Month: July 2020

“Section 40 of the Family Law Act allows for an order restraining the depletion of a spouse’s property that would impair or defeat a support claim.  I made an order for interim spousal support with ancillary relief.  There is nothing in the evidence on this motion to indicate that the respondent has either refused or is unable to comply with that order. I therefore conclude that s. 40 of the Act does not apply to allow for a non-depletion order in these circumstances as there is no evidence that depletion of this property would impair or defeat the applicant’s claim for spousal support.  If the applicant seeks the preservation of the property in respect of his claims in trust, joint venture and unjust enrichment, in my view, s. 40 does not apply as it is not connected to a support obligation.  Further, an order under s. 40 is usually made when there is evidence that the payor is not complying with a support order or there is evidence of blameworthy conduct: Keyes v. Keyes, 2015 ONSC 1660 (CanLII) at paras. 74-76.  I acknowledge that the parties have each raised questions about the other’s conduct in their written submissions; however, in my view, there is no proper evidence of either non-compliance or blameworthy conduct to warrant the order under this section.

The Family Law Rules do not provide for an interim preservation order.  Section 1(7) of the Family Law Rules provides that if these rules do not cover a matter adequately, the court may give directions and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers appropriate, by reference to the Rules of Civil Procedure.  However, the Court of Appeal has held that resort to r. 1(7) will be a rare instance as the Family Law Rules reflect the fact that family litigation is different from civil litigation: Frick v. Frick, 2016 ONCA 799 (CanLII) at paras. 11-12.  That said, the nature of the applicant’s trust, unjust enrichment and joint venture claims are such that it could be said that this is one of those rare instances where resort to the civil rules is appropriate. 

Although the applicant referred to r. 45 of the Rules of Civil Procedure, in my view the appropriate rule under which to seek this relief is r. 40, pertaining to a Mareva injunction and s. 101(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended.  As explained by Kristjanson J. in Laliberte v. Monteith, 2018 ONSC 7032 (CanLII) at para. 31 a Mareva injunction is intended to prevent the dissipation of assets pending the determination of a civil matter.

In Karpacheva v. Karpacheva, 2018 ONSC 4563 (CanLII) at para. 29 Trimble J. noted that generally, Courts should rarely issue orders freezing assets before judgment against the owner of those assets.  They are granted where the claimant has a reasonable and justiciable cause of action and there is serious risk the assets will be dissipated to avoid judgment and execution.  At paragraph 33, Trimble J. set out the criteria the moving party must satisfy to impose a Mareva injunction. These are guidelines for the court to consider as opposed to rigid criteria:

a.  establish a strong prima facie case;

b.  make full and fair disclosure of all material matters within his or her knowledge;

c.  give particulars of the claim against the defendant, stating the grounds of the claim, the amount thereof, and the points that could be fairly made against it by the defendant;

d.  establish that there is a serious risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with before judgment; and

e.  give an undertaking as to damages.”

Hadaro v. Patten, 2019 ONSC 4574 (CanLII) at 12-15

“In Zagdanski v. Zagdanski, 2001 CanLII 27981 (ONSC), the court ordered an advance on equalization in the amount of $700,000 to the wife on a motion for partial summary judgment. In doing so, the court set out certain parameters for making such an order. They include (my summary):

a.  There will be little or no chance that the amount of the advance will exceed the final equalization amount;

b.  There will be a degree of certainty about the right to an equalization payment and the minimum amount;

c.  There is a reasonable requirement for funds in advance of any final determination of the case, and;

d.  Fairness, prejudice or delay require that such a payment be made.”

Levine v. Levine, 2018 ONSC 4620 (CanLII) at 18

“The purpose of a Default Hearing is to require the payor to come before the court to explain his default: Family Responsibility and Support Arrears Enforcement Act, 1996, “FRSAEA”, S.O. 1996, c. 31, as. am, s. 41. The central issues are the amount of arrears and the payor’s ability to pay. Payors are presumed to have the ability to pay the arrears and to make subsequent payments under the order unless the payor meets his onus to prove the contrary: FRSAEA, s. 41(9). The Court may adjourn the hearing and may make a temporary order, which may include all of the relief available under s. 41(10) of the FRSAEA, including a period of imprisonment: Fisher v. Ontario (Director, Family Responsibility Office), 2008 ONCA 815.

