Author: dawi

“Rule 25.11 of the Rules of Civil Procedure provides that the court may strike out all or part of a pleading on the basis that it (a) may prejudice or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of process.

In B. (A.) v. Halton Children’s Aid Society, 2016 ONSC 6195, Master Pope, at para. 29, set out the principles that apply on a motion under rule 25.11 to strike out a pleading. These principles include that the court must read the pleading in context with a generous eye and only strike it out if it is plain and obvious that the pleading must fail at trial. The moving party has a heavy burden, and motions under rule 25.11 should only be granted in the clearest of cases.

In Renzone v. Onyx Homes Inc., 2020 ONSC 7722, Master Josefo, at para. 15, held that it is settled law that referring to settlement offers or discussions which are subject to settlement privilege are subject to being struck as scandalous, frivolous or vexatious given that such communications are inadmissible.”

Stronach v. Belinda Stronach in her Personal Capacity and as Trustee of the Andrew Stronach 445 Family Trust, 2021 ONSC 5758 (CanLII) at 15-17

“Pursuant to ss. 2 and 3 of the Partition Act, all joint tenants or tenants in common and all parties interested in any land in Ontario may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. Any person interested in land in Ontario may seek an Order for the sale of the land under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

The Partition Act provides a prima facie right to a joint tenant or tenant in common to partition or sale of lands. There is a corresponding obligation on the other owner to permit partition or sale.

The court should compel such partition or sale if no sufficient reason appears why such an order should not be made: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] 1 D.L.R. 827 (C.A.), at p. 830.

The discretion to refuse partition should only be granted in circumstances of malice, oppression, or vexatious intent: Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), at para. 1, and Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.).

The case law generally favours an order for partition or sale of a home by a co-tenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice. Prejudice has been defined as conduct by the moving party seeking the sale that is malicious, vexatious, or oppressive. That type of conduct is characterized by bad faith involving some sort of hidden agenda or purpose connected to the requirement for a sale of the property: Crews v. Bradford, 2018 ONSC 6413, at para. 15; Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.), at para. 38.

Personal hardship or inconvenience is not a sufficient reason to refuse an order granting partition or sale: Davis v. Davis; Akman v. Burshtein, at para. 58.”

         Pal v. Pal, 2023 ONSC 4659 (CanLII) at 37-42

“Financial disclosure in a family law case is – without doubt – one of the most important obligations.

The fundamental requirement for all family law proceedings is that each party must, soon after the proceeding is commenced, make complete and accurate financial disclosure. See Rule 13 of the Family Law Rules, O. Reg. 114/99. This Rule also provides that each party has a continuing obligation to update their financial information, correct any erroneous information, and provide any omitted financial information as soon as it becomes known or is available.

Complete and accurate financial disclosure is fundamental to ensure that the parties can engage in fair and informed discussions to enable them to reach an equitable and enforceable resolution of their family law dispute or, where necessary, to ensure each party has all relevant and accurate financial information to place before a court so that the court can make an informed, fair, and equitable judicial determination on the financial issues.

Court involvement should not be required to ensure complete and accurate financial information is disclosed. See Sparr v. Downing, 2020 ONCA 793, para. 4.

Where such complete and accurate financial disclosure is not forthcoming or is substantially delayed, the opposing party is seriously prejudiced in its claims such as, where child support is at issue, where spousal support is at issue, and equalization of family property is at issue. This failure to make complete and accurate disclosure leads to lengthy and unnecessarily complex family law proceedings, unreasonable positions, many unnecessary motions, high conflict situations and, sometimes, parties resorting to self-help remedies rather than waiting for the court to enforce compliance with the Rules and/or court orders.

The failure to make complete and accurate financial disclosure often causes the financially disadvantaged party to become self-represented, usually because the refusal to make complete and accurate financial disclosure is the litigation strategy of the party with superior financial resources.

The failure to make complete and accurate financial disclosure has been described as a “cancer” in family law proceedings. See Michel v. Graydon (2020), 2020 SCC 24 (CanLII), 45 R.F.L. (8th) 1 (S.C.C.) at para. 33.

Where a party is permitted to disregard financial disclosure orders, the confidence of the public in the administration of justice is undermined.

It brings the administration of justice into disrepute.

