Month: November 2021

“Defamation is established where the words complained of: 1) are defamatory, in that they would tend to lower a person’s reputation in the estimation of reasonable people; 2) are about the plaintiff; and 3) have been published to a third party.  To determine whether the words complained of are defamatory, the plaintiff must show the main thrust, or “defamatory sting,” of those words.  In every defamation action, the trier of fact must determine the defamatory sting from both the plain meaning of the words complained of and from what the ordinary, reasonable person would infer from them in the context in which those words were published: Cusson v. Quan, 2007 ONCA 771 at para 34.

What the ordinary man would infer without special knowledge has generally been called the “natural and ordinary meaning” of the words.  Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer.  But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.

The defamatory sting is not determined on a narrow reading of the words complained of in isolation. Context is crucial, as it informs what meaning the ordinary person will infer from the words complained of: the words must be given their meaning in context.  The statements do not stand by themselves, but must be read in light of what has preceded them and what follows.”

            Rutman v. Rabinowitz, 2016 ONSC 5864 (CanLII) at 133-135

“An appeal is not a re-trial of a case.  As such, consideration must be given to the appropriate standard of review applicable to the questions at issue on appeal.

The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)

In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.

Reati v. Racz, at para. 30, provides a helpful summary of the principles found in Housen v. Nikolaisen: 

In Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.), the Supreme Court of Canada discussed in detail the standard of appellate review. The following principles emerged from that case:

a) an appellate court should not interfere with a trial judge’s reasons unless there is palpable and overriding error; stated another way, an appellate court is prohibited from reviewing a trial judge’s decision if there is evidence upon which the trial judge could have relied to reach that decision (para. 1);

b) the role of appellate court judges is to review the reasons in light of the arguments of the parties and relevant evidence, and then to uphold the decision unless a palpable error leading to the wrong result has been made by the trial judge (para. 4);

c) on a pure question of law, the standard of review is that of correctness (para. 8);

d) the standard of review for findings of fact is such that findings are not to be reversed unless the trial judge has made a “palpable and overriding” error (para. 11);

e) appellate courts must treat a trial judge’s findings of fact with great deference, this rule being based principally on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony (para. 12);

f) a court of appeal is clearly not entitled to interfere merely because it takes a different view of the evidence; the finding of facts and the drawing of evidentiary conclusions from the facts is the province of the trial judge, not the Court of Appeal (para. 24);

g) the standard of review for factual inference is the same as for findings of fact — there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge — that ofpalpable and overriding error (para. 25);

h) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para. 27); and

i) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).

A palpable error is one that is plainly seen: Housen.  Failing palpable and overriding error in the findings or inferences of facts, deference is granted to the trial judge or arbitrator.

The Supreme Court of Canada clarified that “questions of law” refers to the determination of what is the correct legal standard or test to employ in a particular case: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (S.C.C.), at para. 35.  Examples of errors in law can include application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness: Housen, supra, at para. 36.  In the context of commercial arbitration, where appeals are restricted to questions of law, the standard of review will be reasonableness unless the question is one that would attract the correctness standard, such as constitutional questions or questions of law of central importance to the legal system as a whole and outside the adjudicator’s expertise: Creston Moly Corp. v. Sattva Capital Corp, 2014 SCC 53, at para. 106.  (Also see Piller Investments Limited v. 1594342 Ontario Limited, 2018 ONSC 5874, at para. 16)

As set out in Creston Moly Corp., historically, determining parties’ legal rights and obligations under written contract are questions of law. Canadian courts, however, in the interpretation of contracts, have evolved towards a practical, common-sense approach not dominated by technical rules of construction.  The overriding concern is to determine “the intent of the parties and the scope of their understanding”: Creston Moly Corp. v. Sattva Capital Corp, at para. 47.  (Also see J.W. v. Canada (Attorney General), 2019 SCC 20 (S.C.C.).) 

The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.

The failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence: Housen, at para. 39. “[A]n omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion.  Without this reasoned belief, the appellate court cannot reconsider the evidence.” Housen, at para. 39, citing Van de Perre v. Edwards, 2001 SCC 60 at para. 15.

