Month: June 2022

“In Arbitman v. Lee, 2021 ONSC 315, the applicant father brought an urgent motion for seeking a 2-2-3 equal schedule on a temporary, without prejudice basis for the children, and for equal decision-making authority. The respondent mother opposed and sought orders for primary residence, and limited parenting time for the father. Ultimately, Monahan J. ordered a 2-2-3 parenting schedule upon making the following findings:

(a)   it is in the interests of the children that parenting arrangements going forward provide them with the opportunity to maintain their close and loving relationships with both of their parents.

(b)    It is in the interests of the children that parenting arrangements should be designed to ensure that they are not exposed to any further conflict between their parents.

(c)   The children’s lives have been significantly disrupted by the events of the last few months. This disruption has caused confusion and distress for the children. It is in their best interests to establish arrangements which are stable and predictable and which, over time, will reduce the anxiety they are currently experiencing.

In Phillips v. Phillips, 2021 ONSC 2480, the applicant father brought an urgent motion seeking an order for a rotating 2-2-3 equal parenting schedule. The motion was brought because of the respondent mother’s unilateral move with the child from the matrimonial home in the Town of Erin to Toronto.  The father maintained that he had always been a fully involved parent who often cared for the child while the parties lived together.  The mother disagreed with those representations, maintaining she had always been the child’s primary caregiver, while the father continued to work. Kurz J. ultimately ordered a 2-2-3 parenting schedule and found it was in the child’s best interests to have her parents share in her upbringing.

In Pereira v. Ramos, the applicant father brought a motion requesting an order to increase his parenting time with the parties three (3) children in accordance with a 2-2-3 parenting schedule, or a week-  about schedule. The respondent mother opposed the father’s motion and requested that the parties continue to follow the current schedule where the children reside primarily with her and visit their father on alternating weekends. The father maintained that he was an active parent throughout the duration of the marriage and the mother disagreed.  Jain J. held found that it was in the best interests of the children to spend as much time with each parent as possible.  She therefore found a shared parenting time regime was applicable, and accordingly ordered a week-about      schedule for that parenting time.

In the above cases, the court ordered schedules that promote a shared parenting regime and as much time as possible with each parent. As well, the court ordered schedules that altered the status quo that was arbitrarily imposed by one of the parties, against the wishes of the other party.   Most importantly, the court recognized the importance of preserving and fostering a relationship with both parents, especially when the children are young, and considered the 2-2-3 parenting schedule was a good way to meet those goals.”

         Mummery v. Craiu-Botan, 2021 ONSC 4702 (CanLII) at 72-73, 75-76

“There is no dispute that the alleged agreement in this case before me does not comply with section 55(1) of the Family Law Act.  That section requires a domestic contract be made in writing, signed by the parties and witnessed for it to be enforceable.

There is also no debate that in some instances, courts will enforce settlements, despite the absence of the formalities required by s. 55(1).  In Geropolous v. Geropolous, 1982 CanLii 2020, the Ontario Court of Appeal held that the predecessor to section 55(1) was aimed at protecting a different kind of agreement, not at the enforceability of a settlement agreement achieved through correspondence between counsel to settle a pending law suit.  In its conclusion, the Court of Appeal said that settlement agreements, “…made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court” are not subject to the requirements of the section [my emphasis added].  The Court is able to assure their authenticity by supervising their enforcement in the litigation.  The ratio in Geropolous v. Geropolous pertains to agreements made this way, while litigation is ongoing.

In Pastoor v. Pastoor, 2007 CanLii 28331 (S.C.J.), this Court extended the principle from Geropolous v. Geropolous to agreements reached prior to the commencement of litigation.”

         Lindsay v. Lindsay, 2021 ONSC 4674 (CanLII) at 44-46

“Social science evidence regarding the effectiveness of reversal of custody orders in cases of alienation is inconclusive: see Nicholas C. Bala and Katie Hunter, “Children Resisting Contact & Parental Alienation: Context, Challenges & Recent Ontario Cases” (2015), Queen’s University Legal Research Paper No. 056, online: <ssrn.com/abstract=2887646>, cited in A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1 (“A.M. v. C.H. (ONCA)”), at para. 76, aff’g 2018 ONSC 6472 (“A.M. v. C.H. (ONSC)”).

As the motion judge in Leelaratna v. Leelaratna, 2018 ONSC 5983, at para. 52, observed, a “large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parenting [under ss.16(1) and (6) of the then-in-force Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and ss. 28 and 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12], including therapeutic orders, is also entirely consistent with the courts’ duty to promote the best interests, protection and well-being of children.”

