Month: August 2022

“In addressing the non-party disclosure motion as it relates to the decision-making and parenting time issues in dispute, I am guided by the underlying requirement to consider the best interests of the children: Divorce Act, RSC 1985, c. 3 (2^nd Supp), ss. 16(1); Vecchio v. Abdelgawad, 2017 ONSC 5815 at para 3.  In determining the parenting-related issues based on the children’s best interests, the court should have the best available information for everyone involved in the children’s care and upbringing:  Noel v. Noel, 2015 ONSC 4561 at para 38.

Rule 19(11) (Document in non-party’s control) of the Family Law Rules provides for the production of documents from a non-party as follows:

If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) Order that a copy be prepared and used for all purposes of the case in stead of the original.

Deciding a motion for non-party production calls for a multi-step analysis.

a)     Relevance

The threshold issue for a production order is relevance.  As stated in M.M-A., P.A., M.D. and A.D. v. E.L., Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 at para 22:

The preliminary question to be determined when considering a production order is relevance. Rule 19(11) does not specifically refer to relevance; it is necessarily implied. See   Catholic Children Aid Society of Toronto v. K. (T.) 2004 CanLII 16117 (ON CJ), [2004] O.J. No 61, 50 R.F.L. (5^th) 285 OCJ. If relevance is challenged, then the inquiry begins there. Since the particular contents of the records are not yet known, the assessment of relevance often entails a degree of speculation, but more than mere speculation is required to prevent unwarranted so-called fishing expeditions.  The question then becomes what threshold of relevance pertains?

As the non-party records at issue contain private or highly sensitive information, I accept that the “likely relevant” threshold should apply in deciding relevance: Kunuwanimano at para 24; Children’s Aid Society of Brant v. P.(N.M.), 2016 ONCJ 266 at para 38.

b)      Privilege

Rule 19(11) requires the court to consider any legal privilege that might apply to exclude the non-party production sought.

There are two broad classes of privilege, namely “class” privilege and “non-class” or “case-by-case” privilege.  Class privilege is well-established and commonly refers to solicitor-and-client communications and settlement discussions between parties to litigation.  Non-class or case-by-case privilege arises from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist.  The onus is on the person claiming a privilege to demonstrate that the communications should not be disclosed: Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (ONSC) at para 19; Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69 at para 42.

The common law permits the court to consider whether privilege exists where “reason, experience and application of the principles that underlie the traditional privileges so dictate” on a case-by-case basis: M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 at para 20.  In Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 SCR 254 at 260, the Supreme Court approved the following four-part criteria set out in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285 to establish a case-by-case privilege:

a.    The communication must originate in a confidence;

b.    The confidence must be essential to the relationship in which the communication arises;

c.    The relationship must be one which should be “sedulously fostered’ in the public good;

d.    If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correction of the litigation.

If all four (4) of the Wigmore criteria are met, a privilege may be said to exist to prevent the disclosure of the subject records or information.

The Supreme Court of Canada affirmed the Wigmore test in Ryan at para 20.  In that case, the victim of a sexual assault by a psychiatrist brought a civil action for damages.  The former psychiatrist sought disclosure of the victim’s new psychiatrist’s reports and notes.  In describing the Wigmore test, the Supreme Court in Ryan at para 37 rejected a blanket approach to privilege and held that a court may determine that psychiatrist-patient records are privileged in appropriate circumstances by carefully considering the issue of privilege on a case-by-case basis:

My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances.  Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head.  A document  relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential.  On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged.  The result depends on the balance of the competing interests of disclosure and privacy in each case.   It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production.  Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage.  Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.  [Emphasis added]

A production order should not permit “fishing expeditions” where a compelling privacy interest is at stake, even at the discovery stage: Ryan at para 37.

The law of privilege is applied to reflect the social and legal realities of our time.  This includes addressing the concerns over the wrongs perpetrated by sexual abuse, the serious effect of such abuse on victims, and the importance of supporting victims with care and treatment to address the aftermath of such abuse: Ryan at para 21.

The court may flexibly craft production orders to safeguard privacy concerns and ensure that relevant disclosure is available to the parties: Ryan at paras 33 and 37; Kunuwanimano at paras 38 and 48.  The goal is to allow for proportionate and efficient production while guarding against the injustice of cloaking the truth.  This may be accomplished by disclosing a limited number of documents, removing non-essential materials, limiting the dissemination or copying of records, and otherwise minimizing any damage to protected relationships: Ryan at para 33.

c.                Fairness

Once the issue of privilege has been determined, the court must still decide the second part of the Rule 19(11) test, namely whether it would be unfair for a party to proceed to trial without the documents sought.

