Month: December 2018

“In ascertaining whether unjust enrichment exists, the court considers whether a benefit should be retained. As noted by McLachlin J. in Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, 98 D.L.R. (4th) 140 at para. 41: [page 798]

At the heart of the doctrine of unjust enrichment, whether expressed in terms of the traditional categories of recovery or general principle, lies the notion of restoration of a benefit which justice does not permit one to retain. (Emphasis added)

It is not until the end of the relationship or an application is made to the court for relief that the court ascertains whether justice does not permit the benefit to be retained.”

Roseneck v. Gowling, 2002 CanLII 45128 (ON CA) at 28-29 

“Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of a s. 15.2 order under s. 17.  The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order; what meaning a court will give any general statement of finality found in an order will be a question to be resolved on that basis.  As we have explained, in some situations, the agreement incorporated into the order may help shape what is meant by a “material change of circumstances”.  Where a s. 15.2 order deals with a specific change, it assists courts by answering the Willick inquiry through its terms.  Conversely, when the order is general, or simply purports to be final, these less specific terms provide less assistance to courts in answering the Willick inquiry.  Sometimes, in such cases, the circumstances of the parties may be such that courts will give little weight to a general statement of finality and conclude that a material change exists.  However, at other times, in such cases, the circumstances of the parties may also be such that the courts will give effect to a general statement of finality and conclude that a material change does not exist.”

L.M.P. v. L.S., [2011] 3 SCR 775, 2011 SCC 64 (CanLII) at 42

“I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order — in the family law context, at least — is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair, 2001 CanLII 28208 (ON SC), [2001] O.J. No. 1837, 18 R.F.L. (5th) 91 (S.C.J.), affd 2003 CanLII 57393 (ON CA), [2003] O.J. No. 2678, 42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say — as argued by the appellants — that the onus to satisfy the court on these matters is at all times on the person seeking the order…”

Lynch v. Segal, 2006 CanLII 42240 (ON CA) at 32-33

“The granting of PJI is discretionary. This court confirmed in Burgess v. Burgess(1995), 1995 CanLII 8950 (ON CA), 24 O.R. (3d) 547 (C.A.) at 552, that PJI is discretionary and may not be awarded where “the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial [and] the asset generates no income”

Fielding v. Fielding, 2015 ONCA 901 at 43

“Many proponents of the deemed selfsufficiency model effectively elevate it to the preeminent objective in determining the right to, quantum and duration of spousal support.  In my opinion, this approach is not consonant with proper principles of statutory interpretation.  The objective of selfsufficiency is only one of several objectives enumerated in the section and, given the manner in which Parliament has set out those objectives, I see no indication that any one is to be given priority.  Parliament, in my opinion, intended that support reflect the diverse dynamics of many unique marital relationships.  Osborne J.A. of the Ontario Court of Appeal made this point in Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 1 O.R. (3d) 1, at p. 27:

In not attaching any particular priority to the factors to be considered and the objectives sought to be achieved in making a spousal support order, it seems to me that Parliament recognized the great diversity of marriages and the need for judges to deal with support entitlement and quantum on a case by case basis.

It is also imperative to realize that the objective of selfsufficiency is tempered by the caveat that it is to be made a goal only “in so far as practicable”.  This qualification militates against the kind of “sink or swim” stance upon which the deemed selfsufficiency model is premised.  (See Bailey, supra, at p. 633, and Droit de la famille — 623, [1989] R.D.F. 196 (Que. C.A.), at pp. 2012.).” 

Moge v. Moge, [1992] 3 SCR 813, 1992 CanLII 25 (SCC)

“The leading case in Ontario concerning grandparent access is Chapman v. Chapman and Chapman (2001), 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, 2001 CanLII 24015 (ON CA), 2001 CanLII 24015, [2001] O.J. No. 705, 2001 CarswellOnt 537 (Ont. C.A.), which established the importance of deferring to parental autonomy unless all three of the following questions are answered in the affirmative:

(1) Does a positive grandparent-and-grandchild   relationship already exist?

(2) Has the parent’s decision imperilled the positive grandparent-and-grandchild relationship?

(3) Has the parent acted arbitrarily?

See also Giansante et al. v. Di Chiara, 2005 CanLII 26446 (ON SC), 2005 CanLII 26446, 141 A.C.W.S. (3d) 71, [2005] W.D.F.L. 4015, [2005] O.J. No. 3184, 2005 CarswellOnt 3290 (Ont. Fam. Ct.).

