Author: dawi

“However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.

That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog: King v. Mann, 2020 ONSC 108, at para. 71; Warnica v. Gering, [2004] O.J. No. 5396, at paras. 25-28. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership. Although Warnica was upheld on appeal, the appeal was focussed primarily on whether the hearing judge was entitled to decide the case based on written materials filed during a case conference or whether a trial was needed: 2005 CanLII 30838 (ON CA), [2005] O.J. No. 3655 (C.A.).

The broader, more contemporary approach looks at the relationship between the parties and the dog. This approach has been adopted in many (but not all) Small Claims Court decisions, which is where these claims are frequently heard given their relatively modest monetary value. The principles are well summarized by Adjudicator W.A. Richardson in MacDonald v. Pearl, 2017 NSSM 5, at para. 25:

a.   Animals (including dogs) are considered in law to be personal property;

b.   Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c.   Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;

d.   Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i.   Whether the animal was owned or possessed by one of the people before their relationship began;

ii.   Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii.   The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv.    Who purchased and/or raised the animal;

v.   Who exercised care and control of the animal;

vi.   Who bore the burden of the care and comfort of the animal;

vii.  Who paid for the expenses related to the animal’s upkeep;

viii.  Whether at any point the animal was gifted by the original owner to the other person;

ix.    What happened to the animal after the relationship between the litigants changed; and

x.   Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

That list is not exhaustive; depending on the case, there may be other relevant factors.

In recent years this broader approach has continued to find favour in various courts: Eggberry v. Horn et al., 2018 BCCRT 224, at para. 31; Oh v. City of Coquitlam, 2018 BCSC 986, at paras. 50-53; Delloch v. Piche, 2019 BCPC 369, at paras. 19-24; and Almaas v. Wheeler, 2020 BCPC 51, at paras. 6-18 and 63-74.

Those two competing approaches collided in a case that was heard by three successive courts in Newfoundland: Baker v. Harmina, 2018 NLCA 15. Only one dog was in issue there. The trial judge, hearing the matter in Small Claims Court, took the narrow approach, and granted ownership to Mr. Baker, because he paid for the dog.”

          Coates v. Dickson, 2021 ONSC 992 (CanLII) at 6-11

“I have considered the best interest factors set out in ss. 24 and 39.4(3) CLRA. While it has long been established that the best interest considerations as set out in the CLRA is not an exhaustive list, the considerations provide significant guidance in this case.

While considering factors set out in the legislation, the court is required to take a holistic look at the child, their needs, and the people around them: see Phillips v. Phillips, 2021 CanLII ONSC 2480, at para. 47.

At para. 17, in Reeves v. Brand, 2018 ONCA 263, Laskin J.A. wrote:

17     Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

With the recent amendments to the CLRA, a more detailed procedural and substantive structure has been established to govern relocation cases. Even with these amendments, the challenges recognized in Reeves remain. See Zorab v. Zourob, 2021 ONSC 6552, at para. 4.”

          Lepine-Maynard v. Majstrorovic, 2022 ONSC 656 (CanLII) at 205-208

“Compensatory support is based on the roles of the spouses during the relationship; specifically where the recipient has lost career advantages in order to support the other spouses’ career or the children.

The legal considerations for the entitlement to compensatory support was reviewed by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500 (CanLII), at paras. 55-59.

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experience throughout the relationship as a result of the marital union.

Compensatory support ought not to be varied (unless there is an inability to pay) since it will have been awarded to recognize the length of the marriage and the roles adopted throughout the marriage. These factors are retrospective.”

         S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 37-41

“In Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44, leave to appeal refused, [2020] S.C.C.A. No. 194, the Court of Appeal reiterates the significance of non-disclosure in family court as a metastatic cancer of family law:

As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. … In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

The consequences of failing to disclose or a pattern of inadequate disclosure may vary.

For example, in Blatherwick v. Blatherwick, 2015 ONSC 2606, 8 E.T.R. (4th) 30, Ricchetti J. declined to admit a revised expert report that was introduced at trial. The revised expert report included previously undisclosed financial documentation dealing with the valuation of certain companies. In explaining his decision not to admit the report, Ricchetti J. reiterated the above excerpt from Iannarella to emphasize the importance of full and complete disclosure to civil litigation and trial fairness. He also referred to the Family Law Rules, O. Reg. 114/99, which incorporate by reference the disclosure requirements of the Rules of Civil Procedure, R.R.O., Reg. 194. Rule 19 of the Family Law Rules makes it clear that timely and full disclosure of every document relevant to an issue in the case is the rule. If a party does not produce the document, and it is favourable to the party’s case, that party may not use the document except with leave of the court: at paras. 12-13 of Schedule C (Admissibility Ruling).

In Katz v. Nimelman (2007), 2007 CanLII 51340 (ON SC), 46 R.F.L. (6th) 392 (Ont. S.C.), at para. 65, aff’d 2009 ONCA 445, the court drew an adverse inference against the wife at a trial throughout which “disclosure was a continuing thread.” The court concluded that the wife took unreasonable positions in response to requests for disclosure, and drew an adverse inference due to her failure to disclose. The adverse inference went to her credibility, and any doubt resulting from the inadequacy of her disclosure was resolved in her husband’s favour: at paras. 74, 81.”

            Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 43-46

“In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, this court adopted a list of other common characteristics typically found in vexatious litigants contained in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, which include:

• • • • • bringing multiple proceedings to try to re-determine already determined issues
        • rolling forward grounds and issues from prior proceedings
        • persistent pursuit of unsuccessful appeals
        • failure to pay costs awards
        • bringing proceedings for a purpose other than the assertion of legitimate rights[…]”

Wilson v. Fatahi-Ghandehari, 2023 ONCA 74 (CanLII) at 10

“The discretion not to enforce an offer to settle is to be exercised on a case by case basis and only rarely and in the presence of compelling circumstances: Yonge Village Recreation Centre Limited v. York Condominium Corporation No. 201, 2007 CanLII 36647 (ON SCDC), 229 O.A.C. 144 (Div. Ct.), adopted by Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc., 2018 ONCA 839, at para. 39.”

            Wright v. Wright, 2023 ONSC 810 (CanLII) at 38

“The midpoint of the Spousal Support Advisory Guidelines (SSAG) ranges should not be treated as the default amount for spousal support. The court is required to consider the support factors and objectives found in the Divorce Act and the Family Law Act; the strength of the recipient’s compensatory claim; the recipient’s need; property division and debts; and the payor’s needs and ability to pay: Mason v. Mason, 2016 ONC 725, 132 O.R. (3d) 641, at para. 199.”

Sne v. Sne, 2023 ONSC 566 (CanLII) at 49

“As noted by Bale J. in CCAS v. I.B. et al., 2020 ONSC 5498, at paragraph 148, a court should be mindful of the following distinctive features of child protection matters generally:

1. 1. 1. 1. The best interests, protection, and well-being of children takes precedence over all other considerations: Child Youth and Family Services Act, S.O. 2017, c.14, Sched. 1, s. 1.(1);
         2. The interests at stake in child protection proceedings are of the highest order – few state actions can have a more profound effect on the lives of both parent and child: New Brunswick (Minister of Health and Community Services) v. J.(J.), [1993] 3 S.C.R. 46 at para. 76;
         3. Fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children’s Aid Society v. W.(M.)at paras. 68-69.
         4. The decisions made in child protection courts have life changing consequences for parents, families, and children.  The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are forever left grieving the loss of their offspring: Brant Family and Children’s Services v. A.H. and C.T., 2019 ONCJ 540at para. 7.”

Children’s Aid Society of Niagara v. M.B. and D.J., 2023 ONSC 592 (CanLII) at 95

“I recognize that the wisdom of extending litigation privilege to the preparation of expert reports has been questioned by some judges: see Browne (Litigation Guardian of) v. Lavery, (2002) 2002 CanLII 49411 (ON SC), 58 O.R. (3d) 49 (S.C.), at paras. 65-71; Aviaco International Leasing Inc. v. Boeing Canada Inc., 2002 CanLII 21293, [2002] O.J. No. 3799 (S.C.), at para. 16. However, the law currently imposes no routine obligation to produce draft expert reports: Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), at para. 14; Mendlowitz v. Chaing, 2011 ONSC 2341 (CanLII) (S.C.), at paras. 20-24.

It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations.

The most obvious qualification is that the Rules of Civil Procedure require disclosure of the opinion of an expert witness before trial. If a party intends to call the expert as a witness at trial, rule 31.06(3) entitles the opposite party on oral discovery to “obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined”.

As well, the party who intends to call the expert witness is required to disclose the expert’s report and the other information mandated by rule 53.03(2.1). The result is that what has been called “the foundational information” for the opinion must be disclosed: Conceicao Farms, at para. 14. Bryant, Lederman and Fuerst refer to this as an “implied waiver” of privilege over the facts underlying an expert’s opinion that results from calling the expert as a witness: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014), at para. 14.220. These authors favour restricting the implied waiver “to material relating to formulation of the expressed opinion” (at para. 14.224). They state that caution should be exercised before requiring “wide-ranging disclosure of all solicitor-expert communications and drafts of reports”, as such a practice could encourage “a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem” (at para. 14.226).

The second qualification is that, as stated in Blank, at para. 37, “litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.” Litigation privilege yields where required to meet the ends of justice, and “[i]t is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day”: Blank, at para. 44.

In my view, the ends of justice do not permit litigation privilege to be used to shield improper conduct. As I have already mentioned, it is common ground on this appeal that it is wrong for counsel to interfere with an expert’s duties of independence and objectivity. Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions. See, for example, Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 (CanLII) (S.C.), at paras. 63-75, where the court ordered disclosure of draft reports and affidavits after an expert witness testified that he did not draft the report or affidavit containing his expert opinion and admitted that his firm had an ongoing commercial relationship with the party calling him.

Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor’s drafts and notes.”

            Moore v. Getahun, 2015 ONCA 55 (CanLII) at 72-78

“The appellant submits that the trial judge erred in treating s. 36(3) of the RHPA (Regulated Health Professions Act) as inapplicable, which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA. Her decision to admit the CPSO materials tainted her decision and she erroneously gave no weight to the assessor’s opinion or recommendations.

Section 36(3) of the RHPA provides the following:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 CanLII 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.

…

A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”

The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.

However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.”

          K.K. v. M.M., 2022 ONCA 72 (CanLII) at 44-48, 54-57