Author: dawi

“The leading case in Ontario concerning grandparent access is Chapman v. Chapman and Chapman (2001), 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, 2001 CanLII 24015 (ON CA), 2001 CanLII 24015, [2001] O.J. No. 705, 2001 CarswellOnt 537 (Ont. C.A.), which established the importance of deferring to parental autonomy unless all three of the following questions are answered in the affirmative:

(1) Does a positive grandparent-and-grandchild   relationship already exist?

(2) Has the parent’s decision imperilled the positive grandparent-and-grandchild relationship?

(3) Has the parent acted arbitrarily?

See also Giansante et al. v. Di Chiara, 2005 CanLII 26446 (ON SC), 2005 CanLII 26446, 141 A.C.W.S. (3d) 71, [2005] W.D.F.L. 4015, [2005] O.J. No. 3184, 2005 CarswellOnt 3290 (Ont. Fam. Ct.).

In answering the first question, the case law clearly establishes that a “positive” grandparent-and-grandchild relationship means something more than an occasional pleasant experience for the child.  In order to displace the principle of parental autonomy, the grandparent-and-grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation.  In the  majority of cases in which the court imposed an access order in favour of a grandparent against an unwilling parent, the child had either lived with or spent significant time with the grandparent over a significant period prior to the litigation:  Tucker v. Lester and Lester, 2002 SKQB 225 (CanLII), 220 Sask. R. 309, [2002] 9 W.W.R. 585, 29 R.F.L. (5th) 238, [2002] S.J. No. 322, 2002 CarswellSask 331 (Sask. Q.B.); Jones (Collins) v. Scheltgen, 2003 CanLII 2389 (ON SC), 2003 CanLII 2389, 127 A.C.W.S. (3d) 93, 127 A.C.W.S. (3d) 478, [2003] O.J. No. 4417, 2003 CarswellOnt 4605 (Ont. Fam. Ct.); Foster, Foster and Foster v. Allison, 2003 CanLII 2369 (ON SC), 2003 CanLII 2369, 44 R.F.L. (5th) 78, [2003] O.J. No. 3681, 2003 CarswellOnt 3528 (Ont. Fam. Ct.); Rodgers v. Rodgers, Rodgers and Campbell, 2003 SKQB 485 (CanLII), 240 Sask. R. 77, 49 R.F.L. (5th) 183, [2003] S.J. No. 737, 2003 CarswellSask 761 (Sask. Q.B.); Bellamy and Bellamy v. Wendzina, 2004 SKQB 78 (CanLII), 246 Sask. R. 287, 49 R.F.L. (5th) 239, [2004] S.J. No. 163, 2004 CarswellSask 175 (Sask. Q.B.); C.W. and M.W. v. D.T. and C.T., 2004 ABPC 109 (CanLII), 4 R.F.L. (6th) 239, [2004] A.J. No. 704, 2004 CarswellAlta 801 (Alta. Prov. Ct., Fam. Div.); Kobow v. Kobow (Nielsen), 2007 ONCJ 514 (CanLII), 46 R.F.L. (6th) 455, [2007] O.J. No. 4317, 2007 CarswellOnt 7238 (Ont. C.J.); Ekvall v. Cooper, 2007 SKQB 440 (CanLII), 305 Sask. R. 243, 47 R.F.L. (6th) 426, [2007] S.J. No. 640, 2007 CarswellSask 691 (Sask. Q.B.); Dhillon v. Dhillon Estate, 2008 CanLII 66140 (ON SC), 2008 CanLII 66140, 63 R.F.L. (6th) 317, [2008] O.J. No. 5093, 2008 CarswellOnt 7703 (Ont. S.C.).”

Barber v. Mangal and Hurst, 2009 ONCJ 631 (CanLII) at 12-13

“The SSAG are a useful tool in calculating the appropriate amount and the duration of spousal support. Neither counsel provided this court with that information. Nevertheless, as pointed out in Fisher v. Fisher, 2008 ONCA 11 (CanLII), 88 O.R. (3d) 241, at para. 98:

[The SSAG] suggest a range of both amount and duration of support that reflects the current law. Because they purport to represent a distillation of current case law, they are comparable to counsel’s submissions about an appropriate range of support based on applicable jurisprudence.

