Month: January 2024

“The midpoint of the Spousal Support Advisory Guidelines (SSAG) ranges should not be treated as the default amount for spousal support. The court is required to consider the support factors and objectives found in the Divorce Act and the Family Law Act; the strength of the recipient’s compensatory claim; the recipient’s need; property division and debts; and the payor’s needs and ability to pay: Mason v. Mason, 2016 ONC 725, 132 O.R. (3d) 641, at para. 199.”

Sne v. Sne, 2023 ONSC 566 (CanLII) at 49

“As noted by Bale J. in CCAS v. I.B. et al., 2020 ONSC 5498, at paragraph 148, a court should be mindful of the following distinctive features of child protection matters generally:

1. 1. 1. 1. The best interests, protection, and well-being of children takes precedence over all other considerations: Child Youth and Family Services Act, S.O. 2017, c.14, Sched. 1, s. 1.(1);
         2. The interests at stake in child protection proceedings are of the highest order – few state actions can have a more profound effect on the lives of both parent and child: New Brunswick (Minister of Health and Community Services) v. J.(J.), [1993] 3 S.C.R. 46 at para. 76;
         3. Fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children’s Aid Society v. W.(M.)at paras. 68-69.
         4. The decisions made in child protection courts have life changing consequences for parents, families, and children.  The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are forever left grieving the loss of their offspring: Brant Family and Children’s Services v. A.H. and C.T., 2019 ONCJ 540at para. 7.”

Children’s Aid Society of Niagara v. M.B. and D.J., 2023 ONSC 592 (CanLII) at 95

“I recognize that the wisdom of extending litigation privilege to the preparation of expert reports has been questioned by some judges: see Browne (Litigation Guardian of) v. Lavery, (2002) 2002 CanLII 49411 (ON SC), 58 O.R. (3d) 49 (S.C.), at paras. 65-71; Aviaco International Leasing Inc. v. Boeing Canada Inc., 2002 CanLII 21293, [2002] O.J. No. 3799 (S.C.), at para. 16. However, the law currently imposes no routine obligation to produce draft expert reports: Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), at para. 14; Mendlowitz v. Chaing, 2011 ONSC 2341 (CanLII) (S.C.), at paras. 20-24.

It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations.

The most obvious qualification is that the Rules of Civil Procedure require disclosure of the opinion of an expert witness before trial. If a party intends to call the expert as a witness at trial, rule 31.06(3) entitles the opposite party on oral discovery to “obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined”.

As well, the party who intends to call the expert witness is required to disclose the expert’s report and the other information mandated by rule 53.03(2.1). The result is that what has been called “the foundational information” for the opinion must be disclosed: Conceicao Farms, at para. 14. Bryant, Lederman and Fuerst refer to this as an “implied waiver” of privilege over the facts underlying an expert’s opinion that results from calling the expert as a witness: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014), at para. 14.220. These authors favour restricting the implied waiver “to material relating to formulation of the expressed opinion” (at para. 14.224). They state that caution should be exercised before requiring “wide-ranging disclosure of all solicitor-expert communications and drafts of reports”, as such a practice could encourage “a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem” (at para. 14.226).

The second qualification is that, as stated in Blank, at para. 37, “litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.” Litigation privilege yields where required to meet the ends of justice, and “[i]t is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day”: Blank, at para. 44.

In my view, the ends of justice do not permit litigation privilege to be used to shield improper conduct. As I have already mentioned, it is common ground on this appeal that it is wrong for counsel to interfere with an expert’s duties of independence and objectivity. Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions. See, for example, Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 (CanLII) (S.C.), at paras. 63-75, where the court ordered disclosure of draft reports and affidavits after an expert witness testified that he did not draft the report or affidavit containing his expert opinion and admitted that his firm had an ongoing commercial relationship with the party calling him.

Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor’s drafts and notes.”

            Moore v. Getahun, 2015 ONCA 55 (CanLII) at 72-78

“The appellant submits that the trial judge erred in treating s. 36(3) of the RHPA (Regulated Health Professions Act) as inapplicable, which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA. Her decision to admit the CPSO materials tainted her decision and she erroneously gave no weight to the assessor’s opinion or recommendations.

Section 36(3) of the RHPA provides the following:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 CanLII 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.

…

A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”

The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.

However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.”

          K.K. v. M.M., 2022 ONCA 72 (CanLII) at 44-48, 54-57

“The functional purpose of the solicitor-client privilege goes to the very heart of the administration of the legal system. All persons must have access to expert legal counsel without fear that this recourse may be used to their detriment: Jones v. Smith, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 46.

The onus rests on the party asserting privilege to establish that the communications in question are in fact, privileged: Davies v. American Home Assurance Co., 2002 CanLII 62442 (ON SCDC), 60 OR (3d) 512 (Div. Crt.) at para. 37. Once that is established, the burden then shifts to the party wishing to overcome the privilege and compel disclosure of communication between solicitor and client: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 CPC (6th) 276 (Ont. S.C), at para 76.

