Month: August 2019

“The discretion to make an unequal division pursuant to s. 5(6) [of the Family Law Act] is strictly limited.  The intent of this section is not to alleviate every situation that may be viewed as unfair or inequitable, as equal sharing should occur in most cases.  The property sharing upon marriage breakdown scheme in the Act is intended to promote predictability and thereby discourage litigation: Ward v. Ward, [2012] O.J. No. 3033 (Ont. C. A.).

The unconscionable threshold in s. 5(6) required to justify an unequal division is exceptionally high because the policy underlying the Act encouraging finality, predictability and certainty and minimizing the exercise of judicial discretion to the extent possible: Serra v. Serra, 2009 ONCA 105 (CanLII), [2009] O.J. No. 432 (Ont. C. A.)

Serra v. Serra, supra, contains a number of principles as to the interpretation of the relevant sections in the Act and the application thereof including:

(a)      post-separation events impacting value is a relevant consideration but not the only circumstance in determining whether equalization would be unconscionable which include but are not limited to fault-based conduct: paras 38, 42, 44, 45, 54 and 55;

(b)      the s. 5(6) threshold of “unconscionability” is exceptionally high and involves circumstances that must shock the conscience of the court.  Circumstances that are unfair, harsh or unjust alone do not meet the unconscionability threshold: para 47;

(c)      unconscionable circumstances has been interpreted as more than hardship, more than unfair, more than inequitable and includes conduct that is harsh and shocking to the conscience of the court and repugnant to anyone sense of justice: para 48;

(d)      the Act establishes equalization as the general rule subject to the s. 56 exception: para 57;

(e)      if the circumstances result in equalization being unconscionable, the court should then determine what equalization payment would be fair, just and equitable: paras 69, 70 and 94;

(f)      the Act is designed to promote the goals of certainty, predictability and finality in the resolution of property matters following separation, based upon the premise in s. 57 that inherent in the marital relationship there is equal contribution, whether financial or otherwise by the spouses to the assumption of joint responsibilities entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in s. 5(6): para 56, 57 and 71; and

(g)      judicial discretion with respect to equalization is severely restricted pursuant to s.s 5(7) and 5(6): para 57.”

Kruschenske v. Kruschenske, 2018 ONSC 4342 (CanLII) at 128-130

“During the trial both parties put enumerable texts and emails into evidence.  These contained many self-serving, prior consistent statements by each of them. Tendered as part of the narrative, in my view, a more rigorous application of the rules of evidence is called for.

The general rule is set out in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4^th ed at paras. 7.1 to 7.3:

There is a general rule against the admission of self-serving evidence to support the credibility of a witness unless his or her credibility has first been made an issue.  The rule is generally applied to prior consistent statements of the witness.  A witness, whether a party or not, may not repeat his or her own previous statements concerning the matter before the court, made to other persons out of court, and may not call other persons to testify to those statements.  Although contradictory statements may be used against a witness, “you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony.”

…

Different rationales have been given for the exclusion of such evidence. The one most commonly relied on is that, due to the risk of fabrication, no person should be allowed to create evidence for him or herself.

…

          Justice Pepall in R. v. B. (D.), added that:

The repetition is self-serving and the source lacks independence. Lastly, given that the evidence will have already been adduced at trial through oral testimony, exclusion of prior consistent statements serves the desirable objective of trial efficiency.

 Moreover, it would take needless trial time in order to deal with a matter that is not really in issue, for it is assumed that the witness is truthful until there is some particular reason for assailing his or her veracity.

More recently the Ontario Court of Appeal decided R. v. B.Z., 2017 ONCA 90 (CanLII), [2017] O.J. No. 512. The Court overturned a conviction for sexual assault based on the trial judge’s use of the complainant’s prior consistent statement.  Shortly after the alleged assault she had sent an anonymous email to the police saying the appellant had sexually assaulted her.  Her description of the assault in the email was consistent with her trial testimony.  The trial judge was held to have erred in relying on the email as corroboration of her trial testimony, a use of the prior consistent statement which was dependent on the truth of its contents.

The Court of Appeal confirmed that a prior consistent statement may be admissible for an evidentiary purpose for which the truth of its contents is irrelevant. For example the fact of sending of an email, the fact of a response to an email, or the fact of a failure to follow-up on an email may be relevant, independently of the truth of the contents of the email.

It may be that a contemporaneous email could be used if necessary to refresh a witness’s testimony, to confirm the date of an event, or by the opposing party for purposes of cross examination.  But the wholesale use of emails and text messages as the platform from which to testify should be curtailed.”

