Month: December 2024

“However, the respondent should understand the nature of an irrevocable beneficiary designation, as he appears to believe that this means that the designation can never be changed. That is generally not accurate. Rather, it means that, where the life insurance is security for support, the designation cannot be changed without the consent of the beneficiary, an Arbitration Award, or an Order of the Court. In other words, if the term is changed at their final arbitration or at trial, or if the parties agree to a change in writing, the designation can typically be changed with the insurance company.”

          van Rhijn v. van Rhijn, 2020 ONSC 8032 (CanLII) at 54

“In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 at paras. 20-21 (“Gronnerud”), Major J. discussed the criteria for appointing a litigation guardian.  He stated the following:

The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1).  The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person.  Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action.  In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult.  A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf.  Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

It is acceptable in most cases, and perhaps desirable in some cases, to have a trusted family member or a person with close ties to the dependent adult act as litigation guardian.  […]   However, there are exceptions.  One such exception is the situation currently presented by this appeal, in which there is a particularly acrimonious and long-standing dispute among the children concerning their dead parent’s estate.  In such cases, the indifference required to be a litigation guardian is clearly absent.

The case law applying Gronnerud in Ontario confirms that there is no significant difference between an “indifference approach” and a “conflict of interest approach”: see Zabawskyj v. Zabawskyj, 2008 CanLII 19248 at para. 29 (Ont. S.C.J.) (“Zabawskyj”).  Thus, a court must ascertain whether the financial interests of the proposed litigation guardian in respect of the litigation might be adverse to the interests of the party under a disability: see Zabawskyj at para. 30.  Ultimately, a litigation guardian must act in the best interests of the party under disability.

The criteria set out in Gronnerud is consistent with the requirements and powers contained in Rule 7 of the Rules of Civil Procedure, including: (a) the requirement that the litigation guardian has no interest in the proceeding adverse to that of the party under disability (Rules 7.02(2)(g) and 7.03(10)(i)(iii)); (b) the requirement that the litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (Rule 7.05(2)); and (c) the power of the court to substitute a new person as litigation guardian where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability (Rule 7.06(2)).”

          Saing v. Saing, 2022 ONSC 7341 (CanLII) at 48-50

“Courts are cautious about permitting temporary moves in mobility cases, because if later reversed, it will result in further disruption to the child. When determining whether to permit the relocation of a child on a temporary basis, there are some additional factors to consider. These factors were set out in Plumley v. Plumley, 1999 CanLII 13990 (Ont. S.C.), at para.17:

a.   A court will be more reluctant to upset the status quoon an interim basis and permit the move when there is a genuine issue for trial.

b.   There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.

c.   Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

The court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate: Divorce Act, s. 16.92(2). In Scott v. MacLean, 2020 ABCA 173, 7 Alta. L.R. (7th) 225, at para. 11, the Alberta Court of Appeal explained:

The law is clear that the options being considered are not the move versus the status quo. The parent’s move is happening, or has happened. As was noted by this court in MacPhail at paras 44-45, “Canadians have the right to choose to separate and divorce, and they have the right relocate”; it not for the court to opine that it would be better if things remained the same. The issue the court must grapple with is: in which of the new locations, and with which parent, are the best interests of the children met.

Pursuant to s. 16.93(2) of the Divorce Act, the father has the burden of proving that the relocation would not be in the best interests of the child because the child spends the vast majority of his time with the mother. However, under s. 16.94, a court may decide not to apply s. 16.93(2) if the order being requested is an interim order. Further, where there is a pre-existing interim parenting order, the court may also decide that both parties have the burden of proving whether, or not, the relocation is in the best interests of the child.”

          Sobeck v. Rawlinson, 2023 ONSC 7266 (CanLII) at 15-17

“As set out in Wilson [v. Kovalev, 2016 ONSC 163], at para. 10, there are several grounds upon which the court will decline to recognize a foreign divorce:

At common law, there are presumptions in favour of the validity of a foreign divorce decree.  Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, 1976 CanLII 29 (SCC), [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (S.C.J.); Janes v. Pardo, Supra.)  The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:

1. 1. 1. 1. 1. 1. 1. The Respondent did not receive notice of the Divorce Application;
                  2. The foreign divorce is contrary to Canadian public policy;
                  3. The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
                  4. Where there is evidence of fraud going to the jurisdiction of the granting authority; or
                  5. There was a denial of natural justice by the granting authority in making the divorce order.