In determining this second part of the Rule 19(11) test, the factors established by the Court of Appeal in Attorney General for Ontario v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 OR (3d) 39 (CA) are considered. These factors include the following:

a.    The importance of the documents in the litigation;

b.    Whether disclosure or production can be postponed until trial; is it necessary to have production at the discovery stage to avoid unfairness;

c.    The position of the non-parties with respect to production;

d.    The availability of the documents or their informational equivalent from some other source; and

e.    The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.

See also: Kunuwanimano at paras 42-43; Girdlestone v. Bentley, 2020 ONCJ 444 at para 26.”

         G.L.K. v. C.L.K., 2021 ONSC 5843 (CanLII) at 18-32

“Prior to the Supreme Court’s decision in Balev, Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132, a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev. v. Baggott, 2016 ONCA 680 (CanLII), 133 O.R. (3d) 735, at paras. 39-40, 42, rev’d 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398.

In Balev, the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev. Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev, at para. 41.

Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention: at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65.

The aim of the hybrid approach is to determine the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:

1)   The child’s links to and circumstances in country A;

2)   The circumstances of the child’s move from country A to country B; and,

3)   The child’s links to and circumstances in country B.

The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.”

         Ludwig v. Ludwig, 2019 ONCA 680 (CanLII) at 27-31

“It is in stage two of the Miglin analysis that a court is required to consider whether the agreement “still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”.

The Supreme Court majority was careful to strike a note of caution in the approach to stage two. The court stated at para. 89:

We stress that a certain degree of change is foreseeable most of the time. The prospective nature of these agreements cannot be lost on the parties and they must be presumed to be aware that the future is, to a greater or lesser extent, uncertain. It will be unconvincing, for example, to tell a judge that an agreement never contemplated that the job market might change, or that parenting responsibilities under an agreement might be somewhat more onerous than imagined, or that a transition into the workforce might be challenging. Negotiating parties should know that each person’s health cannot be guaranteed as a constant. An agreement must also contemplate, for example, that the relative values of assets in a property division will not necessarily remain the same. Housing prices may rise or fall. A business may take a downturn or become more profitable. Moreover, some changes may be caused or provoked by the parties themselves. A party may remarry or decide not to work. Where the parties have demonstrat ed their intention to release one another from all claims to spousal support, changes of this nature are unlikely to be considered sufficient to justify dispensing with that declared intention.

The majority in Miglin added what appears to be the guiding principle of the stage two analysis at para. 91:

Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight.”

         Murray v. Murray, 2005 CanLII 30304 (ON CA) at 21-23

“In Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, the Supreme Court of Canada set out the rationale for settlement privilege and the principles that apply to the assertion of settlement privilege. Abella J., writing for the Court, held, at para. 2, that “the purpose of settlement privilege is to promote settlement”, and “the privilege wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible”. Settlement privilege extends beyond documents and communications expressly designated to be “without prejudice”. See Sable, at paras. 12-14.

Settlement privilege will attach to a document or communication where (a) there is a litigious dispute, (b) the communication has been made with the express or implied intention it would not be disclosed in a legal proceeding in the event negotiations failed; and (c) the purpose of the communication is to attempt to effect a settlement: Re Hollinger, 2011 ONCA 579, at para. 16.

Settlement privilege is a class privilege and, while there is a prima facie presumption of inadmissibility, exceptions will be found “when the justice of the case requires it”. See Sable, at paras. 12 and19.

Where settlement privilege is asserted over documents and communications made in furtherance of settlement, the party asserting the privilege must first show that they are prima facie protected by settlement privilege. If this is done, the party seeking disclosure on the ground that an exception to the privilege applies must show that, on balance, a competing public interest outweighs the public interest in encouraging settlement. See Sable, at para. 19.

In Union Carbide Inc. v. Bombardier Inc., 2014 SCC 35, the Supreme Court of Canada explained that settlement privilege is a common law rule that protects communications exchanged by the parties as they try to settle a dispute. The Supreme Court of Canada held, citing Sable, that settlement privilege promotes a priority of our justice system of encouraging settlements. Settlement privilege applies even in the absence of statutory provisions or contract clauses with respect to confidentiality, and the privilege applies even after a settlement is reached. In a mediation held to discuss settlement, the parties’ communications are protected by the common law settlement privilege. See Union Carbide, at paras. 31-34, and 39.”

