Month: July 2023

“In my view, the record demonstrates the likelihood of alienation of the child by the father and a litigation strategy purposed to ensure that the child’s relationship with her mother is compromised. While a more robust evidentiary record about alienation would be desirable, the court can reach a preliminary conclusion to that effect at an interim stage of proceedings. In MacLeod v. Macleod, 2019 ONSC 2128, at para. 33, Audet J. observed that,

[33] A finding of parental alienation can be made at the interim stage and on a written record, particularly when the evidence overwhelmingly points to this conclusion.  As the court noted in Hazleton v. Forchuck, 2017 ONSC 2282, 93 R.F.L. 7th 254, at para. 2, the urgency raised by parental alienation necessitates early and decisive intervention by the court.  In Malhotra v. Henhoeffer, 2018 ONSC 6472, Justice Nicholson held that parental alienation was a legal concept as opposed to a mental health diagnosis, and as such, the court could make a finding of alienation on an elaborate analysis of the facts alone without expert evidence. (bolding added)

In Bors v. Bors, 2019 ONSC 7029, at para. 119 Van Melle J. approved of the following definition of parental alienation described by a Dr. Michael Stambrook in the Manitoba case of L.M.A.N. v. C.P.M., 2011 MBQB 49:

[119] Counsel directed me to the Manitoba case of L.M.A.M. v. C.P.M. 2011 MBQB 46. Dr. Michael Stambrook provided a very comprehensive, and in my view accurate, definition of parental alienation. Justice Thomson quoting from Dr. Stambrook’s testimony wrote at paragraph 98:

It is a descriptive term that refers to a process. It is not a diagnostic label. It doesn’t appear in any nomenclature about mental health disorders. It is a descriptive term that refers to a process where there is a systematic devaluation, minimization, discreditation of the role of, typically the other parent in a parental dyad. One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.

It is an abusive practice. It is child abuse when it occurs. It’s emotionally abusive. It cripples and stunts children’s development because the reality they knew at one point is undermined by this process. It is dangerous for the development because in [an] ideal situation, children should feel free to love and interact with the adults who are important in their lives, unencumbered by twisted turns of relational loyalties that are, unfortunately misplaced in this situation.

So parental alienation is a process, an interactional process where systematically one parent’s role in, for the children is eroded over the course of time. (bolding added)”

         Gostautaite v. Menendez, 2020 ONSC 4396 (CanLII) at 65-66

“Counsel for Manny argues that the decision of the trial judge is clearly wrong as it relates to the award of costs against him as a non-party in the following four ways:

1)    It is argued that the court’s discretion under s. 131(1) of the Courts of Justice Act to award costs against a non-party is limited to cases where the non-party is the real litigator who, in order to avoid liability for costs, puts forward a “man of straw” to prosecute the litigation. Having found that there was no evidence that Marcos was named plaintiff solely for the purpose of insulating Manny from liability for costs, and no evidence that Marcos was a shell company without exigible assets, it is argued that the trial judge erred in finding Manny liable. He was the true and only proper litigant and not a man of straw.

…

While Marcos and Manny both urged the trial judge not to make an award of costs against the non-party unless that non-party was a “person of straw”, in this case the trial judge, having concluded that Manny was not a person of straw, nonetheless, in our view, quite properly interpreted and applied her inherent jurisdiction to order costs against a non-party who had committed an abuse of process. Specifically, the trial judge referenced the decision of the Court of Appeal in 1318847 Ontario Limited v. Laval Tool & Mold Ltd., 2017 ONCA 184, where the court confirmed that Superior Courts of record have inherent jurisdiction to control their own processes and to protect them from abuse. The Court of Appeal makes clear that the Superior Court of Justice has an inherent jurisdiction which must be exercised “sparingly and with caution”. Of particular concern as it relates to the facts of this case and the egregious conduct of Manny, the Court of Appeal in Laval Tool makes clear at para. 66:

In particular, apart from statutory jurisdiction, Superior Courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process.”

         Marcos v. Lad, 2021 ONSC 4900 (CanLII) at 7, 10

“As this court has frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the clarity, or common sense, of their narrative but be unreliable because the objective facts are inconsistent with that narrative. Or a witness may be so interested in the outcome of the case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party or harmful to them. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. In Al-Sajee v. Tawfic, 2019 ONSC 3857 by Chappel J. observed that,

…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attachdifferent weight to different parts of a witness’s evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).”

