Month: May 2024

“The respondent seeks leave to cross-appeal costs.

I will address the respondent’s submissions, but first I provide background on the law with respect to costs in family law as summarized by this court in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65 at paras. 67-69. The principles are:

• • •  Costs awards are “quintessentially discretionary”;
    • A costs award should only be set aside on appeal if the court below “has made an error in principle or if the costs award is plainly wrong”;
    • There is “significant deference” to costs awards in relation to spousal support orders. This approach promotes finality in family law litigation.
    •  A material error, a serious misapprehension of the evidence or an error in law would be required for this court to intervene.

The Family Law Rules, O. Reg. 114/99 emphasize these principles in r. 24(12), which contains a list of factors the court shall consider and balance subject to its overriding discretion. The court may exercise its discretion to award costs. Rule 24(1) creates a presumption that a successful party will be granted costs. At the same time, r. 24(4) gives the court the discretion to deprive a successful party of “all or part of” his or her costs if the party behaved unreasonably. Likewise, r. 24(6) gives courts discretion to apportion costs when success is divided. This is in contrast to r. 24(8), which requires the court to order full recovery of costs upon making a finding of bad faith.

The intention of the rules is clear: absent bad faith, the ultimate decision rests with the trial judge.”

              McGuire v. Bator, 2022 ONCA 431 (CanLII) at 38-41

“Modest means is not a basis on which to deny an award of costs. It has long been held that a party’s limited financial circumstances cannot be used as a shield against any liability for costs, particularly when the unsuccessful party has acted unreasonably, see Snih v. Snih, 2007 Canlii 20774 (Ont. SCJ pars. 7-13).

In other words, parties cannot expect to be immune from an Order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs Orders. This would be contrary to the philosophy and requirements of the Rules, see: Culp v. Culp, 2019 ONSC 7051 (SCJ) and Mark v. Bhangari, 2010 ONSC 4638 (SCJ).  As I wrote in Mohr v. Sweeney 2016 ONSC 3238, citing Balaban v. Balaban, 2007 CanLII 7990 (ON SC), those who can least afford to litigate should be the most motivated to seriously pursue settlement, and to avoid unnecessary proceedings.”

            Kapila v. Chhina, 2023 ONSC 3261 (CanLII) at 14-15

“The process for valuating pensions is set forth in s. 67.2 of the [Pension Benefits Act] PBA, the relevant provisions of which provide as follows:

67.2 (1) The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse.  2010, c. 9, s. 44 (1).

                                                * * *

(5) The imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be, is that portion of the preliminary value that is attributed by the administrator, in accordance with the regulations,

(a) to the period beginning with the date of the spouses’ marriage and ending on their family law valuation date, for the purposes of an order under Part I (Family Property) of the Family Law Act; or

(b) to the period beginning with the date determined in accordance with the regulations and ending on the spouses’ family law valuation date, for the purposes of a family arbitration award or domestic contract.  2009, c. 11, s. 49.

The other critical legislative provisions for the purposes of the valuation of pensions in the family law context are subsections 10.1(1) and 10.1(2) of the FLA:

10.1(1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of that Act.  2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1).

                                      * * *

(2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 or, in the case of a spouse’s interest in a variable benefit account, section 67.7 of the Pension Benefits Act with necessary modifications.  2009, c.11, s. 26; 2017, c. 8, Sched. 27, s. 21 (1).

The use of the phrase “with necessary modifications” in s.10.1(2) of the FLA indicates a legislative intent that the substance of s. 67.2 of the PBA be applied, while recognizing that some details may require modification. As the Supreme Court of Canada has recently observed, the words “with necessary modifications” are a contemporary reformulation of the Latin phrase mutatis mutandis: see R. v. Penunsi, 2019 SCC 39, 378 C.C.C. (3d) 37, at para. 49. They mean that the rules to be applied are read with necessary changes in points of detail, while the matter remains the same: Penunsi, at para. 50.

In a recent decision considering s. 10.1(2) of the FLA, Raikes J. held that any departure from the PBA methodology must be justified as necessary by the party seeking that departure: Kelly v. Kelly, 2017 ONSC 7609, at paras. 161-162. I agree with and adopt that statement. This approach is consistent with the language of necessary modification. If one of the parties can show that, because the plan is not regulated under the PBA, a modification to the approach is necessary, departure will be warranted. Otherwise, the default position is that the PBA approach is to be used.

