“The factors that a court considers in deciding whether to grant an extension of time to appeal are: 1) whether the appellant formed an intention to appeal within the relevant period; 2) the length of the delay and the explanation for it; 3) any prejudice to the respondent; 4) the merits of the appeal, and 5) whether the justice of the case requires that time be extended: Rizzi v. Mavros(2007), 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401 (C.A.), at para. 16. In a case involving children, the justice of the case is reflected in the best interests of the children: Lombardi v. Mehnert, 2009 CanLII 20352 (ON SC), [2009] O.J. No. 1715, 67 R.F.L. (6th) 167 (Ont. S.C.).”
Month: November 2018
November 12 – Failure to Plead
“The trial judge held that the respondent had a fifty percent beneficial interest by way of resulting trust in the Kerr Street property. The appellant attacks the finding of a resulting trust on two bases: first, that the issue of resulting trust was never pleaded; second, that the trial judge failed to consider the respondent’s motive for putting the company that held title to the property into the appellant’s name. Finally, the appellant submits that even if there was a resulting trust, the trial judge erred in finding that the respondent had a fifty percent beneficial interest. We would not give effect to any of these submissions.
It is true that the resulting trust was never pleaded. However, it is apparent from the transcript of the trial that the parties were well aware that the respondent’s interest in the Kerr Street property was a live issue. Counsel for the appellant at trial specifically referred to the issue in his questioning of the respondent.
…
We are satisfied that the appellant was not prejudiced by the respondent’s failure to amend the pleadings. In the circumstances it was open to the trial judge to consider the respondent’s claim for a beneficial interest in the property. As this court said in Cassidy v. McNeil, (2010), 2010 ONCA 218 (CanLII), 99 O.R. (3d) 81 at para. 42:
Finally, the husband apparently did not advance any argument of prejudice at trial, an argument that could have been accommodated by an adjournment, if one was necessary. The decision not to raise the argument at trial supports the conclusion that the husband suffered no prejudice. In any event, there is no evidence that the husband suffered either surprise or prejudice from any technical deficiency in the wife’s Answer.”
November 7 – Ostensible Authority
“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, [1966] 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co.,[2006] O.J. No. 547, at para. 20 (C.A.).”
November 6 – Paying Equalization By Instalment
“Ordinarily a party required to make an equalization payment must make the payment right away. However, s. 9(1)(c) of the Family Law Act gives the court discretion to order payments in instalments for a period of up to ten years, “if necessary to avoid hardship”.
Mrs. Symmons submits that the trial judge ought to have allowed her to satisfy the equalization payment to Mr. Symmons over a period of seven years. She points out that she cannot access her survivor benefits now, and may not be able to do so for years. Thus, it would have been reasonable to allow her to pay in instalments.
There is some merit in Mrs. Symmons submission. However, we are not satisfied that she has met the statutory standard of “hardship” to justify an order under s. 9. An important factor in deciding whether equalization should be paid in instalments is whether the payor spouse has funds available to pay a lump sum: Serra v. Serra(2007), 2007 CanLII 2809 (ON SC), 36 R.F.L. (6th) 66, varied on other grounds, Serra v. Serra, 2009 ONCA 105 (CanLII), at para. 158. Mrs. Symmons has already paid $60,000 of the equalization payment. She has assets in excess of $300,000 to satisfy the remaining $57,000 payment. We therefore decline to order instalment payments.”
November 4 – Security for Costs
“The respondent submits that an order to post security for costs is justified under r. 61.06 which governs security for costs on appeal:
(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
…
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
…
(2) If an appellant fails to comply with an order under subrule (1), a judge of the appellate court on motion may dismiss the appeal.
For such an order to be granted, the motion judge must: (a) have good reason to believe the appeal has no merit and is therefore frivolous and vexatious, and (b) have good reason to believe the appellant has insufficient assets in Ontario to cover the costs of the appeal: Schmidt v. Toronto-Dominion Bank(1995), 24 O.R. (3d) 1 (C.A.). As this court observed in Schmidt, at para. 16:
A judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give “good reason to believe that the appeal is frivolous and vexatious” without being satisfied that the appeal is actually totally devoid of merit.”
November 2 – Maher & Equalization
“[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.”