The court in Housen affirmed that the scope of appellant review is narrowly defined and dictated that the appellant court should not find the trial judge to have misapprehended or ignored evidence or came to the wrong conclusion simply because the appellant court disagrees in some inferences drawn or would emphasize different portions of the evidence: Housen, at para. 56.   A difference of opinion between the inferences to be drawn from the evidence and proper weight to be placed on particular facets of the evidence is not a justifiable reason for the appellant court to re-assess the evidence, particularly where there is no error in law.  The determination of weight to give to evidence is to be left to the trier of fact, particularly where conflicted evidence is presented. (See Housen, at para. 59)

Absent proof that an omission in reasons is due to a misapprehension or neglect of the evidence, then the court can presume that the trial judge reviewed the evidence in its entirety and based its factual findings on this review: Housen at para. 72.  Moreover, just because a trial judge does not discuss a certain point or particular evidence in depth is not sufficient grounds for appellate interference: Housen, ibid.

As set out in Southam, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., at para. 36.”

            Rosenberg v. Yanofsky, 2019 ONSC 6886 (CanLII) at 6-17

“The court’s discretion to grant leave to issue a CPL is set out in section 103 of the Courts of Justice Act (Ontario) with the procedure in Rule 42. The law with respect to CPL motions brought on on notice in the context of constructive trust claims was recently considered in Saggi v. Grillone, 2020 ONSC 4140; Huntjens v. Obradovic, 2019 ONSC 4343; and Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247. The Defendants rely on all 3 cases.

The factors which the court must consider on a CPL motion were set out by Master Glustein (as he then was) in Perruzza v. Spatone, 2010 ONSC 841 at para. 20:

“(i)The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. – Mast.) (“Homebuilder“) at para. 1);

(ii)The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. – Comm. List) at para. 62);

(iii)The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);

(iv)Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. – Mast.) at paras. 10-18); and

(v)The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CanLII 1414 (ON SC), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).” (Saggi at para. 29)

The first issue is whether Cindy has advanced claims that raise a triable issue about whether she has a reasonable claim to an interest in the Property sufficient to support the issuance of a CPL (Saggi at paras. 31 and 55). A claim for a constructive trust is a claim for ownership which may give rise to a proprietary interest in land in accordance with s. 103 of the Courts of Justice Act and will support a claim for a CPL (Sun Rise at para. 3; Huntjens at paras. 37-38). Perell J. summarized the availability of a CPL with respect to constructive trust claims in Boal v. International Capital Management Inc., 2018 ONSC 2275:

“65  A constructive trust arising from a breach of fiduciary duty or a constructive trust associated with a claim for unjust enrichment will support a claim for a certificate of pending litigation.

66  A constructive trust is a proprietary remedy that may be available in two general circumstances of restitutionary claims: first, a constructive trust may be available in cases in which the defendant has been unjustly enriched at the expense of the plaintiff; and, second, a constructive trust may be available in circumstances where the defendant has committed a breach of a duty in equity and in good conscience he or she should not keep any ill-gotten gain.”

The evidentiary threshold on a CPL motion is low (Saggi at paras. 45 and 62). It is not the court’s role to determine whether Cindy’s constructive trust claim will likely succeed at trial, but whether she has raised a triable issue or prima facie case that the remedy of constructive trust is available to her or is a possible remedy at trial (Sun Rise at para. 10).

In determining whether there is a triable issue on a CPL motion, the court should not assess credibility or decide disputed issues of fact (Huntjens at paras. 20-21). Rather, the court must examine the whole of the evidence after cross-examination and, without deciding disputed issues of fact and credibility, consider whether on the whole of the evidence the plaintiff’s case constitutes a reasonable claim to the interest in land claimed (Huntjens at para. 21).”

            Li v. Li, 2020 ONSC 7315 (CanLII) at 19-23

“Having regard for all the variables that come into play in a particular family situation, when determining custody, access and the appropriate parental arrangement, it is important to note that no one statutory factor enjoys statutory pre-eminence. In Chin Pang, at para. 121, the court offered some useful questions to consider that are especially useful to the analysis of this case:

1. 1. 1. 1. the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;
         2. the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent of the parent’s partner;
         3. the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and
         4. whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.

Decision-making, and in particular, the ability of the parents to engage in joint decision-making without conflict is another essential dimension for consideration when deciding on the parenting arrangements and whether to grant joint or sole custody to parents. For joint decision-making to occur, and by implication joint custody, the parents must be able to put their own differences aside and communicate effectively about the various decisions they have to make in relation to their children. Such communications would include each parent sharing of information about the children’s address with the other, selecting schools and then interacting with that school where needed, consulting with one another and considering the other’s views when selecting and contacting treating physicians, counsellors, or other supporting specialists who might be needed to support a child’s various health and welfare needs, where the family observes religion, then discussing whatever decisions are to be undertaken in that context, collaborating in the selection of extra-curricular activities, the parents’ attendance at such events, and co-ordinating of access time with the children.”

