Month: October 2020

“In R. v. White, 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at p. 272, the Supreme Court of Canada discussed the inexact science of weighing a witness’ credibility:

It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive.

In Christakos v. De Caires, 2016 ONSC 702 (CanLII), 2016 CarswellOnt 1433, at para. 10, I summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283 (CanLII), 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99 (CanLII) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.  v. J.H.,2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA)[at paras.] 51-56).  There is no principle of law that requires a trier of fact to believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. (See R. v. D.R. 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]”

A.M. v. C.H., 2018 ONSC 6472 (CanLII)

“This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395 (CanLII), 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (CanLII), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (CanLII), at para. 37. And Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution: Frick v. Frick, 2016 ONCA 799 (CanLII), 132 O.R. (3d) 321, at para. 11; E.H. v. O.K., at para. 34.

Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730, at para. 94. And the presumption that a successful party is entitled to costs applies equally to custody and access cases: Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.

Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94.

Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(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.

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

Mattina v. Mattina, 2018 ONCA 867 (CanLII) at 10-18

“The motion judge properly held that the CYFSA [Child and Youth Family Services Act, S.O. 2017, c. 14, Sched. 1] provides that existing access orders are terminated when a child is placed in extended society care unless the party seeking access establishes that ongoing contact is in the child’s best interests. This complies with the statutory requirements set out in CYFSA subsections 105(5) and (6), which provide:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

  Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

…

The motion judge specifically considered the effect of the transition from the CFSA[Child and Family Service Act, R.S.O. 1990, c C.11] to the CYFSA. Under the CFSA, once access was terminated, the burden was upon the person seeking access to rebut the presumption against access. The motion judge explicitly considered this in explaining that while the predecessor legislation had been rigid in requiring that parents demonstrate a meaningful and beneficial relationship, the CYFSA takes a more flexible approach in subsuming the meaningful and beneficial factor within the greater context of the best interests analysis. In this way, the new access test recognizes that a case-by-case weighing of all relevant factors against the needs of the child is more appropriate than confining the court to the one-dimensional definition of “meaningful and beneficial” for determining whether access can occur.

The motion judge’s approach accords with the approach set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 49, decided after the motion judge’s decision:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.

Jewish Family and Child Service of Greater Toronto v. E.K.B, 2019 ONSC 6214 (CanLII) at 154, 157 and 158

“In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.  This means a change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.  The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made.  In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents.  The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way.  There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered.  The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 1990 CanLII 3966 (ON SC), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110‑11 is apt:

It is established beyond dispute that a dependent child is entitled to look to both parents for support.  It is also established beyond dispute that each parent has an obligation to provide for the support of the child.  The amount of the support to be provided is the amount that will meet the needs of that particular child.  The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support.  I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents.  If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease.  [Emphasis added.]”

Willick v. Willick, [1994] 3 SCR 670, 1994 CanLII 28 (SCC)

“In Jasen v. Karassik (2009) 2009 ONCA 245 (CanLII), 95 O.R. (3d) 430, the Ontario Court of Appeal stated that the ISOA  [Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13] was not a “complete code”.  The court found that an Ontario resident is not required to bring an application for support or variation of a support agreement under ISOA if the other party is a non-resident.  They have a choice to bring the application under ISOA or the Family Law Act (FLA).  If brought under the FLA, then they are required to effect service ex juris and show that Ontario has a real and substantial connection to the subject matter of the application.”

Carter v. Richer, 2016 ONSC 6668 (CanLII) at 10

“In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92 (CanLII), 75 R.F.L (6th) 33, at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way.  For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.

It is true that a motion judge’s decision to strike pleadings and deny participation at trial is entitled to deference if exercised on proper principles: Purcaru, at para. 50. Absent palpable and overriding factual error, appellate courts ought not to interfere with a motion judge’s properly exercised discretion to strike pleadings. However, given the exceptional nature and significant implications of denying a party participation at trial, it is essential that this remedy of last resort be granted only on a proper evidentiary basis.”

            Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII) at 31-33

“In terms of her costs award, the motion judge correctly concluded that a risk premium could not be awarded.  She also correctly concluded that this was not a case for a full recovery award of costs.

Yet, that is not how the costs in this case were determined.  Rather, the resulting award approached a full recovery amount.  In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should “generally approach full recovery”.  I would make a couple of points in response to that contention.

First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement.  What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules.  Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.

Second, the respondent’s assertion that this court’s decision in Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730 supports the “full recovery” approach to costs in family matters also reflects a failure to read the decision closely.  What this court endorsed in that case was the principle that “a successful party in a family law case is presumptively entitled to costs” (at para. 94) subject, though, to the factors set out in Rule 24.  This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799 (CanLII), 132 O.R. (3d) 321, the Family Law Rules “embody a philosophy peculiar to a lawsuit that involves a family” (at para. 11).

There is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs.  Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs.  It reads:

(12) 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

As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

Further, a “close to full recovery” approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).  Consequently, the motion judge erred in principle in adopting a “close to full recovery” approach in fixing the costs of these motions.  I would note that such a result also appears inconsistent with her determination that full recovery costs were not appropriate in this case.”

Beaver v. Hill, 2018 ONCA 840 (CanLII) at 7-13

“Freedom of religion and expression are fundamental values protected by the Charter.  However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter.  The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access.  While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”

Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé

“The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 CanLII 2806 (ON SC), 31 R.F.L. 5^th 88 (SCJ).”

         Lachance v. Campbell, 2015 ONSC 6551 (CanLII) at 38

“Section 15.24(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support.  This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] 1 S.C.R. 920 at para. 29.

In Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

Here, the trial judge erred in the same way.  Mr. Joseph, counsel for Ms. Greenglass, quite properly concedes the error but describes it as a matter of form over substance.  He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

As will be seen, in the circumstances of this case, Mr. Joseph is correct.  That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis.  As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.”

         Greenglass v. Greenglass, 2010 ONCA 675 (CanLII) at 41-44.