Stronach v. Belinda Stronach in her Personal Capacity and as Trustee of the Andrew Stronach 445 Family Trust, 2021 ONSC 5758 (CanLII) at 23-27

“There are two avenues by which undue influence can be established: first, by adducing evidence of actual undue influence, and second, by establishing that a presumption of undue influence applies (Goodman Estate, at paras. 24-27; Bank of Montreal, at para. 6; Thorsteinson Estate v. Olson, 2016 SKCA 134 (Sask. C.A.), at para. 35). Actual undue influence is established where one party induces the other to enter into the transaction by dominating their will through the exercise of a pervasive and unconscientious influence on them, whether through manipulation, coercion, fraud or outright or subtle abuse of power (Allcard; Goodman Estate, at para. 41; Kavanagh v. Lajoie, 2014 ONCA 187 (Ont. C.A.), at paras. 18-19; Hilmoe v. Hilmoe, 2017 CarswellSask 537 (Sask. Q.B.), at para. 60, aff’d 2018 SKCA 92 (Sask. C.A.), at para. 65, leave to appeal to the S.C.C. refused 2019 CarswellSask 265 (S.C.C.); Morreale v. Romanino, 2017 ONCA 359 (Ont. C.A.), at para. 21). In Allcard, Lindley L.J. described cases of actual undue influence as involving “some unfair and improper conduct, some coercion from outside, some overreaching, some form or cheating, and generally, though not always, some personal advantage obtained” by one party over the other (at pp. 98-99; see also Goodman Estate, at para. 27; Blanchette v. Blanchette, 1984 CarswellSask 54 (Sask. Q.B.), at para. 12; Freake, at para. 40). In situations of actual undue influence, the onus is on the party seeking to set aside the impugned transaction to prove affirmatively that they entered into it as a result of undue influence exerted intentionally by the other party expressly for the purpose of securing some advantage (Allcard, at p. 181; Goodman Estate, at para. 26-27; Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.), at para. 28; Bank of Montreal, at para. 6; Kavanagh, at para. 19). The justification for setting aside a transaction induced by actual undue influence is that no person should be permitted to retain any benefit arising from their own fraud or wrongful act (Allcard, at p. 171).

The second class of undue influence cases involves transactions with respect to which the court will apply an evidentiary presumption that undue influence was exerted. If the criteria giving rise to such a presumption are satisfied, then the onus shifts to the party seeking to uphold the transaction to rebut the presumption by proving that the other party entered the transaction as a result of “their own full, free and informed thought” (Zamet v. Hyman, [1961] 1 W.L.R. 1442, [1961] 3 All E.R. 933 (Eng. C.A.), at p. 938; Goodman Estate, at para. 46; Bank of Montreal, at para. 6; Foley v. McIntyre, 2015 ONCA 382 (Ont. C.A.), at para. 28). The classification of a case as one of presumed undue influence is therefore extremely important from an onus of proof perspective. While cases of actual undue influence depend on proof of an intentional and unconscientious exertion of influence, cases of presumed undue influence do not depend on evidence of reprehensible conduct or a finding of a specific act of coercion or domination (Morreale, at para. 21). Presumed undue influence may arise where the party seeking to uphold the transaction had the sincere belief that they were acting honestly and in the interests of the other party (Ogilvie v. Ogilvie Estate, 1998 CarswellBC 717 (B.C. C.A.), at para. 14). In cases of presumed undue influence, the court’s intervention is justified on public policy grounds, to prevent the influence existing in certain types of relationships from being abused (Allcard, at p. 171; Ogilvie, at para. 14).

A presumption of undue influence will be triggered in relation to a transaction if the following criteria are satisfied:

First, the relationship between the parties around the time of the transaction must have been such that the party seeking to uphold the transaction had a dominating influence over the other; and

Second, in cases of classic contracts involving consideration as opposed to gifts or bequests, the party seeking to avoid the contract must show that the agreement worked unfairness either in the sense that they were unduly disadvantaged by it or that the party seeking to uphold the arrangement unduly benefitted from it (McKay v. Clow, [1941] S.C.R. 643(S.C.C.), at para. 84; Goodman Estate, per Wilson, J. at paras. 40-45; Williams v. Downey-Waterbury, 1994 CarswellMan 182(Man. C.A.), leave to appeal to S.C.C. refused, [1995] S.C.C.A. No. 217 (S.C.C.); Bank of Montreal v. Courtney, 2005 NSCA 153 (N.S. C.A.), at para. 29).

