Month: June 2018

“The appellant in this case is effectively arguing that although the trial judge properly articulated the test, he exceeded his discretion by concluding in all the circumstances that the financial result of allowing the husband to benefit from the gift was sufficiently shocking to warrant an unequal division of net family property.

In P. (S.) v. R. (M.),1996 CanLII 162 (SCC), [1996] 2 S.C.R. 842, [1996] S.C.J. No. 81, Gonthier J. reiterated, in the context of another family law issue, that a court of appeal should not intervene in discretionary decisions of trial judges unless there is an error of law or an “egregious error of fact”. He quoted [at para. 33] from the Supreme Court’s earlier decision in M. (M.E.) v. L. (P.),1992 CanLII 113 (SCC), [1992] 1 S.C.R. 183, [1992] S.C.J. No. 4, at p. 206 S.C.R.:

In the case at bar, the record contained evidence which justified the trial judge in exercising his discretion to deny the compensatory allowance to the respondent. The Court does not have to decide whether it would have exercised its discretion in the same way. Questioning a trial judge’s findings of fact where there has been no error of law can only encourage appeals, a particularly unfortunate development in family matters. The Court must instead inquire whether the trial judge exercised his discretion judicially.”

Ward v. Ward, 2012 ONCA 462 (CanLII) at 34-35

“The palpable and overriding error standard reiterated by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 applies when reviewing factual findings even when those findings are based on a written record.  This court has repeatedly stipulated that deference is owed to factual findings made at first instance, even where the appeal is from an entirely written record: see, for example, Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (C.A.) and FL Receivables Trust 2002-A v. Cobrand Foods Ltd. 2007 ONCA 425 (CanLII).  Although the explanation offered by the court at para. 46 of Fl Receivable refers to trial decisions, it is equally applicable to motions and usefully recalled:

The principle of appellate deference to a trial judge’s fact-finding and inference-drawing applies even when the entire trial record is in writing.  That is so because the principle of deference is grounded in more than a trial judge’s ability to see and hear the witnesses.  Deference recognizes that even on a written record, the trial judge “lives through” the trial while a court of appeal reviews the record only through the lens of appellate review.  Deference also preserves the integrity of the trial process, maintains the confidence of litigants in the process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.”

Fendelet v. Dohey, 2007 ONCA 475 (CanLII) at 4

“The Family Law Act and the Child Support Guidelines govern the obligations of a parent to pay child support and to contribute to child care expenses. If an adjustment is claimed with respect to amounts that were or should have been paid in the past, the proper remedy is to apply for an adjustment under the applicable legislative scheme. Absent a determination under such scheme, there is simply no entitlement to either a refund for past payments or compensation for payments not received and an action for damages does not therefore lie in relation to such amounts.

Considered in this context, the appellant’s civil action for damages against the respondent is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system. See Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307, in which Finlayson J.A. described the court’s inherent power to invoke the doctrine of abuse of process as follows at para. 31:

The court can still utilize the broader doctrine of abuse of process.  Abuse of process is a discretionary principle that is not limited by any set number of categories.  It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.”

Cunningham v. Moran, 2011 ONCA 476 (CanLII) at 39-40

“Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”

Boucher v. Public Accountants Council (Ontario),2004 CarswellOnt 2521 (C.A.) at 26

“Review orders under s. 15.2 have a useful but very limited role.  As the amicus curiaepointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown.  Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment.  In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3)of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order.  This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1)of the Divorce Act.

Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances:  Choquette v. Choquette(1998), 1998 CanLII 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.).  Otherwise, as the amicus curiaefairly points out, the applicant may have his or her application dismissed on the basis that the circumstances at the time of the variation application were contemplated at the time of the original order and, therefore, that there had been no change in circumstances.  The test for variation is a strict one:  Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at pp. 688-90.”

Leskun v. Leskun, [2006] 1 SCR 920, 2006 SCC 25 (CanLII) at 36-37

“In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal. The language of the Family Law Rulesdoes not clearly compel the result that the Legislature of Ontario intended to default on Canada’s international obligations under the Hague Service Convention.

While the law is not completely settled on the question of whether the requirements of compliance with the Hague Service Convention may be dispensed with, the decision of the Ontario Court of Appeal in Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1(Ont. C.A.) makes it clear that this case is not a case where the “access to justice” exception, if it exists, could be invoked.

…

66      We recognize that the Family Law Ruleswere enacted in 1999 to create a separate set of rules for family law proceedings. The Family Law Rules, however, were silent concerning service of documents outside Ontario. Silence cannot support a finding that Ontario, seven years after implementing the Hague Service Convention in family law matters, reversed its decision, thereby causing Canada to default on an international obligation. If Ontario wishes to declare that the Hague Service Convention does not apply to family law matters within its exclusive jurisdiction, it must do so in clear and unequivocal language. (See R. v. Hape, at para. 53; Metcalfe Estate v. Yamaha Motor Canada Ltd., 2012 ABCA 240, 536 A.R. 67(Alta. C.A.) , at para. 48.)”

Wang v. Lin, 2016 ONSC 3967 (Div. Ct.) at 7-8 & 66

“The most basic obligation in family law is the duty to disclose financial information.   This requirement is immediate and ongoing. 

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.

Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.”

Roberts v. Roberts, 2015 ONCA 450 at 11-13

“An inequality of bargaining power may arise in a number of ways.  As Boyle and Percy, Contracts:  Cases and Commentaries(4th ed. 1989), note, at pp. 637-38:

[A person] may be intellectually weaker by reason of a disease of the mind, economically weaker or simply situationally weaker because of temporary circumstances.  Alternatively, the “weakness” may arise out of a special relationship in which trust and confidence has been reposed in the other party.  The comparative weakness or special relationship is, in every case, a fact to be proven.”

Norberg v. Wynrib, 1992 CanLII 65 (SCC) at 33

“The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts.”

Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII) at 2

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

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

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