Category: Uncategorized

“The motion judge had the power to strike the appellant’s pleadings due to her repeated refusals to obey court orders: see rule 14(23) of the Family Law Rules, O. Reg. 114/99.  I have every sympathy for the court which had given Ms. Mongrain a number of opportunities to participate, to be heard, and to assist in the proper resolution of this matter.

At the same time, however, courts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.).  The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties”

King v. Mongrain, 2009 ONCA 486 at 30-31

“In my respectful view, it was an error in principle to apply the Table approach. Antoni’s annual receipt of almost $10,000 in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s. 3(2)(a) of the Guidelinesin favour of the “tailor made” approach in s. 3(2)(b). That approach would have regard to Antoni’s “condition, means, needs and other circumstances”. That approach is particularly appropriate in light of Antoni’s disability and society’s commitment to share in his care.

Antoni’s eligibility for ODSP is based on a determination that his budgetary requirements exceed his income. Since he receives a payment in respect of board and lodging, it is reasonable to conclude that he established a budgetary requirement for this expense. As his mother and her spouse provide that board and lodging, it is also reasonable to conclude that some portion of the ODSP he receives is to enable him to make a contribution to the cost of his board and lodging.

I agree with Kiteley J. that the trial judge erred in finding the ODSP payments were Antoni’s to use as he wished – that he “could use them to take a trip, buy a car or buy liquor” and in describing the payments as Antoni’s “spending money of his own”: paras. 21 and 26. To treat the ODSP as discretionary “spending money” does not reflect the purpose of ODSP income support. The money is paid to the mother as Antoni’s trustee and she is required to report annually on how the money has been spent.

I also agree with Kiteley J.A. that there is at least the potential for overlap between the amounts paid by the father for child support and the amount received by Antoni as income support for board and lodging. As Kiteley J. observed, at para. 106:

As indicated in Ansell#1,the Child Support Guidelineswere intended to represent a calculation of average expenditures for children that includes items otherwise categorized as “board and lodging”. The overlap between the reason for ODSP income support and child support must be recognized in the analysis as to whether the approach in s. 3(2)(a) is inappropriate. It was an error of law to have concluded otherwise.

As the majority in the Divisional Court noted, it would be reasonable to conclude that a significant portion of child support would be intended to contribute to the “child’s needs for shelter, food and clothing and the multitude of other expenses associated with raising a child” (para. 19).

I acknowledge the majority’s concern about circularity – that reducing child support to reflect the child’s receipt of ODSP could be unfair because ODSP payments may themselves be reduced due to the recipient parent’s application of child support to the non-exempt living expenses of the child. However, a reduction of ODSP would only be triggered by an increase in the amount of child support which the mother gives directly to Antoni or uses for his benefit. Calculating support under s. 3(2)(b), which may or may not result in an amount different from the Table amount, will not necessarily affect the mother’s use of the support payments or reduce the amount of the ODSP payments that Antoni receives. The impact, if any, of the change in support on ODSP is a matter that can be taken into account under the s. 3(2)(b) approach.

ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni’s receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni’s unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.”

Senos v. Karcz, 2014 ONCA 459 (CanLII) at 58-64

“Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong…  There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.  This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly.  It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence.  This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.  Though an appeal court must intervene when there is a material error, 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.”

Hickey v. Hickey, [1999] 2 S.C.R. 518 at 11-12

“The overarching principle that guides courts when called upon to give meaning to statutory language is set out at para. 21 of the decision of the Supreme Court of Canada in  Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27:

Although much has been written about the interpretation of legislation (citations omitted), Elmer Driedger in Construction of Statutes(2^nded. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Children’s Aid Society of Waterloo v. D.D.,2011 ONCA 441 (CanLII) at 31

“In King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, this court emphasized that the utmost caution must be used before striking a party’s pleading when custody and access are in issue.  It explained that a full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children.”

D.D. v. H.D.,2015 ONCA 409 at 1

“As was noted by this court in Leone v. University of Toronto Outing Club, 2007 ONCA 323 (CanLII), at para. 2, it is well-established that, in general, an order dismissing a motion for summary judgment is not a final order because a decision under Rule 20 determines only that a genuine issue requiring a trial exists. Accordingly, to the extent that a motion judge may purport to make findings of fact in reasons for judgment dismissing a Rule 20 motion, such findings do not have binding effect:

An order dismissing a motion for summary judgment brought under Rule 20 is not a final order in that it determines only that there are genuine issues for trial. Consequently, any apparent findings of fact made by this motion judge in the course of his reasons for dismissing the motion for summary judgment do not support a res judicataor issue estoppel claim in the subsequent proceedings: see V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited(1998), 1998 CanLII 14615 (ON CA), 42 O.R. (3d) 618 (C.A.).”

Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII) at 7

“Under the Family Law Rules, “‘application’ means, as the context requires, the document that starts a case or the procedure by which new cases are brought to the court for a final order or provisional order.” The term ‘case’ means “an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals.”

Goodfellow v. Tordjman, 2013 ONCA 376 (CanLII) at 28

“We recognize that there is no express duty under the Hague Convention to refuse to return a child on the basis of risk of persecution. The authority afforded under arts. 13(b) and 20 is discretionary in nature. However, as in the refugee extradition context, a child refugee has a prima facie entitlement to protection against refoulement.

