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“The Supreme Court of Canada discussed the doctrine of abuse of process in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 paras. 35, 37-38, 42 (“CUPE”) and stated that judges have an inherent and residual discretion to prevent an abuse of the court’s process.  Pursuant to the doctrine of abuse of process, the court has the discretion to prevent relitigation for the purpose of preserving the integrity of the court’s process and preventing the violation of the principles of judicial economy, consistency, finality and the integrity of the administration of justice.  In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts.  See CUPE at paras. 35, 37-38, 42, 43.

The Supreme Court of Canada stated the following with respect to abuse of process by relitigation in CUPE at para. 52:

[…] It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.  There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.  […]

Similar concerns arise with respect to proceedings that have been qualified as “vexatious”.  The Court of Appeal has identified the following characteristics of vexatious proceedings (see Currie at para. 11):

1. 1. 1. 1. 1. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitute a vexatious proceeding;
            2. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
            3. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
            4. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
            5. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
            6. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
            7. the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”

Abrahams v. Attorney General of Ontario, 2022 ONSC 514 (CanLII) at 37-39

“It is trite to say that on a motion for interim spousal support, the intent is to address hardship or inequity between the parties on a means and needs basis; it is not a place to conduct an exhaustive analysis as to the quantum of spousal support.  As mentioned above, this is largely because spousal support can involve a complicated analysis of a number of factors and it is inappropriate to conduct that type of analysis on the basis of conflicting affidavits after one hour of argument on a busy motions day.  The court must base its decision on mostly uncontested facts that are either common ground or unquestioned; otherwise, the court must be cautious about going beyond a means and needs analysis in determining spousal support.

This means that the SSAGs become increasingly important at an interim motion, as the ranges are based upon the length of cohabitation and income, factors that are often easy to determine at an interim motion.  The case law confirms that the SSAGs should be applied on a motion for a temporary order as in the present case: see M.(D.R.) v. M.(R.B.), 2006 BCSC 1921 (CanLII), 2006 CarswellBC 3177, [2006] B.C.J. No. 3299 (S.C.) at para. 10 and Decker v. Fedorsen, supra at para. 28.  In Decker, Sherr J. cites Robles v. Kuhn, 2009 BSCS 1163 (Master) for the following principles concerning an award of temporary spousal support:

1. 1. 1. 1. 1. On interim support motions, needs and ability take on greater significance.
            2. On interim motions, the need to achieve self-sufficiency is of less importance.
            3. Interim support should be ordered within the SSAG (Spousal Support Advisory Guidelines) range unless exceptional circumstances dictate otherwise.
            4. Interim support should only be ordered where aprima facie case for entitlement has been set out.

Rushton v. Cuff, 2020 ONSC 490 (CanLII) at 36-37

“It is settled law that rule 25(19) of the Family Law Rules, O. Reg 114/99 includes the authority for the court to set aside an order: See Gray v. Gray, 2017 ONCA 100.  The rule provides as follows:

The court may, on motion, change an order that,

(a)     was obtained by fraud;

(b)     contains a mistake;

(c)     needs to be changed to deal with a matter that was before the court but that it did not decide;

(d)     was made without notice; or

(e)     was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

 Subsection (e) applies here. Was the respondent unable to be present on February 17, 2021 for a reason satisfactory to the court? The inquiry, however, does not end with the rule. As stated by the court in Bompas v. Henry, 2018 ONSC 7718, at para. 15,

It is my view that the inquiry should not end with r. 25(19)(e). Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly.   In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure.  That provides the court with the authority to set aside a default judgment on such terms as are “just”.  The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration.  The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief.  The factors are:

a)  Whether the motion was brought promptly after the respondent learned of the default judgment;

b)  Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;

c)  Whether the facts establish that the respondent has an arguable defence on the merits;

d)  The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e)  The effect of any order the court might make on the overall integrity of the administration of justice.  [Footnotes omitted.]”

         Ostapyk v. Ostapyk, 2022 ONSC 400 (CanLII) at 12-13

“When a party does not participate in the process, things tend to not go well.”

         Hilton v. Hilton, 2021 ONCA 29 (CanLII) at 10

“Rodney relies on the decision of Justice Quinn in Riss v. Greenough, 2002 CarswellOnt 1450 where he discussed Subrule 18(4) of the Family Law Rules. He said at paragraph 32 that the requirement to have an offer signed personally by the party making it and also by the party’s lawyer, if any was a straightforward, uncomplicated requirement and was mandatory. He held that the lack of a signature by counsel was sufficient to invalidate the offer and that there was nothing in rule 2 that should be used to resuscitate the offer. In addition, he found that the offer was not capable of enforcement and thus was not an offer under the Family Law Rules.

