Month: June 2021

 “Society counsel provided me in advance with Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, a case that explores the legal test to change temporary Orders.  It is not contested that the COVID-19 closure of the CAS facility is a change in circumstance sufficient to vary the temporary Order of February 11, 2020.

COVID-19 has had the unprecedented effect of cancelling in-person access at Society facilities across Ontario.  In Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170 the court took judicial notice of the fact that during the pandemic, Societies cannot provide the level of supervision that it might otherwise have been able to provide, and that many staff are working remotely.

Nonetheless, Societies are being ordered to facilitate access wherever possible and to find new ways of delivering services.  In C.A.S. v. J.N., A.F. and M.S., 2020 CarswellOnt 6741 Justice Piccoli summarizes the caselaw to date and confirms that “since COVID-19, the court has found that there is no presumptive authority extended to the Society to suspend 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.””

         CAS v. C.F. and J.M., 2020 ONSC 3755 (CanLII) at 27-29

“Settlement agreements in matrimonial proceedings should ordinarily be respected and the parties should not be entitled to go back on their agreement to resolve their differences.  In their jointly authored judgment in Miglin v. Miglin, supra, Bastarache and Arbour JJ. state at para. 4:

[W]e believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. … [T]hese general objectives include not only the equitable sharing of the consequences of the marriage breakdown under s. 15(2), but also certainty, finality and autonomy.

At para. 54, Bastarache and Arbour JJ. refer to the importance of fostering settlements and state that if the policy of encouraging parties to resolve their matrimonial disputes is to be maintained, “more must be shown than mere deviation from what a trial judge would have awarded in an order before it is appropriate for the court to disregard the parties’ pre-existing agreement.” Miglin dealt with a separation agreement. We are concerned with minutes of settlement reached during the course of litigation where the promotion of certainty, autonomy and finality is especially important.

The appellant submits that as the respondent received appropriate legal advice and as she proposed the terms of the minutes of settlement, it cannot be said that he took advantage of her by accepting her proposal.  Most agreements entered into with the benefit of a competent legal advice will be upheld, especially where the party seeking to avoid the settlement proposed the terms.”

            Simpkins v. Simpkins, 2004 CanLII 28909 (ON CA) at 17-19

“The respondent and the deceased were not married.  There is no dispute, however, that they were cohabiting as spouses on the date of the accident.  The issue is whether they were cohabiting on May 6, 2000, three years before the accident, as required by s. 29 [of the Family Law Act]. Section 29 defines “spouse” to include couples who have “cohabited continuously for a period of not less than three years” and s. 1(1) defines “cohabit” as “live together in a conjugal relationship, whether within or outside marriage”.

The crucial finding of the trial judge was at paragraph 30 of his reasons:

The necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later.  Their relationship was an exclusive one, neither party being unfaithful.  They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours.  While they may not have finalized any joint financial arrangements and continued to maintain separate residences, they lived together under the same roof.

The appellant submits that we should impose a bright line test and conclude that as the respondent had not “moved in” with the deceased as of May 6, they were not living together at that time.  We disagree.  In our view, “moving in” would add no precision to the meaning of “live together” and it would not provide the clear and definitive test sought by the appellant.  The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible.  In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 in this area.  We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting.  The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke [2003] O.J. No. 3471 (S.C.).”

         Stephen v. Stawecki, 2006 CanLII 20225 (ON CA) at 2-4

“The self-represented applicant, Mr. Owen Mullings, appealed a Family Court decision resolving numerous issues between the applicant and his former common law spouse, Ms. Jacqueline Robertson. On December 13, 2019, the applicant’s appeal was dismissed: 2019 ONCA 979. He now moves, pursuant to rr. 37.14(6) and 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to have the appeal decision set aside and he seeks leave for a new hearing. He also asks for interim relief and he asks this court to order the payment of sums in his favour, and relief from costs orders made in the appeal and at the Family Court trial.

Rule 61.16(6.1) refers to the two rules the applicant invokes. It provides that a decision of a panel of this court may only be varied or set aside pursuant to rr. 37.14 or 59.06.

