Month: November 2022

“Is there any distinction between striking out pleadings and prohibiting future filings?  The applicable Family Law Rules regarding this question in this particular case are Rules 1(8)(c); 1(8.4) and 10(5), which read as follows:

1(8)  If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c)  an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party,

1(8.4)  If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. 1. 1. 1. 1. 1. 1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
                  2. The party is not entitled to participate in the case in any way.
                  3. The court may deal with the case in the party’s absence.
                  4. A date may be set for an uncontested trial of the case.

10(5)  The consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply, with necessary changes, if a respondent does not serve and file an answer.

Rule 1(8) (c) includes “notice of motion” and “any other document filed by a party” in the list of documents that may be struck out.  However, Rule 1(8.4) does not include either of those items in its corresponding list of documents.  Therefore, the striking of a notice of motion does not have clearly-defined consequences.  Obviously, the relief sought in a notice of motion that is struck out will not be granted, but is the moving party precluded from seeking the same relief at a future date?  If the latter, how is the analysis influenced by the jurisprudence under Rule 14(21), wherein the court may prohibit future motions without permission only where a party is found to have abused the court’s process?  Is non-compliance under Rule 1(8.4) akin to abuse of process under Rule 14(21)?  Although these questions are not directly before me at this time, I highlight them as they may well present themselves should Father seek to revive his motion vis-à-vis the residency arrangements for C.G.S.

In contrast, the connection between Rule 10(5) and Rule 1(8.4) clearly confirms that the striking out of an Answer is equivalent to a prohibition on its future filing.  Thus, the analysis applies equally.  Father argues that, practically speaking, extensions of thirty (30) days to serve and file Answers are granted routinely even in the face of the language of Rule 10(5).  He submits that it would be procedurally unfair to him not to provide a reasonable extension to serve and file his responding documents.  Further, the absence of his participation would negatively impact upon the Court’s ability to address critical parenting issues for the parties’ children.  These submissions go not to the scope of potential relief under Rule 10(5) but rather to the question of appropriate remedy; they will be addressed at that stage of the analysis.”

         C.T. v. C.S., 2021 ONSC 7578 (CanLII) at 20-22

“In making an order for spousal support, a trial judge must consider “the condition, means, needs and other circumstances of each spouse”, including (a) the length of time the spouses cohabited, (b) the functions performed by each spouse during cohabitation, and (c) any order, agreement or arrangement relating to support:  Divorce Act, s.15.2(4).  In applying this section of the Divorce Act, I am mindful of the following:

a)    The word “condition” has a flexible meaning that includes, among other things, social standing or position of a person in the community and also the person’s physical and mental condition: Harris v. Harris, 2005 CanLII 10889 (Ont. S.C.), at para. 23.  A recipient spouse’s health condition may be relevant if it prevents them from working or interferes with their ability to contribute to their own support.  In some circumstances the law may require that a healthy spouse continue to support a disabled spouse, absent contractual or compensatory entitlement: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 48; Gray, at para. 28.

b)   The word “means” is broader than income.  Determining a party’s means may include consideration of such things as a substantial equalization payment, the availability of non-monetary support by family members (e.g. who may provide rent-free housing accommodations), or property ownership that has unrealized potential to generate rental income.

c)    The recipient spouse’s need “should be assessed through the lens of viewing marriage as an economic partnership”: Gray, at para. 27. In determining need, the trial judge “ought to be guided in partby the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased”: Gray, at para. 27 (emphasis added); Marinangeli v. Marinangeli(2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 74. As mentioned above, however, maintenance of the marital standard of living may not be feasible post-separation, particularly in cases where there are concurrent child support obligations.”

K.K. v. M.M., 2021 ONSC 7522 (CanLII) at 41

“Section 31 of the Marriage Act, which is the saving provision to deal with circumstances of non or imperfect compliance with Section 4 of the Act, provides:

1. 1. 1. 1. 31. If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

In the case of Isse v. Said, 2012 ONSC 1829, the court thoroughly canvassed the issue of the validity of a marriage for the purposes of divorce and property considerations. At paragraph 16, Justice Broad analysed Section 31 of the Marriage Act to include the following four necessary elements:

1. 1. 1. 1. 1.   The marriage must have been solemnized in good faith;
            2.  The marriage must have been intended to be in compliance with the Marriage Act;
            3.  Neither party was under a legal disqualification to contract marriage; and,
            4.  The parties must have lived together and cohabited as a married couple after solemnization.”

            Aden v. Mohamud, 2019 ONSC 6493 (CanLII) at 16-17

“Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 19-23

“Rule 24 of the Family Law Rules sets several factors relevant to the preliminary issue of liability for costs.  Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs.  This presumption may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.  Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.  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 (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)).  Rather, it requires a global and 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 those issues (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), at para. 66; Slongo v. Slongo, 2017 ONCA 687 (C.A.), at para. 3; Vanleer v. Young, 2020 ONCA 459 (C.A.), at para. 46).  Where the court concludes that success was in fact divided, it may decline to order costs, or may award costs to the party who was more successful overall or on the primary issues, 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 (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.);  Boland v. Boland, [2012] O.J. No. 1830, 2012 ONCJ 239 (O.C.J.);  Beaver v. Hill, 2018 ONCA 840 (C.A.)).

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 14

“Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy:  It is often tantamount to child abuse.   It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 418-419

“The mother seeks a retroactive variation of all support back to July 1, 2013.  It is her position that if this variation is ordered, the father owes her $1M.  If the court orders a review retroactive to July 1, 2013, the father vigorously disputes this amount.

