty to seek employment. A parent cannot avoid child support by a “self-induced” reduction of income; and
- If income is to be imputed, there must be a rational basis for the figure selected. The Court must consider what is reasonable in the circumstances, including the payor’s age, education, experience, skills, health, the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations and the hourly rate that the parent could reasonably be expected to obtain.
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In Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, at para. 35, another leading case, the Newfoundland and Labrador Court of Appeal outlined eight general principles to consider in deciding whether to impute income:
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- The fundamental obligation of a parent to supporthis or her children takes precedence over the parent’s own interests and choices;
- A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to supporthis or her children;
- A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;
- Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control;
- The determination to impute income is discretionary, as the court considers appropriate in the circumstances;
- Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;
- A parent will not be excused from his or her child supportobligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and
- A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.
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Finally, the onus falls on the parent requesting that income be imputed to provide an evidentiary basis upon which a quantum can be imputed: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28; and Tillmanns v. Tillmanns, 2014 ONSC 6773, 53 R.F.L. (7th) 210, at para. 58.”
July 15, 2022 – Relocation and Material Change Under the new Divorce Act
“The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (s. 16(3) and s. 16.92). This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications.
The framework fails however, to state whether there must first be a change in circumstances before the provisions of s. 16.9 and s. 16.92 of the Divorce Act are to be considered. A change in circumstances was established as the threshold question by the Supreme Court of Canada in Gordon v. Goertz. Without a change in circumstances, the application for relocation would not be considered.
Section 17(5) of the Divorce Act provides that “before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order” and further, the court is required to take into consideration only the best interests of the child as determined by reference to that change. S. 17(5.2) provides that the relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
As relocation contemplates a significant geographic move away from the other parent, it will inevitably necessitate a variation to any existing order. Therefore, the provisions of s. 16.9, s. 17(5) and s. 17(5.2) must be read together when considering a variation order to permit the relocation of a child. The parent seeking the order does not need to demonstrate and the court does not need to satisfy itself there has been a change in the circumstances of the child beyond the proposed relocation. This approach was also taken by Trousdale J. in Cote v. Parsons, 2021 ONSC 3719 when considering a recent Motion to Change to allow for the relocation of children.”
July 14, 2022 – Pets
“Although pets are often viewed by people as members of their family, in law they are personal property much like other chattels, even when purchased during the course of a relationship. In that regard, they are an indivisible piece of property. The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner: Brown v. Larochelle, 2017 BCPC 115 (“Brown”), at para. 16; Henderson v. Henderson, 2016 SKQB 282 at paras. 23, 40; Warnica v. Gering, 2004 CanLII 50065 (“Warnica”), at para. 28, aff’d 2005 CanLII 30838, at para. 6.
The court has authority to determine ownership and to provide compensation for harm to property interests: King v. Mann, 2020 ONSC 108 (“King”), at para. 19. The court has no general discretion to redistribute property or alter ownership, but as with other kinds of property there may be issues as to whether a particular piece of property was made a gift or whether it is held in trust for another party, by way of constructive or resulting trust: King, at para. 20.
The traditional approach to determining who owns the dog focuses primarily on who purchased and paid for the dog and whether there are any discrete transactions where ownership changed: Baker v. Hamina, 2018 NLCA 15 (“Baker”), at para. 11; Warnica; Brown, at para. 16.
In the recent case Coates v. Dickson, 2021 ONSC 992, at para. 8, the court took a broader approach to ownership than who purchased the dog, and held that the court should take into account the following when determining the ownership of a dog:
a. Whether the animal was owned or possessed by one of the people before the relationship began;
b. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
c. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
d. Who purchased and/or raised the animal;
e. Who exercised care and control of the animal;
f. Who bore the burden of the care and comfort of the animal;
g. Who paid for the expenses related to the animal’s upkeep;
h. Whether at any point the animal was gifted by the original owner to the other person;
i. What happened to the animal after the relationship between the litigants changed; and
j. Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the animal.”
July 13, 2022 – Injunctions and Preservation Orders
“The parties agree that as joint owners of McKendry Road they are both presumptively entitled to their share of the net proceeds from the sale. They also agree that the onus is on the applicant as the moving party to show that a preservation order is necessary with respect to the respondent’s share to protect her interest. They further agree that her request is injunctive relief (see section 101 of the Courts of Justice Act), namely a court order that commands or, in this case, prevents an action.
