Month: August 2021

“The Father wants Mr. Furlan to be moved as counsel for the Mother. He also wants any member of Mr. Furlan’s firm disqualified from representing the Mother.

The Superior Court of Justice has the inherent jurisdiction to determine, in a judicial manner, to whom it will give audience and may disqualify counsel by reason of conflict of interest or other juristic reason: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at p. 1245.

In determining whether counsel should be disqualified, the court is concerned with at least three competing values. First, is the desire to maintain the high standards of the legal profession and the integrity of our system of justice. Second, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession: MacDonald at p. 1243. The third value addresses the situation when counsel change firms, which is not applicable in the case before me.

One of the most common reasons to seek the disqualification of counsel is if there is a conflict of interest. In those cases, the court will remove that counsel if there is a possibility of real mischief. In these instances, “mischief” refers to the misuse of confidential information by a lawyer against a former client. This is because justice must not only be done, but also must manifestly be seen to be done: MacDonald at p. 1246.”

         Lopes v. Glover, 2020 ONSC 4915 (CanLII) at 51-54

“I have also considered, but must reject, the suggestion of joint custody for Jersey.

In Canadian law, there is no default position in favour of joint custody, as each case is fact-based and discretion-driven.”: Rapoport v. Rapoport, 2011 ONSC 4456 (S.C.J.), at para. 47. In considering whether joint custody is appropriate, “the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children.”  Ibid. at para. 48, citing Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.), and Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, 10 R.F.L. (6th) 373 (C.A.).

In Kaplanis v. Kaplanis, our Court of Appeal held that in order to grant joint custody, there must be “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”: Kaplanis v. Kaplanis, at para. 11.  Merely “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.” Ibid. The rationale is that the best interests of the child will not be served if the parents are unable to make important decisions concerning the child under a joint custody arrangement: Kalliokoski v. Kalliokoski, at para. 34.

Moreover, in some situations, a joint custody order may actually defeat the child’s best interests. As Pazaratz J. stated in Izyuk v. Bilousov, “[i]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully: Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.), at para. 504, quoted and followed in Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para.27 per Chappel J.

         Angus v. Angus, 2017 ONSC 4911 (CanLII) at 65-68

“The leading case on the application of s.9 is the Supreme Court of Canada case of Contino v. Leonelli-Contino: 2005 SCC 63. The framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.

The first factor requires that the Court determine the parties’ incomes and calculate the simple set-off amount. The simple set-off is the “starting point” of the s.9 analysis, but the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another: Contino, supra, at 40 and 49-51.

Section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. The Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the child care expenses will be apportioned between the parents in accordance with their respective incomes: Contino, supra, at 52-53.

Section 9(c) vests in the Court a broad discretion to conduct an analysis of the resources and needs of both parents and the children. It is important to keep in mind the objectives of the CSG, requiring a fair standard of support for the children and fair contribution from both parents. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection:

a.  Actual spending patterns of the parents;

b.  Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and

c.  Standard of living for the children in each household: Contino, supra, at 71-72.

The Court has discretion to assess the ability of each parent to assume any increased cost of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

The Court has full discretion under s.9(c) to consider “other circumstances” and order the payment of any amount, above or below the Table Amounts. This discretion, if properly exercised, should not result in hardship.”

 Moreton v. Inthavixay, 2020 ONSC 4881 (CanLII) at 62-67

“The law regarding a lawyer`s authority to bind his client to a settlement is clearly set out in two decisions:

a.  In Scherer v. Paletta1966 CanLII 286 (ON CA), [1966] 2 O.R. 524, the Court of Appeal states the following:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. A client, having retained a solicitor in a particular matter, holds that solicitor out as his agent to conduct the matter in which the solicitor is retained. In general, the solicitor is the client’s authorized agent in all matters that may reasonably be expected to arise for decision in the particular proceedings for which he has been retained. Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent’s authority.

b.  In Dick v. McKinnon, 2014 ONCA 784, at para. 4, the Court of Appeal states:

This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary.””

Alston v. Alston, 2016 ONSC 5062 (CanLII) at 12

“Having found that the family law application and the civil action have a question of fact or law in common, I must now decide whether it would be appropriate to consolidate the two proceedings or to order that they be tried together. There are many good reasons to order consolidation or trial together, among them, to avoid a multiplicity of related proceedings, to avoid inconsistent findings, to reduce costs and save time for the parties and to save court time and related resources: Canadian National Railway v. Holmes, 2011 ONSC 4837.