With respect to the first criterion for triggering a presumption of undue influence, the courts have emphasized that the relationships giving rise to the presumption are not limited to fixed categories (Goodman Estate; Bank of Montreal v. Courtney, at para. 30). However, there are two broad classifications of relationships which support a presumption of undue influence, as follows:

Category A:

First, there are several relationships which equity has clearly recognized as a matter of law as typically supporting a presumption that undue influence has been exercised. These include the relationship between solicitor and client, parent and child, guardian and ward, spiritual adviser and follower, medical advisor and patient, and “other relationships of dependency which defy easy categorization” (Goodman Estate, at para. 43; see also Bank of Montreal, at para. 6; Lloyd’s Bank v. Bundy (1974), [1975] Q.B. 326 (Eng. C.A.)). In Morreale, at para. 23, the Ontario Court of Appeal emphasized that even with these types of relationships that are typically recognized as satisfying the test, it is not enough to simply show that such a relationship exists; the party seeking to uphold the transaction must still establish that there is a potential in the relationship for one person to dominate the will of another.

Category B:

The second class of cases encompasses relationships in which the potential for domination is found by the court to exist as a matter of fact (Bank of Montreal, at para. 6). In these cases, the court must carefully assess the nature and dynamics of the particular relationship in question to determine whether they give rise to a potential for domination by one party over the other (Goodman Estate, at para. 43; Hilmoe, at para. 65).

The relationship between spouses does not fall within Category A, and thus does not in and of itself automatically generate a presumption of undue influence in law (Williams; Steeves v. Steeves, 1997 CarswellNB 352 (N.B. C.A.), at para. 11; Bank of Montreal, at para. 7; Freake, at para. 41; Bank of Montreal v. Courtney, at para. 30; Hilmoe, at para. 65). This principle extends to the context of the negotiation of a separation agreement between spouses (Freake, at para. 41). Accordingly, the presumption of undue influence will only arise in relation to transactions between spouses if the party seeking to set aside the agreement establishes that the potential for domination was inherent in the parties’ relationship, having regard for the specific dynamics of their situation and interactions (Bank of Montreal, at para. 16; Steeves, at para. 11; Hilmoe, at para. 65; Freake, at para. 41). The courts have held that a presumption of undue influence can arise in relation to a transaction involving spouses where one spouse typically relies on the other to make all financial decisions and generally reposes complete trust and confidence in them (Barclays Bank PLC v. O’Brien (1993), [1994] 1 A.C. 180, [1993] 4 All E.R. 417 (U.K. H.L.), at paras. 16 and 17; Bank of Montreal; Debora v. Debora, 2004 CarswellOnt 4987 (Ont. S.C.J.), aff’d on other grounds 2006 CarswellOnt 7633 (Ont. C.A.)). By contrast, the presumption of undue influence has not been triggered in cases where the spouse seeking to avoid the transaction has not demonstrated a tendency to consistently bow to their spouse’s decisions and to indiscriminately defer to their judgment (Bank of Montreal; Bank of Montreal v. Courtney). The courts have also held that the presumption can arise as between spouses where there is a history of domination by one of them coupled with evidence that the other is suffering from a fragile emotional or psychological state (Mundinger; Campbell, at para. 82). Similarly, the presumption may arise where one spouse is in a physically or emotionally vulnerable state and is dependent on the other spouse around the time of the transaction (Hilmoe, at para. 66).

If the presumption of undue influence is not triggered in regard to a transaction between spouses, the spouse seeking to set aside the transaction can nonetheless seek to do so on the basis of actual undue influence, which they will have the onus of affirmatively proving (MacKenzie v. Royal Bank, [1934] A.C. 468 (Jud. Com. of Privy Coun.), at para. 5; Williams, at para. 20; Bank of Montreal, at para. 16; Hilmoe, at para. 67).

