Category: Uncategorized

“I spent 3 hours preparing for the motion, scrolling through motion materials, looking for documents so that I could inform myself sufficiently to hear and decide this motion, which was set for 2.5 hours, to address 4 simple, discrete questions.  After 3 hours, I stopped reading, exasperated, and frustrated.

The materials for this Motion for Directions, on their face, suggest that they were prepared in ignorance of the requirements of the Practice Direction and uploading electronic documents to Case Center, indifference to it, and/or in ignorance of how to do what should have been done.

The materials for this Motion for Directions, on their face, suggest that they were prepared in ignorance of the concept that the materials filed should help the Court to navigate through them and to make a decision efficiently, or in indifference to the concept.

I accept both counsel’s apologies for the problems with each of their files.  The time is long past, however, for apologies for not doing what is required by the Practice Direction and good advocacy.  Most counsel are compliant.  In some quarters, however, announcements from Chief Justice’s office, Practice Directions, the availability of on-line resources, and seminars by the Adovcate’s Society, the OBA, District and County Law Associations, have had no effect.  Perhaps the Court’s refusing to hear matters will be an effective call to the bar to do what is required by Practice Direction and good advocacy.  I can only repeat the admonitions of Edwards, RSJ in Lepp v. The Regional Municipality of York, 2022 ONSC 6978.

Case Centre (and its predecessor, CaseLines) has been mandatory in Central West Region in all civil and family matters since 4 April 2022.

For the Court, the Bar, and self represented litigants, Case Centre has brought a substantial change in the way the Court does its business for the public. There have been growing pains for all users. To assist counsel and self represented litigants, Province-wide and Regional Practice Directions have been issued about how people are to upload documents to CaseLines.  They have been amended from time to time to address user issues.  Tip sheets have been published on the Court’s website to assist counsel and litigants: see https://www.ontariocourts.ca/scj/notices-and-orders-covid- 19/supplementary-notice-september-2-2020/caseline-tips/#Tip_1_Register_and_bookmark_Case_Center_Ontario.

Two of the tips address uploading for hearing purposes. One says that if you want to maintain internal hyperlinks and bookmarks you must upload one PDF document.  Alternately, you must upload the Affidavit and the attached items each as a separate PDF document.

Given that Case Centres has been mandatory for two years in Central West, counsel’s failure to comply with it is no longer acceptable.”

Seelal v. Seelal et al., 2024 ONSC 4176 (CanLII) at 6-13

“Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court. I do not agree with the appeal judge’s criticism of the process which did not include pleadings and a record of the pre-arbitration meeting.

Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc.,2019 ONCA 254, at para. 20:

The starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.”

          Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 35-37

“Diana seeks an order that Pasquale pay her $26,450 in occupation rent. This represents half of the market rent for the matrimonial home from the date of separation until the date the sale of the home closed. This order is allowed. The reasons follow.

In Non Chhom v. Green, 2023 ONCA 692, at para. 8, the court confirmed that “[w]hile it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397.”

Occupation rent is “discretionary relief that can be considered to address the equities of a case”: Guziolek v. Guziolek, [2006] O.T.C. 329 (S.C.), at para. 21. The appropriate method of calculating occupation rent is one half of the rent that could have been earned if neither party lived in the property and it had been rented out: Doyle v. De Sousa, 2023 ONSC 3163, at para. 40.

The factors to consider when deciding if occupation rent should be awarded include the following, per Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 53:

a.    The conduct of the non-occupying spouse, including a failure to pay support;

b.    The conduct of the occupying spouse, including a failure to pay support;

c.    The extent to which the non-occupying spouse was prevented from having access to his or her property in the home; and

d.    Whether the occupying spouse paid the mortgage and other carrying charges of the property.

The facts show that this is a clear case for awarding occupation rent.

Diana left the matrimonial home on July 12, 2022, on the advice of Pasquale’s nurse and because of his erratic behaviour. She intended to leave the home on a temporary basis and return when it was safe for her and the children. However, the following day, Pasquale had Diana charged with assault. Pasquale altered the video of the garage incident to leave the impression that there was no reason for Diana to grab him. As a result of her criminal undertakings, Pasquale and Diana were prohibited from communicating directly, and Diana could not return to the matrimonial home.

In August 2022, Diana’s counsel suggested a nesting arrangement so she and the children could continue to use the home. Pasquale refused. That month the parties agreed through counsel that the house had to be sold. Pasquale said that he wanted it sold “as soon as possible”. Initially Pasquale cooperated. The property was listed for sale and showings of the home started. However, his unreasonable behaviour interfered with the listing and sale of the home.”