As to the law regarding interlocutory injunctions generally, RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.J. No. 17, at paragraphs 77 and 80 sets out the governing three-part American Cyanamid test [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396]. At the first stage, an applicant for interlocutory relief must demonstrate a serious question to be tried. That is to be determined based on a common sense and an “extremely limited” review of the case on the merits. A motions court judge should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, where the only issue is a simple question of law, or where there is no real conflict on the facts. At the second stage the applicant must convince the court that he or she will suffer irreparable harm if the relief is not granted. The third branch of the test requires an assessment of the balance of inconvenience.
Notwithstanding that general test, injunctions seeking to preserve assets prior to trial have always been viewed as largely unavailable based on the principle that execution cannot be obtained before judgment, and judgment cannot be obtained before trial. This is commonly referred to as the ‘general rule in Lister’ from Lister & Co. v. Stubbs, [1886-90] All E.R. 797: see Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2, at paragraphs 8 and 9. The court will not grant an injunction to restrain a party from parting with his or her assets so that they may be preserved in case the other party’s claim succeeds (Aetna at para. 8). That is what the applicant is seeking here.
There are a few long established exceptions to the Lister rule as described in Aetna at paragraph 9. Some have since been codified. For example, there is an exception now found in Rule 45 of the Rules of Civil Procedure to the effect that the rule does not apply where the moving party is seeking a restraint on the removal or dissipation of the very asset that is in question in the proceeding. That is not the case here, as the unjust enrichment claim is with respect to a pension, not McKendry Road. However, other exceptions do apply to the applicant’s claims here as set out below, with the question being whether the applicable tests have been met.
The first is that there is a codified exception found in section 40 of the Family Law Act that permits the court to make an order restraining the depletion of a spouse’s property that would impair or defeat a claim to support. It is well established that the usual test for an interlocutory injunction as set out in RJR-MacDonald above applies, the first part being whether there is a serious issue to be tried: Taus v. Harry, 2016 ONSC 219 at para. 33; Price v. Price, 2016 ONSC 728 at paragraphs 5 and 6; Fraser v. Fraser, 2017 ONSC 3774 at para. 59; and Cummings v. Cummings, 2020 ONSC 3093 at para. 82.
The applicant also requests a preservation order related to her claim for unjust enrichment. She argues that the same general interlocutory injunction test (‘serious issue to be tried’) applies. However, she has not established a statutory exception. As an aside, there is an exception at section 12 of the Family Law Act with respect to preservation orders to secure equalization claims, for which the case law suggests that the same usual interlocutory injunction test applies, but we are not dealing with an equalization claim here. The only available exception comes from the common law and is the relatively more recent Mareva injunction. It is only available where the moving party maintains that there is a real risk that the remaining significant assets of the responding party are about to be removed or disposed of as to render nugatory any judgment obtained after trial (see Aetna at paragraphs 15 and 25). Unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue (Aetna at para. 26). It requires the moving party to demonstrate a strong prima facie case rather than a good arguable case (Aetna at para. 30). The full test is set out in Chitel v. Rothbart 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540 (C.A.) at para. 43, 55 to 57, helpfully summarized by Justice Trimble in Karpacheva v. Karpacheva, 2018 ONSC 4563 at paragraphs 33 and 34 as follows (citations omitted):
[33] In order for the court to impose a Mareva injunction the party seeking the injunction must satisfy the court of the following things:
a) the plaintiff must also show that he or she has a strong prima faciecase;
b) the plaintiff must make full and fair disclosure of all material matters within his or her knowledge;
c) the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim, the amount thereof, and the points that could be fairly made against it by the defendant;
d) the plaintiff must give the basis for believing that the defendant has assets in the jurisdiction;
e) the plaintiff must give grounds for believing that there is a real risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded to him or her; and
f) the plaintiff must give an undertaking as to damages.
The factors outlined above are guidelines for the Court to consider as opposed to rigid criteria each of which must be met before the Mareva will issue. The Court, under Section 101 of the Courts of Justice Act, should ask whether it is just and equitable that a Mareva should issue …
I note that some of those criteria are directed at the circumstances where the injunction is sought on an ex parte basis (ie. subparagraphs 33 (b) and (c)), which is not the case here. They are in addition to the usual interlocutory injunction criteria requiring a finding of irreparable harm and a balance of convenience: see Cummings v. Cummings paragraph 67 citing Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67.
The Mareva injunction test has been applied recently in a number of family law cases, a few of which have already been noted: for example see Karpacheva v. Karpacheva, Laliberte v. Monteith, 2018 ONSC 7032, Hadaro v. Patter, 2019 ONSC 4574, and Cummings v. Cummings.”
Boutin v. Loucitt, 2021 ONSC 5594 (CanLII) at 11-18