Category: Uncategorized

“Section 39.4(3) of the CLRA addresses authorization of relocation and applies to interim motions such as the present one. It provides that, in determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24 of the Act, as well as the following factors:

a.   the reasons for the relocation;

b.  the impact of the relocation on the child;

c.   the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;

d.   whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

e.   the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

f.   the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

g.   whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

Hales v Lightfoot, 2022 ONSC 3517 (CanLII) at 19

“Section 7(1) of the CSG provides the court with the ability to provide for an amount to cover all or a portion of certain expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation. Contributions to an RESP do not fit into any of the categories of s.7 set out in s.7(1)(a) – (f).  While RESPs are savings vehicles, earmarked for post-secondary education for a child, they are not necessarily required to be used for that purpose. Parents cannot be compelled by a court order to contribute into an RESP, absent an agreement: see C.S. v. D.A.S., 2020 ONCJ 16, at para. 143; Popovski v. Pirkova, 2017 ONSC 2363, at para. 49; and Smith v. Smith, 2011 NSSC 269, at para. 80.”

         de Vasquez v. Mendoza, 2022 ONSC 3398 (CanLII) at 91

“It may well be that Suzanne Salga made the recording surreptitiously. She is alleged to have done that from time to time and she had a clear ongoing concern about the personal and financial relationship between her father and Ms. Marley. However, the unauthorized recording of a conversation does not make the evidence inadmissible, regardless of whether it was legal to do so. Therefore, I will consider it as part of the evidence of a course of dealing as a whole.”

         Marley v. Salga, 2019 ONSC 3527 (CanLII) at 39

“Our case law is clear that without a clear error of law or misperception of the facts, there is no basis for this court to interfere with a judge’s decision whether to grant an adjournment: see e.g. Khimji v. Danani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A. dissenting, but not on this point). This is especially the case in family law matters where motion and trial judges’ case management role is so crucial to the process.”

            Holly v. Greco, 2019 ONCA 464 (CanLII) at 9

“If a party establishes the three elements of a claim for unjust enrichment – enrichment, corresponding deprivation, and lack of juristic reason – the remedy can take one of two forms: a personal (or monetary) award or a proprietary award: Kerr, at paras. 46, 55; Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 89. The framework in which a court should assess the appropriate remedy was summarized by this court in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52:

In this way, the framework established in Kerr requires the court to ask the following questions:

1) Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?;

2) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;

3) If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,

4) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

A monetary award is the default remedy and should suffice in most cases to remedy the unjust enrichment: Kerr, at para. 47; Moore, at para. 89. In Kerr, the Supreme Court of Canada clarified that monetary awards for unjust enrichment could be quantified in two ways. First, a monetary award may be calculated on a quantum meruit or “fee-for-service” basis – the value of the claimant’s uncompensated services. Second, a monetary award may be calculated on a “value survived” basis, by reference to the overall increase in the couple’s wealth during the relationship: Kerr, at paras. 49 and 55.

The concept of joint family venture helps courts to quantify the monetary remedy where a claim of unjust enrichment has been made out. Where the evidence shows that the domestic arrangements under which the unmarried parties have lived amounted to a joint family venture, monetary damages should be calculated on the value survived basis, namely on the basis of a share of the wealth generated in the joint family venture proportionate to the claimant’s contributions: Kerr, at para. 102. If there was no joint family venture, monetary damages calculated on a quantum meruit basis are likely appropriate.

The proprietary remedy of constructive trust in a property requires a claimant to show two things: that monetary damages are inappropriate or insufficient to remedy the unjust enrichment; and the claimant’s contribution was linked to the acquisition, preservation, maintenance, or improvement of the disputed property. The required link has been variously described as demonstrating a “sufficiently substantial and direct” link, a “causal connection”, a “nexus” or a “clear proprietary relationship”: Kerr, at paras. 50-51, 78; Moore, at para. 91. The extent of the constructive trust interest should be proportionate to the claimant’s contributions: Kerr, at para. 53; Moore, at para. 91.”

