Category: Uncategorized

“My general impression is that litigants too often think that the goal is to have a trial, when the goal is to resolve the issues by various means, of which trials are the last option. They need to know that settlement is a valid and the preferred option. The settlement rate is very high. Relatively few cases get to trial. There are various reasons for this. In a case such as this where the issues are financial, once the required disclosure is made in the prescribed forms, unresolved matters can be identified and dealt with and the answers become clearer. The cost/benefit analysis and other considerations militate against continued litigation, and especially trial. I encourage counsel to impress this upon their clients.

As for delay, recent statistics show that a trial in this matter would be months, perhaps even a year or more, away. There is plenty of time before then in which to hold settlement conferences even after a trial date is scheduled.”

            Hakim v. Hakim, 2022 ONSC 6051 (CanLII) at 27-28

“L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 SCR 775 remains the leading authority for the correct approach to determine whether there has been a change in circumstances which warrants a review of a spousal support order under section 17(1) of the Divorce Act R.S.C., 1985, c.3 (2^nd Supp.)  (‘the Act”). The long established definition of a change in circumstances refers to a “material” change that “if known at the time would likely have resulted in different terms.”   This definition, first found in Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a child support variation was adopted for variations of spousal support in G.(L)v. B. (G), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. (See L.M.P. at para. 30).

A section 17 variation inquiry begins with the presumption that the existing order’s terms complied with the objectives of the Act when it was made. (See L.M.P.at para. 33). This means the initial focus of the inquiry is on the nature and sufficiency of the change to determine whether the threshold test for a variation consideration has been satisfied by the moving party. The change must be enduring. If the moving party discharges this threshold onus, then the context and magnitude of the change will shape the scope of the inquiry, as well as the remedy. In this sense, L.M.P. guides us away from a rigid approach, which describes the hearing as either de novo or not, towards a more fluid approach regarding the proper scope of the hearing, driven by the unique facts of each case. (See L.M.P.at para. 47).

As noted by the court in L.M.P., a parties’ agreement is not ignored under section 17 but its treatment will be different than in the context of an initial application under section 15(2) because of the different purposes for each provision. (See L.M.P. at para 27).”

            Mckinnon v. Mckinnon, 2022 ONSC 6036 (CanLII) at 23-25

“Sections 5 and 37 of the Trustee Act, RSO 1990 c. T23, specifically allow the court to order that a trustee or personal representative be removed upon any ground upon which the court may remove any other trustee, and appoint a new trustee in substitution.  The relevant parts of these sections read as follows:

5(1) The Superior Court of Justice may make an order for the appointment of a new trustee . . . in substitution for . . . any existing trustee.

37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.

Justice Quinn in Radford v. Wilkins, 2008 CanLII 45548 (ONSC), summarized the relevant factors to be considered when an application is brought to remove a trustee pursuant to the Trustee Act.  Although Quinn J. was dealing with a request to remove an estate trustee in that case, his analysis equally applies in the context of requests to remove any trustee.  He said:

     jurisdiction to remove

[97]   The Superior Court of Justice has inherent jurisdiction to remove trustees: see St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (ON SC), [2007] O.J. No. 4641 (S.C.J.) at para. 25.

[98]   In addition, the Superior Court of Justice may remove a personal representative “and may appoint some other proper person or persons to act in the place of the executor . . . so removed”: see s. 37(1) of the Trustee Act.

     by whom to be brought

[99]   An application to remove an executor may be made by “any person interested in the estate of the deceased”: see s. 37(3) of the Trustee Act.

     choice of estate trustee not to be lightly interfered with

[100] “The Court should not lightly interfere with the discretion exercised by a person in choosing the person or persons to act as his executors and trustees”: see Re Weil, 1961 CanLII 157 (ON CA), [1961] O.R. 888 at 889 (C.A.).[14]

     clear necessity for removal must be established

[101] Interfering “with the discretion and choice of a person in preparing his last will and testament must be not only well justified but . . . must amount to a case of clear necessity”: see Re Weil, ibid.

     removal must be the only course to follow

[102] Removal of an estate trustee should only occur “on the clearest of evidence that there is no other course to follow”: see Crawford v. Jardine, [1997] O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18, citing Re Tempest (1866), L.R. 1 Ch. 485 and Re Owen (1989), 33 E.T.R. 213 at 215 (B.C.S.C.).

     removal to be guided by welfare of beneficiaries

[103] In deciding whether to remove an estate trustee, “the court’s main guide should be the welfare of the beneficiaries”: see Crawford v. Jardine, ibid, citing Letterstedt v. Broers (1884), 9 App. Cas. 371 at 385-387 and Re Anderson (1928), 35 O.W.N. 7 at 8 (H.C.J.).

     non-removal must likely prevent proper execution of trust

[104] “It is not every mistake or neglect of duty on the part of the trustees which will lead to their removal. It must be shown by the applicant that the non-removal of the trustee will likely prevent the trust from being properly executed”: see Crawford v. Jardine, ibid.

