Author: dawi

“When disposition costs are in issue, courts apply three rules: (i) the overriding principle of fairness applies, i.e., that costs of disposition as well as benefits should be shared equally; (ii) each case should be decided on its own facts, considering the nature of the assets involved, evidence as to the probable timing of their disposition, and the probable tax and other costs of disposition at that time, discounted as of valuation day; and (iii) disposition costs are deducted before arriving at the equalization payment, except in the situation where “it is not clear when, if ever,” there will be a realization of the property: McPherson v. McPherson (1988), 63 O.R. (2d) 641, 13 R.F.L. (3d) 1 (Ont. C.A.).

To determine the appropriate notional RRSP tax rates—where the parties disagree—the court’s analysis must rely on evidence supporting the expected time of disposition: Virc v. Blair, 2016 ONSC 49 (Ont. S.C.J.).  If the evidence is lacking, the court may consider both agreed upon rates for other assets as well as hindsight evidence of post-separation text rates and actual disposition costs incurred upon sale of RRSPs: ibid at para 198.

For pensions, a similar reliance on evidence is preferable: Green v. Green, [2007] O.J. No. 454, 38 R.F.L. (6^th) 378 (Ont. S.C.J.) at para 46.  As a contingent interest, the court must examine what was “reasonably foreseeable on the valuation date”: Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6^th) 271 (Ont, C.A.).”

Lambert v. Peachman, 2017 ONSC 7450 (CanLII) at 21(x)(a)-(c)

“A similar analysis is contained in in Canadian Council of the Blind v. Davis, [2007] O.J. No. 4609; 161 A.C.W.S. (3d) 871; there Master C.U.C. MacLeod considered the appropriate approach to motions such as the one before me. I have omitted the footnotes in his reasons, where he observed:

8. For more than 100 years, pleadings in Ontario have required parties to set out the material facts to be relied upon but not the evidence by which those facts will be proven. Surprisingly this has not eliminated disputes about pleading. It is true that some kinds of allegations require more particularity than others and the line between material facts and evidence is not always a bright line. Moreover, in our regime of pleading, technicality should not get in the way of justice. That is to say that pleadings should be read generously and should not be subjected to a standard of perfection. That said, if the court permits pleadings that are overly detailed, irrelevant and unfocused, then rather than furthering resolution of the dispute through negotiation, mediation or adjudication, the pleading has the opposite effect.

9. The functions of pleading in Ontario have been said to be fourfold:

(i) To define with clarity the question in controversy between the litigants.

(ii) To give fair notice of the case which has to be met so that the opposing party may direct its evidence to the issues disclosed by them.

(iii) To assist the court in its investigation of the truth of the allegations made by the litigants.

(iv) To constitute a record of the issues involved in the   action so as to prevent future litigation upon the matter adjudicated between the parties.

…

13.       A pleading should not be simply a recitation of facts that may support a defence or counter claim. …. Assuming the facts exist to support the theory, those are the facts to be included in the pleading. Because the pleadings establish the boundaries of production and discovery and delimit the issues for trial, the consequences of vague and unfocused pleadings will be exaggerated costs and more difficult pre-trial and trial proceedings.

14.        A reader of pleadings should be left in no doubt what the case is about and what the issues are that must be tried.

In my view, the present form of pleading does not clearly define all the actual issues that must be tried and contains extraneous elements.

In Robinson v. Medtronic, Inc., 2010 ONSC 1739 (CanLII), [2010] O.J. No. 1325; 2010 ONSC 1739 Justice Perell outlined a four step process that he followed in ruling on each paragraph of a pleading. In paragraph 17 of his reasons he detailed his approach to the existing pleading rules. The portions of his description which I found helpful in this case read as follows:

“Step 2 – Rules of Pleading

I will briefly set out the law that I will be employing to identify the problems with the pleading. I rely on the following rules or principles:

*   Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved: Rule 25.06 (1).

*   A material fact is a fact that is necessary for a complete cause of action: Bruce v. Odhams Press Ltd., [1936] 1 K.B. 697.

*   Material facts include facts that establish the constituent elements of the claim or defence: Philco Products, Limited v. Thermionics, Limited, 1940 CanLII 43 (SCC), [1940] S.C.R. 501 at p. 505.

*   Material facts include any facts that the party pleading is entitled to prove at trial, and at trial, anything that affects the determination of the party’s rights can be proved; accordingly, a material fact is a fact that can have an effect on the determination of a party’s rights: Hammell v. The British American Oil Company Ltd., [1945] O.W.N. 743 (Master); Daryea v. Kaufman (1910), 21 O.L.R. 161; Flexlume Sign Co. v. Hough (1923), 53 O.L.R. 611; Brydon v. Brydon, [1951] O.W.N. 369, [1951] O.J. No. 77 (C.A.).

