Author: dawi

“Notwithstanding the appellant’s claim that, on the basis of the proceedings and material before her, Van Melle J. could not and in fact did not make a finding of contempt, his position that the order under appeal is a final order rests on the assumption that it is, in substance if not in form, a contempt order.  He argues that Rule 31, which allows the court to impose a finding of contempt against a party in breach of an order, is the only provision of the Family Law Rules that allows for the imposition of a fine or monetary penalty.  Because a fine was imposed by Van Melle J., the order must therefore be a contempt order.

A finding that a party is in contempt of court “is a serious matter that is quasi-criminal in nature”: Bell Express Vu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), at para. 20.  The significance of this is such that a contempt order is considered to be a final order, an appeal from which lies directly to this court: Bush v. Mereshensky (2007), 2007 ONCA 679 (CanLII), 43 R.F.L. (6th) 267 (Ont. C.A.), at para. 10.

However, the respondent argues that Van Melle J.’s order cannot be considered a contempt order.  A finding of contempt was not sought in any of the motions before Van Melle J. or Corbett J.  In any event, neither Van Melle J. nor Corbett J. addressed the issue of contempt or made findings in that regard.

The respondent submits that the authority for imposing a fine exists quite apart from the contempt provisions of the Family Law Rules. Specifically, she refers to three provisions of the Family Law Rules which she claims support her position that the court was entitled to make any order it considered appropriate in view of the appellant’s failure to obey Corbett J.’s disclosure order:

• • • Rule 1(8) provides that the court may, where an order has not been complied with, make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including …”
    •  Rule 14(23) provides that on a motion for failure to obey an order that was made on motion, the court may “in addition to any other remedy allowed under these rules,

…

(c) make any other order that is appropriate, including an order for costs.”

• • •  Rule 19(10) provides that the court may, on motion, make various orders where a party has failed to comply with an order to disclose documents.  Such orders include a contempt order, but also include “any other order that is appropriate.”

The respondent argues that any of these rules gave Corbett J. the necessary authority to order the appellant to pay a fine in the event that he failed to comply with the disclosure order and produce the required documents.  Van Melle J.’s order for payment of the fine did no more than apply the terms of Corbett J.’s order.  The respondent submits that no finding of contempt was sought or made and the order for the payment of the fine did not finally dispose of any issue in the proceedings.  I agree.”

Mantella v. Mantella, 2009 ONCA 194 (CanLII) at 16-21.

“That said, in my view, it would have been preferable to first establish whether there was any unjust enrichment before considering the possibility of a joint family venture. The joint family venture inquiry concerns remedy. In Martin v. Sansome, 2014 ONCA 14 (CanLII), at para. 52, this court set out the appropriate analysis for determining an unjust enrichment-based claim for an interest in property within the context of a domestic relationship and following the Supreme Court’s decision in Kerr v. Baranow:

1) Have the elements of unjust enrichment — enrichment and a corresponding deprivation in the absence of a juristic reason — been made out?;

2) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;

3) If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,

4) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?”

Reiter v. Hollub, 2017 ONCA 186 (CanLII) at 25-26

“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home. As a matter of general principle, while a matrimonial home occupies a special and separate place in the statutory scheme established by the Family Law Act, once the matrimonial home is ordered to be sold, each spouse is entitled to receive fair market value for his or her interest in it. See Batler v. Batler , supra.

In Dibattista (in trust) v. Menecola (1990), 1990 CanLII 6888 (ON CA), 75 O.R. (2d) 443, 74 D.L.R. (4th) 569 (C.A.), this court held that in proceedings taken under the Partition Act, neither party should be given a right of first refusal, if the property (held by the parties as tenants in common) were to be ordered to be sold. Brooke J.A. dealt with the right of first refusal issue, in this way, at p. 449 O.R., p. 575 D.L.R.:

Neither party can be given a right of first refusal. Both parties are free to bid at such sale and can be expected to act to protect their investment.

