“The Court of Appeal for Ontario has stated in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47 that
…the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: (citations omitted).”
“As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence.
The most common internet definition of a spoofed email is when the email address in the “From” field is not that of the sender. It is easy to spoof an email, and not always so easy to detect. For sophisticated senders – such as actors who are “phishing” for information of commercial value – the origins of a spoofed email may never be detected.
Spoofing originates from the idea of a hoax or a parody, and in the early days of the internet, it was a legitimate tool for managing communications so that a user believed that an email came from one source, when it actually came from another.
Spoofing first arose as a term in family law (more commonly referred to in the U.S.A. as divorce law) to describe cell phone users hiding their identity and/or location for nefarious purposes. As a result of advances in mobile apps, websites, forwarding services and other technologies, callers are now able to change how their voice sounds, to evade a blocked number or to pretend to be a person or institution with whom their target was familiar. Targets can be tricked into disclosing sensitive information, harassed, stalked and frightened.
Any electronic medium can be spoofed: texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents.
What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage.
In R. v. C. B., the Ontario Court of Appeal foreshadowed the relevance of inauthentic electronic evidence. “[T]endered as bogus” is a critical catch that is not always apparent. A party’s lament that “it wasn’t me” may appear credible at one stage of the proceeding but may no longer be credible at a later stage. An email or text that on first reading appears authentic might later be found to be inauthentic when examined within the evidence as a whole.
Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence: direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.
In a digital landscape, spoofing is the new “catch-me-if-you-can” game of credibility.
I urge lawyers, family service providers and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well. High conflict litigation not only damages kids and diminishes parents; it weakens society as a whole, for generations to come.”
“Whether a solicitor-client relationship exists is a question of fact. A formal, written retainer agreement is neither necessary nor determinative. The issue is “whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd v General Motors of Canada Ltd, 2015 ONSC 3824 at para 413, citing Jeffers v Calico Compression Systems, 2002 ABQB 72 at para 8.
In determining whether a solicitor-client relationship exists, the following indicia are considered, although not all indicia need be present:
(a) the existence of a contract or retainer;
(b) a file opened by the lawyer;
(c) meetings between the lawyer and the party;
(d) correspondence between the lawyer and the party;
(e) a bill rendered by the lawyer to the party;
(f) a bill paid by the party;
(g) instructions given by the party to the lawyer;
(h) the lawyer acting on the instructions given;
(i) statements made by the lawyer that the lawyer is acting for the party;
(j) a reasonable expectation by the party about the lawyer’s role;
(k) legal advice given;
(l) any legal documents created for the party;
(m) the party’s vested interest in the outcome of the proceeding; and
(n) the belief of other parties to the litigation that the party was represented by the lawyer.
See Jeffers, supra at para 8; Trillium, supra at para 412; Rye & Partners v 1041977 Ontario Inc., [2002] OJ No. 4518 at paras. 13-14.”
“This is a matter under the Children’s Law Reform Act, R.S.O., 1990 c. C.12 [“CLRA”] as the parties were never married. Section 29 of the CLRA provides that a court shall not make an Order varying an Order in respect of custody or access unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.
Case law makes clear that there is a significant difference between applying to vary an interim Order versus a final Order. In general, an interim Order is intended to continue until trial. Interim Orders are most commonly varied only in “compelling” or “exceptional” circumstances. See for example Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708, in which the court stated as follows regarding the variation of interim Orders:
Given that interim Orders are ‘meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,’ requests to change them should be rare. [emphasis added]
See also Lonsdale v. Smart, 2018 ONSC 3991, in which the court held that “compelling reasons” are required for an interim variation under the CLRA.”
“At the outset of the motion, the applicant’s counsel properly raised a concern about the respondent’s affidavit and disclosure of his settlement offer. The respondent’s explanation confirmed the disclosure was intentional. I ruled that the settlement communication was improperly before the court, that I would ignore it, and no further reference should be made to it during submissions. Rule 18(8) of the Family Law Rules is clear. Offers are confidential and the terms of an offer shall not be mentioned in any document filed in the Continuing Record and shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. I also note the common law and following statement by the Supreme Court of Canada in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII), [2014] 1 S.C.R. 800, [2014] S.C.J. No. 35, at para. 31:
Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in the litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement.”
“In Titova v. Titov, 2012 ONCA 864 (CanLII), [2012] O.J. No. 5808 (Ont.C.A.) at paragraph 23 Justice Rouleau for the Court set out the principles governing the recognition of s. 7 expenses:
23 In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
In Hawkins v. Hawkins, 2019 ONSC 7149 Justice Gregson at paragraphs 73 and 74 elaborated on those principles:
73 The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. 1695, (Ont. C.A.).
74 To determine reasonable and necessary the court in Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) and Correia v. Correia, 2002 MBQB 236 stated the following factors should be taken into consideration:
1.The combined income of the parties;
2.The fact that two households must be maintained;
3.The extent of the expense in relation to their combined income;
4.The debt of the parties;
5.Any prospect for a decline or increase in the parties’ means in the near future; and
6.Whether the non-custodial parent was consulted about the expenses before they were incurred.”
