Month: February 2020

“The Divorce Act s. 3(1) provides: “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceedings.”

The Divorce Act does not define “ordinarily resident”. In Thomson v. M.N.R., (1946) CanLII 1 (S.C.C.) the Supreme Court of Canada defined “ordinarily resident” for purposes of an income tax matter as follows: “one is ordinarily resident in the place where in the settled routine of his life, he regularly, normally, customarily lives.”

In MacPherson v. MacPherson, (1977), 1976 CanLII 854 (ON CA), 13 O.R. (2d) 233 (C.A.), the Ontario Court of Appeal stated that in determining whether a party was “ordinarily resident” the court must consider “where the Petitioner regularly, normally or customarily lived in that year.”

It is clear that the Respondent did not live only in Toronto in the year immediately preceding April 17, 2018. The regular season schedule for the Raptors shows that in most months between October 2017 and April 2018, the team played home and away games about equally. The Applicant states he played 40 games in Toronto in that season. He states that he was based in Toronto and travelled for his employment. The fact that a person travels for their employment does not mean that they are not “ordinarily resident” in the place they return to when their work travel is completed.

…

In Knowles v. Lindstrom, 2014 ONCA 116 (CanLII), 118 O.R. (3d) 763, Doherty J.A. held that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time. The parties in Knowles lived in Florida, but spent significant time in Muskoka and Toronto. Doherty J.A. agreed with the motion judge below that “the parties had set up a pattern that included residence in Ontario… on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence.’”

In Roberts v. Bedard, 2015 ONSC 7918 (CanLII), the court considered the ordinary residence of a former professional baseball player and coach who owned property in Ontario and lived there in the off-season. He had lived and worked in various U.S. cities over the years. Mackinnon, J. stated that “Where the settled routine involves customary residence in more than one home, the court may find that the party is ordinarily resident in more than one jurisdiction. Simply owning or maintaining property in a jurisdiction does not make one ordinarily resident there. It must be shown that residence at the property was part of the regular routine. The court may also consider the intentions of the party when determining where the party is ordinarily resident. This is not determinative, but can help clarify whether a stay at a given property was meant as a sojourn or as a long-term relocation, such as to establish ordinary residence”.”

         Nogueira v. Kuczynski, 2019 ONSC 1032 (CanLII) at 24-26 & 29-30

“The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 (CanLII)…

It is the recusal order that forms the subject matter of the appeal to this court. The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue; thus the appeal lies to this court: Courts of Justice Act, s. 6(1)(b).

One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications?, but it is interlocutory if the merits of the case remain to be determined.

…

None of this changes the fact that the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.”

Brunning v. Fontaine, 2019 ONCA 98 (CanLII) at 4-6 & 11

“Parental alienation has all the features that make a great story: a heartbroken parent, an evil ex, and a victimized child. If real life were like Hollywood, the story would eventually end with the evil ex being punished (or seeing the light and repenting) and the   formerly heartbroken parent re-united with their now loving and devoted child. Unfortunately, real life is not Hollywood, and such picture-perfect endings rarely occur.”: initial paragraph of LL.M. thesis by Michelle McKelvey (1981-2014).

Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 (CanLII) at 1

“I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment [under section 30 of the CLRA]:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?”

 Glick v. Cale, 2013 ONSC 893 (CanLII) at 48

 “Whether a paid account should be treated as an interim or final account is a factual determination. Payment of an interim account creates a presumption that the client was satisfied with the fee charged but that presumption is rebuttable. Clients will obviously be inclined to pay interim accounts promptly in order to maintain a good relationship with their counsel and the fact that interims bills were paid without complaint does not necessarily indicate that the client was satisfied with the work performed or the amount of the bill. It depends on the circumstances.

In Price v. Sonsini, 2002 CanLII 41996, the Ontario Court of Appeal made a seemingly determinative statement regarding the treatment of interim accounts rendered in the course of a single retainer:

…where interim accounts are rendered in connection with the same matter, the limitation period for assessment under the Solicitors Act begins to run from the date of the final account, even if some of the interim accounts have been paid.

The court in Daniels, 2006 CanLII 119 ONSC came to a similar conclusion. Both Daniels and Price were cases involving family law proceedings. Family law litigation is frequently lengthy, the majority of clients are unsophisticated and the final amount of the retainer is commonly adjusted to reflect the outcome of the litigation. All of these circumstances are conducive to treating interim payments as interim payments.”

