Month: August 2022

“The Father seeks an order that Google provide all e-mails (active and deleted) from abbycolclough9@gmail.com from the date it was created until January 2020. The Father states that this can be accomplished using Mutual Legal Assistance Treaties (“MLAT”).

Treaties between sovereign states require legislation to implement them domestically. The Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (“MLACMA”), is domestic legislation that implements various treaties or other arrangements on mutual legal assistance. It sets out the procedure for assistance and cooperation to help treaty partners in their detection and investigation of crime. Among other things, it provides ways for our treaty partners to obtain information from Canadian sources to assist in investigations undertaken by the treaty partner: Russian Federation v. Pokidyshev (1999), 1999 CanLII 3787 (ON CA) at paras. 15-16. Likewise, Canada could seek assistance from its treaty partners to assist in its investigation.

There is currently no criminal investigation ongoing regarding any actions on the part of the Mother. The procedure suggested by the Father involves this government asking Google for production of these e-mails in the course of a criminal investigation. This request is not only disproportionate to the issues before me, but completely inappropriate.”

            Lopes v. Glover, 2020 ONSC 4915 (CanLII) at 42-44

“A sham trust may be declared void if the settlor had no intention of relinquishing control of the trust assets to the trustees, but rather intended to retain control of the assets purportedly held in that trust so as to create the appearance of a disposition of assets.  See Re McGoey, 2019 ONSC 80, at paras. 19-20.”

         Habibi v. Aarabi, 2021 ONSC 5574 (CanLII) at 66

“The test for deducting disposition costs from NFP as set out in Sengmueller v. Sengueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at pp. 213, is as follows:

In my view, it is equally appropriate to take such costs into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as deduction of a liability: the result is the same. While these costs are not liabilities in the balance sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves. This is consistent with McPherson but goes beyond it. [Emphasis added.]

This court had, in the earlier case of Starkman v. Starkman (1990), 1990 CanLII 6793 (ON CA), 75 O.R. (2d) 19 at pp. 23 and 26, adopted the approach from McPherson v. McPherson (1988), 63 O.R. 2(d) 641, as set out in the following passage from McPherson, at p. 647:

… an allowance should be made in the case where there is evidence that the disposition will involve a sale or transfer of property that attracts tax consequences, and it should not be made in the case where it is not clear when, if ever, a sale or transfer of property will be made and thus the tax consequences of such an occurrence are so speculative that they can safely be ignored. [Emphasis added.]

The test used by the application judge is stricter than the tests in Sengmueller and McPherson. The application judge looked to whether the disposition of the assets was inevitable. Instead, she should have determined whether it was more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred.”

         Buttar v. Buttar, 2013 ONCA 517 (CanLII) at 19-21

“The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 SCR 53.  In paragraphs 53 and 54, the Court sets out how the forms of estoppel have been established in law.  It quotes from Spencer Bower P.180 in para. 54 as follows:

An estoppel by convention, it is submitted, is an estoppel by representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent.  This form of estoppel is founded, not on a representation made by a representor and believed by a representee, but on an agreed statement of facts, or law, the truth of which has been assumed, by convention of the parties, as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to resile from the agreed assumption, then he will be entitled to relief against the other according to whether the estoppel is as to a matter of fact, or promissory, and/or proprietary.

The Court, then, in para. 59, said that the following criteria form the basis of the doctrine of estoppel by convention:

(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption.  Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption.  The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

With respect to estoppel by representation, the Moving Parties rely on the Supreme Court of Canada’s decision in Canadian Superior Oil Ltd. v. Hambly, 1970 CanLII 3 (SCC), [1970] S.C.R. 932, [1970] S.C.J. No. 48, which set out in para. 19, the factors giving rise to estoppel.  They are:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part the person to whom the presentation is made;

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made;

(3) Detriment to such person as a consequence of the act of omission.

It is to be noted, however, that estoppel by representation cannot arise from silence unless a legal duty is owed by the representor to the representee to make the disclosure.  See:  Ryan v. Moore, 2005 SCC 38 at para. 76.”