For its part, r. 37.14 has no application here. This is not a case involving an order obtained on motion without notice, a failure to appear on a motion, or an order of the registrar: r. 37.14(1).

As for the court’s authority to reconsider a decision under r. 59.06, that authority is “limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6., leave to appeal dismissed, [2017] S.C.C.A. No. 366. This court will set aside a decision and rehear a case on its merits only in rare circumstances: see First Elgin Mills Development Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7.

In support of his application, the applicant argues that the appeal decision contains numerous “errors”. In each case he submits that this court “failed to consider that the trial judge erred” in making findings by arriving at decisions contrary to the preponderance of evidence or based on misapprehensions of the evidence. The misapprehensions of the evidence he identifies amount to no more than the failure by the trial judge to make the findings and orders the applicant advocates. In substance, the grounds the applicant offers in support of his request that this court’s decision be set aside and a new hearing be held amount to expressions of disagreement with the correctness of the appeal decision. Although made in the context of a criminal appeal, Charron J.A.’s comments in R. v. H. (E.), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 101-102, leave to appeal refused, [1997] S.C.C.A. No. 256, are apt:

[T]o the extent that an application to reopen an appeal is a challenge to the correctness of a decision … the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. … The power to further review the matter no longer belongs to this court.

We see no basis upon which it would be in the interests of justice to set aside the appeal decision. The proper route in contesting the appeal decision was for the applicant to have sought leave to appeal from the Supreme Court of Canada.”

         Mullings v. Robertson, 2020 ONCA 369 (CanLII) at 1-6

“Allowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition. This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples.

Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same- sex marriage. Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views.

In our view, the opposite-sex requirement in the definition of marriage does not minimally impair the rights of the claimants. Same-sex couples have been completely excluded from a fundamental societal institution. Complete exclusion cannot constitute minimal impairment.”

Halpern v. Canada (Attorney-General), 2003 CanLII 264037 (ON CA) at 137-139

“A party should not have to endure order after order after order being ignored and breached by the other side. A refusal to disclose one’s financial affairs is not just a mis-step in the pre-trial tactical game that deserves a two minute delay of game penalty. Failure to disclose is a breach of the primary objective. Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules. It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.”

         Manchanda v. Thethi, 2016 ONSC 3776 (CanLII) at 22

“The jurisdiction of this court to award costs arises from s. 131 of the Courts of Justice Act. That provision gives the court broad discretion to determine costs.

General Costs Principles

As the Ontario Court of Appeal noted in Serra v. Serra, 2009 ONCA 105 (CanLII), [2009] O.J. No. 432 (O.C.A.), at para. 8:

Modern costs rules are designed to foster three fundamental purposes: (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: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

In Shute v. Shute, [2017] O.J. No. 4110, Justice Victoria Starr of the Ontario Court of Justice supplements Serra’s three costs purposes by offering a fourth which apply in family law proceedings: ensuring that the primary objective of the Family Law Rules (“FLR”), dealing with cases justly, is met. Starr J. wrote:

29 Subrule 2(2) of the Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the Rules is met — that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the Rules. Subrule 2(4) of the Rules states that parties have a positive obligation to help the court to promote the primary objective under the Rules. Clauses 2(3)(a) and (b) of the Rules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. [See: Sambasivam v. Pulendrarajah, 2012 ONC 711 (CanLII)].

In Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (O.C.A.) (“Boucher”), at para. 24 the Ontario Court of Appeal stated that costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.”

De-Emphasis on Counsel’s Hourly Rates and Time Spent

In Delellis v. Delellis and Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345, (S.C.J.), Justice David Aston of this court noted the emphasis on setting a “fair and reasonable” amount of costs that emerges from Boucher and the cases following it. Aston J. found that this approach has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs. He continued at para. 9:

…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. [Citations omitted]

In Beaver v. Hill, 2018 ONCA 840 at para. 10, the Ontario Court of Appeal clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters.