            Ahmad v. Ahmad, 2019 ONSC 6804 (CanLII) at 99-100

“I am assuming your children are your most important concern.

You are responsible to raise and for the development of a human being. You get to do this without a license. You don’t need to have specialized courses.

Your most important job in life is to raise healthy, happy, well adjusted, educated and independent adults.

That job started at your children’s birth and today is the first day of the rest of their lives.

What you do going forward into the future, will affect them for the rest of their lives.

You are the most important people in their lives and therefore you have the greatest influence BOTH positively and negatively over their development as human beings.

You as parents have the inside track to emotionally damage up your children.

You are the male and female role models they will learn from with respect to all their future relationships. Think about it! How you treat each other is imprinting on them.

How you treat each other teaches them how they should treat and be treated by the opposite sex or significant other.

Please don’t think of each other as ex-spouses, think of each other as your children’s mother & father. Show your children’s mother and father the respect they deserve because they are your children’s mother and father.

Think of how you would react if someone referred to one of your parents in unflattering terms. I suspect they better duck.

To put it another way you don’t have to like each other but you should treat each other, with at least the respect you would show a neighbour.”

         Bridgeford v. Bridgeford, 2016 ONSC 7338 (CanLII) at 56-67

“The F.L.A. authorizes the court to do whatever is necessary with the collectivity of spousal assets to bring about an equal division of them. It should be the statute of first resort in matrimonial disputes, but it is not necessarily the only one. I think it is significant that s. 14(a) of the F.L.A. states that “the fact that property is held in the names of spouses as joint tenants is prima facie proof that the spouses are intended to own the property as joint tenants”. This is a recognition of the identical legal title of both spouses to an undivided ownership in the whole of the property. In my opinion, it is wrong to say, as it was said in Scanlan v. Scanlan, that the F.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly owned spousal property. The two statutes are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.”

            Silva v. Silva, 1990 CanLII 6718 (ON CA) at 23

“In L.(S.M.L.) v. M.(J.K.), 2016 ONSC 3198 at paragraph 16, the Honourable Justice Pazaratz set out the applicable law in relation to an Application such as this to dispense with parental consent, as follows:

a.   Section 138 of the CFSAis conjunctive. The criteria in both clauses (a) and (b) must be met: C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.).

b.   The onus is on the party who seeks to dispense with a parent’s consent, to satisfy the court that it would be in the best interests of the child to grant the order. R. (N.J.) v. M. (R.J.), 1994 CanLII 18216 (ON CJ), [1994] O.J. No. 1331(Ont. Prov. Div.). The court must consider the best interests factors set out in s. 136(2). Lott v. MacRae, 2005 CanLII 7659 (ON SC), [2005] O.J. No. 1060, 2005 CarswellOnt 1069 (Ont. S.C.J.).

c.   The best interests of the child test is a strict test, and the facts of the case must be applied when determining whether it is appropriate to dispense with the consent of a parent. R. (N.J.) v. M. (R.J.)(supra).The Court must be satisfied that the best interests requirement has been established “beyond the mere balance of probabilities.” W. v. C.(1981), 1981 CanLII 238 (ON CJ), 35 O.R. (2d) 730 (Ont. Fam. Ct.)

d.   The best interests test in the context of an adoption proceeding is not the same best interests test in the context of a custody and access proceedings. A custody or access order can always be reviewed upon a material change in circumstances. An adoption order is final and irrevocable. It may not be questioned or reviewed in any court. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.).

e.   In applying the best interests of the child test, the court must weigh the advantages of dispensing with a parent’s consent to adoption, against the disadvantages. M. (J.J.) v. L. (S.D.)(1992), 1992 CanLII 14028 (NS CA), 42 R.F.L. (3d) 400 (N.S. C.A.). The court must balance what the child will gain and lose, with emphasis on what the child will gain. Lott v. MacRae(supra). There must be “cogent” benefits to the child in order to terminate the blood relationship. K. (A.) v. E. (A.), 2013 ONSC 5421 (Ont. S.C.J.); R. (N.J.) v. M. (R.J.)(1994),1994 CanLII 18216 (ON CJ), 5 R.F.L. (4th) 375 (Ont. Prov. Div.)

