“Marriages are like balloons. Sometimes they deflate immediately with a single puncture. But often the air escapes slowly as one or both parties withdraw physically, emotionally and financially. In these latter situations, separation is a process rather than an event, and it is difficult to assign a single date as the “date of separation”. Nevertheless, the law requires that a date be chosen for the purposes of valuation and equalization of net family property.”
Month: February 2022
February 10, 2022 – Can a Beneficiary Under a Trust Move for Partition & Sale?
“There is clear jurisdiction under the Partition Act, R.S.O. 1990, Chapter P.4 to order the sale of jointly owned property prior to trial. However, an order for directing the sale of a matrimonial home before trial should only be made where, in all the circumstances, it is appropriate to do so. Additionally, an application for partition and sale should not proceed where it would prejudice the rights of either spouse under the Family Law Act (Martin v. Martin, 1992 CanLII 7402 (ON CA); Silva v. Silva, 1990 CanLII 6718 (ON CA)).
In this case, 153 Bandelier Way is neither a jointly owned property nor is it the matrimonial home. Nevertheless, Ms. Vo seeks an order for the sale of the Bandelier property based on her 50% interest arising from the Trust Agreement entered into the parties on August 28, 2018, a copy of which is attached as Exhibit “K” to Ms. Vo’s affidavit sworn on October 13, 2020.
The “Acknowledgement of Trust” provides that the transferee of 153 Bandelier Way, Mr. Tran, is holding the property in trust for the beneficial owners, Minh Thein Tran (50%) and Kim Vo (50%). Handwritten next to the named beneficiaries are the words “AS JOINT TENANTS”, however, this addition is not initialed by the parties. The Acknowledgement nevertheless goes on to state:
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- I hereby acknowledge and confirm that the interest in the said lands is held for and solely on behalf of the beneficiaries.
- I covenant and agree not to do any act or thing, or institute any action or proceedings of any nature, without having first obtained the consent and authorization of the beneficiaries herein.
- This Acknowledgement of Trust shall be binding upon and enure to the benefit of the respective heirs, executors, administrators, successors and assignees of the beneficiaries and myself.
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The parties acknowledged on the document that they waived independent legal advice, understand their respective rights and obligations, understand the nature and effect of the agreement, understand that the provisions of it are equitable and are signing voluntarily. The document is signed by both parties, whose signatures are witnessed.
Although Mr. Tran has requested an order in his Notice of Cross-Motion “declaring that the real property owned by the Respondent being 153 Bandelier Way, Kanata, Ontario, belongs solely to the Respondent and removing the Trust Agreement signed by the parties at the time of purchasing the real property, being legally described as Part Block 260, Plan 4M1597, Part 4 on Plan 4R-31308”, he does not provide any evidence to the court in relation thereto, nor has he provided any legal argument to support his request for this relief. To “remove” or essentially set aside the trust agreement, which Mr. Tran acknowledged was voluntarily entered into, would require both evidence as to why it should be set aside, and some basis in law to do so. Having neither, I dismiss Mr. Tran’s request for such a declaratory order.
Sections 2 and 3(1) of the Partition Act, R.S.O. 1990, Chapter P.4 provide, under the title “Who may be compelled to make partition or sale”:
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
By virtue of the Acknowledgement of Trust dated August 28, 2018, Ms. Vo is most definitely a “person interested in” 153 Bandelier Way, and is a person who, by virtue of that interest, has the ability to bring an application to the court to have the property listed for sale.”
February 9, 2022 – The Right To Withdraw From Parental Control
“It has always been a rule of common law that a parent’s right to custody will not be enforced against a child’s will once the child has reached the “age of discretion”: Rex v. Greenhill (1836), 4 A. & E. 624 (K.B.); Reg. v. Howes (1860), 3 E. & E. 332 (Q.B.). Historically, this meant that the child had the right to withdraw from parental control and the court would not force the child to return to a custodial parent, but would allow the child to live where he or she chose. The age at which a child has the right to withdraw from parental control is codified in s. 65 of the CLRA:
Where child is sixteen or more years old
Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.