Cirota v. Cirota, 2024 ONSC 4117 (CanLII) at 182-188

“On October 1, 2017, the applicant and his then wife returned to their native country, India, to visit relatives.  Two days later, the wife, the respondent Onam Vaid, decided not to return to Canada.  The applicant did return.  In 2019, they were divorced.  The applicant is now remarried and has a young child.  For years, the respondent has failed or refused to answer the applicant’s attempts to reach her, to refinance the mortgage on the home they bought as joint tenants.  The absence of the respondent’s co-signature on real estate financing documents has caused the applicant untold misery, not to mention economic strain on his new family.

Citing the Absentees Act, R.S.O. 1990, c. A.3, the applicant requested a declaration that he is the sole owner.  In order for a joint tenancy to devolve into sole ownership, one of the owners must die or be deemed to have died.  Absenteeism is not the same as de jure death, pursuant to the Declarations of Death Act, 2002, S.O. 2002, c 14, Sch.  There is no need to embark on that legal analysis, because there is no evidence before the court that the respondent has died or has even been suspected to have died.  The evidentiary requirements leading to a declaration of death are quite onerous, and the respondent’s decision to disappear into the Indian populace is not the same as someone missing and suspected of an untimely demise.  Survivorship leading to sole ownership is therefore not a remedy available to the applicant.  I will, instead, declare the respondent an absentee. The remedy under the Absentees Act is to appoint the applicant the committee of the absentee’s joint interest in the property.  I will first introduce the legislation, and then I will deal with the two substantive issues the court must consider to declare the respondent an absentee.

Most of the jurisprudence regarding the legal status of absentees arises from the courts’ reluctance to declare people dead under common-law principles.  The fear is that people who are alive can return from legal death, to cause havoc to innocent parties who have organized their affairs based on the declaration.  See Wasylyk v. Wasylyk, 2012 ONSC 7029, [2012] O.J. No. 5884 (S.C.J.), para. 8.  Absenteeism is a statutory invention of a status betwixt the quick and the living.  Under s. 2, any person is entitled to bring the application for the order under the Act.

In 1920, the Ontario legislature enacted the original Absentee Act in 1920 to deal with a Toronto man of considerable wealth who disappeared without any evidence to suspect his death: Re Taylor (1925), O.W.N. 497, cited in Kamboj v. Kamboj Estate, 2007 CanLII 14932, [2007] O.J. No. 1732, at para. 8.  The legislative purpose, consistent with a reading of this short statute in its entirety, is not the creation of a third class of vital statistic other than birth and death.  Nor is it to create some kind of transfer of property interests to joint tenants or to escheat property of missing persons to the Crown.  Rather, the purpose of the statute is to allow stakeholders in the missing person’s property to control, manage and dispose of it.”

Grover v Vaid, 2023 ONSC 5931 (CanLII) at 1-4

“The jurisprudence requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis: N.P. v. D.H., 2022 ONCJ 535, para 53.

The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a)   A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b)   There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c)   Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273):

a)         The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b)        Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).

c)         Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d)        Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273.

e)         Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager.

f)         There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra.

g)        Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:

a.    The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)

b.    Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordonframework (par. 113).

c.     The so-called second stage of the Gordonframework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).

d.     In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).

e.     The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130).

f.     Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).”

Shapovalov v. Pantelousis, 2023 ONCJ 323 (CanLII) at 49-52

“Under s. 9(1) of the Family Law Act, R.S.O. 1990, c. F.3, the Court has discretion to order advances on equalization payments: See Zagdanski v. Zagdanski 2001 CanLII 27981 (ONSC), [2001] O.J. No. 2886; Mikhail v Mikhail, 2023 ONSC 5289.  The factors to consider are summarized in Mikhail at para. 20 as follows:

▪  Whether there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

▪  Whether there will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;

▪  Whether there is a need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and

▪  Whether there may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been a delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.”

          Vargas-Hernandez v. Graff-Guerrero, 2024 ONSC 4164 (CanLII) at 22

“The appellant submits the trial judge erred in awarding any spousal support to the respondent because she erroneously applied the criteria under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) for determining eligibility to spousal support when she should have considered the factors under the Family Law Act. She also says the trial judge’s reasons are inadequate to explain the amount and duration of the support ordered, especially given the respondent’s failure to provide an evidentiary basis for his support claim.

This court in Ballanger v. Ballanger, 2020 ONCA 626, at paras. 22-23, recently and compendiously reiterated the well-established deferential appellate standard of review and its rationale in relation to support orders:

The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.

There is no dispute that in determining the respondent’s entitlement to spousal support, the trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. While this was an error, the question is whether this error is so material that it wholly undermines the trial judge’s decision.

