Month: October 2020

“Section 22 of the Divorce Act provides for the recognition of foreign divorces in Canada. Section 22(3) expressly upholds the common law principles that were helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111: Canadian courts will recognize a foreign divorce: (i) where jurisdiction was assumed on the basis of the domicile of the spouses; (ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or (vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection. See also Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005) at para.17.2.a; El Qaoud v. Orabi, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14. As already noted, Mr. Lyzo contends that the Russian Divorce was properly obtained in the Russian Federation on the basis of the parties’ real and substantial connection to that jurisdiction.

A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including the absence of notice) or public policy: see Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, at p. 227; El Qaoud, at paras. 17-18; Delaporte v. Delaporte, [1927] 4 D.L.R. 933; and Canadian Conflict of Laws, at para.17.2.c.

In this case, the motion judge need not have been concerned with the deficiencies in the evidence as to whether the divorce was obtained in compliance with Russian law. In particular, she need not have been concerned with whether, had the Russian tribunal known about the respondent’s residence in Canada, it would have taken further measures to ensure proper service before granting the Russian Divorce. It is not typically appropriate or necessary for Canadian courts to inquire into the substantive grounds upon which a foreign divorce decree is granted: see e.g. Powell, at p. 228 and Pitre v. Nguyen, 2007 BCSC 1161, at paras. 17-18.

Nonetheless, the motion judge appropriately focussed on the lack of notice to Ms. Novikova, which was a denial of natural justice. This was the reason for the refusal to recognize the Russian Divorce. As in Powell, where there was evidence of fraud rather than lack of notice, it was appropriate to address this issue before (or without) engaging in an analysis of “real and substantial connection”: Powell, at p. 227. While it is true, as Mr. Lyzo submits, that fraud, natural justice, and public policy are often referred to as “defences”, it is not necessary for the court to consider them ‘second’, as demonstrated by Powell.”

         Novikova v. Lyzo, 2019 ONCA 821 (CanLII) at 14-17

“It is important in qualifying an expert that not only must he or she have the relevant expertise, but the testimony must be relevant and necessary in assisting the trier of fact. Most importantly for present purposes, the opinion evidence must be such as to assist the tier of fact in being “able to keep an open mind and objectively assess the worth of the evidence”: R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. As Cromwell J. put it in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 SCR 182, para 2, “Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.”

The Court of Appeal has instructed that, “in the governing framework for admissibility, the court should consider an expert’s potential bias when determining whether the expert is properly qualified at the initial threshold: Bruff-Murphy v Gunawardena, 2017 ONCA 502, para 38. Accordingly, the question of independence falls to be considered and decided “at the time the evidence is proffered and the expert witness’s qualification is requested by a party”: Ibid., para 60.”

         Barker v. Barker, 2019 ONSC 5906 (CanLII) at 10-11

“The protection of the integrity of the judicial process requires that an expert witness be immune from civil suit by any person with whom his or her only relationship derives from the judicial proceeding: Varghese v. Landau (2004), 2004 CanLII 5084 (ON SC), 3 R.F.L. (6th) 204 (Ont. S.C.), at para. 48; Carnahan v. Coates (1990), 1990 CanLII 2299 (BC SC), 71 D.L.R. (4th) 464 (B.C.S.C.), at p. 474; Howatt v. Klassen (2005), 31 C.C.L.T. (3d) 54 (Ont. S.C.), at paras. 11 and 15, citing Fabian v. Margulies (1985), 1985 CanLII 2063 (ON CA), 53 O.R. (2d) 380 (Ont. C.A.).

Immunity from suit extends not only to reports filed in court and oral evidence given in court, but also to activities outside of court related to a report or its preparation: Varghese v. Landau, at para. 49; Smith (next friend of). v. Kneier, 2001 ABQB 291, 288 A.R. 144, at para. 11, citing Evans v. London Hospital Medical College [1981], 1 All E.R. 715 (Q.B.).

The protection is absolute.  Even allegations of bad faith are insufficient to remove the application of the immunity doctrine: Howatt v. Klassen, at paras. 11-13, citing Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 CanLII 3776 (ON CA), 124 O.A.C. 125 (C.A.).

One of the justifications for immunity is the protection of the court process, which seeks to discourage relitigation of issues: Smith (next friend of). v. Kneier, at para. 14.  This is especially important in the family law context, which is already fraught with conflict.  In the family law context, attempts to sue expert witnesses have been dismissed or struck out at early stages because of immunity: e.g. Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 648; Carnahan v. Coates; Howatt v. Klassen; Varghese v. Landau; Smith (next friend of) v. Kneier.”

         Sheehan v. Snell, 2016 ONSC 6340 (CanLII) at 43-46

“Many cases have considered how the court should approach its task under s. 7(1) of the Arbitration Act, which provides:

7(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. [Emphasis added.]

The law favours giving effect to arbitration agreements. This is evident in both legislation and in jurisprudence. Section 7 of the Arbitration Act contains mandatory language, stating “the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding” (emphasis added).

The mandatory wording in s. 7 of the Arbitration Act is a change from s. 7 of the old Arbitrations Act, R.S.O. 1990, c. A.24, which gave the court discretion to stay the action:

[I]f satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was at the time when the proceeding was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, [the court] may make an order staying the proceeding. [Emphasis added.]

As can be seen, the statutory language in s.7 of the current Arbitration Act is directory, not equivocal. It strongly favours giving effect to an arbitration agreement. This policy direction is reinforced by s. 17 of the Arbitration Act:

17(1)  An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

(2)  If the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.

Subsection 17(1) did not exist in the 1980 or the 1990 Arbitrations Act.  Subsection 17(2) codifies the common law, and establishes that an arbitration agreement can survive even where the contract in which it is found is determined to be invalid.”