Turning to the second criterion for establishing a presumption of undue influence, I note that in Thorsteinson, at para. 37, the Saskatchewan Court of Appeal held that the Supreme Court of Canada decision in Goodman Estate raised uncertainty as to whether the requirement of a manifest disadvantage to the aggrieved party or an undue advantage to the party seeking to uphold the transaction is necessary to trigger the presumption of undue influence in cases involving classic contracts involving consideration. In my view, this is clearly a requirement before the presumption will arise in contract cases. I note that Wilson J. (Cory J. concurring) concluded in Goodman Estate, at para. 44 that this criterion is justified in the case of contracts, as compared to gifts or bequests, on the ground that “a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains.” Laforest J. (MacLachlan J. concurring) emphasized that a finding of manifest disadvantage to the party seeking to avoid the contract, or undue advantage by the other party, is not required to support a finding of actual undue influence. He concluded that it was unnecessary to address whether this is an essential criterion to raise the presumption of undue influence in contracts, since the case under consideration involved a bequest rather than a contract involving consideration. However, he did comment as follows on this issue at para. 84:

It may well be appropriate to require a showing of undue disadvantage or benefit before a presumption of undue influence will be applied. Given that the effect of the presumption of undue influence is to shift the burden of proof to the defendant, it may not be unreasonable to require that there be some showing of undue disadvantage or benefit in a commercial transaction before the presumption will arise. It is a substantially different question, however, whether undue influence itself must always involve undue disadvantage or benefit.

Laforest J.’s last comment in this paragraph relates, in my view, to cases of actual undue influence rather than presumed undue influence in contract situations. This conclusion finds support in the Supreme Court of Canada’s decision in McKay, where Crocket J. explicitly accepted the criterion of an undue advantage to the party seeking to uphold the transaction as a well-established requirement for raising a presumption of undue influence in cases involving contracts for consideration in McKay, where Crocket J. stated as follows at para. 39 (emphasis added):

As regards that vital question, the established rule of equity is that, whenever it appears that any party to a transaction, from which he or she derives some large or immoderate benefit, occupies such a position in relation to his or her supposed benefactor as to give the recipient a dominating influence over the latter, that benefit is presumed to have been obtained by the exercise of some undue influence on the part of the recipient. In all such cases, whatever be the nature of the transaction, whether a gift inter vivos or a contract alleged to have been made for a good and sufficient consideration, the onus of proof lies on the party who seeks to support it.

As the foregoing discussion illustrates, the law respecting undue influence is technical and convoluted. By way of overview, a general roadmap for determining whether a contract should be set aside on the ground of undue influence is as follows:

First, determine whether the agreement attracts a presumption of undue influence. In addressing this question, the court must first ascertain whether the relationship between the parties has the necessary hallmarks for the activation of the presumption, either as a matter of law (a “category A” case) or as a matter of fact (a “category B” case). If it does not, the case is not one of presumed undue influence, and proceed to question 3.

If the parties’ relationship meets the criteria for invoking the presumption of undue influence, determine whether the transaction involves manifest disadvantage to the party seeking to set it aside or undue advantage to the other party. If the answer is yes, then the presumption of undue influence is triggered. The agreement may be set aside, unless the party seeking to uphold it rebuts the presumption of undue influence by satisfying the court that the aggrieved party executed it through their own full, free and informed thought.

If the presumption of undue influence is not triggered, consider whether the case involves actual undue influence. The question to determine in this regard is whether the party seeking to set aside the contract has affirmatively established that the other party intentionally induced them into executing the agreement by dominating their will through the exercise of a pervasive and unconscientious influence on them, whether through manipulation, coercion, fraud, abuse of power or other unscrupulous means.

The factors that may impact the court’s determination of whether undue influence has been proven will ultimately depend on the particular circumstances and dynamics of each case under consideration. Evidence that the party seeking to set aside the arrangement obtained independent advice is a relevant factor in determining whether actual undue influence occurred or in rebutting the presumption of undue influence (Goodman Estate, at para. 46; Bank of Montreal, at para. 24; Freake, at para. 42), but it is not determinative (Bank of Montreal, at paras. 26-27; Morreale, at para. 33). The presumption of undue influence may be rebutted by evidence that the party seeking to uphold the transaction did not actually deploy any influence in relation to the transaction (Goodman Estate, at para. 46). In addition, in considering whether the presumption of undue influence has been rebutted, the magnitude of the disadvantage or benefit arising from the arrangement is “cogent evidence going to the issue of whether influence was exercised” (Goodman Estate, at para. 46).

As in the case of duress, the right to rescind a contract on the basis of undue influence may be lost if the aggrieved party subsequently affirms the contract (Allcard; Puopolo, at para. 19). Affirmation of the contract cannot occur unless the aggrieved party has full knowledge of the facts and the equitable rights arising out of those facts, and until the undue influence has ceased (Allcard).”

         Kinsella v. Mills, 2020 ONSC 4785 (CanLII) at 453-463

“Rule 25(19)(e) of the FLR provides that: “the court may, on motion, change an order that…was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present”.

