Month: January 2021

“Section 3 of the Divorce Act states: “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.” (emphasis added)

At the time the applicant filed her application she had been living in Canada for 9 months.  The respondent has not lived in Canada.

In Haroon v. Haroon 2019 ONSC 77 the court found there was no jurisdiction to hear a divorce application under the Divorce Act as the applicant was not ordinarily resident in Ontario for one year prior to the application being commenced.

The court in Robar v Robar 2010 NBQB 8 declined jurisdiction under the Divorce Act where the wife had moved to NB eight (8) months before signing her petition for divorce. The court emphasized that section 3 of the Divorce Act was the “sole basis for jurisdiction for divorce.” (at para. 12).  Further, the court noted that “these statutory requirements are substantive, and failure to establish residency is fatal to the proceeding.” (at para. 14).  The court did, however, find that it had jurisdiction to grant the divorce under the Divorce Act by virtue of the counter-petition filed by the husband, who had been ordinarily resident in NB for over 12 months at the time he signed his counter-petition.

In Gazo v Gazo 2005 CarswellOnt 534 the court discussed the residency requirement under section 3 of the Divorce Act and stated: 

Sections 3 to 6 of the Divorce Act define the jurisdictional competence of a court to grant a divorce and any corollary relief by way of spousal or child support or custody of or access to the children. A divorce petition can be presented by either or both spouses to the court of the province wherein either spouse has been ordinarily resident for not less than one year immediately preceding the filing of the petition. The first issue then is whether Maria Gazo has been ordinarily resident in Ontario for not less than one year immediately preceding the filing of the divorce petition. In this case, there is no doubt that she has not been resident in Ontario for the requisite time period. …. she may have intended to maintain her residency here. However, she did not do so. As was held in MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), intention alone cannot determine ordinary residence. Mr. and Mrs. Gazo left Ontario in 2001 and moved to the Slovak Republic. They made the Slovak Republic their home until Maria Gazo returned to Ontario in March 2003. When she commenced her divorce proceeding on December 4, 2003, she had been resident in Ontario since March 31, 2003. Maria Gazo was not ordinarily resident in Ontario for one year immediately preceding the filing of the petition. This Court had no jurisdiction to entertain the petition for divorce.

The court in Jung v Jung 2016 ONSC 3020 addressed the residency requirement of section 3 of the Divorce Act and stated: 

In general, courts have strictly interpreted s. 3(1). The prevailing view is that “there is no naturally existing right to a divorce, but rather a right, based in statute, to present a petition for a divorce”: Garchinski v. Garchinski, 2002 SKQB 323 (Sask. Q.B.), at para. 25. The leading case for this proposition is Winmill v. Winmill (1974), 1974 CanLII 1228 (FCA), 47 D.L.R. (3d) 597 (Fed. C.A.). In Winmill, the applicant argued that the Federal Court should exercise jurisdiction to hear her divorce under s. 25 of the Federal Court Act, which provision allows the Federal Court to hear claims for relief where no other courts in Canada have jurisdiction. The applicant did not meet the residency requirement in any individual Canadian province. The Federal Court of Appeal rejected her argument, holding that the Divorce Act does not grant a right to divorce, but a limited right to apply for divorce subject to the conditions of the Act.

As neither the applicant nor the respondent were ordinarily resident in Canada for one year prior immediately preceding the commencement of an application under the Divorce Act, the court has no jurisdiction to consider the request.”

Nawab v. Abid, 2019 ONSC 7590 (CanLII) at 23-29

“An excellent summary of the factors to consider in the context of claims for occupation rent can be found in Casey v. Casey, 2013 SKCA 58 (CanLII), [2013] S.J. No. 308 (CA) at para. 48:

48     From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:

 

1. Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.

2. The remedy is exceptional and should be used cautiously.

3. The following factors, where relevant, are appropriately considered:

* The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good at para. 90).

* Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16-17; Wilgosh at para. 108).

*  If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106, Good at para. 90, and Peltier at para. 16).

* Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier at paras. 16-17; Wilgosh at para. 106). 

* Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses (Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108).

* Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17).

* Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).

4.  The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.

In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096 (CA), the Court noted at para. 49:

49     Since Griffiths and Sloan owned the matrimonial home jointly, and since Griffiths occupied it for over six years after he and Sloan separated, the trial judge clearly had jurisdiction to order Griffiths to pay occupation rent if it was reasonable and equitable to do so. See Irrsack v. Irrsack (1979), 1979 CanLII 1647 (ON CA), 27 O.R. (2d) 478 (C.A.). The relevant factors to be considered when occupation rent is in issue will vary from case to case. However, in a family law context some factors are consistently taken into account. They include:

* The timing of the claim for occupation rent;

* The duration of the occupancy;

* The inability of the non-resident spouse to realize on her equity in the property;

* Any reasonable credits to be set off against occupation rent;

* Any other competing claims in the litigation.”