f.   The court must determine whether there would be a positive contribution to the welfare of the child by dispensing with the natural parent’s consent. This requires a review of the past, present, and future circumstances which have or may affect the welfare of the child. The court must then determine whether the child will benefit by permanently cutting the parental tie. Stoodley v. Blunden(1980), 1980 CanLII 3761 (NS CA), 17 R.F.L. (2d) 280 (N.S. C.A.).

g.   It is not necessary to find parental misconduct to dispense with the natural parent’s consent to adoption. The exclusive focus is the child’s best interest, not the rights of the natural parent. Parental misconduct or abandonment is only relevant if the non-consenting parent continues to engage in conduct that is not beneficial or even harmful to the child. S. (R.) v. W. (B.), 2011 ONCJ 185 (Ont. C.J.); L. (S.I.) v. L. (L.J.), 1985 CanLII 707, 51 O.R. (2d) 345, 47 R.F.L. (2d) 155, [1985] O.J. No. 2584, 1985 CarswellOnt 299(Ont. U.F.C.); L. (M.) v. M. (S.)(1989), 13 A.C.W.S. (3d) 259, [1989] O.J. No. 3, 1989 CarswellOnt 1385 (Ont. U.F.C.).

h.   A step-parent adoption should not be granted unless there is obvious benefit to the child and such change is absolutely necessary. M. (J.J.) v. L. (S.D.)(supra); Wolfe v. Cherrett(1978), 1978 CanLII 2149 (NS CA), 6 R.F.L. (2d) 121(N.S. C.A.).

i.   In cases of step-parent adoptions, the court should be mindful of improper motive. The parent and step-parent cannot use the adoption process to terminate the relationship between the child and the natural father because this relationship creates difficulties for the mother and stepfather. Smith v. Harvey(1974), 1974 CanLII 2162 (ON CA), 19 R.F.L. 367, [1974] O.J. No. 1291, 1974 CarswellOnt 975 (Ont. H.C.), aff’d at, (1975), 19 R.F.L. 367 at 373, [1975] O.J. No. 305, 1975 CarswellOnt 140 (Ont. C.A.). Adoption by a step-parent may be inappropriate where it would interfere with a biological father’s ongoing access to a child. M. (B.A.) v. B. (C.G.)(1987), 1987 CanLII 5148 (NL SC), 10 R.F.L. (3d) 85 (Nfld. U.F.C.).

j.   The decision must take into account the child’s wishes, to the extent that they can be ascertained. Lott v. MacRae(supra). The court must have information about the child’s level of maturity and experiences, in order to determine the weight to be given to a child’s views and preferences. S. (J.C.) v. S. (C.B.R.), 2011 ONCJ 191 (Ont. C.J.).

k.   The court must consider the child’s existing family reality. Lott v. MacRae(supra).

l.   The court should also consider whether a step-parent Application to adopt is premature. If the Application by the step-parent is made in the early and formative stage of the marriage, the courts should be careful about extinguishing a biological parent’s relationship with a child before assessing the stability and permanence of the relationship between the step-parent and the other parent: Pennington, Re(1980), 40 N.S.R. (2d) 373, 73 A.P.R. 373, [1980] N.S.J. No. 107, 1980 CarswellNS 148 (N.S. Co. Ct.).

m.   The stability and duration of the adoptive family must be considered. M. v. B.(1984), 1984 CanLII 4847 (ON SC), 41 R.F.L. (2d) 187 (Ont. Co. Ct.).

n.   The desire of a biological parent to maintain a formal parent-child relationship is relevant, and requires thorough consideration. But the benefits and implications of an adoption must ultimately be assessed from the child’s perspective. L. (S.I.) v. L. (L.J.)(1985), 1985 CanLII 707 (ON SC), 51 O.R. (2d) 345 (Ont. U.F.C.).

o.   Where a biological father has shown a genuine interest in a child, even though separated, and the child has an emotional attachment to the natural father, courts have been very reluctant to dispense with the father’s consent. Where the relationship is non-existent, courts are more persuaded to dispense with the natural parent’s consent. Smith v. Harvey(supra).

p.   The advantages of adoption identified by the courts include continuity of care; a positive relationship between the child an adopting parent; the similarity in family name; security at home in a family unit; benefit of stability in an inheritance or upon the death of a biological parent; confirmation of the reality of who is doing the parenting; and reaffirmation of sibling relationships — versus unknown, future or unlikely benefits from the biological parent. K. (A.) v. E. (A.)(supra); C. (P.) v. C. (P.C.), 2004 ONCJ 130 (Ont. C.J.) (CanLII), 2004 ONCJ 130 (Ont. C.J.); S. (J.C.) v. S. (C.B.R.)(supra).

q.   The advantage of dispensing with consent includes the elimination of possible interference by the Respondent in the parenting and stability of the child by the step-parent and custodial parent. K. (A.) v. E. (A.)(supra); M. (D.M.), Re, 2008 ABQB 564 (Alta. Q.B.).”