In Canadian National Railway v. Holmes, at para. 44, D. M. Brown J., as he was then, referred to 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 at para. 18 and a list compiled by Master Dash of factors a court may consider when faced with a request to consolidate proceedings or to order trial together. The factors, which may or may not apply depending on the circumstances, include:

a)  the extent to which the issues in each action are interwoven;

b)  whether the same damages are sought in both actions, in whole or in part;

c)  whether damages overlap and whether a global assessment of damages is required;

d)  whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

e)  whether the parties the same;

f)   whether the lawyers are the same;

g)  whether there is a risk of inconsistent findings or judgment if the actions are not joined;

h)  whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

i)  whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

j)   the litigation status of each action;

k)  whether there is a jury notice in one or more but not all of the actions;

l)   whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

m) the timing of the motion and the possibility of delay;

n)  whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

o)  any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

p)  whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

q)  whether the motion is brought on consent or over the objection of one or more parties.”

         Klassen v. Klassen, 2020 ONSC 4835 (CanLII) at 39-40

“The parties agree that both Ontario and France have jurisdiction, and therefore, the forum non conveniens test should be used to determine the most appropriate location for the resolution of their dispute.  In the recent decision of Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 343 D.L.R. (4^th) 577, in which this area of the law was comprehensively considered, the Supreme Court held it was not possible to draw up an exhaustive list of relevant factors.  However, at para. 110, the court identified such factors as including:

• • • • the locations of parties and witnesses,

• • • • the cost of transferring the case to another jurisdiction or of declining the stay,

• • • • the impact of a transfer on the conduct of the litigation or on related or parallel proceedings,

• • • •   the possibility of conflicting judgments,

• • • • problems related to the recognition and enforcement of judgments, and

• • • • the relative strengths of the connections of the two parties.

In order to succeed in this appeal, Mr. de Somer must demonstrate that France is “clearly more appropriate” as the forum for the determination of child support: Van Breda, at para. 109.”

         de Somer v. Martin, 2012 ONCA 535 (CanLII) at 29-30

“The Courts of Justice Act allows a Receiver/Manager to be appointed where it appears to the judge to be just or convenient to do so.  Specifically, s. 101 (1) says:

          Injunctions and receivers

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted, or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge to be just or convenient to do so.

           R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

There is further authority for the appointment of a receiver pursuant to the Family Law Rules under Rule 26(3)(g) and Rule 26(4)(c):

Rule 26: Enforcement of Orders

26. (3) PAYMENT ORDERS – A Payment order may be enforced by…

(g) the appointment of a receiver under section 101 of the Courts of Justice Act;

26 (4) OTHER ORDERS – An order other than a payment order may be enforced by…

(c)  the appointment of a receiver under section 101 of the Courts of Justice Act.

Receivers may be appointed on a motion pursuant to Rule 41 of the Rules of Civil Procedure, which may be referred to pursuant to Rule 1(7) of the Family Law Rules:

Rule 41 – Rules of Civil Procedure – Appointment of a Receiver

            …

HOW OBTAINED

Rule 41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be obtained on motion to a judge in a pending or intended proceeding.

FORM OF ORDER

Rule 41.03 An order appointing a receiver shall,

Name the person appointed or refer that issue in accordance with Rule 54;

Specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of the receiver’s duties, or refer that issue in accordance with Rule 54;

State whether the receiver is also appointed as manager and, if necessary, define the scope of the receiver’s managerial powers; and

Contain such directions and impose such terms as are just.

REFERENCE OF CONDUCT OF RECEIVERSHIP

Rule 41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.

DIRECTIONS

Rule 41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the referee.

DISCHARGE

Rule 41.06 A receiver may be discharged only by the order of a judge.

…

Rule 1 (7) Family Law Rules

Rule 1 (7) MATTERS NOT COVERED IN RULES – If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

…

Pursuant to Rule 1(8) of the Family Law Rules, the court may deal with the failure to obey an order by making any order that it considers necessary for a just determination of the matter.  Lastly, the court must deal with each case justly and promote the primary objective pursuant to Rule 2(2), (3), (4) and (5).

Rule 1(8) Failure to Obey Order

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a)   An order for costs;

(b)   An order dismissing a claim;

(c)  An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) An order that all or part of a document that was required to be provided by was not, may not be used in the case;

(e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) An order postponing the trial or any step in the case; and

(g) On motion, a contempt order.

