Month: October 2021

“There is a high hurdle to overcome for a claim to succeed under s. 5(6) on the basis of marital infidelity. I concur with the view of Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 (CanLII), 55 R.F.L. (7th) 117, at paras. 46 and 49:

All of the provisions of section 5(6) are directly linked to the impact on one or both spouses’ debts, liabilities, or property. A general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient. … It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else.

…

However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. … Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

Therefore, while the threshold is high, two matters are clear. First, the determination can only be made after the usual equalization payment is calculated. It is that calculation that must result in unconscionability. By definition, therefore, this determination cannot be made on a pleadings motion; it can only be made once the equalization payment is known. This explains why the cases relied upon by the motions judge to strike the claim were trial judgments.”.

Frick v. Frick, 2016 ONCA 799 (CanLII) at 32-33

“When there is a finding of parental alienation, little weight should be given to the child’s wishes.  For example, in Pettenuzzo, at para. 55, Whalen J. stated “if I accept that there has been parental alienation in this case, as I do, then the child’s preferences are not her own, but are those of her mother or other maternal family as she has been convinced.”

This concept is consistently applied in parental alienation jurisprudence.”

Malhotra v. Henhoeffer, 2018 ONSC 6472 (CanLII) at 146-147

“M.H. seeks disclosure from R.B. — specifically a copy of the Crown brief with regard to the alleged assault.  Counsel for R.B. has received a copy of the Crown brief.

…

R.B. opposes this motion for disclosure.

…

The Crown Attorney was not served with M.H.’s motion but, by way of affidavit filed by R.B., it is clear that the Crown attorney opposes disclosure of the Crown brief.

I accept the reasoning set out in the cases submitted by counsel for M.H..  See D.P. v. Wagg, 2001 CanLII 28033, 52 O.R. (3d) 625, 8 C.P.C. (5th) 252, 81 C.R.R. (2d) 182, [2001] O.J. No. 595, 2001 Cars­well­Ont 546 (Ont. S.C.); Fullowka v. Royal Oak Mines Inc., 1998 CanLII 5724, [1998] N.W.T.R. 42, [1998] N.W.T.J. No. 11, 1998 Cars­well­NWT 4 (N.W.T.S.C.); and, Consolidated NBS Inc. v. Price Waterhouse (1994), 1994 CanLII 10979 (ON SCDC), 69 O.A.C. 236, 111 D.L.R. (4th) 656, 3 C.C.L.S. 186, 24 C.P.C. (3d) 185, [1994] O.J. No. 263, 1994 Cars­well­Ont 494 (Ont. Div. Ct.).  These cases form the basis of my decision on the motion for disclosure.

The use of material, such as the Crown brief, in civil cases does not constitute an ulterior or collateral use of the material.  Disclosure is not being sought for use against the Crown.  There is no solicitor-and-client privilege that can be claimed by R.B. since the Crown brief was not prepared by his counsel for use in this proceeding.

It is apparently the policy of the Crown attorney’s office to provide disclosure to an accused, subject to certain conditions.  Logically, the imposition of these conditions, as a general policy, is contrary to the Crown’s own disclosure obligations in criminal cases.  See paragraphs [13]-[16] of Fullowka v. Royal Oak Mines, supra.

There is no principle against self-incrimination in civil proceedings.  Litigants are required to make full disclosure and to seek out relevant documents for production.

In Cook v. Ip, 1985 CanLII 163, 52 O.R. (2d) 289, 11 O.A.C. 171, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81, [1985] O.J. No. 2653, 1985 Cars­well­Ont 586 (Ont. C.A.), Appeal Justice Peter D. Cory, as he then was, stated:

There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court.  This is essential if justice is to be done between the parties.”

            M.H. v. R.B., 2002 CanLII 54808 (ON CJ) at 3, 5 & 7-12

“In her notice of appeal, the appellant alleges that the motion judge’s reasons were insufficient on the analysis of credibility and fail to assess contradictory evidence. Insufficiency of reasons is an error of law that, if established upon appeal, would lead to an order for a new trial.

I find that the motion judge’s reasons were comprehensive, and the purposes for providing reasons were met. As set out by the Supreme Court of Canada in R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 41, reasons have three fundamental purposes:

(a)      Reasons should tell the parties affected by the decision (especially the losing party) why the decision was made. Reasons also show that the judge has heard and considered the evidence and arguments before them and has not considered extraneous considerations.

(b)     Reasons should provide public accountability by showing that justice is not only done but is seen to be done.

(c)      Reasons must permit effective appellate review. This requires the judge to give a clear articulation of the factual findings and legal principles that underlay the decision.