Hubley v. Fitzpatrick, 2019 ONSC 305 (CanLII) at 93-94

“The concepts of frivolous and vexatious proceedings were described by the Court of Appeal in Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA):

[14]         Black’s Law Dictionary defines “frivolous” as: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”.

[15]      In Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 at 226, Howland, C.J.O. considered the meaning of “vexatious” under the Vexatious Proceedings Act, R.S.O. 1970, c. 481:

The word “vexatious” has not been clearly defined.  Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground.  In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground.  As a result the proceedings were found to constitute an abuse of the process of the Court.  An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R.

At para. 17, the court concluded, “What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process”.”

Bernard v. Fuhgeh, 2020 ONSC 235 (CanLII) at 15-16

“Over the years the Courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if in the Court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses”. That is the standard which the Courts are to apply, and in the context of s. 3(d) of the Act that standard is expressed in language which must be taken to exclude the qualifications laid down in Russell v. Russell, supra, and in the numerous other cases which have followed and applied the ancient ecclesiastical rule in matrimonial disputes. This is in accordance with the view taken in Zalesky v. Zalesky (1968), 1968 CanLII 612 (MB QB), 1 D.L.R. (3d) 471, 67 W.W.R. 104; Paskiewich v. Paskiewich (1968), 1968 CanLII 678 (BC SC), 2 D.L.R. (3d) 622, and Bonin v. Bonin (1969], 1969 CanLII 851 (NS SC), 5 D.L.R. (3d) 533. The only decision contra is that of Tyrwhitt-Drake, Co. Ct. J., sitting as Local Judge in Delaney v. Delaney (1968), 1968 CanLII 585 (BC SC), 1 D.L.R. (3d) 303, 66 W.W.R. 275. Reference may also be made upon this point to four recent decisions in the New Brunswick Courts: Hawthorne v. Hawthorne (1969), 1 N.B.R. (2d) 803; Maund v. Maund (1969), 1 N.B.R. (2d) 547; Chouinard v. Chouinard (1969), 1 N.B.R. (2d) 582, and Bustin v. Bustin (1969), 1 N.B.R. (2d) 496.

Care must be exercised in applying the standard set forth in s. 3(d) that conduct relied upon to establish cruelty is not a trivial act, but one of a “grave and weighty” nature, and not merely conduct which can be characterized as little more than a manifestation of incompatibility of temperament between the spouses. The whole matrimonial relations must be considered, especially if the cruelty consists of reproaches, complaints, accusations, or constant carping criticism. A question most relevant for consideration is the effect of the conduct complained of upon the mind of the affected spouse. The determination of what constitutes cruelty in a given case must, in the final analysis, depend upon the circumstances of the particular case having due regard to the physical and mental condition of the parties, their character and their attitude towards the marriage relationship.”

Knoll v. Knoll, 1970 CanLII 469 (ON CA)

“The test for on a motion for an extension of time to appeal under r. 3.02(1) of the Rules of Civil Procedure is well-settled. The overriding principle is whether the “justice of the case” requires that an extension be given. The court must take into account all relevant considerations, including (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 114 O.R. (3d) 636 (in Chambers), at para. 15. This court has the inherent jurisdiction to control its own processes and has the express power under s. 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, to stay or dismiss a proceeding as an abuse of process: Oelbaum v. Oelbaum, 2011 ONCA 300 (CanLII), 94 R.F.L. (6th) 251, at para. 9.” 

Wilson v. Fatahi-Ghandehari, 2019 CanLII 1036 (ON CA) at 9

“Faced with an appellant’s wilful refusal to honour a spousal support obligation, the court has several options.  One option is to dismiss the appeal for noncompliance with the trial court’s order.  That is the practice of the British Columbia Court of Appeal.  The following passage from the reasons of Lambert J.A. in Elensky v. Elenskaya (1993), 1993 CanLII 1937 (BC CA), 50 R.F.L. (3d) 231 makes good sense: 

In effect, Mr. Elensky is in breach of the order of Madam Justice Gill.  He is in breach because of his own determination of what he is going to pay based on his own assessment of his needs.

