Category: Uncategorized

“The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71.

In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned:

[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial.  There is a strong presumption that judges have conducted themselves fairly and impartially.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.  Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias.  In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]

A.M. v. J.M.,2016 ONCA 644 at 55-56.

“Given that a support order under the Family Law Actis binding on a payor spouse’s estate unless the order provides otherwise, on its face, s. 34(1)(k) is broad enough to permit a court to order a spouse to obtain an insurance policy to secure payment of the order following the payor spouse’s death. The concluding words “or otherwise” in s. 34(1)(k) afford the court broad scope for securing the payment of a support order.

Because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: see Laczko v. Laczko (1999), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.

…

That said, where there is no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance. This case demonstrates the desirability of having evidence of the payor’s insurability and of the amount and cost of the available insurance. Careful consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes. The obligation to maintain insurance should end when the support obligation ceases – and provision should be made to allow the payor spouse to deal with the policy at that time. Finally, when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.”

Katz v. Katz, 2014 ONCA 606 at 69, 70 & 74

“Where an arbitration agreement exists, courts will stay their own proceedings and compel the parties to arbitrate: Dormer v. McJannet, 2006 CanLII 42670 (ON SC), [2006] O.J. No. 5106, 35 R.F.L. (6th) 418 (S.C.J.), at paras. 20 and 34; and Puigbonet-Crawford v. Crawford, 2006 CanLII 38881 (ON SC), [2006] O.J. No. 4626, 152 A.C.W.S. (3d) 991 (S.C.J.), at paras. 8, 13 and 14.”

Grosman v. Cookson, 2012 ONCA 551 (CanLII) at 26

“Historically in Ontario the courts have generally not imposed full recovery of costs (“solicitor-client costs”) unless the party liable for costs has behaved in such a manner as to deserve to be punished. The avoidance of the term “solicitor-client costs” probably signals a desire to leave the law surrounding that approach behind. I agree with Aston J. in Sims‑Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.), citing Mallory v. Mallory (1998), 35 R.F.L. (4th) 222 (Ont. Gen. Div.), that the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe, a discretion under r. 24 (1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment. This is not to say that the discretion extends to awarding just $1 to a successful, reasonable party. That would be not to give a reasonable interpretation to the presumption in r. 24 (1) that “a successful party is entitled to the costs” [bold face added] of a motion, etc. A $1 or even a $500 award on account of the $2,000 costs properly and reasonably expended on a motion would not appear to me to be respectful of the rule.”

Biant v. Sagoo, 2001 CanLII 28137 (ON SC) at 20

“In Davis v. Crawford, 2011 ONCA 294 (CanLII), a five-person panel of this court revisited the question of lump sum spousal support and, in particular, reconsidered the court’s earlier decision in Mannarino, upon which the trial judge relied in part.  In Davis,the court clarified that lump sum spousal support is not reserved only for cases where there is a real risk that periodic payments would not be made or other very unusual circumstances.  Rather, s. 34 of the Family Law Act confers a broad discretion on judges to make an award of periodic or lump sum spousal support as appropriate under the circumstances.  That said, at para. 60, the court reaffirmed that a lump sum award should not be made in the guise of support for the purpose of redistributing assets.  This is the issue for which the trial judge made reference to Mannarino.

The court discussed at paras. 60 – 76 of Davisa number of considerations as relevant to the question of the propriety of a lump sum spousal support award. One important consideration is whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency. The court explains that there is a need to weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages, and that the advantages and disadvantages of making such an award will be highly variable and case specific. The court identified a number of these advantages and disadvantages at paras. 67 and 68, most of which were referred to by the trial judge. The court noted that as a practical matter, most spousal support orders will be in the form of periodic payments. But, a lump sum award will not necessarily take the place of periodic support and can be made to supplement an award of periodic support.”

Beck v. Beckett, 2011 ONCA 559 (CanLII) at 20-21

“As I have said, under the Act, questions of title must be settled before property can be equalized.  By reason of s. 10 of the [Family Law] Act, trust claims – including claims based on constructive or resulting trust – may be advanced prior to equalization.  And, crucially, s. 14 legislates a presumption of a proprietary resulting trust.  Where the presumption applies, it yields a finding of beneficial ownership in the context of a gratuitous property transfer.  The Act contains no analogous presumption of constructive trust.

…

Furthermore, any motivation to shield the property from the Husband’s potential creditors does not in itself rebut the presumption of a resulting trust.  In Nussbaum v. Nussbaum(2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Karakatsanis J., then of the Superior Court of Justice, noted that, despite “a line of cases … where the court has found the specific intention to evade creditors means an implied intention to deprive oneself of beneficial ownership”, and “[w]hile evidence that someone intended to fully evade creditors can be evidence that they intended to gift their entire interest in the property, the intention of the parties is a question of fact to be determined from all the evidence”: at paras. 19-27 and 32.  See also Schwartz, at para. 43”

Korman v. Korman, 2015 ONCA 578 at paras 29 & 38

“Custody decisions are owed a high degree of deference. Appellate courts do not have the advantages of a trial judge in making findings of fact upon contradictory evidence, as most assuredly would ensue if fresh evidence were admitted in this case. Most requests for assistance from the Office of the Children’s Lawyer come from trial courts, for this reason. As pointed out in B (A.C.) v. B. (R.), 2010 ONCA 714, over a nearly 17 month period during which 5548 referrals were made to the Office of the Children’s Lawyer, all but two came from the Superior Court of Justice and the Ontario Court of Justice.”

