Month: March 2021

“In R. v. Campbell, 1999 CanLII 676 (SCC), [1999]1 S.C.R. 565, 43 O.R. (3d) 256, at para. 49, the Supreme Court of Canada described solicitor-client privilege as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or the legal adviser, exception the protection be waived.

In R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 36, Arbour J. underscored the importance of solicitor-client privilege, finding that it is fundamentally important to our judicial system, and concluding that it “must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis”.

Solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result: Descôteux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, 44 N.R. 462, at para. 27; Biehl v. Strang, 2011 BCSC 213, [2011] B.C.J. No. 274, at para. 39.

In Biehl, at para. 39, the court set out the principles applicable to waiver of solicitor-client privilege, including that waiver of solicitor-client privilege may occur in the absence of an intention to waive, where fairness and consistency require it. Waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.

A party will waive the protection of solicitor-client privilege when it voluntarily injects into the proceeding the question of its state of mind, and, in doing so, uses as a reason for its conduct the legal advice that it has received: Biehl, at para. 39.

To displace solicitor-client privilege, there must be an affirmative allegation which puts the party’s state of mind in issue: Biehl, at para. 39.

In Benson v. Kitt, 2018 ONSC 7552, at para. 16, the court held that 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.

Privilege can be waived expressly, inferentially or by conduct: Biehl, at para. 42. A witness can implicitly waive privilege through their conduct including by putting the legal advice they received in issue, or by testifying about privileged communications. The guiding principles in an enquiry about whether privilege has been waived must be fairness and consistency: Spicer v. Spicer, 2015 ONSC 4175, at para. 13.

The disclosure of receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. The question is whether the party disclosing the legal advice has opened an inquiry into whether the legal advice effected his state of mind. In the majority of cases, placing state of mind at issue will not amount to waiver. However, where a party has placed its state of mind at issue and given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained: Spicer, at paras. 13-15.”

            Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 12-20

“To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.

Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada’s Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:

[There should be] a process that offers no legal confirmation of a spouse’s contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations—not dissolution, not financial advantage, not a privileged position vis-à-vis the children.

In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the “undesirability of provoking suits within the family circle.” As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved—especially to the welfare of the child—and will invite a flood of cases. See also Louie v. Lastman (2001), 2001 CanLII 28066 (ON SC), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed (2002), 61 O.R. (3d) 459 (C.A.), and Saul v. Himel (1994), 1994 CanLII 18262 (ON SC), 9 R.F.L. (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 1996 CanLII 10207 (ON CA), 22 R.F.L. (4th) 226 (Ont. C.A.).

Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that “the legislature intended to devise a comprehensive scheme” that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.

When a couple’s dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. There is a corresponding obligation “placed equally upon both parents” to financially support the child: Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has confirmed that:

the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 208).

The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

It would be contrary to the spirit, purpose and policy reflected in Ontario’s no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.

The appellant asserts that he accepts and has complied with his statutory duty to pay child support. Nevertheless, the appellant seeks to recover in excess of $4 million in damages from the child’s mother in compensation for losses flowing from the child’s birth and his responsibilities toward that child. In the circumstances of this case, to allow the appellant’s claim would, in effect, be to allow the appellant to circumvent the equal obligations to the child imposed on parents by law—obligations that are imposed without regard to fault or intention.

Little would distinguish this proposed claim from claims other parents may decide to bring against their former spouses or sexual partners seeking compensation for the burdens imposed on them by the birth of an unwanted child, where it is claimed that the child’s conception was the result of a misrepresentation, duress, or even the negligence of the former spouse or sexual partner with respect to matters such as fertility or contraceptive use or misuse. Such actions would engender disharmony between mothers and fathers and would be contrary to the spirit of this province’s family law legislation.

…

For these reasons, as a matter of legal policy the alleged damages should not be recoverable in tort. Therefore, this is not the kind of novel claim that ought to be allowed to proceed to a protracted and expensive trial: see Arora v. Whirlpool Canada LP, 2013 ONCA 657, [2013] 118 O.R. (3d) 113, at para. 94.”

         PP v. DD, 2017 ONCA 180 (CanLII) at 57-65, 68

“The order under appeal was made in the course of ongoing family law proceedings. The order requires that the appellant make certain payments, including monthly spousal and child support payments to the respondent.

Paragraph 7 of the order reads:

In the event that the Husband fails to comply with paragraph 5 above, the Wife may move without further notice to the Husband to strike his pleadings involving all financial issues between the parties.

The appellant appeals essentially on the ground that he genuinely cannot pay the amounts ordered and that the effect of para. 7 is to deny him any opportunity to participate any further in the ongoing proceedings. Counsel for the appellant refers to this as a “catch 22”.

The appellant’s credibility in this litigation has been the subject of adverse comment. His asserted impecuniosity is strongly challenged by the respondent. In any event, even if the appellant is impecunious, that fact does not assist in determining the appropriate appellate forum. We agree with counsel for the moving party that the terms of the order requiring payments towards spousal and child support are interlocutory. A term like para. 7, directed at the consequence of non-compliance with the order, cannot alter the nature of the order: see J.K. v. Ontario, 2017 ONCA 332, at para. 18.

The order is interlocutory. The appeal is quashed. We do not reach the motion for security for costs.”

        Benarroch v. Abitbol, 2018 ONCA 203 (CanLII) at 2-5