         Haas v. Gunasekaram, 2016 ONCA 744 (CanLII) at 9-13

“One of the desired objectives of a custody order is to maximize the involvement of both parents in the child’s life. The extent to which evidence shows that a parent has failed to communicate with and inform the other parent and tried their best to reach mutual decisions on significant guardianship questions, is an important consideration when deciding what parenting arrangement is in the best interests of a child. If a parent has made access to the child difficult for the other parent, that is also a factor: D.L.S. v. R.S., 2012 BCSC 977 (CanLII), paras. 171, 208. I also consider the ability and commitment of each parent to putting their child’s interests ahead of their own, including their commitment to ensuring the child maintains a positive relationship with the other parent: Hawkins v. Schlosser, 2012 ONSC 2707 (CanLII), para 71.”

Liu v. Huang, 2018 ONSC 3499 (CanLII) at 114

“In a series of decisions, judges of the Superior Court have ‘grossed up’ a spouse’s income to take account of similar striking differences in tax consequences between salaried employees and persons in receipt of other forms of income: see Orser v. Grant, [2000] O.J. No. 1429 (QL) (S.C.J.); Moran v. Cook (2000), 2000 CanLII 22542 (ON SC), 9 R.F.L. (5th) 352 (Ont. S.C.J.); Sarafinchin v. Sarafinchin (2000), 2000 CanLII 22639 (ON SC), 189 D.L.R. (4th) 741 (Ont. S.C.J.); Manis v. Manis, [2000] O.J. No. 4539 (QL), [2000] O.T.C. 880 (S.C.J.); and Brans v. Brans (2000), 2000 CanLII 22471 (ON SC), 13 R.F.L. (5th) 335 (Ont. S.C.J.).

The leading case is Orser v. Grant in which Benotto J. analyzed the issue in this fashion, at paras. 10-13:

Gross-Up for Tax

Mr. Grant has arranged his financial affairs so that he paid only $7,362.31 in income tax, substantially less than he would pay were he a salaried employee. It means that he enjoys a net income after tax of $55,405.67.

The Child Support Guidelines base support on the payor’s gross taxable income. One of the objectives of the guidelines is to ensure “consistent treatment” of those who are in “similar circumstances”. Thus, there are provisions to impute income where a parent is exempt from paying tax, lives in a lower taxed jurisdiction, or derives income from sources that are taxed at a lower rate.

Where, as here, a parent arranges his or her affairs to pay substantially less tax on income, the income must be grossed up before the table is applied. This is the only way to ensure the consistency mandated by the legislation.

Here, I have been asked to use a 36 [per cent] average tax rate. This is reasonable. If I apply that gross-up to his net after tax income, his gross income would be over $85,000. Thus, Mr. Grant would have to earn this gross amount to net $55,405 for himself. This greater amount is what the table amount of support should be based on.

(Emphasis added)

Benotto J.’s analysis was explicitly adopted by Speigel J. in Moran v. Cook, Sachs J. in Sarafinchin v. Sarafinchin, Lane J. in Manis v. Manis and Greer J. in Brans v. Brans. It was also followed by Rooke J. in Lavoie v. Wills (2000), 2000 ABQB 1014 (CanLII), 13 R.F.L. (5th) 93 (Alta. Q.B.). [page426]

Subject to observing that s. 19 of the Guidelines defines certain specific circumstances in which income may be imputed and sets out the criteria to be metin those circumstances, I agree with the general approach adopted in these cases. Section 1(d) of the Guidelines states that one of the objectives of the Guidelines is “to ensure consistent treatment of spouses and children who are in similar circumstances”. An interpretation of ss. 18 and 19 of the Guidelines that would impute the same income for child support purposes to two parents, one earning a salary of $128,000 and paying tax of $48,000 and the other receiving business income of $128,000 and paying tax of $5,000, would be remarkably out of step with the “consistent treatment” objective of the Guidelines.”

Riel v. Holland, 2003 CanLII 3433 (ON CA) at 32-35

“Having found that the three elements for civil contempt were established, however, the motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. It is this last, crucial step that is missing from the motion judge’s analysis.

As the Supreme Court of Canada stated in Carey, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. The Court added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”

There is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Such alternatives might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent’s wishes when the children were with her and comply with the order.

Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19. As this court stated in Ruffolo, it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.

In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one…”

Chong v. Donnelly, 2019 ONCA 799 (CanLII) at 8-12

“Refusing to answer the door and then throwing papers back at a process server is not an effective strategy to avoid service.”

NVG v IMP, 2017 ONSC 6009 (CanLII) at 21

“In the end, although a business person is entitled to create corporate structures and relationships for valid business, tax and other reasons, the law must be vigilant to ensure that permissible corporate arrangements do not work an injustice in the realm of family law. In appropriate cases, piercing the corporate veil of one spouse’s business enterprises may be an essential mechanism for ensuring that the other spouse and children of the marriage receive the financial support to which, by law, they are entitled. The trial judge was correct to recognize that this was such a case.”

Wildman v. Wildman, 2006 CanLII 33540 (ON CA) at 49

“The overriding consideration on a motion to set aside an order dismissing an appeal is the justice of the case, which entails a consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8. In addition, factors analogous to those typically considered on a motion to extend the time to appeal inform a request to set aside the administrative dismissal of an appeal: (i) the explanation for not perfecting the appeal within the time stipulated by the rules; (ii) the length of and explanation for the delay in moving to set aside the administrative dismissal; and (iii) prejudice to the respondent.

More justification must be shown by a party moving to aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal: Langer v. Yorkton Securities Inc. (1986), 1986 CanLII 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at para. 14.”

Sickinger v. Sickinger, 2017 ONCA 760 (CanLII) at 13-14