Jewish Family and Child Service of Greater Toronto v. E.K.B, 2019 ONSC 6214 (CanLII) at 146-147

“The payor also however, relies on Rule 19.08 of the Rules of Civil Procedure. That rule provides that the court may set aside a default order or vary it on terms as are just. The caselaw establishes that the court may rely on Rule 19.08 to set aside a warrant of committal (see 122164 Canada Ltd. v. C.M. Takacs Holding Corp. 2015 ONSC 3007 (Ont. S.C.J.) ). The factors that the court should consider in determining whether to grant such relief are as follows:

1. 1. 1. 1. 1. The ultimate issue on such a motion is whether it is in the interests of justice to set aside the default judgment. In deciding this issue, the judge should have regard for:

a)  The potential prejudice to the moving party if the motion is dismissed;

b)  The potential prejudice to the respondent should the motion be allowed; and

c) The effect of any order the motion judge may make on the overall integrity of the administration of justice (see Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 41 C.P.C. (6^th) 316, 2007 ONCA 333(Ont. C.A.).

2.   In assessing the issue of prejudice in the context of a motion to set aside a warrant of committal made in a Family Responsibility Office enforcement proceeding, the court should also consider any prejudice to the recipient from either granting or refusing the order (Mariani, at para. 67).

3.   In carrying out the analysis required on such a motion, the court should be guided by the following considerations:

a)   Whether the moving party moved promptly after learning of the order to have it set aside;

b)  Whether the moving party has provided an adequate explanation for the default; and

c)   Whether the moving party has an arguable case on the merits in the Family Responsibility Office default proceeding itself.

These three considerations are guidelines only for the court’s exercise of its discretion, and are not rigid preconditions to the exercise of the court’s discretion (Peterbilt ; Mariani ; Ontario (Director of Family Responsibility) v. Dick, 2013 ONCJ 198 (Ont. C.J.) ).

4.    The exercise of the court’s discretion on a motion to set aside a warrant of committal issued under the Family Responsibility and Support Arrears Enforcement Act, 1996. S.O. 1996, C.31, as am., should also be guided by the purposes of incarceration in this context. The caselaw establishes that imprisonment in the context of support enforcement is meant as a means of enforcement, and not as a means of punishment. The enforcement rationale for imprisonment upon non-payment of support only makes sense if the payor has the ability to pay the support and fails to do so (Mariani, para. 56).”

Director of Family Responsibility v. Lucy, 2017 ONSC 6497 (CanLII) at 7

“Even though an original RRSP contribution or deduction does not reduce the payor’s income for child support purposes, when RRSP monies are withdrawn in a later year they are included in Line 150 by operation of CSG section 16, and presumptively form part of the payor’s income for child support purposes: Fraser v. Fraser, 2013 ONCA 715 (CanLII), [2013] O.J. No. 5347 (Ont. C.A.) at para. 97.  There is some flexibility, however, and if the court is of the opinion that including the RRSP withdrawals would not be the fairest determination of the parent’s income, it can apply CSG section 17 as set out above and determine a different amount that is fair and reasonable: see Ludmer v. Ludmer, 2014 ONCA 827 at para. 23.  This is a discretionary exercise: Ludmer at para. 23; Liu v. Huang, 2020 ONCA 450 at para. 30.

…

Ludmer v. Ludmer is the leading decision regarding whether withdrawn RRSP monies used to pay for legal fees should be excluded from Line 150 income for child support purposes.  In that case the issues included both child support (in a shared parenting plan) and spousal support.  Both party’s incomes were therefore relevant.  Each parent in that case had taken out sizeable amounts from their RRSPs, although the mother took out substantially more.  If both sums were included in income for support calculations, that would have favored the father in calculating the set-off or CSG section 9 child support.  The trial judge excluded both.  The Court of Appeal agreed, noting that the mother per her Financial Statement had used her proceeds “primarily” to fund the litigation, not to enhance her lifestyle (para. 24).  The parties there had “engaged in scorched-earth litigation warfare”, explaining the high fees.”

            Richard v. Holmes, 2020 ONSC 6485 (CanLII) at 29 & 32

“The case law generally favours an order for partition and sale of a home by a cotenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. That type of conduct is essentially bad faith conduct involving some sort of hidden agenda or purpose connected to the request for a sale of the property: see Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.J.) at para. 38. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.”

Crews v. Bradford, 2018 ONSC 6413 (CanLII) at 15

“In Davis v. Crawford, 2011 ONCA 294 (Ont. C.A.), Justices Simmons and Lang writing for the five judge panel set out the following principles applicable to a lump sum support payment:

• A court’s ability to award a lump sum payment is not restricted to situations where there is a real risk that periodic payments will not be made or to very unusual circumstances (para. 51).
• Lump sum awards should not be made in the guise of support for the purpose of redistributing assets (para. 60).
• Lump sum awards can be made to relieve against financial hardship if this has not been done by orders dealing with distribution of property and the matrimonial home (para. 61).
• Whether the payor has the ability to make a lump sum payment without undermining his or her future self-sufficiency is an important consideration (para. 63).
• The court must weigh the advantages of a lump sum award against the disadvantages of doing so on the facts of each case (paras. 66-68).
• The judge making the lump sum award should provide a clear explanation for both the basis for the exercise of that discretion and the rationale for the figure arrived at (para. 75).
• If a lump sum award is made, the court should consider whether the amount is in keeping with the Spousal Support Advisory Guidelines and, if not, explain why the Guidelines do not provide a satisfactory result (para. 76).”

