“The steps to be taken when s. 5(6) is engaged are well- established. The court must first ascertain the net family property of each spouse by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally — and before making an order under s. 5(1) — the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paras. 5(6)(a) through (h): see Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4, at pp. 93-94 S.C.R.; Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513, [1991] O.J. No. 788 (C.A.), at pp. 525-26O.R.; Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491, [2001] O.J. No. 3282 (C.A.), at para. 39; LeVan v. LeVan (2006), 2006 CanLII 31020 (ON SC), 82 O.R. (3d) 1, [2006] O.J. No. 3584 (S.C.J.).”
Author: dawi
February 3, 2021 – Police Enforcement Clauses
“The Chief of Police submitted that “police officers are independent officers who retain discretion to execute their duties in a manner that is in compliance with the law.” Further, the Chief argued that it was incongruous that police be required to “take a youth from a situation that has not been shown to be unsafe, and put him in a situation where he has demonstrated a willingness to jeopardize his own safety in order to escape,” and this was “divergent with the common law duties of a police officer, which include the preservation of the peace, the prevention of crime, and the protection of life and property.”.
I agree that police have a general discretion in how they go about their duties, and that their discretion should be informed by their general, common law duties. That discretion would logically come into play in determining what is “reasonably able to be done” in locating a child, for example (CLRA, section 36(4)).
However, where a statute and an order confer a particular duty on police – a duty to do “all things reasonably able to be done to locate, apprehend and deliver the child” – it must be only in exceptional cases that they decline to carry out that particular duty, and they must promptly seek by proper means to be relieved of that duty. It is not necessary for me to decide whether everything was done as it should have been in the days and weeks immediately following the making of the order in question before me. Certainly the police had evidence that the younger son was willing to put himself and others at physical risk, rather than acquiesce to being in his father’s care. The events in this case bring to the fore how important it is for parties and courts to consider carefully before adding a police enforcement clause to a custody or access order, and to have the police enforcement provision reviewed promptly when difficulties arise.”
February 2, 2021 – The Confusing Landscape of Appeal Routes
“A first appeal from a final custody order of the Family Court will lie to the Divisional Court and a second appeal, with leave, to the Ontario Court of Appeal. The appeal of the exact same order made at the Ontario Court of Justice will lie to the Superior Court and then to the Court of Appeal. If the order is made at the Superior Court of Justice the first appeal will be directly to the Court of Appeal as of right.
The inconsistency in current appeal routes can be confusing for the public, for counsel and for institutional litigants. It can also create an inequality in access to justice between litigants whose disputes at first instance are heard in provincial courts versus superior courts – the former must incur the costs and delays of two appeals in order to reach the Court of Appeal while the latter must incur the cost and delay of only one. The inconsistency may also encourage forum shopping among litigants. In addition, under the current appeal route structure, the allocation of time dedicated to the development of the jurisprudence through judicial decisions is unequal, with a greater focus and opportunity for clarification of the law for cases that have an appeal route directly to the Court of Appeal. For example, given current appeal routes, fewer decisions involving child protection matters that are heard at first instance at the Ontario Court of Justice will receive Court of Appeal consideration because they must first be appealed to the Superior Court of Justice. On the other hand, cases involving the division of property are appealed from the Superior Court of Justice directly to the Court of Appeal, resulting in a higher focus on family law property divisions than on child protection issues at the Court of Appeal.
The arbitrariness of geographical limitations is accordingly a serious concern, but one that extends far beyond the scope of this case. Legislative reform in this area would be welcome. In particular, it seems to me that, given the tremendous importance of custody matters and the desirability of resolving these matters quickly and finally, careful consideration should be given to providing a single direct appeal to the Court of Appeal, no matter which court makes the initial custody decision.”
Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII) at 34-36
February 1, 2021 – Withdrawing An Admission
“An admission shall be not withdrawn without the consent of the other party or permission from the court: Rule 22(5) Family Law Rules, O. Reg. 114/99. An admission is a concession of an important fact and is meant to stand unless the test for withdrawing it is met or the opposing party agrees that they will suffer no prejudice by the withdrawal and accordingly consents: Vaseloff v. Leo, 2013 ONSC 5270 (CanLII), at para. 8. A court may permit the withdrawal of an admission when it determines that it is in the interest of justice to do so: Serra v. Serra, 2009 ONCA 105 (CanLII), 93 O.R. (3d) 161.”
January 29, 2021 – More on Litigation Privilege
“Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation. As explained by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 S.C.R. 319, at para. 27, the object of litigation privilege “is to ensure the efficacy of the adversarial process”, and “to achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.” These concerns are important in the context of the preparation of expert witnesses and their reports.
In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation.” The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.
Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.
Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings.”
January 28, 2021 – Validity of Marriage
“For a marriage to be valid there are two elements that must exist:
(a) “formal validity” relating to the procedure and rules in the place where the parties were married; and,
(b) “essential validity” relating to the capacity of the parties as determined by the laws where they were domiciled before marriage.
