Month: August 2023

“Generally, the court’s discretion to decline to order the partition or sale of a jointly owned property under s. 2 of the Partition Act is relatively narrow. That is because an owner has a prima facie right to sell a jointly owned property. As a result, the court must ordinarily order the sale unless the moving party has behaved maliciously, oppressively or with a vexatious intent towards the responding party: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126, 27 R.F.L (5th) 358 (C.A.), at para. 2.

The court’s authority to decline to order a sale is more expansive in family cases, given the potentially competing interests that co-owners might have under the Family Law Act, R.S.O., 1990, c. F.3, and the risk that those interests could be prejudiced by the sale: see Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.); Goldman v. Kudeyla, 2011 ONSC 2718, at para. 17; Parent v. Laroche, 2020 ONSC 703, at para. 11. As Justice McGee explained in Goldman, at paras. 18-19:

[18] 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.

[19] 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.

As the quoted passage from Goldman suggests, the cases have come to recognize the best interests of the children as an important consideration in deciding whether to grant a motion to compel the sale of a family home: Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16q; R.L. v. M.F., 2022 ONSC 1677, at paras. 31-32; Kaing v. Shaw, 2017 ONSC 3050, para. 34.”

            Malaviya v. Dhir, 2022 ONSC 4756 (CanLII) at 15-16

“The jurisdiction to grant a non-dissipation order in the context of family law is found within ss. 12 and 40 of the FLA, which provide as follows:

12: In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interest under this Part, the court may make an interim or final order, a) restraining the depletion of the spouse’s property; and b) for the possession, delivering up, safekeeping and preservation of the property.

40: The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part. [Part III]

The Court must balance the following when making a preservation order against a spouse: (a) the relative strength of the applicant’s case, and whether there is a serious issue to be tried; (b) the balance of convenience (or inconvenience); and (c) irreparable harm.  This ultimately involves “an assessment of the risk of dissipation of the assets in existence prior to trial.” See Bronfman v. Bronfman, [2000] O.J. No. 4691 (S.C.), at paras. 2829.  See also Price v. Price, 2016 ONSC 728, [2016] O.J. No. 466, at para. 7.

Parham has focussed on what he alleges is an absence of evidence of him dissipating assets to make himself “judgment proof.” “[T]he court does not issue orders restraining people from dealing with property without some evidence, as opposed to bare allegations.”  See Pollak v. Pollak, 1993 CanLII 16080 (ON SC), [1993] 48 R.F.L.(3d) 56 (Ont. S.C.), at para. 7.”

            Habibi v. Aarabi, 2021 ONSC 5574 (CanLII) at 33-35

“The term “gift” is not defined in the Act. In McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, this court set out the elements of a gift in the following way, at para. 24:

The essential ingredients of a legally valid gift are not in dispute. There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration, (2) an acceptance of the gift by the done, and (3) a sufficient act of delivery or transfer of the property to complete the transaction: Cochrane v. Moore, (1890), 25 Q.B.D. 57 (C.A.), at pp. 72-73 Q.B.D.; Mossman and Flanagan, supra, at p. 441, Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at p. 157.

In Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at pp. 991-92, McLachlin J. referred to giving without expectation of remuneration as the “central element of a gift at law”.”

         Buttar v. Buttar, 2013 ONCA 517 (CanLII) at 28-29

“The pre-Labour-Day “Let’s Change Johnny’s School” urgent motion has become somewhat of an unwanted annual tradition in family court.

Sometimes it’s just the school.

Sometimes it’s the city where the child is to live.

Usually it involves an attempt to change the child’s primary residence from one parent to the other.

In this case there’s a request to suddenly change the country where three adolescents are going to live and attend school.

Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation.

And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations.

Why the frantic rush?

1. 1. 1. 1. Because the selection of a child’s school has so many implications in terms of long-term parenting arrangements.
         2. If a parent establishes enough concerns to justify quickly switching the child to the school in their city or neighbourhood, that instantly creates a new status quo which will have far reaching consequences.
         3. Judges rarely disrupt children’s enrolment once the school year is underway.  So even if the initial concerns end up being unfounded or overstated, once the child becomes settled in a new school, the court will be reluctant to further disrupt this vitally important aspect of children’s daily lives.
         4. So if you can win the “school issue” by Labour Day – even on a “temporary” basis – it has enormous strategic consequences for the parent.
         5. And even more profound consequences for the child.