N.H. v. J.H., 2017 ONSC 4867 (CanLII) at 648-652

“Dad submits that the Families [Moving Forward] Program is “treatment” which requires the consent of the participants under section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A:

No treatment without consent

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

There is no evidence that any of the children have refused to participate in the Families Program.  There is no evidence that Dr. Fidler is a “health practitioner” within the meaning the of HCCA.   In any event, I am not satisfied that the Families Program whose purpose is to prevent strained family relationships constitutes “treatment” within the meaning of s. 2 of the HCCA given its focus on treatments that have a “health related purpose”.  Further, given that the Families Program is designed to ameliorate the family relationship and, as such, poses little or no risk of harm to the parties or the children, I find that it would in any event be excluded from the definition of “treatment”.”

E.T. v. L.D.,2017 ONSC 4870 (CanLII) at 50

“A person claiming that monies advanced by a family member is a loan has the onus of proving that it is a loan.

In Turner v. Hawkins, 2002 CanLII 2820 (ON SC), [2002] O.J. No. 4099 (S.C.J.). Kent J. at para. 17, stated that:

[T]he law provides where funds are advanced by family members to a daughter and son-in-law, there is a rebuttable presumption that the advance is a gift. If there is acceptable evidence which establishes on a balance of probabilities that the intent of the parties at the time of advancement was other than to give or receive a gift, then the advance may be found to be a loan. Such evidence is best if it is documentary, next best if it is independent and of the least assistance to the court if it is only the oral evidence of the involved and interested parties testifying on the basis of their recollection. This is particularly so, if anything in the evidence of the parties reflects unfavourable upon their credibility or reliability.”

Pitts v. Pitts,2018 ONSC 4686 (CanLII) at 22-23

I reject the husband’s submissions that an award of interim spousal support should be determined strictly on the basis of need as per this Court’s decision in Lemieux v. Lemieux, [2000] O. J. No. 2512 (QL) (S.C.J.). I note that in Lemieux v Lemieux, supra, Justice Blishen was provided limited evidence on which to resolve numerous legal and factual issues raised by the parties with respect to the needs and the abilities of the parties. In the case before me, I was supplied with ample evidence that the husband was capable of paying spousal support from at least June 14, 2000, in addition to child support in excess of the amounts he has voluntarily paid both before and since the order of Justice Polowin. I rely upon the reasoning of the Court in Cradduck v Cradduck (2000), 2000 CanLII 22433 (ON SC), 11 R.F.L. (5^th) 54 (Ont. S C.J.)  as support for the proposition that the traditional approach to interim support based on established need and ability to pay is not always an approach that is fair and just in the circumstances. I agree with the dicta in that case that, in circumstances such as these where ability to pay is not an issue, the parties should have the financial ability to enjoy a similar lifestyle regardless of whether they do in fact choose to enjoy such a lifestyle. I would add that the Supreme Court of Canada concluded in Bracklow v Bracklow (1999), 169 O.L.R. (3d) 577 (S.C.C.) that need was but one factor to consider in the award of spousal support under the Divorce Act, supra.”

Lakhani v. Lakhani, 2003 CanLII 2161 (ON SC) at 15

“In Chutter v. Chutter, 2008 BCCA 507 (CanLII), 301 D.L.R. (4th) 297, held, at paras. 50–51:

Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420], at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities will often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39)….

In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse”. [Emphasis in original.]

         Majeed v. Chaudry, 2018 ONSC 4758 (CanLII) at 61

“The Supreme Court of Canada has set out the purpose of the power to award interim disbursements in the civil context as follows in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371 at para 31:

Concerns about access to justice and the desirability of mitigating severe inequality between litigants also feature prominently in the rare cases where interim costs are awarded. An award of costs of this nature forestalls the danger that a meritorious legal argument will be prevented from going forward merely because a party lacks the financial resources to proceed.

In Okanagan, supra, the Supreme Court set out the following conditions which must be satisfied for an Order for interim fees and disbursements to be granted:

1)  The party seeking the Order must be impecunious to the extent that, without such an Order, the party would be deprived of the opportunity to proceed with the case;

2)  The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and

3)  There must be special circumstances sufficient to satisfy the Court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

Okanagan, supra at 36.

Rule 24(12) of the Family Law Rules [now Rule 24(18)] provides authority for the Court to order interim disbursements in matrimonial litigation. That subrule reads as follows:

(12) PAYMENT OF EXPENSES – The Court may make an Order that a party pay an amount of money to another party to cover all or part of the expenses of a party or carrying on the case, including a lawyer’s fees.

In Agresti v. Hatcher, 2004 CarswellOnt 917, Justice O’Neill of the Ontario Superior Court noted that the test for obtaining payment of expenses under Rule 24(12), in matrimonial litigation, may be “easier” to meet than the test set out by the Supreme Court. Justice O’Neill stated that the following additional principles, which modify the third leg of the Okanagan test, have been developed with respect to the interpretation of Rule 24(12):

1)  The levelling of the playing field; and

2)  The exercising of the Court’s discretion to ensure that “all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial.”