Although courts retain wide discretion in crafting their orders, custody dispositions are, as a practical matter, often limited in cases of parental alienation. Courts may (a) do nothing, and leave the child with the alienating parent; (b) reverse decision-making and primary residence, and place the child with the rejected parent; (c) leave the child with the favoured parent and order therapy and counselling; or (d) provide a neutral, transitional, placement for the child and order therapy, so as to facilitate a placement with the rejected parent at a later date: see A.M. v. C.H. (ONSC), at para. 110.

Where a reversal of decision-making and primary residence has been ordered, courts may order that that the alienating parent have no contact with the child for a minimum period: see M.M.B (V.) v. C.M.V., 2017 ONSC 3991; Foley v. Foley, 2016 ONSC 4925; A.M. v. C.H. (ONSC), aff’d in A.M. v. C.H. (ONCA).”

         M.P.M. v. A.L.M., 2021 ONCA 465 (CanLII) at 34-37

“[Legal Aid Ontario] is an independent and publicly accountable non-profit corporation: Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 3(4) (“LASA”). The Government of Ontario created LAO “to establish and administer a cost-effective and efficient system for providing high quality legal aid services to low-income individuals in Ontario”: LASA, s. 4. As stated in s. 14(2) of the LASA, LAO “shall provide legal aid services in the areas of criminal and family law having regard to the fact that the private bar is the foundation for the provision of legal aid services in those areas.” LAO does not represent the client nor does it direct the litigation. Rather, it provides the funding to the client to retain counsel from the private bar. The legal aid system in Ontario permits LAO to rely on the opinions of the private bar lawyers who have carriage of their clients’ files subject to a legal aid certificate. The system is not established on the basis that LAO is required to engage in a detailed factual and legal analysis independent of and disconnected from counsel’s legal opinion. The costs award against LAO based on its failure to adequately monitor the litigation is inconsistent with and would frustrate that statutory scheme.

An award of costs against LAO based on abuse of process must be viewed within this context.

As Strathy C.J.O. explained in Laval Tool & Mould Ltd., the court’s inherent jurisdiction to order non-party costs is grounded in the court’s inherent jurisdiction to deter abuse of process and when exercising inherent jurisdiction to award costs against a non-party, courts must do so “sparingly and with caution”: at paras. 68 and 72.

Abuse of process is a flexible doctrine: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.), at para. 37; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227 (S.C.C.), at paras. 40-41. The concept has been described as involving proceedings that are “unfair to the point that they are contrary to the interest of justice”, oppressive or vexatious, and “violate the fundamental principles of justice underlying the community’s sense of fair play and decency”: C.U.P.E., Local 79, at para 35.

In examining costs against LAO for an alleged abuse of process, a distinction must be made between LAO as a party to litigation and LAO as a non-party statutory funder of litigation. When LAO is a party to litigation, as with any other party, it may be exposed to a costs award. By way of example, in an employment or civil action in which LAO is an unsuccessful party, it would be open to a judge to grant an adverse costs award: see e.g. Legal Aid Ontario v. Gertler, 2010 ONSC 6556 (Ont. S.C.J.).

In contrast, as a non-party, LAO’s conduct must be viewed in the context of its statutory mandate and the regime of legal aid services in Ontario as it is set up by the LASA. Without evidence of something more, such as bad faith or a collateral or improper purpose in granting funding to a litigant, LAO’s conduct in funding litigation pursuant to its statutory purpose, and any conduct incidental thereto, including its monitoring of the litigation it funds, cannot support a finding of abuse of process and a resulting adverse costs award.”

         Hunt v. Worrod, 2019 ONCA 540 (CanLII) at 32-37

“When success is divided, the court has the explicit discretion under r. 24 (6) to determine the allocation of costs. One key issue under r. 24(6) is how to allocate success when neither party is the clear winner of a motion, trial or other proceeding.

In Jackson v. Mayerle, 2016 ONSC 1556 (SCJ-FC), Pazaratz J. considered how to apportion divided success under r. 24(6). He stated that r. 24(6) requires a comparative analysis, as most family cases have multiple issues. However, those issues are not equally important, time-consuming or expensive to determine. Comparative success can also be assessed globally in relation to the whole of the case, asking:

1. 1. 1. 1. 1. How many issues were there?
            2. How did the issues compare in terms of importance, complexity and time expended?
            3. Was either party predominantly successfulon more of the issues?
            4. Was either party more responsible for unnecessary legal costsbeing incurred?

