Month: May 2022

“Section 8 of the AHRA [Assisted Human Reproduction Act, S.C. 2004, c. 2] reflects deep societal respect for donor consent in the context of reproductive technology. Indeed, that is why it survived constitutional scrutiny in Reference re AHRA: see McLachlin C.J. at paras. 10, 156, and Cromwell J. at paras. 291, 294. Section 8(3) makes it a criminal offence to use an in vitro embryo without consent and, therefore, the absence of consent is an essential element of that criminal offence. Accordingly, were the respondent to go ahead and use the embryo in the face of the appellant’s lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.

An individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law. Any effort to do so is void ab initio: Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7 (CanLII), [2004] 1 S.C.R. 249, at para. 22; G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Carswell, 2011), at 364-68; S.M. Waddams, The Law of Contracts, 6th ed. (Aurora, Ont.: Canada Law Book Inc., 2010), at 419-25. Accordingly, despite having contracted in Ontario to permit the respondent to unilaterally deal with the embryo according to her wishes in the event of divorce, the appellant did not, nor could he have, contracted out of the protections afforded to him under s. 8(3) of the AHRA and the Consent Regulations. To the extent that the Ontario contract purports to do that, it is void.”

S.H. v. D.H., 2019 ONCA 454 (CanLII) at 71-72

“The Court has jurisdiction to monitor and police its own case management process. In the circumstances of the case before me, it cannot lie in the respondent’s mouth to interpret Rule 1(8) so strictly, while at the same time choosing to consistently not play by the rules (including the Family Law Rules). Rule 1(8) permits the Court to make “any order that it considers necessary for a just determination of the matter”. The list of options available to the Court under Rule 1(8) is not exhaustive in nature, but inclusive. A just determination of any family proceeding is rooted in the protection of the administration of justice as a whole, and when a party chooses to consistently disobey a court order, the administration of justice itself is called into question.”

         Granofsky v. Lambersky, 2019 ONSC 325 (CanLII) at 25

“This case raises a single issue: the arrangements for selling the matrimonial home. The appellant wanted to sell the home and divide the net proceeds of the sale, while the respondent wanted to purchase the appellant’s interest in it. The current value of the home was not established at trial. The trial judge granted the respondent the right to purchase the matrimonial home within 30 days from the release of his decision after obtaining a fair market value assessment.

The appellant submits that the trial judge erred in making this order. We agree.

As this court explained in Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser.”

         Barry v. Barry, 2020 ONCA 321 (CanLII) at 7-9

“Thus the following two issues arises in relation to these capital distributions:

1. 1. 1. 1. are encroachments on the capital of the Trust that are distributed to the Respondent to be included in the calculation of his income for spousal support purposes in the relevant year; and
         2. if the answer to the first question is “yes”, should the capital distribution in a particular year be “grossed up” to take account of the fact that no income tax is paid on such distribution

Should distributions from the Trust’s capital be included in the calculation of the Respondent’s income for support purposes?

Section 15.2(4) of the Divorce Act requires the court making an interim order for spousal support to take into consideration the “condition, means, needs and other circumstances of each spouse…” In determining the “means” of a spouse with an obligation to pay spousal support, the starting point of the analysis is that spouse’s “income” as determined in accordance with line 150 of his or her Income Tax Return: see the Guidelines, s. 3 (1) and 16. But s. 19 (1) of the Guidelines also provides discretion to a court to impute such amount of income to a payor spouse that it considers appropriate in the circumstances, including the following:

(e)     the spouse’s property is not reasonably utilized to generate income;

…

(h)     the spouse derives a significant portion of income from dividends, capital gains or other sources of income that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i)       the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Subsection 19(1)(e) makes it plain that a spouse must reasonably utilize their property to generate income and that a failure to do so may result in the imputation of income. However, while property must be reasonably utilized to generate income, courts have generally not required a payor spouse to draw down or dispose of their property or capital in order to fund support payments. As the Court of Appeal noted in Bak v Dobell, the Guidelines proceed on the assumption that child and spousal support are based on a payor’s income rather than their capital, and “while income from investments is part of a payor’s total income, his or her underlying investments are not.”: 2007 ONCA 34 at para. 52. Thus in Laurain v Clarke, Price J. declined to impute income on annuity payments being received by a payor spouse on the basis that they were payments of capital, not income generated by capital: 2011 ONSC 7195, at para. 103. The Respondent relies on the distinction between income and capital to argue that, whereas income generated by the Trust is appropriately included within his Guidelines income, distributions of capital are not.

The difficulty with the Respondent’s argument is that s. 19(1)(i) of the Guidelines specifically provides that it is appropriate to impute income on “income or other benefits” received from a trust. What this broad language suggests is that Parliament has made a determination that distributions from a trust, whether from the income or the capital of the trust, constitute part of the “means” of the payor spouse and may be taken into account in calculating a spouse’s income for support purposes.