In those circumstances, it has been the practice of this Court not to hear appeals unless a convincing explanation is given of the impossibility of compliance with the court order.  No such convincing explanation has been given in this case.  If Mr. Elensky is going to make his own decisions about what to pay without regard to the court order then there is no purpose in this Court striving to achieve the best balancing of the interests of justice for the parties only to find that Mr. Elensky substitutes his views of that balancing for any view we may reach. 

In those circumstances, I would dismiss this appeal.

In Young v. Young (1976), 17 N.S.R. (2d) 375 the Nova Scotia Supreme Court  Appeal Division adopted the same practice.

Another option for the court is to adjourn the appeal until the appellant either pays the arrears or demonstrates that he cannot pay them.  Our court resorted to this option in Parkinson v. Parkinson (1973), 3 O.R. 293, where Gale C.J.O. said:

The Court has come to the conclusion that it ought not to entertain the appellant’s appeal until either the arrears owing by him are paid or we are satisfied that he cannot pay them.  Accordingly, the appeal will be adjourned sine die to permit the appellant to fulfil one or the other of those conditions.

…

A third option for the court is to hear the appeal on its merits, despite the appellant’s wilful default.  The court will be more likely to do this where the amount of arrears is small.  See Ott v. Ott (1982), 1982 CanLII 1872 (ON CA), 39 O.R. (2d) 260 (C.A.).” 

Brophy v. Brophy, 2004 CanLII 25419 (ON CA) at 11-12, 14

“In Ontario, only licensees under the [Law Society] Act are permitted to practice law or provide legal services in Ontario.

Historically, the Act only governed barristers and solicitors and only contained prohibitions against the unauthorized practice of law. In 2006, the Act was amended to enable the Society to regulate the profession of paralegals. These changes came into force in 2007. The Act now prohibits both the unlicensed ‘practice of law’ and the unlicensed ‘provision of legal services’.

Section 26.1 sets out the specific prohibitions:        

(1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.         

(2) Subject to subsections (6) and (7), no person, other than a licensee whose licence is not suspended, shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario.         

(3) No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence.

…

(5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

Only lawyers may “practice law in Ontario”. According to s. 1(1) of the Act, “a person who is authorized to practise law in Ontario” is “a person who is licensed to practice law in Ontario as a barrister and solicitor and whose license is not suspended” or a person who is not licensed but “is permitted by the by-laws to practise law as a barrister and solicitor in Ontario”. Pursuant to s. 2 of “By-Law 4 – Licensing” made under s. 62 of the Act (“the By-Law”), only those who hold a class “L” licence are entitled to practice law in Ontario as a barrister and solicitor.

‘Providing legal services’ is broader. The Act provides guidance on what constitutes the provision of legal services. In s. 1(5), the Act explains that a person provides legal services “if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person”. The Act then expands on this definition:

(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.

2. Selects, drafts, completes or revises, on behalf of a person,

…

vii. a document for use in a proceeding before an adjudicative body.

3. Represents a person in a proceeding before an adjudicative body.

4. Negotiates the legal interests, rights or responsibilities of a person.

(7) Without limiting the generality of paragraph 3 of subsection (6), doing any of the following shall be considered to be representing a person in a proceeding:

1. Determining what documents to serve or file in relation to the proceeding, determining on or with whom to serve or file a document, or determining when, where or how to serve or file a document.

2. Conducting an examination for discovery.

3. Engaging in any other conduct necessary to the conduct of the proceeding.

According to s. 6 of the By-Law, paralegals who hold a valid “P1” licence are entitled to provide various legal services. These include representing parties in proceedings in particular forums, such as Small Claims Court, the Ontario Court of Justice for provincial offences matters, or administrative tribunals. A licensed paralegal may also give a party advice regarding “his, her or its legal interests, rights or responsibilities” with respect to those proceedings.”

Law Society of Ontario v. Harry Kopyto, 2020 ONSC 35 (CanLII) at 9-14

“In the case of Ramsay v. Ramsay, 1999 CanLII 15027 (ON SC), [1999] O.J. No. 4835, Aston J. stated, at paragraph 10:

[…] the “presumption” [in sub rule 24(1)] that success determines entitlement to costs does not mean that a successful party is always entitled to costs, unless that party has “behaved unreasonably” as contemplated under sub-rule 24(4). In my view, the court’s discretion under section 131 of the Courts of Justice Act is wider than that and still allows for consideration of the factors expressed by Katarynych J. in Beaumont v. Fransden, supra. There may be an increased emphasis on the outcome or “success” as a factor, but the fact that success is only presumptive under Rule 24(1) invites consideration of other factors. Otherwise, Rule 24(1) would simply read “A successful party is entitled to costs”.