In my opinion, a right of first refusal, such as was granted to the respondent, is a substantive right. It is a right which has some clear, albeit difficult to quantify, economic value. It is a right which falls outside the boundaries of what is ancillary to, or what is reasonably necessary to implement the order for sale of the matrimonial home.

A right of first refusal will most often work to discourage other interested buyers. If a spouse is granted a right of first refusal, the effect of it is to remove that spouse from the competitive market for the matrimonial home. The existence of a right of first refusal distorts the market, because it provides a benefit to one party, which eliminates the need for that party to compete with any other interested purchaser. Finally, if the spouse with a right of first refusal is in possession, the existence of the right of first refusal will provide a disincentive to maintaining the property, so as to increase its value and saleability. I acknowledge that, in some degree, the same disincentive may operate if a spouse in possession, without a right of first refusal, wants to buy the matrimonial home. In my view the motions court judge erred in concluding that the right of first refusal would not prejudice Mrs. Martin.”

Martin v. Martin, 1992 CanLII 7402 (ON CA) at 28-31

“Section 18(2) of the Divorce Act provides that a court may make a provisional variation order in respect of a support order where:

(a) The respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) In the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [Emphasis added]

In Dent v. Flynn (2005), 2005 CanLII 14317 (ON SC), 15 R.F.L. (6th) 126 (Ont. S.C.J.) at para. 21, Ferrier J. summarized the requirements to be met before a provisional order may be made, as set out in Albinet v. Albinet, 2003 MBCA 22 (CanLII), 33 R.F.L. (5^th) 275, as follows:

(1) The respondent resides in a different province than the applicant;

(2) The respondent does not accept the jurisdiction of the court where the applicant resides;

(3) Both parties do not consent to proceed under s. 17.1 of the Divorce Act; and

(4) The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/confirmation procedure.

Here, the first criterion is met in that the parties reside in different provinces. I find that the fourth criterion is established in that Campbell J. was satisfied that the matter could be adequately determined through the two-stage process involving the issuance in the rendering court of a provisional order and its consideration for confirmation in the receiving court.

However, the record forwarded from the issuing court does not contain any evidence that the Respondent did not accept the jurisdiction of the Nova Scotia Court. Indeed, there is no evidence that she was served with process emanating from the Nova Scotia Court. Further, there is no evidence that the Respondent did not consent to the application of section 17.1 of the Divorce Act, which provides as follows:

Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

The party requesting the provisional order bears the onus of establishing that all four of the requirements of section 18(2) of the Divorce Act have been satisfied: Albinet; Wolch v. Wolch, 2006 MBCA 43 (CanLII), 26 R.F.L. (6th) 239 at paras. 14-15. Where all four requirements are not established, the provisional order cannot be rendered, and cannot be confirmed: Dent v. Flynn at para. 27.”

         Davidson v. Davidson, 2019 ONSC 6727 (CanLII) at 54-58

“There is no general discretion under the Family Law Act to redistribute property or alter ownership unless it is to satisfy an equalization payment: Buttar v. Buttar, [2013] O.J. No. 3725 (Ont. C.A.) at para. 53.”

Rebiere v. Rebiere, 2015 ONSC 1324 (CanLII) at 34

“Finding that the parties maintained two separate residences in Toronto is not the end of the inquiry as to whether they lived together.  In considering the flexible approach put forth by the Supreme Court of Canada in M. v. H., and in considering whether maintaining separate residences eliminates a party’s ability to be considered a spouse, Justice Karakatsanis, in Campbell v. Szoke (referred to above) [2003 CanLII 2291 (ONSC)] states [at para 52]:

The fact that the parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children: Thauevette v. Maylon (1996), 1996 CanLII 8090 (ON SC), 23 R.F.L. (4^th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under section 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent, [2000] O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate, [1993] O.J. no. 1731 at para. 21 (Ont. Gen. Div.).”

