Author: dawi

“The Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53 (CanLII), [2014] 2 S.C.R. 633 re-examined the principles regarding contractual interpretation.  The parties did not provide me with Sattva at first instance and I therefore asked for further submissions regarding same. At paras. 47 and 48 of Sattva, the court stated:

Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 (CanLII), [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII), [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed… In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.

(Reardon Smith Line, at p. 574, per Lord Wilberforce)

The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71 (CanLII), 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. [p. 115] [Emphasis added.]

At paragraphs 56 to 58 of the same decision, the court also stated:

The Role and Nature of the “Surrounding Circumstances”

I now turn to the role of the surrounding circumstances in contractual interpretation and the nature of the evidence that can be considered. The discussion here is limited to the common law approach to contractual interpretation; it does not seek to apply to or alter the law of contractual interpretation governed by the Civil Code of Québec.

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997),1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).

The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.  [Emphasis added.]”

Birnie v. Birnie, 2019 ONSC 2152 (CanLII) at 31-32

“The importance of taking children’s interests and views into account in decisions involving them was well summarized by Audet J. in N.H. v. J.H. , 2018 ONSC 4436, as follows at para 44:

A child’s views and preferences with regards to decisions affecting him or her, while clearly a factor to be considered since the coming into force of the Children’s Law Reform Act, have in recent years taken a much more prominent role than they ever did in parenting disputes. This is evidenced by the recent changes in the Child, Youth and Family Services Act, S.O. 2017, c. 14, sch. 1, which, while not applicable here, have put a child’s views and wishes at the top of the list of factors to be considered when assessing a child’s best interests. The importance of children’s right to express their views and preferences, and for those to be considered by the court in making decisions affecting them, has been discussed at length in various recent decisions including by Justice Kukurin in Children’s Aid Society of Algoma (Elliot Lake) v. P.C.-F., 2017 ONCJ 898, and is further demonstrated by the development in Ontario of the Katelynn’s Principle (Ontario Bill 57) and the Voice of the Child’s Reports which are now available as part of the services offered by the Office of the Children’s Lawyer.

In Carter v. Mackie, 2017 ONCJ 541, Justice Jane Caspers described Katelynn’s Principle” as follows:

134  On April 29, 2016, the Coroner’s Jury, at the end of the Inquest into the Death of Katelynn Angel Sampson, cited as its first recommendation what has come to be known as “Katelynn’s Principle”.

“Katelynn’s Principle” states that

“A child must be at the centre where they are the subject of or receiving services through the child welfare, justice and education systems.

A child is an individual with rights:

*      Who must always be seen

*      Whose voice must be heard

*      Who must be listened to and respected

…

Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.

A child’s view must be given due weight in accordance with the age and maturity of the child…”

135  Children involved in any type of family case – whether to remove them into care or disputes about child care and parenting arrangements following divorce or separation – must be able to have their views heard when decisions are made that will affect them.

The views and preferences of the child have long been a factor in the determination of parenting issues.  However those views and preferences are but one of many factors in the determination of a child’s best interests in judicial parenting decisions.  The numerous factors that a court may consider in determining how much of a child’s wishes should guide the court’s decision making were summarized by the Ontario Court of Appeal in Decaen v. Decaen, 2013 ONCA 218 as follows:

42  In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

A child’s views and preferences gain greater weight as the child gets older and more mature.  As Sheard J. stated in Clark v. Moxley, 2017 ONSC 4971 at para. 50, in regard to the wishes of a 12 year old boy: “…it is the duty of this Court to determine Noah’s best interests, even if to do so may not align with his stated views and preferences.” In Kemp v Kemp, [2007] OJ No 1131 (S.C.J.), Blishen J. stated:

The weight to be given to the child’s stated preference depends on the facts of the case, and is a function of age, intelligence, apparent maturity and the ability of the child to articulate a view. See Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. No. 4253.

As well, courts must always assess the independence of the views that children express. If they are not independent, they will be given little weight (Fielding v. Fielding, 2013 ONSC 5102 at para. 168, affd., 2015 ONCA 901).”

