Author: dawi

“The Family Law Rules include a number of provisions aimed at addressing situations such as the one which has developed in this case, where one of the parties chooses not to comply with court orders and/or not to participate responsibly in the court process. The relevant Rules for the purposes of this hearing are as follows:

1. Rule 1(8) gives the court a broad discretion to craft a remedy in response to a party’s failure to follow the Rules, or their failure to obey an order in the case or a related case. It stipulates that in those circumstances, the court may make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate,” including an order for costs, and an order dismissing a claim made by the party who has “wilfully failed to follow the rules or obey the order.”

2. Rule 13(17) provides that if a party does not comply with an order requiring them to provide financial information, the court may make any appropriate order, including an order dismissing the party’s case and striking out any document filed by the party and a contempt order.

3. Rule 14(23) provides that a party who does not obey an order made on motion is not entitled to any further order from the court unless the court orders that this Rule does not apply. The Rule further stipulates that in addition to any other remedy permitted under the Rules, the court may make any order that is appropriate including an order dismissing the party’s case, striking out the party’s answer or any other document filed by the party, or an order for costs.

In addition to these Rules, the court has an inherent jurisdiction to make any order which it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is in breach of an order.¹

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

The Rules referred to above are the main tools which a judge presiding over Family Law matters has in their toolbox to prevent a party from embarking upon the game of litigation abuse. The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner. Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

Levely v. Levely, 2013 ONSC 1026 (CanLII) at 10-13

“The motion judge recognized that there are no statutory provisions governing Ontario’s jurisdiction to hear the claims advanced by Ms. Knowles. He turned to the real and substantial connection test as explained in the leading case Club Resorts Ltd. v. Van Breda, 2012 SCC 717, [2012] 1 S.C.R. 572.  The motion judge concluded, at para. 46:

In summary, for the reasons discussed above, I find that Ontario has jurisdiction over this case because there is a real and substantial connection between the parties, issues and transactions in question in this case and Ontario. The presumptive factors establishing jurisdiction are that the case involves a claim to ownership of Ontario land, a claim for damage (the allegation of detriment incurred by the applicant in enriching the respondent) suffered in Ontario and a claim for support by a party who is ordinarily resident in Ontario.  Further, the parties were both ordinarily resident in Ontario (as well as Florida) until their separation. Although their primary residence was in Florida, their customary pattern of life included residence for a substantial period each year in their Ontario home from 2007 through 2011 which made Ontario a “real home”.  From the date of separation, the applicant was ordinarily resident in Ontario and not elsewhere.

The parties agree that the Van Breda analysis applies to the jurisdictional inquiry.  As explained in Van Breda, at para. 99, that inquiry focuses on the connection between the forum and the subject matter of the litigation and the defendant.  The inquiry looks to the claim as a whole:

The purpose of the conflicts rule is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

While the ultimate determination of jurisdiction looks to the “factual and legal situation” as a whole, it is helpful when applying Van Breda to examine each claim individually. The nature of each claim may affect which facts will be viewed as presumptive connecting factors for the purposes of the Van Breda inquiry.

…

I agree with the motion judge that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time.  With respect, the contrary holding in Derksen v. Insurance Corp. of British Columbia, [1995] B.C.J. No. 2709, at paras. 20-21 (S.C.) misreads Thomson.  I also find nothing in the judgments in Thomson that would justify limiting the court’s analysis to the taxation statute in issue. The definition of “ordinary residence” arrived at by the majority in Thomson is consistent with the plain meaning of the phrase and reflects the reality of the lifestyle that some people lead.  The motion judge was satisfied that Ms. Knowles and Mr. Lindstrom had that kind of lifestyle.  The record fully supports that finding.

The Family Law Act is silent on the question of jurisdiction over Ms. Knowles’ support claim. The motion judge held that in the absence of legislative direction to the contrary, that he was not limited to the concept of primary or principal residence, when considering the significance of residence to the jurisdictional question. I agree. In my view, if there is no controlling statutory provision, the concept of ordinary residence as defined in Thomson is appropriate when considering whether the parties’ physical connection to a jurisdiction is sufficient to constitute a presumptive connecting factor for the purposes of the Van Breda analysis.”

Knowles v. Lindstrom, 2014 ONCA 116 at 16-18, 32-33

“A party seeking an ownership interest by way of constructive trust must plead and then prove facts establishing entitlement to it. The fact that a claimant must prove enrichment of the other party and a corresponding deprivation of the claimant, with no juristic reason for the enrichment in order to establish a constructive trust, and must also show that damages alone are insufficient and only a proprietary remedy is adequate, does not alter the fact that the claimant has asked the court from the beginning to award an interest in land. To me, all this means is that the claimant has to plead and prove those key elements, usually called “material facts” in litigation, to justify the order sought. It should not matter how many material facts there are or whether the entitlement to land requires a two-step analysis, so long as the application makes a claim of entitlement to ownership of land.”