         Leibel v. Leibel, 2014 ONSC 4516 (CanLII) at 56-59

“The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1)   to partially indemnify successful litigants;

(2)   to encourage settlement;

(3)   to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), 2003 S.C.C. 71, paragraph 25.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Subrule 24 (1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ-Family Court).

Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.

Subrule 24 (12) reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

a)  the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i)   each party’s behaviour,

(ii)  the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

iv)   any legal fees, including the number of lawyers and their rates,

v)   any expert witness fees, including the number of experts and their rates,

vi)  any other expenses properly paid or payable; and

(b) any other relevant matter.

Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case. It reads as follows:

 DECISION ON REASONABLENESS

(5)  In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

Being unsuccessful does not necessarily equate to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.

The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.

In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.

Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.”

         Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424 (CanLII) at 12-29

“The only past conduct that is relevant to the determination of a parenting order is the part’s conduct which is “relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order”: s. 16(5). Courts allocating parenting time are required to adhere to the principle that “a child should have as much time with each spouse as is consistent with the best interests of the child”: s. 16(6), Knapp v. Knapp, 2021 ONCA 305, at para. 34.

Neither parent has the right to create a unilateral parenting status quo, even if there is an alleged safety issue. As Charney J. wrote in Gray v. Canonico, 2020 ONSC 5885:

49  The cases are abundantly clear, however, that, contrary to the assertion of the respondent, the status quo cannot be established or altered by the unilateral “self-help” conduct of one parent. A parent cannot be permitted to gain a litigation advantage by unilateral action: See Rifai v. Green, 2014 ONSC 1377, at para. 25:

The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

50  Even if there is an alleged safety issue, a parent taking steps to ostensibly protect the child must still come to the court at the earliest opportunity on an urgent basis: Skitch v. Hiscock, 2018 ONSC 5581, at para. 15.”

         Ivory v. Ivory, 2021 ONSC 5475 (CanLII) at 30

“The law with respect to misnomer is well-settled.

Rule 5.04(2) [of the Rules of Civil Procedure] provides the court with discretionary jurisdiction to correct a misnomer.  The entitlement to misnomer relief is conditional on satisfying the “litigation finger test”. In Stechyshyn v. Domljanovic 2015 ONCA 889 at para. 1, the Court of Appeal described the test as follows:

On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period.

With respect to misnamed plaintiffs, misnomer relief is available where a party intended to commence proceedings in one name “but, in error, the proceedings were commenced in another name”; see Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 at para. 48 (Ont. C.A.); and Picov and Picov Farms Ltd. v. Generac Power Systems Inc. et al., 2020 ONSC 852.

Rule 5.06(2) provides the court with a residual discretion to refuse misnomer relief even when the litigation finger test is satisfied. In exercising this jurisdiction, the factors that deserve the greatest weight include whether the correct party was misled or was unduly prejudiced; however, where the mistake is more than a mere irregularity, the court may exercise its residual discretion to refuse to allow the correction; see Ormerod v. Ferner, 2009 ONCA 697 at paras. 28-32.”

            Pasandideh v. Vahidi, 2021 ONSC 5459 (CanLII) at 9-12

“The law that I have considered in this matter is the following from the jurisprudence that is developed around capacity in family law matters dealing with individuals that are suffering from mental health issues. Rule 4 of the Family Law Rules speaks of “special parties” and provides for the appointment of a legal representative for these parties, as well as other procedural protections.

In the recent Ontario Court of Appeal decision of Kowalsky 2018 ONCA 539, it is clear that failure to deal with this issue of a party’s capacity in litigation is a reviewable error and it must be dealt with and recognized as the responsibility by all parties once this issue has been raised. This is the responsibility of the court, the parties’ lawyer, the opposing party. Therefore in this matter the Society has recognized this and has rightfully brought this matter to court.

This issue must be dealt with first before any other proceeding can go forward.

Justice Backhouse in the case of Children’s Aid Society of Toronto summarizes the applicable principles that were established in Re Koch (1997), 1997 CanLII 12138 (ON SC), 33 OR (3d) 485:

What is in one’s best interest must not be confused with one’s cognitive capacity. It is mental capacity and not wisdom that is the subject of the Substitute Decision Act, 1992 supra. It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. The test for incapacity is an objective one. There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity. Notwithstanding the presence of some degree of impairment, the question to be asked is whether one has retained sufficient capacity to satisfy the Substitute Decision Act, 1992, supra.