Director, Family Responsibility Office for the benefit of Edith Marie Marielle Bernard v. Fuhgeh, 2019 ONSC 4531 (CanLII) at 16

“Rule 1(8) of the Family Law Rules reads as follows:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1

In 2014, Rule 1(8) was amended, removing the earlier requirement that the failure to obey an order be “wilful” for the Court to be able to dismiss a party’s claim. The jurisprudence under former subrules 1(8) and 14(23) and is still applicable and sets out the relevant principles.  See Bullock v. Bullock, 2017 ONSC 1719 at 38, 39.

Where there has been a failure to obey a Court Order, the Court may make any order that it considers necessary for a just determination of the matter, including dismissing the claim. The words “just determination” are sufficiently broad to include protecting the administration of justice, which is at stake when a party wilfully disobeys an Order. Hughes v. Hughes, 2007 CanLII 10905 (ON SC), 2007 CarswellOnt 1977.

In Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), [2008] O.J. No. 486 (O.C.J.), Justice Spence set out a three stage process for approaching the application of Rule 1(8) as follows:

1.  Is there a triggering event that would allow a consideration of Rule 1(8)?

2.  Is it appropriate to exercise discretion in favour of the non-complying party? This discretion should be exercised only in “exceptional circumstances.”

3.  If discretion is not exercised in favour of the non-complying party, what is the appropriate remedy pursuant to the provisions of Rule 1(8)?

In Ferguson, supra, the father in 2007 sought rescission of arrears accumulated under an Order from 2003. Among other things, the father alleged that the mother had alienated the children from him. Justice Spence cited Justice Quinn in Gordon v. Starr, 2007 CanLII 35527 (ON SC), 2007 CarswellOnt 5438 in which he commented on the “offensiveness of allowing a party to obtain relief while in breach of a Court Order,” stating:

Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders. Ferguson, supra at 59.

The three stage process set out by Justice Spence in Ferguson, supra has been adopted and applied by the Ontario Superior Court in decisions including Bullock, supra, Dumont v. Lucescu, 2015 ONSC 494, Mark v. Cirillo-Mark, 2014 CarswellOnt 8429, and Chiaramonte v. Chiaramonte, 2015 ONSC 179.

The fact that a party does not act when he or she first learns that the other party is in non-compliance with an Order is not relevant. As Justice Quinn states in Hughes, supra, “A court should never be left at the mercy of litigants when it comes to defending and preserving the administration of Justice.” See Hughes, supra, at 26.”

Herman v. Rathbone, 2017 ONSC 4585 (CanLII) at 21-27

“The Marriage Act, R.S.O. 1990, Chapter M.3, contains these provisions relevant to formal validity of a marriage:

s. 4      No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

s. 20     No person shall solemnize a marriage unless he or she is authorized by or under section 24 or is registered under this section as a person authorized to solemnize marriage.

s. 21     The Minister shall keep a register of the name of every person registered as a person authorized to solemnize marriage . . .

s. 24(1)            A judge, a justice of the peace or any other person of a class designated by the regulations may solemnize marriages under the authority of a licence.

s. 24(3)            No particular form of ceremony is required except that in some part of the ceremony, in the presence of the person solemnizing the marriage and witnesses, each of the parties shall declare:

I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.

And each of the parties shall say to the other:

I call upon these persons here present to witness that I, AB, do take you, CD, to be my lawful wedded wife (or to be my lawful wedded husband. . . )

After which the person solemnizing the marriage shall say:

I, EF, by virtue of the powers vested in me by the Marriage Act, do hereby pronounce you AB and CD to be married.

s. 25     Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28.

s. 28(1)            Every person shall immediately after he or she has solemnized a marriage,

(a)        where the marriage was solemnized in a church, enter in the church register kept for the purpose,

(b)        where the marriage was solemnized elsewhere than in the church, enter in a register kept by him or her for that purpose,

the particulars prescribed by the regulations, and the entry shall be authenticated by his or her signature and those of the parties and witnesses.