While the Separation Agreement provides for a review as of July 1, 2013, the court has the discretion to consider if such a long retroactive reach is appropriate given the facts of this case.

Colucci v Colucci, 2021 SCC 24, at paras. 6, 71-73, and 114, provides a revised approach for cases where the recipient of child support seeks a retroactive increase. The approach is summarized in para. 114 as follows:

114   It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a)   The recipient must meet the threshold of establishing a past materialchange in circumstances. While the onus is on the recipient to show amaterial increase in income, any failure by the payor to disclose relevant information allows the court to impute income, strike pleadings, draw adverse inferences and award costs.  There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)   Once a material change in circumstances is established, a presumptionarises in favour of retroactively increasing child support to the date therecipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to  In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)   Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)   The court retains discretion to depart from the presumptive date ofretroactivity where the result would otherwise be unfair. The B.S. factorscontinue to guide this exercise of discretion, as described in Michel.  If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)   Once the court has determined that support should be retroactivelyincreased to a particular date, the increase must be quantified. The properamount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

While this application is not brought under s. 17, Colucci remains the framework, with one exception. Proof of a material change in circumstances is not required because the Separation Agreement provides for the review.  In any event, there is a material change in circumstances given the change in each party’s financial circumstances.

There is a presumption in favour of retroactively increasing child support “to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary” Colucci, at para. 114.”

D.A.S. v. P.S., 2021 ONSC 7358 (CanLII) at 233-237

“This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary”: Oliveira v. Tarjay Investments Inc., [2006] O.J. No. 1109, at para. 2 (C.A.), referring to Scherer v. Paletta, 1996 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co., 2006 CanLII 3954 (ON CA), [2006] O.J. No. 547, at para. 20 (C.A.).”

Dick v. McKinnon, 2014 ONCA 784 (CanLII) at 4

“L.D.’s refusal to submit to arbitration, especially when the Court later validated her position that the parties’ education plan, and the choice of schools it entailed, was still in the children’s best interests, does not disentitle her to her costs. In Baldwin v. Daubney, (2006) 2006 CanLII 33317 (ON SC), 21 B.L.R. (4^th) 232 (Ont. S.C.J.), at para. 12, Spence J. declined to consider a refusal to mediate as a factor in the exercise of his costs discretion:

The plaintiffs say that the defendants refused the request of the plaintiffs to mediate and thereby caused the motion to proceed with its attendant costs, which a successful mediation would have avoided. The defendants say they considered they had a good defence and were not obliged to mediate.  Mediation is most likely to be successful where each party considers it has something material to gain from a settlement and appreciates that to achieve a settlement it will need to accept a compromise of its position. Where one litigant is confident that its position will succeed in court, it has little reason to take part in a process that would yield it a lesser result and it is not bound to do so. Indeed, to take part in a mediation in such circumstances could simply prolong the process and add to the cost.

[Emphasis added]

Where mediation has a reasonable prospect of success, and a refusal to participate reflects a party’s unwillingness to entertain a less expensive and speedier means of resolving the issues in a just manner, it can be regarded as unreasonable conduct and attract a costs sanction.  Mediation often offers a less expensive means of resolving family law disputes than adjudication. See: Joanne Gross, An Introduction to Alternative Dispute Resolution, 1995 CanLIIDocs 178, at page 9, in which the author cites research conducted in 1990 by J. Kelly, Past President of the Academy of Family Mediators, which showed that the mean cost of the adversarial process for both the husband and wife combined was 134 percent higher than the costs of comprehensive mediation.

In their article, Resolving Family Law Disputes, Infographic, Canadian Forum on Civil Justice, 2018 CanLIIDocs 11081,  https://canlii.ca/t/t1n5:, the authors report that they asked 166 lawyers practicing family law in Alberta, British Columbia, Ontario and Nova Scotia questions about the benefits, limitations, cost, and suitability of Collaboration, Mediation, Arbitration and Litigation to resolve different types of family law problems.  The authors state:

A majority of lawyers agreed that mediation, arbitration and collaboration are usually cost-effective.  Typical low-conflict cases resolved through collaboration or mediation cost almost half that of low- conflict cases resolved through arbitration or litigation….

Joanne J Paetsch, Lorne D Bertrand and John-Paul Boyd came to the same conclusion in An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, Canadian Forum on Civil Justice (www.cfcj-fcjc.org) 2018 CanLIIDocs 11070; as do Noel Semple and Nicholas Bala in an article, Reforming Ontario’s Family Justice System: An Evidence-Based Approach, 2013 CanLIIDocs 498, at pages 147-148.”

            L.D. v. K.A., 2021 ONSC 7337 (CanLII) at 46-49

“A VOCR is a report intended to provide information about a child’s views and preferences for use in resolving parenting disputes. Generally non-evaluative, a VOCR is not comparable to a clinical investigation such as that conducted by Ms. Garibotti or a more comprehensive assessment pursuant to s. 30 of the Children’s Law Reform Act. It is typically short and the time from engagement of the interviewer to delivery of a report is very brief. Typically, no contextual information is gathered and no recommendations are made. A VOCR’s practical benefit is giving a child a chance to be heard. Not uncommonly, recourse to a VOCR is challenged because one or both parents are concerned that it can be used by a parent to manipulate a child’s views, that it has potential to alienate a child and further the goals of the alienator parent: Gajda v Canepa, 2018 ONSC 5154 at para. 23. Where there is an imbalance in a child’s relationship with its parents or where one or both of the parents decline to acknowledge that the other is capable of identifying and responding to children’s needs, caution must be exercised in giving undue weight to the report.”

         A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 64