Month: December 2021

“In 2013, Justice Czutrin commented that unresolved issues of disclosure are one of the key factors in delay, unproductive court attendances and getting to a point of serious settlement discussions or, if necessary, in the very few cases that need to go or in fact end up in trial. See English v. Dixon, 2013 ONSC 8043. This comment is just as relevant and problematic today as it was at the time of the decision.

Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC), 137 A.C.W.S. (3d) 988 (ONSC) at paras. 8 and 15. Disclosure orders must be fair to both parties and appropriate to the case.

As Perell J. held in Boyd v. Fields, [2007] W.D.F.L. 2449 (ONSC) at paras. 12-14:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules.  A party’s understandable aspiration for the utmost disclosure is not the standard.  Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors.  I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.

Finally, Justice Benotto in Roberts v. Roberts, 2015 ONCA 450 (CanLII) stated:

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent, and the final adjudication is stalled.”

Atis v. Atis, 2019 ONSC 7553 (CanLII) at 89-92

“If minutes of settlement are incorporated into a court order, the order is to be varied having regard to s.17 of the Divorce Act.

In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 the Supreme Court of Canada considered the approach to an application to vary a spousal support order under s. 17(4.1), where the support terms of an agreement have been incorporated into a divorce order.

From L.M.P., I draw the following principles, which are applicable to this case:

a)  the change referred to in s. 17(4.1) must have occurred since the making of the spousal support order sought to be changed:  para. 29;

b)  the onus is on the party seeking the variation to establish the change:  para. 31;

c)  relying on Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, the court held that the change in circumstances must be a material one that “if known at that time, would likely have resulted in a different term”:  paras. 32 and 33;

d)  what amounts to a material change will depend on the actual circumstances of the parties when the order in question was made:  para. 34;

e)  the material change must have some degree of continuity and not merely be a temporary set of circumstances:  para. 35;

f)  the agreement given effect to by the original order is to be considered:  para. 37;

g)  the degree of specificity of the terms contained in the order is important to the material change analysis:  para. 39; and

h)  where an agreement incorporated into an order implies finality, the court’s jurisdiction under s. 17 is not ousted by that agreement:  para. 41.

The test for material change is not based on what one party knew or reasonably foresaw.  Rather, the test is based on what the parties actually contemplated when they entered into the agreement:  Dedes v. Dedes, 2015 BCCA 194, at para. 25.  In other words, the change relied upon as being material is one that was not one considered, or taken into account, when the agreement was made.  The court is to look back to consider what was previously taken into account.

A review of the terms of the order will assist in determining what was considered.”

Johnston v. Johnston, 2019 ONSC 5946 (CanLII) at 100-104

“Commentary 1 of Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Ontario provides the foundational duty of zealous representation of every litigation lawyer:

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

What is too often overlooked however is that the duty is not unbounded. Lawyers are not champions fighting a trial by battle. They are licensed professionals assuring the parties and society that justice will be served. The client is not entitled to win at all costs. But every client is entitled to a fair process in which she will have every proper opportunity to state her case and have the facts found and the law applied by an independent and dispassionate judge or trier.

After stating the litigator’s basic duty, the very next sentence of Commentary 1 of Rule 5.1-1 provides this overarching context:

The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. [Emphasis added.]

The goal of zealous representation – of raising fearlessly every issue no matter how distasteful – is to ensure the fair hearing of the case for both parties (plural). The duty of zealousness does not require scorched earth. It requires the raising of issues consistent with the fair resolution of the matter.

It is the commitment to the fairness of the process that makes the civil justice system just. It gives the system legitimacy and justifies the societal requirement that disputes be resolved with professionals committed to justice rather than by mercenaries brandishing flamethrowers. To that end, in a civil case, counsels’ duties require them to cooperate to find the most efficient, affordable, and proportionate adjudication process for the fair resolution of their clients’ disputes.

The Supreme Court of Canada has demanded that a fair process remains paramount in civil justice, especially in relation to efficiency and affordability:

[23]   Our civil justice system is premised upon the value that the process of adjudication must be fair and just.  This cannot be compromised.

[24]   However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See: Hryniak v Mauldin, 2014 SCC 7 at para. 23.”

Slota v. Kenora-Rainy River Districts Child and Family Services, 2020 ONSC 8105 (CanLII) at 15-20

“The Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 24-26, explained the doctrine of the presumption of resulting trust as follows:

24     The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

25     The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

In Kerr, at para. 18, the Supreme Court of Canada explained how trial courts should consider the presumption of resulting trust:

18     The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention” [emphasis added].

The presumption of resulting trust applies when a parent makes a gratuitous transfer to an adult child: see Pecore, at para. 36. The presumption is that the adult child is holding the property in trust for the aging parent.  In other words, the parent holds an interest in the subject asset whether it is real property, money loaned or some other item.  The parent is presumed not to have intended a gift.  However, this presumption can be rebutted by the evidence.

Clearly, the evidence necessary to rebut the presumption depends on the facts of the case: see Pecore, at para. 55.  Evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer: see Pecore, at para. 59.”

            Barber v. Magee, 2015 ONSC 8054 (CanLII) at 38-41

“The Minutes do not provide for a “variation” of child support. The child support payable under the Minutes for three years was “fixed and non-variable”. Critically, para. 3 of the Minutes provides that the child support payable commencing October 1, 2013 “will be reviewable” (emphasis added) as of July 1, 2013, with effect from October 1, 2013. As of July 2013, both parties were required to provide “the income information set out in section 21 of the Child Support Guidelines”.

Paragraph 4 of the Minutes goes on to provide that “any adjustment to child support” payable as of October 1, 2013 “will not be retroactive” and “will be payable in accordance with” the Child Support Guidelines.