This was the conclusion reached in Jackson v. Jackson, where Pardu J. found that the receipt by the husband of approximately $105,000 annually from the capital of a trust should be considered to be a “benefit from the trust” and imputed as income pursuant to s. 19(1)(i) of the Guidelines: 1997 CanLII 12392 (ON SC), [1997] O.J. No. 4790. In fact, if the words “income or other benefits from the trust” did not extend to capital distributions paid or payable to a beneficiary, s. 19 (1) (i) would have no practical effect. This is because amounts payable to a beneficiary out of the income of a trust are already taxable and included as line 150 income. By providing that income may be imputed on “income or other benefits” received or receivable from a trust, Parliament must have intended to go beyond amounts that are already taxable and permit inclusion of capital distributions as a “benefit” received from the trust.

To be sure, s. 19 does not require the automatic inclusion in Guidelines income of all amounts received from a trust, since courts have the discretion to impute such amounts as are considered appropriate in the circumstances. In Clapp v Clapp, one spouse had received a number of capital distributions from a trust, with these amounts having been used primarily to renovate a family cottage and to purchase certain vehicles: 2014 ONSC 4591. The last such capital distribution had occurred over seven years prior to the parties’ separation, and the cottage and the vehicles were being included in the equalization of net family property. In these circumstances Price J. declined to impute the capital distributions as Guidelines income.”

            Bledin v. Bledin, 2021 ONSC 3815 (CanLII) at 29-34

“As a general principle, the courts have been reluctant to suspend access or parenting time as a result of the COVID-19 pandemic. Numerous cases since the advent of the COVID-19 pandemic have recognized that while parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives, there is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child. See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; J.F. v. L.K., 2020 ONSC 5766, at para. 20.

That said, courts have been reluctant to require children to travel outside of Canada in the face of government protocols directing that non-essential travel outside of Canada be avoided. For example, in Semkiw v. Sutherland, 2020 ONSC 4088, at paras. 36-37, Horkins J. stated:

The children have in the past travelled to Texas with the mother and have enjoyed their time there. Now is a different time and decisions about the children’s travel must take into consideration the COVID-19 pandemic and where the children are going. The air travel that the mother proposes involves crossing a border that is closed to non-essential travel due to the pandemic and arriving and travelling through the State of Texas that is experiencing a surge in COVID-19 cases and hospitalizations. After the summer weeks are over, the children would travel back home. On return, the children would have to self-isolate for three weeks with their father.

The mother has chosen to move to Texas and give birth in this State. She is not entitled to have the children join her in Texas during this pandemic. This proposed travel is non-essential and would recklessly expose the children to the risk of infection. This would not be in the best interests of the children.

The courts have expressed concerns with the potential health risks to the children as well as the requirement that children quarantine upon their return to Canada: Semkiw v. Sutherland, 2020 ONSC 7477, at paras. 20-23.

In Onuoha v. Onuoha, 2020 ONSC 1815 Madsen J. stated, at para. 10:

It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein.

In Yohannes v. Boni, 2020 ONSC 4756, Nishikawa J. suspended a court order granting the father, who resided in France, six weeks parenting time with his 10 year old child in France. She held, at para. 20:

I am satisfied that the current COVID-19 pandemic is a material change in circumstances that affects or is likely to affect the best interests of the child such that the Parenting Order should be varied on an interim, without prejudice basis.

Nishikawa J. stated, at paras. 26-27:

My finding that it is not in Selyana’s best interests to travel to France during the pandemic does not in any way minimize the importance of the relationship between her and the Respondent, or her time with him, her grandparents, and her extended family in France. The global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the Respondent and Selyana living in different countries…

In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, Selyana’s health and safety cannot be put at risk… While I recognize that requiring that the Respondent exercise his parenting time in Toronto is not ideal, it is the best interests of the child that govern.

See also: Saini v. Tuli, 2021 ONSC 3413, at para. 29:

In this context, the children’s safety is a critical consideration. The COVID-19 protocols clearly direct that non-essential travel outside of Canada be avoided. I do not accept the Respondent’s speculation regarding the children’s relative risks of contracting COVID-19 if they remain with the Applicant while she is in California. Further, while the Applicant’s travel to the United States may be essential for her in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.

See also Bourke v. Davis, 2021 ONCA 97, at paras. 69-72, where the Court of Appeal recognizes that government travel restrictions may legitimately affect the ability of parties to comply with an order for parenting time that requires the children to travel to the United States.”