The question of when the court ought to invoke the defence of public policy was addressed by the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. The Supreme Court stated, at para. 71, that “the public policy defence turns on whether the foreign law is contrary to our view of basic morality.”  Further, at para. 76, an argument based on public policy “should not simply succeed for the sole reason that the foreign jurisdiction would not (or did not) yield the same result as might occur in Ontario or Canada.” The Supreme Court of Canada clarified, at para. 75, that the defence of public policy “is not a remedy to be used lightly” and it should have a “narrow application”.

There have been cases in Canada where the courts have refused to recognize a foreign divorce based on public policy grounds. The applicant points to Zhang v. Lin, 2010 ABQB 420, 92 R.F.L. (6^th) 138 and Marzara v. Marzara, 2011 BCSC 408, [2011] B.C.J. No. 579.”

Vyazemskaya v. Safin, 2022 ONSC 7311 (CanLII) at 26-28

“We understand the appellant’s frustration about the delay in dealing with her spousal support application. However, we are unable on this record to make an order for spousal support. Moreover, the trial judge was correct to state that the appellant’s financial claims should be heard in a single court in accordance with s. 2(2) of the Family Law Act, R.S.O. 1990, c. F3, which provides that:

[N]o person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court’s opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

These provisions reflect both the inefficiency and injustice of determining interrelated financial claims under the Family Law Act separately at two different courts.”

          Tran v. Taylor, 2023 ONCA 858 (CanLII) at 5-6

“Pleadings frame the case before the court. They tell the court what the case is about and they are the mechanism by which parties tell one another the case the other has to meet. Thus, generally, a court will not make an Order on a motion or at trial that has not been sought in the underlying pleadings.

Having said that, where parties are clearly on notice of one another’s positions in a matter, and there is no element of surprise or inability to know the case to be met, courts have taken a practical and non-technical approach to this principle in many cases. The authority for so doing is often cited as Rule 2 of the Family Law Rules, which provides that the primary objective of the FLR is to deal with matters justly. This includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with a case in a manner that is appropriate to its importance and complexity, and giving appropriate resources to the case recognizing the need to give resources to other cases.  See for example: Magcalas v. Magcalas, 2020 ONSC 595 at 65; Smith v. Smith, 2016 ONSC 1157 at 167 – 175; and Adorno v. Adorno, 2019 ONSC 5517 at 13. Applications of Rule 8 of the FLR similarly emphasize practicality and a non-technical approach where both parties have been clearly aware of the claims in the case. It is fair to say that where parties are self-represented, a broad and practical approach to pleadings will assist in treating matters justly.”

          Jefic v. Jefic (Grujicic), 2022 ONSC 7240 (CanLII) at 47-48

“In making parenting orders, and in the absence of third-party assessors or other expert evidence, I consider the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (“AFCC-O”). The Parenting Plan Guide has been found to be helpful by other judges of this Court in determining parenting schedules that are in a child’s interest based on the child’s age and developmental stage: see Hatab v. Abuhatab, 2022 ONSC 1560, 69 R.F.L. (8th) 18; Czyzewski v. Fabro, 2022 ONSC 4883,77 R.F.L. (8th) 385; McBennet v Davis, 2021 ONSC 3610, 57 R.F.L. (8th) 1. As stated by Chappel J. in McBennet at para. 92:

The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”

          Dworakowski v. Dworakowski, 2022 ONSC 7209 (CanLII) at 54

“Both parties worked very hard during marriage. They both worked long hours and engaged in demanding physical work. The crux of Rick’s argument is that at age 60, after working hard for so many years, he ought to be able to stop and enjoy the rest of his life.  He says after almost 13 years of paying spousal support, he has fully satisfied his obligation and is therefore seeking an order terminating it.

