Month: May 2019

“As stated in Jackson, at para. 91: “quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318 (CanLII), 2015 ONCJ 318 (OCJ). The Rules do not require the Court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo 2015 ONSC 3327 (CanLII), 2015 ONSC 3327 (SCJ).”

The approach to be used in assessing the quantum of costs when a party has been successful was aptly stated by Justice Perkins in Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.):

[T]he 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.

The Court must consider whether the costs incurred are proportional to the issues argued.  As stated in Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.), and Gale v. Gale, 2006 CarswellOnt 6328 (Div. Ct.): there should be a correlation between legal fees incurred and the importance or monetary value of the issues at stake.

In Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730, the Court of Appeal sets out the principles in assessing costs in a family law matter. At para. 94:

[94] Thus, a successful party in a family law case is presumptively entitled to costs.  An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40–43.”

Wehbe v. Wehbe, 2016 ONSC 3227 (CanLII) at 41-44

“Section 56(4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses. It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, [2004] S.C.J. No.20, at para. 14. The provision is of such significance that, in accordance with s. 56(7), it cannot be waived by the parties.

The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk, [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case.”

LeVan v. LeVan, 2008 ONCA 388 at 50-51

“In the motion judge’s view, the fact that the appellant “had information that should have caused her to question” the veracity of the husband’s disclosure precluded any chance of successfully setting aside the agreement even if the respondent had, in fact, deliberately made false disclosure. In other words, the motion judge determined that the appellant ought to have known that the value her husband attributed to his date of marriage interest in Renegade was overstated; the appellant was in a position and had information that should have caused her to question the value assigned to Renegade and the respondent’s interest in it.

In making this determination, the motion judge relied on an excerpt from Cheshire & Fifoot.  She wrote at para. 83 of her reasons:

Further, where the recipient spouse has a reason to question the information provided, but does not, no misrepresentation or omission could result in the contract being avoided.  I refer to Cheshire and Fifoot, The Law of Contract, 10th ed., at p. 244, and quoted in Farquar, at para. 35:

Knowledge of the untruth of a representation is a complete bar to relief, since the plaintiff cannot assert that he has been misled by the statement, even if the misstatement was made fraudulently.  In such a case, “the misrepresentation and concealment go for just absolutely nothing…”.

However, the motion judge failed to mention that the authors of Cheshire & Fifoot went on to write:

It must be carefully noticed, however, that relief will not be withheld on this ground except upon clear proof that the plaintiff possessed actual and complete knowledge of the true facts – actual not constructive, complete not fragmentary.  The onus is on the defendant to prove that the plaintiff had unequivocal notice of the truth.  In particular, the mere fact that a party has been afforded an opportunity to investigate and verify a representation does not deprive him of his right to resist specific performance or to sue for rescission.  As Lord Dunedin once said:

No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction.

…

[I]t is no answer to a suit for relief to say that inspection of the contracts or of the lease or of the bills of costs was expressly invited but was not accepted. [Emphasis added.]

Once the motion judge assumed that there had been deliberate material misrepresentations, she erred in shifting the onus to the appellant to inquire as to the veracity of the respondent’s financial disclosure. In the face of a deliberate material misrepresentation, the onus is not appropriately placed on the recipient spouse.  Rather, the burden is on the party disclosing to establish actual knowledge of the falsehood by the recipient.  The respondent could point to no authority for the proposition that the suggested duty of a spouse receiving financial disclosure in a matrimonial case, to investigate or test the veracity of the information provided, overtakes deliberate material non-disclosure by the other spouse.

…

It is one thing to disclose assets and liabilities and their values believing the disclosure to be true.  It is quite another to deliberately misrepresent the values of assets and liabilities knowing them to be untrue.  The law does not entitle a liar to succeed just because the recipient of the falsehoods has not ferreted them out.”:

Virc v. Blair, 2014 ONCA 392 (CanLII) at 55-58, 68

“Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion:  see Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21.  An appellate court should set aside a costs order only if the trial judge has made an error in principle or if the costs award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27.”

