Month: June 2020

“A failure to consider relevant evidence can amount to a palpable and overriding error if the evidence was potentially significant to a material finding of fact: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, at para. 343, leave to appeal refused, [2004] S.C.C.A. No. 291.

Raymond argues that the motion judge failed to consider relevant evidence. He relies on the fact that the endorsement contains no reference to the police report that records suspicious circumstances, or to Raymond’s removal as a director of 92780. Raymond submits that this evidence was material to the motion judge’s determination of the issues of undue influence and suspicious circumstances.

I see no merit to the argument that the motion judge failed to consider relevant evidence. A judge is not required, in his or her reasons, to mention every single piece of evidence: R. v. C.(T.) (2005), 2005 CanLII 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 45.

         Vanier v. Vanier, 2017 ONCA 561 (CanLII) at 68-70

“It is critical for the Respondent father to take concrete steps to improve his relationship by focusing on his daughter’s needs and to gain the insight needed for him to do so.  To this end, I order that the Respondent father attend counselling with a professional parenting specialist of his choice.  This order is a permissible term of custody and access under s. 16(6) of the Divorce Act as it serves to promote the purpose of the Act which, amongst other things, is to protect a child’s emotional and psychological well-being.  In making this order I am mindful of the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 which I distinguish on the basis that it required both parents to jointly see a counsellor who, amongst other things, would make decisions about choice of schools, activities and hobbies for the children.  As Philip Epstein, Q.C., L.S.M., has also noted, the law permits a court to order counselling as incident of custody: Case Comment: L. (J.K.) v. S.(N.C.) and McAlister v. Jenkins, (2008), 54 R.F.L. (6^th) 163.”:

A.D. v. N.D., 2018 ONSC 4143 (CanLII) at 41

“The trial judge ordered that the child’s primary residence continue to be with the respondent (mother), with the father receiving only one overnight with the child per week and alternating weekends. In addition, while a joint custody order was made, the trial judge ordered that if the parties are unable to agree upon matters relating to the child’s physical, emotional and educational well-being, then “ultimately” those decisions are to be made by the mother.

We find that the trial judge erred in failing to address the “maximum contact” principle set out in s. 16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). That provision states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [Emphasis added.]

As noted by L’Heureux-Dubé J. in Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at p. 53, dissenting in the result, the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child’s best interests. See also: V. (B.) v. V. (P.), 2012 ONCA 262 (Ont. C.A.), at para. 15.

There is no reference to the maximum contact principle in the reasons for judgment. In light of the trial judge’s findings of fact, it is difficult to see that principle at work in the result.”

         Rigillo v. Rigillo, 2019 ONCA 548 (CanLII) at 2-5

“In order for the agreement to be a domestic contract, pursuant to section 55 of the Family Law Act, there must be an agreement, in writing, signed by the parties and witnessed.  This is not one of those cases.

Before entering into a discussion about settlement agreements made in the course of litigation it is important to discuss a contractual agreement, generally.  In order for there to be an agreement, there must be a meeting of the minds, on all essential elements, with an agreement that those terms be incorporated into a formal document.

In Geropolous v. Geropolous, 35 O.R. (2d) 763, 1982 CanLII 2020, the Court of Appeal was asked to decide whether an agreement contained in an exchange of correspondence between solicitors settling the claims in an action brought pursuant to the Family Law Reform Act, R.S.O. 1980, c. 152, was enforceable.

I share the view that settlement agreements concluded by solicitors or counsel resolving outstanding claims in pending litigation under the Act are beyond the reason and purview of s. 54(1).  The formal requirements laid down by the section are intended to ensure that asserted domestic contracts, be they marriage contracts (s. 51), cohabitation agreements (s. 52) or separation agreements (s. 53), are reduced to writing and in fact agreed to by the parties as evidenced by their witnessed signatures; this in essence is a statute of frauds type provision made referable to domestic contracts by the Family Law Reform Act.