McConnell v. Huxtable, 2013 ONSC 948 (CanLII) at 77

“Although this motion involves a request for leave to extend the time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal:  see Monteith v. Monteith, [2010] O.J. No. 346, at para. 11.  They are:

(1)    whether the appellant formed an intention to appeal within the relevant period;

(2)     the length of the delay and explanation for the delay;

(3)      any prejudice to the respondent;

(4)      the merits of the appeal; and

(5)      whether the “justice of the case” requires it.

See Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2011 (Markham:  Lexis Nexis Canada Inc., 2010), at p.580; Rizzi v. Mavros (2007), 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401 (C.A.), at para. 16; and Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14.”

Issai v. Rosenzweig, 2011 ONCA 112 at 4

“First, the process to settle an order has a narrow purpose: “to ensure that the formal order accurately sets out the intention of the court as reflected in the endorsement or reasons for decision”: Paul Perell and John Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order is not an opportunity for either party to re-argue issues already decided in an effort to change the result set out in the judge’s reasons.”

Chitsabesan v. Yuhendran, 2016 ONCA 105 at 11

“In my opinion, a court may take into account a post-separation date change in the value of a spouse’s assets, and the circumstances surrounding such a change, for purposes of determining under s. 5(6) of the Family Law Act whether equalizing net family properties would be unconscionable. An order for an unequal division of net family properties is exceptional, however, and may only be made on such a basis (i) where the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)), and (ii) where equalizing the net family property would be unconscionable, having regard to those circumstances (taken alone or in conjunction with other factors mentioned in s. 5(6)).

In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233, [1992] O.J. No. 2201 (Gen. Div.), affd (1996), 1996 CanLII 642 (ON CA), 30 O.R. (3d) 575, [1996] O.J. No. 4080 (C.A.); Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789, [2002] O.J. No. 4939 (C.A.); McDonald v. McDonald, [1988] O.J. No. 518, 11 R.F.L. (3d) 321 (H.C.J.); and LeVan (S.C.J.).”

Serra v. Serra, 2009 ONCA 105 (CanLII) at 46-47

“I begin with the observation that s. 133(a) of the Courts of Justice Act does not specify grounds for granting leave to appeal a consent order.

A review of the limited jurisprudence respecting leave to appeal consent orders, in Ontario and elsewhere in Canada, reveals that no clear test has emerged for granting leave in consent matters. However, what is clear is the resistance to allowing a review of issues that the parties have represented to the court as having been resolved. The expression of this resistance dates back to 1876, in the English case of Holt v. Jesse, 3 Ch.D. 177, at p. 184:

That is tantamount to giving a ‘general license to parties to come to this Court and deliberately to give their consent, and afterwards at their will and pleasure come and undo what they did inside the court, because on a future day they find they do not like it.’

See also Nguyen v. Nguyen, 1999 CarswellOnt 2668 (S.C.); Fott v. Fott, 2001 ABQB 327 (CanLII), at paras. 4, 22, and 33.

Some assistance in determining when leave to appeal a consent order should be granted can be found in Donald Brown’s Civil Appeals, looseleaf (Toronto: Canvasback Publishing, 2009) at p. 4-60:

In all jurisdictions, leave to appeal is required from an order made on consent, in some instances to be given by the judge or court making the consent judgment.  The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings.  Accordingly, apart from orders dealing with the custody of child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance. [Citations omitted.]

In this passage, the author makes two points that are relevant to this case.

First, he observes that consent orders have their foundation in contract. It follows that they may be appealed on the basis that the circumstances surrounding the consent were such that there was no enforceable agreement. This engages standard contract principles: see Rick v. Brandsema, 2009 SCC 10 (CanLII), 1 S.C.R. 295, at para. 64; McCowan v. McCowan (1995), 24 O.R. No. 2245, at p. 712.

It follows that in cases where the issue relates to the validity of consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent.  Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence.

The second point Brown makes is that matters involving children fall into a special category.

The distinction is clearly based on the court’s obligation to give priority to the best interests of the child: see Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 19 and 24; Family Law Act, R.S.O. 1990, c. F.3, s. 56; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8); see also M.A. v. C.P., 2010 ONSC 5481 (CanLII), 98 R.F.L. (6th) 434.

This priority is reflected in the general statutory provisions listed above. In addition, s. 21(2) of the Children’s Law Reform Act requires a judge, before granting a consent order involving custody or access, to receive a parenting affidavit that includes the party’s proposed plan for the child’s care and upbringing, information respecting the person’s involvement in other family proceedings or any criminal proceedings, and “any other information known to the person that is relevant to the factors to be considered by the court under subsection 24 (2), (3) and (4) in determining the best interests of the child”. Further, s. 67.(1) of the Children’s Law Reform Act requires the court to bear in mind the best interests of the child in making an order on consent.  And both s. 37 of the Family Law Act and s. 15.1(7) of the Divorce Act provide that in the face of the parties’ consent, a court may only award an amount for child support that departs from the child support guidelines if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. A judge who is satisfied of the applicable requirements is entitled to endorse the parties’ consent through formal court order.

Before articulating the test that applies for granting leave to appeal that, in my view, applies to consent orders involving children, I make the following three observations.

First, while consent orders are not ordinarily accompanied by reasons, in cases involving children, the statutory requirements I have referred to above demonstrate that the judge’s determination should attract deference.

