Month: February 2023

“At the outset of trial, as a preliminary matter, the Father argued that the Mother’s tort claim was statute barred. I ruled that it was not because it was based on an alleged assault while the parties were in an “intimate relationship” and/or in a relationship of dependency. According to s. 16(1)(h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, no limitation period applies in such circumstances:

16(1) There is no limitation period in respect of,

(h.2)  a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

(i)  they had an intimate relationship,

(ii)  the person with the claim was financially, emotionally, physically or otherwise dependent on the other person.”

          Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII) at 30

“Simply applying the ranges in the SSAGs may not be appropriate in a re-partnering case. The court must first analyze the specific facts of the case to assess what a reasonable quantum and duration of support should be: Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at paras. 44 and 45.

The authors of the SSAGs, Professors Rogerson and Thompson, conclude that the outcomes in cases involving a recipient’s remarriage or re-partnering are not predictable enough to construct a formula to calculate what the effect on the ranges should be. However, the SSAGs can be a starting point in the discretionary analysis and an indicator of the reasonableness of a support award: Zacharias v. Zacharias, 2015 BCCA 376, 80 B.C.L.R. (5th) 54, at para. 62.”

            Politis v. Politis, 2020 ONSC 1306 (CanLII) at 115-116

“Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A. K., 2020 ONSC 3726, 43 R.F.L. (8th) 411, at para. 52, and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.), at para. 15, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, 2003 CanLII 2301 (ON SCDC), [2003] O.J. No. 3692 (Div. Ct.), at para. 8, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”

Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.

In Crawford v. Dixon (2001), 2001 CanLII 28121 (ON SC), 14 R.F.L. (5th) 267 (Ont. S.C.), at para. 14, Granger J. cited with approval James G. McLeod’s commentary on Dancsecs v. Dancsecs (1994), 1994 CanLII 7434 (ON SC), 5 R.F.L. (4th) 64 (Ont. Gen. Div.), in which he stated:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.

In Fredette v. Fredette, [2005] O.J. No. 4938 (S.C.), at para. 5, Del Frate J. adopted the same passage.

In Innocente v. Innocente, 2014 ONSC 7082, 54 R.F.L. (7th) 93, at para. 45, Gauthier J. stated that where a temporary or interim variation of a final order has been granted, whether under the Divorce Act or the Family Law Act, R.S.O. 1990, c. F.3, the courts have found the following exceptional circumstances: to prevent undue hardship, where the failure to make the interim order would be incongruous or absurd, or where there is pressing and immediate urgency.

In Berta v. Berta, 2019 ONSC 505, 23 R.F.L. (8th) 201, after reviewing a number of authorities with regard to the test for an interim variation of a final support order, Kurz J. found that the test has included a requirement that the moving party establish a clear case of hardship and urgency. And in Ivens, Kurz J. found that those same two prerequisites also apply to an interim variation of a parenting order.

In addition, the more elaborate formulation of the test in F.K. has itself been cited with approval in many subsequent cases, including A.T.W. v. K.A.W., 2020 ONSC 4894, 45 R.F.L. (8th) 391, at para. 42, Tone v. Tone, 2021 ONSC 3747, 57 R.F.L. (8th) 376, at paras. 22-23, A.T. v. E.R.P., 2021 ONSC 4693, at para. 33, S.E.S. v. T.J.B., 2021 ONSC 2357, at paras. 62-63, Ramirez v. Estupinan, 2021 ONSC 5122, at para. 32, and Joachim v. Joachim, 2021 ONSC 7424, at para. 34.”

            S.H. v. D.K., 2022 ONSC 1203 (CanLII) at 26-33

“The respondent’s position is that s. 23(b)(iii) of the Family Law Act gives this court jurisdiction to dispense with a joint owner’s consent to sell or encumber a matrimonial home where a joint owner is “unreasonably withholding their consent.” The applicant maintains that she is not unreasonably withholding her consent. Rather, she says her refusal to consent is reasonable because she cannot afford to carry another mortgage. Furthermore, she disputes the entitlement of CT Restore Inc. to any funds at this point.  She also argues that s. 23(b)(iii) of the Family Law Act does not confer the court with the authority to dispense with the consent of a joint owning spouse. The applicability of s. 23 is limited to situations where the non-consenting spouse is a non-owner.

