Month: December 2019

“For good reason, judges are reluctant, if not loath, to make an order as to costs when the parties settle the merits of their dispute:  Blank v. Micallef, 2009 CanLII 60668 (ON SC), 2009 CanLII 60668 (Ont. S.C.J.) at para. 11.  Any attempt to determine a “winner” or “loser” in a settlement is, in most cases, complex if not impossible.

In Davis v. Davis, 2004 CanLII 19156 (ON SC), 2004 CanLII 19156 (Ont. S.C.J.) Perkins J. observed that a party is only successful within the meaning of rule 24 of the Family Law Rules, if “declared” such by “a judge, after argument.” (para. 3)

Perkins J. was not stating an inviolate rule. There may be instances where settlement is a clear capitulation by one party in favour of another.”

Page v. Desabrais, 2012 ONSC 6875 (CanLII) at 28-30

“The principles of contract interpretation are not in issue on this appeal.  In interpreting a contract, effect must first be given to the intention of the parties. The principles are explained in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888:

[T]he normal rules of construction lead a court to search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intention of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an interpretation of a policy which promotes a sensible commercial result. (p. 901)

In B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12 the Supreme Court provides further guidance:

It is a cardinal rule of the construction of contracts that the various parts of the contract are to be interpreted in the context of the intentions of the parties as evident from the contract as a whole (pp.23-24)

Applying that principle to domestic contracts, a court must search for an interpretation that is in accordance with the parties’ intention at the time they entered into the contract. Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to discern the likely intention of the parties.”

MacDougall v. MacDougall, 2005 CanLII 44676 (ON CA) at 20-22

“The principles of statutory interpretation are well known. The words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the enacting legislative body: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 S.C.R. 559, at para. 64.”

         Cadieux v. Cloutier, 2018 ONCA 903 (CanLII) at 109

“To receive an order for spousal support a spouse must first establish that he or she is entitled to spousal support. Entitlement is a threshold issue which can be established in three ways. First is the compensatory claim. In this claim the potential recipient must demonstrate that he or she has suffered economic loss as a result of roles adopted during the marriage or because the recipient conferred some economic benefit on the payor without compensation. Second is the non-compensatory claim. In this claim the recipient must establish that he or she has suffered economic hardship as a result of the marriage break down. The third way is on the basis of a contract between the parties: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at paragraphs 41, 43, 44 and 49.

“[T]he mere passage of time itself does not constitute a material change in circumstances in respect of a spousal obligation”: Hess v. Hamilton, 2018 ONSC 661 (CanLII) at para. 100. In circumstances where the original basis for entitlement was compensation, repartnering is unlikely to constitute a material change in circumstances: Walsh v. Davidson, 2016 ONSC 7318 (CanLII) at para. 19. This is because compensatory support is intended to compensate for economic loss or disadvantage caused by roles adopted during the relationship. This is a retrospective analysis: see Wegler v. Wegler, 2012 ONSC 5982 (CanLII). The focus of the analysis is on where the recipient would have been if they had entered or remained in the labour force.

Where entitlement is established on the basis of economic hardship, a repartnering is likely to constitute a material change in circumstances: Strifler v. Strifler, 2014 ONCJ 69 (CanLII) at para. 82. This is because a needs-based entitlement is intended to address needs that have arisen as a result of the breakdown of the relationship: see Wegler at para. 92.”

Cassidy v. Cassidy, 2018 ONSC 7222 (CanLII) at 24-26

“Sections 1(1) of the Statute of Frauds states:

Every estate or interest of freehold and every uncertain interest … in … lands … shall be made or created by a writing signed by the parties making or creating the same, or their agents thereunto lawfully authorized in writing, and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect. [Emphasis added.]

In the face of this provision, the motion judge was correct to hold that a verbal representation that Shakiba would re-convey her interest in the property if she left the marriage could create nothing more than an estate at will and could therefore be terminated at the discretion of Shakiba’s father (or, presumably, of Shakiba).

Moreover, one of the purposes of the writing requirement in s. 1(1) of the Statute of Frauds is to avoid the very kind of difficulty that has arisen here. As the Alberta Court of Appeal observed in Austie v. Aksnowicz, 1999 ABCA 56 (CanLII), [1999] 10 W.W.R. 713, at para. 52, leave to appeal refused, [1999] S.C.C.A. No. 172, the “whole point of the Statute of Frauds is to provide written corroboration of a disputed oral deal.”

Accepting for the purposes of this discussion that the marriage contract is admitted as fresh evidence, the dowry provision in it states:

Dowry: One volume of Holy Quran, one rock candy, one mirror and two chandeliers, one white rose, and three parts [out of six parts] of a residential house at: 4 Leona Ave., Ottawa, Ontario. [Emphasis added.]

The dowry provision does not disclose, either expressly or by necessary implication, what the appellants seek to establish as the additional essential term of the transfer by Deed of Gift – namely, the term or condition calling for re-conveyance of the property in certain circumstances. That the property is referred to as part of the bride’s dowry and the dowry is part of the marriage contract, and that there may be general Iranian cultural norms and traditions relating to such marriages, is not enough, in my opinion.

Even if a marriage is entered into in the context of the cultural norms and traditions of a couple and their families, the details of how those cultural norms and traditions are to apply will inevitably vary from marriage to marriage, thus rendering the terms of the conveyance in question difficult to ascertain in myriad individual cases. It would be inconsistent with the purpose of the Statute of Frauds and with the valid public policy need for certainty in real property transactions to imply a term or condition into the Deed of Gift based on a general cultural norm or tradition and the mere reference to the property in question under the heading “dowry” in the marriage contract.

A wide variety of cultures, and their norms and traditions, form an integral part of the Canadian mosaic. They cannot simply be imported into a transaction involving the transfer of real property by reference to a concept such as “dowry”, which forms a part of a particular culture or tradition. If families of the bride and groom in circumstances such as these wish to incorporate such a concept into the transfer of property to the bride as part of her dowry, it is easy enough for them to say with clarity in the Deed of Gift expressly what it is that they intend with respect to the terms of the transfer. The parties did not do so in this case.

If ambiguous references were enough to incorporate cultural practices and traditions into a real property transaction, as the appellants seek to do here, there would be a danger of underlying expectations and motivations arising from the cultural context easily becoming conflated with intention. It is the parties’ intention and their actual agreement that must be ascertained. Was the transaction a gift and, if so, what were the terms and conditions, if any, attached to that gift?

Finally, even if the appellant parents had an underlying motivation for the transfer and some unarticulated “expectation” in relation to it, arising out of their Iranian culture and tradition, a valid gift, once made, cannot be revoked or retracted and the failure of a donee to fulfill a donor’s expectations does not vitiate a valid gift: see Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 81 D.L.R. (4th) 194 (Ont. C.A.), at pp. 200-201, leave to appeal refused, [1991] S.C.C.A. No. 306. The Court also observed in the Berdette case, at p. 199, that it is not “the task of the court … to correct a possible mistake of judgment on the appellant’s part, but to ascertain the appellant’s intention at the time of the transactions with which we are concerned.” That is what the motion judge did here and I agree with his analysis.”

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII) at 28-36