Second, finality itself has been recognized as being in the best interests of the child, as was emphasized by the Supreme Court in Van de Perre v. Edwards, 2001 SCC 60 (CanLII), 2 S.C.R. 1014, at para. 13:

[F]inality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision.

Third, family law practice and procedure encourages parties to come to an agreement on as many issues as possible. As a consequence, consent orders are regularly granted.  Routinely allowing such orders to be appealed simply because they deal with issues pertaining to children would have the wholly undesirable effect of providing yet another route to prolonged litigation in family law matters.

Accordingly, while cases in which leave to appeal consent orders involving children must be treated differently, the threshold for obtaining leave is still high.

In my view, leave to appeal consent orders in family law cases involving children should not be granted unless, bearing in mind the deference I have identified, the record demonstrates an arguable case that the order, at the time it was made, was not in the child(ren)’s best interests.”

Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 (CanLII) at 58-73

“The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.  On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.  There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.  No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.  In this case there was no evidence of effective communication.  The evidence was to the contrary.”

Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA) at 11

“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.  In order to meet this obligation, the parties must earn what they are capable of earning.  If they fail to do so, they will be found to beintentionally under-employed or unemployed.  Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness.  See Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CanLII 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars­well­Ont 3228 (Ont. C.A.).

The court in Drygala v. Paulisets out a three-part test to determine whether income should be imputed.  The first part of the test is to ask whether the payor is intentionally under-employed or unemployed.  The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning.  The court must look at whether the act is voluntary and reasonable.

The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed.  The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.  See Homsi v. Zaya, 2009 ONCA 322 (CanLII), 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars­well­Ont 2068 (Ont. C.A.).  However, persistence in unremunerative employment may entitle the court to impute income.  A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.  See DePace v. Michienzi, 2000 CanLII 22560 (ON SC), 2000 CanLII 22560, 5 R.F.L. (5th) 40, [2000] O.J. No. 453, 2000 Cars­well­Ont 425 (Ont. Fam. Ct.).”

Caine v. Ferguson, 2012 ONCJ 139 (CanLII) at 18-20

“I do not agree with the reasoning in Carignan.  As noted above, the words “in the place of a parent” must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court.  Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult.  The interpretation of the provisions of the Divorce Act relating to “child[ren] of the marriage” should be “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”:  see Interpretation Act, R.S.C., 1985, c. I-21, s. 12.  The reasoning in Carignan ignores one of the fundamental objectives of the Divorce Act as it relates to children.  The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible.  Spouses are entitled to divorce each other, but not the children who were part of the marriage.  The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.

What, therefore, is the proper time period for determining whether a person stands in the place of a parent?  The term “at the material time” has been interpreted with reference to the parental status to mean “the time of the commencement of the proceedings” (see Hock v. Hock, [1971] 4 W.W.R. 262 (B.C.C.A.), at p. 273); “the time of the hearing” (see Harrington v. Harrington (1981), 1981 CanLII 1762 (ON CA), 33 O.R. (2d) 150 (C.A.), at p. 159); and has also been held to mean “whatever date is appropriate”.

InCarignan, the Manitoba Court of Appeal held that the words “at the material time” have no reference to when the parental status occurred or existed, but only to whether the step-parent is “in the place of a parent” when the child is under 16 or over 16 but in a dependant state.  Huband J.A. noted that there is no reference to material time in s. 2(2) where the expression “in the place of a parent” is used.  He held that a proper interpretation of the two sections is that the court can make an order for maintenance against a person standing in the place of a parent only if the child is under 16, or over 16 and in a dependant state.  The court said, at p. 72:

If one looks back at the definition section, eliminating unnecessary words, it states that the child of the marriage means a child of two spouses who “at the material time” is under the age of sixteen years (forgetting for the moment clause (b) of the definition). The words “at the material time” refer only to the question of the age of the child.  Those words have no reference to the child’s status “in loco parentis”.  Reference to the relationship in loco parentis follows in a separate definition provision which indicates that a child of two spouses includes a child in loco parentis.  Reading the two sections together, the court has jurisdiction to make an order of maintenance in favour of a child in loco parentis but only if the child is under the age of 16 “at the material time”.

Similarly, in Miller v. Miller (1988), 13 R.F.L. (3d) 80, at p. 83, Scott L.J.S.C. of the Ontario Supreme Court put the matter in these terms:

The “at the material time” phrase refers to age or condition; the loco parentis subsection is in the present tense in both languages — and I fail to see how the at the material time concept can be imported from one subsection into the other.

It is clear that the court must address the needs of the child as of the date of the hearing or order.  The existence of the parental relationship under s. 2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit.  See Julien D. Payne, Payne on Divorce(4th ed. 1996), at p. 148.  If the “material time” was to be interpreted as in Hock, supra, it would be difficult to find a parental relationship in situations where the step-parent has little contact with the child between the separation and the divorce proceedings.  This is inconsistent with the purpose of the Divorce Act.”

Chartier v. Chartier, [1999] 1 SCR 242, 1999 CanLII 707 (SCC) at 32-36