         Lesko v. Lesko, 2021 ONCA 369 (CanLII) at 14-17

“In M.A.L. v. R.H.M., 2018 ONSC 2542, Pazaratz J. reviewed some of the factors to be considered when assessing the quantum of costs relative to self-represented litigants. At para. 11 he stated:

[11]           Most of the caselaw dealing with costs claims by self-represented litigants deals with the first of the three objectives set out in Serra.

a.    Self-represented litigants may be awarded costs, and those costs may include an allowance for counsel fees.  Fong v. Chan,1999 CanLII 2052 (ON CA), (1999) 46 O.R. (3d) 330 (C.A.); Jordan v Stewart, 2013 ONSC 5037 (CanLII) (SCJ).

b.    However, self-represented litigants – whether legally trained – are not entitled to costs calculated on the same basis as those of a litigant who retains counsel.  Pirani v Esmail, 2014 ONCA 279 (ON CA) (CanLII); Fong v. Chan, (supra); Reynolds v. Higuchi, 2014 ONSC 3375 (CanLII) (SCJ).

c.   A self-represented litigant can be awarded costs for disbursements as well as the economic loss caused by having to prepare and appear to argue the case.  Fong v. Chan (supra); G.B. v S.A., 2013 ONSC 2147 (CanLII) (Divisional Ct).

d.   A self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

e.    Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. Jordan v Stewart, (supra).

f.      Lost wages as a result of time missed from work to prepare for or argue a case can be compensated by way of costs. G.B. v S.A.,(supra).  But this excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. Warsh v Warsh, 2013 ONSC 1886 (CanLII) (SCJ).

g.    Compensation for the loss of time devoted to preparing and presenting the case should be moderate or reasonable.  Reynolds v. Higuchi, (supra).

h.    Once a court determines that a “counsel fee” is appropriate for a self-represented litigant, one of the biggest challenges is quantifying both the number of hours to be compensated and the appropriate hourly rate.  Courts have awarded anywhere between $20.00 and $200.00 per hour for self-represented litigants, depending on the demonstrated level of skill.  Izyuk v Bilousov, 2011 ONSC 7476 (CanLII)(SCJ). $60 per hour appears to be a commonly used figure. Roach v. Lashley, 2018 ONSC 2086 (CanLII) (SCJ).

i.     The Family Law Rulesdo not specifically address costs claims by self-represented litigants. But all of the Rule 18 and 24 costs provisions apply equally whether litigants are represented or not.”

         Cuthbert v. Nolis, 2022 ONSC 3002 (CanLII) at 9

“The trial judge provided no analysis as to whether the award achieved the objectives of spousal support. The objectives for needs-based spousal support (as opposed to compensatory-based) are set out in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 46:

Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they have done this as a “transition” to self-sufficiency. But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases, Rogerson explains in “Spousal Support After Moge”:

The [more dominant] approach, … particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need. On this approach, which I earlier referred to as the “basic social obligation” approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation. The message coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage. One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse’s financial circumstances. [Emphasis in original; citations omitted.]

The evidence here was that the appellant’s disability would continue. The trial judge specifically accepted at para. 49 that, “following her diagnosis of Spontaneous Intracranial Hypotension, [the appellant] has been unable to work”. Yet the trial judge ordered spousal support at only the mid-range of the amounts suggested by the SSAG formula, and at the lowest end of duration from the date of separation. There was no explanation as to why the support terminated when the need clearly continued.

As stated by this court in Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 49, “[t]he duration of support is also an issue that ought to be contemplated under the SSAG”. For support to terminate there must be a realistic prospect of the spouse being able to become self sufficient: Reisman v. Reisman, 2014 ONCA 109, 118 O.R. (3d) 721, at para. 28. This court has upheld an indefinite support order in the case of ongoing need due to disability (Gray) and has overturned a time limit for support for a disabled spouse (Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1, at para. 9).

Here the appellant remains disabled and unable to support herself. She lives on government disability payments. There is no evidence that her situation had changed or will change in the future.