Lawyers know this.

Judges know this.

And high conflict parents quickly learn this.

So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days.

Before the first school bell rings.

It’s a lot to have to decide in a hurry, based on incomplete information.

Judges don’t like being rushed.   And we don’t approve of brinksmanship.

So while judges dealing with custody issues always have to consider the big picture – this time of year, they especially have to guard against the potential for litigation strategy to conflict with a child’s best interests.  We must be responsive to real problems, while at the same time discouraging transparent attempts to re-set the status quo.

Sometimes in a parenting dispute, when you ask – and where you ask – is an important as what you ask for.”

         A.T.W. v. K.A.W., 2020 ONSC 4894 (CanLII) at 1-17

“Section 12 of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), provides the court with jurisdiction to make an interim or final order restraining the depletion of a spouse’s property it is considers it necessary for the protection of the other spouse’s interest under Part 1 of the FLA.

Given that neither party presented evidence on the record for this motion as to which party owes the other an equalization payment, I cannot determine whether the husband would be prejudiced if the wife were permitted to encumber and/or sell the matrimonial home and the investment property pending trial. The purpose of an order under s.12 of the FLA is to ensure that there are sufficient assets to make an equalization payment once the court determined such payment and makes an order under s.9 of the FLA: Lasch v. Lasch (1988), 64 O.R. (3d) 464, para. 13.

The onus is on the husband to establish the strength of his claim for an equalization payment in seeking to extend the existing preservation order and to obtain an order that the wife also preserve the investment property. As set out in Bronfman v. Bronfman, 200 CanLII 22710 (ONSC) by Sachs, J,

“A court will want to consider how likely it is that the plaintiff or petitioner will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. Under s.12, the agenda is to protect the spouse’s interests under the Family Law Act, so that if a spouse is successful in obtaining relief under that Act, there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to the trial.

…

There are certain cases where the factual record, and the applicable legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor when deciding an interim application under s. 12, and perhaps less weight to the other factors. There are others where the facts and the law are disputed and complicated. … In such cases, the court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial. [Emphasis added.]

In Taus v. Harry, 2016 ONSC 219, Justice Gauthier held, at para. 35, that the test under s. 12 or s. 40 is the same: “The question to be asked is whether there is a real risk that the applicant’s equalization claim and claim for retroactive support could be defeated if the preservation/non-dissipation order is not made.” In that case, equalization had not been determined, with each party saying the other would owe a significant amount.

Price v. Price, 2016 ONSC 728 is an example where there was no evidence a significant equalization payment would be required. In fact, the applicant, who had obtained a preservation order on an ex parte basis, failed to show any likelihood that she would be entitled to equalization. Justice Timms set aside the preservation order. In doing so, he said (at para. 6), “The correct standard is the same one to be applied when determining whether to grant an interim injunction.”

In the more recent decision of Conforti v. Conforti, 2021 ONSC 1767 (CanLII), Chown J. found that the merits of the wife’s claim were weak and that there was no evidence that the husband would her a significant or even any amount of money. Further, there was no evidence to support her concern that the husband would hide or deplete assets. As a result, a preservation order was not made.”

            Wang v. Li, 2022 ONSC 4680 (CanLII) at 44-49

“There is no dispute between the parties about the test to be applied in determining either what amounts to a reasonable apprehension of bias or the evidentiary onus on the claimant. In A.M. v. J.M., 2016 ONCA 644, an appeal involving a parenting dispute, the Court of Appeal dealt with both.

The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry…: Ibid, at para. 55.

These principles equally apply to arbitration proceedings: Allied Truck Services Inc. v. Jeffrey Swift et al, 2015 ONSC 5496, at para. 12.