Scale of Costs

In deciding costs in family law proceedings, judges are not constrained by the normal scale of costs found in the Rules of Civil Procedure. The court may increase or decrease what would ordinarily be an appropriate amount of costs based on the behaviour of the parties and the presence of absence of offers to settle. (Beaver v. Hill at para. 9).

Party Status does not Grant a License to Litigate Oblivious to the Consequences

The right to bring or respond to a case does not grant either party a license to litigate in a manner that ignores the consequence of that litigation. Justice Carole Curtis of the Ontario Court of Justice emphasized this point in Sabo v. Sabo, [2013] O.J. No. 4628 (O.C.J.), as follows at para. 38:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation…

Rule 24 Factors

FLR Rule 24 sets out the factors that the court must consider in the exercise of its discretion regarding costs. However the court retains its ultimate discretion to determine what costs are reasonable (C.A.M. v. D.M., 2003 CanLII 18880 (Ont. C.A.) at para. 43).

The starting point, found in r. 24(1) is that the successful party is presumptively entitled to the costs of a motion, enforcement, case or appeal (see also Beaver v. Hill and Berta v. Berta, 2015 ONCA 918). But as Rosenberg J.A. stated in C.A.M. v. D.M., at para. 41, that provision does not completely remove the court’s discretion to refuse to grant costs to the successful party. Further, as the Ontario Court of Appeal stated in Beaver v. Hill, there is no presumption that the successful party in a family law proceeding is entitled to an amount approaching full or even substantial indemnity costs. The exceptions to that principle are bad faith (r. 24(8)) or besting an offer to settle (r. 18(14)) (see paras. 11 and 13).

Further, under r. 24(6), if success in a step in a case is divided, the court may apportion costs as appropriate.”

         Cummings v. Cummings, 2020 ONSC 3592 (CanLII) at 8-15

“In Costantini v. Costantini, 2013 ONSC 1626, Pazaratz J. did an extensive review of damages awards in Canadian domestic assault and battery cases. Where the victim suffered serious and permanent physical injuries, general damage awards ranged from approximately $66,000 to $170,000: Megeval v. Megeval, [1997] B.C.J. No. 2454 (S.C.); Shaw v. Shaw, 2012 ONSC 590, 9 R.F.L. (7th) 359; Bird v. Kohl, 2012 BCSC 1424, 27 C.P.C. (7th) 157. I have adjusted the amount of the damages awarded in each case to reflect inflation.  In cases where domestic violence did not result in any permanent physical injury, as in this case, far lower damages have typically been awarded.  This includes cases where the victim has been battered repeatedly over a long period of time: S. (L.N.) v. K. (W.M.), 1999 ABQB 478, 246 A.R. 60; Wandich v. Viele (2002), 2002 CanLII 49549 (ON SC), 24 R.F.L. (5th) 427 (Ont. S.C.); Van Dusen v. Van Dusen, 2010 ONSC 220, [2010] O.J. No. 313.

In my view, abuse of a child by a parent over many years should attract more than modest damages, even in the absence of any serious physical injury.”

         Calin v. Calin, 2019 ONSC 3564 (CanLII) at 338-339

“Subrule 24 (18) (previously 24 (12)) of the Family Law Rules permits the ordering of interim disbursements:

24 (18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

Subrule 24 (18) must be read in conjunction with the primary purposes of the rule which are found in subrule 2 (2) and 2 (3):

2 (2) The primary objective of these rules is to enable the court to deal with cases justly.  O. Reg. 114/99, r. 2 (2).

2 (3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.  O. Reg. 114/99, r. 2 (3).

The order under subrule 24 (18) is a discretionary one. In exercising discretion under the rule, the court must ensure the primary objective of fairness under the Family Law Rules is met: Ludmer v. Ludmer, 2012 ONSC 4478, para 15.

In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:

1. 1. 1. 1. 1. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available;

1. 1. 1. 1. 2. The claimant must demonstrate that he or she is incapable of funding the requested amounts;

1. 1. 1. 1. 3. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.

