Month: February 2020

“Section 18(2) of the Divorce Act provides that a court may make a provisional variation order in respect of a support order where:

(a) The respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) In the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [Emphasis added]

In Dent v. Flynn (2005), 2005 CanLII 14317 (ON SC), 15 R.F.L. (6th) 126 (Ont. S.C.J.) at para. 21, Ferrier J. summarized the requirements to be met before a provisional order may be made, as set out in Albinet v. Albinet, 2003 MBCA 22 (CanLII), 33 R.F.L. (5^th) 275, as follows:

(1) The respondent resides in a different province than the applicant;

(2) The respondent does not accept the jurisdiction of the court where the applicant resides;

(3) Both parties do not consent to proceed under s. 17.1 of the Divorce Act; and

(4) The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/confirmation procedure.

Here, the first criterion is met in that the parties reside in different provinces. I find that the fourth criterion is established in that Campbell J. was satisfied that the matter could be adequately determined through the two-stage process involving the issuance in the rendering court of a provisional order and its consideration for confirmation in the receiving court.

However, the record forwarded from the issuing court does not contain any evidence that the Respondent did not accept the jurisdiction of the Nova Scotia Court. Indeed, there is no evidence that she was served with process emanating from the Nova Scotia Court. Further, there is no evidence that the Respondent did not consent to the application of section 17.1 of the Divorce Act, which provides as follows:

Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

The party requesting the provisional order bears the onus of establishing that all four of the requirements of section 18(2) of the Divorce Act have been satisfied: Albinet; Wolch v. Wolch, 2006 MBCA 43 (CanLII), 26 R.F.L. (6th) 239 at paras. 14-15. Where all four requirements are not established, the provisional order cannot be rendered, and cannot be confirmed: Dent v. Flynn at para. 27.”

         Davidson v. Davidson, 2019 ONSC 6727 (CanLII) at 54-58

“There is no general discretion under the Family Law Act to redistribute property or alter ownership unless it is to satisfy an equalization payment: Buttar v. Buttar, [2013] O.J. No. 3725 (Ont. C.A.) at para. 53.”

Rebiere v. Rebiere, 2015 ONSC 1324 (CanLII) at 34

“Finding that the parties maintained two separate residences in Toronto is not the end of the inquiry as to whether they lived together.  In considering the flexible approach put forth by the Supreme Court of Canada in M. v. H., and in considering whether maintaining separate residences eliminates a party’s ability to be considered a spouse, Justice Karakatsanis, in Campbell v. Szoke (referred to above) [2003 CanLII 2291 (ONSC)] states [at para 52]:

The fact that the parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children: Thauevette v. Maylon (1996), 1996 CanLII 8090 (ON SC), 23 R.F.L. (4^th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under section 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent, [2000] O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate, [1993] O.J. no. 1731 at para. 21 (Ont. Gen. Div.).”

         Climans v. Latner, 2019 ONSC 1311 (CanLII) at 122

“The test for dismissing an appeal for delay in civil actions was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA (CanLII), at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

An added element in family cases involving children is the effect of delay on the best interests of the child. Stability and finality in custody issues are very important for children, especially younger children, and this too must be taken into account is assessing delay:  see D.G. v. A.F, 2014 ONCA 436 (CanLII), at paras. 17, 33-34, citing the Children’s Law Reform Act, R.S.O. 1990 c. C.12, s. 19(a), and Van de Perre v. Edwards, 2001 SCC 60 (CanLII), [2001] 2 S.C.R. 1014, at para. 13.”

            Children’s Aid Society of Toronto v. L.T., 2016 ONCA 146 (CanLII) at 6-7

“The applicant submits that the Agreement itself is unconscionable. He contends that the agreement is completely one-sided and provides absolutely nothing to the applicant after 16 years of marriage.

