“An informed person viewing the matter realistically and practically – and having thought the matter through – could not possibly conclude that an arbitrator is biased simply because he or she rules on a disputed matter against one party, even if that occurs on more than one occasions. Ruling on a disputed issue is the essence of the arbitrator’s role.”
Month: August 2019
August 29, 2019 – Abuse of Process
“Further, the appellants too narrowly construe the doctrine of abuse of process. This doctrine is flexible and unencumbered by the specific requirements of res judicata or issue estoppel: Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), [2013] 2 S.C.R. 227, at para 40; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2002] 3 S.C.R. 77, at para. 42. Where a precondition for issue estoppel has not been met, such as mutuality of parties, courts have turned to the doctrine of abuse of process to preclude re-litigation of the same issue: C.U.P.E., at para. 37. While the doctrine is similar to issue estoppel in that it can bar litigation of legal and factual issues “that are necessarily bound up with the determination of” an issue in the prior proceeding, abuse of process also applies where issues “could have been determined”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460, at para. 54; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633 (CanLII), 363 D.L.R. (4th) 470, at para. 13; McQuillan v. Native Inter-Tribal Housing Co-Operative Inc. (1998), 1998 CanLII 6408 (ON CA), 42 O.R. (3d) 46 (C.A.), at pp. 50 – 51. As such, the doctrine of abuse of process is broader than res judicata and issue estoppel and applies to bar litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37.”
August 28, 2019 – Post-Separation Increases In Income
“The issue of post-separation increases in income was canvassed by Justice Chappel in Thomson v. Thomson, 2013 ONSC 5500 (CanLII), recently relied upon in Fox v. Fox, 2017 ONSC 6509 (CanLII) per Justice Mossip. Justice Chappel emphasized that the treatment of post-separation increases in income is ultimately a matter of discretion for the Court, and summarized the principles that guide the Court in exercising its discretion as follows:
a) A spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases;
b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship;
c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income;
d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case;
e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation;
f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career;
g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.
h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.
i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.
j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase;
k) Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult;
l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post-separation income increases;
m) Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.”
Easton v. Coxhead, 2018 ONSC 4784 (CanLII) at 106
August 27, 2019 – Setting Aside Default Judgment
“It is clear from Page-Cole v. Cole [2009] O.J. No. 4386 that a Motion to set aside a default judgment obtained in a family law proceeding must by analogy meet the requirements of Rule 19.08 of the Rules of Civil Procedure as is permitted by Rule 1 (7) of the Family Law Rules Diciaula v. Mastrogiacomo (2006) 2006 CanLII 11928 (ON SCDC), 25 C.P.C. (6th) 107. The moving party must meet three criteria:
1) The motion to set aside a default judgment should be made as soon as possible after the party becomes aware of the judgment;
2) The material must set out the circumstances under which the default arose that give a plausible explanation for the default; and
3) The material must set forth facts to support the conclusion that there is at least an arguable case to present on its merits.”
August 26, 2019 – Standard Of Review in Child Protection Cases
“A deferential standard of review is applicable in family law cases in the context of a child welfare proceeding: C. (G.C.) v. New Brunswick (Minister of Health and Community Services) [1988] 1 S.C.R. No. 1073 and Children’s Aid Society of Toronto v. G.S. [2012] ONCA 783”
Catholic Children’s Aid Society of Toronto v. J.B., 2014 ONCA 609 (CanLII) at 8
August 23, 2019 – Conceptual Bases For Spousal Support
“In Bracklow, the Supreme Court of Canada found that there are “three different conceptual bases for spousal support obligations – contractual, compensatory and non-compensatory” (paragraph 37). At paragraph 41, in reference to s.15.2(6) of the Divorce Act, the Court stated:
“[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense.
Further, at paragraph 43, the court stated:
But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough.”
August 22, 2019 – Validity Orders
“The parties appear today seeking a validity Order declaring their marriage to be valid.
On July 14, 2018 the parties believed they were married after obtaining the requisite Marriage Licence.
Unbeknownst to them, the ceremony was performed by a friend whom they believed to be registered under the Marriage Act to perform marriages in Ontario: unfortunately he, himself, was under the mistaken belief that he was authorized to perform a marriage ceremony; having taken an online course that proved to be without foundation. In other words, the course was bogus.
The parties are unable to register their marriage as it currently stands.
Under section 31 of the Marriage Act, R.S.O. 1990, c. M.3 as amended, the court is authorized to deem a marriage as being valid.
The criteria are:
1. The marriage was solemnized in good faith.
2. The marriage was intended to be in compliance with the legislation.
3. Neither party was under a legal disqualification to contract marriage.
4. The parties have lived together and cohabited as a married couple after solemnization.
I have satisfied myself that all criteria have been met.
Unlike most litigants appearing before me seeking separation and rights flowing therefrom, these parties appear for opposite and valid reasons.
I therefore deem their marriage to be valid by the power vested in me by the Government of Canada and pursuant to section 31 of the Marriage Act.
