Month: February 2024

“The applicant referred to the decision of D’Amico v. D’Amico, 2011 ONSC where the Court treated a deposit payment made by the husband before the date of marriage for the purchase of their matrimonial home as a credit to him on the date of marriage.

However, the Ontario Court of Appeal in Michalofsky v. Michalofsky (1992), 1992 CanLII 14023 (ON CA), 39 R.F.L. (3d) 356 (Ont. C.A.) confirmed that a spouse was not entitled to deduct the $17,000 she contributed before her marriage to the cost of a dwelling that became their matrimonial home after marriage. The Court affirmed the decision of Saunders J in the Divisional Court (1989) 1989 CanLII 8766 (ON SCDC), 25 R.F.L. (3d) 316 who held that the monies paid was an investment in the property that was the matrimonial home at the time of separation and as such was not deductible in calculating her net family property.

The Court in D’Amico did not appear to have been referred to this decision or the law that the payment in effect meant that the husband had an equitable interest in the matrimonial home. In addition there is an issue that need not be decided of whether the respondent wife because of the joint purchase of the matrimonial home also had an equitable interest in it to the extent of that deposit paid to the vendor/builder.

Accordingly, based on the binding decision of Michalofsky and given the circumstances of this case, the deposit funds of $18,393 paid by the applicant do not constitute property owned by him other than the matrimonial home on the date of marriage and are not to be deducted from his family property on the date of separation.”

          Zheng v. Xu, 2019 ONSC 865 (CanLII) at 23-26

“Under s. 21(1) of the CLRA “A parent of a child or any other person” can apply for access to a child.  Mr. McKenzie as a stepparent to Onyx qualifies as “any other person”.

In this case, the issue involves the doctrine of “parental autonomy”.  The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren.  Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship.  She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.

The ratio of this decision has been summed up in several cases (see Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.)) as an inquiry as to the following questions:

a.   Is there a positive relationship between the Respondent and the child?

b.   If there is a positive relationship, has the parents’ decision imperiled that relationship?

c.   Has the parent acted arbitrarily?

In the present case, the Respondent is now enjoying overnight access to his natural child, Bronx.  There is no question that the decision to differentiate Onyx’s access from Bronx’s was a decision made by the Applicant.  The real issue is whether there is a positive relationship between Mr. McKenzie and Onyx, and whether the mother’s position was arbitrary in nature or with a view to preserving the best interests of the child.

It is to be noted as well that there is authority that the parental autonomy argument may fail where the access seeker has had a “settled intention” to treat the child as his or her own.  In Agmon v. James, [2018] O.J. No. 59 (C.J.), Sherr J. gave access to a stepmother over the parents’ objections.  At para. 58, he stated that “the court finds that the [parental autonomy] line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family.  Their status is different than family or community members who have not formed the requisite settled intention.”  This decision was cited with approval (although not followed) by Boswell J. in Laye v. Brisebois, 2020 ONSC 4439.

In making his determination regarding parental autonomy, Sherr J. relied upon s. 62(3)(b) of the CLRA which requires any person demonstrating a settled intention to treat the child as a member of his or her own family to be named as a party to custody proceedings.  Parties who can demonstrate settled intention enjoy a status beyond that of a person having a relationship with the child which does not meet the “settled intention” test such as a relative or grandparent.

Finally, it is to be noted that, in examining the provisions concerning best interests of a child as set out in s. 24(2) of the CLRA, only one of those criteria is related to the blood relationship between the party and the child.”

          Ball v. McKenzie, 2021 ONSC 1150 (CanLII) at 12-18

“The father retained his present counsel last fall, after being represented by what I have been told was seven previous lawyers. In late September 2021, the father, through his current counsel, booked a long motion, returnable March 28, 2022. That motion was ostensibly intended to deal with parenting arrangements. I use the term “ostensibly” because the father has yet to serve a notice of motion on Ms. Thomas in the almost five months since booking the motion. That failure violates the requirements of the Central West Notice to the Profession Regarding Long Motions.

That Notice to the Profession requires a moving party who has secured a long motion hearing date from the court to “serve the Notice of Motion and motion materials forthwith on all parties with an interest in the long motion.” [Emphasis added]. The Notice to the Profession further clarifies the meaning of the term “forthwith” as being ten days. It states that “[p]roof of Service of the Notice of Motion and Motion Record must be filed within 10 days from the date the long motion date is obtained from the Trial Coordinator’s Office. Subject to an order from a judge, failure to do so will result in the long motion hearing date being vacated.” No such order has been requested or obtained.

I add that the ten-day requirement is set out in the Family Motions Information for Central West, which is posted in the SCJ website. It states that for long motions in the Milton Superior Court, the “Notice of Motion, with payment, must be filed within 10 days of booking the long motion with the Trial Coordinator’s office”.

Further, the Notice to the Profession Regarding Long Motions requires:

After the motion materials have been served on all interested parties, all counsel and the litigants must agree in writing upon a timetabling schedule for completion of all steps necessary for the long motion to proceed on the scheduled date.

Counsel and litigants must file the written timetable scheduling agreement along with their Confirmation Sheet.

This too has not occurred. The failure to obey the Notice should have led to the long motion booking being cancelled.”

          Thomas v. Wohleber, 2022 ONSC 1258 (CanLII) at 8-12

“However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.

That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog: King v. Mann, 2020 ONSC 108, at para. 71; Warnica v. Gering, [2004] O.J. No. 5396, at paras. 25-28. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership. Although Warnica was upheld on appeal, the appeal was focussed primarily on whether the hearing judge was entitled to decide the case based on written materials filed during a case conference or whether a trial was needed: 2005 CanLII 30838 (ON CA), [2005] O.J. No. 3655 (C.A.).