s. 28(2)            Every person who solemnizes a marriage shall, at the time of the marriage, if required by either of the parties, give a record of solemnization of the marriage specifying the names of the parties, the date of the marriage, the names of the witnesses, and whether the marriage was solemnized under the authority of a licence or publication of banns.  Emphasis added

The Civil Marriage Act, S.C. 2005, c. 33, establishes the requirements of essential validity of a marriage including the following:

2.1      Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

In her decision in Torfehnejad v. Salimi, 2006 CanLII 38882 (ONSC), [2006] O.J. No. 4633, Greer J. summarized the principles applicable in cases of annulment. Annulment in Ontario is governed by the provisions of the Annulment of Marriages Act (Ontario), R.S. 1970, c. A-14, which established that the law of England applies and that the Superior Court of Justice has jurisdiction. The Applicant was at all times both resident and domiciled in Ontario and hence this court has jurisdiction to hear the Application.

Formal validity of marriage is determined with reference to the jurisdiction where the marriage was celebrated (“lex celebrationis”). Essential validity of marriage is determined in accordance with where the parties were domiciled prior to the marriage (“lex loci domicilii”).  Given that the Applicant was domiciled in Ontario and the marriage was celebrated in Ontario, the law of Ontario applies.

Black’s Law Dictionary, (10^th ed.) defines the term “annulment” as follows:

A judicial or ecclesiastical declaration that a marriage is void.  An annulment establishes that the marital status never existed.  So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.”

M.A. v. B.B., 2018 ONSC 4582 (CanLII) at 24-28

“First, the appellant says that the trial judge made a palpable and overriding error by discounting the promissory note by 90%. The appellant says that several of the 33 factors considered by the trial judge involved irrelevant considerations, and if these are excluded, what remains could not justify the discount applied.

We do not agree with this submission.

Substantial deference is owed to the trial judge’s determinations of fact and mixed fact and law, especially in family law cases. This court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1.

The trial judge correctly considered the applicable law. The case law relied on by the trial judge is consistent with this court’s guidance in Zavarella v. Zavarella, 2013 ONCA 720, 117 O.R. (3d) 641, at para. 40, that the debt is to be valued based on the reasonable likelihood that it will ever be repaid.

The trial judge’s application of that law to the facts and her decision to discount the promissory note by 90% as a true reflection of the practical reality of the situation is owed substantial deference.

We also do not agree that any of the factors listed by the trial judge were irrelevant. She set out the nature of the parties’ relationship based on all the evidence and evaluated whether there was any reasonable likelihood that there would ever be a call to repay the debt. We see no basis to interfere.”

Rados v. Rados, 2019 ONCA 627 (CanLII) at 21-26

“There is no doubt that the issue of mobility came up relatively late in the proceedings [arbitration]. However, the father, who was represented throughout, knew of the issue prior to the start of the hearing and neither requested an adjournment nor objected to the issue being addressed.

For eight days while evidence was being presented, he was not impeded from presenting his case, nor from cross-examining the mother or the experts. At no point did he request a further assessment with respect to St. Jude’s to challenge the evidence that the school would benefit the children. Instead, the father simply gave evidence that the children were fine and should stay at their Toronto school.

Having received the evidence of both parties on the mobility issue, the arbitrator preferred the mother’s evidence and found in her favour, as he was entitled to do so: see Arbitration Act, s. 21. The proceedings were not rendered unfair simply because the arbitrator found in favour of the mother on this issue.

The father acquiesced in the notice

The father acquiesced in the late notice. Instead of raising the issue and seeking an adjournment, he proceeded with the hearing, submitting that the children should stay at their school and only raising an objection when the result was not to his liking.

In Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, this court dealt with a challenge to an arbitration decision where the arbitral panel met with a witness ex parte without notice to the parties. On appeal, the appellant, Mr. Popack, who had not objected to such a meeting when the issue was raised during the hearing, argued that the award should be set aside because of this procedural breach. In dismissing the appeal and upholding the arbitral award, this court said, at para. 39:

Mr. Popack sought to gain an advantage in the arbitration proceedings when he learned of the ex parte meeting…[He] positioned himself so that he could decide to raise the issue formally…if he was not satisfied with the award given by the panel. To reward that tactic by setting aside the award would eviscerate the finality principle that drives judicial review of arbitral awards and would cause “a real practical injustice”.

