Month: February 2024

“That said, in general, I agree with the Father that the Divorce Act creates a complete statutory scheme when it comes to resolving financial issues post-separation, and that Court must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims.

However, given the recent reforms to the Divorce Act, the Father’s concern is less persuasive because “family violence” is already relevant to the issue of parenting. For example, here, the Mother pleaded the factual substance of the tort claim in her original 2016 Answer such that the Father was well-aware that her allegations of abuse would be live issues in the family law matter, regardless of the claim for damages: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at paras. 9-12; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 41. Indeed, the Father responded to the allegations in his original Reply back in 2016.

With 2021 reforms to the Divorce Act, Parliament has explicitly recognized the devastating, life-long impact of family violence on children and families: S.S. v. R.S., 2021 ONSC 2137, at paras. 28, 47; J.K. v. R.K., 2021 ONSC 1136, at paras. 34-49. Moreover, the Divorce Act defines “family violence” expansively to include conduct that goes beyond physical assaults:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a)   physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b)     sexual abuse;

(c)     threats to kill or cause bodily harm to any person;

(d)     harassment, including stalking;

(e)     the failure to provide the necessaries of life;

(f)     psychological abuse;

(g)     financial abuse;

(h)    threats to kill or harm an animal or damage property; and

(i)     the killing or harming of an animal or the damaging of  property.

Yet, despite this statutory recognition within the Divorce Act, the legislation does not create a complete statutory scheme to address all the legal issues that arise in a situation of alleged family violence. At its heart, spousal support is compensatory rather than fault driven. As such, spousal support awards are not meant to censure particularly egregious conduct during the family relationship that calls out for aggravated or punitive damages: see, Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25, at paras. 15-24.

Indeed, s.15.2 of the Divorce Act dictates the factors that I must consider when making a spousal support award, and “family violence” is not one of them. The legislation specifically dictates that I must not take into account “misconduct of any spouse in relation to the marriage” when making a support order: s. 15.2(5). The objects of spousal support are narrowly focused on compensation and self-sufficiency in the context of a relationship of economic interdependence and mutual aid: s.15.2(6). On this basis, for example, I refused to allow either party to adduce evidence of alleged extra-marital affairs in the matter before me. To the extent that abuse may be relevant to support, given its compensatory nature, the plaintiff establish that the harms that flowed from the abuse are directly relevant to the economic fallout of the marriage: Leskun.

The Divorce Act does not provide a victim/survivor (“survivor”) with a direct avenue to obtain reparations for harms that flow directly from family violence and that go well-beyond the economic fallout of the marriage: see Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 5. In unusual cases like this one, where there is a long-term pattern of violence, coercion, and control, only an award in tort can properly compensate for the true harms and financial barriers associated with family violence. The no-fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support: “Intimate relationships and spousal status are not a shield from tort liability. It would be wrong to suggest that the law should allow intimate partners to commit actionable wrongs with impunity,” G. (M.H.) v. B. (R.J.), 2021 ONSC 4308, at paras. 36-42.

Allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief after the end of a violent relationship. That said, I agree with McLeod J. in G. (M.H.) that it is incumbent on case management judges faced with tort claims in a family law context to ensure that the claim is genuine at the pleadings stage, and to find efficiencies, reduce duplication, and make a presumptive order for trial together. Here, all those steps were taken by Price J. in March 2021 at the joint settlement/trial management conference.”

            Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII) at 41-47

“In estimating the value of the discretionary/non-business portion of the Respondent’s home office expense, Ms. Russell took the rent and occupancy costs set out in the annual financial statements of Politis Engineering Ltd. and deducted a “reasonable business portion” based on assumed rent of $1,000 per month for office space in a commercial building. She then added back the excess rent and occupancy costs with a gross-up in calculating the Respondent’s income for support purposes.