This passage from Ramsay was endorsed by the Court of Appeal in M. (C.A.) v. M (D.), at paragraph 41.

In M. (C.A.) v. M (D.) the Court of Appeal confirmed, at paragraphs 40 – 42, that:

a)  although the Family Law Rules have circumscribed the broad discretion granted by section 131(1) of the Courts of Justice Act they have not completely removed the trial judge’s discretion;

b)  although the general provision, sub rule 24(1), enacts a “presumption” that the successful party is entitled to costs of the case, it does not require that the successful party is always entitled to costs;

c)  a successful party may not obtain a costs award in his or her favour even in circumstances not falling within sub rule 24(4);

d)  there may be circumstances aside from the unreasonableness of the successful party’s conduct that rebut the presumption; and

e)  the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18 pursuant to the direction in sub rule 24(11) that the court take into account “any other relevant matter”.”

Bexon v. McCorriston, 2020 ONSC 92 (CanLII) at 19-21

“Before a court can change either a child support or spousal support order it must be satisfied that a material change in circumstances has occurred.  The wife, as the moving party, bears the burden of satisfying the court there has been such a material change in circumstances.

In Willick v Willick, 1994 CalII 28 (SCC) the Supreme Court of Canada defined “material change in circumstances” as a change that, “if known at the time, would likely have resulted in different terms”. On a motion to change, the court must not look behind the order the moving party seeks to change.  It must proceed on the assumption the order was correct in terms of all the circumstances which existed at the time.  As the court put it in Willick:

Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents.  As such, the correctness of the previous order must not be reviewed during the variation proceeding.

Although Willick was decided before the Child Support Guidelines came into effect, it nevertheless still enunciates the appropriate principles in approaching a variation application.  Therefore, I begin, as I must, with the assumption the Greer order was correct and appropriate in terms of all the circumstances at that time.

Here, the order in question was made in September of 2014.  Thus, the wife must show there has been a material change in circumstances since then.  Even though the order was made on consent, incorporating the parties’ Minutes of Settlement, the test for variation is no different than had it been made after a full hearing.  More recently, the Supreme Court in LMP v LS, 2011 SCC 64 (CanLII) said that to be “material”, a change must be one that first, relates to something that was not either expressly addressed by the parties or that cannot be taken as having been in their contemplation, and second, results in the support provisions no longer being in substantial compliance with the Divorce Act’s objectives.

The threshold variation question is the same, whether or not the support order incorporates an agreement, as is the case here.  That being said, where the parties have reached a final agreement and its terms are incorporated into a court order, the agreement’s terms must be given considerable weight in a later variation application.  The agreement plays a central role in that kind of variation application, and Miglin principles are highly relevant to the process: 2003 SCC 24 (CanLII).  Miglin principles deal with when parties should be held to the terms of an agreement they have signed, or, put another way, when parties may avoid the terms of an agreement they have signed.  I will address these principles later in these reasons when I first deal with the question of a change to spousal support, and then with whether any aspect of child support should be changed.”

O.S. v. N.S., 2018 ONSC 149 (CanLII) at 65-69

“The test for the granting of a restraining order is whether the moving party has reasonable grounds to fear for their safety or that of a child in their custody. The term “reasonable grounds” makes clear that there must be some objective reason for the fear. But as Dunn J. of the Ontario Court of Justice stated in Khara v. McManus, [2007] O.J. No. 1968 (O.C.J.), at para. 38, the test has a subjective element as well:

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

Further, as Dunn J. pointed out, a restraining order is not simply a response to historical concerns. Any past harassing behavior must have a connection to present acts. As he wrote at para. 34:

If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.

Restraining orders are not to be made on a pro forma basis. There must be evidence of the need for such an order (Palinka v. Palinka, 2003 CarswellOnt 2944 (S.C.J.)). It is not sufficient to say that no harm will arise if a restraining order is granted (Edwards v. Tronick-Wehring, 2004 ONCJ 309 (O.C.J.)). As Rogerson J. pointed out at para. 36 of Edwards, one reason that a court should be careful about ensuring that restraining orders are granted on appropriate evidence is the potential penalty for a breach. Sub-section 46(2) of the Family Law Act imposes sanctions such as a fine or even imprisonment for a breach of such a restraining order.” 

Chateauvert v. Chateauvert, 2019 ONSC 81 (CanLII) at 42-44