Author: dawi

“The Supreme Court of Canada has set out the purpose of the power to award interim disbursements in the civil context as follows in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371 at para 31:

Concerns about access to justice and the desirability of mitigating severe inequality between litigants also feature prominently in the rare cases where interim costs are awarded. An award of costs of this nature forestalls the danger that a meritorious legal argument will be prevented from going forward merely because a party lacks the financial resources to proceed.

In Okanagan, supra, the Supreme Court set out the following conditions which must be satisfied for an Order for interim fees and disbursements to be granted:

1)  The party seeking the Order must be impecunious to the extent that, without such an Order, the party would be deprived of the opportunity to proceed with the case;

2)  The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and

3)  There must be special circumstances sufficient to satisfy the Court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

Okanagan, supra at 36.

Rule 24(12) of the Family Law Rules [now Rule 24(18)] provides authority for the Court to order interim disbursements in matrimonial litigation. That subrule reads as follows:

(12) PAYMENT OF EXPENSES – The Court may make an Order that a party pay an amount of money to another party to cover all or part of the expenses of a party or carrying on the case, including a lawyer’s fees.

In Agresti v. Hatcher, 2004 CarswellOnt 917, Justice O’Neill of the Ontario Superior Court noted that the test for obtaining payment of expenses under Rule 24(12), in matrimonial litigation, may be “easier” to meet than the test set out by the Supreme Court. Justice O’Neill stated that the following additional principles, which modify the third leg of the Okanagan test, have been developed with respect to the interpretation of Rule 24(12):

1)  The levelling of the playing field; and

2)  The exercising of the Court’s discretion to ensure that “all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial.”

Agresti, supra at 17, 18

An Order for interim fees and disbursements is a discretionary remedy. See Okanagan, supra at 31, 32.

A prima facie case does not mean that a claimant has to prove his or her case prior to obtaining an Order for interim fees and disbursements. As noted in Romanelli v. Romanelli, 2017 CarswellOnt 2724 (Ont. S.C.J.), this would be “too high a requirement…. It must be a case, which, based on the facts presented in the Affidavits, makes sense to prosecute… Would counsel advise a client of modest means to proceed with the claim?” See paragraph 24. As framed in Stuart v. Stuart, 2001 CanLII 28261 (ON SC), 2001 CarswellOnt 4586 at 13: “The claim or claims being advanced must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.”

It appears that the previous requirement that interim disbursements be limited to “exceptional cases” has been modified by Rule 24(12). Thus in Stuart, supra, for example, cited in Agresti, supra, Justice Rogers includes “exceptional circumstances” as one of the requirements under the heading “Former Case Law”, and then states as follows regarding the test under Rule 24(12):

The Court interprets the new Family Law Rules to require the exercise of discretion in Rule 24(12) on a less stringent basis than the cases that call for such only in exceptional circumstances. The discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers or possibly go to trial. Simply described, the award should be made to level the playing field. (Emphasis added)  See paragraph 9.

See also Romanelli, supra at 15, 16, where Justice McDermot stated:

It appears that in family law cases, the issue of “exceptional circumstances” is secondary to the goal of levelling the playing field where one party has an economic disadvantage, the basis most often cited in the caselaw to justify an Order under Rule 24(12).

This is echoed in Rea v. Rea, 2016 CarswellOnt 509, in which the Court cited Stuart, supra, commenting that it did not see the requirement of “exceptional circumstances” to be “strictly required by the case law in the matrimonial context.” See paragraphs 14 and 25.

The moving party must show that the award of interim fees and disbursements is “necessary”. Thus in Agresti, supra, Justice O’Neill stated, citing Stuart, supra:

Certainly the proof of the necessity of the interim disbursements would be critical to a successful claim. The claimant clearly must demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the service of said expert. See paragraph 11.