In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court.  Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them; and ample protection is afforded the parties to these agreements, wholly independent of the section.  The court’s jurisdiction to enforce settlements or refuse to do so, notwithstanding any agreement between solicitors or counsel, is well established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court’s overriding jurisdiction with respect to domestic contracts; Scherer v. Paletta, supra; 3 Halsbury’s Laws of England, (4th ed.), paras. 1182-3; and ss. 18(4) and 55 of the Act. [Emphasis added]

In Gallacher v. Friesen, 2014 ONCA 399, 371 D.L.R. (4^th) 522, the Court of Appeal reviewed the law pertaining to s. 55(1).  Although related to a different fact scenario (the issue was whether the witness was present when the appellant signed the domestic contract), the court’s comments at paras. 25-27 are instructive:

The appellant submits that the syntax of s. 55(1) supports a strict reading of the provision.  He asserts that the general premise of the provision is that all domestic contracts are unenforceable, with an exception for domestic contracts that comply with the necessary formalities of execution.

The appellant’s approach to s. 55(1) of the FLA is inconsistent with this court’s observation in Bosch v. Bosch that the legislature intended to encourage rather than discourage domestic contracts.  A strict reading of s. 55(1) would also be inconsistent with this court’s recent judgment in Virc v. Blair, 2014 ONCA 392.  There, Pepall J.A. came to the conclusion that in comparison with s. 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the language of s. 55(1) of the FLA allows for a less strict application of the witnessing requirement.

Justice Pepall’s decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.”  [Emphasis added]”

         Aberback v. Bellin, 2019 ONSC 3866 (CanLII) at 19-22

“The parties’ dispute before us centres on whether the motion judge exceeded his jurisdiction when, relying on the court’s inherent jurisdiction, he allowed the respondent’s request for an order that Ziebenhaus be examined by a vocational assessor selected by the respondent. Section 105 of the [Courts of Justice] Act permits a court to order a party to undergo a physical or mental examination by a “health practitioner”:

1. 1. 1. 105. (1)In this section, “health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

…

The Divisional Court concluded that s. 105 does not “occupy the field”. It noted that the health sciences and patient care have evolved to include a wide range of assessments by experts who are not “health practitioners”. Such assessments cannot all be characterized as diagnostic aids to the opinion of a “health practitioner”. Precluding their use in the litigation context would be contrary to good public policy. In the light of these circumstances, the court said, at para. 45:

The only conclusion that can be drawn from these circumstances is that section 105 does not completely “occupy the field” in the sense that it makes no provision for physical and mental examinations that are routinely used in the care and treatment of injured persons, and in litigation, that are conducted by persons who do not qualify as “health practitioners” under section 105. Accordingly, there is a gap in the statutory provisions regarding the entitlement of a party defending an action to require a plaintiff to submit to such examinations.

On the issue of whether an order for an assessment by an individual who is not a “health practitioner” would be contrary to the intent of s. 105, the Divisional Court determined that it would not.

I see no error in the Divisional Court’s analysis and conclusion.

As set out by the Supreme Court of Canada in R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 133:

[T]he inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court’s process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed can only be accomplished by clear and precise statutory language.”

         Ziebenhaus v. Bahlieda, 2015 ONCA 471 (CanLII) at 5, 9-12

“There are a number of recent cases that have considered bifurcation. In each of Simioni, 2009 CanLII 934 (ON SC), Baudanza v. Nicoletti, 2011 ONSC 352, Dillon v. Dillon, 2013 CarswellOnt 17537 (Ont. S.C.J.), Balsmeier v. Balsmeier, 2014 ONSC 5305 and Grossman v. Grossman, 2014 ONSC 2090Schulman v. Ganz, 2015 ONSC 3254 the Court found significant benefits to the separation of triable issues.  In cases in which the issues were not so easily separated, bifurcation was prejudicial to a party, or a two-step process offered no overall economies, bifurcation was not ordered: G. (C.M.) v. G.(R.), 2013 ONSC 961 (CanLII), Hall v. Sabri, 2011 ONSC 5495 (CanLII), and Lakhoo v. Lakhoo, 2014 CarswellAlta 348 (Alta. C.A.).