This court in Fisher continued at paras. 102-103:

Now that [the SSAG] are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.

At para. 97 of Fisher, this court cautioned that the SSAG “must be considered in context and applied in their entirety”: see also Mason v. Mason, 2016 ONCA 725 (CanLII), at para. 121. At para. 109 of Fisher, this court pointed out that “[a]mount and duration are interrelated parts of the formula – they are a package deal. Using one part of the formula without the other would undermine its integrity and coherence.”

In the recently released Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), Rogerson and Thompson again remind courts to remember duration. Section 3(e) states, “[d]uration is often forgotten in the SSAG analysis. The formulas generate ranges for amount and duration. Amount cannot be considered alone.”

Wharry v. Wharry, 2016 ONCA 930 (CanLII) at 84-87

“Interestingly, Colletta, for the most part, has been interpreted as standing for the proposition that excluded property deposited into a joint account loses its exclusionary character to the extent of the one-half interest that is presumed to be gifted to the spouse: see Goodyer v. Goodyer, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29, 168 D.L.R. (4th) 453 (Gen. Div.), at para. 76; Cartier v. Cartier, 2007 CanLII 52427 (ON SC), [2007] O.J. No. 4732, 47 R.F.L. (6th) 436 (S.C.J.), at footnote 4; and Ilana I. Zylberman and Brian J. Burke, “Tracing Exclusions in Family Law” (2006), 25 Can. Fam. L.Q. 67.

In my view, this is, in fact, the correct approach. That this is so is best understood by recalling that, in addressing property issues under Part I of the Family Law Act, the court first determines issues of ownership before turning to questions involving calculation of the parties’ net family properties: for example, see McNamee v. McNamee (2011), 106 O.R. (3d) 401, [2011] O.J. No. 3396, 2011 ONCA 533 (CanLII), at paras. 56-63. [page327]

While s. 14 of the Family Law Act creates certain presumptions with respect to the ownership of property, it does not address how each party’s net family property is to be calculated. Rather, it is s. 4(2) that stipulates the exclusions from net family property.

In relation to gifts, s. 4(2) states that “[p]roperty, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage” is to be excluded. Similarly, “[p]roperty, other than a matrimonial home, into which [a gift] can be traced” is excluded.

Given that the legislature made clear its intention that gifts used to purchase a matrimonial home lose their excluded character, but did not do the same in relation to moneys deposited into a joint account, I discern no legislative intent that the entire amount of the gift should lose its excluded character when deposited into a joint bank account. See, also, Brubacher v. Brubacher, [1996] O.J. No. 2730, 10 O.T.C. 111 (Gen. Div.), at para. 34; LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141, 18 R.F.L. (6th) 386 (S.C.J.), at paras. 50-51; Cartier, at paras. 2, 33-36.

In my view, therefore, the trial judge in this case erred in concluding that all of the gift moneys lost their excluded character when deposited into a joint account.”

Townshend v. Townshend, 2012 ONCA 868 (CanLII) at 28-33

“When the matter eventually proceeded before Baltman J. of the Superior Court of Justice on July 23, 2008, the appellant’s motion was dismissed in its entirety, in part on the basis that it was an abuse of process.  The motion judge stated:

The husband currently has 4 (four) outstanding appeals, all arising out of the same matters dealt with by Coats, J.  He has already brought a motion to vary Coats J.’s judgment which was dismissed by Murray J., on January 10, 2008 (in part because there was no evidence of a change in circumstances) which is now under appeal.  The husband brought a motion before the Ontario Court of Appeal on June 5, 2008 to stay the support payments pending appeal of Coats J.’s judgment, which was dismissed.

While in theory the husband has the right to move to vary upon a material change, we cannot on any whim reinstigate proceedings that are essentially identical to ones he has recently lost and has under appeal.  The husband is essentially trying to relitigate the motion already dismissed by Murray J., relying upon what is in my view the identical grounds and essentially the same evidence or at least evidence that could or should have been raised previously.  This violates what Arbour J., calls the “principles of judicial economy, consistency, finality and the integrity of the administration of justice”: Toronto v. CUPE Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, at paras. 35-55.

We agree with this conclusion and with the motion judge’s reasoning in support of it.”