“I turn to the nature of an RESP, which is dealt with both in the Income Tax Act, as well as in certain case law.
Firstly, an RESP is not a section 7 expense. Parents cannot be compelled by Court Order to contribute into one, absent an agreement. See Popovski v. Pirkova, 2017 ONSC 2363 at 49; see also Smith v. Smith, 2011 NSSC 269 at 80. Despite that, in this case, the parents initially agreed to contribute into RESPs in a certain way and to allocate that money in a certain way. And they subsequent altered that agreement.
Nevertheless, the RESPs are still assets that are owned by one or the other. Although neither parent tendered her and his RESP plan documents setting out the terms of the plans, the statements do indicate that the mother is the owner of the plan for H.S., and the father is the owner of the plan for I.S. that he subsequently set up.
At paragraphs 34-38 of Vetrici v. Vetrici, 2015 BCCA 146, the British Columbia Court of Appeal wrote the following about the nature of RESPs:
[34] The RESP is a type of investment registered pursuant to s. 146.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). A RESP is a savings / investment vehicle for anticipated post-secondary education costs that provides two benefits: (a) income tax deferral on investment income (s. 146.1(6)); and (b) matching grants from the federal and some provincial governments. Practically speaking, a RESP is an agreement between a “subscriber” (typically, a parent or grandparent) and the “promoter” (i.e., provider) of an investment product (often a chartered bank) to invest the subscriber’s contributions consistent with s. 146.1. However, unlike contributions to a Registered Retirement Savings Plan (“RRSP”), the contributions to a RESP are made from tax-paid funds.
[35] When a RESP is opened, the subscriber names a beneficiary (typically, a child or grandchild) (s. 146.1(1)). If in the future the beneficiary enrolls in an eligible post-secondary institution, then the subscriber can request the promoter to make educational assistance payments to the beneficiary or to the subscriber for the beneficiary’s use (s. 146.1(2)(g.1)). The educational assistance payments are comprised of the investment income earned on the contributions and any grants (s. 146.1(1)). The subscriber also can request that the promoter pay out contributions to the beneficiary. The beneficiary claims as his or her income funds attributable to the grants and investment income, which were subject to the tax deferral, but not the proportion drawn from the contributions (s. 146.1(7)).
[36] As described by Mr. Justice Hall in Luedke v. Luedke, 2004 BCCA 327 (CanLII) at para. 25, 44 B.C.L.R. (4th) 35, a RESP is a way of “making provisions for an anticipated expense in the future”. However, contributions to a RESP and any accumulated investment income remain the property of the subscriber until the subscriber directs payment to the beneficiary. If for some reason the beneficiary does not attend an eligible post-secondary institution, the Income Tax Act provides several mechanisms to address the funds held in the RESP. In some circumstances, the funds may be transferred to the subscriber’s RRSP, less any grants, or the beneficiary’s Registered Disability Savings Plan, if he or she is eligible for one (ss. 146.1(1.1) and (1.2)). If one of those options is not available, then grant funds are returned to the government and the remaining funds are returned to the subscriber. That portion of the remaining funds attributable to investment income is taxable in the hands of the subscriber (s. 146.1(7.1)).
[37] Of particular note is that the subscriber may, at any time, withdraw from a RESP monies for which the subscriber is entitled to a refund of payments, i.e., monies that are not attributable to grants (s. 146.1(1)). When this is done, the subscriber must pay tax on any monies attributable to investment income (ss. 146.1(1), (7.1), and (7.2)). Where, on the breakdown of a marriage or common-law partnership, spouses divide a RESP by court order or agreement, the amount transferred is excluded from the recipient spouse’s income (ss. 146.1(7.1) and (7.2)).
[38] Also of note is that because a RESP belongs to a subscriber, it forms part of a deceased subscriber’s estate and, accordingly, should be taken in account for estate planning purposes: see Valorie Pawson, “Beneficiary Designations 101” (Materials prepared for the Continuing Legal Education Society of British Columbia’s Wills and Estate Planning Basics, May 2012) at 9.1.8-9.1.10.
Similarly, as Mesbur J. said in Popovski v. Pirkova at paragraph 49:
RESPs are savings vehicles, earmarked for post-secondary education of a child, but not necessarily required to be used for that purpose. I have no evidence that Mr. Popovski is prohibited from withdrawing from the RESP he has established. Importantly, I have no evidence A will necessarily attend a post-secondary institution. If and when that occurs, the funds in the RESP, if any can be taken into account in apportioning the parent’s obligations to contribute to the cost of post-secondary education.