The latter cases carry another common thread.  All were cases in which the issue of spousal or child support had to be determined irrespective of whether the separation agreement was set aside.

In the Alberta Court of Appeal decision of Lakhoo, a lower court’s decision to bifurcate the validity of a prenuptial agreement was set aside despite counsel’s argument that bifurcation would obviate the need for the disclosure of certain financial records.  The Court observed:

If only it was that easy.  Unfortunately, there remains the matter of spousal support and unless the parties agree on the quantum and duration of the spousal support Mr. Lakhoo should pay Mrs. Lakhoo, (who has not worked since the marriage), it seems that disclosure of this financial information will be required in any event.  In other words, there would be no saving of time or resources if the trial were split as the chambers judge has directed.  This court has previously said that trials should not be split unless the savings are clear or at least probable (See: Gallant v. Farries, 2012 ABCA 98, 522 AR 13; Edmonton Flying Club v. Edmonton Regional Airports Authority, 2013 ABCA 91 at paras 15-16, 544 AR 6).”

Dove v. Dove, 2016 ONSC 4091 (CanLII) at 13-15

“The husband claims employment expenses on his annual tax returns, which do not reduce his line 150 income but reduce the amount of tax ultimately paid. He argues that these employment expenses should be deducted before determining the appropriate income upon which to calculate support. On the other hand, the wife submits that support should be calculated based on the husband’s income as declared on line 150 of his tax return. She argues that the employment expenses should not be deducted for purposes of calculating support.

The husband is employed at Paccar as an area sales manager for Canada. He frequently travels for work. Paccar has provided him with an Amex card, which he uses to pay for many of his employment expenses. He testified that he is reimbursed by Paccar for the expenses that he incurs on the Amex card. The husband also testified that he paid for some employment expenses out of his own pocket (including motor vehicle travel expenses and costs related to a home office) and was not reimbursed by Paccar for those expenses.

The husband testified that CRA audited the employment expenses claimed on his tax returns, and upheld those deductions.

Schedule III of the Child Support Guidelines states that certain specified employment expenses described in paragraph 8 of the Income Tax Act are deducted from income for purposes of calculating support. Not all employment expenses are deductible from total income for support purposes. In this case, the husband states that he incurred sales expenses; travel expenses; and motor vehicle travel expenses that should be deducted pursuant to Schedule III.

When a taxpayer seeks to claim employment expenses to reduce their taxes, they must file a T2200 Declaration of Conditions of Employment. This form is completed by the employer and describes the types of employment expenses that are necessary for the employee to incur as part of the employment and that are not reimbursed by the employer. The employee must also confirm that their contract of employment requires the employee to pay employment expenses.

Deductions accepted by CRA are not automatically accepted as deductions from income for the purpose of determining a payor’s income for spousal support. There should be some evidence that would justify a conclusion that the employment expenses qualify as a deduction pursuant to s. 8(1) of the Income Tax Act: see Bentley v. Gillard-Bentley, 2013 ONSC 722 and Chase v. Chase, 2013 ONSC 5335.

The onus is on the husband to establish, on a balance of probabilities, that his Schedule III deductions are appropriate employment expenses before they can be deducted: see Pollitt v. Pollitt, 2010 ONSC 1617 at para. 140.

In this case, I draw an adverse inference from the failure of the husband to file the following evidence:

i.   His T2200 forms from his annual tax returns;

ii.  His contract of employment;

iii. Documents that he filed with the CRA when he was audited;

iv. Monthly Amex statements for the Paccar Amex card; and

v.  Formal reconciliation of the Paccar reimbursement compared to his payments made on Amex balances.”

Haras v. Camp, 2018 ONSC 3456 (CanLII) at 31-38

“There is a protocol in Ontario that governs how this court should deal with inter-jurisdictional communications between judges, titled “Protocol regarding inter-jurisdictional judicial communication with respect to cases of inter-jurisdictional child abduction”.  The protocol is designed to address inter-jurisdictional issues arising out of proceedings brought under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  I attach a copy of this protocol to this endorsement.