Ivens v. Ivens, 2020 ONSC 2194 (CanLII) at 80-84

“An R.E.S.P. does not form part of the property of either spouse to be equalized pursuant to section 5 of the Family Law Act. R.E.S.P.’s have generally not been included as property for equalization. Given how broad the definition of property is under section 4 of the Family Law Act, it is quite clear that courts have implicitly recognized the trust relationship in relation to R.E.S.P.’s. If the R.E.S.P. was the property of the party both in title and in beneficial interest, the courts would not have tacitly accepted its exclusion from the net family property calculation. Similarly, if the R.E.S.P. was the property of any one parent without the children having a beneficial interest in it, courts would have more difficulty justifying removing an R.E.S.P. owner from the title of the account. In Shillington v. Lyne, McDermott J. stated:

This is an R.E.S.P. account for the children in Ms. Shillington’s name alone.  There was a concern as to whether this account is subject to equalization, as the account would be available to Ms. Shillington to use for the children’s education, which would defer her share of the children’s educational costs in the future.  In respect of this issue, Mr. Dunsmuir filed several cases, Widmeyer v. Widmeyer [2007] ONSC 59502 (CanLII) and Savage v. Savage 2007 ONSC 1900 (CanLII).  In both of those cases, R.E.S.P.s were found not to be net family property, but the presiding justice ordered that those funds were to be held in trust for the children.  I adopt this solution in the present case.”

McConnell v. McConnell, 2015 ONSC 2243 (CanLII) at 130

“Let me begin with a general comment about costs awards. The lawyers will know this but Ms. Kadonoff, who was for the most part self-represented, may not. Costs awards are in the court’s discretion. The Rules provide for three levels of costs: partial indemnity; substantial indemnity which is defined in the Rules as 1.5 times partial indemnity; and full indemnity which is self-explanatory.

In practice, and in accordance with both the Rules and the decisions of the Court of Appeal, the usual costs award is partial indemnity. One of the principles underlying the litigation system in this province is that litigation is not cost-free and the winning party will normally only recover a portion of its actual legal costs from the losing party – generally somewhere between one-third and one-half. The next costs level, substantial indemnity, is only awarded in three situations: where this is specified by contractual agreement; where there are settlement offers that trigger Rule 49; or if conduct of the losing party was “reprehensible” or “outrageous” and thus deserving of sanction.

Provided that one litigates within the Rules, albeit aggressively and relentlessly and in a manner that may well upset the other side, this by itself will not amount to “reprehensible” behaviour. Courts generally require evidence of abuse of process or malice or some form of conduct that is otherwise “egregious.” Substantial indemnity may then be awarded as a form of chastisement and sanction.

In sum, the norm is partial indemnity; substantial indemnity is possible but much less frequent; full indemnity is rarely awarded.”

Blustein v. Kronby, 2010 ONSC 1718 (CanLII) at 3-6

“…the test for staying an order pending appeal derives from r. 63.02 of the Rules of Civil Procedure. That 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: Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18.

The test is cumulative, meaning the appellant must satisfy all three prongs in order to achieve a stay. Moreover, the appellant carries the burden of proof.”

Booth v. Bilek, 2020 ONSC 2116 (CanLII) at 7-8

“The following summary of the law to be applied on a status review application was set out in Catholic Children’s Aid Society v. S. (B.L.), 2014 CarswellOnt 12921 at para. 83 (Ont. S.C.J.):

a.  In a status review hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made.

b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection.

c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.)

d. Secondly, the court must consider the best interests of the child.

e. The analysis must be conducted from the child’s perspective.

The court is governed by the provisions contained within the Child Youth and Family Services Act, S.O., 2017, Chapter 14, Schedule 1 [“CYFSA”], which came into force on April 30, 2018. Under the transitional provisions set out in section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the previous legislation, the CFSA, but not concluded prior to the coming into force of the CYFSA shall continue as a proceeding under the CYFSA.

Section 114 of the CYFSA provides that where, as here, a status review application is made under section 113, a court may, in the child’s best interests:

a.   vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

b.   order that the original order terminate on a specified future date;

c.   make a further order or orders under section 101; or

d.   make an order under section 102.

Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:

1.  that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;

2.  that the child be placed in interim society care and custody for a specified period not exceeding 12 months;

3.  that the child be placed in extended society care until the order is terminated under section 116 or expires under section 123;

4.  that the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months; or,

5.  that one or more persons be granted custody of the child, with the consent of the person or persons.