Once a child declares an intention to withdraw from parental control, her independence may — as it was here — be recognized by the police and the schools. There is no formal court process for a child to withdraw. This was recognized by the application judge at para. 13 when she said of O.G:
She did not require a court order or a declaration permitting or enabling her to withdraw from parental control. She did not require a court order to protect her privacy at her school in Oakville because, after informing the principal in writing by letter dated April 22, 2016, the principal respected her instructions and did not provide information to her father. She did not require a court order to prevent the police from apprehending her and taking her back to her father’s home because she informed the police that she had withdrawn from her father’s control and the police respected her right to do so.
Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.
However, there is a distinction between the fact of withdrawing from parental control and an application to court for a declaration that a child has withdrawn from parental control. The former is a right that is exercised unilaterally. The latter engages the court’s jurisdiction with respect to declaratory relief.”
G.(R.) v. G.(K.), 2017 ONCA 108 (CanLII) at 43-46
February 8, 2022 – Limitations Statutes
“It is useful to review the purpose behind limitations statutes. In Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447 at para. 80, the Court of Appeal said:
[80] Traditionally, limitation periods were seen as having three purposes, known as the certainty, evidentiary, and diligence rationales. The certainty rationale seeks “to promote accuracy and certainty in the adjudication of claims”; the evidentiary rationale seeks “to provide fairness to persons who might be required to defend against claims based on stale evidence”; and the diligence rationale seeks “to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.”
[81] In Novak, McLachlin J. (as she then was) observed that the three traditional rationales for limitation periods generally reflect the interests of potential defendants, based on the idea that they should not have to respond to stale claims brought by persons who have not asserted their rights diligently. But as legislatures have modernized their limitations statutes, they have increasingly focussed on the need to treat plaintiffs fairly and to account for their interests as well. Today, therefore, a limitations statute “must attempt to balance the interests of both sides.” [Citations omitted.]
The Family Law Act has a specific provision which addresses the balancing of interests, tailored specifically to family law disputes. Subsection 2(8) of the Family Law Act states:
The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
a) there are apparent grounds for relief;
b) relief is unavailable because of delay that has been incurred in good faith; and
c) no person will suffer substantial prejudice by reason of the delay.”
Pardy v. Kelly, 2021 ONSC 1029 (CanLII) at 8-9
February 7, 2022 – Section 30 Assessments and “Clinical Issue”
“I start with whether a “clinical issue” is required before an order for an assessment [under s. 30 of the CLRA] is made. In my view, it is not for four reasons.
First, there is no such criterion in the statute. Nor is there any other part of the Children’s Law Reform Act on which such a prerequisite could be based.
Second, while the Divisional Court in Linton was clear that a clinical issue was a requirement, one must look closely at the facts of the case. That decision is notable for the following features. The action was on the list for trial. An order for an assessment would result in the delay of an imminent trial. Furthermore, it would result in an unusually long hiatus because the father lived in Montreal. The Children’s Law Reform Act was proclaimed in force December 31, 1991. In the period between then and December 1994 when the Divisional Court made its decision, there seemed to be judicial resistance to what appeared to be the pervasive phenomenon of ordering assessments frequently and the concern that that trend had to be reversed. There was consensus amongst the four judges involved that the trial judge was in the best position to decide whether an assessment ought to be ordered, without regard to the delay that that would entail at a critical point in the proceedings. There also appeared to be an expectation that the father could engage his own assessor without court order, an anomaly that is not explained. Interestingly, there was expert evidence available from treating professionals as to the clinical issues that the children demonstrated. Although those clinical issues were not described, it stands to reason that the children would not have been involved with the CPRI if they were not experiencing clinical issues. Although the Divisional Court held that clinical issues were a prerequisite, the court nonetheless upheld the motions judge without regard to those very clinical issues.