Although it is not clear to me whether Mr. Sewell is proposing a telephone call between judges or between a judge of this court and himself, and although Mr. Sewell’s request is not related to a proceeding under the 1980 Hague Convention, this court has used the protocol referenced above in other cases as well: see Wallace v. Williamson, FS-19-8416-0000 (unreported).  I conclude that it is appropriate to follow the protocol in the communication that the Michigan court seeks with this court.  Nothing before me suggests that doing so would be contrary to the primary objective: s. r. 2(2), Family Law Rules, 0. Reg. 114/99.”

         Starring v. Carrier, 2019 ONSC 3841 (CanLII) at 6-7

“The Adjudicator concluded that the Children’s Lawyer’s “confidentiality concerns … can be addressed by exemptions under the applicable access to information legislation.” In doing so, she conflated solicitor-client privilege with confidentiality. The former is caught by the exemption at s. 19 of FIPPA (Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31) the latter is not. And yet, it is the latter that gives rise to the most sensitive information about the child, and which is deserving of special protection.

Information may be confidential without being privileged. As the British Columbia Court of Appeal explained in British Columbia (Securities Commission) v. B.D.S., 2003 BCCA 244, 13 B.C.L.R. (4^th) 107, at para 45:

There is no doubt that lawyers are under an obligation to keep confidential all documents and other communications made to them by their clients, but not all such communications are subject to solicitor-client privilege and a claim of privilege does not convert non-privileged documents into privileged documents.

The Children’s Lawyer gathers information from and about her child clients in numerous ways: with assistance from social workers; through therapists, school teachers; and so on. This information is necessary for the Children’s Lawyer to properly represent the child. It is crucial in order for the child’s voice to be heard.

As Mesbur J. explained in Catholic Children’s Aid Society of Toronto v. S.S.B., 2013 ONSC 4560, 35 R.F.L. (7th) 178, at para. 21:

When [the Children’s Lawyer] takes a position on behalf of a child, child’s counsel will ascertain the child’s views and preferences. In doing so, it will consider the independence, strength and consistency of the child’s views and preferences; the circumstances surrounding those views and preferences, and all other relevant evidence about the child’s interests. It is in this context the [Children’s Lawyer] relies on a clinical investigator to assist counsel in determining those views and preferences so that it can advocate a position on behalf of the child. Essentially, the clinical investigator assists counsel in ascertaining its client’s reasonable instructions; that is, the position to be taken on behalf of the child. [Footnote omitted.]

While some records may be subject to the solicitor-client exemption, others may not. These include the child’s views expressed to teachers, counsellors, therapists, friends, and parents of friends. Yet, the Children’s Lawyer’s duty of confidentiality applies to all records.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 77-81

“In MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235 (“MacDonald Estate”), the Supreme Court of Canada set out a two-part test as to whether a lawyer can act against a former client. The court must determine (i) did the lawyer receive confidential information to a solicitor and client relationship relevant to the matter at hand and (ii) is there a risk that it will be used to the prejudice of the client (MacDonald Estate, at para. 45).

In MacDonald Estate, the court noted that “nothing is more important to the preservation of [the solicitor-client] relationship than the confidentiality of information passing between a solicitor and his or her client” (MacDonald Estate, at para. 15).

On a motion to remove counsel for conflict of interest, the court must weigh the competing values of “[t]he concern to maintain the high standards of the legal profession and the integrity of our system of justice” and (ii) “[t]he countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause” (MacDonald Estate, at para. 13).

The preservation of the integrity of our system of justice is the “most important and compelling” value (Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 (“Consulate Ventures”), at paras. 35-36).

Confidential information is information one would not ordinarily reveal to an opposing lawyer. It includes such matters as personal expenses, assets, and liabilities, as well as information about the “personal habits, faults and foibles of the ‘client’, knowledge of which might be valuable to the lawyer in the adversarial world of litigation” (Paylove v. Paylove, 2001 CanLII 28169, 2001 CarswellOnt 4454 (SCJ), at para. 19).