Prior to the Court of Appeal’s decision in Gray the jurisprudence in the family context was unclear as to whether Rule 25(19)(e) applied to motions to set aside a final order made on an uncontested basis or whether it was necessary to resort to the Rules of Civil Procedure, RRO 1990, Reg 194 (“RCP”).

After determining that Rule 25(19)(e) should be interpreted broadly to encompass motions to set aside, the Court of Appeal in Gray went on to hold that:

[29]      Finally, and most importantly, this interpretation of r. 25(19)(e) promotes the underlying philosophy, scheme, and purpose of the Family Law Rules. As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[30]      Rule 2(2) states that the “primary objective of these rules is to enable the court to deal with cases justly.” While r. 1(7) permits a court to refer by analogy to the Rules of Civil Procedure where the family rules do not adequately cover a matter, such instances will be “rare”: Frick, at para. 12. The Family Law Rules are intended to be a complete procedural code.

[31]      An interpretation of “change” as including “set aside” best promotes the efficient and just resolution of family law matters. On a motion under r. 25(19)(e), the court may decide that the most efficient remedy is to vary the order at issue without setting it aside. However, the court may instead determine that the order needs be set aside entirely; a variation of the order at issue would not produce a just result. For example, a new hearing on the merits may be required.

[32]    There is no need to further consider the provisions and language from the Rules of Civil Procedure in this case, such as whether the trial judge’s order is analogous to a “default order”. An analysis of such terms would only confuse the scheme and narrative that are unique to family law litigation. Rule 25(19)(e) adequately covers the matter in this case.                   

Gray v. Gray, 2017 ONSC 5028 (CanLII) at 14-16

“Pursuant to Rule 24(12) of the Family Law Rules, the court may make an order that a party pay an amount of money to cover part or all of the expenses of carrying on a case by the other party. The power to do so is discretionary and the discretion must be applied to further the primary objection of fairness. (Rogers, J. Stuart v. Stuart, 2001 ONSC CarswellOnt 4586)

The rule is intended to enable the court “to provide a level playing field, to ensure that all parties can equally provide or test disclosure, make appropriate valuations of net family property, make or consider offers to settle or prepare and proceed to trial.” (Boris v. Boris, 2005 ONSC CarswellOnt 975)

In paragraph 29 of Woodburn v. Woodburn, 2016 ONSC CarswellOnt 17658, Justice Emery summarized the principles applicable on a motion for payment of interim costs as follows:

1. 1. 1. 1. 1. The moving party must provide evidence to establish that, on the balance of probabilities, there is a prima faciecase of sufficient merit to warrant pursuit;
            2. The moving party must provide evidence that the interim payment of a specific amount of money for expenses to carry the case is necessary and the basis for the amount requested;
            3. The moving party must demonstrate that she or he is incapable of funding the requested amounts.
            4. The moving party must provide evidence that there are no resources available to fund the cost or that it would not be fair or reasonable to access resources for the litigation;
            5. The court has discretion in special circumstances to level the playing field so that all parties have an equal and fair opportunity to engage the litigation process for a just determination of their issues.”

Freiman v. Freiman, 2017 ONSC 4981 (CanLII) at 43-45

“As discussed on numerous occasions, solicitor-client privilege is a fundamental civil right and “a cornerstone of our system of law” (Re Palamarek, 2010 BCSC 1894 (CanLII), 196 A.C.W.S. (3d) 410).

As stated by Justice Jennings in Soriano v. Laberakis (2006), 2006 CanLII 3973 (ON SCDC), 80 O.R. (3d) 303, 145 A.C.W.S. (3d) 927 (Ont. Div. Ct.) at para. 7:  “A client so disabled cannot properly instruct his counsel and his counsel accordingly had no proper authority to release information protected by a solicitor and client privilege.”

This is to be distinguished from Barnes v. Kirk (1968), 1968 CanLII 389 (ON CA), [1968] 2 O.R. 213, 1968 CarswellOnt 711, where the Ontario Court of Appeal was dealing with an appeal of an order compelling a plaintiff to attend discovery. The plaintiff’s counsel filed an affidavit with his information and belief regarding his client’s condition. The Court found it to be hearsay. No medical evidence was filed. The court found: “The party’s unsoundness of mind constitutes such a valid reason [for non-attendance at discovery], but the onus of rests on the party alleging it.  The question essentially is one to be decided upon medical evidence; without direct cogent evidence from a person duly qualified to speak with authority upon the subject, it is difficult to perceive how the court could pass upon the question judicially”.

