Author: dawi

“The distinction between a share in ownership and a share in property value through an equalizing transfer of money is more than an exercise in judicial formalism.  This distinction not only follows the two-step structure of theFamily Law Act, 1986but reflects conceptual and practical differences between ownership and equalization.  Ownership encompasses far more than a mere share in the value of property.  It includes additional legal rights, elements of control and increased legal responsibilities.  In addition, it may well provide psychological benefits derived from pride of ownership.  Where the property at issue is one to which only one spouse has contributed, it is appropriate that the other spouse receive only an equalizing transfer of money.  But where both spouses have contributed to the acquisition or maintenance of the property, the spouse who does not hold legal title should be able to claim an interest in that property by way of a constructive trust and realize the benefits that ownership may provide.  The imposition of a constructive trust recognizes that the titled spouse is holding property that has been acquired, at least in part, through the money or effort of another.  The non-titled spouse’s constructive trust interest in this property is distinct from the right to an equalizing share of property value that is derived not from an independent property right but from the status as a married person.”

Rawluk v. Rawluk, [1990] 1 SCR 70, 1990 CanLII 152 (SCC) per Cory J.

“Parenting coordination is one of the most recent dispute resolution models to enter the Ontario family law realm, although it has been known and used for many years in other jurisdictions.  Parenting Coordination is used exclusively to deal with parenting issues, and is only possible once a final parenting agreement or court order is in place.  To confirm the PC’s authority to work with the parents outside the adversarial process, to obtain information and to make recommendations and decisions as authorized by a parenting agreement, the parents’ consent to defer to parenting coordination is normally incorporated into a formal court order.  One of the main functions of the PC is to help parents implement the parenting terms of their agreement/court order.

This resolution model includes two components: the non-decision making component and the decision-making component.  During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties about child development matters and the impact of parenting conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.

During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard.  During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and is in the children’s best interest to do so.  Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.”

Jirova v. Benincasa, 2018 ONSC 534 at 11-13

“On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.  A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly.  The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial.  It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial.  This would involve a comparison of, among other things, the cost and speed of both procedures.  (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.)  It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.  (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”.  It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.  What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole.  For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant.  Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.  On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”

Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 at 57-60

“Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Bredain the context of a tort case. The Supreme Court in Van Bredawas clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.”

Wang v. Lin, 2013 ONCA 33 (CanLII) at 46-47

“I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

Jones v. Tsige, 2012 ONCA 32 (CanLII) at 70-72

“TheFLAis a detailed statutory scheme for resolving issues arising out of marital breakdown. Section 10(1) provides for the determination of questions of title between married spouses. This includes consideration of any beneficial interests in property arising pursuant to the imposition of a remedial constructive trust:

A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5.

In Rawluk v. Rawluk, [1990] 1 S.C.R. 70, Cory J., writing for the majority of the Supreme Court, relied on s. 10(1) of the Family Law Act, 1986(which is identical to s. 10(1) of the current Act) to confirm that the statutory scheme for the equalization of spouses’ property on marriage breakdown does not completely supersede the remedial constructive trust. Before property can be equalized under the Family Law Act, a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.”

Martin v. Sansome, 2014 ONCA 14 at 46-47

“Section 17(1) of the Divorce Act, R.S.C., 1985, C.3, as amended, permits the court to vary a support order where there has been a change in circumstances.  The jurisprudence is clear that courts are reluctant to interfere with support orders and will not do so unless the reasons disclose an error in principle or a significant misapprehension of the evidence, or unless the order is clearly wrong.  Because of the fact-based and discretionary nature of such an order, judges are to be given considerable deference by appellate courts when such decisions are reviewed.  Their discretion is to be exercised, however, in accordance with the four objectives set out in s. 17(7) – which are designed to reflect the principle that the economic consequences of marriage and of separation and divorce are to be equitably shared between the former spouses – namely that the variation order should:

a)  recognize any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;

b)  apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c)  relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

d)  in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-11.

Moreover, the change in circumstances must be material and not trivial or insignificant: Hickey, at paras. 14 and 20-22; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.  In Willick, at p. 688, Sopinka J. said:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.  This means a change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [Emphasis added.]”