In the recent decision of Toscano v. Toscano, 2015 ONSC 487 (CanLII), 57 R.F.L. (7^th) 234, Blishen J. provides a comprehensive summary of the issue of unconscionability at paras. 63-66 and 68 of her decision:

[63] Although in her Application Ms. Toscano argued that the consequences of the marriage contract were unconscionable, in general the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. It is the circumstances at the time of the drafting and signing of the contract which must be examined, not the results, under this criterion. There is an exception for a spousal support waiver which can be set aside if it results in unconscionable circumstances, pursuant to s. 33(4) of the FLA.

[64] Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context (Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295, at para. 43 [Brandsema]). The question to be asked is whether there were “any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation” (ibid, at para. 44).

[65] Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of the mind, economically weaker or situationally weaker. Vulnerability may also arise due to a special relationship of trust and confidence (see Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at para. 33). However, the “mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties” (Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para. 82, [Miglin]).

[66]  In Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 at para. 12 (Ont. C.A.), the Ontario Court of Appeal states the question to be answered in determining unconscionability is whether there was inequality between the parties, or a preying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of the vulnerable. At para. 13 the Court notes it is: “not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability”.

[…]

[68]  In Miglin at para. 83 the Supreme Court of Canada notes that the emotional stress from separation or divorce does not give rise to the presumption that a party is incapable of assenting to a binding agreement…”

Freire v. Freire, 2017 ONSC 1188 (CanLII) at 38-39

“This motion is brought under Rule 60.11 of the Rules of Civil Procedure R.R.O. 1990, Reg 194. The test for civil contempt was set out in Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 (“Carey”):

a.  The order alleged to have been breached states clearly and unequivocally what should and should not have been done;

b.  The party alleged to have breached the order had actual knowledge of it; and,

c.  The party allegedly in breach intentionally failed to do the act the order compels.

The standard of proof to establish civil contempt is “beyond a reasonable doubt,” (Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007) 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27).

Contempt proceedings are bifurcated so that if a finding of contempt is made, a second sentencing stage for the party in contempt will be appropriate (Carey, at para. 18).

In Carey, Cromwell J. described a court’s contempt power in civil litigation settings (at para. 36),

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders …As this Court has affirmed, contempt of court cannot be reduced to a mere means of enforcing judgments” … Rather, it should be used “cautiously and with great restraint”: … It is an enforcement power of last rather than first resort.

Cromwell J. confirmed that a mental element or intent is not relevant to the initial determination of whether a party is in contempt, though it may play a role in the second stage of a contempt proceeding, dealing with the sentencing of a party in contempt.

Cromwell J. also confirmed that contempt remains available as a remedy to address non-compliance with a court order even where a party is no longer able to purge the contempt, either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order,  However, in Carey, the Court considered a context where the party’s own actions made compliance with the court order impossible (in that case, having expended funds that were to be held in trust pursuant to a Mareva order).”

Chaitas v. Greasley, 2019 ONSC 1158 (CanLII) at 7-12

“After completing his review of the law of the appointment and role of amicus, the trial judge set out his own summary of the features of amicus curiae in paragraph 43 of his decision, a summary he describes as extracted primarily from the Supreme Court of Canada and Provincial and Federal appellate courts:

(a)    The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b)    Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c)    It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d)    There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no “one size fits all” standard.

(e)   The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f)     The judge decides the terms and conditions of the role, which may vary widely.

(g)    Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h)    There is no solicitor-client privilege between an amicus and a party.

(i)     Only the judge can dismiss an amicus, not the party.

(j)     An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k)   Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.”

Morwald-Benevides v. Benevides, 2019 ONSC 1136 (CanLII) at 20

“In my view, restricting the money remedy to a fee-for-services calculation is inappropriate for four reasons.  First, it fails to reflect the reality of the lives of many domestic partners.  Second, it is inconsistent with the inherent flexibility of unjust enrichment.  Third, it ignores the historical basis of quantum meruit claims.  Finally, it is not mandated by the Court’s judgment in Peter (v. Beblow). For those reasons, this remedial dichotomy should be rejected. The discussion which follows is concerned only with the quantification of a monetary remedy for unjust enrichment; the law relating to when a proprietary remedy should be granted is well established and remains unchanged.