Rule 2 (2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly,

Rule 2 (3) DEALING WITH CASES JUSTLY – 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.

Rule 2 (4) DUTY TO PROMOTE THE PRIMARY OBJECTIVE – The court is required to apply these rules to promote the primary objective and parties and their lawyers are required to help the court to promote the primary objective.

Rule 2 (5) DUTY TO MANAGE CASES – The court shall promote the primary objective by active management of cases, which includes,

(a) At an early stage, identifying the issues and separating and disposing of those that do not need full investigation and trial;

(b) Encouraging and facilitating use of alternatives to the court process;

(c) Helping the parties to settle all or part of the case;

(d) Setting timetables or otherwise controlling the progress of the case;

(e) Considering whether the likely benefits of taking a step justify the cost;

(f) Dealing with as many aspects of the case a possible on the same occasion; and

(g) If appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

Generally, having regard for the words of section 101 of the Courts of Justice Act, the court has discretion to appoint a Receiver/Manager if it is just or convenient to make such an order.  This remedy will only be granted in cases where special circumstances exist.  There are many cases that outline the special circumstances under which a Receiver/Manager will be appointed.  An order appointing a Receiver/Manager may be properly made if there are no means of legal execution available to the creditor, or if the creditor demonstrates to the court that it is “practically very difficult, if not impossible, to obtain the fruit of his judgement” through legal execution. See Sengmueller v. Sengmueller, [1996] O.J. No. 1942, (Ont. C.J. Gen. Div.) and Goldschmidt v. Oberrheinishe Metallwerke, [1906] 1 K.B. 373.”

         Renard v. Renard, 2019 ONSC 4732 (CanLII) at 9-13

“Mr. Clapp asserts that Ms. Clapp’s interest in the Oceana Trust was worth more than $5 million on December 31, 2012.  He says that, based on the gifts she received from her mother during their marriage, $100,000 in annual income should be imputed to her for the purposes of calculating his entitlement to spousal support.

Ms. Clapp states that she is one of several beneficiaries of Oceana Trust, which is managed by an institutional trustee, St. George’s Trust Company Limited.  She states that she has no control over what the trustee produces, and that she has produced all that she has received.  This documentation discloses when the Trust was settled, the value of its assets, and what funds it has disbursed.  Ms. Clapp argues that, contrary to Mr. Clapp’s assertions, she does not receive frequent disbursements from the Trust.

The Divorce Act provides, in section 15.2(4), that the court, in making orders for spousal support, “shall take into consideration the condition, means, needs and other circumstances of each spouse.”

The court employs the methodology set out in the Federal Child Support Guidelines to determine income for purposes of spousal support as well as child support.  Olah J. noted in Rilli v. Rilli that the test for imputing income for child support purposes applies equally to claims for spousal support: Rilli v. Rilli, [2006] O.J. No. 2142.  See also: Pellerin v. Pellerin, 2009 CanLII 60671 (ON SC), 2009 CanLII 60671 (ON S.C.). The Spousal Support Guidelines provide, in this regard:

The starting point for the determination of income under both formulas is the definition of income under the Federal Child Support Guidelines, including the Schedule III adjustments.

The Advisory Guidelines do not solve the complex issues of income determination that arise in cases involving self-employment income and other forms of non-employment income.  In determining income it may be necessary, as under the Federal Child Support Guidelines, to impute income in situations where a spouse’s actual income does not appropriately reflect his or her earning capacity.

The issue of whether Ms. Clapp’s interest in Oceana Trust, or any distributions she receives from the Trust, should be included in her income, then, is determined by reference to the Federal Child Support Guidelines.  Section 19 of the Guidelines provides that the court, in appropriate circumstances (that is, where the other methods set out in sections 16 to 20 of the Guidelines are found not to be fair), may impute an amount of income to a spouse:

1. 1. 1. 19.    Imputing income. – (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

…

(i)        the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Mr. Clapp submits that he requires the disclosure requested in order to show the lifestyle of the parties during the marriage and the financial resources that Ms. Clapp has had during the marriage and since the parties’ separation.