The latter element is related to the “good faith” provision of s. 31 of the Marriage Act which can save the formal validity of a marriage if the following four elements apply:
(a) The marriage must have been solemnized in good faith;
(b) The marriage must have been intended to be in compliance with the Marriage Act;
(c) Neither party was under a legal disqualification to contract marriage; and,
(d) The parties must have lived together and cohabited as a married couple after solemnization.”
January 27, 2021 – Difference Between Retroactive Child & Spousal Support
“There is a qualitative difference between child support and spousal support which is reflected in the authorities, especially when dealing with retroactive support. The former is the right of the child, and unreasonable delay in enforcing that obligation is merely a factor to consider in the exercise of the court’s discretion: D.B.S. v S.R.G, 2006 SCC 37 (CanLII), at para. 104. There is no automatic entitlement to the latter. Retroactive spousal support claims require a more principled assessment of the evidence in light of the differences underpinning child and spousal support principles and objectives: Kerr v. Baranow, 2011 SCC 10 (CanLII), at para. 207.”
Janaury 26, 2021 – Being Under a Parent’s “Charge”
“The definition of “child of the marriage”, under s. 2(1)(b) of the [Divorce] Act, includes a child who “… is the age of majority or over and under their [her parents’] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Victoria was 23½ years old at the time that this Application was commenced. Accordingly, the onus is on Heidi to establish that Victoria was under parents’ charge and unable to withdraw from their charge or to obtain the necessaries of life: Ethier v. Skrudland, 2011 SKCA 17, paras. 17-18.
Residency is usually associated with a child being under a parent’s charge. In Tapson v. Tapson, 1969 CanLII 541 (ON CA), [1970] 1 O.R. 521 (C.A.) Laskin, J.A., as he then was, stated that an adult child is under her parents’ charge if a parent has assumed the care and maintenance of the child in the parent’s premises. He stated, at paras. 5 and 6, that:
… I am prepared to read the phrase, ‘under their charge’ broadly as meaning simply that the parent has assumed the care and maintenance of the child in the parent’s premises.
… An order for maintenance or interim maintenance based on a child 16 years of age or over being in the charge of a parent assumes, of course, that the child is living with the parent in the parent’s care and to that extent, within the parent’s responsibility for maintenance. If it should prove to be the case that a child, having reached the age of 16, withdraws from a parental home and goes out to live by himself or by herself, other considerations will have intruded to make this provision probably no longer applicable.” [Emphasis added]
Economic dependence is the essential feature of whether a child is under a parent’s charge: See Hon. Justice David L. Corbett, Claudia Schmeing, 2011 30 CFLQ 165, Child Support for Estranged Adult Children — “Parent as Wallet” or “Can’t Buy Me Love”. Thus, a child that has left home because of conflict within the home nevertheless remains under his parents’ charge: Pound v. Pound [1987] B.C.J. No. 109 (C.A.).”
January 25, 2021 – Grandparents’ Rights
“Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 2001 CarswellOnt 537 remains the leading case on grandparent access in Ontario. In Chapman, the Ontario Court of Appeal held that in cases such as these, the question is not what is good for the grandparent, but what is in the best interests of the child. Further, the question is not what is theoretically in children’s best interests, but what is in the best interests of the particular child in the case at hand. Justice Abella cited Justice McLachlin in Gordon v. Goertz, 1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.) at 60, in which Justice McLachlin stated, “each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.”
In Chapman, the Ontario Court of Appeal held that where parents are “demonstrably attentive” to the needs of their children, it is parents, not grandparents, who have the right to decide the “extent and nature of the contact” with grandparents. See para. 22. In that case, where the court found that the disruption and stress of the grandmother’s insistent attempts to get access on her own terms was not in the children’s best interests, her application for access was denied.
The court stated that a child’s relationship with a grandparent “can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of extended family can be important for children.” The court held that when those relationships are imperilled arbitrarily, “the court may intervene to protect the continuation of the benefit of the family relationship.” See para. 19.
In Nichols v. Nichols, 2015 CarswellOnt 9262, Justice Stevenson summarized the impact of Chapman as follows: “…In the absence of any evidence that [the parents] are behaving in a way which demonstrated an inability to act in accordance with the best interests of [the child], their right to make decisions and judgments on [the child’s] behalf should be respected.” See para. 66.”
January 22, 2021 – Unconscionability in the Family Law Context
“Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context (Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295, at para. 43 [Brandsema]). The question to be asked is whether there were “any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation” (ibid, at para. 44).
Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of the mind, economically weaker or situationally weaker. Vulnerability may also arise due to a special relationship of trust and confidence (see Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at para. 33). However, the “mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties” (Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para. 82, [Miglin]).
In Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 at para. 12 (Ont. C.A.), the Ontario Court of Appeal states the question to be answered in determining unconscionability is whether there was inequality between the parties, or a preying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of the vulnerable. At para. 13 the Court notes it is: “not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability”.”