One of the purposes of a spousal support order is to relieve financial hardship; another is for a former spouse to fulfil a basic social obligation to provide support where they are able to do so and the recipient spouse is not. Nothing in the trial judge’s reasons explains how the termination of support after only two-and-a-half years achieves these or other objectives of spousal support.”

         McGuire v. Bator, 2022 ONCA 431 (CanLII) at 27-31

“This motion alleges civil contempt. There are three essential requirements for a finding of civil contempt as set out by Blair J.A., in Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.):

[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

Courts should only invoke its contempt powers in the clearest of cases and with the greatest of caution. See R. v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 at 76 (C.A.). It is to be used sparingly and as a remedy of last resort where another adequate remedy is not available to seek to enforce this court’s order.

Contempt findings in family law cases should be made only sparingly and as a last resort:  Hefky v. Hefky, 2014 CarswellOnt 2986 (OCA).

In Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg
Producers, 2011 ONSC 3650 (CanLII), [2011] O.J. No. 3482, Justice Lauwers (as he then was) summarized the applicable principles and purpose of contempt proceedings:

18    In a civilized society governed by the rule of law, such as ours, people are expected to and do comply with court orders. But in the rare cases that they do not, the court must take action. As Pepall J. stated: “Once an order has been obtained, it is imperative that it be obeyed, that the public understand that it must be obeyed, and that judges have the will and ability to ensure compliance.” There are many other similar expressions of judicial resolve. See, for example, the following statement of Blair J.: “No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts, orders at their whim because in their own particular view it is right to do so.”

19     The nature of the contempt may vary with the context, with slightly different considerations taken into account. Cumming J. noted that the court’s authority over court orders includes orders relating to commercial matters:

The deliberate failure to obey a court order strikes at the very heart of the administration of justice. This includes court orders relating to commercial matters as seen in the case at hand. If someone can simply ignore or finesse his way around a court order it will tend to add uncertainties and risks, with consequential inefficiencies and additional costs, as well as causing unfairness, with consequential inequities and additional costs, to the commercial marketplace. Just as white collar crime is crime, white collar contempt is contempt.

20     I summarize briefly the relevant aspects of the law of civil contempt for failing to comply with a court order. Given the gravity of a finding that a person is in contempt and the exposure to penalties, the court should always exercise prudence and restraint before making such a finding.

21     The order “must state clearly and unequivocally what should and should not be done.” It must be directive and not simply permissive. In terms of compliance, the alleged contemnor must have knowledge of the nature of the terms of the order, and, once having knowledge, must obey the order in letter and spirit with every diligence. A person who is subject to an order should not be permitted to “finesse” it or to “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.“

22     The alleged contemnor’s conduct must objectively breach the order. There is also a mental or subjective element, often expressed in the formula that the disobedience must be deliberate and wilful, or wilfully blind, indifferent or reckless. Actionable disobedience includes the deliberate failure of a person to make inquiries in circumstances where suspicion is or should be aroused. Further, “[i]f a party feels that the injunction is over-broad, its recourse is to apply to have the terms narrowed or made more explicit, not to resort to self-help by ignoring some or all of the terms.”

23     There is some subtlety here. An element of the classical formulation is that “any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.” McIntyre J.A. noted, however, “The word ‘calculated’ as used here is not synonymous with the word ‘intended’. The meaning it bears in this context is found in the Shorter Oxford English Dictionary as ‘fitted, suited, apt’.” Accordingly, the moving party does not need to prove that the alleged contemnor intended specifically to disobey the order: “The offence consists of the intentional doing of an act which is in fact prohibited by the order.” The alleged contemnor need not be shown to exhibit “any particular aversion, abhorrence or disdain of the judicial system” despite the ordinary meaning of the word “contempt.”

24     The moving party must prove contempt at the highest threshold — that is, beyond a reasonable doubt. The quasi-criminal nature of the accusation engages principles and concepts more familiar in a criminal law context. For example, the onus of proof remains on the moving party throughout; it never shifts. Further, the alleged contemnor is not compelled to testify; but, if he chooses to testify, his evidence is subject to full scrutiny, and the court may draw adverse inferences from his evidence.