[105] “[I]t is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to [remove trustees]. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity”: see Letterstedt v. Broers, ibid, quoting s. 1289 of Story’s Equity Jurisprudence.

     removal not intended to punish past misconduct

[106] “The authorities are, I believe, consistent in placing the emphasis on the future administration of the estate, and the risks to which it will be exposed if the trustee remains in office. The question is whether the trust estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries. The sanction of removal is intended not to punish trustees for past misconduct but rather to protect the assets of the trust and the interests of the beneficiaries”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 28.

[107] But, “past misconduct that is likely to continue will often be sufficient to justify removal . . .”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 29.

     delay by estate trustee

[108] Where delay is the complaint, the question becomes whether the delay has compromised the estate in any manner and whether it will be repeated.

[109] As well, have the delays been reasonably explained and, if so, should they be excused?

     friction alone not a reason for removal

[111] “. . . friction alone is not itself a reason for the removal of trustees”: see Re Joss (1973), 2 O.R. 128 (H.C.J.) at para. 8, citing Letterstedt v. Broers, ibid.

[112] “The question is whether it would be difficult for the trustee to act with impartiality, not whether, in fact, [the trustee] would or would not do so”: see Re Shaw Co. Ltd, 1922 CanLII 97 (SK QB), [1922] 68 D.L.R. 616 (Sask. K.B.), citing In re Lamb; Ex parte Board of Trade, [1894] 2 Q.B. 805 per Lord Esher, M.R.

[113] Friction between co-estate trustees is likely to warrant the removal of either or both of them because it is prone to impact the decision-making process. However, this is a more remote likelihood where the friction is between a trustee and a truculent beneficiary. Of course, in either case, the friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust.”

            Chartrand v. Ebokem, 2022 ONSC 5990 (CanLII) at 22-23

“In cases where a parent blames the child’s lack of co-operation for their own failure to comply with a court order directing that a child spend specific parenting time with the other parent, judges have repeatedly said that it is a parent’s obligation to do what is reasonable and necessary to secure the child’s compliance. A parent has an obligation to actively require the child to comply with the order by exhortation, reward, and even the threat of discipline, much like a parent would if a child was refusing to attend school. Reasoning with the child has been found to be insufficient and is a breach of the access order. There is a positive obligation on a parent to ensure that a child complies with the order. See: Haywood v. Haywood (2010), 94 R.F.L. (6^th) 396 (Ont. S.C.J.), Stuyt v. Stuyt (2009), 71 R.F.L. (6^th) 441 (Ont. S.C.J.), Geremia v. Harb, 2007 CarswellOnt 446 (Ont. S.C.J.), and Godard v. Godard (2015), 2015 CarswellOnt 11572, 65 R.F.L. (7^th) 265 (Ont. C.A.)

The law does not accept that a 13-year-old’s views about access are determinative. It is not acceptable for a party to say that there has been (little or) no access because their 13-year-old child is choosing not to see the other parent. Parents governed by access orders cannot simply leave access up to the children. See: McClintock v. Karam, 2017 ONSC 6633 at paras 38 and 39.

In other words, children have a voice in family court proceedings, but not a veto. Their views and preferences are just one factor considered in the assessment of what parenting plan is ultimately in their best interest. See Section 24 (2) of the Children’s Law Reform Act.”

          Bouchard v. Sgovio, 2019 ONSC 6158 (CanLII) at 13-15

“The necessity that there be a finding of a material change in circumstances as a prerequisite to an examination of the merits of an application to vary an existing custody or access order was recently confirmed by Pazaratz J. in F.K. v. A.K., 2020 ONSC 3726, and by Ryan Bell J. in Joachim v. Joachim, 2021 ONSC 8584 at para. 34.

Where a party seeks a change in support provisions, the test for material change is less than one for changes in custody or parenting, but it is still a significant one:  Pustai v. Pustai, 2018 ONCA 785; L.M.P. v. L.S., 2011 SCC 64.

…

Both parties make accusations against the other respecting their ability to communicate in Brody’s best interests.  Unfortunately, this is not a novel issue.  Their antagonism pre-existed the agreed Minutes of Settlement which were crystallized in the Order of Gordon J.

Each has presented a blizzard of affidavits trading insults and constituting a catalog of petty grievances against the other, recounting a dispiriting parade of minor incidents, such as the acrimony about a wart on Brody’s toe, or an earache, or a birthday cake.

These do not amount to a material change in circumstances.  None justify an alteration in the arrangements previously agreed to by the parties and prescribed on consent in the Order of July 11, 2019.  I do not accept the contention of the applicant that there has been a material change in circumstances due to the respondent’s inability to meet Brody’s needs in a timely and effective manner as a result of her animosity towards the applicant, and that this was not foreseen at the time that the parties signed Final Minutes of Settlement and obtained the Order on consent.  Both parties have engaged in a “tit-for-tat” series of recriminations.  An absence of maturity on the part of both parties, or a desire of one to control the other, does not warrant a finding of a material change in circumstances or a variation in the Order.”