The Applicant argues that this is not correct and that the amount of rent chosen by Ms. Russell is arbitrary. She states I should apply the reasons of Croll J. in Riel v. Holland, [2002] O.J. No. 5609 (S.C.J.) and the relevant provisions of the Income Tax Act, R.S.C. 1985 (5th Supp), c. 1, when considering the home office: “An individual who works from his or her home is entitled to deduct expenses relating to the work space in that home if that work space constitutes the individual’s principal place of business or if that work space is used exclusively for the purpose of earning income from business and used on a regular and continuing basis for meeting clients, customers or patients of the individual in respect of the business.”: at para. 32.

The Respondent does not meet clients in his home. He uses his home office to make phone calls, use his computer, send email communication and do administrative work for the operation of his business. He meets with clients at their offices, on job sites and in coffee shops. He admits that, because he lives alone, his work product sometimes “spills out” from the office to other areas of his home.

The Respondent has had a home office since 1992. It is the primary site of the operation of his business. If he did not work from home, he would have the expense of rent and other costs of leasing a commercial space. I agree with Ms. Russell’s treatment of the home office expenses in her income calculations. The amount of rent chosen in the calculation is based on her professional knowledge, research and expertise. I do not dispute her figure. I make no adjustment to Ms. Russell’s calculations for this item.”

            Politis v. Politis, 2020 ONSC 1306 (CanLII) at 49-52

“Family Law Rule 1(8.2) states that the court may “strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.” As confirmed in Frick v Frick 2016 ONCA 799, a document includes a pleading.

The Respondent father argues that a single sentence in paragraph 41 of the Applicant’s Reply is “inflammatory” and for this reason should be struck.

Paragraph 41 of the Applicant’s Reply reads as follows, with the sentence in question in italics: “

To date, Kiran has not paid any child or spousal support to Stephanie, aside from a one-time payment of $2,000.00. Even after numerous requests through counsel for Kiran to start paying a monthly amount on a temporary, without prejudice basis, Kiran has refused to make any other payments, despite having the financial means to do so. When the COVID-19 outbreak first began and Stephanie asked that Kiran provide her with funds to take a taxi or ride share for access exchanges so Amell would not have to take public transit and possibly be exposed to the virus, Kiran refused.

Inflammatory is defined in Blacks Law Dictionary as “tending to cause strong feelings of anger, indignation, or other type of upset; tending to stir the passions”.

Courts have found statements to be inflammatory when they are irrelevant to an issue in the case or consist of personal attacks.

In Frick, statements in the wife’s Application about the Respondent husband’s extra-marital conduct were struck under Rule 1(8.2). The court explained that the statements were inflammatory because they “provide a springboard to question the husband about his extra-marital conduct, not about his net family property”. Further, “extending questioning of the husband’s conduct …that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”

In Norris v. Norris, 2016 ONSC 7077 at paras. 66-68, paragraphs in a factum included “commentary questioning the competence and professionalism of opposing counsel”. The remarks were found to be inflammatory and struck from the factum.

In Cheng v. Yu, 2017 ONCJ 563 at paras. 107-111, statements in a non-party’s affidavit were found to be inflammatory because the language was unnecessary and unhelpful to the party that filed the affidavit and “only further intensifies the conflict in an already high conflict case.” The court refused to strike the statements. Instead no weight was given to the statements that the court characterized as hyperbole and personal attacks.

As explained below, the Respondent has not shown that the sentence in question is inflammatory. Even if it was inflammatory, and it is not, the decision to strike a pleading is not automatic. The law is clear that an order to strike pleadings is a drastic remedy that should only be applied in exceptional circumstances, where no other remedy would suffice (Callwood v. Callwood v. Purdy, 2020 ONSC 3657).

The Respondent has other remedies. He can question the Applicant about the sentence, he can serve a request to admit and if the application proceeds to trial he can cross-examine the Applicant.”

            Eira v. Kulkami, 2021 ONSC 7015 (CanLII) at 4-13

“Solicitor client privilege protects communication between a solicitor and his or her client, recognizing that:

the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice: Blank v. Canada (Department of Justice), 2006 SCC 39 at para. 26.