         Climans v. Latner, 2019 ONSC 1311 (CanLII) at 122

“The test for dismissing an appeal for delay in civil actions was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA (CanLII), at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

An added element in family cases involving children is the effect of delay on the best interests of the child. Stability and finality in custody issues are very important for children, especially younger children, and this too must be taken into account is assessing delay:  see D.G. v. A.F, 2014 ONCA 436 (CanLII), at paras. 17, 33-34, citing the Children’s Law Reform Act, R.S.O. 1990 c. C.12, s. 19(a), and Van de Perre v. Edwards, 2001 SCC 60 (CanLII), [2001] 2 S.C.R. 1014, at para. 13.”

            Children’s Aid Society of Toronto v. L.T., 2016 ONCA 146 (CanLII) at 6-7

“The applicant submits that the Agreement itself is unconscionable. He contends that the agreement is completely one-sided and provides absolutely nothing to the applicant after 16 years of marriage.

In the recent decision of Toscano v. Toscano, 2015 ONSC 487 (CanLII), 57 R.F.L. (7^th) 234, Blishen J. provides a comprehensive summary of the issue of unconscionability at paras. 63-66 and 68 of her decision:

[63] Although in her Application Ms. Toscano argued that the consequences of the marriage contract were unconscionable, in general the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. It is the circumstances at the time of the drafting and signing of the contract which must be examined, not the results, under this criterion. There is an exception for a spousal support waiver which can be set aside if it results in unconscionable circumstances, pursuant to s. 33(4) of the FLA.

[64] 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).

[65] 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]).

[66]  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”.

[…]

[68]  In Miglin at para. 83 the Supreme Court of Canada notes that the emotional stress from separation or divorce does not give rise to the presumption that a party is incapable of assenting to a binding agreement…”

Freire v. Freire, 2017 ONSC 1188 (CanLII) at 38-39

“This motion is brought under Rule 60.11 of the Rules of Civil Procedure R.R.O. 1990, Reg 194. The test for civil contempt was set out in Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 (“Carey”):

a.  The order alleged to have been breached states clearly and unequivocally what should and should not have been done;

b.  The party alleged to have breached the order had actual knowledge of it; and,

c.  The party allegedly in breach intentionally failed to do the act the order compels.

The standard of proof to establish civil contempt is “beyond a reasonable doubt,” (Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007) 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27).

Contempt proceedings are bifurcated so that if a finding of contempt is made, a second sentencing stage for the party in contempt will be appropriate (Carey, at para. 18).

In Carey, Cromwell J. described a court’s contempt power in civil litigation settings (at para. 36),

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders …As this Court has affirmed, contempt of court cannot be reduced to a mere means of enforcing judgments” … Rather, it should be used “cautiously and with great restraint”: … It is an enforcement power of last rather than first resort.

Cromwell J. confirmed that a mental element or intent is not relevant to the initial determination of whether a party is in contempt, though it may play a role in the second stage of a contempt proceeding, dealing with the sentencing of a party in contempt.

Cromwell J. also confirmed that contempt remains available as a remedy to address non-compliance with a court order even where a party is no longer able to purge the contempt, either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order,  However, in Carey, the Court considered a context where the party’s own actions made compliance with the court order impossible (in that case, having expended funds that were to be held in trust pursuant to a Mareva order).”

Chaitas v. Greasley, 2019 ONSC 1158 (CanLII) at 7-12

“After completing his review of the law of the appointment and role of amicus, the trial judge set out his own summary of the features of amicus curiae in paragraph 43 of his decision, a summary he describes as extracted primarily from the Supreme Court of Canada and Provincial and Federal appellate courts:

(a)    The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b)    Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c)    It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d)    There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no “one size fits all” standard.

(e)   The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f)     The judge decides the terms and conditions of the role, which may vary widely.

(g)    Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h)    There is no solicitor-client privilege between an amicus and a party.

(i)     Only the judge can dismiss an amicus, not the party.

(j)     An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k)   Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.”

Morwald-Benevides v. Benevides, 2019 ONSC 1136 (CanLII) at 20