See also M. (C.S.) v. L. (W.S.), 2015 BCPC 252 at paras. 26-28 for other case law commentary about the nature of an RESP.”
“In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:
Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.
Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.”
“What remains is Cindy’s claim of intentional infliction of mental distress. In Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), the Court of Appeal for Ontario confirmed the existence of the tort of the intentional infliction of mental suffering, and summarized its elements as follows, at para. 48: “(1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness” (emphasis added).
Cindy testified that Carlo subjected her to verbal abuse throughout their relationship and that it only seemed to worsen in later years. She testified that he called her derogatory names and that he “cut her up,” especially in front of other people. Although Carlo testified that the couple had arguments, he denied verbally abusing Cindy during their marriage.
Cindy testified that, because of the abuse she endured during the marriage, in combination with an incident in August 2015 involving Carlo and her best friend’s niece, she suffers from depression and post-traumatic stress disorder. She testified that she had undergone counselling since separation and produced invoices to prove this and demonstrate its cost. During submissions, Cindy abandoned her claim for $100,000 in damages. Instead, she now only seeks a monetary award to cover her costs for counselling.
Cindy’s evidence that she suffered from depression and post-traumatic stress disorder appears based on what at least one of her therapists told her. None of her therapists testified at trial, nor was there any evidence regarding their qualifications. During cross-examination, Cindy acknowledged that no medical doctor had diagnosed her with either depression or post-traumatic stress disorder or prescribed medication for the treatment of these conditions.
The absence of medical expert evidence is not necessarily fatal to a claim of intentional infliction of mental suffering: Prinzo, at para. 46. Nevertheless, to succeed, Cindy must establish that she suffered more than the type of mental distress that many spouses experience at the breakdown of their marriage; she must establish a visible and provable illness: Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 60. In my view, on this record, she has failed to prove this on a balance of probabilities.”
“Ms. Perez’s request pursuant to section 37(2.1) of the Family Law Act, for an order for child support adjustments based on Mr. Chiris’ actual income for the years 2011 through 2017 places her squarely into a D.B.S. S.R.G, 2006 SCC 37 (S.C.C.) (hereinafter referred to as D.B.S.) analysis.
In D.B.S., the Supreme Court of Canada identified that the making of a retroactive support order is discretionary and there are a number of factors that a court should consider before making one. They are:
The Supreme Court of Canada revisited these factors in the recently released decision in the case of Michel v. Graydon, 2020 SCC 24. With respect to the issue of delay in making an application, the court stated in paragraph 111 that “the focus should be on whether the reason provided is understandable” rather than whether the support recipient had a “reasonable excuse” for the delay. Further, at paragraph 113, the court held: “Rather, a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made (D.B.S., at para. 101).”
In this case, Ms. Perez’s reason for delay is that she did not understand that she had to request annual financial disclosure from Mr. Chiris in writing and apply for a change in order to receive it. This is not an unreasonable understanding on her part. That she was not proficient in English at the time of the signing of the agreement, that her OW worker was assisting the parties with the agreement, that she obtained no legal advice and that she felt intimidated by Mr. Chiris’ last communication with her, only support the reasonableness of her understanding. A generous appreciation of the social context leads me to the conclusion that Ms. Perez’ delay in seeking to increase the support payable for Samuel is understandable.
With respect to the conduct of the payor parent, the court stated at paragraph 115 of Michel: “D.B.S. purposively provided an expansive definition of blameworthy conduct, being “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support (para.106)”.
At paragraph 116, the court states:
[116] …The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often the root cause of a delayed application. Indeed, in D.B.S., the Court recognized at para. 124 that “[n]ot disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct.” It further commented that “a payor parent cannot use [their] informational advantage to justify [their] deficient child support payments” and at para. 106 that “a[a] payor parent cannot hide [their] income increases from the recipient parent in the hopes of avoiding larger child support payments”.”
“Clearly the FLR contemplate that dealing with family law cases justly is not a passive affair where the court simply reacts to motions brought by the parties. From the beginning of a case until its conclusion, the court must play a dynamic and independent role in managing cases to resolution. It must do so in order to ensure that it does justice to the parties and their children. One key venue in which the court does so is in conferences.
The court is required to assume this active case management role for a variety of reasons. It attempts to protect the parties from the costs and ravages of unnecessary and disproportionate litigation. It endeavors to protect the parties’ children, as much as possible, from the effects of their parents’ conflict. Further the court must protect its own precious resources from being wasted on bootless litigation. As the Ontario Court of Appeal recently stated in Beaver v. Hill, 2018 ONCA 840 (O.C.A.), in the context of a family law case, proportionality is a core principle that governs the conduct of proceedings generally.”
