Category: Uncategorized

“Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 19-23

“Rule 24 of the Family Law Rules sets several factors relevant to the preliminary issue of liability for costs.  Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs.  This presumption may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.  Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.  The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)).  Rather, it requires a global and contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to those issues (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), at para. 66; Slongo v. Slongo, 2017 ONCA 687 (C.A.), at para. 3; Vanleer v. Young, 2020 ONCA 459 (C.A.), at para. 46).  Where the court concludes that success was in fact divided, it may decline to order costs, or may award costs to the party who was more successful overall or on the primary issues, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.);  Boland v. Boland, [2012] O.J. No. 1830, 2012 ONCJ 239 (O.C.J.);  Beaver v. Hill, 2018 ONCA 840 (C.A.)).

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 14

“Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy:  It is often tantamount to child abuse.   It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 418-419

“The mother seeks a retroactive variation of all support back to July 1, 2013.  It is her position that if this variation is ordered, the father owes her $1M.  If the court orders a review retroactive to July 1, 2013, the father vigorously disputes this amount.

While the Separation Agreement provides for a review as of July 1, 2013, the court has the discretion to consider if such a long retroactive reach is appropriate given the facts of this case.

Colucci v Colucci, 2021 SCC 24, at paras. 6, 71-73, and 114, provides a revised approach for cases where the recipient of child support seeks a retroactive increase. The approach is summarized in para. 114 as follows:

114   It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a)   The recipient must meet the threshold of establishing a past materialchange in circumstances. While the onus is on the recipient to show amaterial increase in income, any failure by the payor to disclose relevant information allows the court to impute income, strike pleadings, draw adverse inferences and award costs.  There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)   Once a material change in circumstances is established, a presumptionarises in favour of retroactively increasing child support to the date therecipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to  In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)   Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)   The court retains discretion to depart from the presumptive date ofretroactivity where the result would otherwise be unfair. The B.S. factorscontinue to guide this exercise of discretion, as described in Michel.  If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)   Once the court has determined that support should be retroactivelyincreased to a particular date, the increase must be quantified. The properamount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

While this application is not brought under s. 17, Colucci remains the framework, with one exception. Proof of a material change in circumstances is not required because the Separation Agreement provides for the review.  In any event, there is a material change in circumstances given the change in each party’s financial circumstances.

There is a presumption in favour of retroactively increasing child support “to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary” Colucci, at para. 114.”

D.A.S. v. P.S., 2021 ONSC 7358 (CanLII) at 233-237

“This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary”: Oliveira v. Tarjay Investments Inc., [2006] O.J. No. 1109, at para. 2 (C.A.), referring to Scherer v. Paletta, 1996 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co., 2006 CanLII 3954 (ON CA), [2006] O.J. No. 547, at para. 20 (C.A.).”

Dick v. McKinnon, 2014 ONCA 784 (CanLII) at 4

“L.D.’s refusal to submit to arbitration, especially when the Court later validated her position that the parties’ education plan, and the choice of schools it entailed, was still in the children’s best interests, does not disentitle her to her costs. In Baldwin v. Daubney, (2006) 2006 CanLII 33317 (ON SC), 21 B.L.R. (4^th) 232 (Ont. S.C.J.), at para. 12, Spence J. declined to consider a refusal to mediate as a factor in the exercise of his costs discretion:

The plaintiffs say that the defendants refused the request of the plaintiffs to mediate and thereby caused the motion to proceed with its attendant costs, which a successful mediation would have avoided. The defendants say they considered they had a good defence and were not obliged to mediate.  Mediation is most likely to be successful where each party considers it has something material to gain from a settlement and appreciates that to achieve a settlement it will need to accept a compromise of its position. Where one litigant is confident that its position will succeed in court, it has little reason to take part in a process that would yield it a lesser result and it is not bound to do so. Indeed, to take part in a mediation in such circumstances could simply prolong the process and add to the cost.

[Emphasis added]

Where mediation has a reasonable prospect of success, and a refusal to participate reflects a party’s unwillingness to entertain a less expensive and speedier means of resolving the issues in a just manner, it can be regarded as unreasonable conduct and attract a costs sanction.  Mediation often offers a less expensive means of resolving family law disputes than adjudication. See: Joanne Gross, An Introduction to Alternative Dispute Resolution, 1995 CanLIIDocs 178, at page 9, in which the author cites research conducted in 1990 by J. Kelly, Past President of the Academy of Family Mediators, which showed that the mean cost of the adversarial process for both the husband and wife combined was 134 percent higher than the costs of comprehensive mediation.