In our view, it does not. There is significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self‑sufficiency within a reasonable period of time figures prominently in both statutes. Giving the trial judge’s reasons the generous reading they require, it is clear that she considered all the relevant factors in determining whether spousal support was warranted, including the respondent’s lack of contributions and work efforts, his mental health issues, his diminished resources, the appellant’s income, the parties’ lifestyle during their relationship, the parties’ ages, and the length of their relationship.”

          Boudreau v. Jakobsen, 2021 ONCA 511 (CanLII) at 13-16

“The respondent mother sought to file two video recordings to support her allegations regarding the applicant’s drinking and abusive behaviour. The applicant was not able to view the videos until after he filed his reply materials.

Both of the video recordings are presumptively inadmissible. The prejudicial effect of secret recordings is presumed to outweigh their probative value in family law proceedings except in the most limited circumstances:  Whidden v. Ellwood, 2016 ONSC 6938 at paras. 96-98, Van Ruyen v. Van Ruyven, 2021 ONSC 5963 at para. 41.

Making a surreptitious video of one’s intimate partner offends the privacy interests of the partner and the family. Such videos are destructive to the maintenance, restructuring, and encouragement of constructive family relationships: Veljanovski v Veljanovski, 2016 ONSC 2047 (CanLII) at para. 49. As Justice Pazaratz observed in Whidden v Ellwood at para. 86, the “obvious reality is that taking videos is a strategic act of aggression and escalation”.”

            Kidd v. Mokrenko, 2024 ONSC 4002 (CanLII) at 35-37

“If I am incorrect with respect to my conclusions pertaining to ostensible authority and a deeper analysis of Derrick’s instructions to Mr. Smith was required to deal with Derrick’s argument that Mr. Smith did not have instruction, then Mr. Smith’s evidence in this regard is highly relevant and I find an implied waiver of privilege with respect to discussions surrounding Derrick’s instructions to settle.  In raising this issue, Derrick has placed Mr. Smith’s authority and conduct directly in issue, and Mr. Smith’s evidence bears directly on this question.

In making these findings I have considered the following legal principles:

•       Solicitor-client privilege is a fundamental right, but not an absolute one:  Laurent v. Laurent, 2019 ONSC 3535 (CanLII), paras. 35-36.
•       Privilege may be waived expressly or impliedly by the client.
•       The law governing waiver of privilege by implication focuses on (1) implied intention and (2) fairness and consistency:  Lawless v. Anderson,2009 CanLII 58602 (ONSC), at para. 10.
•       Intention is determined objectively, including when a party has taken a position that would make it inconsistent to maintain the privilege:  Lawless v. Anderson,at para. 10; Froates v. Spears, [1999] O.J. No. 77, 1999 CarswellOnt 60 (Gen. Div.), at para. 12.
•       Implied waiver has been found in circumstances where the relevance in question is high and the principles of fairness and consistency require disclosure to permit a party to defend itself or in the interests of justice, when the client puts the advice and conduct of the lawyer in issue, and when a party pleads reliance on legal advice for justify actions taken:  Mathews, Dinsdale & Clark LLP v. 1772887 Ontario Limited et al., 2021 ONSC 2563 (CanLII), paras. 30 and 31, citing Martin v. GiesbreschtGriffin, 2018 ONSC 7794 (CanLII); Dramel Limited v. Multani, 2020 ONSC 4440, at para. 60; Laurent v. Laurent, at para. 37.
•       Implied waiver has been found when a client alleges that his or her counsel did not have instructions to proceed with a course of action or accept terms of settlement.  Denying that instructions were given to settle a matter puts that question into issue, thereby waiving privilege over communications related to any such instructions.  Therefore, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter:  Tsakiris v. Tsakiris, 2007 CanLII 44184 (ONSC), at paras. 21-22; Bentley v. Stone, 1998 CanLII 14710 (ONSC), at paras. 4-12; Laurent v. Laurent, at para. 38, citing Benson v. Kitt, 2018 ONSC 7552 at para. 16.”

Lamarche et al. v. Labrash, Labrash v. Lamarche et al., 2023 ONSC 4186 (CanLII) at 70-71

“This Court must regularly consider allegations of family violence on an interim motion when, like in this case, there are competing versions of facts.  The Legislature has nonetheless directed this Court to consider family violence and its implications even when making parenting orders – temporary or final.  The allegations cannot be ignored.  This presents challenges when the Court is forced to make interim findings on a contested affidavit record.

Regrettably, there are cases where one parent makes false allegations of abuse, in the hopes of securing an “upper hand” in the family litigation.  This is a reprehensible tactic because it can wrongfully deny children time with a parent.  Alleged abusers often respond by saying the allegation is false and a mere tactic.  When criminal charges are laid against an alleged abuser, that party may be instructed by criminal cases to be careful in responding to abuse allegations in the family proceeding.”

De Rocchis v. De Rocchis, 2024 ONSC 3983 (CanLII) at 27-28