            Stevenson v. Hargreaves, 2022 ONSC 5971 (CanLII) at 11-12, 14-16

“Section 4(2) of the Succession Law Reform Act, RS.O. 1990, c. S.26. provides:

Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

To meet the requirements of s. 4(2) of the Succession Law Reform Act, the onus is on the propounder of the will – Barbara – to establish that Larry signed the will in the presence of the two witnesses, Brenda and Joy, who were present at the same time, and that the witnesses then signed in Larry’s presence: Vout v. Hay, at para. 19: 1995 CanLII 105 (SCC), [1995] 2 SCR 876.

Medical evidence can be relied upon with respect to the validity of the execution of a will: see Sware v. Welda Estate, at paras. 16, 36, and 54: 1999 ABQB 79.”

            Riddle v. Nielsen, 2022 ONSC 5895 (CanLII) at 11-13

“In the recent decision of Stewart and Bernard v. Fuhgeh, 2020 ONSC 4850, Justice Shelston of this court made the following statement: “Family law litigants are responsible and accountable for the positions they take in the litigation.”

I agree.  Subject to the rare exception, a party to a family law case must be held responsible for the costs of the decisions and position they take in that litigation.  Responsibility for the positions taken are one thing, however.  The time and resources the other party expends for which costs are claimed are another.

In Moon v. Sher, 2004 CanLII 39005 (Ont. C.A.), Borins J.A. wrote that where a lawyer expends four times the work to achieve a result than what might be seen as reasonable, that is between the lawyer and the client.  However, it would not be reasonable to expect the unsuccessful party to pay those costs, nor would it be reasonable for that party to expect to pay (at para. 33).”

            Capar v. Vujnovic, 2022 ONSC 5920 (CanLII) at 14-16

“Where, as in this case, it is alleged that the child cannot withdraw from parental control due to enrolment in an educational program, the court must carefully consider the child’s overall financial and daily living circumstances, and whether the child’s participation in the program is reasonably necessary in order for the child to achieve a level of self-sufficiency that is commensurate with the child’s interests and aptitude.  The case-law respecting entitlement to child support under the Divorce Act (R.S.C. 1985 c. 3 (2^nd Supp.), as am. provides valuable guidance respecting the factors that the court should take into account in deciding entitlement for adult children involved in ongoing studies.    Under the Divorce Act, a child of the relationship who is eighteen years of age or older and enrolled in post-secondary studies may be entitled to support if they are under parental charge and unable to withdraw from that charge or to obtain the necessaries of life.  The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child’s educational plan is reasonable taking into account the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents.  As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55 (CanLII), 2011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.”  The courts have outlined a number of factors which should be considered in answering this question.  The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4^th) 406 (B.C.C.A.)  Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 18 R.F.L. (4^th) 1 (Sask. C.A.),  Geran v. Geran, Supra.,  Rebenchuk v. Rebenchuk, Supra.,  Haist v. Haist 2010 ONSC 1283 (CanLII), 2010 83 R.F.L. (6^th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII), 2010 CarswellOnt 9344 (S.C.J.):

1. 1. 1. 1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
         2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
         3. The ability of the child to contribute to their own support through part time employment.
         4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
         5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
         6. The age, qualifications and experience of the child.
         7. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
         8. Whether the child is performing well in the chosen course of studies.
         9. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.  In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
         10. The means, needs and other circumstances of the parents and the child.
         11. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.  If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

The courts have held that it is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4^th) 435 (B.C. S.C.) at para. 11).”

            Meyer v. Content, 2014 ONSC 6001 (CanLII) at 32-33

“The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. (see Wilson v. Kovalev, 2016 ONSC 163.)”

            McIntyre v. Winter, 2020 ONSC 6259 (CanLII) at 23

“I would not accept the father’s argument that the motion judge lacked jurisdiction in the proceedings to make a temporary parenting order in favour of the mother and to order the enrollment of the mother and children in the Building Bridges program. The motion judge properly made those orders pursuant to r. 1(8). Specifically, r. 1(8) provides:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order it considers necessary for a just determination of the matter, including:

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

“As long as the judge is satisfied that there has been a failure to obey an order in a case or a related case’ subrule 1(8) is triggered” and the relief provided for therein can be ordered: Hughes v. Hughes, (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock, 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.

As a result, even though, with the notable exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) can be described as purely procedural, r. 1(8) has not been interpreted as being confined to purely procedural remedies. In Freedman v. Freedman, 2020 ONSC 301, at para. 20, for example, the court relied on r. 1(8) to give the applicant access to account information as well as exclusive authority to deal with insurance polices and off-shore accounts in order to prevent the respondent from dissipating these assets in an attempt to avoid compliance with court orders to make payments and asset disclosure. In Shouldice v. Shouldice, 2016 ONSC 1481, at paras. 17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental property so that support obligations that were being evaded could be enforced. In Sadlier v. Carey, 2015 ONSC 3537, at paras. 64-67, an order was made pursuant to r. 1(8) requiring the respondent to surrender his passport to the court to prevent his flight from the jurisdiction, and he was ordered to post security after he had been evading support orders.

Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott–Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8).”

            Bouchard v. Sgovio, 2021 ONCA 709 (CanLII) at 48-52