Month: May 2020

“Section 55(1) of the FLA provides:

A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

The purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed: see A. Swan & J. Adamski, Canadian Contract Law, 3d ed. (Toronto: LexisNexis Canada Inc., 2012), at para. 5.50.

In contrast, another statute that addresses formal execution, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), has more specific execution requirements than the FLA.  Section 4(1) of the SLRA provides:

Subject to sections 5 and 6, a will is not valid unless,

(a) at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

In Waters v. Conrod, 2007 BCCA 230, 66 B.C.L.R. (4th) 181,  the British Columbia Court of Appeal addressed s. 61(3) of the Family Relations Act, R.S.B.C. 1996, c. 128, the language of which is substantially similar to s. 55(1) of Ontario’s FLA and which, like the FLA, imposes a witness requirement on marriage agreements.  The British Columbia Court of Appeal upheld the enforceability of an agreement in circumstances where the parties signed it and only afterwards met with a notary whom the trial judge found to have “‘witnessed’ the agreement”.  The court concluded that to hold otherwise would defeat the statute’s purpose, which was to give no effect to agreements that were not freely made.

The language of s. 55(1) of the FLA is not as strict as s. 4(1) of the SLRA.  In unusual circumstances such as those found in the case under appeal, the language of s. 55(1) allows for a less strict application of the witnessing requirement rule.  Here, the appellant admitted signing the agreement, accepted the benefits of the agreement and waited for close to two years to raise the issue of non-compliance with s. 55(1).  Moreover, the co-worker witness recognized and was able to identify the appellant’s signature.  In these circumstances, it was not open to the appellant to successfully assert non-compliance with s. 55(1) of the FLA and the motion judge was correct in determining that this was not a genuine issue requiring a trial.”

         Virc v. Blair, 2014 ONCA 392 (CanLII) at 77-81

“Article 13(b) [of the Hague Convention on the Civil Aspects of International Child Abduction] creates an exception to the general rule that a child wrongfully removed or retained in a contracting state should be returned to his country of habitual residence. The provision sets a high threshold of a “grave risk” of physical or psychological harm or otherwise placing the child in an “intolerable situation”.

This interpretation is only reinforced when examining the text in its context and in light of the treaty’s object and purpose. As stated by Chamberland J.A. in F. (R.) v. G. (M.), 2002 CanLII 41087 (QC CA), [2002] J.Q. no 3568, [2002] R.D.F. 785 (C.A.), at para. 30:

The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also . . . a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.

This court in Jabbaz v. Mouammar, 2003 CanLII 37565 (ON CA), [2003] O.J. No. 1616, 226 D.L.R. (4th) 494 (C.A.) agreed with those comments and went on to add further comment, which is of particular relevance to this appeal. At para. 33, Rosenberg J.A., writing for this court, observed:

Refusing to enforce the Convention because the child might have to move a short time later is not consistent with the rigorous interpretation required and is inconsistent with the stated objects of the Convention to secure the prompt return of children wrongfully removed or retained from the Contracting State and to ensure that custody rights are respected. Such an interpretation is, in my view, inconsistent with the thrust of the cases in this province such as this court’s decisions inPollastro and Finizio. Continuity in residence is desirable but some instability is not intolerable.

The threshold with respect to the exceptions set out in the Convention is thus a high one. The Supreme Court of Canada in Thomson held, at para. 28, that the risk to the child must be one of substantial psychological harm to the child. In Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226, [1999] O.J. No. 3579 (C.A.), relying on Thomson, MacPherson J.A., writing for the court, found that the father had on one occasion struck the mother, but held that this was not a sufficient reason to refuse his application to have the children returned to Italy. This conclusion was based in part on the assertion that it should be left to the police and courts of Italy to minimize any harmful effects of returning the children there: Finizio, at paras. 33-35, citing C. v. C. (minor: abduction: rights of custody abroad), [1989] 1 W.L.R. 654, [1989] 2 All E.R. 465 (C.A.).

In contrast, in Pollastro v. Pollastro (1999), 1999 CanLII 19933 (ON CA), 43 O.R. (3d) 485, [1999] O.J. No. 911 (C.A.), this court found that a continued pattern of escalating emotional and physical abuse, combined with threats against the mother and her family, were sufficient to create an intolerable situation for the child. I would note that the court’s conclusions in that case were based on evidence from the mother’s doctor as well as transcripts of a taped phone message.”

            Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII) at 37-41

“Moreover, even accepting that Ms. Lovsin’s services benefited Jack and Meryl Hodgins, this conferring of a benefit does not, by itself, constitute unjust enrichment. As Dickson J. said in Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 at p. 848: “The common law has never been willing to compensate a plaintiff on the sole basis that his actions have benefited another.”

To show that the enrichment was unjust, the provider of the benefits (here Ms. Lovsin) must reasonably expect to be compensated, and the recipients of the benefits (here Jack and Meryl Hodgins) must know or ought to have known of that reasonable expectation. In the words of Dickson J. at p. 849 of Pettkus:

[w]here one person in a relationship tantamount to spousal prejudices herself in a reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it.”

Lovsin v. Hodgins Estate, 2008 ONCA 371 (CanLII) at 7-8

“It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated.”

Lewi v. Lewi, 2006 CanLII 15446 (ON CA) at 171. 