            Grieder v. Zabinski, 2021 ONSC 3796 (CanLII) at 25-32

“The application judge found that Mr. Jackson had acquiesced to Jailen’s remaining in Ontario…

The standard for finding acquiescence is high. “Clear and cogent” evidence of “unequivocal acquiescence” is required. See Katsigiannis, supra, at para. 49. Ordinarily the test for acquiescence is subjective, but as Lord Brown-Wilkinson said in Re H. and Others (Minors) (Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225 (H.L.) at p. 90 A.C.:

Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Jackson v. Graczyk, 2007 ONCA 388 (CanLII) at 49-50

“Counsel for the Applicants have corresponded with me requesting leave for each set of Applicants to file factums that are more than the 30 pages prescribed by the applicable Practice Direction. They have suggested that in a constitutional Application such as this it will be helpful to the Court to have more detailed and thorough written submissions.

Counsel for the Attorney General does not agree with this proposal. They have indicated in their own correspondence with me that they are satisfied to produce a 30-page responding factum addressing the combined Application.

I of course appreciate the Applicants’ offer of helpfulness. But I am of the view that more help is not always better help.

The 30-page policy is a serious one. “Leave is exceptional and granted sparingly in special circumstances”: Saint John (City) v. Saint John Firefighters’ Association (2010), 2010 CanLII 39428 (NB CA), 362 NBR (2d) 327, at paras 12-13 (NB CA). As the Ontario Court of Appeal observed in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, at para. 4, “[t]he purpose of the 30-page limit is to focus counsel on the issues…” I am not alone among the judiciary in preferring focused and precise over detailed and lengthy.

In weighing a request such as this I will take a cue from philosopher Blaise Pascal or author Mark Twain or whoever else the Internet deigns to credit with the relevant quote.”

            Working Families Ontario v. Ontario, 2021 ONSC 3687 (CanLII) at 1-5

“The husband has no statutory right to appeal to this court. He has exercised a first right of appeal to the Superior Court, without leave, as provided under the parties’ mediation-arbitration agreement: Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(2), (3) and (6). A second appeal requires leave of this court: Arbitration Act, 1991, s. 49.

To obtain a stay of a judgment pending a motion for leave to appeal, a moving party must meet the three-part test for an interlocutory injunction: (1) a serious question to be determined on the motion for leave to appeal; (2) the moving party will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours granting the stay: RJR – MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334.

In applying this test, the court is mindful that “[t]hese three criteria are not watertight compartments. The strength of one may compensate for the weakness of another. Generally, the court must decide whether the interests of justice call for a stay”: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677.”

         Spadacini Kelava v. Kelava, 2021 ONCA 345 (CanLII) at 15-17

“The Family Law Rules, O. Reg. 114/99 does not address the request to reopen the trial to file new evidence.  Rather, one needs to turn to r. 52.10(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which provides the following authority:

FAILURE TO PROVE A FACT OR DOCUMENT

52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,

(a)  the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs;

Subrule 53.01(3) of the Rules permits a trial judge to recall, at any time, a witness for further examination.

In Malkov v. Stovichek-Malkov, 2018 ONCA 620, the Ontario Court of Appeal affirmed the factors to consider when entertaining a party’s request to reopen the case, as originally set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470, at para. 17:

• • • • At what stage of the trial is the motion made?
      • Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
      • What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
      • Can any prejudice be remedied in costs?
      • How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
      •  What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?
      •  Does it merely “shore up” evidence led in chief?
      •  Is the proposed new evidence presumptively credible?

The need for finality is paramount, especially when a decision has been rendered and judgment entered.  If a case has not yet been decided, fairness and truth-seeking should be considered over finality.  When a decision is pending and has not been made, the test for admitting fresh evidence does not include whether the fresh evidence could affect or have an influence on the result: Brasseur v. York, 2019 ONSC 4043, at paras. 38 and 45.”

            Abu-Shaban v. Abu-Shaaban, 2021 ONSC 3623 (CanLII) at 23-26

“Section 2 of the Partition Act provides that all joint tenants may be compelled to sell the land. Where the property in question is not a matrimonial home, there is a narrow standard for the exercise of the court’s discretion to refuse the prima facie right of a joint owner to partition and sale.

The standard for the exercise of the court’s discretion has been stated by the Ontario Court of Appeal in Latcham v. Latcham, [2002] O.J. No. 2126 (Ont. C.A.), namely, that to deny an application for sale, the party seeking the sale must be guilty of malicious, vexatious or oppressive conduct.

In Greenbanktree Power Corp. v. Coinmatic Canada Inc., 2004 CanLII 48652 (ON CA), [2004] O.J. No. 5158, at para. 1, the Court of Appeal confirmed that Latcham set out the appropriate test. At para. 2, the Court of Appeal stated:

Co-tenants should only be deprived of this statutory right in the limited circumstances described above, with this caveat. In our view, “oppression” properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.

In Akman v. Burshtein, 2009 CanLII 16574 (Ont. S.C.J.), at para. 38, Ferrier J. held:

Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself.  Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale.  Osborne v. Myette, 2004 Carswell Ont. 3331 (S.C.J.) at para. 12.”

         Kaing v. Shaw, 2017 ONSC 3050 (CanLII) at 23-25