There is considerable jurisprudence on the question of when early retirement, that is prior to age 65, may entitle a payor spouse to a reduction or termination of an existing spousal support obligation. Where the retirement is involuntary, due to health reasons, cogent medical evidence is required. See for example: Cosette v.Cosette, 2014 ONSC 4667 (CanLII), 2014 ONSC 4667, aff’d 2015 ONSC 2678 (Div Ct.); Hesketh v. Brooker, 2013 ONSC 1122 (CanLII), 2013 ONSC1122; and Walts v. Walts, 2013 ONSC 6787.  Where the retirement is involuntary because the employer demands it, the court must consider the payor’s alternative income earning capacity and overall wealth in determining whether there is a material change in the conditions, means and other circumstances which justifies a reduction or termination.

There are many cases which are factually similar to this one; the early retirement is strictly voluntary. In Bullock v Bullock, 2004 CanLII 16949 (ONSC), Corbett. J. at paras 9 and 10 expresses the issue as follows:

Many people dream of retiring “early”, although there is not a set age at which people today expect to cease working. Many successful people find they can afford to stop work before they reach the age of 65. Others continue on well into their seventies and even longer. The legal question for this case, then, is not whether Ronald should retire at age 62, but whether this personal choice should be viewed as a quote material change of circumstances quote for the purposes of payment of spousal support.

I have already determined that, in this case, the language in the consent order meets the threshold for a review but the general principles in Bullock, Cosette and Hickey v. Princ regarding early retirement do apply here. A payor spouse cannot side-step support obligations by unilaterally leaving the workforce early. As stated by the Divisional Court in Cosstte, at para. 13   citing Bullock, also at para 13: “The support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations.””

          Lepoidevin v. Lepoidevin, 2019 ONSC 7434 (CanLII) at 19-22

“Section 30(1) of the CLRA provides that the court “by order, may appoint a person who has technical or professional skill to assess and 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”.

Furthermore, the court will choose and appoint the assessor in the absence of agreement by the parties (s. 30(3), CLRA).

The proposed assessor must first consent to make the appointment and agree to make a report within the period of time specified by court order (s.30(4)).

The persons, including the parties and child, must attend for the assessment as provided by court order (s. 30(5), CLRA).

The resulting assessment report will then be admissible as evidence in the proceeding (s. 30(9), CLRA).

The court has considerable discretion in ordering and apportioning the assessor’s fees as between the parties and may relieve one party from paying any portion if it will cause  serious undue hardship (s. 30(12) – (14), CLRA).

In the oft-cited case of Glick v Cale, 2013 ONSC 893, 48 RFL (7^th) 435, at para. 48, Kiteley J. provided a non-exhaustive list of questions to inform this analysis.  Both parties used these factors as a roadmap for their respective submissions.  In that decision, at para. 21, Kiteley J., quoting the Divisional Court decision rendered in Linton v. Clarke, 21 OR (3d) 568, 1994 CanLII 8894 (ON SCDC),  and Baillie v. Baillie, 2012 ONSC 3728, noted that s. 30 assessments are not to be made as a matter of routine for resolving parenting disputes but rather should be restricted to situations in which assessments can provide expert evidence to address “the emotional and psychological stress within the family unit in the final determination of custody”.

As most recently noted by the Court of Appeal in A.C.V.P. v A.M.P., 2022 ONCA 283 at para. 30, “there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA;  rather, the inquiry is fact-driven and flexible”.

In L.T.C. v D.P., 2021 ONSC 7806, at para. 12, the court ordered a s. 30 assessment in view of the significant behavioural issues of the child  and the fact that the parents accused each other of behaving inappropriately with the child.  In that case the court required a clinical assessment to determine what parenting arrangements are in the child’s best interests “as well as the manner of implementing them in the least disruptive fashion given his diagnosis”.”

              Cibuku v. Cibuku, 2023 ONSC 7128 (CanLII) at 8-16

“The scope of the principle of res judicata, which prevents the re-litigation of issues previously and finally decided, was set out over 150 years ago in the leading British case of Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313 (Eng. V.-C.) at 319. In that decision, which was adopted into Canadian law by our Supreme Court (see, for example, Maynard v. Maynard (1950), [1951] S.C.R. 346 (S.C.C.); Doering v. Grandview (Town) (1975), [1976] 2 S.C.R. 621, Vice-Chancellor Wigram stated at p. 115:

I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

(as cited in Grandview v. Doering, at p. 634)