The importance of confidentiality has been particularly noted in family law cases since clients often “come to family lawyers when they are at their most vulnerable” (Marinangeli v. Marinangeli, 2004 CarswellOnt 3015 (SCJ), at paras. 17-20).

If a former client can establish that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted which could be relevant “unless the solicitor satisfies the court that no information was imparted which could be relevant”. That burden must be discharged without revealing the specifics of the privileged communication (MacDonald Estate, at para. 46).

The former client bears the onus of showing that the previous retainer is sufficiently related to the current retainer (Canadian National Railway Co. v. McKercher, 2013 SCC 39 (“McKercher”), at para. 24; Chapters Inc. v. Davies, Ward & Beck LLP (2001), 2001 CanLII 24189 (ON CA), 52 OR (3d) 566 (CA) (“Chapters”), at para. 29).

The former client must adduce “clear and cogent” evidence, not mere assertions that the two retainers are sufficiently related. The former client must show that the possibility of relevant confidential information having been acquired is realistic, not just theoretical (Chapters, at paras. 29-30).

The test of “sufficient relationship” is whether “given the nature and detail of the confidential information received” in the first retainer, it is “likely that at least some of that information could be relevant to the current matter” and “likely to be part of the factual context directly informing” counsel’s advice to the new client. The information “will be relevant if it assists the lawyers to advance the cause of the new client against the old client” (Chapters, at para. 36).

It is incumbent on a party seeking to disqualify a solicitor to specify why the documents and information supplied previously to the solicitor are connected or related to the new matter rather than leave the court to have to guess at the degree of connection (Remus v. Remus (2002), 2002 CanLII 2763 (ON SC), 61 OR (3d) 680 (SCJ), at para. 14).

There may be cases in which a simple description of the two retainers shows them to be so closely connected that the court will infer the possible misuse of confidential information and, hence, find the retainers to be sufficiently related. More commonly, an outline of the nature of the confidential information passed to the lawyer pursuant to the first retainer will be needed (Chapters, at para. 30).

The court must determine whether the former client has shown that the former matters on which they retained counsel could have yielded relevant confidential information that could be used against it in “some tangible manner” (McKercher, at para. 54).

The court must carefully review and compare the retainers to determine whether they are sufficiently related (see Chapters, at paras. 4-6 and 32, in which the court reviewed the first retainer in detail and then reviewed the new retainer, at paras. 10, 35-36).

The test for determining whether there is a conflict of interest is whether the “public, represented by the reasonably informed person would be satisfied that no use of confidential information would occur” (MacDonald Estate, at para. 44). The test was stated recently as “whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice compels the removal” (Mallory v. Werkmann Estate, 2015 CarswellOnt 1223 (C.A.) at para. 28).

Because the test is objective, “[t]here does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test”, a principle which has been applied in the family law context (Zaldin v. Zaldin, 2014 CarswellOnt 15887 (SCJ), at para. 13).

While the court is not limited to the narrow scope of the pleadings to determine whether issues may arise in which relevant confidential information could be used against a former client, there must be “a real possibility that the issues will expand beyond” the range of the pleadings (Consulate Ventures, at para. 14).

If the former client cannot meet the onus to establish that the previous retainer is sufficiently related to the current retainer, no presumption arises (Trizec Properties Ltd. v. Husky Oil Ltd., 1997 ABCA 182, at para. 12).

The necessary corollary of the “sufficiently related” rule in MacDonald Estate is that if a party cannot demonstrate that the two matters are sufficiently related, the former client can lead evidence that the law firm actually possesses relevant confidential information.

Unlike the “rebuttable presumption” that will be a “difficult burden to discharge” because it must be discharged “without revealing the specifics of the privileged communication” (MacDonald Estate, at para. 46), the burden to show actual knowledge of relevant confidential information necessarily falls on the party who cannot establish that the retainers are sufficiently related, and leaves that party with the choice of the extent to which the party must disclose enough information about the communications to satisfy that burden.”

         Hogarth v. Hogarth, 2016 ONSC 3875 (CanLII) at 23-42