In Thompson v. Drummond, 2018 ONSC 4762, Chappel J. added to Pazaratz J.’s analysis. She pointed out that the determination of success is not merely a mathematical exercise. Rather, the court must engage in a “contextual analysis” in which it looks first to the kinds of factors set out in Jackson v. Mayerle. If it finds that success is divided, the court will then exercise its discretion. It may simply determine costs globally. Or it may look first to success in the primary issue, but subject to “adjustments” that consider lack of success in any secondary issues, as well as any other appropriate factors. As Chappel J. wrote at para. 12:

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them … Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication … Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case …

There are two schools of thought regarding the role of offers to settle in the determination of success under r. 24. On the one hand, in Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.), Justice J. Wilma Scott of this court’s family Court wrote that any determination of success “…must take into account how that order compares to any settlement offers made”: at para. 7. In Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.), at para. 7, Aston J. was even more direct, in stating that:

Offers to settle become the yardstick by which to measure “success” and are significant in considering both liability for costs and the amount of those costs.

On the other hand, in Jackson v. Mayerle, Pazaratz J. considered offers to settle separately from the issue of relative success. His four factors do not include success in comparison to offers to settle. Similarly, Chappel J.’s analysis of divided success in Thompson v. Drummond did not consider offers to settle. Rather, elsewhere in her decision, she describes offers as “[a]nother important consideration in determining both entitlement to and the quantum of costs.”

In my view, offers to settle are imported into r. 24 only in regard to reasonableness and/or proportionality, not success. Further, while those offers need to be in writing, they do not have to meet the formal requirements of r. 18 in order to be considered under r. 24(12).”

            Tharmalingam v. Balasubramanian, 2021 ONSC 4543 (CanLII) at 82-87

“As held in The Catalyst Group Inc. v. Moyse, 2016 ONSC 554 (Div. Ct.), at para. 2, in deciding whether to grant an extension of time on a motion for leave to appeal, the Court is to consider the following four factors, with overarching regard to the justice of the case:

a.    Whether the moving party formed an intention to appeal within the relevant period;

b.    The length of the delay and the explanation for it;

c.    Prejudice to the responding party; and

d.    The merits of the motion for leave to appeal.”

         Hughes v. Hughes, 2021 ONSC 4497 (CanLII) at 11

“We take this opportunity to observe that, as a general rule, counsel on an appeal should confer with their clients and opposing counsel before the hearing to attempt to agree, if possible, on the amount of costs payable to the successful party. Making post-hearing costs submissions necessarily gives rise to both delay and additional costs to both parties – delay and costs that can be avoided by agreement on a realistic number. Where the parties cannot agree, they should exchange costs outlines prior to the hearing and should be prepared to present them and to make submissions to the panel, if and when asked to do so.”

         Cheng v. Sze, 2021 ONCA 457 (CanLII) at 2

“Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time.   In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship.  In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.  Subject to these caveats, the relevant principles and considerations that emerge from the case-law can be summarized as follows:

1. 1. 1. 1. 1. There are two aspects to spouses living separate and apart.  First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell; Greaves).
            2. To live “apart” requires a physical separation between the parties (Oswell, at para. 13).   This means that the parties cannot be cohabiting in a conjugal relationship (Greaves).  However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart.   Spouses can be living separate and apart under the same roof.  The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence (Oswell, at para. 12; Greaves, at para. 34; Neufeld, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16 (CanLII)(C.A.), at para. 20).
            3. By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart.   As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart.  The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14).   Another circumstance which may be relevant in this situation is whether the parties have kept personal items at each other’s residences (Rosseter). The implications of maintaining more than one residence are discussed in greater detail below in the discussion about “cohabitation.”
            4. In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell,at para. 14; Greaves, at para. 34).  The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, (C.A.), at para. 11; Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).
            5. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.), 2016 CarswellBC 1975 (S.C.), at para. 40); Nearing v. Sauer, 2015 BCSC 58 (CanLII)(S.C.), at para. 54).   As McDermot J. stated in O’Brien v. O’Brien, 2013 ONSC 5750 (CanLII) (S.C.J.), at para. 50:

Unlike the decision to marry, the decision to separate is not a mutual one.  It is a decision which is often made by one party over the objections of the other.  Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it.