The Courts must address cases where a party deliberately fails or refuses to make complete and accurate financial disclosure, in a manner that strongly reaffirms rules must be followed or there will be consequences – serious consequences.  This is necessary to ensure that the offending party and other parties in other proceedings are deterred from engaging or continuing to engage in such conduct and to ensure that the offending party does not benefit from their misconduct. See Itrade Finance Inc. v. Webworx Inc. 2005 CanLII 24776 (ON SC), [2005] O.J. No. 3492 at para. 20 (ON S.C.).”

            Boutin v. Boutin, 2022 ONSC 4776 (CanLII) at 1-10

“All children of separated parents are entitled to child support until they are no longer defined as a “child of the marriage.” Section 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) which applies to all cases in Canada where the parents were legally married and divorcing or have divorced, provides that a “child of the marriage” includes:

a child of two spouses or former spouses who, at the material time, […] (b) is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessities of life;

Section 15.1(1) of the Divorce Act, provides, in part:

A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

It is possible from a plain reading of the Act to find that an adult who does not have a disability and is not enrolled in post-secondary is still a “child of the marriage” entitled to child support because they are unable to withdraw from their parents charge, or unable to obtain the necessities of life, by reason of an “other cause” (see Nkwazi v. Nkwazi, 2014 SKCA 61, 438 Sask. R. 185, at para. 23). In my view, there is a growing, but limited, precedent for the provision of child support in these types of circumstances. In order to determine this, the court must go through a two-stage analysis including:

(a) Is the adult child able to withdraw from their parents charge or obtain the necessities of life, i.e., the court must make a finding of whether the adult child can or cannot obtain an income to meet their reasonable needs; and

(b) Is the “cause” of the inability to withdraw permitted under the Divorce Act, i.e., is the cause of that inability a social/economic factor (such as the cost of living and delayed adulthood, or a difficult transition in their life).

The onus of proof would lie with the party seeking the provision of child support, who would have to prove that the child is/was unable to withdraw from parental control and is eligible for support. The nature and amount of evidence will vary with the case but becomes greater as the adult child grows older (see Titova v. Titov, 2012 ONCA 864, [2012 O.J. No. 5808, at para. 43).”

            Brun v. Fernandez, 2023 ONSC 4787 (CanLII) at 8-10

“Eighth, with respect to his pension, RRSP and LIRA, Mr. Pierre has chosen a notional tax rate of 26.9% while Ms. Pierre has chosen one for him of 24.7%. In a report dated July 24, 2017, Guy Martel noted that the former would be Mr. Pierre’s notional tax rate at a retirement age of 65, while the later would be his rate at a retirement age of 60. In Van Delst v. Hronowsky, 2021 ONSC 2353, I noted at paragraph 35 that the proposition that the normal retirement age of a PSSA plan member may travel with the pension valuation and not necessarily with the determination of disposition costs is supported by Knight v. Knight, 2018 ONSC 3294, wherein Justice Nelson indicated at paragraph 55 that “notional disposition costs may be deducted from a spouse’s net family property if there is satisfactory evidence of a likely disposition date and it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them.” (Underlining is original). Like Ms. Van Delst in that case, Mr. Pierre testified that he absolutely intends to work until age 65, and he submits that his notional tax rate at retirement should be as of age 65. I found in Van Delst that the wife’s notional tax rate at age 65 was acceptable despite that FLV was calculated on a normal retirement age of 60. However, I distinguish that case on the basis that the rate had already been used in my April 2019 judgment for other of the wife’s post-retirement assets and not overturned by the Court of Appeal, notwithstanding the ordered recalculation. Logically, however, if Mr. Martel has calculated the disposition rates based on the value of all of Mr. Pierre’s projected income at ages 60 and 65, the rate should correlate to those values. The notional disposition rate for Mr. Pierre’s assets in the Comparative NFP will, therefore, be 24.7%.”

            Pierre v. Pierre, 2021 ONSC 5650 (CanLII) at 98

“Whether assets in an RESP are the property of the subscriber or are held in trust for a beneficiary has not been consistently answered in the caselaw: See Kira Domratchev, “Is an RESP a Trust? …And So What If It Is?” (May 2021) 40 Est. Tr. & Pensions J. 257; Charles Wagner & Mari Maimets, “Litigation and RESPs”, 20^th Annual Estates and Trusts Summit, October 16, 2017.

