“Second, and importantly, we have examined the comments of the trial judge attacked by the appellant. In our view, in the circumstances of this trial and having regard to the demonstrated conduct of the parties as established by the record, these comments fall far short of meeting the test for reasonable apprehension of bias established by the Supreme Court of Canada in R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 and related cases. Many of the impugned comments were directed to the respondent wife or her counsel, rather than the appellant or his counsel. Others arose during the testimony of the respondent, in contrast to that of the appellant. While some of the challenged remarks by the trial judge may appear to reflect his frustration and concerns with the appellant’s conduct, neither the trial judge’s statements nor his alleged interruptions during the testimony of the parties support the assertion that he approached this trial with a closed mind or that his management of the trial was unfair or partisan. This was an acrimonious law suit. The evidence of the parties was conflicting and every issue appears to have been vigorously contested. Viewed as a whole, the record and the trial judge’s reasons reveal that he did a commendable job in weighing the evidence, managing the trial and adjudicating on the issues in contention.”
Month: August 2018
August 28 – Deemed Undertaking Rule
“Counsel for Mr. Mamo also submits that limiting the application of the deemed undertaking accords with the common law rationalization for the rule as recognized by Morden A.C.J.O. in Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), at para. 36, quoting Prudential Assurance Co. v. Fountain Page Ltd., [1991] 1 W.L.R. 756, [1991] 3 All E.R. 878 (Q.B.), at pp. 764-65 W.L.R.:
The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose[.]”
August 27 – Retroactive Child Support
“[In D.B.S.] Bastarache J. also discusses how a court should assess and award the correct amount of retroactive support, including the date from which it will be payable and the quantum. He concludes that the fairest retroactive date is the date when “effective notice” was given by the recipient spouse to the payor spouse that child support needed to be renegotiated. He stated that all that is required for effective notice is that the subject be broached. However, if after broaching the subject, the recipient parent does not pursue the matter, the payor parent may again begin to rely on the status quo. For that reason, Bastarache J. concluded that it will usually be inappropriate to select a date more than three years prior to the formal notice of the claim.
However, the date of retroactivity can be extended back in time for a payor parent who withholds information about a material change in circumstances, such as income increases that would entitle the child to increased support. In those circumstances, the presumptive date will be the date of the material change, as “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (para. 124).
Bastarache J. concludes as follows (at para. 125):
The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.”
August 26 – Reasonable Apprehension of Bias
“The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71.
In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned:
[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness. Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias. In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]
August 25 – Ordering Payor To Obtain Insurance To Secure Support
“Given that a support order under the Family Law Actis binding on a payor spouse’s estate unless the order provides otherwise, on its face, s. 34(1)(k) is broad enough to permit a court to order a spouse to obtain an insurance policy to secure payment of the order following the payor spouse’s death. The concluding words “or otherwise” in s. 34(1)(k) afford the court broad scope for securing the payment of a support order.
Because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: see Laczko v. Laczko (1999), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.
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That said, where there is no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance. This case demonstrates the desirability of having evidence of the payor’s insurability and of the amount and cost of the available insurance. Careful consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes. The obligation to maintain insurance should end when the support obligation ceases – and provision should be made to allow the payor spouse to deal with the policy at that time. Finally, when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.”
August 24 – Arbitration Agreements
“Where an arbitration agreement exists, courts will stay their own proceedings and compel the parties to arbitrate: Dormer v. McJannet, 2006 CanLII 42670 (ON SC), [2006] O.J. No. 5106, 35 R.F.L. (6th) 418 (S.C.J.), at paras. 20 and 34; and Puigbonet-Crawford v. Crawford, 2006 CanLII 38881 (ON SC), [2006] O.J. No. 4626, 152 A.C.W.S. (3d) 991 (S.C.J.), at paras. 8, 13 and 14.”
August 23 – Costs: Full Recovery
“Historically in Ontario the courts have generally not imposed full recovery of costs (“solicitor-client costs”) unless the party liable for costs has behaved in such a manner as to deserve to be punished. The avoidance of the term “solicitor-client costs” probably signals a desire to leave the law surrounding that approach behind. I agree with Aston J. in Sims‑Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.), citing Mallory v. Mallory (1998), 35 R.F.L. (4th) 222 (Ont. Gen. Div.), that the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe, a discretion under r. 24 (1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment. This is not to say that the discretion extends to awarding just $1 to a successful, reasonable party. That would be not to give a reasonable interpretation to the presumption in r. 24 (1) that “a successful party is entitled to the costs” [bold face added] of a motion, etc. A $1 or even a $500 award on account of the $2,000 costs properly and reasonably expended on a motion would not appear to me to be respectful of the rule.”
August 22 – Lump Sum Spousal Support
“In Davis v. Crawford, 2011 ONCA 294 (CanLII), a five-person panel of this court revisited the question of lump sum spousal support and, in particular, reconsidered the court’s earlier decision in Mannarino, upon which the trial judge relied in part. In Davis,the court clarified that lump sum spousal support is not reserved only for cases where there is a real risk that periodic payments would not be made or other very unusual circumstances. Rather, s. 34 of the Family Law Act confers a broad discretion on judges to make an award of periodic or lump sum spousal support as appropriate under the circumstances. That said, at para. 60, the court reaffirmed that a lump sum award should not be made in the guise of support for the purpose of redistributing assets. This is the issue for which the trial judge made reference to Mannarino.
The court discussed at paras. 60 – 76 of Davisa number of considerations as relevant to the question of the propriety of a lump sum spousal support award. One important consideration is whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency. The court explains that there is a need to weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages, and that the advantages and disadvantages of making such an award will be highly variable and case specific. The court identified a number of these advantages and disadvantages at paras. 67 and 68, most of which were referred to by the trial judge. The court noted that as a practical matter, most spousal support orders will be in the form of periodic payments. But, a lump sum award will not necessarily take the place of periodic support and can be made to supplement an award of periodic support.”
August 21 – Creditor Proofing and Resulting Trusts
“As I have said, under the Act, questions of title must be settled before property can be equalized. By reason of s. 10 of the [Family Law] Act, trust claims – including claims based on constructive or resulting trust – may be advanced prior to equalization. And, crucially, s. 14 legislates a presumption of a proprietary resulting trust. Where the presumption applies, it yields a finding of beneficial ownership in the context of a gratuitous property transfer. The Act contains no analogous presumption of constructive trust.
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Furthermore, any motivation to shield the property from the Husband’s potential creditors does not in itself rebut the presumption of a resulting trust. In Nussbaum v. Nussbaum(2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Karakatsanis J., then of the Superior Court of Justice, noted that, despite “a line of cases … where the court has found the specific intention to evade creditors means an implied intention to deprive oneself of beneficial ownership”, and “[w]hile evidence that someone intended to fully evade creditors can be evidence that they intended to gift their entire interest in the property, the intention of the parties is a question of fact to be determined from all the evidence”: at paras. 19-27 and 32. See also Schwartz, at para. 43”
August 20 – Appointing Office of Children’s Lawyer At Appeal
“Custody decisions are owed a high degree of deference. Appellate courts do not have the advantages of a trial judge in making findings of fact upon contradictory evidence, as most assuredly would ensue if fresh evidence were admitted in this case. Most requests for assistance from the Office of the Children’s Lawyer come from trial courts, for this reason. As pointed out in B (A.C.) v. B. (R.), 2010 ONCA 714, over a nearly 17 month period during which 5548 referrals were made to the Office of the Children’s Lawyer, all but two came from the Superior Court of Justice and the Ontario Court of Justice.”