A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party. Nezic v. Nezic 2013 Carswell Ont 4003 at paragraph 2.

The main issue in these incapacity hearings is the difference between failing to understand versus being unable to understand. It is mental capacity and not wisdom that is at issue.

What is in one’s best interest must not be confused with cognitive capacity – capable people are permitted to make poor choices.

The test for capacity is an objective one, and compelling evidence is required to override the presumption of capacity.

Generally, in these matters evidence that is presented is from people who know the litigant over a period of time.

The appearance, demeanour and conduct of a litigant before the court.

Testimony of the litigant, their filed materials and transcripts.

The opinion of the litigant’s own counsel.

Current, relevant medical evidence is the best evidence and should be produced where possible.”

         Children’s Aid Society of Peel v. S.C., 2019 ONCJ 622 (CanLII) at 35-47

“Inconsistencies in a witness’s evidence, even absent corroborative evidence, do not open the door to appellate review of a trial judge’s credibility findings: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 70, 72, and 75-76. A trial judge may place less weight on certain evidence and accept other, conflicting evidence that they find more convincing. An appellate court cannot intervene just because it would weigh the evidence differently and arrive at alternative factual findings: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

Moreover, a trial judge’s credibility findings attract heightened deference: R. v. G.F., 2021 SCC 20, 71 C.R. (7^th) 1, at para. 81; McDougall, at para. 72. A trial judge need not find a witness not credible or unreliable because of inconsistences in the witness’s evidence. If the trial judge was alive to the inconsistencies, assessed the witness’s credibility in the context of the evidence as a whole, and concluded that the witness was credible, absent palpable and overriding error, there is no basis for an appellate court to interfere: McDougall, at paras. 70, 75-76.”

         Calin v. Calin, 2021 ONCA 558 (CanLII) at 15-16

“The mother was three days late in serving her notice of appeal. She sought consent from the father to the late filing of the notice of appeal, which was refused. Courts can extend time under r. 3.02 of the Rules of Civil Procedure. In general, the following factors are relevant to a motion to extend time to appeal: (1) whether the appellant formed an intention to appeal within the relevant period (in this case 30 days after the final order); (2) the length of, and explanation for, the delay; (3) prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately, whether it is in the interests of justice to order the extension of time. In cases involving children, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, at para. 10.

The mother states in her affidavit that she formed the intention to appeal within the requisite time. She explains that the delay resulted from a combination of the traumatic effect of the final order and the time that was required to retain appellate counsel. The motion was brought promptly.

The father opposes the motion for an extension of time, asserting that the mother waited until she received his costs submissions before deciding to appeal. He asserts that he is prejudiced, in part because the mother has failed to pay her share of the costs of the Family Bridges program. He asserts that the merits of the appeal are weak.

I am satisfied that an extension of time is in the interests of justice.

The mother had a right to appeal the final order of the trial judge and the right to seek leave to appeal the award of costs. The final order reverses custody of R. and prevents the mother from having any contact with R. for a period of time, and the mother is subject to an award of substantial indemnity costs. The mother was only three days late in serving her notice of appeal. Even if she decided to appeal only after she received the father’s costs submissions, she formed the intention to appeal within 30 days of the final order. The final order has been implemented to the extent that R. is residing with her father, and they are participating in the After Care program. R.’s contact with her mother is suspended. Other than the mother’s non-payment of her share of the Family Bridges program required under para. 20 of the final order (it is a financial provision that would be stayed on appeal), the mother has complied with the final order. The therapists have indicated that her involvement in the After Care program is suspended during her appeal.

I am not prepared to say that there is no potential merit to this appeal. In view of the very short delay, the strength of the proposed appeal is not a compelling factor in this case. The mother has a right to appeal the final order and a three-day delay should not prevent her from doing so.”

         D.C. v. T.B., 2021 ONCA 562 (CanLII) at 3-8