Month: May 2021

“A trial judge should consider the conduct of the proceedings and delays attributable to particular parties to those proceedings in determining the rate of prejudgment interest.  Prejudgment interest is not, however, intended as a means of punishing or rewarding parties for the manner in which they have conducted the proceedings.  Its role is compensatory.  I see no basis to interfere with the trial judge’s finding that Mr. Novakovic’s conduct of the claim should not deprive him of the compensation due him under the Courts of Justice Act provisions relating to prejudgment interest.

The appellant also argues that the rate of prejudgment interest should be modified to reflect the change in the rate between December 2000 and September 2005.  The rate fluctuated between a high of six percent in December 2000 and a low of 2.3 percent in 2002.  The average for the time period would appear to be about 3.4 percent.

Trial judges sometimes average prejudgment interest rates over the time period between the commencement of the action and the obtaining of judgment.  This is particularly appropriate where the prejudgment interest rates fluctuate widely.  The onus is, however, on the parties seeking a different rate than that imposed by the statute to justify the imposition of that different rate.  I do not think the fluctuations in issue in this case are sufficient to hold that some averaging of the prejudgment interest rates was essential.  Clearly, the trial judge could have averaged the rate but, in my view, she did not err in not doing so.”

         Novakovic v. Kapusniak, 2008 ONCA 381 (CanLII) at 42-44

“It is clear that since COVID-19 the court has found that there is no presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169, at para. 10.

In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz set out the following:

a)    In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing.

b)    A blanket policy that children should never leave their primary residence — even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

c)     In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day-period as a result of recent travel; personal illness; or exposure to illness).

d)    In some cases, a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

e)     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

f)     The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to — including social distancing; use of disinfectants; compliance with public safety directives; etc.

g)    Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

h)    Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

Although Ribeiro is not a child protection matter, the guidelines are applicable. See: Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, at para. 6.”

         C.A.S. v. J.N., 2020 ONSC 2999 (CanLII) at 61-63

“The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co‑operate and communicate effectively: see, for example, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at 4 (C.A.).”

Roy v. Roy, 2006 CanLII 15619 (ON CA) at 4

“Section 3(1) provides that the “amount of a child support order” for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The tables referred to in s. 3(1)(a) are the Federal Child Support Tables set out in Schedule I of the Guidelines. Section 7 allows a court to provide for an amount to cover all or any portion of special or extraordinary expenses. As I read s. 3(1), expenses ordered under s. 7 are not added to the amount of a child support order, but are part of it. I understand Laskin J.A.’s comment at para. 25 of Andrews v. Andrews (1999), 1999 CanLII 3781 (ON CA), 45 O.R. (3d) 577, [1999] O.J. No. 3578 (C.A.) to describe an expense under s. 7 as an “add-on” to the table amount. While the application of s. 3(1) is subject to the exception “[u]nless otherwise provided under these Guidelines“, there is a presumption in favour of the amount determined by s. 3(1): Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, [1999] S.C.J. No. 52, at para. 42.

Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.

Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. It is apparent that the word “approach” was chosen with care, as the word “amount” is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the “amount” determined under s. 3 where it considers that amount to be inappropriate. The words “that approach” refer to the technique dictated by s. 3(2) (a) — namely applying the Guidelines “as if the child were under the age of majority”. I will refer to that technique as the “standard Guidelines approach”. Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.”

            Lewi v. Lewi, 2006 CanLII 15446 (ON CA) at 126-129

“Rule 24 [of the Family Law Rules] created a new framework for determining costs in family law proceedings.  The presumptive nature of rule 24 has significantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party.  The Ontario Court of Appeal in MacDonald v. Magel, 2003 CanLII 18880, 67 O.R. (3d) 181, 176 O.A.C. 201, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149, [2003] O.J. No. 3707, 2003 Cars­well­Ont 3606, held that, while the rules have not completely removed a judge’s discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs.  Courts must not only decide liability for costs, but also the amount of those costs.

In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars­well­Ont 2475, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

	(1)	to partially indemnify successful litigants for the cost of litigation;
	(2)	to encourage settlement; and
	(3)	to discourage and sanction inappropriate behaviour by litigants.