In their article, Resolving Family Law Disputes, Infographic, Canadian Forum on Civil Justice, 2018 CanLIIDocs 11081,  https://canlii.ca/t/t1n5:, the authors report that they asked 166 lawyers practicing family law in Alberta, British Columbia, Ontario and Nova Scotia questions about the benefits, limitations, cost, and suitability of Collaboration, Mediation, Arbitration and Litigation to resolve different types of family law problems.  The authors state:

A majority of lawyers agreed that mediation, arbitration and collaboration are usually cost-effective.  Typical low-conflict cases resolved through collaboration or mediation cost almost half that of low- conflict cases resolved through arbitration or litigation….

Joanne J Paetsch, Lorne D Bertrand and John-Paul Boyd came to the same conclusion in An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, Canadian Forum on Civil Justice (www.cfcj-fcjc.org) 2018 CanLIIDocs 11070; as do Noel Semple and Nicholas Bala in an article, Reforming Ontario’s Family Justice System: An Evidence-Based Approach, 2013 CanLIIDocs 498, at pages 147-148.”

            L.D. v. K.A., 2021 ONSC 7337 (CanLII) at 46-49

“A VOCR is a report intended to provide information about a child’s views and preferences for use in resolving parenting disputes. Generally non-evaluative, a VOCR is not comparable to a clinical investigation such as that conducted by Ms. Garibotti or a more comprehensive assessment pursuant to s. 30 of the Children’s Law Reform Act. It is typically short and the time from engagement of the interviewer to delivery of a report is very brief. Typically, no contextual information is gathered and no recommendations are made. A VOCR’s practical benefit is giving a child a chance to be heard. Not uncommonly, recourse to a VOCR is challenged because one or both parents are concerned that it can be used by a parent to manipulate a child’s views, that it has potential to alienate a child and further the goals of the alienator parent: Gajda v Canepa, 2018 ONSC 5154 at para. 23. Where there is an imbalance in a child’s relationship with its parents or where one or both of the parents decline to acknowledge that the other is capable of identifying and responding to children’s needs, caution must be exercised in giving undue weight to the report.”

         A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 64

“[S]4(2).6 of the FLA operates as an exception to the general rule and allows spouses to agree to exclude certain property from the NFP calculation. The issue in this case is whether the parties agreed to exclude the Maher payment from the wife’s NFP, as they had in Khanis. The trial judge erred in law by not reviewing the Maher to determine whether the spouses had actually made such an agreement.

As noted, the Maher in this case contains no express agreement that the Maher payment is to be excluded from the wife’s NFP. Moreover, there is no basis for inferring the parties intended to exclude it. The objective contractual intentions of the parties are to be determined at the time when the contract is made: Davidson v. Allelix Inc. (1991), 1991 CanLII 7091 (ON CA), 86 D.L.R. (4th) 542 at 547 (C.A.), [1991] O.J. No. 2230, at para. 16; Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, at para. 54; Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48 (CanLII), [2002] 2 S.C.R. 695, at para. 36; and Dumbrell v. Regional Group of Cos., 2007 ONCA 59 (CanLII), at paras. 48 and 53. Here, at the time they executed the Maher in Iran, the parties evidently contemplated their continued life in Iran. The Maher, for example, contemplated that the husband could take a second wife. It also required the husband to grant the wife a power of attorney so she could initiate a divorce if he defaulted on any of the prescribed behavioural requirements. There is no basis in this case to infer that the parties contemplated their mutual obligations under Ontario’s FLA.

Absent any evidence of an objective intention at the time of contract to treat the Maher differently, the Maher payment must be treated under the FLA like any other payment obligation between the spouses.