Misheal v. Okel, 2008 ONCA 832 (CanLII) at 13-14

“The requirement that a judge give reasons for decision is clear. It is an inherent aspect of the discharge of a judge’s responsibilities. See R. v. Sheppard 2002 SCC 26 (CanLII). As Binnie J. noted at para. 24 of Sheppard:

[T]he requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The need for reasons in the family law context was affirmed by this court in Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112 and Bodnar v. Blackman (2006), 2006 CanLII 31803 (ON CA), 82 OR (3d) 423 at para.11. At para. 27 of Young, Laskin J.A., writing for the court, stated:

The desirability of reasoned reasons in a criminal case rests on three main rationales: public confidence in the administration of the justice system, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful. These three rationales also apply to a family law case and are relevant in this case.

The adequacy of reasons is determined on a functional basis. The reviewing court should consider whether the reasons are sufficient given the three rationales stated above. In my view, given the obvious issues disclosed by the record, it was an error to award all the requested extraordinary expenses without any engagement with the test or explanation of why the award was appropriate.

I agree with Justice Gillese’s comments at paras. 21 and 22 of Bodnar which emphasize that appellate courts must not place an impossible burden requiring perfect reasons on busy trial courts. The reasons, nevertheless, must be adequate.”

Titova v. Titov, 2012 ONCA 864 (CanLII) at 29-32

“It is well-established that the test for interpretation and certainty of the terms of a contract is objective. One party’s views about the agreement, or how it would later work, not agreed to by the other side, is irrelevant. See Ko v. Hillview Homes Ltd. 2012 ABCA 245 (CanLII), 2012 CarswellAlta 1759 (Alta. C.A.) at para. 26, citing, among other cases, Eli Lilly & Co. v Novopharm 1998 CanLII 791 (SCC), [1998] 2 SCR 129.

…

The case of Neher v. Kossowan, 2008 CarswellAlta 847 (Alta QB) confirmed that when construing an agreement, the court must give effect to the plain meaning of the words used unless it would result in an absurdity to do so. Words other than terms of art are to be construed in their ordinary and natural sense.  It is also noted that the same rules govern the interpretation of domestic contracts as govern the interpretation of contracts generally (see Krone v. Krone, 2011 CarswellNfld 67, at para. 112 quoting  James G. McLeod & Alfred A. Mamo, Annual Review of Family Law, (Toronto: Thomson Carswell, 2008) at page 625.)”

Carrigan v Brewer, 2012 ONSC 6952 (CanLII) at 21 and 25

“Insofar as declaratory relief is concerned, I note that the jurisprudence is to the effect that the Superior Court’s jurisdiction to grant declaratory relief is not to be exercised in a vacuum; a court must have a reason to exercise its discretion to grant declaratory relief; where legislation exists dealing with the subject matter, the court should consider whether a legislative gap exists that would give rise to a jurisprudential reason for exercising the court’s discretion to grant declaratory relief. See, for example, Danso-Coffey v. Ontario, 2010 ONCA 171 (CanLII), 99 O.R. (3d) 401, at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (2016-Rel. 3), (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can only be granted if it will have practical utility in settling a “live controversy” between the parties: see Daniels v. Canada, 2016 SCC 12 (CanLII), 395 D.L.R. (4th) 381, at para. 11, Khadr v. Canada (Prime Minister), 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of this jurisprudence was the subject of submissions before us.”

N.L. v. R.R.M., 2016 ONCA 915 (CanLII) at 51

“As the Supreme Court explained in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60, the test for the demonstration of a reasonable apprehension of bias is as follows: What would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

Mwanri v. Mwanri, 2015 ONCA 843 at 16

“In our view, a party to a marriage contract cannot enter into it knowing of shortcomings in disclosure and then rely on those shortcomings as the basis to have the contract set aside: see Raaymakers v. Green, 2006 CanLII 719 (ON CA), [2006] O.J. No. 124, 25 R.F.L. (6th) 54 (C.A.), at para. 40.”

Butty v. Butty, 2009 ONCA 852 at 54

“…after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450 (CanLII), 65 R.F.L. (7th) 6, at para. 11.)  In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation.  Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

Manchanda v. Thethi, 2016 ONCA 909 (CanLII) at 13