The breadth of the principle of issue estoppel and its relationship to res judicata is set out by Laskin J.A., writing for the Court of Appeal for Ontario in Minott v. O’Shanter Development Co. (1999), 42 O.R. (3d) 321 (Ont. C.A.), at paras. 16-17, as follows:

16 I will first discuss the general principles underlying issue estoppel and then apply them to this case. Issue estoppel prevents the relitigation of an issue that a court or tribunal has decided in a previous proceeding. In this sense issue estoppel forms part of the broader principle of res judicata. Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding…. Issue estoppel is narrower than cause of action estoppel. It prevents a party from relitigating an issue already decided in an earlier proceeding, even if the causes of action in the two proceedings differ.

17 The overall goal of the doctrine of res judicata, and therefore of both cause of action estoppel and issue estoppel, is judicial finality. “The doctrine prevents an encore, and reflects the law’s refusal to tolerate needless litigation.”

[Footnotes omitted]

The rationale for the application of the principle of issue estoppel was pithily described by Binnie J., writing for the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (S.C.C.), at para. 18, as follows:

18 The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry.

The three-part test for the application of issue estoppel was adopted by the majority of the Supreme Court of Canada in Angle v. Minister of National Revenue, [1976] 2 S.C.R. 248 (S.C.C.), at p. 254. The Angle test was originally set out in the decision of Lord Guest of the British House of Lords in Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853 (Eng. H.L.), at p. 935, as:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies….

(See also Danyluk v. Ainsworth Technologies Inc., , at para 25.)

The nine following additional principles, derived from further authorities, are relevant to the consideration of issue estoppel in this case:

1. The issue out of which the estoppel is said to arise must have been “‘fundamental” to the decision arrived at in the earlier proceedings (Angle v. Minister of National Revenue, at pp. 255, 265-66).
2. The breadth of issue estoppel “…extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk v. Ainsworth Technologies Inc., at para. 24).
3. Issue estoppel encompasses “issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it” (Allen v. Morrison (2006), 139 C.R.R. (2d) 324(Ont. S.C.J.), at para. 21, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 1084-85)).
4. Issue estoppel applies with equal effect to consent judgments (R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216(Ont. C.A.), at para. 35, citing Hardy Lumber Co. v. Pickerel River Improvement Co. (1898), 29 S.C.R. 211(S.C.C.); and Ontario Sugar Co., Re (1911), 24 O.L.R. 332 (Ont. C.A.), leave to appeal refused, (1911), 44 S.C.R. 659 (S.C.C.); Arslan v. Sekerbank T.A.S., 2016 SKCA 77, 480 Sask. R. 235 (Sask. C.A.), at para. 100).
5. “The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent” (Arslan v. Sekerbank T.A.S., at para. 100, citing Donald L. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: LexisNexis, 2010), at p. 359)).
6. The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice (Minott v. O’Shanter Development Co., at para 49; Danyluk, at para. 33). In doing so, the court “should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice” (Danyluk, at para. 80).
7. But that discretion must be “very limited in application” (Naken v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72(S.C.C.), at p. 101, speaking of the discretion regarding res judicata).
8. When a party claims that newly discovered facts or materials, create special circumstances that overcome the application of issue estoppel, the court will look to the exercise of due diligence. The person seeking to relitigate an issue must demonstrate that the new fact or materials could not have been ascertained by the exercise of reasonable diligence at the time of the first action. (Grandview v. Doering, at pp. 626, 635-39; Minott v. O’Shanter Development Co., at para. 51).
9. Issue estoppel applies to decisions of arbitrators and administrative tribunals (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., (Toronto: Butterworths, 2018) at p. 1416, para. 19.70; Minott v. O’Shanter Development Co., at para. 18; Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267(Ont. C.A.)). As Abella J.A., as she then was, wrote for the court in Rasanen v. Rosemount Instruments Ltd., at para. 37:

[T]he policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

10. Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246(Ont. C.A.), McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211(Ont. Gen. Div.) at 218, aff’d. [1994] O.J. No. 2792 (Ont. C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., [1924] S.C.R. 308.”

          Spadacini-Kelava v. Kelava, 2020 ONSC 7907 (CanLII) at 102-106