Author: dawi

“Shirley wants Galo to produce “full financial disclosure” from his wife because she believes that Galo’s wife is secretly holding Galo’s assets and is colluding with Galo who is attempting to evade paying spousal support. Shirley also wants all of Galo’s income tax returns and Notice of Assessment from 2004 to date so that she can calculate the annual spousal support increases that were not paid.

The request for extensive disclosure and a valuation is denied. My reasons follow.

The request for this disclosure is premised on mere speculation and is unreasonable.

In his sworn financial statement, Galo disclosed his wife’s income and their equal sharing of expenses. This level of disclosure from a new partner is typically sufficient (as in this case), to address the financial circumstances of a payor or payee, who has a new partner. There is no right to disclosure beyond these essential facts.

A former spouse is not entitled to the “full financial picture” of a spouse’s new partner by right. Such disclosure would be extensive and intrusive. As Justice Kristjanson stated in Politis v. Politis, 2018 ONSC 323 at para. 17:

Compelling the production of personal income, asset and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding, and any production order carefully scrutinized.”

                  Angulo v. Angulo, 2019 ONSC 1456 (CanLII) at 53-57

“However, the court has no jurisdiction to make a refraining order where Mr. Sherwood has received a Final Notice, as opposed to a First Notice.  Under section 35 of the Family Responsibility and Support Arrears Enforcement Act, S.O., 1996, c. 31, as amended, a payor may make a motion for a refraining order when served with a First Notice. Under section 35(10), a court may make a refraining order only before the 30-day period if the First Notice expires. There is no provision for the court making a refraining order after that 30-day period.”

         Young v. Sherwood, 2020 ONSC 2038 (CanLII) at 10

“In R. v. Campbell, 1999 CanLII 676 (SCC), [1999]1 S.C.R. 565, 43 O.R. (3d) 256, at para. 49, the Supreme Court of Canada described solicitor-client privilege as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or the legal adviser, exception the protection be waived.

In R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 36, Arbour J. underscored the importance of solicitor-client privilege, finding that it is fundamentally important to our judicial system, and concluding that it “must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis”.

Solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result: Descôteux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, 44 N.R. 462, at para. 27; Biehl v. Strang, 2011 BCSC 213, [2011] B.C.J. No. 274, at para. 39.

In Biehl, at para. 39, the court set out the principles applicable to waiver of solicitor-client privilege, including that waiver of solicitor-client privilege may occur in the absence of an intention to waive, where fairness and consistency require it. Waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.

A party will waive the protection of solicitor-client privilege when it voluntarily injects into the proceeding the question of its state of mind, and, in doing so, uses as a reason for its conduct the legal advice that it has received: Biehl, at para. 39.

To displace solicitor-client privilege, there must be an affirmative allegation which puts the party’s state of mind in issue: Biehl, at para. 39.

In Benson v. Kitt, 2018 ONSC 7552, at para. 16, the court held that a deemed waiver and an obligation to disclose a privileged communication requires two elements: (i) the presence or absence of legal advice must be relevant and material to a claim or defence; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence.

Privilege can be waived expressly, inferentially or by conduct: Biehl, at para. 42. A witness can implicitly waive privilege through their conduct including by putting the legal advice they received in issue, or by testifying about privileged communications. The guiding principles in an enquiry about whether privilege has been waived must be fairness and consistency: Spicer v. Spicer, 2015 ONSC 4175, at para. 13.

The disclosure of receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. The question is whether the party disclosing the legal advice has opened an inquiry into whether the legal advice effected his state of mind. In the majority of cases, placing state of mind at issue will not amount to waiver. However, where a party has placed its state of mind at issue and given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained: Spicer, at paras. 13-15.”

            Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 12-20

“To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.

Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada’s Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:

[There should be] a process that offers no legal confirmation of a spouse’s contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations—not dissolution, not financial advantage, not a privileged position vis-à-vis the children.