Fiorito v. Wiggins, 2014 ONCA 603 at 6

“The mother filed a Government of Canada “Explore Careers – Wage Report” for lawyers.  That report discloses “wages” for lawyers, broken down by region, including Regina, Saskatchewan where the father currently lives and practises law.

According to that report, the low, median and high annual wagesfor lawyers in Regina are $55,182, $116,172 and $221,058, respectively.

Based on this report, the mother asks the court to impute income to the father in the amount of $50,000, being approximately the low end of that wage report, in recognition that this is father’s first year of practising as a lawyer.

In Caine v. Ferguson, 2012 ONCJ 139 (CanLII), Justice Stanley B. Sherr addressed the weight to be given to such survey reports.  At paragraph 32 of Justice Sherr’s reasons, he stated [my emphasis]:

In Rodrigues v. De Sousa, 2008 ONCJ 807 (CanLII), 69 R.F.L. (6th) 449, [2008] O.J. No. 4541, 2009 Cars­well­Ont 8979 (Ont. C.J.), I relied on the case of Scholes v. Scholes, 2003 CanLII 2349 (ON SC), 2003 CanLII 2349, 125 A.C.W.S. (3d) 313, [2003] O.J. No. 3432, 2003 Cars­well­Ont 3299 (Ont. S.C.) and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry.  In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability.  However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539 (CanLII), 226 O.A.C. 184, 40 R.F.L. (6th) 284, [2007] O.J. No. 2922, 2007 Cars­well­Ont 4805 (Ont. C.A.), I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.  In the specific circumstances of the payor in Rodrigues v. De Sousa, I did not apply the wage range set out in the government publications.”

Jahan v. Chowdhury, 2016 ONCJ 503 (CanLII) at 75-78

“The scheme of the [Family Law Act] does not support the proposition that an application judge can simply redistribute properties among the parties. To interpret the Act in this way would be inconsistent with its overall scheme, which gives a judge only a very limited power to distribute properties in the circumstances set out in s. 9. That is, section 9 gives the court the power to transfer properties only “if appropriate to satisfy an obligation imposed by the order [for the equalization of net family properties]”. In other words, the transfer power under section 9 is specificallyconnected to the satisfaction of the order for the equalization of net family properties rather than a generaltransfer power for the settlement of disputes arising from marital breakdown.

To a similar effect is the recent decision of this court in Thibodeau v. Thibodeau, 2011 ONCA 110 (CanLII), 104 O.R. (3d) 161. In that case, Blair J.A. endorsed this interpretation of the legislative scheme of the Family Law Act, albeit in the context of a bankruptcy proceeding. As explained by Blair J.A. at para. 37, “[s]eparating spouses are not entitled to receive a division of property. … An equalization paymentis the chosen legislative default position”. He continued, at paras. 39 and 40, by observing that the enhanced remedies available under s. 9(1)can give rise to proprietary rights if the record justifies such an exception in the equalization payment regime, but only if a “real need” is shown.

Trial courts have consistently adopted this interpretation. One example is  Zadegan v. Zadegan, [2002] O.J. No. 2190 (S.C.J.), in which, after referring to the fact that the parties had provided her with proposals as to how their real properties might be distributed, J. Mackinnon J. held as follows, at paras. 90-92:

90      In this way, both parties have, in effect, asked the court to redistribute their assets, in order to achieve what each of them regards as the proper outcome. In my view, this is not the type of order that the court can make under the Family Law Act. That Act does not direct the court to redistribute assets in order to make an equal distribution. See Berdette v. Berdette(1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513 (C.A.). Rather, it directs the court to determine the net family property of each spouse. Then, if one spouse’s net family property is less than that of the other, s. 5(1) provides for equalization. … [T]he powers of the court to give effect to the equalization are set out in s. 9(1):

…

91      Thus, while s. 9(1)(d) permits the court to transfer property in order to satisfy an obligation imposed by the order, this is not the same thing as rearranging ownership of assets. …

92      Accordingly, the court could order the transfer of an asset between the parties in order to satisfy an equalization payment, or part of it, but cannot order the transfer of various assets between the parties in order to bring about an equitable distribution of assets.

 

 Buttar v. Buttar, 2013 ONCA 517 (CanLII) at 53-55

“Following argument of this motion, counsel for the mother twice delivered a letter to me making further submissions. This was improper. Rule 1.09 provides that when a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, directly or indirectly unless all the parties consent in advance to the out of court communication or the court directs otherwise. I have disregarded the further submissions in coming to my decision in this matter.”

Timleck v. Beltrano, 2014 ONCA 585 at 28.