I prefer Justice Healey’s interpretation of Rule 18(4). In Gogas v. Gogas, 2011 ONSC 5368 she said:

15      The result in Riss arose from a strict interpretation of subrule 18(4), which provides that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any. Quinn J. found that a lack of signature on an offer by a lawyer was sufficient to invalidate the offer. At para. 32 of the judgment he wrote:

…Subrule 18(4) states that “an offer shall be signed personally by the party making it and also by the party’s lawyer, if any”. This is a straightforward, uncomplicated requirement. It also is mandatory. The lack of a signature by counsel is sufficient to invalidate the offer. I do not think that anything in rule 2 should be used to resuscitate the offer and, being invalid, resort cannot be had to subrule 18(16)…

16      Pursuant to subrule 2.01(1)(a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, a failure to comply with those rules is an irregularity, does not render a document in a proceeding a nullity, and the court may grant all relief on such terms as are just to secure the just determination of the real matters in dispute. The same wording is not found in Rule 2 of the Family Law Rules. Instead, the court is required to promote the primary objective, which is to deal justly with cases. Dealing with a case justly includes, as set out in subrule 2(3)(a), ensuring that the procedure is fair to all parties. With the greatest of respect to Quinn, J., I find it implicit in this directive that the court should not require strict compliance with a rule where to do so would mean that the case is dealt with unjustly. That would include, in appropriate circumstances, not nullifying a document. (emphasis added)

17      The policy reasons behind subrule 18(4) are unknown; the Rules Committee did not publish discussion papers prior to or after the Family Law Rules came into effect. One can easily speculate that the requirement of a lawyer’s signature was included to ensure that the terms of an offer had received the scrutiny and advice of legal counsel before being extended to the opposing party in order to lessen the likelihood of the offer being ambiguously drafted, reneged or set aside. Where, as in this case, the offer is delivered to the opposing party through the offeror’s lawyer’s office, there can be little doubt that the lawyer has had input into the creation of the offer, has provided advice on the offer, and is aware of it being delivered to the opposing party. The signature of the lawyer adds nothing in such circumstances.”

         McNeil v. McNeil, 2022 ONSC 428 (CanLII) at 8-9

“Recent case law in connection with vaccinations in general and COVID-19 in particular, stand for the proposition that the Court is permitted to take judicial notice of the ongoing pandemic and the safety of mRNA vaccines.  Saint-Phard v. Saint-Phard, 2021 ONSC 6910; OMS v. KJS, 2021 SKQB 243 and TRB v. KWPB, 2021 ABQB 997. In these cases the courts were presented with significant documentation from publicly accessible government sources to take judicial notice of facts relating to COVID-19 and the PFIzer-BioNTech vaccine.

The information from Ontario Health suggests that there are indeed vaccinated people contracting the Omicron version of COVID-19.  Data from the Public Health Agency of Canada found that Canadians with two doses of the vaccine were 19 times less likely to be hospitalized that those unvaccinated and a booster provides even more protection.”

         L.M. v. C.O., 2022 ONSC 394 (CanLII) at 18-19

“In Gray v. Rizzi, 2016 ONCA 152 (CanLII), the Ontario Court of Appeal addressed the principles to be applied when a support payor moves to retroactively change a support obligation based on a reduction in income as follows at para. 56-59:

First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. … [the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly. [emphasis added]

While there is no fixed formula a court must follow when exercising its discretion in this circumstance, the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. 1. 1. 1. 1. The nature of the obligation to support, whether contractual, statutory or judicial;
            2. The ongoing needs of the support recipient and the child;
            3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
            4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
            5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;
            6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and
            7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.: “[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.”[emphasis added]

(See Gray at para. 60.)

If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction: See Deneau v. Scott, 2016 ONCJ 300 (CanLII).”

Jackson v. Jackson, 2019 ONSC 448 (CanLII) at 18-20

“Before I turn to the facts and issues, and for the benefit of the profession, I comment on counsel’s use of CaseLines in this case.  The moving parties have uploaded 56 separate documents to CaseLines.  The responding party has uploaded 175 separate documents.  Many of the individually uploaded documents are exhibits to affidavits.  Many cases are also uploaded individually.  Some documents exceed 500 pages.

I appreciate that the use of CaseLines remains relatively new for counsel and the Court.  There are inconsistencies in how it is used.  In every case, materials must be uploaded with a view to ensuring they are usable by the Court.  Justice Dunphy recently commented on this problem which he described as “endemic”: Basaraba v. Bridal Image Inc., 2021 ONSC 8083 at para 26.  The reality for most judges and associate judges is that they cannot scroll through a list of hundreds of documents in CaseLines in search of a specific document, then click in and click out of those documents for the evidence or authorities to which counsel seeks to direct the Court.

