Author: dawi

“Only in the rarest of cases should a court grant a solicitor’s removal Order: Best v. Cox et al, 2013 ONCA 695.  In Kaiser (Re), 2011 ONCA 713 (CanLII) at 21, Cronk J.A. stated:

As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause…”  For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel.  Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused.  The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice… [Citations omitted.]

As noted by Kiteley J. in Zaldin v. Zaldin, 2014 ONSC 6504 (CanLII) at 13:

There does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test.  This is particularly true when the litigation involves a family dispute.

The leading solicitor’s removal case is MacDonald Estate v. Martin: 1990 CanLII 32 (SCC).  As stated by Sopinka J. [at paras 47-48], the test for determining whether there is a disqualifying conflict of interest is whether “the public, represented by the reasonably-informed person would be satisfied that no use of confidential information would ever occur.”  Two questions require answer:

1. 1. 1. 1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
         2. Is there a risk that it will be used to the prejudice of the client?”

         Junger v. Portugese, 2018 ONSC 3376 (CanLII) at 9-11

“I will deal with the criteria in ss. 24(3)(a) – (f) [of the Family Law Act] together. Violence referred to in s. 24(3)(f) is not restricted to physical violence. It includes a “psychological assault upon the sensibilities of [another] to a degree which renders continued sharing of the matrimonial dwelling impractical.”  Where the conduct is “calculated to produce and does in fact produce an anxiety” state which puts a person in fear of the other’s behaviour and impinges on that person’s mental and physical health, violence has been done to his or her emotion equilibrium as if he or she had been struck by a physical blow. (Hill v. Hill, [1987] O.J. No. 2297 at paras. 25).”:

Leckman v. Ortaasian, 2013 ONSC 3324 (CanLII) at 31

“The most comprehensive analysis of the issue in our court appears to be the decision of Mackinnon J. in Gauthier v. Hart, where the court conducted an extensive review of the authorities, including the decision in Chickee and the other cases referenced above from Saskatchewan and Nova Scotia, and concluded that the more appropriate interpretation of s. 9 requires a calculation of time over a calendar year: 2011 ONSC 815 (CanLII) at 65-76. The decision in Gauthier was adopted in Thompson v. Thompson, where Chappel J. observed that “it has been held that the appropriate time for the calculation of time spent with each parent is the calendar year.”: 2013 ONSC 5500 (CanLII) at 40.

While I acknowledge that the language of s. 9 is, arguably, capable of supporting more than one interpretation, in my view, the better interpretation is to read s. 9 as requiring a calculation that demonstrates whether the parent had the child for not less than 40 per cent of the time over the course of a calendar year, as Mackinnon J. concluded in Gauthier and Chappel J. concluded in Thompson.

In my view, such an interpretation more closely accords with the text of the language of the Guidelines, which, it is worth noting, does not say “for not less than 40 per cent of the time over the course of any contiguous 12-month period.” If Parliament had intended to permit “any 12-month period,” it could have expressly said so.”

         Skaljac v. Skaljac, 2018 ONSC 3519 (CanLII) at 78-80.

“Courts in the past have dealt with R.E.S.P.s on a motion and I find sufficient precedent for this court to deal with the issue of the R.E.S.P.s on this temporary motion.

As cited in McConnell v. McConnell, paras. 146-148, the court noted as follows:

[146]   There is precedent for the court, on the application of one spouse, to remove the other as the co-title-holder of an R.E.S.P.  In Vetro v. Vetro, the Court of Appeal dismissed an appeal from a motion judge’s decision to strike the father’s pleading on the ground, among others, that he had failed to comply with an order requiring him to repay funds that he had removed from his children’s R.E.S.P.  The Court stated:

In addition, the appellant took money from the children’s R.E.S.P. for his own purposes and although he agreed to repay the money he had only repaid $2,000 of the $5,500 he took. Irrespective of the issues of disclosure, the motion judge struck the pleadings on the basis of the appellant’s non-compliance with prior court orders and, having regard to the history and circumstances of the case, he was entitled to do so without giving the appellant any further opportunity to correct or explain his defaults.