            R.C. & T.G. v. A.C. & B.D., 2017 ONSC 6960 (CanLII) at 19

“Section 6 of the Family Responsibility & Support Arrears Enforcement Act, 1996, S.O. 1996 c. 31, makes it clear that to stay enforcement by Family Responsibility Office, it is not enough just to obtain an order staying enforcement.  The support order itself must also be stayed.  Suspending or staying a final order is indistinguishable in effect from an interim variation of that order.  For a time, this meant the court was dealing with two different legal tests, one for the stay of enforcement (for example see Yip v. Yip, 1988 CanLII 4472 (ON SC), [1988] O.J. No. 2784 (Ont. H.C.)) and one for an interim variation of a final support order (for example see Dancsecs v. Dancsecs, 1994 CanLII 7434 (ON SC), [1994] O.J. No. 1070 (Gen.Div.)).

The two tests were melded in the often cited and relied on decision by Justice Quinlan of Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, at paragraph 37.  The test she set out was that the payor needed to demonstrate “a prima facie case on the merits of the variation application” and come to court with “clean hands”.

Shortly afterward Hayes v. Hayes, 2010 ONSC 3650 reviewed the different heads of relief and applicable tests as well starting at para. 27.  Justice Spies also concluded (at paragraph 39) that it would preferable to have one test for both the stay of enforcement and the request to suspend or vary the existing order on a temporary basis.  She adopted the test set out in Garneau, adding that the previous caselaw had also indicated that the moving party must establish a case of hardship.  As set out in paragraph 40 of that decision, she summarized that relief can be granted if the moving party (1) has established “a prima facie case that there has been a material change”, (2) has established hardship, and (3) and has come to the court with clean hands.

The following year the tests for an interim stay of enforcement and an interim variation of a support order were looked at again by Justice Mitrow in Clark v. Vanderhoeven, 2011 ONSC 2286.  He also found that there should only be one test, the first part being that the moving party must demonstrate “a prima facie case on the merits of the variation application”.  Drawing from previous cases, in his restatement of the test (at paragraph 67) he found that the “hardship” must be a clear case or there must be a finding that the continuation of the order is incongruous and absurd, which meant inappropriate, unreasonable or ridiculous.  He also reemphasized the need for the variation be urgent.

Justice Kurz recently also took a comprehensive look at the law in Berta v. Berta, 2019 ONSC 505.  Although that was a Divorce Act case, he found that the same principles and treatment applied in both legislative schemes.  In large measure he adopted the Hayes and Clark decisions (at para. 36), although in looking at the history of the test and the need for a “clear case” for relief, he was of the view the moving party’s prima facie case must be a strong one.  His version of the test is set out at para. 40, and was adopted recently in Raaflaub v. Gonosch, 2020 ONSC 1578 at para. 7 and Surdyka v. Surdyka, 2020 ONSC 3366 at para. 12.  I apply it here:

[40]        … the applicable test for an interim variation of a final support order (and by extension a stay of the previous one) requires the moving party to prove:

1. 1. 1. A strong prima faciecase;
      2. A clear case of hardship;
      3. Urgency;
      4. That the moving party has come to court with “clean hands”.

Regarding the first part of the test, the question is not just whether there has been a material change in circumstances, but whether there is a strong prima facie case on the merits of the variation application as a whole.  That means being mindful of the original support order and varying it only to the extent required by the change in circumstances: Haworth v. Haworth, 2018 ONCA 1055 at para. 21.”

            Brown v. Brown, 2020 ONSC 7085 (CanLII) at 23-28

“The position of Ms. Carder is that child support should be based upon Mr. Morris’ line 150 income minus union dues.  Mr. Morris’ position is that child support should be based upon his line 260 income which incorporates a further deduction related to his expenses travelling to and from work.