This approach is also consistent with the legislative intent in reforming pension valuation on marital breakdown. The purpose of the new legislation was to create a uniform approach that would create certainty and avoid costly litigation over pension valuations: see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 92 (24 November 2008) at 4156 (Hon. Christopher Bentley); and Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess., No. 111 (19 February 2009) at 4891 (Hon. Christopher Bentley).

In summary, the legislature has signalled a clear intention in s. 10.1(2) of the FLA that a non-Ontario pension be valuated wherever possible in the same manner as an Ontario regulated pension. This means that the valuation formula in the PBA regulation Family Law Matters O. Reg. 287/11 should be applied to a non-Ontario pension with modifications only where necessary. In addition, a purposive interpretation of s. 10.1(2) of the FLA requires that, to the extent that other Ontario statutory provisions or regulatory requirements impact the valuation of a pension for family law purposes, they too should be applied to the valuation of a non-Ontario pension.

In other words, a pension administrator should, to the extent possible, valuate a non-Ontario pension as if it were an Ontario pension. This is consistent with the purpose of the valuation exercise, which is to obtain a fair, predictable, and consistent division of net family property. Thus, it is important that provincial and federal pensions be valuated in the same manner, to the extent reasonably possible.”

          Van Delst v. Hronowsky, 2020 ONCA 329 (CanLII) at 18-24

“Forum non conveniens is a separate determination to be made once jurisdiction simpliciter is established. The decision to raise forum non conveniens rests with the parties, not with the court seized of the claim. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 101-3.”

          C.C. v. J.B., 2021 ONCA 363 (CanLII) at 12

“There is no “tender years doctrine” precluding very young children being parented by their fathers: Young v. Young [cite].  Yet, many of the mother’s claims suggest that the father is inherently unable to parent a young child particularly as the child is being breastfed.

As set out in Ferreira v Ferreira, 2015 ONSC 3602:

1. 1. 1. 1. 31. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.  Jafari v. Dadar, [1996] N.B.J. No. 387.  The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position.  The greater the restriction sought, the more important it becomes to justify that restriction.  M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.

1. 1. 1. 1. 32. A child’s relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children’s physical or mental well-being: see Pastway v. Pastway(1999), 49 R.F.L. (4th) 375(Ont.Ct. (Gen. Div.))”

            Karimi v. Kyron, 2022 ONSC 3252 (CanLII) at 40-41

“I have several difficulties with the doctor’s notes.  First, they were attached as exhibits to the respondent’s affidavits.  On their face they are hearsay.  They are opinion evidence from what would be a participating expert but who has not been qualified as such.  Attaching the notes would put him beyond cross-examination.

The law on this point is best summarized by Nakonechny, J. in Lucreziano v. Lucreziano, 2021 ONSC 4106 (CanLII), at para. 49:

[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.”

            Williams v. Williams, 2023 ONSC 2937 (CanLII) at 26-27

“The obligation to make full and frank financial disclosure in a family law case is an immediate and ongoing obligation. See: Colucci v. Colucci, 2021 SCC 24, at paragraph 42.

At paragraph 44, in Aiello v. Aiello, 2023 ONSC 2176, Justice M.D. Faieta wrote about the importance of disclosure orders being proportional as follows:

Any demands for financial disclosure beyond the specific items that are required to be produced under the Child Support Guidelines and the Family Law Rules must be relevant and proportional to the issues in the case: Mawhinney v. Ferreira, 2023 ONSC 1357, at para. 12.  In weighing whether a request for disclosure is proportional, consideration should be given to the burden that the request places on the disclosing party in terms of time and expense of producing the requested disclosure: Kovachis v. Kovachis, 2013 ONCA 663, at para. 34. Also see Boyd v. Fields, [2006] O.J. No. 5762, at paras. 11-14.”

            Jansen v. DiCecco, 2023 ONCJ 212 (CanLII) at 44-45

“The delivery of a notice of appeal automatically stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order: rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Emphasis added.]”

            Abu-Saud v. Abu-Saud, 2020 ONCA 314 (CanLII) at 8

“The applicant did not respond to this request to admit by either by the original 21-day deadline or the judicially extended deadline to 21-days after December 4, 2019.  Where a party fails to respond to a request to admit prior to trial and prior to trial fails to seek leave to withdraw his deemed admissions, the party should not be permitted to withdraw them: see Jama v. Basdeo, 2020 ONSC 2922, at paras. 16-21.”

          Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII) at 68

“Like partial summary judgment, bifurcation can be beneficial where a discrete issue might resolve a big piece of the case. But where the facts or issues are not discrete and overlap with other issues, bifurcation can cause problems.”

            Sha v. Buchan, 2023 ONSC 2988 (CanLII) at 14