These Minutes constituted a temporary solution to the problem of child support, entered into on the eve of what would likely have been a lengthy and costly trial. They were meant to “buy peace” for three years and to provide some stability. This was not an application “to vary” the Minutes. This was not a motion to change under Rule 15 of the Family Law Rules. As specifically provided in para. 3 of the Minutes, this was an application for review of the parties’ child support obligations as of October 1, 2013. There was no prior order of the court fixing child support. There was no requirement to show a “change in the condition, means needs or other circumstances of either former spouse”. There was, however, under the CSG, a requirement to make factual findings about the parties’ incomes.

Canadian law has, for some time, recognized a clear distinction between a “motion to change” and a “review”: Leskun v. Leskun, 2006 SCC 25. A review involves an application for support without the need to prove a material change in circumstances. And, importantly for this case, unless the review is restricted to a specific issue (which, in this case, it is not), a “review” of support payable is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum: Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 63.

As Prof. James G. McLeod said in his annotation to Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4^th) 418 (Ont. C.A.), at 420, under a review, either party may return the matter to court at a fixed time. On the return, the court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies.”

            Verkaik v. Verkaik, 2020 ONSC 7993 (CanLII) at 18-22

“Contrary to the appellant’s position, not all hearsay evidence is inadmissible. The question is whether the motion judge relied inappropriately on hearsay evidence. In my view, she did not.

The Family Law Rules expressly contemplate the use of hearsay evidence on a motion for summary judgement. Section 16(5) provides that “if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.”

Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care:

Despite anything in the Evidence Act, in any proceeding under this Part [child protection],

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

Evidence about a child’s expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.

Statements about the child’s views and preferences set out in affidavits by Children’s Aid Society workers’ affidavits are admissible: Strobridge v. Strobridge (1992), 1992 CanLII 7488 (ON SC), 10 O.R. (3d) 540 (ONSC).

Statements that show the child’s state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.”

D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903 (CanLII) at 34-39

“Having found material changes in circumstances, the motion judge went on to consider the four objectives that apply to a variation of spousal support under s. 17(7) of the Divorce Act, R.S.C., 1985, c.3 (2^nd Supp.). He concluded as follows:  

a)      Any economic disadvantages to the appellant arising from the marriage breakdown had long passed. Indeed, the motion judge concluded that the wife had structured her post-divorce life in a way that allowed her to “live life to the fullest and not work”.

b)      The appellant had suffered no adverse financial consequences as a result of the children’s care.

c)      To the extent that the appellant was experiencing any financial hardship, it did not arise from the marriage but “from her own decision not to work”.

d)     Although the motion judge acknowledged that there was no expectation that the wife would obtain employment now that she is in her 70’s, he concluded that she could rearrange or manage her assets, including residences in France and Panama, to “secure an increased income stream if desired.”

Having regard to those factors, the motion judge reduced the spousal support from $4,000 to $1 per month. This effectively amounted to a rescission of the support order.

In our view, the motion judge erred in that approach to the variation.

Conspicuously absent from his reasons is an acknowledgement that the original support order – assumed to itself be in compliance with the Divorce Act objectives – expressly provided for spousal support for life: “each and every month thereafter until the [appellant] dies.”

As Bastarache and Arbour JJ. said in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para 62: “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”. (See also: L.M.P. v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, at para. 47.) The fact is that the spousal support order reflected what had been agreed upon by the parties and that order was only one component of a larger agreement.”

            Haworth v. Haworth, 2018 ONCA 1055 (CanLII) at 15-19

“Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. It enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation, thereby promoting honest and frank discussions and the possibility of achieving settlement: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII), [2014] 1 S.C.R. 800 at paragraph 31.  Settlement privilege applies even in the absence of contractual provisions providing for confidentiality.

Although there are certain recognized exceptions to settlement privilege, none of these exceptions applies in this case. To come within an exception to settlement privilege, it must be shown on a balance of probabilities that a competing public interest in disclosure outweighs the public interest in encouraging settlement: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII), [2013] 2 SCR 623 at paragraph 19.”

Benson v. Kitt, 2018 ONSC 7552 (CanLII) at 19 & 22

“The appellant submits that the trial judge made an error in principle when she failed to consider Halliwell in calculating his income for the purposes of spousal support. He asserts that, in cases where a payor’s income exceeds $350,000, Halliwell requires the court to calculate the payor’s income based on the mid-way point between the SSAGs “cap” and the payor’s actual income. That mid-way point should then be used to determine the appropriate range for support. The appellant contends that the trial judge’s order goes beyond the so-called “Halliwell range” and that if she had appropriately assessed the respondent’s needs and means, she would not have awarded spousal support at all.

…

Halliwell does not require the court to impute the payor’s income at the mid-way point between the SSAGs “cap” and the payor’s actual income. Rather, Halliwell, at para. 116, emphasizes what the SSAGs have always stated: “Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range” (emphasis added).”

         Plese v. Herjavec, 2020 ONCA 810 (CanLII) at 54 & 57

“The courts generally avoid varying interim orders on motions prior to trial unless the circumstances are urgent. Jarvis J., in Pakka v. Nygard 2004 CanLII 5071 (ON SC), stated as follows:

The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainty of the parties and vastly increase the cost of litigation. To echo the words of Wolder J. in Thompson v.  Thompson, [1995] O.J.  No.  2106 (Ct.  J. (Prov. Div)), such an order sh ould be varied only wh ere the failure to v ary “ would  cause the payor to suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.”

Grass v. Hropak, 2020 ONSC 7803 (CanLII) at 87