Author: dawi

“The four-part test for admitting fresh evidence on appeal is set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775:

▪   The evidence should not be admitted if, through reasonable due diligence, it could have been adduced at trial.

▪   The evidence must be relevant to a decisive or potentially decisive issue.

▪   The evidence must be credible, or reasonably capable of belief.

▪   The evidence must be such that, if believed and considered along with all the other evidence, it could have affected the result at trial.”

         Bemrose v. Fetter, 2007 ONCA 637 (CanLII) at 52

“There is no statutory limitation period in Ontario for equitable claims such as rescission. However, equitable claims are to be brought promptly. As Lord Blackburn wrote in Erlanger v. New Sombrero Phosphate Co. (1878), 3 A.C. 1218 at p. 1279, 39 L.T. 269 (H.L.), “a Court of Equity requires that those who come to it to ask its active interposition to give them relief, should use due diligence, after there has been such notice or knowledge as to make it inequitable to lie by”. This doctrine has given rise to the equitable defence of laches.

La Forest J. considered the problem of delay in bringing an equitable claim in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289. After referring to several authorities, he summarized the laches doctrine as follows at pp. 77-78 S.C.R.:

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine [emphasis added].

This case turns on whether the appellant’s delay constituted acquiescence, which La Forest J. explained at p. 78 S.C.R.: “after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived”. Knowledge is the critical element. La Forest J. continued at pp. 78-79 S.C.R.:

It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim . . . However, this Court has held that knowledge of one’s claim is to be measured by an objective standard . . . [T]he question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim.”

Louie v. Lastman (No. 2), 2002 CanLII 45061 (ON CA) at 14-16

“When child support is calculated under s. 4(b), the express wording of s. 4(b)(i) does not permit deviation from the Guideline figures for the first $150,000 of the paying parent’s income.  Of course, the application of other sections of the Guidelines, such as the s. 10 undue hardship provisions and the s. 7 special expense provisions, may subsequently permit deviation from this figure.  For that portion of the paying parent’s income over $150,000, the strict Guidelines amount is immediately open to review; under s. 4(b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses.  Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts.  I agree with Abella J.A. that the words “Presumptive Rule” found in the marginal note beside s. 3 of the Guidelines are relevant in this regard.  Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate.  Counsel for the appellant conceded this point in oral argument.

The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence.  No unfavourable conclusions should be drawn from this decision.  Indeed, in some cases, such a party may not be able to provide relevant evidence.  Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party.  Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, 1997 CanLII 767 (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures.

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 42-43

“Where a court is asked to consider whether a child should change schools, the following considerations apply:

a. The best interests of the child governs the decision;

b. The parent suggesting the change must demonstrate that the change will be in the best interests of the child;

c. Factors which may be taken into account include a review of how many years the child has been at the current school; whether there is any prospect of one of the parties moving in the near future; whether a move will mean new child care providers or other unsettling features; any problems with the present school or proposed school; and the child’s views and preferences if they can be determined.

While the case before me is not pleaded as a mobility case – the determination of the issue necessitates findings that may directly affect mobility and existing custody and parenting arrangements.

The Supreme Court of Canada in Gordon v. Goertz [1996] 2 S.C.R. is the leading authority in mobility cases.

The focus of any motion concerning choice of school and mobility is the best interests of the child and not the interest and rights of the parents. Additionally, the following considerations are paramount to any decision rendered:

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. Disruption to the child of a change in custody; and

e. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.”

         Lackey v. Treiguts, 2017 ONSC 5493 (CanLII) at 8-11

“In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 (Ont. C.J.) (CanLII), Justice Stanley Sherr provided a neat synthesis of the Bradshaw reorganization of hearsay statements. At paragraph 16 of G.S., Justice Sherr stated:

The following statements made in Bradshaw are pertinent to the hearsay analysis:

a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. – Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. – Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30) – Bradshaw at para. 27.

d) Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 55). – Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other”. – Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). – Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. – Bradshaw at para. 41.

Bradshaw, supra, makes it clear that in determining whether a statement is inherently trustworthy, the trial judge need not conclude that reliability be established with absolute certainty. However, the threshold reliability must be sufficiently high to overcome the dangers ordinarily presented by hearsay evidence.¹⁰

The essence of Khelawon, supra, and Bradshaw, supra, and the principled approach to admitting otherwise inadmissible hearsay evidence is that hearsay evidence will be admitted if it has been made in circumstances which substantially negate the possibility that the declarant was untruthful or mistaken. The circumstances must be sufficiently trustworthy such that even a sceptical caution would look at the statement as being trustworthy; and so trustworthy that it is unlikely that evidence would change even under cross-examination.” 

Macarthur v. Remani-Macarthur, 2018 ONCJ 637 (CanLII) at 59-61

“The Court of Appeal for Ontario, in Manchanda, supra [2016 ONCA 909] teaches lower courts that willful non-compliance must be considered egregious and exceptional.  Although that case dealt with financial disclosure, there is nothing to suggest that willful non-compliance with support and/or costs orders should be treated differently.  In Holly v. Greco, 2019 ONCA 464, the Court of Appeal for Ontario endorsed this analysis for a  child support order, upholding the motion judge’s analysis in striking the appellant’s answer and claim on the basis that the appellant’s failure to pay child support was “flagrant and willful” and that this conduct was one of the exceptional and egregious cases that fit within the test for striking pleadings:  paras. 7 and 10.

…

Considering all the evidence on the motion, the respondent’s failure to comply with the orders rises above fecklessness.  I find that the respondent’s conduct is contumacious and that his failure to comply with the two orders is willful, deliberate and flagrant.

In considering the sanction to be imposed having regard to r. 1(8) and (8.4), I find that the appropriate consequence is to strike the respondent’s answer, but with an opportunity to avoid that consequence by paying all arrears within a specified time.  The only exception would be the preservation of the respondent’s claim for divorce.”