They are hereby ordered to live happy together forever.”
August 21, 2019 – Title To Be Determined Prior to Equalization
“For married spouses, the [Family Law] Act provides a comprehensive scheme for resolving financial issues following marriage breakdown. Section 10(1) of the Act authorizes a court to determine questions of title between spouses. This includes considering whether legal title actually reflects beneficial ownership. As indicated by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 118 O.R. (3d) 522, at para. 47, citing Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, “[b]efore property can be equalized under the [Act], a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.” In other words, property entitlements must be determined before they can be equalized.
August 20, 2019 – Limiting Duration & Quantum of Spousal Support
“Limits on the quantum or duration of spousal support are sometimes an appropriate way to address the situation of a dependent spouse who may not make reasonable efforts toward self-sufficiency without such limits. See Bildy v. Bildy (1997), 1997 CanLII 12240 (ON SC), 28 R.F.L. (4th) 315 (Ont. Gen. Div.); (1999), 1999 CanLII 9319 (ON CA), 42 O.R. (3d) 737 (Ont. C.A.) and Purcell v. Purcell (1996), 1996 CanLII 1355 (ON CA), 26 R.F.L. (4th) 267 (Ont. C.A.). As a matter of law, such limits are not necessary. For example, in Choquette v. Choquette (1998), 1998 CanLII 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.), the husband appealed a decision awarding indefinite periodic support. The Court of Appeal held that:
…the husband’s concerns that the wife may not become self-sufficient as quickly as anticipated by the trial judge are better dealt with on a variation application brought in that eventuality. The non-happening of an anticipated event can constitute a material change in circumstances within the meaning of the Divorce Act: Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4th) 418 (Ont. C.A.). Counsel for the wife conceded that proof of malingering by the wife could be the basis for a variation application. (p.386)
Limits on the quantum or duration of support are nevertheless an effective way of emphasizing the support recipient’s obligation under section 15.2(6)(d) of the Divorce Act.”
August 19, 2019 – Unjust Enrichment
“The law on unjust enrichment arising out of the relationship between unmarried spouses has been comprehensively addressed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 S.C.C. 10. In Elkaim v. Markina 2011 ONSC 2586 (CanLII), at para. 9, Sachs J. summarized the framework set out in Kerr to assess property claims in common law relationships:
The law surrounding the resolution of property claims in common law relationships has recently been clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII). In that case the Court found that the “common intention” approach to resulting trust has no “useful role to play” in the resolution of property claims by domestic partners on the breakdown of their relationships: at para. 29. The Court also found that the role of the parties’ reasonable or legitimate expectations in the unjust enrichment analysis was a limited one. Rather, the framework to be used can be summarized as follows:
(a) First, the court must determine if there has been an unjust enrichment.
In doing so, the questions are:
• Has the defendant been enriched?
• Has the plaintiff suffered a deprivation?
• Is there “no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff?”: at para. 40.
It is in the consideration of the third stage, “if the case falls outside the existing categories” of juristic reasons for the retention of the benefit, then the court may consider looking to “the reasonable expectation of the parties and public policy considerations to assess…whether particular enrichments are unjust”: at paras.43-44.
(b) If the court finds that there is a basis for the unjust enrichment claim the court must then turn its mind to the question of what remedy is appropriate to “reverse the unjustified enrichment.” This may include either a “monetary or proprietary remedy”: at para. 46.
(c) On the question of remedy, the first remedy to consider is “always a monetary award. In most cases it will be sufficient to remedy the unjust enrichment”: para. 47.
(d) A proprietary award may be required if:
(i) the plaintiff has demonstrated a sufficiently substantial and direct link between his or her contributions and the property, in which case “a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”: at para 50; and,
(ii) the plaintiff has established that a monetary award would be insufficient in the circumstances. This involves considering the probability of recovery of such an award and considering whether “there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights”: at para. 52.
(e) If a monetary award is appropriate, the question then becomes how to quantify that award.
• To do so, the court must first characterize the nature of the unjust enrichment claim. Is the basis of the “unjust enrichment…the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the plaintiff’s contributions to the joint venture and the accumulation of wealth”: at para. 81.
• If so, “a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions”: at para. 87.
(f) To determine whether a joint family venture exists, the court should have regard to the following factors as set out in Kerr v. Baranow at paras. 87-99:
(i) Mutual Effort: Did the parties pool their efforts and work together towards common goals?
(ii) Economic Integration: This involves considering how extensively the parties’ finances were integrated.
(iii) Actual Intent: What did the parties actually intend? Did they intend to have their lives economically intertwined or did they make the choice not to? This intent may be expressed or inferred from conduct.
(iv) Priority of the Family: This factor asks the court to consider to what extent the parties gave priority to the family in their decision making. “A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family.”
If the monetary award should not be quantified on a “joint family venture” basis, then the court should consider a “fee for service” or quantum meruit calculation. It is generally at this stage that the court will consider whether the claim should be discounted because of a mutual conferral of benefits.
At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit that justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at para. 788.”