Sections 101(2), 101(3) and 101(4) of the CYFSA require the court to consider additional factors when determining the issue of placement. These factors include whether there are any less disruptive alternatives such as community or extended family placements. The court must also consider what efforts the society has made to assist the child before intervention.

The court’s decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.”

C.A.S v. S.W. & J.A., 2019 ONSC 1575 (CanLII) at 23-29

“It is trite that a party appearing before the court without notice to the other side has a positive duty to place all material facts before the court, even those facts which are contrary to the parties’ interest, failing which that order may be set aside: see Cadas v. Cadas, [2013] O.J. No. 2054 (S.C.J.).   The rationale behind this is clear:  the other side is not present to provide both sides of the story and the court therefore relies solely upon the veracity of the claimant’s materials.  This is especially important at present when the entire court file is not available to the Justice considering the matter.  It is important that the court receive accurate information even where the responding party is not served so that a fair and reasonable order can be made by the court, particularly if it involves the best interests of a child.”

Little v. Cooper, 2020 ONSC 2023 (CanLII) at 9

“This is what the court said I was earning then.  This is what I say I’m earning now.”

At the risk of oversimplifying, that’s the analysis many support payors provide on motions to change, where they gloss over – or ignore – the reasons why income had to be imputed to them in the first place.

Does “imputed income” mean anything if, on a motion to change, a payor can simply rely on his current line 150 income?

…

The starting point for any motion to change support is that the party seeking the change must establish that some important facts or circumstances have changed since the date the order was made.  A “material change in circumstances” must be established.  This generally entails some new facts or circumstances which, if known at the time, would likely have resulted in different terms in the order. 

Quite often, motions to change can entail complex and countervailing allegations that more than one thing has changed.  Entitlement, need, and ability to pay can all get thrown into the mix.

But almost invariably, an alleged change with respect to the payor’s income becomes a central issue.  Often it is the only real issue.  Simplistically, this part of the analysis might be summarized:

a.      What was the payor earning then?

b.      What is the payor earning now?

c.      When did the payor’s income change – and why?

The first question – “what was the payor earning then?” – requires a fundamental (and often overlooked) determination:

a.  Was the support order based upon the court accepting the payor’s “declared” income? 

Or,

b.  Was the support order based upon the court “imputing” income to the payor?

This preliminary determination is vital to an analysis of whether there has been a material change in circumstances relating to ability to pay.  It will affect the onus on the moving party.  It will prescribe what new or changed facts the party will have to establish, to convince the court that support should be changed.

If support was initially calculated based on the court’s acceptance of a payor’s “declared” income, then changes in declared income in subsequent years may be persuasive.  If the court was prepared to rely on things like T4 slips and tax returns when it made the original order, T4 slips and tax returns for subsequent years may be sufficient evidence of changed circumstances.  This of course would be subject to other considerations, such as the possibility that employment levels or income were deliberately manipulated by the payor.

But if the original support order was based upon “imputed” income, a more comprehensive analysis is required on a motion to change.  The court must consider:

a.  Why did income have to be imputed in the first instance?  Have those circumstances changed?  Is it still appropriate or necessary to impute income, to achieve a fair result?

b.  How exactly did the court quantify the imputed income?  What were the calculations, and are they still applicable?”

Trang v. Trang, 2013 ONSC 1980 (CanLII) at 1-3, 40-46

“In staying the writ of execution, the trial judge referred to provisions of the FLA, in particular ss. 21 and 23.  Subsections 21(1),(2) and 23(d) of the FLA provide as follows:

21(1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,

(a) the other spouse joins in the instrument or consents to the transaction;

(b) the other spouse has released all rights under this Part by a separation agreement;

(c) a court order has authorized the transaction or has released the property from the application of this Part; or

(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.

(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith, and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.

…

23. The court may, on the application of a spouse or person having an interest in property, by order,

…

(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate.

Subsection 21(1) of the FLA applies to dispositions and encumbrances made by a spouse without the consent of the other spouse.

The term “encumbrance” may have different meanings, depending on the context. As used in the FLA, “encumbrance” has been interpreted by this court to include “a burden on property, a claim, a lien or liability attached to the property”, but to require more than simply incurring a debt or entering into a loan agreement: Bank of Montreal v. Bray (1997), 1997 CanLII 545 (ON CA), 36 O.R. (3d) 99 (C.A.), at pp. 113-114.