Burley v. Burley, 2009 ONCA 2 (CanLII) at 10-12

“There is a considerable body of case law that deals with the intersection of family and immigration law when a party in a family law case is subject to deportation.  The law was recently summarized by the Ontario Court of Appeal in paragraphs [23]-[28] of J.H. v. F.A., 2009 ONCA 17 (CanLII), 306 D.L.R. (4th) 496, 77 Imm. L.R. (3d) 123, [2009] O.J. No. 88, 2009 Cars­well­Ont 85, as follows:

	[23]          The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings: see Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 2004 CanLII 19764 (ON SC), 2004 CanLII 19764, 1 R.F.L. (6th) 429, [2004] O.J. No. 939, [2004] O.T.C. 240, 2004 Cars­well­Ont 943 (Ont. Fam. Ct.), at para. [23]; Varvara v. Constantino, [2005] O.J. No. 861, 2005 Cars­well­Ont 10505 (Ont. S.C.), at para. [33].  It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario “under the guise of determining [the] best interests of a child”: Augustin v. Canada (M.P.S.E.P) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.), at para. [9].
	[24]          In this case, there was no family law dispute with respect to incidents of custody between the parents.  One child’s father had not participated in the proceedings at all.  The other had no desire for custody.  There was no suggestion that any of the parties had any interest in removing children from Ontario.  The relevant paragraphs of the order were aimed not at the parents of the child but at the respondent Ministers pending the outcome of the [humanitarian and compassionate] application.  The CLRA should not be used to frustrate the IRPA.  The IRPA and related legislation is the forum in which to address immigration and related claims.
	[25]          In any event, even if the motions judge’s order was restored, recent jurisprudence from the Federal Court of Appeal, the court charged with the primary responsibility of interpreting the IRPA, indicates that the CLRA order would not affect a s. 50(a) statutory stay of the removal order.  In Idahosa v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 418 (CanLII), 385 N.R. 134, 307 D.L.R. (4th) 368, 77 Imm. L.R. (3d) 130, [2008] F.C.J. No. 1800, 2008 Cars­well­Nat 4895 (Fed. C.A.), Appeal Justice John M. Evans, on behalf of a unanimous court, held at para. [59]:
		Paragraph 50(a) does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lisrespecting custody that is unrelated to the removal.
	[26]          In coming to this conclusion, Justice Evans held that the IRPA provides opportunities for the consideration of the best interests of the children of those subject to deportation.  He also stated at para [54]:
		While great weight must be given to the best interests of children in administrative decision-making, they do not necessarily outweigh all other considerations: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22, 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 1999 CanLII 699 (SCC), 1999 CanLII 699, [1999] S.C.J. No. 39, 1999 Cars­well­Nat 1125 at para 75; Canadian Foundation for Children, Youth and the Law v. Attorney General for Canada, [2004] 1 S.C.R. 76, 2004 SCC 4 (CanLII), 315 N.R. 201, 183 O.A.C. 1, 234 D.L.R. (4th) 257, 115 C.R.R. (2d) 88, 46 R.F.L. (5th) 1, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, [2004] S.C.J. No. 6, 2004 Cars­well­Ont 252, at para 10.  The denial of Ms Idahosa’s H & C application is not under review in this appeal.
	[27]          I agree with and would apply this analysis to the consideration of whether the non-removal order should have been made in the circumstances of this case.  The reasoning in Idahosa is consistent with the Ontario cases which indicate that non-removal orders under the CLRA should not be granted for the purpose of frustrating removal orders in immigration proceedings.
	[28]          Furthermore, as the appeal judge observed, it is open to the appellant to make an application in the Federal Court for a stay of removal pending the determination of her H&C application.  This is the appropriate forum for consideration and weighing of the various competing interests.” N.E.C. v. A.A.A.,2010 ONCJ 54 (CanLII) at 51.

“The court’s inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap.”

A.A. v. B.B.,2007 ONCA 2 (CanLII) at 27

“In ascertaining whether unjust enrichment exists, the court considers whether a benefit should be retained. As noted by McLachlin J. in Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, 98 D.L.R. (4th) 140 at para. 41: [page 798]

At the heart of the doctrine of unjust enrichment, whether expressed in terms of the traditional categories of recovery or general principle, lies the notion of restoration of a benefit which justice does not permit one to retain. (Emphasis added)

It is not until the end of the relationship or an application is made to the court for relief that the court ascertains whether justice does not permit the benefit to be retained.”

Roseneck v. Gowling, 2002 CanLII 45128 (ON CA) at 28-29