…

26     Any reasonable doubt must be resolved in favour of the alleged contemnor. A reasonable doubt is not to be an imaginary or frivolous doubt, nor may it be based on sympathy or prejudice. It must be based on reason and common sense, logically derived from the evidence or absence of evidence. But the court recognizes that it is virtually impossible to prove anything to an absolute certainty and the moving party is not required to do so.

(Emphasis added).

As stated above, it is unnecessary to prove that the alleged contemnor intended to put himself or herself in contempt. However, it must be established that he or she deliberately or wilfully or knowingly did some act which was designed to breach of a court order.  See R. v. Perkins (1980), 1980 CanLII 311 (BC CA), 51 C.C.C. (2d) 369 (B.C.C.A.); R. v. Barker, 1980 ABCA 75 (CanLII), [1980] 4 W.W.R. 202 (Alta. C.A.); and Rivard v. Proc. Gen. du Quebec, 1984 CanLII 2851 (QC CA), [1984] R.D.J. 571 (Que. C.A.). Simply put, one does not need to have the intention to disobey, one must only have the intention to commit an act which is designed to result in the breach of the order. See Carey v. Laiken, 2015 SCC 17.

A court’s contempt powers cannot be used to enforce payment terms of an order.  See Rule 26(4) of the Family Law Rules. While the court cannot find a person in contempt of the non-payment of a monetary order, all the circumstances, including repeated disregard for compliance with orders, monetary and otherwise, may lead to an inference being drawn that the alleged contemnor simply disregards the importance of compliance with court orders.

Once having knowledge of the order, the party must obey the order in letter and spirit with every diligence.  See Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1974), 1974 CanLII 835 (ON SC), 4 O.R. (2d) 585 (H.C.) at p. 603, aff’d (1975), 1975 CanLII 544 (ON CA), 11 O.R. (2d) 167 (C.A.) and  iTrade Finance Inc. v Webworx Inc. (2005), 13 C.P.C. (6th) 103, [2005] O.J. No. 1200 at para. 12 (Sup.Ct.).

A person who is subject to an order should not be permitted to “finesse” it (see Sussex Group v. 3933938 Canada Inc., [2003] O.J. No 2906 (Sup. Ct.) or “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.” See Zhang v. Chau, (2003), 2003 CanLII 75292 (QC CA), 229 D.L.R. (4^th) 298 at para. 32 (Qc. C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 419.”

            Boutin v. Boutin, 2022 ONSC 3229 (CanLII) at 77-84

“In Charron v. Carriere, 2016 ONSC 4719 (CanLII), [2016] W.D.F.L. 5227 at para. 54, Justice Doyle held—citing Thompson v. Thompson, 2013 ONSC 5500 (CanLII), [2013] O.J. No. 4001—that “[t]here is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants”.

Parents can take jobs earning less money as long as that choice is reasonable; however, a person’s decision to start a business in which he or she has no experience may be viewed as unreasonable and the court “will not excuse the payor from the support obligations where the party has persisted in un-remunerative employment or pursued unrealistic and unproductive career aspirations”: Charron at paras. 57-62.”:

T.N.F. v. M.J.V.A., 2018 ONSC 3310 (CanLII) at 125-126

“To succeed on a claim for defamation, the plaintiff must prove that:

(i)        The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;

(ii)        The words complained of referred to the plaintiff; and

(iii)        The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Bent v. Platnick, 2020 SCC 23, at para. 92 (citing Grant, at para. 28 and P.A. Downard, The Law of Libel in Canada (4^th 2018), at paras. 1.2 to 1.14).

A defamatory statement is one that causes the plaintiff “to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem”: Vander Zalm v. Times Publishers, 1980 CanLII 389 (B.C.C.A.), at para. 4.

Volpe v. Wong-Tam, 2022 ONSC 3106 (CanLII) at 146-147