There is a line of cases that supports the applicant’s position, that s. 23 of the Family Law Act only applies to situations where the non-consenting spouse is also a non-titled spouse.  These cases suggest that the purpose of s. 23 is to protect the possessory and other rights of the non-titled spouse.  There are some very clear and direct statements to this effect in cases such as: Ohanessian v. Kalisz, 2012 ONSC 7123, at paras. 41-42; Flores v. Flores, 2020 ONSC 5809, at para. 49; and Henry v. Cymbalisty, 1986 CarswellOnt 942, at para. 8, in which Steinberg J. states:

In my view sections 23 and 21(1)(c) can only be invoked so as to limit or cancel the right of possession of a non consenting spouse in a matrimonial home. They cannot be interpreted so as to defeat a spouse’s legal or equitable estate in a matrimonial home, no matter how unjustly or irrational he or she may be behaving in regards to the administration of the property.

When it comes to spouses who jointly own the matrimonial home, the Partition Act, R.S.O. 1990, c. P.4, gives the court jurisdiction to deal with a proposed sale by one spouse where the other objects.  I was not directed to any statutory provision that deals directly with the court’s jurisdiction to authorize an encumbrance on a matrimonial home over the objection of a joint owner, unless s. 23 of the Family Law Act can be read as such.

The applicant points out that the cases that the respondent relies upon under s. 23 (such as Norris v. Norris, 2016 ONSC 7077, at para. 37, and El Feky v. Tohamy, 2012 ONSC 2749, at paras. 14, 16, and 19) are not dealing with the court’s jurisdiction to order the sale or encumbrance over the objection of a titled spouse, but with the implementation or mechanic for implementing an existing order or agreement for the sale or encumbrance.  I agree that the cases that the respondent relies on do not address directly the jurisdictional issue that the applicant has raised and that the cases she cites squarely do address.

There appears to be a void in the legislation, in that no one has been able to direct me to any statutory provision that grants the court jurisdiction to permit a mortgage to be registered on title to the matrimonial home (or any property) over one of the joint owner’s objection.  I will say that, if there was such a provision, and if the reasonableness of the objection is a relevant consideration, I do not consider the applicant’s withholding of consent to be reasonable where she has refused to consider or propose any alternatives that might address her concerns while also solving the problem that the parties face with respect to the matrimonial home renovation and litigation.”

            Nani v. Nani, 2021 ONSC 1368 (CanLII) at 96-100

“In considering this defence, I will first look to a parent’s obligation to ensure that a child exercises access or parenting time as ordered, even if against their will.

A number of authorities have set out a parent’s obligation to ensure that a parenting order is obeyed. In Geremia v Harb, Quinn J. was forceful in stating: 

44  Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is far more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

In V. (S.) v. I. (T.), 2009 CanLII 9396 (ON SC), 2009 CarswellOnt 1023  (S.C.J.), a contempt motion was brought against a parent who passively allowed an 8 and 13-year-old child to refuse attend to access, leaving it to the other parent to negotiate with the children. Reilly J. wrote at para. 32:

Mother’s constant theme in her many affidavits was that while she may have, on occasion, “encouraged” the children to go with their father, she could not “force” them to go. Regrettably, mother’s choice of verb is inappropriate. Rather than “force” a child to go, a parent in these circumstances should “require” a child to go. Children of the age of T.V. and B.V. (particularly during the first few years of separation) will, put quite simply, do what their parents tell them to do. On occasion, a parent “requires” a child to go to the dentist or “requires” a child to go to school or “requires” a child to do homework or to go to bed on time. That is quite simply the role of a parent. If a proper parent/child relationship exists, the child will, however grudgingly, comply with such a “requirement” or direction.