In answering the first question, the case law clearly establishes that a “positive” grandparent-and-grandchild relationship means something more than an occasional pleasant experience for the child.  In order to displace the principle of parental autonomy, the grandparent-and-grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation.  In the  majority of cases in which the court imposed an access order in favour of a grandparent against an unwilling parent, the child had either lived with or spent significant time with the grandparent over a significant period prior to the litigation:  Tucker v. Lester and Lester, 2002 SKQB 225 (CanLII), 220 Sask. R. 309, [2002] 9 W.W.R. 585, 29 R.F.L. (5th) 238, [2002] S.J. No. 322, 2002 CarswellSask 331 (Sask. Q.B.); Jones (Collins) v. Scheltgen, 2003 CanLII 2389 (ON SC), 2003 CanLII 2389, 127 A.C.W.S. (3d) 93, 127 A.C.W.S. (3d) 478, [2003] O.J. No. 4417, 2003 CarswellOnt 4605 (Ont. Fam. Ct.); Foster, Foster and Foster v. Allison, 2003 CanLII 2369 (ON SC), 2003 CanLII 2369, 44 R.F.L. (5th) 78, [2003] O.J. No. 3681, 2003 CarswellOnt 3528 (Ont. Fam. Ct.); Rodgers v. Rodgers, Rodgers and Campbell, 2003 SKQB 485 (CanLII), 240 Sask. R. 77, 49 R.F.L. (5th) 183, [2003] S.J. No. 737, 2003 CarswellSask 761 (Sask. Q.B.); Bellamy and Bellamy v. Wendzina, 2004 SKQB 78 (CanLII), 246 Sask. R. 287, 49 R.F.L. (5th) 239, [2004] S.J. No. 163, 2004 CarswellSask 175 (Sask. Q.B.); C.W. and M.W. v. D.T. and C.T., 2004 ABPC 109 (CanLII), 4 R.F.L. (6th) 239, [2004] A.J. No. 704, 2004 CarswellAlta 801 (Alta. Prov. Ct., Fam. Div.); Kobow v. Kobow (Nielsen), 2007 ONCJ 514 (CanLII), 46 R.F.L. (6th) 455, [2007] O.J. No. 4317, 2007 CarswellOnt 7238 (Ont. C.J.); Ekvall v. Cooper, 2007 SKQB 440 (CanLII), 305 Sask. R. 243, 47 R.F.L. (6th) 426, [2007] S.J. No. 640, 2007 CarswellSask 691 (Sask. Q.B.); Dhillon v. Dhillon Estate, 2008 CanLII 66140 (ON SC), 2008 CanLII 66140, 63 R.F.L. (6th) 317, [2008] O.J. No. 5093, 2008 CarswellOnt 7703 (Ont. S.C.).”

Barber v. Mangal and Hurst, 2009 ONCJ 631 (CanLII) at 12-13

“The SSAG are a useful tool in calculating the appropriate amount and the duration of spousal support. Neither counsel provided this court with that information. Nevertheless, as pointed out in Fisher v. Fisher, 2008 ONCA 11 (CanLII), 88 O.R. (3d) 241, at para. 98:

[The SSAG] suggest a range of both amount and duration of support that reflects the current law. Because they purport to represent a distillation of current case law, they are comparable to counsel’s submissions about an appropriate range of support based on applicable jurisprudence.

This court in Fisher continued at paras. 102-103:

Now that [the SSAG] are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.

At para. 97 of Fisher, this court cautioned that the SSAG “must be considered in context and applied in their entirety”: see also Mason v. Mason, 2016 ONCA 725 (CanLII), at para. 121. At para. 109 of Fisher, this court pointed out that “[a]mount and duration are interrelated parts of the formula – they are a package deal. Using one part of the formula without the other would undermine its integrity and coherence.”

In the recently released Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), Rogerson and Thompson again remind courts to remember duration. Section 3(e) states, “[d]uration is often forgotten in the SSAG analysis. The formulas generate ranges for amount and duration. Amount cannot be considered alone.”

Wharry v. Wharry, 2016 ONCA 930 (CanLII) at 84-87

“Interestingly, Colletta, for the most part, has been interpreted as standing for the proposition that excluded property deposited into a joint account loses its exclusionary character to the extent of the one-half interest that is presumed to be gifted to the spouse: see Goodyer v. Goodyer, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29, 168 D.L.R. (4th) 453 (Gen. Div.), at para. 76; Cartier v. Cartier, 2007 CanLII 52427 (ON SC), [2007] O.J. No. 4732, 47 R.F.L. (6th) 436 (S.C.J.), at footnote 4; and Ilana I. Zylberman and Brian J. Burke, “Tracing Exclusions in Family Law” (2006), 25 Can. Fam. L.Q. 67.