The legal system is based on the right of a client to be protected by solicitor-client privilege. A lawyer is under a professional duty not to disclose information arising out of a solicitor-client relationship. This professional duty must be protected to ensure the proper administration of justice.  On the other hand, the litigation here will be at a standstill given the current state of the Respondent. The evidence to date clearly demonstrates that this litigant is in a serious anxious state that prevents her from engaging in the litigation. In order to ensure that the process and the parties’ interests are protected, the Court must make a determination of whether this litigant should have a litigation guardian and in doing so, the Court would benefit from the review of her counsel’s affidavit.

Accordingly, the importance of determining if the Respondent has the capacity to continue on her own with this litigation or whether she requires a litigation guardian to represent her dictates that the Court review the evidence that may assist in this analysis. Clearly, the lawyer’s evidence, which includes her observations and views, is of some significance in this analysis as per Costantino v. Costantino, 2016 ONSC 7279 (CanLII), 273 A.C.W.S. (3d) 282 [Costantino].

The Respondent has met the burden of showing that the sealing order is necessary to prevent the serious risk to the administration of justice of a breach of solicitor-client privilege and that there are no reasonable alternatives that will avoid the risks. Secondly, she has shown that the beneficial effects of the sealing order outweigh the deleterious effects on the rights and interests of the public (R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442; Edmonton Police Service v. Alberta (Law Enforcement Review Branch), 2013 ABCA 236 (CanLII), 553 A.R. 389).

The Court finds that the affidavit of the Respondent’s counsel could be of assistance to the Court. Counsel’s observations and interactions with her client will shed light on whether she “is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof” as set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).”

Evans v Evans, 2017 ONSC 5232 (CanLII) at 19-25

“It is best to go back to basics. The Children’s Law Reform Act (the CLRA) requires that a material change in circumstances be demonstrated to the satisfaction of the court before the court can vary an access order.

CLRA S.29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.  R.S.O. 1990, c. C.12, s. 29.

However, the access order that is sought to be varied, and the motion of the father are not under the CLRA, but rather under the Child, Youth and Family  Services Act (the CYFSA). There is no statutory provision that expressly permits the importing of a CLRA requirement into the CYFSA in the area of “access”.

The status review application of the society is brought under s.113 of the CYFSA.  This section of the CYFSA permits the society to apply to review the status of a child like A., at any time. As to what happens to the child when the society elects to do so, this is governed by s.113(8) CYFSA.

CYFSA S 113(8)  If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody

This subsection say nothing about any access order. And there is no provision in the following section of the CYFSA that deal with access to a child. However, there is a section of the CYFSA that deals specifically with access to, or by, a child. That is s.104 CYFSA.

         CYFSA S. 104 (1)  The court may, in the child’s best interests,

                                    (a)        when making an order under this Part; or

                                    (b)        upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Any claim for an order for access, or for variation of access, in a child protection proceeding or a status review proceeding has necessarily to be brought under s.104 CYFSA.

This subsection, and the following subsections in s.104 CYFSA say nothing about any requirement that a motion applicant seeking to vary an access order must demonstrate any material change in circumstances. In fact, the only criterion that is apparent from s.104, whether the court is making, varying or terminating an access order, is that the order that the court makes is one that is in the best interests of the child.

Notwithstanding this plain reading, some jurists have imported the “material change” pre-requisite into access hearings under the CYFSA. Their reasoning seems logical, even if not in accordance with the statute, when the claim is one for variation. This thinking can be summarized as follows:

1. 1. 1. 1. 1. The existing order is one that was made in the best interests of the child based circumstances that the evidence showed existed when it was made.
            2. There is (somewhat more than) a presumption that it remains an access order that is still in the best interests of the child.
            3. To change that order, the person seeking the change must show that the circumstances have changed from when the order was made, and have changed sufficiently (i.e. a material change) to warrant the court varying the previous order.
            4. The change in access, if made, must still be a change that is in the best interests of the child.

There are any number of court decisions that have imported this material change requirement in dealing with variation of access claims. There are others that have not, and have stated that a material change in circumstances is not a pre-requisite for variation of access. A good review of this still controversial area of the law is found in the decision of Justice Sherr in Catholic Children’s Aid Society of Toronto v. R.M. [2017] O.J. No. 6004, 2017 ONCJ 784, at paragraphs [41] to [52], but ultimately he concludes at paragraph [80]

 “ …. if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent’s access. Material change or compelling evidence that is necessary for the child to make the change should generally not be required. The Act is remedial legislation. It would be contrary to the purpose of the Act to construct a legal test to change access that is too onerous for parents to meet, discourages them from moving to court to increase their access with the child and sets up more families to fail.”