Canadian authorities recognize two forms of solicitor-client privilege. The first, legal advice privilege is both a substantive and procedural right of a client to maintain as confidential communications and advice passing between the client and their solicitor.   The second, litigation privilege, or “work product privilege” protects from production a communication made or a document created for the dominant purpose of assisting the client in litigation, actual or contemplated: Autosurvey Inc. v. Prevost, 2005 CanLII 36255; [2005] O.J. No. 4291 at para. 50-53.”

            Dixon v. Lindsay, 2021 ONSC 1360 (CanLII) at 37-38

“In Children’s Lawyer v. Balev 2018 SCC 16 at 28-29 the court stated that the heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised, but for the wrongful removal or retention.

If the requirements of Article 3 are established, Article 12 requires that the judge in the requested state order the “return of the child forthwith” unless certain exceptions apply.  Those exceptions in summary are:

1)  The parent seeking return was not exercising custody or consented to the removal or retention (Article 13 (a);

2)  There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b);

3)  The child of sufficient age and maturity objects to being returned (Article 13 (2);

4)  The return of the child would not be permitted by fundamental human rights and fundamental freedom of the requested state (Article 20); and

5) The application is brought one year or more from the date of the wrongful removal or retention and the judge determines that the child is settled in the new environment (Article12).

Accordingly, there are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions.”: Balev, at para. 36.

            Kommineni v. Guggilam, 2022 ONCJ 66 (CanLII) at 53-55

“The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA:

“3  The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the “litigating finger” is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim? If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 1988 CanLII 4810 (ON SC), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 1987 CanLII 4113 (ON SC), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as “prejudice” where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., 1997 CanLII 1931 (ON CA), [1997] O.J. No. 3305).”

More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, MacLeod J. summarized the law of misnomer:

 “19…e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the “litigation finger” is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.”

As Glustein J. held in Loblaw, limitation period defences do not apply:

13  The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the “litigating finger” test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19; Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).

…

24  Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343 (CanLII), 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts’ discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37).”

 MacLeod J. provided the following guidance regarding the effect of notice in Loy-English:

 “19…f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g.   Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h.   Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.””

            Abraham v. Doe, 2023 ONSC 1232 (CanLII) at 20-23

“This Court has an inherent jurisdiction to set aside or change an order to prevent a miscarriage of justice: Neathery v. Cottle, 2012 ONSC 3403.  This is consistent with the primary objective of the Family Law Rules – to enable the Court to deal with cases justly.

It seems to me that the test to re-open this motion should be the same as the test to re-open a trial.  First, would the evidence, if presented at the motion, probably have changed the result?  Second, could the evidence have been obtained before the motion by the exercise of reasonable diligence?: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983.”

            Bors v. Bors, 2019 ONSC 1230 (CanLII) at 10-11

“Disagreements between parents about vaccinating children against COVID-19 have been considered by many courts of first instance.

Within limits, I can take judicial notice of some facts related to the issue. I think that I can go as far as to say the following:

a.   SARS-CoVi-2 has a low mortality rate, especially in children.

b.   The authorized vaccines are generally safe and have a low risk of harmful side effects, especially in children.

c.   The vaccines do not prevent infection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.

In the absence of evidence of any particular vulnerability, whether to the virus or to the vaccine, I would defer to the party who has decision-making authority. I do not think that whether to vaccinate a 12-year-old against COVID-19 is a question that justifies intervention by the court where decision-making authority has already been allocated.

Depending on the child, the question may be determined without reference to parental authority, as it was here in the case of Gabriel. He arranged his own vaccination. The Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A provides:

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a)  he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b)  he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

15 (1) A person may be incapable with respect to some treatments and capable with respect to others.”

Warren v. Charlton, 2022 ONSC 1088 (CanLII) at 8-11

“We disagree with Mr. Merdad’s submission that all property claims between spouses or former spouses must necessarily be equalization claims. And it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct.