In my view, this is, in fact, the correct approach. That this is so is best understood by recalling that, in addressing property issues under Part I of the Family Law Act, the court first determines issues of ownership before turning to questions involving calculation of the parties’ net family properties: for example, see McNamee v. McNamee (2011), 106 O.R. (3d) 401, [2011] O.J. No. 3396, 2011 ONCA 533 (CanLII), at paras. 56-63. [page327]

While s. 14 of the Family Law Act creates certain presumptions with respect to the ownership of property, it does not address how each party’s net family property is to be calculated. Rather, it is s. 4(2) that stipulates the exclusions from net family property.

In relation to gifts, s. 4(2) states that “[p]roperty, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage” is to be excluded. Similarly, “[p]roperty, other than a matrimonial home, into which [a gift] can be traced” is excluded.

Given that the legislature made clear its intention that gifts used to purchase a matrimonial home lose their excluded character, but did not do the same in relation to moneys deposited into a joint account, I discern no legislative intent that the entire amount of the gift should lose its excluded character when deposited into a joint bank account. See, also, Brubacher v. Brubacher, [1996] O.J. No. 2730, 10 O.T.C. 111 (Gen. Div.), at para. 34; LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141, 18 R.F.L. (6th) 386 (S.C.J.), at paras. 50-51; Cartier, at paras. 2, 33-36.

In my view, therefore, the trial judge in this case erred in concluding that all of the gift moneys lost their excluded character when deposited into a joint account.”

Townshend v. Townshend, 2012 ONCA 868 (CanLII) at 28-33

“When the matter eventually proceeded before Baltman J. of the Superior Court of Justice on July 23, 2008, the appellant’s motion was dismissed in its entirety, in part on the basis that it was an abuse of process.  The motion judge stated:

The husband currently has 4 (four) outstanding appeals, all arising out of the same matters dealt with by Coats, J.  He has already brought a motion to vary Coats J.’s judgment which was dismissed by Murray J., on January 10, 2008 (in part because there was no evidence of a change in circumstances) which is now under appeal.  The husband brought a motion before the Ontario Court of Appeal on June 5, 2008 to stay the support payments pending appeal of Coats J.’s judgment, which was dismissed.

While in theory the husband has the right to move to vary upon a material change, we cannot on any whim reinstigate proceedings that are essentially identical to ones he has recently lost and has under appeal.  The husband is essentially trying to relitigate the motion already dismissed by Murray J., relying upon what is in my view the identical grounds and essentially the same evidence or at least evidence that could or should have been raised previously.  This violates what Arbour J., calls the “principles of judicial economy, consistency, finality and the integrity of the administration of justice”: Toronto v. CUPE Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, at paras. 35-55.

We agree with this conclusion and with the motion judge’s reasoning in support of it.”

Misheal v. Okel, 2008 ONCA 832 (CanLII) at 13-14

“The requirement that a judge give reasons for decision is clear. It is an inherent aspect of the discharge of a judge’s responsibilities. See R. v. Sheppard 2002 SCC 26 (CanLII). As Binnie J. noted at para. 24 of Sheppard:

[T]he requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The need for reasons in the family law context was affirmed by this court in Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112 and Bodnar v. Blackman (2006), 2006 CanLII 31803 (ON CA), 82 OR (3d) 423 at para.11. At para. 27 of Young, Laskin J.A., writing for the court, stated:

The desirability of reasoned reasons in a criminal case rests on three main rationales: public confidence in the administration of the justice system, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful. These three rationales also apply to a family law case and are relevant in this case.

The adequacy of reasons is determined on a functional basis. The reviewing court should consider whether the reasons are sufficient given the three rationales stated above. In my view, given the obvious issues disclosed by the record, it was an error to award all the requested extraordinary expenses without any engagement with the test or explanation of why the award was appropriate.

I agree with Justice Gillese’s comments at paras. 21 and 22 of Bodnar which emphasize that appellate courts must not place an impossible burden requiring perfect reasons on busy trial courts. The reasons, nevertheless, must be adequate.”

Titova v. Titov, 2012 ONCA 864 (CanLII) at 29-32