In Laliberté v. Monteith, 2021 ONSC 4133, at para. 22, the Divisional Court approved the lower court’s statement of the circumstances in which privilege can be waived:

[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.

[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.

[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15.”

          Shalaby v. Nafei, 2022 ONSC 561 (CanLII) at 18-20

“Pursuant to s. 16 of the CSG, the starting point in determining income for support purposes is the payor’s line 15000 of their TI general income tax return.

The CSG provide for other methods of determining income when s. 16 is not the “fairest determination of that income” (s. 17, CSG), does “not fairly reflect all the money available to the parent or spouse” (s. 18, CSG), or when a Court “imputes such amount of income to a spouse as it considers appropriate.” (s. 19, CSG)

Section 18 of the CSG states:

Shareholder, director or officer

1. 1. 1. 1. 1. 18. (1) Where a parent or spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent’s or spouse’s annual    income as determined under section 16 does not fairly reflect all the money available    to the parent or spouse for the payment of child support, the court may consider the situations described in section 17 and determine the parent’s or spouse’s annual    income to include,

(a)  all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b)  an amount commensurate with the services that the parent or spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

By virtue of the use of the word “may” in section 18 of the CSG, the Court has discretion to add all or part of the corporation’s pre-tax income to a payor’s income if the payor’s annual income, as determined under section 16 of the CSG does not fairly reflect all money available to the payor for the payment of support.

In L.M.P. v. M.D.P, 2021 ONSC 3577 (Ont. Sup. Ct.) at para. 58, MacPherson J. reviewed the case law and concluded that the considerations and questions to take into account by the Court when determining whether to exercise its discretion to attribute pre-tax corporate income can be condensed as follows:

a.   Does the Respondent have control over dividend declarations?

b.   Is there a business reason for retaining the earnings?

c.   Should the Court exercise its discretion and attribute pre-tax corporate income?”

          Sloss v. Liscoumb, 2022 ONSC 1396 (CanLII) at 80-84

“In Fisher v. Fisher, 2008 ONCA 11, at para. 103, the Court of Appeal states that the SSAGs must be treated as a “significant authority” in determining the quantum of spousal support, and that, if the court is departing from the SSAGs, it must provide an explanation as to why.  This is confirmed by Sherr J. in Decker where he suggests that the SSAGs should be adhered to barring “exceptional circumstances”: see para. 28, supra.  In Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338, the court went so far as to indicate that an order of spousal support which falls substantially above or below the suggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy.

Section 12.1 of the SSAGs provides for an exception to utilizing the ranges of support in compelling financial circumstances at the interim stage of a proceeding. The general principle, as outlined in Slongo v. Slongo, 2017 ONCA 272, is that, absent exceptional circumstances, it is standard practice for interim support to be ordered within the Guidelines’ range.

Although the Respondent failed to provide case law to support the awarding of spousal support to address the issue of joint venture income, there is case law to support a departure from the SSAGs under certain circumstances.  For example, in Tasman v. Henderson, 2013 ONSC 4377 (Ont. S.C.J.), the court exceeded the amount recommended by the Guidelines (while also disagreeing with the inputs used by the respondent in calculating the range) in their interim award for spousal support on the basis that the SSAGs underestimated the applicant’s needs because of the length of the marriage and the lack of children. It was alleged that the appropriate range was between $600 and $800 per month. The court decided to award $1,500 per month.  In Osanlo v. Onghaei, 2012 CarswellOnt 4139, 2012 ONSC 2158, McGee J. departed from the SSAGs but the basis for this was hardship:  the children ended up with the husband through what McGee J. described as “high handedness, misadventure or fraud” and the “custodial payor range” SSAG amount was inadequate to permit the wife “an equal opportunity to settle into accommodations suitable for the children.”  A review of that case indicates that those circumstances were based upon severe hardship arising from the application of the SSAGs and are therefore not applicable to the present case. In certain cases the interim exception should be invoked in deviating from the SSAGs to do justice between the parties; however, this is not one of those cases.

Courts, have acknowledged, as have the SSAGs themselves, that there may be challenges in inadequately ascertaining precise income figures at the interim stage. Interim support can be adjusted retroactively later at trial if the income figures chosen were incorrect; see Frank v. Linn 2014 SKCA 87 and Stork v. Stork, 2015 ONSC 312.”

          Rushton v. Cuff, 2020 ONSC 490 (CanLII) at 38-41

“The Hague Convention sets out the rules that apply to the parental abduction of a child across international borders and seeks to remedy the serious harms caused by international child abduction: Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 23-24. The Hague Convention is aimed at enforcing custody rights and securing the prompt return of children to their country of habitual residence.