In Goddard v. Goddard, 2015 ONCA 568, the Court of Appeal for Ontario considered the appeal of a mother who left it up to her 13 and 15-year-old children to decide whether to attend access with their father. In finding the mother in contempt for failing to obey an access order regarding the 13-year-old child, the motion judge found that the mother had abdicated her responsibilities. In upholding the contempt finding, the Court of Appeal for Ontario rejected her argument that the child’s refusal to see her father negated the notion that she wilfully disobeyed the order. It was not sufficient that she offered some evidence of some encouragement to attend access. The court stated:

28  Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).

29  No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.

…

33  It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the appellant given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.

            Dephoure v. Dephoure, 2021 ONSC 1370 (CanLII) at 208-211

“Kiteley J. in the recent decision of Turk v. Turk 2015 ONSC 5845 (CanLII) at para. 93 set out the meaning of duress:

[93] I accept and rely on this description of duress:

Duress is said to occur where there is such pressure placed on one of the parties that any consent by that party is not sufficient to uphold the agreement. There exists an absence of choice which in effect vitiates any ability to lawfully consent. However, duress sufficient to void an agreement does not arise based only upon a lack of will to proceed but rather it must be based upon a resolution on the part of the submitting party that there is no other practical choice but to perform the act in question.   Duress can be established based upon actual or threatened violence or upon economic considerations.”

         Freire v. Freire, 2017 ONSC 1188 (CanLII) at 45

“The principles applicable to a motion for leave to appeal a costs order are set out in Van v. Palombi, 2015 ONSC 170 and Eustace v. Eustace, 2017 ONSC 4814 and are as follows.

Pursuant to section 133(b) of the Courts of Justice Act leave is required where an appeal relates only to costs that are in the discretion of the court.

Rule 62.02(4) of the Rules of Civil Procedure provides as follows:

Leave to appeal shall not be granted unless, (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on a matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

There is considerable defence owed by an appellate court to costs orders made. Leave to appeal should only be granted sparingly and “there must be some indication of a complete failure to exercise discretion or an exercise of discretion based on an erroneous principle”.

The test is not whether the appellate court would have made a different decision but whether the motions judge based the exercise of discretion on an error of principle or was clearly wrong: Van v. Palombi at para 5.

With respect to public importance, “these words refer to matters of general importance, not. Matters of particular importance relevant only to the litigants.  General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice”:  Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 cited in Van v. Palombi at para 5.”

            E.C. v. P.A., 2022 ONSC 1163 (CanLII) at 4-9

“It is well established law that presumptively the parties are entitled to receive their equal shares of the sale proceeds. But this distribution is subject to each party’s Divorce Act and Family Law Act claims, none of which had been resolved or adjudicated at the time of the motion, four years on from separation. Therefore, in the absence of agreement about how the proceeds should be distributed, the court is tasked with ensuring both parties’ trial positions are not prejudiced.

In these types of cases, it is incumbent upon each party to make submissions regarding whether any hold back is needed to protect their respective unresolved claims and, if so, for how much and from whose one-half share. The hold back amount need not be precise; it is without prejudice to any final adjudication on the merits of all claims. But the court does require evidence to arrive at a fair amount to be preserved pending trial.”

         White v. White, 2022 ONSC 1111 (CanLII) at 15-16

“First, does the Ontario court lack jurisdiction over the subject matter of Ms. Bakhsh’s claim because the claim should have been brought in the parties’ annulment proceedings or other civil proceedings in Saudi Arabia, and is it also res judicata? The answer is no.

Ms. Bakhsh could not have brought her claim in Saudi Arabia. It is not disputed that, as the motion judge found, in accordance with s. 15 of the FLA, the law of Saudi Arabia, as the parties’ last common habitual residence, applies to Ms. Bakhsh’s claim in respect of the Ontario property. Based on the expert evidence called by the parties, the motion judge determined, correctly, in our view, that the question of the parties’ interests in property located outside Saudi Arabia had not been decided and could not have been decided in their annulment proceedings or in the separate civil proceedings concerning a property in Saudi Arabia.

