Month: December 2020

“In Drygala v. Pauli (2002), 2002 CanLII 41868 at paragraphs 56 and 57, the Court of Appeal stated that the onus is on the party requesting imputation of income to establish an evidentiary basis for it and the determination to impute income is always discretionary based on the circumstances of each case.

In the same case, the Court notes:

First, the court should determine whether the spouse in question is intentionally under-employed or unemployed.   In this context, “intentionally” means a voluntary act; i.e., where the parent chooses not to work, or to earn less than he or she can earn.  Existence of such an intention does not require a finding of bad faith, or a specific intent to evade or secure child support.  A parent is intentionally under-employed within the meaning of s.19(1)(a) of the Guidelines if he or she earns less than he or she can earn, having regard to all the circumstances.  He or she is intentionally unemployed, within the meaning of s.19(1)(a) of the Guidelines, when he or she chooses not to work when capable of earning an income.

Second, if the court finds intentional under-employment or unemployment, in the sense required, the court must then determine whether that was and/or is required by virtue of the parent’s reasonable educational needs, the needs of a child, or reasonable health needs.

Third, if the answer to the first stage question is “yes”, and the answer to the second stage question is “no”, the court normally moves on to determination of the income that should be imputed in the circumstances.

The law is clear that using historical income is inappropriate; the only time that a historical approach may be appropriate is where there is no more current information available to the Court; the Court’s task is to determine present income. Whora v. Whora [2016] O.J. No. 2851; Morrissey v. Morrisey [2015] P.E.I.J. no. 51; Meyer v. Content 2014 ONSC 6001 CanLII, [2014] O.J. No. 4992.

The applicant has the burden of persuading the court that the application of section 16 of the Guidelines would not be the fairest determination of that income: Fung v. Lin, 2001 CanLII 28193 (ON SC), [2001] O.J. No. 456 (S.C.J.) at para. 11.

The onus is on the party to establish that the opposing party is intentionally underemployed.  He/she must establish an evidentiary basis upon which this finding can be made:  Homsi v. Zaya, 2009 ONCA 322 CanLII, [2009] W.D.F.L. 2480 at para. 28.

The Supreme Court of Canada has held that payors must not arrange their financial affairs to prefer their own interests over those of their children. (Citation omitted). Further, a parent will not be permitted to knowingly avoid or diminish his or her obligation to support his or her children. Wilson v. Wilson, 2011 ONCJ 103 CanLII at 20.

In Wilson v. Wilson, supra, the Court stated as follows with respect to padding back certain business expenses:

…. the Guidelines expressly provide in section 19(2) that the determination of whether an expense is reasonably deducted from a payor’s income is not governed by whether it is properly deducted for income tax purposes.  Common expenses that may legitimately be deducted for income tax purposes, but personally benefit the payor to the detriment of his or her children include expenses for car, home office, travel and entertainment.

A self-employed person has the onus of clearly demonstrating the basis of his or her net income. As stated in Wilson, supra, this includes demonstrating that the deductions from gross income should be considered in the calculation of income for support purposes.

Such payors 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…The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to these deductions, failing which an adverse inference may be drawn.” Wilson, supra at 22, citing Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), 2006 CarswellOnt 2581; Meade v. Meade, 2002 CanLII 2806 (ON SC), 2002 CarswellOnt 2670; and Orser v. Grant, 2000 CarswellOnt 13554.

Of course, it is difficult for a party seeking to impute income to get to the first step, laying the evidentiary foundation, where the party against whom income is sought to be imputed makes little or no financial disclosure to the court:  Di Bratto v. Sebastiao, 2015 ONSC 1996, at para. 179.”

Atis v. Atis, 2019 ONSC 7553 (CanLII) at 109-118

“The legal and factual considerations applicable to a secure treatment application were recently reviewed by Justice Starr in McMaster Children’s Hospital, Dr. Jennifer Couturier and L.R.U and J.U 2019 ONCJ 496.  In that matter, the court summarized the key guiding principles in such an application at paragraphs 14, 18 and 26:

14.      Secure treatment is a highly intrusive procedure that engages children’s section 7 rights under the Charter. The Legislature has recognized this by placing the secure treatment provisions in a special part of the Act entitled “Extraordinary Measures” and by highlighting at section 158 of the CYFSA that secure treatment programs impose continuous restriction on a child’s liberty.