The court in Stuart added that:

9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24 (12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

However:

10) An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

Regarding Part 1 of the test, the court in Stuart said at paragraph 11:

11) Certainly  the  proof of  the  necessity  of  interim  disbursements  would  be critical  to  the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:

1. 1. 1. 1. 1.    There was no affidavit from counsel regarding outstanding fees;

1. 1. 1. 1. 2.    There was no evidence of the prospective costs of the case.

Consequently, the claim for interim costs was dismissed. There was a similar result in Beasley v. Beasley, [2019] O.J. No. 1192.”

         Malette v. Malette, 2019 ONSC 3448 (CanLII) at 65-73

“Marriage is defined by statute.  In Ontario, the primary statute is the Marriage Act, R.S.O. 1990, c. M.3.  For purposes of this case, the two relevant provisions are:

1. 1. 1. 1. 4.    No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

-and-

1. 1. 1. 1. 31.  If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabitated as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of licence.

Section 31 is a deeming provision in circumstances of non-compliance or imperfect compliance with s. 4 of the Marriage Act.  The section has four elements: 1) the marriage must have been solemnized in good faith; 2) the marriage must have been intended to be in compliance with the Marriage Act; 3) neither party was under a legal disqualification to contract marriage; and 4) the parties must have lived together and cohabitated as a married couple after solemnization.  Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.

Several courts have considered the good faith and intention to comply elements of s. 31.

In Alspector v. Alspector, 1957 CanLII 93 (ON CA), [1957] O.R. 454 (Ont. C.A.), the Court of Appeal considered a previous deeming provision of the Marriage Act and a Jewish marriage ceremony without a marriage licence.  The deeming statute then, s. 33 of the Marriage Act, provided:

Every marriage solemnized in good faith and intended to be in compliance with this Act between persons not under a legal disqualification to contract such marriage shall be deemed a valid marriage so far as respects the civil rights in Ontario of the parties or their issue and in respect of all matters within the jurisdiction of this Legislature, notwithstanding that the clergyman, minister or other person who solemnized the marriage was not duly authorized to solemnize marriage, and notwithstanding any irregularity or insufficiency in the proclamation of intention to intermarry or in the issue of the licence or certificate or notwithstanding the entire absence of both; provided that the parties, after such solemnization, lived together and cohabited as man and wife.

The issue decided there was the meaning of the phrase, “intended to be in compliance with the Act”.  To that issue, the Court of Appeal, at para. 46, concluded:

It should be held that the legislature did not assume, believe or expect that every couple who should intermarry in the Province would be familiar with this Act.  It would be the rare case, indeed, in which either of them would know of the existence of the Marriage Act.  All that they would be expected to know is that there would be some law in effect in the Province respecting the solemnization of marriages.  The phrase should therefore be interpreted as meaning, – intended to be in compliance with that law.

The Court of Appeal upheld the trial court’s judgment declaring a good and valid marriage despite the lack of a marriage licence.  The Court assumed that the wife knew that a licence had not been issued but she did not know that such absence could affect the validity of the marriage and intended that the marriage be in compliance with the law:  see Alspector, at para. 49.

Broad J., in Isse v. Said, 2012 ONSC 1829, at para. 26, followed Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act.  In that case there was an Islamic wedding ceremony but without a marriage licence:  see Isse, at para. 11.  The ultimate question was whether the marriage was intended to be in compliance with the Marriage Act: see Isse, at para. 19.  The marriage validity was founded on the wife’s “undisputed evidence” that there was an intention to be in compliance with the marriage law:  see Isse, at para. 25.

In a very recent case, Peterson J. in Jama v. Basdeo, 2020 ONSC 2922, at para. 40, followed the reasoning in Issa and Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act.  This too was an Islamic wedding ceremony without a marriage licence:  see Jama, at para. 26.  The marriage validity was founded on the finding “that the marriage was solemnized in good faith and was intended by both parties to comply with the law”:  see Jama, at para. 32.”

         Lalonde v. Agha, 2020 ONSC 3486 (CanLII) at 35-42