[147]   In Maimone v. Maimone, Fragomeni J. ordered that the husband be removed as administrator of the R.E.S.P.s and that the R.E.S.P.s be transferred to the wife, on the ground that the husband had not demonstrated any financial responsibility and had made “less than frank and truthful disclosure” throughout the proceedings.  Similarly, in Borisoff v. Borisoff, Dillon J. of the B.C. Supreme Court ordered the R.E.S.P. be transferred

[148]   For the foregoing reasons, this court is invoking its inherent jurisdiction to remove Mr. McConnell as trustee of the children’s R.E.S.P.  He and Ms. McConnell will both benefit by the payments made from the R.E.S.P. as a result of the expenses to which they are required to contribute being reduced by payments being made from the fund.  Ms. McConnell will therefore be required to account to Mr. McConnell for any disbursements she makes from the R.E.S.P.  This will enable both parties to calculate the net s.7 expenses of each child and their own respective proportionate contributions, at the hearing on April 22^nd.

My conclusion, therefore, is that this court has jurisdiction to deal with the children’s R.E.S.P. accounts.”

         Elias v. Elias, 2018 ONSC 3466 (CanLII) at 21-23.

“On the proper test for unconscionability I refer to the words of Schroeder J.A. in Mundinger v. Mundinger, 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 at pp. 609-10, 3 D.L.R. (3d) 338 (C.A.):

The governing principle applicable here was laid down by this Court in the oft-cited case of Vanzant v. Coates (1917), 1917 CanLII 573 (ON CA), 40 O.L.R. 556, 39 D.L.R. 485. It was there held that the equitable rule is that if the donor is in a situation in which he is not a free agent and is not equal to protecting himself, a Court of Equity will protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position. In that case the circumstances were the advanced age of the donor, her infirmity, her dependence on the donee; the position of influence occupied by the donee, her acts in procuring the drawing and execution of the deed; and the consequent complete change of a well-understood and defined purpose in reference to the disposition of the donor’s property. It was held that in those circumstances the onus was on the plaintiff to prove by satisfactory evidence that the gift was a voluntary and deliberate act by a person mentally competent to know, and who did know, the nature and effect of the deed, and that it was not the result of undue influence. That onus had not been discharged; and it was therefore held to be unnecessary for the defendant to prove affirmatively that the influence possessed by the plaintiff had been unduly exercised.

The principle enunciated in Vanzant v. Coates, supra, has been consistently followed and applied by the Courts of this Province and the other common law Provinces of Canada. The effect of the relevant decisions was neatly stated by Professor Bradley E. Crawford in a commentary written by him and appearing in 44 Can. Bar Rev. 142 (1966) at p. 143, from which I quote the following extract:

If the bargain is fair the fact that the parties were not equally vigilant of their interest is immaterial. Likewise if one was not preyed upon by the other, an improvident or even grossly inadequate consideration is no ground upon which to set aside a contract freely entered into. It is the combination of inequality and improvidence which alone may invoke this jurisdiction. Then the onus is placed upon the party seeking to uphold the contract to show that his conduct throughout was scrupulously considerate of the other’s interests.

This is slightly different from the test set forth by the trial judge in the case at bar. It is, however, the basis of our modern law of unconscionability and I would unhesitatingly follow it. The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon the husband of acting with scrupulous care for the welfare and interests of the wife. I think not.

We must always remember that 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. I can find nothing in the reasons for judgment quoted above to denote that advantage taken.”

Rosen v. Rosen, 1994 CanLII 2769 (ON CA) at 12-13

“The appellant submits that the order is final because it implicitly disposes of the substantive issue in the action: his rights under the separation agreement not to disclose his financial position. He submits the underlying order “finally and irrevocably determines the enforceability of the non-disclosure term”.

We do not agree.