In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the “undesirability of provoking suits within the family circle.” As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved—especially to the welfare of the child—and will invite a flood of cases. See also Louie v. Lastman (2001), 2001 CanLII 28066 (ON SC), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed (2002), 61 O.R. (3d) 459 (C.A.), and Saul v. Himel (1994), 1994 CanLII 18262 (ON SC), 9 R.F.L. (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 1996 CanLII 10207 (ON CA), 22 R.F.L. (4th) 226 (Ont. C.A.).

Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that “the legislature intended to devise a comprehensive scheme” that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.

When a couple’s dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. There is a corresponding obligation “placed equally upon both parents” to financially support the child: Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has confirmed that:

the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 208).

The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

It would be contrary to the spirit, purpose and policy reflected in Ontario’s no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.

The appellant asserts that he accepts and has complied with his statutory duty to pay child support. Nevertheless, the appellant seeks to recover in excess of $4 million in damages from the child’s mother in compensation for losses flowing from the child’s birth and his responsibilities toward that child. In the circumstances of this case, to allow the appellant’s claim would, in effect, be to allow the appellant to circumvent the equal obligations to the child imposed on parents by law—obligations that are imposed without regard to fault or intention.

Little would distinguish this proposed claim from claims other parents may decide to bring against their former spouses or sexual partners seeking compensation for the burdens imposed on them by the birth of an unwanted child, where it is claimed that the child’s conception was the result of a misrepresentation, duress, or even the negligence of the former spouse or sexual partner with respect to matters such as fertility or contraceptive use or misuse. Such actions would engender disharmony between mothers and fathers and would be contrary to the spirit of this province’s family law legislation.

…

For these reasons, as a matter of legal policy the alleged damages should not be recoverable in tort. Therefore, this is not the kind of novel claim that ought to be allowed to proceed to a protracted and expensive trial: see Arora v. Whirlpool Canada LP, 2013 ONCA 657, [2013] 118 O.R. (3d) 113, at para. 94.”

         PP v. DD, 2017 ONCA 180 (CanLII) at 57-65, 68

“The order under appeal was made in the course of ongoing family law proceedings. The order requires that the appellant make certain payments, including monthly spousal and child support payments to the respondent.

Paragraph 7 of the order reads:

In the event that the Husband fails to comply with paragraph 5 above, the Wife may move without further notice to the Husband to strike his pleadings involving all financial issues between the parties.

The appellant appeals essentially on the ground that he genuinely cannot pay the amounts ordered and that the effect of para. 7 is to deny him any opportunity to participate any further in the ongoing proceedings. Counsel for the appellant refers to this as a “catch 22”.

The appellant’s credibility in this litigation has been the subject of adverse comment. His asserted impecuniosity is strongly challenged by the respondent. In any event, even if the appellant is impecunious, that fact does not assist in determining the appropriate appellate forum. We agree with counsel for the moving party that the terms of the order requiring payments towards spousal and child support are interlocutory. A term like para. 7, directed at the consequence of non-compliance with the order, cannot alter the nature of the order: see J.K. v. Ontario, 2017 ONCA 332, at para. 18.

The order is interlocutory. The appeal is quashed. We do not reach the motion for security for costs.”

        Benarroch v. Abitbol, 2018 ONCA 203 (CanLII) at 2-5

“Peters does not suggest that the trial judge erred in his articulation of the law. The Supreme Court of Canada set out the law on unjust enrichment arising from a common law relationship in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. The court: (i) determines if there has been an unjust enrichment, by determining whether the defendant has been enriched and the claimant has suffered a corresponding deprivation; if so then (ii) there must be no reason in law or justice for the defendant to keep the benefits conferred by the claimant.

If an unjust enrichment has been established, the concept of joint family venture comes into play when considering remedy. The Kerr v. Baranow factors to be considered in determining whether a joint family venture exists are:

•   Mutual effort – did the parties pool their efforts and work towards a common goal?

•   Economic integration – how extensively were the parties’ finances integrated?