*   A fact that is not provable at the trial or that is incapable of affecting the outcome is immaterial and ought not to be pleaded. As described by Justice Riddell in Duryea v. Kaufman, (1910) 21 O.L.R. 161 (H.C.J.) at p. 168, such a plea is said to be “embarrassing;” he said: “No pleading can be said to be embarrassing if it alleges only facts which may be proved – the opposite party may be perplexed, astonished, startled, confused, troubled, annoyed, taken aback, and worried by such a pleading – but in a legal sense he cannot be “embarrassed.” But no pleading should set out a fact which would not be allowed to be proved – that is embarrassing.” A pleading that raises an issue that can have no effect upon the outcome of the action is embarrassing and may be struck out: Guaranty Trust Co. of Canada v. Public Trustee (1978), 1978 CanLII 1704 (ON SC), 20 O.R. (2d) 247 (H.C.J.); Everdale Place v. Rimmer (1975), 1975 CanLII 337 (ON SC), 8 O.R. (2d) 641 (H.C.J.); Wood Gundy Inc. v. Financial Trustco Capital Ltd. [1988] O.J. No. 275 (Master); Elder v. City of Kingston, [1953] O.W.N. 409, [1953] O.J. No. 94, (H.C.J.).

*   A pleading should not describe the evidence that will prove a material fact; pleadings of evidence may be struck out: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 CanLII 7050 (ON SC), 3 O.R. (3d) 684 (Gen. Div.). What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend to prove the truth of the substantial facts in issue: Grace v. Usalkas, [1959] O.W.N. 237 (S.C.); Phillips v. Phillips (1878), 4 Q.B.D. 127.

*   Pleadings that are irrelevant, argumentative, or inserted only for colour or that constitute bare unfounded allegations should be struck out as scandalous: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.). A pleading may be struck out if it fails to comply with the formalities of a proper pleading, which require a concise and comprehensible statement of material facts and not a disorganized ambiguous mixture of facts, evidence, arguments, and law: National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.); Watt v. Beallor Beallor Burns Inc., 2004 CanLII 188877 (ON SC), [2004] O.J. No. 450 (S.C.J.); McCarthy Corp. PLC v. KPMG LLP, [2005] O.J. No. 3017 (S.C.J.); Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.); Balanyk v. University of Toronto (1999), 1999 CanLII 14918 (ON SC), 1 C.P.R. (4th) 300 (Ont. S.C.J.); Dairy Queen Canada Inc. v. Terelie Holdings (Newmarket) Inc., [2000] O.J. No. 964 (S.C.J.); Cadillac Contracting & Developments Ltd. v. Tanenbaum, [1954] O.W.N. 221 (H.C.J.), leave to appeal to C.A. refused, [1954] O.J. No. 17 (H.C.J.); Carlstrom v. Philip, [2005] O.J. No. 3390 (Master); E. & S. Carpentry Contractors Ltd. v. Fedak [1980] O.J. No. 1569 (H.C.J.).

*   Under rule 25.06(8), where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. Where a party alleges conduct akin to fraud or intentional misconduct, particulars of the specific facts that are required to ground such an action must be pleaded: Corfax Benefit Systems Ltd. v. Fiducie Desjardins Inc. (1997), 1997 CanLII 12195 (ON SC), 37 O.R. (3d) 50 at p. 59 (Gen. Div.)….”

Simaei v. Hannaford, 2014 ONSC 7075 (CanLII) at 39-40, 42

“Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.  The Court of Appeal pointed out in Fisher v. Fisher, (2008), that self-sufficiency, with its connotation of economic independence, is a relative concept: para 51. It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation, and could reasonably anticipate afterward. It requires consideration of:

(a)  The parties’ present and potential incomes;

(b)  Their standard of living during cohabitation;

(c)  The efficacy of any suggested steps to increase a party’s means;

(d)  The parties’ likely post-separation circumstances (including the impact of equalization of their property);

(e)  The duration of their cohabitation; and

(f)    Any other relevant factors: Fisher, at para 53.”

Samnani v. Galmani, 2018 ONSC 7280 (CanLII) at 118

“I do not think it appropriate to provide for police enforcement of the parenting time in this order.  In my view, s. 36 of the Children’s Law Reform Act allows for police enforcement in response to an existing or reasonably anticipated situation of unlawful withholding of the child.   The wording of the section does not contemplate its use as a long-term, open-ended and instant remedy for possible future contempt of court.  I am also concerned that such an order would be open for abuse by either parent to escalate a minor disagreement rather than to problem-solve.  Most important, these young children have already been exposed to enough police involvement and have unfortunately witnessed their parents resort to calling the police when unable to manage and coordinate their parenting in a mature manner.  This is hardly a model environment in which they should be raised.  They deserve better from their parents.  I agree with the maternal grandmother’s observations that: “they need to act like parents, grow up and work like parents.”