Agresti, supra at 17, 18

An Order for interim fees and disbursements is a discretionary remedy. See Okanagan, supra at 31, 32.

A prima facie case does not mean that a claimant has to prove his or her case prior to obtaining an Order for interim fees and disbursements. As noted in Romanelli v. Romanelli, 2017 CarswellOnt 2724 (Ont. S.C.J.), this would be “too high a requirement…. It must be a case, which, based on the facts presented in the Affidavits, makes sense to prosecute… Would counsel advise a client of modest means to proceed with the claim?” See paragraph 24. As framed in Stuart v. Stuart, 2001 CanLII 28261 (ON SC), 2001 CarswellOnt 4586 at 13: “The claim or claims being advanced must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.”

It appears that the previous requirement that interim disbursements be limited to “exceptional cases” has been modified by Rule 24(12). Thus in Stuart, supra, for example, cited in Agresti, supra, Justice Rogers includes “exceptional circumstances” as one of the requirements under the heading “Former Case Law”, and then states as follows regarding the test under Rule 24(12):

The Court interprets the new Family Law Rules to require the exercise of discretion in Rule 24(12) on a less stringent basis than the cases that call for such only in exceptional circumstances. The discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers or possibly go to trial. Simply described, the award should be made to level the playing field. (Emphasis added)  See paragraph 9.

See also Romanelli, supra at 15, 16, where Justice McDermot stated:

It appears that in family law cases, the issue of “exceptional circumstances” is secondary to the goal of levelling the playing field where one party has an economic disadvantage, the basis most often cited in the caselaw to justify an Order under Rule 24(12).

This is echoed in Rea v. Rea, 2016 CarswellOnt 509, in which the Court cited Stuart, supra, commenting that it did not see the requirement of “exceptional circumstances” to be “strictly required by the case law in the matrimonial context.” See paragraphs 14 and 25.

The moving party must show that the award of interim fees and disbursements is “necessary”. Thus in Agresti, supra, Justice O’Neill stated, citing Stuart, supra:

Certainly the proof of the necessity of the interim disbursements would be critical to a successful claim. The claimant clearly must demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the service of said expert. See paragraph 11.

The case law also requires that a party seeking interim disbursements particularize her claim, setting out what, specifically, the requested sums are intended to cover. In Romanelli supra, Justice McDermot stated:

The case law appears to confirm that a Motion for interim fees and disbursements must contain proper evidence of the reason for the fees and disbursements and the estimated cost of those disbursements… There must be a purpose behind the fees and disbursements and not just a fishing expedition. See paragraph 44.”

         Green v. Whyte, 2017 ONSC 4760 (CanLII) at 15-25

“A court should be loath to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act:  Miglin, at para. 46.

In Miglin, the following is stated regarding the discretion of trial judges to substitute their own view of what is required:

45 … The fact that judicial and societal understandings of spousal support have changed since the release of Pelech [v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801] and the adoption of admittedly competing factors in s. 15.2(6) does not lead to an unfettered discretion on the part of trial judges to substitute their own view of what is required for what the parties considered mutually acceptable.  In this respect, we agree in principle with Wilson J.’s comments in Pelech, supra, at p. 853:

Where parties, instead of resorting to litigation, have acted in a mature and responsible fashion to settle their financial affairs in a final way and their settlement is not vulnerable to attack on any other basis, it should not, in my view, be undermined by courts concluding with the benefit of hindsight that they should have done it differently.”

Shelley v. Shelley, 2018 ONSC 4516 (CanLII) at 217-218

“It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. Nardea v. Nardea(heard March 5, 1998); MacLeod v. MacLeod, [1998] O.J. No. 3076  (Ont. Gen. Div.); Reyes v. Rollo, 2001 CarswellOnt 4541 (Ont. S.C.J.).”

Meade v. Meade, 2002 CanLII 2806 (ON SC) at 81

“Subsection 5(5) of the Change of Name Act states that the Court shall determine an application to change the name of a child in accordance with the best interests of the child.  The change of name is not an administrative act.  It is not to be done merely for convenience.  The onus is on the parent wishing the name change to demonstrate that the child will benefit from the change: Herniman v. Woltz, 1996 CanLII 8087 (ON SC), [1996] O.J. No. 1083, 22 R.F.L. (4^th) 232 at para. 7.  I would adopt the factors set out in Wintermute v. O’Sullivan, [1985] A.J. No. 21, 48 R.F.L. (2d) 275 (Alta.Q.B.) at para. 7:

The factors to which courts should have regard in cases of this kind are set out in Davies, Family Law in Canada (1984), at p. 32:

(a) The welfare of the child is the paramount consideration.

(b) The short and long term effects of any change in the child’s surname.

(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

(f) The effect of frequent or random changes of name.”

 Cuthbert v. Nolis, 2018 ONSC 4643 (CanLII) at 120