The case law also requires that a party seeking interim disbursements particularize her claim, setting out what, specifically, the requested sums are intended to cover. In Romanelli supra, Justice McDermot stated:

The case law appears to confirm that a Motion for interim fees and disbursements must contain proper evidence of the reason for the fees and disbursements and the estimated cost of those disbursements… There must be a purpose behind the fees and disbursements and not just a fishing expedition. See paragraph 44.”

         Green v. Whyte, 2017 ONSC 4760 (CanLII) at 15-25

“A court should be loath to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act:  Miglin, at para. 46.

In Miglin, the following is stated regarding the discretion of trial judges to substitute their own view of what is required:

45 … The fact that judicial and societal understandings of spousal support have changed since the release of Pelech [v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801] and the adoption of admittedly competing factors in s. 15.2(6) does not lead to an unfettered discretion on the part of trial judges to substitute their own view of what is required for what the parties considered mutually acceptable.  In this respect, we agree in principle with Wilson J.’s comments in Pelech, supra, at p. 853:

Where parties, instead of resorting to litigation, have acted in a mature and responsible fashion to settle their financial affairs in a final way and their settlement is not vulnerable to attack on any other basis, it should not, in my view, be undermined by courts concluding with the benefit of hindsight that they should have done it differently.”

Shelley v. Shelley, 2018 ONSC 4516 (CanLII) at 217-218

“It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. Nardea v. Nardea(heard March 5, 1998); MacLeod v. MacLeod, [1998] O.J. No. 3076  (Ont. Gen. Div.); Reyes v. Rollo, 2001 CarswellOnt 4541 (Ont. S.C.J.).”

Meade v. Meade, 2002 CanLII 2806 (ON SC) at 81

“Subsection 5(5) of the Change of Name Act states that the Court shall determine an application to change the name of a child in accordance with the best interests of the child.  The change of name is not an administrative act.  It is not to be done merely for convenience.  The onus is on the parent wishing the name change to demonstrate that the child will benefit from the change: Herniman v. Woltz, 1996 CanLII 8087 (ON SC), [1996] O.J. No. 1083, 22 R.F.L. (4^th) 232 at para. 7.  I would adopt the factors set out in Wintermute v. O’Sullivan, [1985] A.J. No. 21, 48 R.F.L. (2d) 275 (Alta.Q.B.) at para. 7:

The factors to which courts should have regard in cases of this kind are set out in Davies, Family Law in Canada (1984), at p. 32:

(a) The welfare of the child is the paramount consideration.

(b) The short and long term effects of any change in the child’s surname.

(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

(f) The effect of frequent or random changes of name.”

 Cuthbert v. Nolis, 2018 ONSC 4643 (CanLII) at 120

“In my view, the parties do not need a custody order going forward. In M. v. F., 2015 ONCA 277 (CanLII), a case involving a claim for custody of a six-year-old boy in the context of an extremely acrimonious parental relationship, at paras. 38-40, Benotto J.A. stated:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: the court… By order may grant the custody of or access to the child to one or more persons (emphasis added).

For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” connotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

I also note that section 16(1) of the Divorce Act uses the word “may” in relation to an order that the court may make respecting the custody of or access to children of a marriage.”

McKenzie v. McKenzie, 2018 ONSC 4651 (CanLII) at 16-17

“Recognition of the tort of intrusion upon seclusion is a recent development in the common law in this province. In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal set out a three-part test for establishing intrusion upon seclusion:

a. the defendant’s conduct must be intentional or reckless;

b. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

c. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

Filbey v. Ashe, 2018 ONSC 4615 (CanLII) at 82

“Pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2^ndSupp.), the court cannot vary a custody order on the application of the parties in the absence of “a change in the condition, means, needs or other circumstances of the child” since the making of the order. There must be a material change in the circumstances of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed circumstances, the court’s inquiry can proceed no further: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239.”