 

18.      It recognition of the highly intrusive nature of this type of order and to ensure that this procedure complies with the Charter and the principles of fundamental justice, both the CYFSA and jurisprudence recognize that long-term secure treatment orders can only be made if the strict criteria are met.

 

26.      Taking all of the foregoing into account along with the guiding principles this Court summarized at paragraph 20 of its’ decision in an Ontario Shores Centre for Mental Health Sciences v. C. S., supra, the following emerge as the key guiding principles with respect to how the court is to safeguard against the arbitrary loss of a young person’s liberty in the context of the secure treatment applications, be the applications of first instance or applications to extend the committal:

 

1.  The loss of a young person’s liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;

2.  an order committing a child to secure treatment is to be considered as a remedy of last resort;

3.  the applicant bears the onus to demonstrate why the young person should be(or continue to be) committed to a secure program against the child’s wishes;

4.  to fulfil its own as the applicant must:

a.  adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria have been met;

b.  direct evidence from a psychiatrist whose opinion evidence resulted in the child’s admission;

5.  the court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.

6.  The evidentiary standard on such applications is that the evidence must be trialworthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form;

7.  the court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of the evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;

8.  the court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in sub section 164(1) (secure treatment applications) and ss.167(1) (extension applications) have been met;

9.  the court retains the jurisdiction to decline to make a committal order, even in cases were all of the criteria have been met.”

Children’s Aid Society of Ottawa v. G.L., 2019 ONSC 7528 (CanLII) at 7

“Pursuant to section 2(3) of the Creditors’ Relief Act, 2010, S.O., c. 16, Sched. 4, s. 2(3), a support or maintenance order has priority over other judgment debts, other than debts owing to the Crown in right of Canada regardless of when an enforcement process is issued or served.  If the order requires periodic payments, the order has priority to the extent of all arrears owing under the order at the time of seizure or attachment.  If the order requires the payment of a lump sum, the order has priority to the extent of any portion of the lump sum that has not been paid.

In Taylor v. Taylor, 2002 CanLII 44981 (ON CA) the court held that the Creditors’ Relief Act was intended to protect support orders from the interests of other creditors by giving them priority over other judgment debts.

It has also been held that even though a valid writ on behalf of the support recipient was not filed until after the sale of the home, the Creditors’ Relief Act clearly gave her support order priority over all other judgments, regardless of when her enforcement process was issued: Herman v. Rathbone, 2000 CanLII 22321 (ON SC).”

Silver v. Silver et al, 2017 ONSC 7749 (CanLII) at 14-16

“When parties separate, they make all kinds of financial choices.  Courts are, and should be, loathe to reinvent the past unless there are compelling reasons to do so.  These would include circumstances such as a recipient spouse going into debt as a result of no, or inadequate, support being paid, or children being unable to pursue their activities, or be properly cared for.”

Plese v. Herjavec, 2018 ONSC 7749 (CanLII) at 362

“In the delicate exercise of determining when amicus will be appointed and for what purposes, the relevant principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”) must be applied to family law litigation with necessary modifications. The principles or factors that have emerged thus far in the cases are set out below, but the list is not exhaustive.

First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case: CLA, at para. 47. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.

Second, a party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice: see e.g. R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197; Zomparelli v. Conforti, 2018 ONSC 610.

Third, relatedly, while amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus: Imona-RusseI, at para. 67.

Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances: CLA, at para. 47. And see C.C.O. v. J.J.V., 2019 ABCA 292, 91 Alta. L.R. (6th) 237, at para. 50. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine, as CLA noted at paras. 27-31, 83.

A trial judge should consider whether a Legal Aid certificate would be available and whether the matter should be adjourned to permit a party to apply for it. A trial judge should also consider whether other resources could be gathered together to suffice. For example, where the interests of children are involved, the judge may request the participation of the Office of the Children’s Lawyer under ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. There are several modalities of participation available including, most recently, Voice of the Child reports. However, the consideration of any such services would need to be expedited to avoid delay, particularly in a case that involves children.

Self-represented parties are increasingly routine in family law cases. The system recognizes this fact and does provide some resources. That one or both parties are self-represented is not a sufficient reason to appoint amicus, in itself, nor is it sufficient based on the idea that since one party is represented, amicus is necessary to level the playing field. As is sometimes noted in criminal cases, a party is entitled to a fair trial, not a perfect trial: R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 101; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45.