Articles 3 and 4 of the Hague Convention require the Applicant/Mother to satisfy three conditions prior to me ordering the mandatory return of the child, namely, that:

a.   the child was habitually resident in a contracting state immediately before any breach of custody or access rights;

b.   she has custody rights to the child; and

c.   the child was wrongfully removed or retained.

If those 3 conditions are satisfied, Article 12 of the Convention mandates an order for the return of the child forthwith to the place of his or her habitual residence (save for the enumerated and narrow exceptions that are not applicable on the facts of this case).

While “habitual residence” is the sole connecting factor triggering the child’s return, the term is not defined in the Convention. The Supreme Court of Canada in Office of the Children’s Lawyer v. Balev and Baggott, 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398, held that “habitual residence” should be determined through a hybrid approach that considers “all relevant considerations” including but not limited to the parents’ intentions and the child’s interests: Balev, para. 42. The judge must determine the focal point of the child’s family and social environment immediately prior to the removal:” Balev, paras. 43 and 67. Indeed, the Court cautioned against “over-reliance” on parental intention.

The Court of Appeal for Ontario recently had an opportunity to weigh in on the proper interpretation and application of Balev in Ludwig v. Ludwig, 2019 ONCA 680. The Court of Appeal endorsed a two-step approach to determining habitual residence: first, the Court must determine the date of alleged wrongful removal; then, it must go on to consider where the child was habitually resident immediately before the date of the alleged wrongful removal.

In Ludwig, the Court of Appeal reiterated that Court may consider a variety of factors when determining habitual residence, such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on.  The Court of Appeal emphasized that there is no one dominating factor and the judge must consider the “entirety” of the child’s situation.”

            Miklendova v. Kadlcik, 2021 ONSC 577 (CanLII) at 22-27

“Where a litigant lacks mental capacity, the Court may designate them a special party and appoint the OPGT as his or her representative.  The cases recognize that the definition of a “special party” under the FLRs is broader than that of a party “under disability” pursuant to Rule 7 of the Rules of Civil Procedure Zabawskyj v. Zabawskyj, 2007 CanLII 51349 (SCJ), para. 13.

Rule 2(1) of the FLRs provides that a “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection or child support case.

If there is no appropriate person willing to represent a special party, rule 4(3) provides that the Court may authorize the Office of the Children’s Lawyer or the OPGT to act as representative, but only with that official’s consent.

Section 6 of the Substitute Decisions Act, 1992, defines “incapacity” as a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In Constantino v. Constantino, 2016 ONSC 7229, at paras. 36-37, Price J. confirms that the appointment of a litigation guardian is meant to protect not only the person suffering from a disability but the integrity of the judicial process for all participants in the litigation, including the Court.

When incapacity if raised as a concern, it must be proven by a moving party on a balance of probabilities: Constantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309.

The test for incapacity is an objective test. Capacity must be determined on the basis of “the evidentiary record, not subjective assessments.”: Chai v. Law, 2020 ONSC 6998, paras. 33-38.

The concept of mental incapacity under the Substitute Decisions Act, 1992, is “quite broad”.  The question is whether the person is able to understand information that is relevant to making a decision in the management of his/her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  On the basis of that definition, a “special party” is “a person who is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue”: Zabawskyj, para. 13; Chai, paras. 33-38.

In Costantino v. Costantino, Price J. noted, at para. 40, that “[t]he test for appointment of a litigation guardian is a functional one.  It relates to the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation.”

As set out in Y.S. v. J.Y., 2021 ONSC 5736, at para. 16 and Constantino, at para 57, the following factors should be considered when determining whether a party is under disability and requires a litigation guardian:

a.   A person’s ability to know or understand the minimum choices or decisions required and to make them;

b.   An appreciation of the consequences and effects of his or her choices or decisions;

c.   An appreciation of the nature of the proceedings;

d.   A person’s inability to choose and keep counsel;

e.   A person’s inability to represent him or herself;

f.   A person’s inability to distinguish between relevant and irrelevant issues; and,

g.   A person’s mistaken beliefs regarding the law or court procedures.”

Liddell-MacInnis v. MacInnis, 2023 ONSC 513 (CanLII) at 5-14

“In Kerr v. Baranow, 2011 SCC 10, at para. 87, Cromwell J. explained that when parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.  Obviously, in order to apply this approach, it is necessary to first determine whether the parties have, in fact, been engaged in a joint family venture.

Cohabiting couples are not a homogenous group.  The analysis must take into account the unique circumstances of each particular relationship. There is no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives.  A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.  The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so: Kerr v. Baranow at para. 88.

Cromwell J. directed trial judges undertaking this analysis to consider the evidence under four main headings:  mutual effort, economic integration, actual intent and priority of the family.  Cromwell J. further observed that there is inevitably overlap among factors that may be relevant under these headings and that there is no closed list of relevant factors: Kerr v. Baranow at para. 89.”

            Hurdon v. Crooks, 2023 ONSC 481 (CanLII) at 54-56