Accordingly, in our view, a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child. And, as Némethalso holds, at para. 106, there should be no burden on the child who has refugee status to persuade the application judge that “the conditions which led to the conferral of refugee protection have not changed”.

Nothing in the available Canadian authorities undercuts this conclusion. While several cases have confirmed, correctly, that neither Convention refugee status nor a claim for such status displaces Canada’s obligations under the Hague Convention, none holds that Canada’s non-refoulement obligations are irreconcilable with its obligations under the Hague Convention: see Kubera v. Kubera,2008 BCSC 1340 (CanLII), [2008] B.C.J. No. 1893, 60 R.F.L. (6th) 360 (S.C.), at paras. 63-64, affd on other grounds 2010 BCCA 118 (CanLII), [2010] B.C.J. No. 383, 3 B.C.L.R. (5th) 121 (C.A.); Toiber v. Toiber, 2006 CanLII 9407 (ON CA), [2006] O.J. No. 1191, 208 O.A.C. 391 (C.A.), at paras. 11 and 12; Kovacs, at paras. 106, 109-14; Martinez v. Martinez-Jarquin, [1990] O.J. No. 1385 (Prov. Ct.), at pp. 5-6 (QL).

The need to consider a risk of persecution prior to returning a childunder theHagueConvention is also supported in the English jurisprudence. In S (Children)(Abduction: Asylum Appeal) (Re),[2002] EWCA Civ. 843, [2002] 1 W.L.R. 2548 (C.A.), Laws L.J. commented, at para. 25:

Having regard to the rule as to the paramountcy of the child’s interests arising under s. 1 of the Children Act 1989, I would respectfully suppose that a family judge would at the least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected. We adopt and endorse this observation.”

A.M.R.I. v. K.E.R., 2011 ONCA 417 (CanLII) at 77-80

“As a general rule, in determining whether disposition costs should be deducted from an asset’s value, the analysis should take into account evidence of the probable timing of the asset’s disposition. It is appropriate to deduct disposition costs from net family property “if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them”: Sengmueller v. Sengmueller(1994), 17 O.R. (3d) 208 (C.A.), at pp. 216-17. An allowance for disposition costs from net family property should not be made in the case “where it is not clear when, if ever, a sale or transfer of property will be made”:  McPherson v. McPherson(1988), 63 O.R. (2d) 641 (C.A.), at p. 647.  However, it is not necessary for the court to determine whether the disposition of the assets is inevitable; rather, the court should determine on the basis of the evidence whether it is more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred: Buttar v. Buttar, 2013 ONCA 517, at para. 20”

Bortnikov v. Rakitova, 2016 ONCA 427 at 11

“On the proper test for unconscionability I refer to the words of Schroeder J.A. in Mundinger v. Mundinger, 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 at pp. 609-10, 3 D.L.R. (3d) 338 (C.A.):

The governing principle applicable here was laid down by this Court in the oft-cited case of Vanzant v. Coates (1917), 1917 CanLII 573 (ON CA), 40 O.L.R. 556, 39 D.L.R. 485. It was there held that the equitable rule is that if the donor is in a situation in which he is not a free agent and is not equal to protecting himself, a Court of Equity will protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position. In that case the circumstances were the advanced age of the donor, her infirmity, her dependence on the donee; the position of influence occupied by the donee, her acts in procuring the drawing and execution of the deed; and the consequent complete change of a well-understood and defined purpose in reference to the disposition of the donor’s property. It was held that in those circumstances the onus was on the plaintiff to prove by satisfactory evidence that the gift was a voluntary and deliberate act by a person mentally competent to know, and who did know, the nature and effect of the deed, and that it was not the result of undue influence. That onus had not been discharged; and it was therefore held to be unnecessary for the defendant to prove affirmatively that the influence possessed by the plaintiff had been unduly exercised.

The principle enunciated in Vanzant v. Coates, supra, has been consistently followed and applied by the Courts of this Province and the other common law Provinces of Canada. The effect of the relevant decisions was neatly stated by Professor Bradley E. Crawford in a commentary written by him and appearing in 44 Can. Bar Rev. 142 (1966) at p. 143, from which I quote the following extract:

If the bargain is fair the fact that the parties were not equally vigilant of their interest is immaterial. Likewise if one was not preyed upon by the other, an improvident or even grossly inadequate consideration is no ground upon which to set aside a contract freely entered into. It is the combination of inequality and improvidence which alone may invoke this jurisdiction. Then the onus is placed upon the party seeking to uphold the contract to show that his conduct throughout was scrupulously considerate of the other’s interests.

This is slightly different from the test set forth by the trial judge in the case at bar. It is, however, the basis of our modern law of unconscionability and I would unhesitatingly follow it. The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon the husband of acting with scrupulous care for the welfare and interests of the wife. I think not.

We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability. I can find nothing in the reasons for judgment quoted above to denote that advantage taken.”

Rosen v. Rosen, 1994 CanLII 2769 (ON CA) at 12-13