This court in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678 provided that an interlocutory order is one:

…which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

The order in question on this appeal does not finally determine or decide the subject matter of the litigation between the parties, namely, the enforceability of the separation agreement. The motion judge’s analysis makes it clear that he did not determine the validity of the separation agreement. Instead the motion judge made a procedural order for disclosure – the most basic requirement under the Family Law Rules. It remains open to the trial judge to accept the husband’s position on the validity of the agreement.”

Wachsberg v. Wachsberg, 2018 ONCA 508 (CanLII) at 4-7

“As E.G. falls within the requirements of subsection 31(1) of the Family Law Act, child support is presumed to be payable by her parents.

The onus is on the parents to prove that E.G. meets the criteria of subsection 31(2).  They must establish that E.G. has withdrawn from their parental control for her to be disentitled to child support.

In the event that I find E.G. has withdrawn from parental control, the onus then shifts on E.G. to establish on a balance of probabilities the withdrawal was not voluntary.

The decision of Ball v. Broger, 2010 ONCJ 557 (CanLII), [2010] O.J. No. 5824 by Justice S. B. Sherr provided an excellent overview on this issue as follows.  He noted at page 8 of his decision:

A child is entitled to support, unless he or she voluntarily withdraws from parental authority.  The defence of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control.  See Edwards v. Edwards, [1998] O.J. No. 492, 1998 CarswellOnt 555 (Ont. Prov. Div); and Haskell v. Haskell and Letourneau (1979), 1979 CanLII 1963 (ON SC), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329, 1 F.L.R.A.C. 306, [1979] O.J. No. 4278, 1979 CarswellOnt 101 (Ont. Co. Ct.).

Once it has been established that a child has withdrawn from parental control, the onus shifts on the child to establish that the withdrawal was not voluntary; that he or she had little choice in the matter.  See Belanger v. Belanger and Capin, 2005 CanLII 25110 (ON SC), 2005 CanLII 25110, 17 R.F.L. (6^th) 325, [2005] O.J. No. 3033, 2005 CarswellOnt 3076 (Ont. Fam. Ct.); and Fitzpatrick v. Karlein, supra.

Courts have noted that family dynamics are complex and have often been cautions in finding that a child has voluntarily withdrawn from parental control.  See Jamieson v. Bolton and Bolton, 1994 CanLII 9211 (AB QB), 1994 CanLII 9211, 52 A.C.W.S. (3d) 845, [1995] W.D.F.L. 097, [1995] W.D.F.L. 745, [1994] O.J. No. 3228, 1994 CarswellOnt 2081 (Ont. Prov. Ct.) which sets out at paragraph [19] a line of cases taking this approach.

Justice Sherr went on to review at page 9 of his decision portions of Fitzpatrick v. Karlein, supra which stated the following at paragraph [12]:

[12] This distraction from the business of sorting out financial obligations is a digression into conduct that the legislature has, at times, tried to separate from support obligations.  To minimize that distraction, we should recognize “normal” difficulties between parent and youth, especially if they are struggling with a reconstituted family.  We should look to see whether a child has withdrawn from the control of a relevant parent and, if so, whether this was the youth’s free choice.  Unless the youth was evicted by a custodial parent (not a free choice) or was subjected to unbearable conditions when viewed objectively (also not a free choice), the more subtle and subjective questions about parent-and-youth relationships should be left for a question more pressing than who, as between the youth and the parent and the state is going to pay the youth’s bills.  In other words, routine comparisons of fault as between parent and child should be discouraged and only obvious cases should prevail.

Justice Sherr went on to further state at page 9 of his decision:

Courts have noted that the exception is even narrower when the child suffers from emotional difficulties.  See Jamieson v. Bolton and Bolton, supra, at paragraph [35], citing L.G. v. F.G. and V.G., 1989 CanLII 3487 (ON CJ), 1989 CanLII 3487, 20 R.F.L. (3d) 157, [1989] O.J. No. 818, 1989 CarswellOnt 241 (Ont. Prov Ct., Family Division).