Mr. Morris is employed by E.F. Fox, a corporation based in Niagara Falls.  Mr. Morris’ employment is governed by a union contract which compensates him for driving approximately 68 kilometers each way to and from his home to work on the premises of Bruce Power.

Schedule III to the Child Support Guidelines provides for an adjustment to income for Income Tax Act section 8(1)(h.1) travel expenses, which provides as follows:

     (h.1)      where the taxpayer, in the year,

(i)      was ordinarily required to carry on the duties of the office or employment away from the employer’s place of business or in different places, and

(ii)     was required under the contract of employment to pay motor vehicle expenses incurred in the performance of the duties of the office or employment,

amounts expended by the taxpayer in the year in respect of motor vehicle expenses incurred for travelling in the course of the office or employment, except where the taxpayer

(iii)    received an allowance for motor vehicle expenses that was, because of paragraph 6(1)(b), not included in computing the taxpayer’s income for the year, or

(iv)     claims a deduction for the year under paragraph 8(1)(f);

Mr. Morris agreed in cross-examination that throughout all the years in question he worked at one location being Bruce Power.  He drove to work every day and parked his truck.  He did not need to use it for work and only needed it to drive back home.  I fail to see how expenses to get to work, constitute “expenses incurred for travelling in the course of the office or employment” as referred to in section 8.(1)(h.1).

Further, if Mr. Morris is allowed to pay support based on line 260 income he would be treated better (and Tyler would be treated worse) than the vast majority of employee-payors who incur expense to get to work and then pay child support on line 150 income.

I, therefore, calculate Mr. Morris’ obligation based on his line 150 income.”

            Carder v. Morris, 2020 ONSC 6950 (CanLII) at 14-19

“In D’Agnone v. D’Agnone, 2017 ABCA 35 (CanLII), 48 Alta. L.R. (6th) 8, at paras. 19-25, the Alberta Court of Appeal provided the following guidance regarding what must be proven to establish a claim in conspiracy:

The tort of conspiracy requires the defendants to have an agreement to engage in a course of conduct with the predominant purpose of injuring the plaintiff, or if the conduct of the defendants is unlawful, to have acted knowingly or having ought to have known that injury to the plaintiff is likely to result: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452 (S.C.C.).

In Cement LaFarge, the court acknowledged that “the scope of the tort of conspiracy is far from clear”, but it may be found where parties combine and effect loss in the following manner:

1. 1. 1. 1. 1. 1. 1. Whether the means used by the defendants are lawful or unlawful the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or
                  2. Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In Mraiche Investment Corp. v. Paul, 2012 ABCA 95 (CanLII), 524 A.R. 151 (Alta. C.A.) at para 40, this Court adopted the somewhat restated test as follows:

. . . the following elements must be proved:

1. 1. 1. 1. 1. 1. 1. an agreement between two or more persons;
                  2. concerted action taken pursuant to the agreement;
                  3. (i) if the action is lawful there must be evidence that the conspirators intended to cause damage to the plaintiff;

(ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the plaintiff (constructive intent);

1. 1. 1. 1. 1. 1. 4. actual damage suffered by the plaintiff;

The tort of conspiracy requires an agreement that is acted on and causes injury to the plaintiff. The agreement may be inferred and need not be in any specific form, or even constitute a binding contract: .. . Proving an agreement to a conspiracy is often dependent on circumstantial evidence. However, to be party to a conspiracy, more than mere knowledge that a conspiracy exists is required: … . The facts of the alleged agreement must be known and intention to be part of the alleged agreement must be found: … . There must be intentional participation with a view to furthering the common design and purpose.

The first form of civil conspiracy identified above, predominant purpose conspiracy, requires that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff, using lawful or unlawful means, and that the plaintiff suffers loss caused by the defendants’ conduct: … .

The second form, unlawful means conspiracy, requires that the alleged co-conspirators do something contrary to law to further their agreement. Unlawful means have been held to include fraud, perjury and breach of court orders: … .

A third characterization of civil conspiracy includes knowing assistance in breach of trust. This requires that there be a trust, that the trustee perpetuate a dishonest and fraudulent breach of trust, and that the respondent participate in and have actual knowledge of the trustee’s dishonest and fraudulent breach of trust: … . The knowledge requirement for this type of liability is actual knowledge; recklessness or wilful blindness will also suffice: … .”

            Leitch v. Novac, 2017 ONSC 6888 (CanLII) at 43