Circumstances in which an arbitrator was disqualified where apprehended or actual bias was demonstrated and which have invited the proscriptive challenge limitation in s. 13(3) of the Act are often accompanied by, or overlap, complaints pursuant to s. 19 of the Act (equality and fairness). Examples include:

(a) Where the arbitrator has, or had, a personal relationship with one of the parties or their counsel: Rothesay Residents Assn Inc. v. Rothesay Heritage Preservation & Review Board, 2006 NBCA 61; W.L.S. v. K.B.G., 2010 ONSC 4167;

(b) The arbitrator’s actions strongly suggested during the mediation preceding formal arbitration that he had already made up his mind about the issues in dispute: McClintock v Karam, 2015 ONSC 1024;

(c) Where contractual pre-conditions to arbitration were ignored: Kainz v Potter, 2006 CanLII 20532 (ON SC) at paras 46 and 51-52;

(d) Where a party was either not given a fair opportunity to present their case and respond to the other party’s case or where the procedural terms of the parties’ Arbitration Agreement were not followed: Hercus v. Hercus, 2001 O.J. No. 534; Surowiec v. Surowiec, 2016 ONSC 1095.

            Spivak v. Hirsch, 2021 ONSC 5464 (CanLII) at 6-8

“Ms. Nazerali made submissions and offered the recent decision of V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508, at paras. 126 and 129, as having many similar facts to the one before the court.  This decision of the Ontario Superior Court of Justice affirmed the trial judge’s decision stating clearly that “the unexplained injury principle is a recognized principle in child protection matters” (V.R., at para. 124).  At para. 126, Horkins J. used the description of the principle from Prince Edward Island (Director of Child Welfare) v. H.(A.), 2009 PECA 19:

In child protection case law, there is something called “the unexplained injury principle” and that is injuries suffered by an infant which are of a serious nature and which remain unexplained are in and of themselves grounds for removal of the child and for the continuation of that removal.  Where there is no evidence of intervention by a third party, a failure to explain the cause of the child’s serious injury has been held to constitute grounds for finding a child in need of protection and for a refusal to return the child to previous caregivers.”

Simcoe Muskoka Child, Youth and Family Services v. S.M. et al., 2021 ONSC 5433 (CanLII) at 39

“While calculation of the equalization payment and post v-day adjustments largely completes the property portion of this case, the two jointly-owned properties in Florida need to be dealt with.  While I do not have in rem jurisdiction over those properties, since they are situated in Florida, the parties agree that I do have in personam jurisdiction to order the parties to participate in the sale of these properties, and to determine how the proceeds of sale are to be distributed.”

            Cui v. Liwanpo, 2022 ONSC 4549 (CanLII) at 125

“Custody and access orders remain in effect pending an appeal to this court unless the court has ordered otherwise. In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold); whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience: namely whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration, again, is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17 and Lefebvre v. Lefebvre, 2002 CanLII 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6.

The standard for appellate review of a custody or parenting decision is exacting: Bors v. Bors, 2021 ONCA 513, at paras. 18-20. The function of this court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law. The mother contends that there are a number of errors in the trial judge’s decision, and accordingly that the appeal raises a serious issue. Among other arguments, she asserts that the trial judge erred in the scope and application of the expert evidence of the joint participant expert, Dr. Fidler.”

            D.C. v. T.B., 2021 ONCA 562 (CanLII) at 9-10

“This is an interim proceeding.  The importance of that cannot be lost.  An interim order should, as much as possible, stabilize the situation for the parties and the children so that the litigation can move forward to finally resolve the broader issues by conferencing, settlement or trial (F.B. v. C.H., 2021 ONCJ 275).

There is no doubt and it appears no dispute that the parties cannot continue to reside separate and apart under the same roof.  In considering the request by the applicant for exclusive possession, I must consider the criteria enumerated in s. 24(3) of the FLRA.  Most important to me are the factors mentioned in s. 24(3)(a), (c) and (e):

(a)  the best interests of the children affected;

…

(c)  the financial position of both spouses;

…

(e)  the availability of other suitable and affordable accommodation;

As directed in Liao v. Liao, 2003 CanLII 2176 (ONSC) at para. 25:  … “particularly in cases where the family’s financial position allows the temporary maintenance of two households, the children’s interests should outweigh the proprietary interest of the spouses in possession of the matrimonial home.”

            Brac v. Brac, 2022 ONSC 4519 (CanLII) at 25-27