A better long-term strategy that promotes the best interests of the children is for both parents to use therapeutic alternatives, such as the counselling I have ordered, to minimize the risks of future non-compliance and conflict during access.

Congdon v. Baarrts, 2019 ONSC 7126 (CanLII) at 82-83

“In Serra v. Serra, 2009 ONCA 395 (CanLII), 66 R.F.L. (6th) 40, the Court of Appeal has confirmed that the law of costs in family law cases is designed to foster three important costs principles: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants: see also, Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).  In Mattina v. Mattina, 2018 ONCA 867 (CanLII) at para. 10, the Court of Appeal stated that Family Law Rule 2(2) adds a fourth factor: to ensure that cases are dealt with justly.”

Shah v. Irvine, 2018 ONSC 7359 (CanLII) at 40

“My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18:

The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 [In Chambers], at paras. 14-15.”

Paschel v. Paschel, 2017 ONCA 972 (CanLII) at 9

“Under a combination of r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and r. 38(33) of the Family Law Rules, O. Reg. 114/99, the filing of a notice of appeal stays any provision requiring the payment of money except a provision that enforces a support order.”

Nguyen v. Tran, 2018 ONCA 985 (CanLII) at 2

“Issue #4 — the value of Mr. Butty’s liabilities was overstated by approximately $23,500 because the full debt of $151,000 to his mother was shown as outstanding. We query whether the difference is of a sufficient magnitude in the circumstances of this case to meet the statutory requirement that it is a failure to disclose a “significant” asset or debt. Having said that, again, we are not persuaded that it amounts to a failure to disclose. Ms. Butty was aware of the debt and of Mr. Butty’s obligation to repay the loan amount. If not aware of the precise amounts that had been paid, Ms. Butty’s first lawyer knew that Mr. Butty was making regular payments and the debt was being reduced.

Accordingly, this case is very different from LeVan v. LeVan (2008), 2008 ONCA 388 (CanLII), 90 O.R. (3d) 1, [2008] O.J. No. 1905, 2008 CarswellOnt 2738 (C.A.), in which this court recently affirmed a trial judge’s exercise of discretion pursuant to s. 56(4) of the Act. In LeVan, the following factors led to the exercise of that discretion [at para. 35]:

(1) The husband failed to disclose his income tax returns and the value of his significant assets. (2) The wife did not receive effective independent legal advice and some advice provided was wrong. (3) The wife did not understand the nature and consequence of the marriage contract. (4) The husband misrepresented the nature and terms of the marriage contract to the wife. (5) The husband’s failure to disclose his entire assets to his wife was deliberate. [page240] (6) The husband interfered with the wife’s receipt of legal assistance from her first lawyer.

Butty v. Butty, 2009 ONCA 852 (CanLII) at 58-59

“I see no error in the motion judge’s finding that the transfer of the 50% interest in the property to Shakiba was an irrevocable, unconditional gift and that no genuine issue requiring a trial was raised on the record with respect to that issue. 

It is accepted that the motion judge applied the proper test for the determination of a gift: an intention on the part of the donor to make a gift without consideration or expectation of remuneration; an acceptance of the gift by the donee; and a sufficient act of delivery or transfer of the property to complete the transaction. See McNamee v. McNamee, 2011 ONCA 533, 335 D.L.R. (4th) 704.”

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII) at 13-14

“Ms. Draper contends that there was no “transfer” of property by Mr. Holtby to her, as both parties participated in the incorporation of Knapton, so the doctrine of resulting trust does not apply. She further asserts that her receipt of the Knapton shares was not gratuitous: first, because she gave consideration, when she paid the $100 subscription for her shares, and second, because Knapton (in which she was already a 50% shareholder) gave fair market consideration to Mr. Holtby when it purchased the farm property and other assets from him. In this sense, Mr. Holtby did not make any gratuitous transfer of property to Knapton. She contests the trial judge’s reliance on Paddock v. Paddock (2008), 78 R.F.L. (6th) 54 (Ont. S.C.), aff’d 2009 ONCA 264, 78 R.F.L. (6th) 69.

In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 44, Rothstein J. explained that the trial judge must commence his or her inquiry with the applicable presumption and weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust: Pecore, at para. 24. The presumption of resulting trust applies to married spouses, except that where property is held in joint ownership, the presumption is that they intended to each own one half, in the absence of evidence to the contrary: Family Law Act, s. 14. The transferor’s intention at the time of the transfer is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30 and 41. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. Its reliability must be assessed to determine weight, guarding against evidence that is self-serving or reflects a change in intention: Pecore, at para. 59; Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 63.”

Holtby v. Draper, 2017 ONCA 932 (CanLII) at 31-32