Before briefly reviewing the case law, I will describe the features of an RESP:

• • The basic framework for an RESP is established under the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) (“ITA”).
  • An RESP is a contract between an individual (“the subscriber”) and an organization (“the promoter”) designed to help parents, family, and friends to save towards a beneficiary’s post-secondary education: Canada Revenue Agency, Information Circular No. IC93-3R2, Registered Education Savings Plans, May 4, 2016 (“CRA Circular”), page 2; ITA, s. 146.1 (1).
  • Under the contract, the subscriber names one or more beneficiaries and agrees to make contributions for them, and the promoter agrees to pay educational assistance payments to the beneficiaries. The subscriber’s contributions are not deductible from their income tax.
  • Aside from helping a child finance their cost of post-secondary education, the benefits of an RESP are that: (1) taxes on income earned on contributions are deferred until the income is withdrawn, and (2) federal government grants are paid on contributions made to an RESP.

• • Various government grants and incentives are available. A basic Canada Education Savings Grant (“CESG”) of 20% on the first $2,500 of annual RESP contributions is paid into the RESP under the Canada Education Savings Act, S.C. 2004, c. 26(“CESA”).
  • An RESP is a vehicle designed for individuals to accumulate income for post-secondary education.
  • The only permissible payments out of an RESP are:

o   Subject to the terms and conditions of the RESP, the promoter can return contributions to the subscriber or to the beneficiary at any time.

o   Educational Assistance Payments (which does include a refund of contributions but does include the RESP’s accumulated investment earnings (earnings on the money saved in the RESP) and CESGs) can be paid to or for the beneficiary student to help finance the cost of post-secondary education if the student is enrolled in a post-secondary educational institution or other qualifying educational program or if the beneficiary student is at least 16 years old and is enrolled in a specified educational program.

o   Accumulated income payments (“AIPs”), which are investment earnings that accumulate on contributions made to a RESP and on amounts paid under the CESA, can be paid to a subscriber if the beneficiary is 21 years old and is not pursuing post-secondary education and the plan has been in existence for at least ten years. AIPs must be included in the subscriber’s income for the year the payments are received. The payments are subject to a 20% additional tax on top of the regular tax rate payable on the subscriber’s income. The subscriber can reduce or eliminate this additional tax by contributing the AIPs to his or her RRSP or to a spousal RRSP up to a maximum of $50,000.00.

o   Repayment of amounts under the CESA: See section 11 of the Canada Education Savings Regulation, S.O.R./2005-151.

o   Payments to a designated educational institution and payments to a trust to accommodate transfer of property between RESPs.

• • Any amount received by a taxpayer in satisfaction of a subscriber’s interest under an RESP must be included in computing the taxpayer’s income except:

o   Any amount received in satisfaction of a right to a refund of payments under the plan: ITA, ss. 146.1 (7.1)(b), 146.1 (7.2)(b)(ii).

o   Any amount received by a taxpayer under a court order or agreement relating to a division of property between the taxpayer and the taxpayer’s spouse or common-law partner in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership: ITA, ss. 146.1 (7.11)(b), 146.1 (7.2)(b)(iii).

• • The subscriber of a plan can change the named beneficiary under an RESP if the terms of the plan allow: CRA Circular, paras. 74-75.

• • If a subscriber dies, their estate may continue the RESP or name another individual as an alternate subscriber. The terms of the RESP and provincial law will dictate what happens to the RESP: CRA Circular, para. 8.”

            Labatte v. Labatte, 2022 ONSC 4787 (CanLII) at 44-45

“The applicant relies upon the Mareva Order to enjoin the property in the hands of the other Aarabi Family and Affiliates, who are strangers to the family law proceeding and whose assets are not subject to preservation under ss. 12 and 40 of the FLA.

The test for a Mareva injunction is well settled, and most often cited in the case of Chitel et al. v. Rothbart et al., (1982) 1982 CanLII 1956 (ON CA), 39 O.R. (2d) 513.  It is more stringent than the test for a preservation order under the FLA.  The requirements that the applicant must establish are that:

a. she has a strong prima faciecase;

b. the respondents have assets in the jurisdiction;

c. there is a serious risk that the respondents will remove their property or dissipate assets before judgment.

See O2 Electronics Inc. v. Sualim, 2014 ONSC 5050, at para. 67 and Ghaeinizadeh v. Ku De Ta Capital Inc, 2010 ONSC 4169, [2010] O.J. No. 3217 (S.C.).

The applicant also must establish that she will suffer irreparable harm if the injunction is not granted and that the balance of convenience favours granting the injunction.  See Lee, at para. 43.   This is often tied into the assessment of risk of the removal or dissipation of assets before judgment.”