Easson v. Blase, 2016 ONCA 604 (CanLII) at 3

“Although the term “gift” is not defined in the Family Law Act, a gift, generally speaking, is a voluntary transfer of property to another without consideration: Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999), at p. 696; Birce v. Birce (2001), 2001 CanLII 8607 (ON CA), 56 O.R. (3d) 226, [2001] O.J. No. 3910 (C.A.), at para. 17. A transfer of property by contractual agreement involves a mutual exchange of obligations (“consideration”), but a transfer by way of gift involves a gratuitous, unilateral transaction: Mary Jane Mossman and William Flanagan, Property Law: Cases and Commentary, 2nd ed. (Toronto: Emond Montgomery Publications, 2004), at p. 439. As McLachlin J. observed in Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36, at p. 991-92 S.C.R., “[t]he central element of a gift [is the] intentional giving to another without expectation of remuneration”.

The essential ingredients of a legally valid gift are not in dispute. There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration, (2) an acceptance of the gift by the donee and (3) a sufficient act of delivery or transfer of the property to complete the transaction: Cochrane v. Moore (1890), 25 Q.B.D. 57 (C.A.), at pp. 72-73 Q.B.D.; Mossman and Flanagan, supra, at p. 441, Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at p. 157.”

McNamee v. McNamee, 2011 ONCA 533 (CanLII) at 23-24

“There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

However, the case of J.C.M. v A.N.A., 2012 BCSC 584 (CanLII) is nonetheless instructive as it involved a dispute over gametes that the parties did not have a biological connection to. In that case, a couple purchased 13 sperm straws, and the court held that the sperm straws were property. They were subsequently divided between the parties, with one party receiving 7 straws and the other receiving 6 straws and $125 for her interest in one-half straw. See also C.C. v A.W., 2005 ABQB 290 (CanLII), 50 Alta. L.R. (4th) 61.

In the present case, the parties agreed that the embryos would be treated as property in their contracts with both the ISIS Regional Fertility Clinic and the Biology Associates. Neither party contests that the embryos should be treated as property. Accordingly, they must be divided as such. However, there is only one embryo.

The Family Law Act contains a comprehensive scheme for equalizing and determining ownership of marital assets. Both parties are listed on the contracts, and there was a clear intention that they would jointly own the embryos, regardless of their unequal financial contributions. Section 14(a) specifically states that: “the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants”.

As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions. It is illegal to purchase and sell gametes and embryos, according to the Assisted Human Reproduction Act, S.C. 2004, c. 2:

Purchase of gametes

7 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.

Purchase or sale of embryos

(2) No person shall

(a) purchase, offer to purchase or advertise for the purchase of an invitro embryo; or

(b) sell, offer for sale or advertise for sale an in vitro embryo.

With this legislation, one must determine the legality of the contracts and whether they take precedence over the legislation. However, this was not argued before me and I do not plan on dealing with the conflict of laws issue arising on the facts.”

S.H. v. D.H.,2018 ONSC 4506 (CanLII) at 17-22

“When considering the perspective of the Applicant, who saw herself as Luna’s “other mom”, it is frustrating to see how this situation has unfolded.  This is not, however, the criteria that is to be applied in deciding the Applicant’s motion for temporary access.  The Court’s focus must be on what is in Luna’s best interest while considering the criteria enumerated in para. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

There are a number of legal principles that I have considered in this matter:

a.  A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child.  The onus is on a non-parent seeking access to prove that it is in a child’s best interest to have such a relationship.  A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact with the stranger: see Farber v. Robitaille, 2004 CarswellOnt 5674 (Sup. Ct.).

b.  Courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with a custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs: see Gibson v. Emmons, 2015 ONSC 4458 (CanLII) at para. 24.

c.  “It may be convenient to lump decided cases into categories such as “grandparent cases” or “step-parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access.  A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child.  A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.

In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.” (Johnstone v. Locke, 2012 ONSC 719 (CanLII) at paras. 103-104).

d.  “In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.” (Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 141 O.A.C. 389 at para. 21.)”

Villeneuve v. Bell, 2018 ONSC 4518 (CanLII) at 20-21