The parties’ annulment proceedings only dissolved the marriage and did not resolve any other legal issues. As the parties’ experts agreed, and the motion judge accepted, Saudi Arabian law does not provide for equalization claims. The family courts in Saudi Arabia resolve issues related to the status of marriages, such as divorces and annulments, but do not have jurisdiction over property and financial disputes. The motion judge accepted Ms. Bakhsh’s expert’s evidence that property and financial disputes are within the jurisdiction of the Saudi Arabian civil courts.

In fact, and in confirmation of Ms. Bakhsh’s expert’s opinion accepted by the motion judge, the parties have been engaged in separate civil proceedings, apart from their annulment proceedings, in the civil court in Saudi Arabia. Ms. Bakhsh commenced a lawsuit in the civil court to determine the parties’ respective interests in property located in Jeddah, Saudi Arabia, that was acquired during their marriage. Further, the motion judge accepted Ms. Bakhsh’s expert’s unchallenged evidence that the civil courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership of property and land outside of Saudi Arabia.

It is therefore clear that Ms. Bakhsh could not bring her claim for the condominium property in Saudi Arabia. Saudi Arabia does not have jurisdiction over the claim and the claim is therefore not res judicata. Moreover, Ontario clearly has jurisdiction to adjudicate the claim of Ms. Bakhsh, who resides in Ontario, concerning property located in Ontario, legal title to which is in Mr. Merdad’s name.

The motion judge’s determination that the Ontario court does not lack jurisdiction and that Ms. Bakhsh’s claim was not res judicata was amply supported by the record and contains no error.”

         Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 5-10

“In recent years we have come to better understand that “high conflict families” require special attention – specific strategies – to guard against their destructive and sometimes dangerous inclinations.

a.    We flag high conflict cases.

b.    We fast track them.

c.    We try to get them into case management quickly, with an assigned judge for consistency.

d.    We direct them to supportive resources like mediation, parenting coordinators, reconciliation counselling, etc.

e.    If necessary, we expedite their trials, and perhaps offer focussed hearings.

f.     Trial judges seize themselves, for future efficiency and consistency.

g.    We sanction needlessly aggressive litigation behaviour with formidable costs orders.

h.    We’ll do anything necessary to take the conflict out of “high conflict families.”

Perhaps we need to develop similar awareness and strategies to deal with “high conflict individuals.”

We already have mechanisms in place to deal with vexatious litigants.  On rare occasions, we have to restrict certain individuals from repeatedly pursuing meritless claims in court.

But what about people who abuse not just our court system – but all of our community systems, in combination?

What about people who have become very adept at understanding that everyone has a boss.  And if you just keep complaining to their bosses every time you don’t get your own way, sooner or later people will stop resisting you.  Because it’s not worth the hassle.

What about the inveterate complainer?

…

But there’s no point in the community funding an inefficient 41-day trial spread over 16 months, unless we learn something from the experience.

a.    The average taxpayer reading this judgment could have no idea how much this document ended up costing them.

b.    Hundreds of thousands of dollars?  Easily. That’s just court time.

c.    Probably close to a million of dollars once you factor in all the work – and extra work – that various social and regulatory agencies had to do, to respond to the precarious demands of this file.

d.    Everyone is entitled to their day in court.  Everyone is entitled to access community services.  Public servants don’t always get it right.  Sometimes complaints can be justified.

e.    But while we pride ourselves on our institutions – including our court system – we are becoming tone-deaf to a growing crisis of sustainability.

f.    Every day we are told there’s not enough money:  not for schools; doctors; police, legal aid; the OCL; affordable housing; child care; autism; mental health; the environment; medical research; hospital wait times; the opioid crisis.  You name it.

g.    Every day in my courtroom I deal with people who have real problems which go unaddressed because of government cutbacks and budget restraints.  Children whose vital needs can’t be met.

h.    Funding is a serious problem.  And it’s getting worse.

i.    So, if there’s not enough money for people who really needhelp — perhaps we should to re-think our tolerance for the waste and distraction caused by chronic complainers who abuse the system.

            D.D. and F.D. v. H.G., 2020 ONSC 889 (CanLII) at 487-492, 496