Petruzziello v. Albert, 2014 ONCA 393 (CanLII) at 35

“Punitive damages are a censure by society for harsh, reprehensible and malicious conduct.  Their purpose is punishment and deterrence:  Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R. (2d) 278 (Ont. C.A.), leave to appeal to S.C.C. refused [1993] 2 S.C.R. x.  Where tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit.  To do so is to punish twice for the same offence:  Rioux v. Smith (1983), 1983 CanLII 544 (BC CA), 48 B.C.L.R. 126 (C.A.).  Where, however, the civil proceedings establish that the sexual abuse was of longer duration than the criminal conduct framed within the indictment, the sentence does not fully sanction the tortfeasor’s behaviour.  In such instances, punitive damages may be awarded:  B.(A.) v. J.(I.),1991 CanLII 5865 (AB QB), [1991] 5 W.W.R. 748 at 756; B.(P.) v. B. (W.) (1992), 1992 CanLII 7666 (ON SC), 11 O.R. (3d) 161 at 169 (Gen. Div.).”

Fleury v. Fleury, 2001 CanLII 294 (ON CA) at 11

“In Rizzi v. Mavros (2007), 85 O.R. (3d) 40 (C.A.), at para. 16, Gillese J.A. set out the factors to consider on a motion for leave to extend time to file an appeal:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of the delay and explanation for the delay;

(3) any prejudice to the respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case requires it.”

Robertson v. Robertson, 2016 ONCA 356 at 5

“Divorce jurisdiction under s. 3(1) of the Divorce Act depends on one of the spouses being “ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

In my view the leading case on ordinary residence is still Thomson v. Minister of National Revenue (1945), 1946 CanLII 1 (SCC), [1946] S.C.R. 209 (S.C.C.). In that case, the tests enunciated include “residence in the course of the customary mode of life… contrasted with special or occasional or casual residence” (p. 224); and “one is ‘ordinarily resident’ in the place where in the settled routine of his life he regularly, normally or customarily lives” (p. 231). See also MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), p. 112:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community.

Also interesting is Macrae v. Macrae, [1949] P. 397 (Eng. C.A.), in which the following appears:

Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in a particular place up till a particular day. He then cuts the connection he has with that place… and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place.”

Jenkins v. Jenkins, 2000 CanLII 22523 (ON SC) at 12-13

“Motions for distribution of the proceeds of sale of a home are generally uncomplicated and the costs awarded on such motions are modest. I have considered the following costs awards in such motions in the past:

a) In Chapman v. Talib, 2012 ONSC 1980 (CanLII), J. Mackinnon J. stated that he was inclined, subject to written arguments, if submitted, to award $1,500 costs;

b) In Christie v. Christie, 2003 CanLII 1946 (ON SC), Marshman J. awarded nominal costs of $250;

c) In Piekarska v. Piekarski, 2013 ONSC 5064 (CanLII), Fragomeni J. awarded $10,000 costs to the wife in her motion for the release of proceeds of sale, among other issues.

d) In  Wilson v. Heera-Wilson and RBC, 2012 ONSC 5411 (CanLII), Fregeau J. awarded costs of $550;

e) In Prikker v. Vaine, 2010 ONSC 2914 (CanLII), Boswell J. awarded costs of $2,500.”

LeClerc v. LeClerc, 2015 ONSC 2978 (CanLII) at 56

“With respect to the issue that the mother is on legal aid, the Court is governed by s. 46(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, which states that:

The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.

As set out in Ramcharitar v. Ramcharitar, (2002) 2002 CanLII 53246 (ON SC), 62 O.R. (3d) 107 (S.C.), the Court must treat the legally aided client the same as a client who is paying for his/her services.  At para. 25, the Court found:

[T]he party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced.”

J.S.G. v. E.M.G., 2016 ONSC 3038 (CanLII) at 19-20

“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.”

Pecore v. Pecore, [2007] 1 SCR 795 at 24