“The principles laid down by the Supreme Court in Hryniak are important. There has been a fundamental change in how motions judges have been called upon to apply the law as it relates to a motion for summary judgment.  Much of the change has been positive. However, the facts of this case and the facts of Amelin demonstrate how litigants have shifted the responsibility for laying out the facts through the trial process to the motion judge, who must sift through a mountain of paper in the hope of reaching a fair and just determination on the merits without the need for a trial.

The actual hearing of the motion for summary judgment may only take a day. The preparation for the motion for summary judgment, including the drafting of affidavits; the preparation for and attendance at the cross-examinations of the deponents to those affidavits; and the preparation of factums, are time consuming and expensive. One may seriously question, on the facts of this case, like many that the court sees, whether that time and effort represents much in the way of any saving for the litigants.  Certainly, if the motion is unsuccessful, there has been unnecessary delay and expense in getting the case to trial.

What is also lost on the litigants is that, after the motion has been heard, the motion judge then has the responsibility of sifting through a mountain of paper.  The motion may have been argued in a matter of hours, but the motion judge’s job is far from over. Put also in the context that many judges are circuiting from courthouse to courthouse with ever changing assignments, it is not always possible to release a judgment in the time expected by the litigants. Where the court is confronted with two banker’s boxes of material as was the case before me, counsel and their clients should seriously consider if the case is one where the court can truly conclude that there is no genuine issue for trial. Some may argue that regardless of the volume of material, it is still possible, after argument and time, to reflect that the court can do justice to the principles laid down in Hryniak.  I entirely disagree. With the pressures imposed on the court by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, it will be a rare case that a motions judge in a busy centre such as Newmarket, can dedicate the time necessary to review two banker’s boxes of material before moving on to various criminal trials previously assigned in that judge’s calendar.

The volume of material that was filed in this case, in my view, should have made it self-evident to the parties and their counsel that this was not the kind of case that was suitable for a motion under Rule 20.  There are serious credibility issues between the parties and the various witnesses, that make this case an obvious case where the court cannot be satisfied that it can reach a fair and just determination.  The motion is dismissed.”

Mak (Estate) v. Mak, 2019 ONSC 2710 (CanLII) at 18-21

“R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48 sets out limits for resorting to judicial notice:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”

Curley v. Taafe, 2019 ONCA 368 (CanLII) at 36

“In Clark, [Clark v. Clark, 2014 ONCA 175] the costs awarded to a successful party, where the unsuccessful party’s claim for child support was dismissed, were found to be a “support order” enforceable by the Director. There is no principled reason not to permit a similar result where costs are awarded against an unsuccessful party if the dismissed claim relates to spousal support.”

Shelley v. Shelley, 2019 ONSC 2830 (CanLII) at 22

“In awarding a quantum of interim spousal support, this Court is cognizant of the multi-faceted purposes for the awarding of spousal support and the determination of the quantum of spousal support recognized in the case law and in our legislation.  While basic need alone may have been determinative of the quantum of interim spousal support at one time in our legal history that is certainly not the case today. The Court must keep in mind all of the purposes enunciated in subsection 33(8) and (9) of the Family Law Act, R.S.O. 1990, c. F.3 as amended.  Similar purposes are enunciated in subsection 15.2(6) of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp.) as amended.

In the face of those enunciated legislative principles, I am persuaded that Mr. and Ms. Denofrio ought to enjoy similar lifestyles which is currently not the case given the great and substantial disparity of the financial resources available to each of them.  In this regard, I agree with the statement of Madam Justice Roccamo in Lakhani v. Lakhani, 2003 CanLII 2161 (ON SC), [2003] O.J. No.4041, that “in circumstances 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.”  On the facts of this case, given the substantial monies received by Mr. Denofrio upon the sale of his business and even taking account of his high care costs, his ability to pay spousal support to Ms. Denofrio is not in issue.”

Denofrio v. Denofrio, 2009 CanLII 41354 (ON SC) at 39-40

“In S. (D.B.). v. G. (S.R.), 2006 SCC 37, at para. 134, the court stated that “generally” a court should make “the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award.” The court described the “date of effective notice” as the “default option”. Once effective notice has been given, “the peer parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling”, at para. 121. The court added that awarding child support from the date of effective notice maintains a fair balance between certainty and flexibility, at para. 122. At paragraph 125, the court summarized its conclusions: “payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.”

The court, at para. 99, did leave open the possibility that “retroactive support could be ordered where a payor parent engages in no blameworthy conduct.” However, the court described that outcome as “conceivable”.

In paragraph 133, the court summed up its discussion of retroactive child support awards by saying:

In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.”

         J.J. v. C.C., 2017 ONCA 357 (CanLII) at 10-12

“Having said that, I turn to the principles of contract interpretation.

First, effect must be given to the intention of the parties.  The Supreme Court of Canada in Consolidated-Bathurst Export Ltd. c. Mutual Boiler & Machinery Insurance Co., 1979 CanLII 10, (1979), [1980] 1 S.C.R. 888 (S.C.C.) explained, at p. 901:

[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.

The Supreme Court provided further guidance in BG Checo International Ltd. v. British Columbia Hydro & Power Authority, 1993 CanLII 145, [1993] 1 S.C.R. 12 (S.C.C.), at pp. 23-24:

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.

And, the Ontario Court of Appeal, in MacDougall v. MacDougall, 2005 CanLII 44676, (2005), 262 D.L.R. (4th) 120 (Ont. C.A.), in applying that principle to domestic contracts said this, at para. 22:

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.”:

Robinson v. Connolly, 2017 ONSC 2454 (CanLII) at 54-57