•   Actual intent – did the parties intend to have their lives economically intertwined?

•   Priority of the family – to what extent did the parties give priority to the family in their decision making?”

Peters v. Swayze, 2018 ONCA 189 (CanLII) at 7-8

“In Corcios v. Burgos, 2011 ONSC 3326, Chappel J. adapted the D.B.S. principles to a motion to change a child support order where the payor requested a retroactive decrease in support or rescission of arrears. I find it hard to improve on the analysis set out at para. 55 of her reasons.  I adopt her analysis and summarize the key principles below.

First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24.  As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.”

Gray v. Rizzi, 2016 ONCA 152 (CanLII) at 55-59

“Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems.   Justice McSorley in Kennedy v. Hull, 2005 ONCJ 275 (Ont. C.J.) (CanLII) at paragraph 9 stated:

“The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required under Gordon v Goertz on the conflicting and incomplete affidavit evidence that is often available on interim motions.  The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.”

Justice Marshman in Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, stated that the following considerations apply to interim motions regarding mobility pending trial:

It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

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

2.  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.

3.  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.”

As stated in Kennedy v. Hull, where there is incomplete and/or conflicting evidence, courts are generally reluctant to sanction fundamental changes to a child’s lifestyle and circumstances on an interim basis.”

Araujo v. Sheinman, 2020 ONSC 1185 (CanLII) at 25-27

“As part of its case, the Society seeks to tender out-of-court statements made by the child to three child protection workers and to her counsellor.  Other statements made by the child will also be tendered as evidence of her state of mind under the recognized exception to the hearsay rule.  The introduction of the statements into evidence is not opposed by the mother or the OCL.  Admissibility is challenged by the father, at this point on whether the threshold necessity test has been met.

In R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related.  She states at para 49: 

“The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form.  The criterion of reliability is about ensuring the integrity of the trial process.  The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.”

 

Accordingly, while somewhat unusual to consider the threshold issues individually, all parties agreed that threshold reliability should be addressed subsequently.   

The Supreme Court of Canada articulated what is known as the principled exception to the rule against hearsay in the well-known case of Khan v. R., 1990 CanLII 77 (SCC), 1990 CarswellOnt 108. The first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph 31 in Khan, the Supreme Court said that,

“The inadmissibility of the child’s evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish requirement of necessity.”

 

In the Law of Evidence in Canada, third edition, Bryant, Lederman, Fuerst, the authors’ state at paragraph 6.96:

“Necessity relates to relevance and availability of evidence.  There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant’s attendance in court.”

Children’s Aid Society of Ottawa v. C.L., 2018 ONSC 1241 (CanLII) at 3-6

“Courts in this province have routinely referred to Walters (Re) and Ginn in deciding whether negotiations between spouses during a marriage breakdown have revealed an intention to mutually treat the interests in a matrimonial home as constituting a tenancy in common: see, e.g., McKee and National Trust Co. (Re) (1975), 1975 CanLII 442 (ON CA), 7 O.R. (2d) 614, [1975] O.J. No. 2234 (C.A.), at pp. 618-19 O.R.; Sampaio Estate v. Sampaio, 1992 CanLII 8603 (ON SCDC), [1992] O.J. No. 771, 90 D.L.R. (4th) 122 (Gen. Div.), at pp. 126-28 D.L.R.; Robichaud, at pp. 46-47 O.R.; Jurevicius v. Jurevicius, [2011] O.J. No. 698, 2011 ONSC 696 (S.C.J.), at paras. 21-22. Courts in other provinces have taken a similar approach in applying the course of dealing test in this context: see, e.g., Tessier Estate v. Tessier, [2001] S.J. No. 515, 2001 SKQB 399, 211 Sask. R. 50 (Q.B.), at para. 12; Lam v. Le Estate, [2002] M.J. No. 35, 2002 MBQB 31, 25 R.F.L (5th) 72, at paras. 18-20; [page255] Davison v. Davison Estate, [2009] M.J. No. 340, 2009 MBCA 100, 251 Man. R. (2d) 1 (C.A.), at para. 4.