The FLA equalization provisions do not deal with property, per se, but, rather, with the equitable calculation, division, and distribution of the value of net family property. Here, Ms. Bakhsh brings forward an equitable trust claim and not a claim for equalization of the value of the parties’ net family property. A claim of ownership is distinct from a claim for a share in property value; an equitable trust claim addresses the former and the equalization regime of the FLA covers only the latter: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 59.

The equalization provisions of the FLA also do not preclude an equitable trust claim respecting property. Section 10(1) of the FLA expressly permits a court application for a determination between spouses or former spouses “as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties” and the court may “declare the ownership or right to possession”, as the respondent has claimed, among other remedies. Importantly, the two-year limitation period in s. 7(3)(a) of the FLA applies only to an application based on subsections 5(1) or (2) and not to the determination of a question of ownership between spouses set out in s. 10(1) of that Act.

The appellant’s reliance on the Supreme Court of Canada’s decision in Rawluk v. Rawluk, [1990] 1 S.C.R. 70, is, respectfully, misplaced. Rather, it supports Ms. Bakhsh’s position.

At issue in Rawluk was whether the doctrine of constructive trust could be applied to determine the ownership of assets of married spouses under the provisions of the FLA or whether the remedy was abolished and superseded by the equalization of matrimonial property and other provisions under the FLA. Mrs. Rawluk claimed a one-half interest in the matrimonial property by way of a remedial constructive trust.

The Supreme Court in Rawluk confirmed that the FLA incorporated the constructive trust remedy that could be used in the matrimonial property context to allocate proprietary interests and that the FLA did not constitute an exclusive code for determining the ownership of matrimonial property: at pp. 89-91, 93 and 97. While the doctrine of constructive trust can be used to settle questions of ownership for the purpose of determining the net family property of each spouse, this function is “totally distinct from the process of determining how the value of matrimonial property should be distributed under the equalization process”: at p. 93.”

          Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 14-19

“[in A.C.V.P. v. A.M.T., 2019 ONSC 1559, Justice Gordon discussed the importance status quo, a factor relevant to my analysis as well:

258      Status quo is always a relevant consideration, perhaps less so with the passage of time. Parents are presumed to have equal status and neither has the right to make unilateral changes, absent special circumstances, agreement or court order. See: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.J.). A.C.V.P. did act unilaterally at the time of separation and commencement of litigation. The circumstances had not changed prior to these events. But he was successful in obtaining the initial court order for custody in November 2014.

259      Status quo is neither a rigid concept nor a short term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey (1990), 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (Sask. Q.B.); Sodhi v. Sodhi, 2002 CarswellOnt 1050 (Ont. C.A.)], 2002 CanLII 41503; Izyuk v. Bilousov, 2011 ONSC 6451 (Ont. S.C.J.); Gebert v. Wilson, 2015 SKCA 139 (Sask. C.A.); and K.R. v. J.K., 2018 SKCA 35 (Sask. C.A.).

260      Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6^th) 229 (Ont. S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.

261      During the relationship, the family resided together in the matrimonial home. Each parent had child care duties. A.M.T., however, was the primary parent in day to day matters, arranging health care and activities and in homeschooling. The role of A.C.V.P. was secondary given his employment, providing child care subject to availability.

262      The situation changed on separation. From May to November 2014, A.C.V.P.’s role diminished. He became an access parent with limited child care responsibilities. A further change, dramatic in nature, occurred in November 2014. A.C.V.P. became the primary parent by court order. A.M.T.’s role was reduced significantly, now only seeing the children on a limited basis.

263      The passage of time, despite being unnecessary and unreasonable, must be considered from the children’s perspective. Both parties are responsible for the delay. In this regard, I am not persuaded the status quo during the relationship is determinative. Nor do I conclude a new status quo was created. Nevertheless, the four plus years in the care of A.C.V.P. is a factor under section 24 (2) (c).”

            D.D. and F.D. v. H.G., 2020 ONSC 889 (CanLII) at 510