The remedial dichotomy would be appropriate if, in fact, the bases of all domestic unjust enrichment claims fit into only two categories — those where the enrichment consists of the provision of unpaid services, and those where it consists of an unrecognized contribution to the acquisition, improvement, maintenance or preservation of specific property.  To be sure, those two bases for unjust enrichment claims exist.  However, all unjust enrichment cases cannot be neatly divided into these two categories.

At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts.  The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy.  However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the “value received” and the “value surviving”, as McLachlin J. put it in Peter, at pp. 1000-1001. Thus, where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.

There is nothing new about the notion of a joint family venture in which both parties contribute to their overall accumulation of wealth.  It was recognition of this reality that contributed to comprehensive matrimonial property legislative reform in the late 1970s and early 1980s.  As the Court put it in Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] 2 S.C.R. 795, at p. 807 (in relation to Nova Scotia’s Matrimonial Property Act), “. . . the Act supports the equality of both parties to a marriage and recognizes the joint contribution of the spouses, be it financial or otherwise, to that enterprise. . . . The Act is accordingly remedial in nature.  It was designed to alleviate the inequities of the past when the contribution made by women to the economic survival and growth of the family was not recognized” (emphasis added).

Unlike much matrimonial property legislation, the law of unjust enrichment does not mandate a presumption of equal sharing.  However, the law of unjust enrichment can and should respond to the social reality identified by the legislature that many domestic relationships are more realistically viewed as a joint venture to which the parties jointly contribute.”

Kerr v. Baranow, [2011] 1 SCR 269, 2011 SCC 10 (CanLII) at 58-62

“In Elisabeth’s evidence there was minimal recognition of the importance of Freya having a relationship with her father, Josiah.

Because of the timing of this motion, being brought immediately after the issuance of the application, there was no opportunity for Josiah to call evidence from an expert on child development and attachment, or to obtain a s. 30 assessment under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, to assess Freya’s needs and the ability and willingness of Elisabeth and Josiah to satisfy those needs.

The courts however have recognized that children of Freya’s age [1 year, 9 months old] are at the attachment phase of development and that this is when children begin to form attachments to parents and caregivers. Children who are separated from one parent for extended periods of time at this age may not be capable of sustaining a meaningful relationship with that parent thereafter in addition to sustaining other adverse impacts.  Young children, such as Freya, need frequent and meaningful contact with both parents to develop meaningful relationships with both: Prasad v. Lee (2008), 2008 CanLII 24545 (ON SC), 53 R.F.L. (6th) 194 (Ont. S.C.) at paras. 48-49.”

            Panduro v. Davis, 2019 ONSC 1117 (CanLII) at 27-29

“The material filed and the submissions of counsel raise these broad issues:

a)  Can money collected under section 19 of the Family Responsibility and Support Arrears Act (the Act) be applied towards costs?

…

Section 19 of the Act is clear and unambiguous.  Money collected under Section 19 of the Act shall be applied only towards child and/or spousal support arrears.  Costs can be collected as support under Section 19 of the Act only in circumstances where a Court Order authorizes the collection of the costs as support as defined in subsection 1(1) of the Act.  See G. (W.) v G. (K.) [2015] W.D.F.L. 5811; de Somer v Martin 2012 ONCA 908 (CanLII), 22 R.F.L. (7th) 297.

Ont. Reg. 454/07, s4 of the Act recommends the following standard term in circumstances where a Court intends a Cost order to be collected as support:

“Costs are fixed in the amount of $[insert amount], of which [insert amount] is related to support and is enforceable as support by the Director, Family Responsibility Office.”

         Henderson v. Henderson, 2017 ONSC 1340 (CanLII) at 6-8