Fifth, the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively as it would be by counsel: Imona-Russel, at para. 69.

It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, “it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence”: Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37, repeated in Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31 of Gionet: “In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case”, citing Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A., 2006 MBCA 44, at paras. 19-20.

A trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.

This active approach on the trial judge’s part can only work if the judge explains the purpose and nature of the exercise beforehand, and maintains a calm and impartial temperament throughout. The trial judge should not cross-examine a party. Doing so would cross the line into the adversarial representation of a party, which would give rise to possible bias allegations.

Importantly, it is only in rare cases that the assistance provided by the trial judge will be insufficient to ensure trial fairness. Only then might the appointment of amicus be considered.

Sixth, it will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus’s duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona-Russel, at para. 89.

Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.

Ideally the need for amicus can be identified and considered at the pre-trial case management conference, but sometimes the need only becomes evident at trial. A case management judge or a trial judge faced with a trial that might require the appointment of amicus should prepare an order detailing the expected role and work of amicus. Amicus could, for example, be asked to lead some evidence, cross-examine a witness, or make submissions on specific issues. The goal should be to use the services of amicus only where and to the extent necessary. The order would be a work in progress and would be open to change as circumstances demand, with changes made formally on the record.”

Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII) at 26-40

“One of the objectives of the Child Support Guidelines is to establish a “fair standard of support for children that ensure that they continue to benefit from the financial means of both spouses after separation.  The Guidelines are a means of making support calculations more objective.  They also try to improve the efficiency of the legal process by providing guidance in setting out the various levels of support.  They also ensure that consistency is applied by the Court when determining child support.

Section 4 of the Guidelines allows the Court to deviate from a strict application of the Tables where the payor’s income is over $150,000.  The Court may look at the condition, needs and other circumstances of the children, if the Court thinks the Guidelines are inappropriate.

There is a presumption in favour of Guidelines support.  To not apply them requires that there be “clear and compelling evidence” to show that they should not apply.  The sheer size of the Table amount is not sufficient to depart from it.  The Supreme Court of Canada’s decision in Francis v. Baker, 1999 CanLII 659 (SCC), [1999] S.C.J. No. 52 has been referred to by our Courts in many cases involving the issue of child support where the payor’s income is substantially over $150,000.

In R.v.R., 2002 CanLII 41875 (ON CA), [2002] O.J. No. 1095 (O.C.A.) our Court of Appeal summarized those findings in paragraph 39, as to how much “high income parents should pay in child support.”  Trial Judges have discretion to either increase or decrease the Table amount, although the Table amount is presumed to be the appropriate amount.  In that paragraph, the Court noted:

For children of wealthy parents, reasonable needs include reasonable discretionary expenses.  A paying parent who claims the table amount is inappropriate must, therefore, demonstrate that budgeted child expenses are so high that they “exceed the generous ambit within which reasonable disagreement is possible.”, in short that the budgeted expenses are unreasonable.”

Desrochers v. Tait, 2008 CanLII 70040 (ON SC) at 25-28

“The burden of proof in a civil contempt case is the criminal standard of proof beyond a reasonable doubt.  See Bhatnager v. Minister of Employment and Immigration, 1990 CanLII 120 (SCC), [1990] 2 S.C.R. 217, 111 N.R. 185, 71 D.L.R. (4th) 84, 44 Admin. L.R. 1, 43 C.P.C. (2d) 213, 12 Imm. L.R. (2d) 81, [1990] S.C.J. No. 62, 1990 CarswellNat 73, at page 224 [S.C.R.].  See also paragraph [221] of Ramcharitar v. Ramcharitar and Jagam, supra, where Justice Wein stated:

[221]         The intention or mental state of the person charged with civil contempt of court, that is the mens rea of the offence, does not require that the defendant intended to disobey or flout an order of the court: “The offence consists of the intentional doing of an act which is in fact prohibited by the order.  The absence of the contumacious intent is a mitigating but not an exculpatory circumstance”  . . .  Wilfulness is required in the sense that the conduct be deliberate and not accidental or unintentional  . . .

The wilful intentional act here is the refusal by the applicant to consistently do what was required by the court for her to do.  At paragraph [234] of Ramcharitar v. Ramcharitar and Jagam, supra, Justice Wein said:

[234]         In the family law environment, with its undertow of feelings, it is too easy for one party to believe that he or she knows right, even after a matter has been determined by the court, and to decide when to ignore the order.