In determining a spouse’s entitlement to support and the amount of such support, the general principle, as Aiken J. held in MacLaren v. MacLaren, is that the court does not require capital to be depleted to pay support: MacLaren v. MacLaren [2004] O.J. no 1473, S.C.J. per Aitken J at page 6. In emergency situations, the court makes an exception to this principle.  In Plaxton v. Plaxton, Granger J. stated,

… In my view, an order for interim support which would require that it be paid from capital should only be made where the recipient requires such funds to maintain a minimal standard of living.  If the effect of an interim support order is that it will be paid from capital, the order may be viewed as an attempt to equalize capital through a support order: Plaxton v. Plaxton 2002 CanLII 49545 (ON SC), 2002 CanLII 49545, (2002), 27 R.F.L. (5^th) 135 (ON S.C.), at para. 33.

Pardu J., in Jackson v. Jackson, made an exception to the general principle and ordered a husband to use capital to pay interim support where he had received over $1 million from his father, or trusts established by his father, but had a very modest income.  He stated,

Where there is a substantial history of use of capital to support a joint lifestyle, and where there has been a moderately lengthy marriage, I do not believe that a spouse should necessarily be relegated to a lifestyle appropriate to income only, rather than the other means available to the spouse, at least on an interim basis.

…While there is no evidence that the husband could obtain more remunerative employment at this time, it does not seem appropriate that his wife and children should suddenly be relegated to a lower standard of living while he enjoys a very comfortable lifestyle without any obligation on his part to seek employment.

It may be that the wife ultimately will accept a lower standard of living, and pursue more meaningful employment herself, however, I am of the view that on an interim basis, something approaching the pre-separation lifestyle should be provided to the family unit comprised of the wife and children: Jackson v. Jackson, 1997 CanLII 12392 (ON SC), 1997 CanLII 12392, [1997] 35 R.F.L. (4^th) 194, (ON.S.C.), paras. 20, 24, and 25.

Similarly, in Gonzalez v. Ross, Thorburn J., awarded spousal support to a woman based on amounts that her co-habitant, who earned only $18,000.00, had received as an inheritance and as gifts from his father.  He stated:

The case before me does not involve a long-term marriage and it is not clear on the evidence adduced by Ross, that he can or should provide spousal support in the long-term as he contends that his capital and his own standard of living have been reduced.  However, there has been a sudden and dramatic decline in Gonzalez’ income.  As such, notwithstanding my reservations set out above, I believe Gonzalez should receive some interim support. Gonzalez v. Ross, 2007 CanLII 3880 (ON SC), 2007 CanLII 3880 (ON SC), paras. 53 to 56 [Emphasis added]

In Laurain v. Clarke, after reviewing the jurisprudence, I concluded that capital amounts should not generally be regarded as income for the purpose of calculating support but that the income they can reasonably generate should be imputed to the payor spouse for purposes of calculating the amount of support: Laurain v. Clarke, 2011 ONSC 7195 (CanLII), at para. 55.

The court has identified the following factors, most of which help distinguish between income and capital, that should be considered when determining whether an amount received should be included in income for the purposes of calculating child or spousal support:

a)      Is the amount included in income for purposes of income tax?

b)      Is the amount capital that generates income?

c)      Is the amount, if capital, compensation for loss of income?

d)      Has the amount, if capital, been equalized, or is it exempt?

e)      Is the payment of the amount gratuitous?

f)         Is the payment of the amount recurrent?

g)      Were the funds typically used to finance a significant proportion of the recipient’s living expenses?”

         Clapp v. Clapp, 2014 ONSC 4591 (CanLII) at 18-28

 “There are two principles at play: the status quo should generally not be disturbed on an interim motion; but the parent who unilaterally creates the status quo should not benefit from the status quo she or he has created.”

Adams v. Nobili, 2011 ONSC 4714 (CanLII) at 22.

“In cases where sexual abuse has been alleged but not confirmed, the court must first consider whether it is satisfied on the balance of probabilities that it occurred.  But even where the evidence does not support a finding of sexual abuse on a balance of probabilities, the court must go further and consider, on the basis of the whole of the evidence, whether there is a risk of harm to the child if access is given without protection against that risk.  A risk must be more than speculative or simple conjecture (C.B. v. W.B., 2011 ONSC 3027, at paras. 125-137).  In this regard, I adopt the conclusion set out by Justice Ricchetti in C.B. v. W.B., supra, at para. 139:

In conclusion, the court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child.  It requires the Court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason).  The Court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize.  The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes.   Where this risk of harm falls along this continuum will determine the weight to be given to this factor.  This is then only one factor in determining what is in the best interests of the child.  The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.”

L v. K., 2015 ONSC 4926 (CanLII) at 35