However, the British Columbia Court of Appeal has framed the course of dealing test somewhat differently than have courts in Ontario and elsewhere in Canada. In Tompkins Estate, the court considered the meaning of the course of dealing test in the context of a marriage breakdown. Southin J.A., speaking for the court, expressed the view, at p. 199 D.L.R., that in articulating the third rule of severance in Williams v. Hensman, the vice-chancellor was “postulating a species of estoppel”. In her view, for severance to be established through a course of dealing, there must be evidence of detrimental reliance such as would ordinarily be required to invoke the doctrine of estoppel. Southin J.A. declared, at p. 199 D.L.R., that “in so far as the judgment in Ginn v. Armstrong . . . was founded on an application of the third category inconsistent with this judgment” — that is, that did not require evidence of detrimental reliance — “it can no longer be considered good law in this province”. 

Southin J.A. may have been correct in stating that the vice-chancellor applied the course of dealing test to what was, on the facts of Williams v. Hensman, an instance of estoppel. However, to the extent that Southin J.A. interprets rule 3 as a “species of estoppel” requiring proof of detrimental reliance, I cannot agree.

In describing the course of dealing test, the reasons of the vice-chancellor in Williams v. Hensman do not refer to the doctrine of estoppel, nor do his reasons invoke the concept of detrimental reliance. It is possible that Southin J.A. may have viewed the course of dealing test as a species of estoppel because both legal principles are designed to prevent unfairness or injustice as between the parties. However, the elements of each doctrine are different, as are the requirements of proof.

An estoppel may be established through evidence that one party made a representation, whether communicated expressly or through conduct, to another and that the other party relied on that representation to his or her detriment: see Ryan v. Moore, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, 2005 SCC 38, at paras. 67-69; Scotsburn Co-operative Services Ltd. v. WT Goodwin Ltd., 1985 CanLII 57 (SCC), [1985] 1 S.C.R. 54, [1985] S.C.J. No. 2, at pp. 65-66 S.C.R. Upon such facts being established, the doctrine of estoppel may be applied to prevent the party from resiling from his or her representation to prevent unfairness.

In contrast, a course of dealing that is sufficient to establish a severance of a joint tenancy requires that the co- owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held jointly. However, unlike in the case of an estoppel, the course of dealing test does not require proof that a party relied to his/her detriment on a representation that a co-owner no longer wants to hold the property jointly. The rationale for severing the joint tenancy relates to the inappropriateness of the right of survivorship in circumstances where the co-owners have mutually treated their interests in the property as being held in common. The rationale is not contingent on the fact that one party relied on the representation to his/her detriment. 

Indeed, a likely act of reliance in a course of dealing case would be the act of refraining from pursuing other methods of severance based on the understanding that the co-owners were mutually treating the property as a tenancy in common. However, it would be difficult to prove that the failure to pursue a different means of severance was attributable to reliance. Moreover, the challenge in proving reliance is significantly complicated by the fact that such evidence is unlikely to become relevant until after the death of the individual who is said to have relied on the representation.

In addition to generally disagreeing with Southin J.A.’s view in Tompkins that the course of dealing test is a form of estoppel requiring evidence of detrimental reliance, I respectfully cannot agree with Southin J.A.’s specific characterization of the third rule as requiring the presence of “facts which preclude one of the parties from asserting that there was no agreement” (at p. 199). Rule 3 does not require evidence of an agreement. As noted above, the English Court of Appeal concluded in Burgess that the presence of an agreement is not part of the analysis under rule 3. A request for severance in those circumstances would be dealt with under rule 2. Rule 3 relates more broadly to evidence disclosing a course of conduct indicating that the interests in the property were being held in common and not jointly.
(2) Applying the course of dealing test to the facts of this case, the application judge erred in applying the test to the evidence.”

Hansen Estate v. Hansen, 2012 ONCA 112 (CanLII) at 44-51