Hall v. Hall, 2019 ONSC 5195 (CanLII) at 59, 61-62

“Where a married or formerly married spouse seeks spousal support in the face of a separation agreement waiving such support, either or both of two statutes may be engaged: the provincial FLA (Family Law Act), which addresses domestic contracts as a provincial property and civil rights matter; and the federal DA (Divorce Act), which confers authority on the court to award support as corollary relief to a divorce: Myers v. Hawco, 2005 NLCA 74, 252 Nfld & PEIR 121, at para. 15; Zimmerman v. Shannon, 2006 BCCA 499, 62 B.C.L.R. (4th) 255, at para. 36.

Where a spouse seeks to set aside provisions in a separation agreement regarding the spouses’ property, s. 56(4) of the FLA is engaged.  Section 56(4) of the FLA provides that,

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Section 33(4) of the FLA, which was neither argued nor considered by the trial judge in this case, provides additional circumstances under which the court may set aside a provision for, or waiver of, support:  where the waiver leads to unconscionable circumstances, the waiver is by or on behalf of a dependant who qualifies for support out of a public allowance, or if there is a default in a payment under the contract at the time the application is made.

The DA, for its part, does not confer authority to set aside agreements per se, but does confer authority to make spousal support orders as corollary relief to a divorce. Under s. 15.2 of the DA, as interpreted in Miglin, a valid separation agreement is but one factor to consider in determining whether the court should exercise its authority to award corollary spousal support:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

…

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a)    the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c)    any order, agreement or arrangement relating to support of either spouse.

Section 56(4) of the FLA deals with intrinsic flaws in the formation of a contract that nullify the apparent consent between the parties and invalidate the agreement, allowing a court to set aside the contract. Section 15.2 of the DA permits a court, looking at both the formation of the contract and all the circumstances at the time of the application, to override the support provisions of an agreement and order support contrary to the agreement: see James McLeod’s annotation on Murray v. Murray (2003), 2003 CanLII 64299 (ON SC), 66 O.R. (3d) 540 (S.C.) (W.L.), rev’d (2005) 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147 (C.A.). 

In this case, since the father sought relief under both the FLA and the DA, the trial judge appropriately conducted both analyses.”

Faiello v. Faiello, 2019 ONCA 710 (CanLII) at 14-18

“There is no dispute about the law of civil contempt, which is comprehensively set out by Justice Chappel in Jackson v. Jackson, 2016 ONSC 3466.  For a summary I adopt the following comments by Justice Charney in Kokaliaris v. Palantza, 2016 ONSC 198 (paragraphs 24 to 26 combined, citations omitted):

Contempt is a serious remedy and is not to be granted lightly.  It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. …  [T]he civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party.  Any doubt must be exercised in favour of the person alleged to be in breach of the order.  … [T]o make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt: (a) the order must be clear and not subject to different interpretations; (b) the acts [or failures to act] stated to constitute the contempt must be wilful [also referred to as “intentional” or “deliberate” in the caselaw] rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt.  Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.  Notwithstanding the court’s reluctance to exercise it[s] contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.

It goes without saying that the purpose of a Notice of Motion, critical for the principles of natural justice, is to give the opposite party and the court notice of what relief the moving party is seeking: Kenora-Patricia Child and Family Services v. M.(A.), 2004 CanLII 56654 (ON SC), [2004] O.J. No. 673 at paragraph 44.  This is especially important for a contempt motion, and it has therefore long been held that “[t]he notice of motion must specify the person against whom the order is sought, and state the date, place, and other facts sufficient to identify the particular acts alleged to constitute contempt”: Toronto Transit Commission v. Ryan, 1998 CanLII 14635 (ON SC), [1998] O.J. No. 51 at paragraph 29.

The requirement that the Notice of Motion for contempt contain the clearly articulated particulars of the charge was relaxed somewhat in the case of Follows v. Follows, 1998 CanLII 4629 (ON CA), [1998] O.J. No. 3652 (C.A.) at paragraph 3.  It created what has been described as a “very limited exception” where the particulars are readily ascertainable from a single paragraph in the supporting affidavit and no objection is raised: Rocca Dickson Andreis Inc. v. Andreis, [2013] O.J. No. 4071 (Div. Ct.) at paragraph 21.  Since the Follows case, the importance of strict compliance with formal procedures has been reemphasized in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), [2009] O.J. No. 356 (Ont. C.A.), and Morasse v. Nadeau-Dubois, 2016 SCC 44.”

Newstead v. Hachey, 2019 ONSC 5213 (CanLII) at 2-4

“The legal principles applicable to interim motions on mobility are well settled.  In Plumley v. Plumley, 1999 CanLII 13990, the court stated at par. 7:

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 which might dictate that a justice 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.

In Datars v. Graham, 2007 CanLII 34430, 41 R.L.F. (6th) 51, the court stated at par. 16:

The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, 2006 ONCJ 490 (Ont. C.J.); Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (Ont. C.J.).”

Geoffrion v. Belanger, 2017 ONSC 5349 (CanLII) at 4-5

“It is accepted that a judge is permitted to ask questions in order to clarify evidence that has been given by a witness or witnesses. The appellant submitted that the trial judge here went well beyond those well-established bounds. In questioning Dr. Pickup and Dr. Jaffe, the trial judge appeared to make negative findings of credibility against the wife, and put those findings to the witnesses by way of cross-examination. In the course of questioning these witnesses, he also appeared to be filling holes in the husband’s testimony.

It is crucial for trial judges to maintain their independence and impartiality throughout; the process depends upon it. When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging.”

Clayson-Martin v. Martin, 2015 ONCA 596 (CanLII) at 107-108