Golton v. Golton, 2018 ONSC 6245 (CanLII) at 291

“I concur the mother had a positive obligation to ensure Kaila be returned to the care of her father.  However, parents are not required to do the impossible in order to avoid a contempt finding.  They are, however, required to do all that they reasonably can (my emphasis).

In Supple v. Cashman [2014] O.J. No. 2800 (Ont. S.C.J.), A.D. Sheffield, J. dealt with among other things, a notice of motion by a father seeking to find the mother in contempt of prior orders as she was not facilitating his access.

The parties’ teenage children did not wish to see their father.  The father argued his estrangement was as a result of parental alienation by the mother and she was in contempt of court for not facilitating his access.  The evidence however failed to establish the mother intentionally breached the access order.  The mother had made attempts to facilitate access in the face of resistant teenagers.

At paragraph 17, J. Sheffield noted the following:

In making my order, I am also aware that the children in this case are entering adolescence.  They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidence by their adamant refusal to see their father despite the efforts of several adult relatives.  It is a simple reality that, despite a court order, teenagers are likely to seekout residency as it suits their desires and to “let their feet do the talking”.

Sheffield discussed the elements for a finding of civil contempt at paragraphs 31-34 as follows:

With respect to the third requirement, the court in Brookes v. Vander Muelen (1999), 1999 CanLII 14292 (MB QB), 141 Man. R. (2d) 25 (Q.B.) noted that the “standard of intention is knowledge of the reasons for the order and contravention of the other”.  Wilful disregard will count as intention, but casual, accidental or unintentional acts of disobedience are insufficient for a finding of contempt.

Evidence of contempt in family matters should be “clear and unequivocal”.  The courts are reluctant to make findings of contempt where a parent can show that she acted in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest: Brookes, supra.

In Geremia v. Harb (2007), 2007 CanLII 1893 (ON SC), 73 W.C.B. (2d) 395) (Ont. S.C.J.), Quinn J. discussed the efforts which a custodial parent must exert to honestly attempt to comply with a court order that children attend access visits with the non-custodial parent.  He stated, at paragraph 44:

Where a child should be physically forced by the custodial parent to go on an access visit depends on the facts of the case.  Certainly, the force used should not be such as to cause physical harm to the child.  And, although the specter of emotional harm is more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason.  Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform.  But ask we must and perform they must.  A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves.  The job of a parent is to parent.

In Sickinger, supra, the court noted that a parent does not have to force a child to go with the other parent but should “require” the child to do so.  Failure to require the child to attend access visits is considered contempt.

In Godard v. Godard 2015 ONCA 568, the Appellant mother appealed an order of the motion judge, finding her in contempt of court as she was not facilitating access to the father.  In particular, the mother felt there had been insufficient proof to satisfy the judge beyond a reasonable doubt that she willfully disobeyed the access order as the judge agreed the appellant had made some efforts to encourage their 12-year old daughter to see their father.

The court rejected this argument and stated at paragraphs 28 and 29:

Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child.  As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathrust, (2008), O.J. No. 4734 (Ont. S.C.J.) at para. 8.  See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 Can LII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup. Ct.).

No doubt, it may be difficult to comply with an access order, especially aschildren get older.  Parents are not required to do the impossible to avoid a contempt finding.  They are however, required to do all that they reasonably can.  In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant’s failure to do all that she reasonably could; she failed to “take concrete measures to apply normal authority to have the child comply with the access order”.

I do note that in Godard the Ontario Court of Appeal noted the motion judge had previously advised the appellant in prior proceedings that more than mere encouragement was required if the child did not wish to attend for access.  Despite their previous warning, the mother did not go beyond mere encouragement and attempt stronger forms of persuasion.

            Teal v. Teal, 2020 ONSC 6395 (CanLII) at 38-45

“As the father is the sole shareholder of the business, s. 18 of the Child Support Guidelines gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Section 18 provides:

Whenever s.18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes: Nesbitt v. Nesbitt, 2001 MBCA 113 (CanLII), [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32 (CanLII), [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. The reasoning is due to the reality that the payor parent knows more about the business than the recipient, and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. Elder v. Dirstein, 2012 ONSC 2852 (CanLII).”

            Lachance v. Campbell, 2015 ONSC 6551 (CanLII) at 40