This does not mean that parents are not entitled to exercise reasonable controls over a child who chooses to remain at home.  See Distefano v. Haroutnunian and Haroutunian, 1984 CANLII 1705, 41 R.F.L. (2d) 201, [1984] O.J. No. 2312, 1984 CarswellOnt 272 (Ont. Prov. Ct., Fam. Div.0; and Figueiredo v. Figueiredo, 1991 CanLII 4204 (ON SC), 1991 CanLII 4204, 33 R.F.L. (3d) 72, [1991] O.J. No. 953, 1991 CarswellOnt 278 (Ont. Gen. Div.).

The issue of whether a child has voluntarily withdrawn from parental control has been reviewed by the courts.  In reviewing Jamieson v. Bolton and Bolton, supra, Justice Sherr noted at paragraph [36] of his decision the following:

Courts should examine a young person’s behaviour after leaving the home when assessing whether the young person left the home voluntarily or rather, whether she was just seeking independence.  Did the young person move to a life of independence or did she move into another parent-child relationship?  Upon leaving the home, did she abandon school?  Has the young person experienced conflict in relation with other adults or other persons in authority?  Or on the other hand, has the young person appeared to comply with reasonable expectations?  How has the young person ordered their life after separation?”

McGonegal v. BJG, 2013 ONCJ 529 (CanLII) at 294-300

“In my view, the test to apply to the applicant’s request for an extension of time should be the same as the test on a motion to set aside a Registrar’s order dismissing an appeal for delay, since such an order was at the root of the motion before Doherty J.A. That test was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21 (CanLII), [2010] O.J. No.123, 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.”

D.G. v. A.F., 2014 ONCA 436 (CanLII) at 11.

“In giving the majority judgment of the Supreme Court of Canada in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, 23 R.F.L. (3d) 337, Cory J. set out certain principles which seem to me vital in defining the approach a court must take when determining the rights of separating spouses pursuant to Part I of the FLA. He said, at pp. 93-94 S.C.R., p. 366 R.F.L.:

Under the Act a court is, as a first step, required to determine the ownership interests of the spouses. It is at that stage that the court must deal with and determine the constructive trust claims. The second step that must be taken is to perform the equalization calculations. Once this is done, a court must assess whether, given the facts of the particular case, equalization is unconscionable. The s. 5(6) analysis, even if it could be considered, would be a third step — a last avenue of judicial discretion which might be used in order to bring a measure of flexibility to the equalization process. This step in the process, if it could be used, would have to be kept distinct from the preliminary determinations of ownership.

In light of this statement and the definition of “net family property” contained in s. 4(1), the court must take the following steps in determining spouses’ rights under Part I of the FLA:

1. The court must establish the net family property of each spouse. It is only when that function has been performed that the court is in a position to apply s. 5(1) of the FLA, which is the next step. This first step must be undertaken in light of the provisions of s. 4. This means that the court must:

(a) determine what “property” each spouse owned on valuation day, and

(b) value that property after making deductions and allowing exemptions as provided in s. 4.

2. The court must determine whether one spouse’s net family property is less than that of the other. If so, s. 5(1) provides for equalization, which is effected by ordering a payment of one-half of the difference between them. However, before making that order, the court must proceed to the third step.

3. The court must decide whether, because of the considerations contained in s. 5(6), it would be unconscionable to equalize the net family properties. If so, the court may make an award that is more or less than half the difference between the net family properties. If not, the net family properties are equalized as set out in step 2.”

Berdette v. Berdette, 1991 CanLII 7061 (ON CA) per Galligan J.A.

“The application judge found that Mr. Jackson had acquiesced to Jailen’s remaining in Ontario…

The standard for finding acquiescence is high. “Clear and cogent” evidence of “unequivocal acquiescence” is required. See Katsigiannis, supra, at para. 49. Ordinarily the test for acquiescence is subjective, but as Lord Brown-Wilkinson said in Re H. and Others (Minors) (Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225 (H.L.) at p. 90 A.C.:

Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Jackson v. Graczyk, 2007 ONCA 388 (CanLII) at 49-50