“A party will be deemed to have waived privilege when he or she makes their communication with a lawyer an issue in the proceeding. There is no express waiver in this case. 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: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 (SCJ) (CanLII) at paragraph 30.”
Author: dawi
December 16, 2020 – De-Anonymizing Parties’ Names & the CYFSA
“Should the names of parties in a civil decision be de-anonymized where doing so could identify parents and children involved in a child protection investigation?
The plaintiff, after protracted litigation, was ultimately successful in obtaining judgment against both defendants for making a false report about the plaintiff to the Kawartha Haliburton Children’s Aid Society. I found that the defendants conspired together to slander the plaintiff and intentionally inflict emotional distress upon him (AA v. BB and CC, 2018 ONSC 4173). During the trial, on December 4, 2017, I ordered that no information or evidence relating to the proceeding could be disclosed that could identify a child referred to in the evidence. The decision used initials to refer to the parties and children.
The plaintiff brings this motion seeking to amend have the judgment amended to replace the initials of the parties with their names. The plaintiff submits that s. 45 of the Child and Family Services Act, R.S.O. 1990, c. C.11, “the Act” (now s. 87 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, “the new Act”) does not apply to the judgment in this case, as the prohibition against publication or making public information in ss. 45(8) is limited by ss. 45(2) to hearings held under the Child Protection part of the Act.
On October 28, 2019, I ruled against the plaintiff. I held that prohibition contained in ss. 45(8) did apply to my judgment in this matter.
The relevant subsections of s. 45 read as follows (the wording has not changed in the new Act):
(2) This section applies to hearings held under this Part, except hearings under section 76 (child abuse register).
…
(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
The plaintiff argues that this case did not involve a “hearing” or a “proceeding” as those words are used in the Act. This case concerned a report that was false. The Society closed its file after its initial investigation. A proceeding was never commenced under the Act. A hearing was never held.
Section 85(3) makes contravention of 45(8) an offence. The prohibition is not discretionary. It is mandatory and cannot be waived M.(Y.) v. Beaman, 2016 ONSC 7118 at para.11).
The paramount purpose of the Act is stated in the very first paragraph:
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
I agree with the submission made by the Justice for Children and Youth. Section 45(8) must be interpreted in a way that gives full and meaningful effect to this paramount purpose, which must include the comprehensive protection of children’s privacy. Promoting “the best interests, protection and well being of children” does not provide for a balancing of interests where other parties interests are not aligned or may be in conflict with the best interests of an involved child.
Every child protection matter is concerned with the most intimate and private details of a child’s life. At the outset, a child protection worker will gather and record this information from many sources, often including the child himself or herself. A strict interpretation of section 48, limiting its application to a “proceeding” or “hearing” as it might be narrowly construed, would frustrate the paramount purpose of the Act.
A child’s privacy interest is protected by s. 45 (now s. 87) at every stage of a child protection matter, including the initial report, the subsequent investigation and any hearing. I can see no exception to the prohibitions contained therein.”
December 15, 2020 – Judicial Impartiality
“There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The long-standing test is this: what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude: see Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 131.
This two-fold objective test is based on reasonableness: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable. The reasonable person must be informed and know the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based. A mere suspicion is not enough.
This stringent test for a party alleging apprehension of bias is grounded in the need to preserve the integrity of the judicial system. It also recognizes the need to maintain public confidence in the judicial system. The analysis contemplates a hypothetical observer who is informed of all the facts. It does not depend upon the views or conclusions of the litigant.”
December 14, 2020 – Notional Disposition Costs
“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. (6th) 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. (6th) 271 (Ont, C.A.).”
Lambert v. Peachman, 2017 ONSC 7450 (CanLII) at 21(x)(a)-(c)
December 11, 2020 – Everything You Wanted to Know About Pleadings
“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.)….”
December 10, 2020 – Self-Sufficiency
“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.”
December 9, 2020 – Police Enforcement Clauses
“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.
December 8, 2020 – Costs, Generally & Simply
“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.”
December 7, 2020 – The Test For A Stay Pending Appeal (Non-Financial)
“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.”
December 4, 2020 – Stays Upon Appeal (Financial Orders)
“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.”