The broader, more contemporary approach looks at the relationship between the parties and the dog. This approach has been adopted in many (but not all) Small Claims Court decisions, which is where these claims are frequently heard given their relatively modest monetary value. The principles are well summarized by Adjudicator W.A. Richardson in MacDonald v. Pearl, 2017 NSSM 5, at para. 25:

a.   Animals (including dogs) are considered in law to be personal property;

b.   Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c.   Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;

d.   Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i.   Whether the animal was owned or possessed by one of the people before their relationship began;

ii.   Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii.   The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv.    Who purchased and/or raised the animal;

v.   Who exercised care and control of the animal;

vi.   Who bore the burden of the care and comfort of the animal;

vii.  Who paid for the expenses related to the animal’s upkeep;

viii.  Whether at any point the animal was gifted by the original owner to the other person;

ix.    What happened to the animal after the relationship between the litigants changed; and

x.   Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

That list is not exhaustive; depending on the case, there may be other relevant factors.

In recent years this broader approach has continued to find favour in various courts: Eggberry v. Horn et al., 2018 BCCRT 224, at para. 31; Oh v. City of Coquitlam, 2018 BCSC 986, at paras. 50-53; Delloch v. Piche, 2019 BCPC 369, at paras. 19-24; and Almaas v. Wheeler, 2020 BCPC 51, at paras. 6-18 and 63-74.

Those two competing approaches collided in a case that was heard by three successive courts in Newfoundland: Baker v. Harmina, 2018 NLCA 15. Only one dog was in issue there. The trial judge, hearing the matter in Small Claims Court, took the narrow approach, and granted ownership to Mr. Baker, because he paid for the dog.”

          Coates v. Dickson, 2021 ONSC 992 (CanLII) at 6-11

“I have considered the best interest factors set out in ss. 24 and 39.4(3) CLRA. While it has long been established that the best interest considerations as set out in the CLRA is not an exhaustive list, the considerations provide significant guidance in this case.

While considering factors set out in the legislation, the court is required to take a holistic look at the child, their needs, and the people around them: see Phillips v. Phillips, 2021 CanLII ONSC 2480, at para. 47.

At para. 17, in Reeves v. Brand, 2018 ONCA 263, Laskin J.A. wrote:

17     Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

With the recent amendments to the CLRA, a more detailed procedural and substantive structure has been established to govern relocation cases. Even with these amendments, the challenges recognized in Reeves remain. See Zorab v. Zourob, 2021 ONSC 6552, at para. 4.”

          Lepine-Maynard v. Majstrorovic, 2022 ONSC 656 (CanLII) at 205-208

“Compensatory support is based on the roles of the spouses during the relationship; specifically where the recipient has lost career advantages in order to support the other spouses’ career or the children.

The legal considerations for the entitlement to compensatory support was reviewed by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500 (CanLII), at paras. 55-59.

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experience throughout the relationship as a result of the marital union.

Compensatory support ought not to be varied (unless there is an inability to pay) since it will have been awarded to recognize the length of the marriage and the roles adopted throughout the marriage. These factors are retrospective.”

         S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 37-41

“In Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44, leave to appeal refused, [2020] S.C.C.A. No. 194, the Court of Appeal reiterates the significance of non-disclosure in family court as a metastatic cancer of family law:

As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. … In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

The consequences of failing to disclose or a pattern of inadequate disclosure may vary.

For example, in Blatherwick v. Blatherwick, 2015 ONSC 2606, 8 E.T.R. (4th) 30, Ricchetti J. declined to admit a revised expert report that was introduced at trial. The revised expert report included previously undisclosed financial documentation dealing with the valuation of certain companies. In explaining his decision not to admit the report, Ricchetti J. reiterated the above excerpt from Iannarella to emphasize the importance of full and complete disclosure to civil litigation and trial fairness. He also referred to the Family Law Rules, O. Reg. 114/99, which incorporate by reference the disclosure requirements of the Rules of Civil Procedure, R.R.O., Reg. 194. Rule 19 of the Family Law Rules makes it clear that timely and full disclosure of every document relevant to an issue in the case is the rule. If a party does not produce the document, and it is favourable to the party’s case, that party may not use the document except with leave of the court: at paras. 12-13 of Schedule C (Admissibility Ruling).

In Katz v. Nimelman (2007), 2007 CanLII 51340 (ON SC), 46 R.F.L. (6th) 392 (Ont. S.C.), at para. 65, aff’d 2009 ONCA 445, the court drew an adverse inference against the wife at a trial throughout which “disclosure was a continuing thread.” The court concluded that the wife took unreasonable positions in response to requests for disclosure, and drew an adverse inference due to her failure to disclose. The adverse inference went to her credibility, and any doubt resulting from the inadequacy of her disclosure was resolved in her husband’s favour: at paras. 74, 81.”

            Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 43-46

“In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, this court adopted a list of other common characteristics typically found in vexatious litigants contained in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, which include:

• • • • • bringing multiple proceedings to try to re-determine already determined issues
        • rolling forward grounds and issues from prior proceedings
        • persistent pursuit of unsuccessful appeals
        • failure to pay costs awards
        • bringing proceedings for a purpose other than the assertion of legitimate rights[…]”

Wilson v. Fatahi-Ghandehari, 2023 ONCA 74 (CanLII) at 10

“The discretion not to enforce an offer to settle is to be exercised on a case by case basis and only rarely and in the presence of compelling circumstances: Yonge Village Recreation Centre Limited v. York Condominium Corporation No. 201, 2007 CanLII 36647 (ON SCDC), 229 O.A.C. 144 (Div. Ct.), adopted by Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc., 2018 ONCA 839, at para. 39.”

            Wright v. Wright, 2023 ONSC 810 (CanLII) at 38