Similarly, here, the father was not entitled to stay silent, participate in the proceedings without objection, wait to see what the ruling was and then claim procedural unfairness when the decision was against him.

Further, the father’s conduct after the hearing confirms his acquiescence in the process. He did not seek a stay of the mobility order but raised the issue for the first time on appeal.

As a general rule, an appellate court will not permit an issue to be raised for the first time on appeal. This rule is grounded, in part, on society’s interests in finality and the expectation that matters will be dealt with at first instance: see R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal refused [2016] S.C.C.A. No. 432.  This principle is particularly important when the lives of children are impacted by the proceedings.”

Petersoo v. Petersoo, 2019 ONCA 624 (CanLII) at 41-48

“The appellant’s principal submission that joint custody was inappropriate focused on a portion of the trial judge’s reasons where he said that there was “a realistic hope that these parties will be able to work together for the benefit of their children and without the difficulties of rules and demands”.  The appellant relies upon decisions from this court such as Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a “hope” that communication between the parties will improve.  These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.”

May-Iannizzi v. Iannizzi, 2010 ONCA 519 (CanLII) at 2

“This is also a motion for the sale of the home under s. 3 of the Partition Act which read as follows:

3.  (1)  Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

The case law generally favours an order for partition and sale of a home by a co-tenant unless the opposing party can demonstrate prejudice.  The onus is on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale.  Alternatively, partition and sale should not be granted where the sale will cause hardship to the responding party which amounts to oppression:  see Afolabi v. Fala, 2014 ONSC 1713 at para. 29 and 33 to 35.  The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5^th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.

There is, however, authority that a sale of the home will not be ordered where it cannot be demonstrated that the moving party would benefit from the sale, but these results appear to have occurred only where a trial is close at hand:  see Ludmer v. Ludmer, 2012 ONSC 4478 and Magnella v. Federico, 2012 ONSC 5696.  Barring this, malicious, vexatious or oppressive conduct must be proven by the party resisting the sale.  In fact, it might be interpreted as being oppressive conduct to request an order for the sale of a home when a trial is only months away; that is certainly not the case here, and although an income report was obtained in June, 2016, the parties still have not moved this matter along and now a further income analysis will be necessary to confirm the respondent’s 2016 income.   The trial of this matter appears to be in the distant future.”

Duskocy v. Duskocy, 2017 ONSC 4479 (CanLII) at 7-9

“I do not doubt that in a true emergency there is a residual discretion in judges of this court to entertain a motion even if a trial decision is under reserve.  Short of such a true emergency (of the sort that would justify immediate injunctive relief) in circumstances where the trial judge is not available, I cannot readily envision a situation in which such a motion ought to be dealt with by another judge.  In a family court case involving custody and access, the parenting issues are the very issues before the trial judge and to seek additional interim orders dealing with those matters from another judge is in effect to usurp her role: McKay v. Proprietary Mines Ltd. 1938 CanLII 284 (ON CA), [1938] 2 DLR 770 (note) and Jupp v. Jupp 2008 CarswellOnt 3756 (SCJ). 

Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record.  There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized.  On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings.  Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits: see Chitsabesan v. Yuhendran, 2016 ONCA 105 (CanLII) and Pastore v. Aviva Canada Inc., 2012 ONCA 887 (CanLII).  I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons.  The trial is not technically concluded until the judgment is entered.  In my view the trial is still in progress.

Trials are of course subject to formal procedures.  Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial.  The party is not permitted to try to bring more evidence to bolster its case after that party’s case is closed.  It is for that reason that rules and principles have evolved concerning this issue of re-opening the case.  Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April.  She referred with approval to the factors outlined in Hughes v. Roy, 2016 ONCJ 65 (CanLII).  Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.”

N.H. v. J.H., 2017 ONSC 4414 (CanLII) at 18-21