Third, in the recent decision of the Court of Appeal in Ursic, the Court made no reference to Linton or to the question of a clinical issue. The Court of Appeal accepted an endorsement made by Gillese J. on the stay motion in which she observed that the failure on the part of the trial judge to have responded to the parents’ request at the outset of the trial for an assessment may have been an error. Furthermore, the Court of Appeal found that the assessment reports prepared between the trial and the hearing of the appeal were of “great assistance in deciding the appeal”. The Court had an opportunity to address the long standing discussion about the necessity for a clinical issue as a pre-requisite and chose not to do so. I infer from its silence on that issue, that it does not consider a “clinical issue” as a pre-requisite.
The fourth reason has to do with the identification of a clinical issue. I note that Master Nolan (as she then was) provided a definition in Tamm v. Oddy22 as follows:
I am unaware that there has been any judicial interpretation of the meaning of “clinical issues”. In the ordinary sense, clinical issues would appear to refer to those behavioural or psychological issues about which the average reasonable person would need assistance in understanding. The professional knowledge and skill of an assessor, usually a psychologist or a social worker, could assist the court in understanding the unusual behaviour of the children or the parents involved. “Clinical issues”, in my view, are not limited to psychiatric illness or serious psychological impairment of any of the parties or children involved.
As indicated above at paragraph 37, P.W. Dunn J. provided his own definition of “clinical issues”. At paragraph 38 above, Perell J. also addressed that term.
With due respect to those suggestions, none provides a basis upon which a judge could determine if there was a “clinical issue”. Furthermore, judges are not trained to identify “clinical issues”. No doubt we have views based on the evidence that a family is dysfunctional. A judge might suspect that one of the parents is paranoid or depressed. But judges have no expertise in determining when dysfunction becomes “clinical” or in identifying clinical features of mental illness. I share the view expressed by Gary W. Austin and Peter G. Jaffe (then both at the London Family Court Clinic) in the annotation that appears in the reasons for decision of Linton in which they query whether judges can agree on what a clinical reason might be.
For all of those reasons, I find that the presence of a “clinical issue” or “issues of pathology” is not a pre-requisite for the making of an order pursuant to s. 30 of the Children’s Law Reform Act.”
February 4, 2022 – Costs, Unfounded Allegations and Proportionality
“I echo the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 ONSC 846 (Ont. S.C.J.) at 19 to the effect that a party who has chosen to raise numerous serious allegations which are ultimately determined to be unfounded cannot then complain about the resources that were found necessary in order to rebut the claims. As Gray J. noted:
The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.”
February 3, 2022 – Appeals from Interlocutory Orders
“An appeal from an interlocutory order of a judge of the Superior Court lies to the Divisional Court with leave as provided in the rules of court, in accordance with s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. A motion seeking leave to appeal must be brought by a notice of motion, which must be served within 15 days of the order: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 62.02(3).”
February 2, 2022 – “Debts” To Family Members
“Family law judges are justifiably wary of claims, made after separation, that monies advanced to family members during the marriage are debts rather than gratuitous amounts. This is because acceding to such claims too readily would risk undermining the central purpose of the family property regime which is to equally divide the value of the property acquired by the marital partnership. Here, the evidence proffered by the appellant did not, in the trial judge’s view, support the submission that the monies were advanced during the marriage or that there was any expectation of repayment. The trial judge found that it was “clear from the evidence that they would never sue the respondent or take any action to collect upon the money”.”
February 1, 2022 – Hearsay and Children’s Views
“In Children’s Aid Society of Toronto v. G.S., 2018 ONC 12 (CanLII) the court found that the state of mind hearsay exception includes a child’s wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion. The court admitted child statements to show the child’s views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.
In D.D. v Children’s Aid Society of Toronto, 2015 ONCA 903 (CanLII), the Court of Appeal addressed the admissibility of hearsay statements made by a child and stated:
36 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.
37 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.
38 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).
39 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.
40 In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.”
Children’s Aid Society (Ottawa) v. A.M., 2019 ONSC 694 (CanLII) at 85-86