1. 1. 1. 1. 6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to the determination of whether parties are living separate and apart (O’Brien, at para. 52; S.A.H. v. I.B.L., 2018 BCSC 544 (CanLII)(S.C.), at para. 17).  However, the intention to separate need not be unambiguously relayed to the other spouse by way of a verbal expression of settled intention.  In the context of both common law relationships and married couples, the courts have held that a relationship has come to an end when either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one (Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at para. 432;  Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.) (CanLII), at para. 42;  S.(H.S.), v. D.(S.H.), at para. 43;  Naegels v. Robillard, 2019 ONSC 2662 (CanLII) (S.C.J.), at para. 37).
            7. In assessing whether there is an intention on the part of one or both parties to live separate and apart from the other, the court must strive to determine their true intent and not simply their stated intent at the time of hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 7272 (CanLII)(S.C.J), at para. 47).
            8. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal (Nearing, at para. 59).
            9. The degree to which the parties were intimate with each other is a relevant consideration (Oswell, at para. 15; Rosseter, at para. 38; Anthony v. Anthony, 2019 ONSC 650 (CanLII)(S.C.J.), at para. 42).  However, the absence of sexual relations is not a conclusive indicator that the parties are living separate and apart (Newman v. Newman, 1970 CarswellOnt 123 (C.A.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.); Oswell, at para. 15). Similarly, the fact that the parties have engaged in sexual relations is not determinative of whether they remain separate and apart or have reconciled.  Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasional incidents of sexual intimacy and discussions of reconciliation (Greaves, at para. 36;  S.(K.L.), at para. 23;  Wells. v. King, 2015 NSSC 232 (CanLII) (S.C.), at para. 23).   However, the presence of sexual relations while the parties are still physically living with each other will be a strong indicator that they continue to cohabit in a conjugal relationship (Tokaji v. Tokaji, 2016 ONSC 7993 (CanLII) (S.C.J.), at para. 26).
            10. Whether the parties have been involved romantically with other people (Rosseter, at para. 39).  However, the fact that they have had relationships with other people is not determinative either, particularly if the other party was unaware of the other relations (Neufeld, at para. 75).
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues (Greaves, at para. 34; Cooper, at para. 12; Oswell, at para. 16).
            12. Have there have been any changes in expectations regarding their accountability to each other for daily activities? (Oswell, at para. 37).
            13. The extent and nature of their contact with each other, including whether they have continued to participate in joint social activities (Cooper at para. 15; Oswell, at para. 16; Greaves, at para. 34; Torosantucci;  Rosseter, at para. 26;  Anthony, at para. 42).  In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility” (Torosantucci; Daley v. Gowan, 2015 ONSC 6741 (CanLII)(S.C.J.), at para. 66).
            14. Whether the parties spent vacations together (Oswell, at para. 26; Rosseter, at para. 34; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J); Neufeld, at para. 75; Anthony, at para. 42).
            15. Attendances by both parties with their children for family events, activities and even family vacations is relevant but not determinative, as these may simply reflect the parties’ efforts to co-parent in the best interests of the children post-separation (Volcko v. Volcko, 2015 NSCA 11 (CanLII), at para. 10-11;  Neufeld, at para. 75(j)).
            16. Have the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores? (Cooper, at paras. 13 and 14; Oswell, at paras. 16 and 17; Rosseter, at para. 20; Henderson; Anthony, at para. 42).
            17. Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29)
            18. Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, at para. 75).
            19. Whether they have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues (Rosseter, at para. 31; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J)).
            20. How the parties referred to each other and held out their relationship to third parties (Anthony, at para. 42; R.(T.) v. K.(A.), at para. 46).
            21. Documentary evidence respecting their relationship status is also relevant. For example, the manner in which the parties described their status in important documents, including Income Tax Returns, and whether they have claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 13; Oswell, at para. 18; Greaves, at para. 34;  Joanis v. Bourque, 2016 ONSC 6505 (CanLII)(S.C.J.), at para 25;  Rosseter, at para. 47; Henderson, at para. 35;  Tokaji, at para. 25).  Once again, however, these considerations are not determinative, and the court should consider any explanations which either party may proffer before determining the weight, if any, to accord to them (Morin v. Morin, 2011 ONSC 1727 (CanLII) (S.C.J.), at para. 27; Anthony, at para. 42).
            22. If the parties have retained a counsellor or mediator, the purpose for which the mediator was consulted may also be of assistance in determining whether the parties have separated (Oswell, at para. 28).
            23. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings (Newton v. Newton, 1995 CarswellOnt 84 (S.C.J.);  Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42).
            24. Have the parties continued to share the use of assets? (Rosseter, at para. 43).
            25. The parties’ behaviour towards each other in the presence of third parties (Rosseter, at para. 44).
            26. Whether the parties have taken legal steps to legally terminate their relationship and resolve issues relating to their separation (Oswell, at para. 35; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), at para. 53;  Rosseter, at para. 49).  However, this factor is not determinative and may be given little weight if no further steps were taken and other factors point to a continuation of their involvement with each other as a couple (Rosseter, at paras. 49-51).”

Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII) at 26

“In accordance with s. 22(3) of the CLRA, the removal or withholding of a child without the consent of the parent having custody of the child does not alter the habitual residence of the child unless there has been some acquiescence or undue delay in commencing due process by the person from whom the child has been removed or withheld.

Pursuant to Rule 5(1)(b), the wording of that subsection means that the matter should have commenced where the child was ordinarily residing and if the matter was improperly commenced in a particular proceeding, the Court could order a particular proceeding be transferred and does not need to consider a transfer motion pursuant to Rule 5(8) (see Mohr v. Sweeney, 2016 ONSC 2248, paras. 16-17).

Given that the Mother had only moved to her new municipality 6 to 8 days before commencing her motion, it is questionable that the child was ordinarily residing in the Markham area.  There is case law that a recent, unilateral move will generally not be accepted as “ordinarily resides” as defined.  Those three cases are: A.A.B v. A.P.J., 2012 ONCJ 546 at paras. 59-63; Benson v. Forsyth, 2012 ONCJ 304 at paras 15-29; and Sangha v Sangha, 2014 ONSC 4088 at paras 47-48.

The Court is aware that Rule 5(2)(b) allows a motion to be heard elsewhere where there are allegations of danger to the party; however, it is to be transferred back to the usual venue (i.e.: where the child ordinarily resides) unless the court “others otherwise”.  The words “orders otherwise” should be narrowly interpreted, as Rule 5(2) is designed to prevent forum shopping and the parties using self-help to remove the children from the municipality where they ordinarily reside (Van Roon v. Van Roon, 2013 ONCJ 276, at para. 70).”

            Alcine v. Murray, 2018 ONSC 3856 (CanLII) at 28-31

“It is settled law that a lawyer can act against a former client, so long as the lawyer does not breach the duty of confidence.

A lawyer also has a limited duty of loyalty to a former client. In particular, even if no confidential information was provided by a former client, a solicitor retained cannot “subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on” (Consulate Ventures, at para. 26).

Further, a lawyer cannot act take “an adversarial position against the former client with respect to the legal work which the lawyer performed for the former client or a matter central to the earlier retainer” (Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (“Brookville Carriers”), at para. 17.).

Examples of the above instances of a duty of loyalty to former clients are reviewed in detail by Cromwell J.A. (as he then was) in Brookville Carriers. Cromwell J.A. reviewed the example of Credit Suisse First Boston Canada Inc. Re (2004), 2 BLR (4^th) 109 (Ont. Sec. Comm.), in which the law firm was in breach of a duty of loyalty because it had given advice to the Toronto Stock Exchange on the establishment of Market Regulation Services and then acted for Credit Suisse and raised defences that attacked that work and advice (Brookville Carriers, at paras. 43-44).

Similarly, Cromwell J.A. reviewed the decision in Chiefs of Ontario v. Ontario (2003), 63 OR (3d) 355 (SCJ) (“Chiefs of Ontario”), in which the law firm acted for the Chiefs of Ontario against a First Nation on casino revenue matters, alleging deception and bribery, when the law firm had acted for that First Nation with respect to the same casino revenue matters (Brookville Carriers, at para. 45).

The duty of loyalty is based on the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice (Perell (as he then was) in Conflicts of Interest in the Legal Profession (Toronto, Butterworths: 1995), cited at Brookville Carriers, at para. 48). The duty protects “the confidence of every litigant that their legal advisers will not later attack their honour in matters closely related to their confidential retainers” (Chiefs of Ontario, at para. 112; cited at Brookville Carriers, at para. 45).

In Brookville Carriers, Cromwell J.A. engaged in a thorough review of the law. He held that “the scope of this duty [of loyalty] is very limited absent confidential information being at risk”. Crowell J.A. held that (Brookville Carriers, at para. 51):

Under the principle relevant here, that concerning acting against a former client in a related matter, the focus is different. As the cases and commentators show, the scope of this duty is very limited absent confidential information being at risk. This broader continuing duty of loyalty to former clients is based on the need to protect and to promote public confidence in the legal profession and the administration of justice. What is of concern is the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.

Consequently, the scope of a duty of loyalty to former clients is restricted to attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.”

Hogarth v. Hogarth, 2016 ONSC 3875 (CanLII) at 95-102