This decision has not been appealed. Justice Sherr sets out what he views as the legal test for access variation when a child protection case is adjourned [at paragraph 85]

“a)       The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case. 

b)         The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child’s best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in para-graph 83 above should be considered, where relevant.”

I am in the camp of those jurists who do not hold that a material change in circumstances is a pre-requisite for variation of an existing access order in child protection cases. However, I do believe that the motion applicant has to show that some “significant” change has taken place and further, that the variation order sought is in the child’s best interests at the time of the variation hearing.”

Children’s Aid Society of Algoma v. K.S., 2019 ONCJ 716 (CanLII) at 10-19

“Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where no presumption of advancement arises, once the transfer is proved, the burden then falls on the recipient of the money to show that it was not repayable. Rothstein J. in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 24 and 25 explained:

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

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

Also see MacIntyre v. Winter, 2021 ONCA 516, 2021 CanLII 516 (Ont. S.C.), at para. 18.

Thus, the onus is on the defendant to establish on a balance of probabilities that the money transferred to her is a gift. Common-law relationships or romantic friendships do not give rise to a presumption of gift: Zachariadis Estate v. Giannopoulos, 2019 ONSC 6505, 2019 CanLII 6505 (Ont. S.C.), at para. 68. The court must look at all the circumstances to see if the requirements of a gift have been met. Three requirements are necessary to establish a valid gift inter vivos: (i) an intention to donate; (ii) a sufficient act of delivery; and (iii) acceptance of the gift.

As stated by the Court of Appeal in Chechui v. Nieman, 2017 ONCA 669, 136 O.R. (3d) 705, at paras. 59-60, the onus is on the recipient of the money to show that the transferor intended at the time of the transfer that the monies be a gift:

The Supreme Court emphasized in Kerr, at paras. 18 and 19, citing its earlier decision in Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at paras. 43-44 and 24, that in situations involving gratuitous transfers, as in this case, the governing consideration is the transferor’s actual intention. The intention of the transferor alone counts, as “[t]he point of the resulting trust is that the claimant is asking for his or her own property back”: Kerr, at para. 25. As Rothstein J. explained in Pecore, at para. 44, in such cases,

The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. [Emphasis added in Chechui v. Neiman.]

More recently in MacIntyre v. Winter, the Court of Appeal again asserted that the onus is on the recipient, in this case the defendant, to establish on a balance of probabilities that the transferor intended for the monies to be a gift. After quoting from the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, Nordehimer J.A. stated:

On this point, the nature of the onus or burden that rests on Ron, in terms of rebutting the presumption, is the civil standard of a balance of probabilities. In other words, Ron must establish, on a balance of probabilities, that it was Alex’s intention to gift these monies: Pecore, at para. 43. The standard of proof on a balance of probabilities requires “clear, convincing and cogent” evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

Further, it is the transferor’s actual intention at the time of transfer that is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30, and 41.

In Barber v. Magee, 2015 ONSC 8054, 2015 CanLII 8054 (Ont. S.C.), aff’d 2017 ONCA 558, [2017] O.J. No. 3409 (C.A.), Fitzpatrick J. set out a list of the factors to assess in determining whether the advancement of a sum of money is a gift or a loan. He stated at para. 42:

The courts in British Columbia have been helpful in suggesting factors to look to when determining a resulting trust claim. The British Columbia Supreme Court recently reviewed the caselaw in Byrne v. Byrne, 2015 BCSC 318, 57 R.F.L. (ih) 215. The Court in Byrne referenced the factors adopted by their Court of Appeal that ought to be reviewed when determining whether a gift or loan was intended: see Kuo v. Chu, 2009 BCCA 405, 180 A.C.W.S (2d) 903, citing Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850. Those factors are as follows:

a.    Whether there were any contemporaneous documents evidencing a loan;

b.    Whether the manner for repayment is specified;

c.    Whether there is security held for the loan;

d.    Whether there are advances to one child and not others or advances on equal amounts to various children;

e.    Where there has been any demand for payment before the separation of the parties;

f.    Whether there has been any partial repayment; and,

g.    Whether there was an expectation or likelihood of repayment.”

Walker v. Farsijani, 2021 ONSC 5571 (CanLII) at 16-21