This is clearly the situation in this case where the applicant consistently claimed that she knows right even after this court determined what she had to do, and as a result, the applicant continuously and deliberately decided to ignore the various court orders.  In the often quoted definition of contempt by Lord Chief Justice Russell of Killoween in R. v. Gray, [1900] 2 Q.B. 36 at 40, 69 L.J.Q.B. 502, 82 L.T. 534, 16 T.L.R. 305, 48 W.R. 474, [1900-3] All E.R. Rep 59, the Lord Chief Justice stated:

Any act done or writing published, calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court.  That is one class of contempt.  Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or lawful process of the court is a contempt of court.

In Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318, [1992] O.J. No. 299, 1991 CarswellOnt 465 (Ont. Gen. Div.), Justice Robert A. Blair held at paragraphs [5]-[7]:

[5]         No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts’ orders at their whim because in their own particular view, it is right to do so.  A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.

[6]         The need for the sanction of contempt proceedings is of significant importance in the field of family law.  There is an undertow of bitterness and sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.”  In this environment it is all too easy for a spouse to believe that he or she “knows what is right,” even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

[7]         Those who choose to take this tack must know that it will not be tolerated.”

Starzycka v. Wronski, 2005 ONCJ 329 (CanLII) at 14-16

“Given the ongoing challenges presented by inadequate disclosure in family law proceedings and the need to provide a workable remedy while ensuring that the procedure is fair to all parties, a decision-making framework for the application of Rule 1(8) is required.

First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

•    the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

•    the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

•    the extensiveness of existing disclosure;

•    the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

•    any other relevant factors.

Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision.  Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure.  Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise.  Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise.  This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change.  Ideally, when making an order under this subsection, the judge should specify what is being struck.

The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”

Mullin v. Sherlock, 2018 ONCA 1063 (CanLII) at 43-49

“In Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, [1999] O.J. No. 4600, 128 O.A.C. 2, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330, 93 A.C.W.S. (3d) 222, Sharpe J. wrote:

21  It is apparent from this review of the case law that the preponderance of modern authority supports the contention that both self-represented lawyers and self-represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees. Since the Chorley decision in 1884, it seems not to have been doubted that self-represented solicitors could recover costs for solicitor’s fees. The respondents did not take issue with that proposition on this appeal. Johnson v. Ryckman, supra stands for the proposition that a self-represented solicitor could not recover anything for counsel fee, but as I have already noted, it was acknowledged in that case that there seemed to be no rationale for the rule. I am not persuaded by the respondent’s submission that this 1903 case, which rests on such a shaky foundation, should continue to govern us today. Johnson v. Ryckman has been superceded by more recent cases that have quite properly ignored the untenable distinction between solicitor’s fees and counsel fees. I can see no reason for maintaining the distinction between solicitor’s fees and counsel fees that was already outmoded almost one hundred years ago. The legislature’s decision to allow parties to recover costs in relation to the work of salaried employees provides added impetus to reject the view that self-represented solicitors should be precluded from recovering costs. Two provincial appellate courts have held that lay litigants may recover costs, including counsel fees. The clear trend of both the common law and the statutory law is to allow for recovery of costs by self-represented litigants.

22  Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by self-represented litigants. As noted in the Fellowes McNeil, supra and in Skidmore, supra, modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. It seems to me that all three purposes are fostered by allowing the trial judge a discretion to award costs to self-represented litigants.

23  Since the Chorley case over one hundred years ago, it had been accepted that self-represented lawyers are entitled to indemnity on the “time is money” or opportunity cost rationale. It is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants. The self-represented lawyer possesses legal skills, but lacks professional detachment when acting in his or her own cause. If the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self-represented lay litigants who are able to demonstrate the same loss.

24  A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant.

25  I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigant’s conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.

26  I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or” reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.”

Leduc v. Pharand, 2017 ONSC 7316 (CanLII) at 10

“A party will be deemed to have waived privilege when he or she makes their communication with a lawyer an issue in the proceeding. There is no express waiver in this case. A deemed waiver and an obligation to disclose a privileged communication requires two elements: (i) the presence or absence of legal advice must be relevant and material to a claim or defence; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 (SCJ) (CanLII) at paragraph 30.”

Benson v. Kitt, 2018 ONSC 7552 (CanLII) at 16