It is beyond the scope of this appeal to fully explore the extent of the rights a writ of execution affords a judgment creditor when the judgment debtor holds title to land. It is sufficient to say that the writ provides an enforcement mechanism, binding the land against which it is issued once the sheriff has complied with the statutory obligations listed at s. 136(1) of the Land Titles Act, R.S.O. 1990, c. L.5: Land Titles Act, s. 136(2); Execution Act, R.S.O. 1990, c. E.24, s. 10(1). A writ of execution permits the judgment creditor to seize and sell the property: Execution Act, s. 9(1). While some consider that, from a practical perspective, an execution, in effect, “creates a lien against title to land” (see e.g. Marguerite E. Moore, Title Searching and Conveyancing in Ontario, 7th ed. (Toronto: LexisNexis, 2017), at c.12 (QL)), the lien is not an interest in land per se but rather in the proceeds of sale of the debtor’s interest in such lands: see Ferrier v. Civiero (2001), 2001 CanLII 5158 (ON CA), 147 O.A.C. 196 (C.A.), at para. 8 (dealing with the sheriff’s application for partition of property jointly held); Ferrier v. Wellington (County) Sheriff (2003), 40 C.P.C. (5th) 344 (Ont. S.C.), at para. 45 (upholding an order setting aside a certificate of pending litigation against the same property).”

         Peerenboom v. Peerenboom, 2020 ONCA 240 (CanLII) at 20-23

“Having courts open to the public in order to resolve their disputes is a bedrock requirement of a democratic society. However, courts and government, even in ordinary times, have had to enact rules that set out when and in what manner the public may have access to the courts. They do so in order to ensure that courts and litigants are not overwhelmed by disproportionate litigation, that lawsuits proceed in a just, proportionate and efficient fashion, and that the court’s resources are open to all.

The Family Law Rules (“FLR”) are guided by the primary objective of dealing with cases justly, both procedurally and substantively (r. 2(2)). They set out requirements for the orderly determination of family law cases. The FLR distinguish between the majority of matters that can be heard in the ordinary course from those exceptional ones that require immediate attention because of urgency and hardship.

Ordinarily, a party seeking to bring a family law motion must meet a number of preconditions:

1. 1. 1. 1. The motion must be preceded by a family conference on the substantive issues in the case (r. 14(4). However under r. 14(4.1), the court can dispense with that condition if it finds that there is hardship or urgency.
         2. The parties must first attend a Mandatory Information Conference in cases dealing with net family property, the matrimonial home, support and a restraining order (r. 8.1 (1), (4), and (7)). However  the court can obviate that requirement if it finds “… urgency or hardship or for some other reason in the interest of justice.” (r. 8.1(8)).
         3. The motion materials must be served on all other parties to the motion at least six days prior to the date that the motion is to be heard (r. 14(11)(a)). The parties to the motion must also confer or attempt to confer orally or in writing about the issues in dispute in the motion (r. 14(11)(c)). However under r. 14(12) a motion may be made without notice if:
      2. 1. 1. 1. a)the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
               2. …
               3. (d) service of a notice of motion would probably have serious consequences.

1. 1. 1. 4. If an order is made on a motion heard without notice, the matter must return before the court, and if possible, the same judge, within 14 days.

The Oxford Canadian Dictionary defines the term “urgent” as:

1.demanding or requiring immediate action or attention; pressing (an urgent need for help). 2. expressing a need for prompt action or attention; insistent (an urgent call for help).

The test of urgency that allows a party to avoid a case conference before bringing a motion is set out in Rosen v Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No 62 (S.C.J.). There, Wildman J. adopted this description of urgency set out by Belch J. in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.):

…  an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.” [Emphasis added]

In Rosen, Wildman J. sets out the two key steps that must be taken to allow an urgent motion to be heard before a case conference. They are:

• • • • • • determining the availability of conference dates, and
          • counsel/parties conferring in an attempt to arrive at a short term resolution before the matter comes to court.”

            Thomas v. Wohleber, 2020 ONSC 1965 (CanLII) at 24-29