Counsel for the wife submitted that all transactions between spouses, irrespective of any domestic contract, should be excluded from NFP. Counsel submitted it is pointless to include transactions between spouses because they have no net effect on equalization. I reject this submission for three reasons. First, there is simply no provision in the FLA that excludes transactions between spouses. On the contrary, bona fide inter-spousal debts must be included in NFP: Burke (Public Trustee of) v. Burke Estate, [1994] O.J. No. 1342 (Gen. Div.), at paras. 37-40, 1994 CanLII 7442 (ON SC), 1994 CanLII 7442, at paras. 38-41; and Long v. Long, 1989 CarswellOnt 2687 (H.C.), at paras. 15-17. Second, because of the effect of the deeming provision in s. 4(5), transactions between spouses may affect the equalization payment where a spouse’s net assets would otherwise be negative. Transferred assets that fluctuate in value could also make a difference. Third, excluding transactions between spouses would be inconsistent with the separate property regime under the FLA, which continues during a marriage and terminates only on the triggering of the valuation date. As Feldman J.A. said in Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491 (C.A.), at para. 26:

The nature of the property regime established as between spouses under the Family Law Act was clearly described by Cory J. in Rawluk v. Rawluk … Spouses each own their separate property throughout the marriage. However, upon the happening of one of the five triggering events, there is a valuation date.

[Underlining added. Citations omitted.]

The wife’s submission that the Maher payment should be considered akin to a dowry also does not assist her. A dowry from the husband would be included as part of NFP since only gifts given by third parties after the date of marriage are excluded: FLA, s. 4(2)1.”

Bakhshi v. Hosseinzadeh, 2017 ONCA 838 (CanLII) at 32-36

“As indicated earlier, the respondent was unsuccessful in an appeal of the decision of Trousdale J. regarding the DNA paternity testing in September 2019. The applicant and the child provided their DNA samples to the collection site on January 29, 2019. Trousdale J. had provided a deadline of March 5, 2019 to complete the testing. The testing was further extended after the unsuccessful Divisional Court appeal.

The respondent’s refusal to cooperate with DNA testing does not automatically lead to a finding of paternity. The applicant must prove on a balance of probabilities that the respondent is the parent of L. The court must weigh the refusal with the evidence as a whole: see Beith v. Tassone (2003), 2003 CanLII 88999 (ON CJ), 46 R.F.L. (5th) 248 (Ont. C.J.), at para. 44.

I am reminded of the quote from Hamlet and think that the respondent does “protest too much” in his denials of paternity or financial disclosure. By avoiding the DNA paternity testing, he can continue to deny parentage and maybe save face except to the person who is the most suffering – his Canadian son.”

         Woodland v. Kirkham, 2021 ONSC 8194 (CanLII) at 54-56

“This court does not ordinarily give reasons on motions for leave to appeal, mirroring the practice in the Court of Appeal and the Supreme Court of Canada.  We give reasons in this case solely to provide some guidance in family law cases: there is a continuing pattern of unmeritorious motions for leave to appeal temporary support orders in family law cases, and this is undesirable for the parties and for the administration of justice.

In this case, the motions judge ordered Mr Khan to pay spousal and child support for two children to Ms Lokhandwala.  The motions judge did not state that the children spend half their time with their father.  The motions judge did not apply a s.9 offset, nor did he explain why he was not applying a s.9 offset, given the time the children spend with each parent.

Assuming without finding that the motions judge made a palpable and overriding factual error, this would be a basis on which to doubt the correctness of his order.  However, that does not make the proposed appeal a matter of “such importance… [that] leave to appeal should be granted” (Rule 62.02(04)(a)).  Nor does it make it “desirable that leave to appeal be granted” (Rule 62.02(04)(b)). Under either branch of the test under R.60.02(04), the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.).  Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.

In family law, temporary support orders are designed to establish or maintain a reasonable state of affairs pending trial.  Unless expressly stated otherwise, these orders are without prejudice to adjustment by the trial judge.  Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings.  Errors in temporary support orders – even ones that are straightforward – are almost always better addressed at trial rather than by way of interlocutory appeal.  As argued by the responding party in her factum, “instead of expending their scarce resources on a potential appeal from a [temporary] Order, the parties should focus their attention on resolving the case on a final basis.”

This case is not important to the development to the law.  Any error there may have been calculating temporary child support may be adjusted by the trial judge in due course.  And any error made by the trial judge on these issues can be pursued by way of an appeal from a final order.

Finally, we wish to be clear that we are not criticizing counsel for the moving party in this endorsement.  The practice of seeking leave to appeal in cases like this has been commonplace in family law matters.  By this endorsement we signal to the family law bar that this practice should not continue.”

Lokhandwala v. Khan, 2019 ONSC 6346 (CanLII) at 2-7