            Habibi v. Aarabi, 2021 ONSC 5574 (CanLII) at 49-51

“It is true that a spouse is not automatically entitled to increases of spousal support when the other spouse’s post-separation income increases: Thompson v. Thompson, 2013 ONSC 5500 (CanLII), at para. 103.  The same principle should apply to a one-time increase.  Unlike the Child Support Guidelines, there is no express statutory authority for imputation of income: Mann v. Mann, 2009 CanLII 23874 (ON SC), at para 15.  The Divorce Act, s. 15.2(4), does not refer to income but, rather, to “means.”

…

The logic that dictates a predictable stream of income as a measure of a payor spouse’s “means” would also suggest that a temporary increase should not be used to boost the support if a temporary decrease would not be grounds for lowering it.  Moreover, in the case of post-separation income increases, the authors of the SSAG stated, in s. 14.3, that the principles of spousal support militate against increasing support, especially if the marriage was not long:

There are two possible formulaic extremes here. At one extreme, one could decide that any post-separation income increase of the payor spouse should not affect the amount of spousal support. After all, some would suggest, the recipient is entitled to a sharing of the marital standard of living, but no more. Certainly, this bright-line method would be predictable and administratively simple. At the other extreme, one could argue that the formulas should just continue to be applied to any income increase for the payor. This again would offer a predictable result, but one which the basic principles of spousal support would not justify in all cases. This approach is most compelling after a long traditional marriage.”

            Shipton v. Shipton, 2023 ONSC 5938 (CanLII) at 7, 10

“In F.K. v. A.K. 2020 ONSC 3726 this court recently set out an extensive analysis of the relevant factors and considerations when a parent seeks to change a custody and/or access order.

a. The starting point is that the original order is presumed to be appropriate and in the best interests of the child.

b. In a variation proceeding, the threshold test is whether there has been a material change in circumstances since the previous order was made.

c. If there is no material change in circumstances, the inquiry goes no further.

d. If a material change in circumstances has been established, the court will embark upon a determination of the child’s best interests.  This must be a broad and careful inquiry which takes into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs.

e. Even if there has been a change in circumstances, the court must still decide whether it is appropriate to change the existing order, and if so, in what manner.

f. The court should have all relevant information before it makes any changes.  As a result, courts are very reluctant to impose temporary changes with respect to final orders.  In most circumstances the existing order should continue until the court has confidence that all necessary information has been assembled and considered.  The safest course is to fully ascertain the immediate and longer-term impact of any change on the child – before implementing the change.  A poorly considered or misguided change may actually prejudice the child.  And further correction or reversal of a premature variation could only compound the harm to the child.

g. In extreme or urgent circumstances, the court may have no alternative but to consider a temporary variation to provide some immediate protection or benefit for the child which cannot or should not be delayed.

h. But the onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.  And they must clearly establish that the immediate benefit to the child is significant and necessary, and outweighs any foreseeable negative consequences or prejudice resulting from disruption of the child’s situation, relationships or routine.

i. Given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.”

         A.T.W. v. K.A.W., 2020 ONSC 4894 (CanLII) at 42

“The test the wife must meet to persuade the court to exercise its discretion to grant her leave to bring a motion for an advance of $100,000 or interim costs of $100,000 is a two-fold test:

i)   Does she have an arguable case on the merits – a prima faciecase for the relief she intends to seek if leave is granted; and

ii)  Can the court be assured, with or without terms, that allowing the wife to bring her motion for an advance/interim costs will not result in an abuse of process? Conceicao v. Abraham2021 ONSC 2330 at para 5; Rubato. v. Sandoval, 2018 ONCJ 85 (CanLII), at para. 42.

In Ludmer v. Ludmer, 2012 ONSC 4478 at paras 25 and 3 (“Ludmer”), the court articulated that someone cannot have an arguable case on the merits, (the first part of the test for leave), where he/she is bringing a motion for relief which had earlier been denied by the court if:

iii) there has been no change in circumstance since the first motion;

iv) the moving party does not address why initial motion judge’s decision should not be given deference; and

v)  the necessary factual foundation to support the proposed motion does not exist.

I agree with Mesbur, J.’s reasoning in Ludmer v. Ludmer, that the party seeking leave to bring a motion where the relief has already been denied by the court, has a higher burden to demonstrate the factual foundation to support the relief sought on the motion. In para. 25 of Ludmer, Mesbur, J. stated:

“the question is whether intervening events have changed the legal landscape to sufficiently support the wife’s motions. In the particular circumstances of his case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.

Eskandari v. Rowshani-Zafaranloo, 2021 ONSC 6083 (CanLII) at 23-25