The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees.  As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars­well­Ont 2521 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

In Delellis v Delellis and Delellis, 2005 CanLII 36447, 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars­well­Ont 4956, Justice David R. Aston states the following at paragraph [9]:

. . .  recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs.  . . .  Costs must be proportional to the amount in issue and the outcome.  The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant  . . .”

         Christie v. Christie, 2013 ONCJ 256 (CanLII) at 24-27

“The rule in Browne v. Dunn creates an obligation to give a witness, called by the opposite side, an opportunity to explain evidence which the cross-examiner intends to later use to impeach the testimony or credibility of the witness. This rule was expressly adopted in Canada in Peters v. Perras (1909), 42 S.C.R. 244.

…

Trial judges do have discretion as to the remedy to be afforded for a breach of the rule in Browne v. Dunn, if a breach has occurred. The effect that a court should give to a breach of the rule depends on a number of factors and the circumstances of the case: R v. Dexter, 2013 ONCA 744, 313 O.A.C. 266, at para. 20; R v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9. In Dexter, this court delineated two permissive options to rectify a breach of the rule. First, the trial judge can take into account the breach of the rule when assessing a witness’s credibility and deciding the weight to attach to that witness’s evidence: Dexter, at para. 21; Werkman, at para. 9; R v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124. Second, the trial judge can also allow counsel to recall the witness whose evidence was impeached without notice: Dexter, at para. 21; R v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (Ont. C.A.), at paras. 47-49.”

         Curley v. Taafe, 2019 ONCA 368 (CanLII) at 27 & 31

“In these motions, the parties both seek to vary an existing interim custody and access order made pursuant to section 16(2) of the Divorce Act.  The legislation does not set out a specific test for variation of interim custody and access orders.  Although section 17 (1)(a) of the Act authorizes the court to vary a custody order, and section 17(5) enumerates the factors that the court must consider in doing so, that section only applies to final custody and access orders (Brooks v. Brooks, 1998 CarswellOnt 3097 (C.A.); Lagrandeur v. Lagrandeur, 2017 ONSC 6967 (S.C.J.), at para. 41).  However, the court does have the jurisdiction to change interim custody orders made under section 16(2) of the Divorce Act in appropriate circumstances.  The Ontario Court of Appeal has held that typically, interim custody and access orders should not be changed unless there is a “manifest change in circumstances or any important new evidence to justify a change in the status quo” (Serruys v. Serruys, 1982 CarswellOnt 305 (C.A.), at para. 12).    It has emphasized the importance of minimizing interlocutory proceedings in custody and access matters, stating that any decision can generally be only “guess based” without the benefit of a full hearing with viva voce evidence and cross examination (Serruys, at para. 12).  Accordingly, there should be sound reasons that militate in favour of taking immediate action with respect to the parenting arrangements rather than waiting for a final hearing on the issues (see also F.(H.) v. G.(D.), 2006 NBCA 36 (C.A.), at para.  17).”

         Blythe v. Blythe, 2020 ONSC 2871 (CanLII) at 24

“As I said earlier, the Ontario CFSA governs every aspect of child protection proceedings in Ontario.  The Act specifies the procedure to be followed, the evidentiary requirements under this process and, most of all, spells out the objectives of the legislation in s. 1, of which the first and “paramount” objective of the Act is to promote “the best interests, protection and well-being of children”.

In attempting to fulfil this objective, the Act carefully seeks to balance the rights of parents and, to that end, the need to restrict state intervention, with the rights of children to protection and well-being.  The Ontario legislation, when compared to the legislation of other provinces, has been recognized as one of the least interventionist regimes. (See Richard F. Barnhorst, “Child Protection Legislation: Recent Canadian Reform”, in Barbara Landau, ed., Children’s Rights in the Practice of Family Law, p. 255.)  This non-interventionist approach is premised not with a view to strengthen parental rights but, rather, in the recognition of the importance of keeping a family unit together as a means of fostering the best interests of children.  Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent.  In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost, even at the stage of an inquiry under the status review provisions.  As well, such an approach is in line with modern principles of statutory interpretation as expressed in Elmer A. Dreidger, Construction of Statutes (2nd ed. 1983), in this often-quoted passage at p. 87:

Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The procedural steps and safeguards which govern the entire process under the Act, including the status review hearing, must always be construed in light of the clear purposes of s.1.”

Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC) at 24-25

“During the case conference Mr. Bastien advised that his clients did not wish the examination for discovery of Mr. Fenton to proceed by videoconference. However, in light of the implementation of social distancing in response to the pandemic, conducting an in-person examination at this time is not possible. Therefore, they request a delay in the proceedings until the requirement for social distancing is ended.

The plaintiffs object to a videoconference examination because they maintain:

a.   that they need to be with their counsel to assist with documents and facts during the examination;

b.   it is more difficult to assess a witness’s demeanour remotely;

c.   the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and

d.   the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

The Rules of Civil Procedure, RRO 1990, Reg. 194, that govern how lawsuits are conducted, have provided for videoconferencing for more than 20 years. In 1999, Rule 1.08 was added to the Rules as follows:

1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):

1. 1. 1. 1. 1. 1. 1. A motion (Rule 37).
                  2. An application (Rule 38).
                  3. A status hearing (Rule 48.14).
                  4. At trial, the oral evidence of a witness and the argument.
                  5. A reference (Rule 55.02).
                  6. An appeal or a motion for leave to appeal (Rules 61 and 62).
                  7. A proceeding for judicial review.
                  8. A pre-trial conference or case conference.  O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1; O. Reg. 438/08, s. 3 (1).

(2) If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements.  O. Reg. 288/99, s. 2.

(3) If the parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just.  O. Reg. 288/99, s. 2; O. Reg. 438/08, s. 3 (2).

(4) The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3).  O. Reg. 288/99, s. 2.

(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter.  O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.

Initially, an order for the use of remote proceedings required the consent of all parties or, in the absence of consent, that a party bring a motion. In 2008, Rule 1.08(3) was amended to enable the court to require remote proceedings at the court’s own initiative. This reflects an evolution of the acceptance of the use and perceived value of remote communication technology whereby it can be ordered even where neither side asks for it or wants it.

Rule 1.08(1) is written very broadly. It allows for the use of remote technology in any step in a motion, application, trial, etc. I have no hesitation finding that an examination for discovery ordered in association with a mini-trial of a summary judgment motion is a step in a motion and a trial.

Looking at the factors in Rule 1.08(5), the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion. Neither is demeanour a factor in this case. The transcript of an examination for discovery of Mr. Fenton can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour.

I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.”

Arconti v. Smith, 2020 ONSC 2782 (CanLII) at 17-26

“The father argues that the order should be set aside. There are serious issues, including custody.  Some latitude must be given for his noncompliance since he was a self-represented litigant.

The mother argues that this is but another example of the father’s conduct in delaying and not cooperating and that, in any event, a review of the facts would lead to the conclusion that there is no reason to set aside the sole custody order.

The parties agree, following Gray v. Gray, 2017 ONCA 100 that the appropriate procedure in this case is a motion under Rule 25(19)(e) of the Family Law Rules.

The parties also agree that the test for setting aside a default judgment is as in Mountain View Farms Ltd.  v. McQueen, 2014 ONCA 194:

[47] The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski, [2012] O.J. No. 2971, 2012 ONSC 3836 (S.C.J.), at paras. 19-20 and 23-24.

[48] The court must consider the following three factors:

(a)     whether the motion was brought promptly after the defendant learned of the default judgment;

(b)     whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

(c)     whether the facts establish that the defendant has an arguable defence on the merits.

[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 87 O.R. (3d) 479, [2007] O.J. No. 1685, 2007 ONCA 333, at para. 2:

(d)     the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e)     the effect of any order the motion judge may make on the overall integrity of the administration of justice.

[50] These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

[51] For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.”

A.C. v. T.D., 2019 ONSC 2815 (CanLII) at 10-13