         Drakes v. Lee-Drakes, 2022 ONSC 4102 (CanLII) at 27

“Whether or not Ontario has jurisdiction must be decided first; the doctrine of forum non conveniens only applies where Ontario has jurisdiction. The burden is on the party claiming jurisdiction simpliciter to establish jurisdiction. In this case, the court may assume jurisdiction if (1) the respondent attorns to the court’s jurisdiction, (2) the respondent is present and served in the jurisdiction, or (3) there is a real and substantial connection between the forum and the parties or the subject matter of the dispute.”

         Doersam v. Doersam, 2022 ONSC 4095 (CanLII) at 10

“Lawyers owe duties of care and duties of loyalty to their clients. They owe no such duties to adverse parties. Despite this, lawyers sometimes get sued by the parties they act against. For good reason, such claims are treated with scrutiny by the courts. Our adversarial system depends on the ability of lawyers to fearlessly advance their clients’ positions.

In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.

Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” : Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), at para. 16 to 18, motion to set aside administrative order dismissing appeal dismissed, [1996] O.J. No. 4812 (C.A.), leave ref’d [1996] S.C.C.A. No. 326 (husband sued lawyer who acted for his wife in divorce proceedings).

The rule against suing an adverse lawyer is authoritatively stated in The Law of Civil Procedure in Ontario:

The lawyer of record has no duty of care or liability to the opposing party for advising his client to sue or to defend the proceedings, and solicitor-and-client privilege not only protects the communications between lawyer and client, it also protects the lawyer from being sued by the opposing party under the guise of any cause of action for his or her conduct of a case.

This statement is supported by numerous authorities. A sample of reported cases is found in Appendix A. As these cases show, claims against adverse lawyers are frequently dismissed at the pleadings stage or in summary judgment motions.

There is no single settled doctrinal approach to these cases. Sometimes courts rule that they do not disclose a reasonable cause of action and sometimes that they are an abuse of process.”

         Chuvalo v. Worsoff, 2022 ONSC 4079 (CanLII) at 31-36

“In the Supreme Court of Canada judgment in The Queen v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32 (CanLII), 269 N.R. 149, 146 O.A.C. 236, 199 D.L.R. (4th) 193, 82 C.R.R. (2d) 247, 154 C.C.C. (3d) 97, 42 C.R. (5th) 1, [2001] S.C.J. No. 34, 2001 Cars­well­Ont 1702, the test for judicial notice is strict and a court may properly take judicial notice of­ facts:

	1.	so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
	2.	capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

And in The Queen v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71 (CanLII), 342 N.R. 126, 206 O.A.C. 150, 135 C.R.R. (2d) 318, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, [2005] S.C.J. No. 74, 2005 Cars­well­Ont 6824, also a Supreme Court of Canada decision, the permissible scope of judicial notice should vary according to the nature of the issue under consideration.  More stringent proof of facts that are close to the centre of the controversy is necessary.  This is distinguished from background facts at or near the periphery.  In all cases of judicial notice, the stringent test is always the starting point.  If the stringent test is not satisfied and the fact is adjudicative, it will not be judicially recognized.  If the fact is social or legislative, there are levels of notoriety and indisputability.  Outside adjudicative facts, the limits of judicial notice are somewhat elastic.”

Catholic Children’s Aid Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 157

“One party should not be able to prevent the other party from accessing the capital tied up in the property. Here, Mr. Haaksma should not be able to unilaterally decide that Ms. Taylor must rent while her capital is tied up in the matrimonial home.

“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home”: Martin v. Martin (1992), 8 O.R. (3d) 41, 1992 CanLII 7402 (C.A.). That is not to say that orders for the sale of a matrimonial home are made as a matter of course:

[A]n order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course.

In this regard I find Justice McGee’s decision in Goldman v. Kudeyla, supra, instructive, at para. 18-20:

To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act.  If not, then the right to sale prevails.  If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as  Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811  and more recently, Kereluk v. Kereluk  2004 CanLII 34595 Ontario S.C.J.  In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.

Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course.  One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible.  At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”

         Haaksma v. Taylor, 2021 ONSC 4831 (CanLII) at 25-27