When we relied on paper documents, evidence would be in a single motion record, and authorities would be in a single book of authorities (although often with multiple volumes), with appropriate tabs.  In contrast, in this case and others I have heard, hundreds of documents were uploaded. Notably, exhibits were not uploaded with the affidavit and hyperlinked within the affidavit.  They were uploaded individually. To find an exhibit and marry it up with the appropriate affidavit, I was required to search the complete list of documents that were uploaded.  CaseLines allows only two documents to be viewed at the same time.    Documents that exceeded 500 pages would freeze as I scrolled through them.

I am not advocating for a return to paper documents.  CaseLines is a powerful technological tool.  With it, both counsel and the judiciary can take advantage of its many features to save time and resources.  Like me, many of my colleagues seek to maximize its functionality.  But to do so, counsel are required to use CaseLines properly which requires greater effort on their part.

In particular, I direct counsel to a document titled, CaseLines Hearings – Tips for Counsel and Self-represented Parties”, found at: CaseLines Hearings – Tips for Counsel and Self-represented Parties | Superior Court of Justice (ontariocourts.ca).  Tip 5 In this document states:

Affidavits with attached exhibits should be uploaded in one PDF document with hyperlinks from the affidavit to the exhibits for ease of reference.  Similarly, where a Book of Authorities is provided to the court, it should be uploaded as a single PDF document with a table of contents hyperlinked to the cases contained in it.  This will assist the judicial official in easily locating the exhibits and/or caselaw.  A party’s factum can also be linked to caselaw in publicly available on-line sources such as CanLII, where available.

When uploading a document to CaseLines, ensure the document is under 500 pages in length.  This will allow you to avoid issues with your document freezing while scrolling during your hearing.  As such, if a document such as a book of authorities is loner than 500 pages, it should be broken down into Book of Authorities Vol. 1, Book of Authorities Vol 2, etc. to remain under the maximum number of pages.

In addition, when preparing PDF documents, counsel should bookmark the relevant sections, tabs, or exhibits within a PDF document before uploading them to CaseLines.  It is my practice to download from CaseLines the PDF versions of documents.  I know some of my colleagues do as well, but not all.  If the relevant sections are bookmarked, it assists with finding material within a PDF document.  For example, it is of no use to identify in a factum a case found at a tab of a Book of Authorities, if those tabs have not been created by way of bookmarks in the PDF document.

Had these steps been taken by counsel in this case, the time required to dispose of this time-sensitive injunction motion would have been reduced. Other cases similarly waiting for disposition could have been dealt with sooner.  Counsel must accept responsibility in assisting the Court, and the consequent delays on the administration of justice when they fail to do so.”

         Parekh et al v. Schecter et al, 2022 ONSC 302 (CanLII) at 3-9

“The applicant’s second argument is that a material change in circumstance is not required to vary a temporary without prejudice order. I was not directed to any authority that spoke to variation under s. 25(1) of the Family Law Act in these circumstances, however, I take guidance from those spousal support cases where the court looked at the question of whether a material change is needed to vary temporary without prejudice orders. See D. (E.) v. D. (D.), [2012] O.J. No. 5586, 2012 ONSC 6689, 2012 CarswellOnt 14841 (S.C.J.) and Kahsai v. Hagos, [2015] O.J. No. 3337, 2015 ONSC 3900, supp. reasons [2015] O.J. No. 4764, 2015 ONSC 5756 (S.C.J.) where the court held that the moving party was not required to meet the substantial change in circumstances test. I adopt that approach here. I also agree with and adopt the words of Price J. in Ceho v. Ceho, [2015] O.J. No. 4505, 2015 ONSC 5285 (S.C.J.), at para. 86 where he said, “The very expression ‘without prejudice’ is intended to preserve the position of each party. It would be rendered meaningless if the temporary temporary order, in fact, prejudiced the party who consented to it, by imposing on that party a higher threshold of proof in the future, and requiring him or her to prove a material change of circumstances.” Although Ceho was a custody case and the order in question was a temporary without prejudice consent order that the court regarded as a temporary temporary order, I find the words of Price J. equally applicable to the situation here. Each party had their reasons for consenting to the terms of Smith J.’s order, all of which were temporary and said to be without prejudice. If proof of material change is required at this stage of a proceeding, I fear it would dampen the usefulness of temporary without prejudice orders as important interim settlement tools that allow the parties to move forward with their case and their lives.”

         Hamilton v. Hamilton, 2021 ONSC 274 (CanLII) at 26

“In the case of A.M. v. C.H., 2018 ONSC 6472, Nicholson J. reviewed some of the relevant considerations when assessing the credibility of a witness commencing at para 88:

[88]   In Christakos v. De Caires, 2016 ONSC 702, 2016 CarswellOnt 1433, at para. 10, I summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283 (CanLII), 269 N.S.R. (2d) 84, at paras. 36-37:

                    There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99 (CanLII) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.  v. J.H.,2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56).  There is no principle of law that requires a trier of fact to believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. (See R. v. D.R.1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]”

         Waterhouse v. Waterhouse, 2022 ONSC 158 (CanLII) at 42