Adler v. Thomson, Rogers, 2019 ONSC 801 (CanLII) at 13-15

“A consent order may be set aside on the same grounds as the agreement giving rise to the order: McCowan v. McCowan (1995), 1995 CanLII 1085 (ON CA), 14 R.F.L. (4th) 325 (Ont. C.A.); Rick v Brandsema, 2009 SCC 10 (CanLII). The traditional grounds for setting aside a contract are: mistake, misrepresentation, unconscionability, and incapacity, with all of their various subcategories.

Ms. Glazer claims duress. Duress is a sub-category of unconscionability. In order for Ms. Glazer to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced. Ms. Glazer must establish, on a balance of probabilities, that illegitimate pressure put her in a position where she had no realistic alternative but to agree: Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 25 O.A.C. 174, 63 O.R. (2d) 545 (Ont. C.A.) at para. 48 and Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (Ont. C.A.) (CanLII) at para. 9.

In Stott at para. 48, the Court of Appeal emphasized that:

“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a ‘coercion of the will’, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no ‘realistic alternative’ but to submit to it…duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress…”

This reasoning in Stott was applied in the decision of the Court of Appeal in Taber where citing Stott, the court stated at para. 8 and 9:

“there is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis. However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to ‘a coercion of the will’ of the party relying on the concept.”

Glazer v. Hill, 2019 ONSC 809 (CanLII) at 36-39

“It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants.  Moreover, as the Court of Appeal emphasized recently in Mattina v. Mattina, a fourth fundamental purpose of costs awards in family law proceedings is to ensure that cases are dealt with justly, in accordance with Rule 2(2) of the Family Law Rules.

Rule 24(1) creates a presumption of costs in favour of the successful party.  While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.  Entitlement to costs is subject to a variety of factors, including whether the successful party has behaved unreasonably, whether there has been bad faith conduct, and the nature of any offers to settle made by either party.

In determining the appropriate quantum of costs, Rule 24(12) sets out the relevant considerations. It provides as follows:

(12) SETTING COSTS AMOUNTS – In setting the amount of costs, the court shall consider,

   (a) the reasonableness and proportionality of each of the following   factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their     rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

While Rule 24(12) sets out the relevant considerations, the key principles governing awards of costs in family law proceedings are proportionality and reasonableness. As Nordheimer J.A. stated recently in Beaver v. Hill, “[p]roportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters.” This conclusion flows directly from the fundamental Boucher principle, applied by Ontario courts on innumerable occasions, that costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.”

Nor is there any principle mandating that a successful party should receive costs that “generally approach full recovery”. In fact, any such “full recovery” principle would be inconsistent with the first objective of costs awards as set out by the Court of Appeal in Serra, which is that costs are intended to “partially indemnify successful litigants”. While the Rules contemplate full recovery in specific circumstances, such as bad faith under Rule 24(8), or besting an offer to settle under Rule 18(14), the quantum of costs must always meet the test of proportionality and reasonableness in light of the importance and complexity of the issues at stake in the litigation.”

Fielding v. Fielding, 2019 ONSC 833 (CanLII) at 4-9

“For an excellent review of the factors to consider in determining whether to make an order under CLRA section 36, and the cases on the issue in Ontario and elsewhere, see Patterson v Powell, 2014 ONSC 1419 (CanLII). At the risk of oversimplifying Pazaratz J’s very detailed and thoughtful decision, I note the following principles from it:

• • Section 36 of the Children’s Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15)

• • Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool.” (Para 16)

• •  Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)

• •  Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)

• •  Police should be served with notice, if a party proposes a broad order under section 36(4) that they “do all things reasonably able to be done”. (Para 30)

• • Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)

• • Chronic non compliance with a custody or access order is “likely … a problem that police can’t fix anyway.” (Para 74)

…

As Pazaratz J noted, there is a tendency to forget that section 36 requires a present, existing reality – that a person is unlawfully withholding a child, or that a person proposes at the time the order is sought to remove a child from Ontario – not a future risk or possibility that a child might not be returned or that a child might be removed. Further, section 36(3) assumes that a motion for a police enforcement clause will be made on notice, at least to the other party. The section says the order may be made without notice if “the court is satisfied that it is necessary that action be taken without delay.” This is a different test from the usual one for motions without notice as articulated in rule 14(12) of the Family Law Rules.”

L.(N.) v. M.(R.R.), 2016 ONSC 809 (CanLII) at 83 & 85