Author: dawi

“The following principles guide whether counsel should be permitted to withdraw:

• • • • A court should allow counsel to withdraw for any reason if such request is made far enough in advance of any scheduled proceeding such that its adjournment will not be necessary;
      • Even if timing is an issue, a court must accept at face value counsel’s evidence that the withdrawal is sought for ethical reasons and grant the withdrawal.  “Ethical reasons” include a client asking counsel to act in violation of his or her professional obligation as well as a client who refuses to accept counsel’s advice on an important trial issue.
      • However, if timing is an issue and counsel seeks to withdraw for any other reason, then the court may inquire further about counsel’s reasons so long as it does not reveal information that is subject to solicitor-client privilege. In these circumstances, removal may be denied if it would cause serious harm to the administration of justice: See Cunningham v Liles, 2010 SCC 10, paras. 46-54.”

Outaleb v. Waithe, 2021 ONSC 3480 (CanLII) at 8

“The Applicant’s factum does not address the law to be applied when a party seeks a second time to have the matrimonial home sold, when such a motion has previously been dismissed and where the other party was previously granted exclusive possession of the home by court order. The Applicant’s factum includes the statutory authority and law on claims for partition and sale and exclusive possession as if these issues were being raised for the first time. The Applicant did not pursue his appeal of Doi J.’s Order.

Kurz J. in Spadacini-Kelava v. Kelava, 2020 ONSC 7907 considered the concept of issue estoppel and summarized the law and additional principles at paras. 105 and 106, which provide as follows:

[105] The three-part test for the application of issue estoppel was adopted by the majority of the Supreme Court of Canada in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at p. 254. The Angle test was originally set out in the decision of Lord Guest of the British House of Lords in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, at p. 935, as:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies….

(See also Danyluk v. Ainsworth Technologies Inc., at para 25.)

[106] The nine following additional principles, derived from further authorities, are relevant to the consideration of issue estoppel in this case:

1. 1. 1. 1. 1. 1.  The issue out of which the estoppel is said to arise must have been “’fundamental” to the decision arrived at in the earlier proceedings (Angle v. Minister of National Revenue, at pp. 255, 265-66).
               2.  The breadth of issue estoppel “…extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk v. Ainsworth Technologies Inc., at para. 24).
               3.  Issue estoppel encompasses “issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it” (Allen v. Morrison(2006), 2006 CanLII 7283 (ON SC), 139 C.R.R. (2d) 324 (Ont. S.C.), at para. 21,citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 1084-85)).
               4.  Issue estoppel applies with equal effect to consent judgments (R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216, at para. 35, citing Hardy Lumber Co. v. Pickerel River Improvement Co.(1898), 1898 CanLII 16 (SCC), 29 S.C.R. 211; and Re Ontario Sugar Co.(1911), 24 O.L.R. 332 (C.A.), leave to appeal refused, (1911), 1911 CanLII 8 (SCC), 44 S.C.R. 659; Sekerbank T.A.S. v Arslan, 2016 SKCA 77, 480 Sask. R. 235, at para. 100).
               5.  “The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent” (Sekerbank T.A.S. v Arslan, at para. 100, citing Donald L. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: LexisNexis, 2010), at p. 359)).
               6.  The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice (Minott v. O’Shanter Development Co., at para 49; Danyluk, at para. 33). In doing so, the court “should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice” (Danyluk, at para. 80).
               7.  But that discretion must be “very limited in application” (General Motors Canada Ltd. v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, at p. 101, speaking of the discretion regarding res judicata).
               8.  When a party claims that newly discovered facts or materials, create special circumstances that overcome the application of issue estoppel, the court will look to the exercise of due diligence. The person seeking to relitigate an issue must demonstrate that the new fact or materials could not have been ascertained by the exercise of reasonable diligence at the time of the first action. (Grandview v. Doering,at pp. 626, 635-39; Minott v. O’Shanter Development Co., at para. 51).
               9. Issue estoppel applies to decisions of arbitrators and administrative tribunals (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., (Toronto: Butterworths, 2018) at p. 1416, para. 19.70; Minott v. O’Shanter Development Co., at para. 18; Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (C.A.)). As Abella J.A., as she then was, wrote for the court in Rasanen v. Rosemount Instruments Ltd., at para. 37:

[T]he policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

1. 1. 1. 1. 1. 10. Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246, McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd.(1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at 218, aff’d. [1994] O.J. No. 2792 (C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., 1924 CanLII 2 (SCC), [1924] S.C.R. 308.”

            Stolp v. Stolp, 2021 ONSC 3365 (CanLII) at 58-59

“In Jirova v Benincasa 2018 ONSC 534, Audet J, describes the use of parenting coordination as a dispute resolution model as follows:

[10] 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 of 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 final agreement/court order.

[11] 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.

[12] 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 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.

In Petersoo v Petersoo 2019 ONCA 624, the Court of Appeal opined on the issue of mediation/arbitration processes in family law as follows:

[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court. I do not agree with the appeal judge’s criticism of the process which did not include pleadings and a record of the pre-arbitration meeting.

In Sehota v Sehota 2012 ONSC 848, the court made the following comments at para. 24 and 28 that are instructive with the issue of parenting coordinators:

24.    The services of parenting coordinators have become an important part of the family law system. The court values the work of such professionals for the vast potential it holds for easing many of the difficulties litigants face. In particular, the court usually sees the children being benefited by the help of a parenting coordinator because that person can help the parents to put their children’s interests first, to understand how conflict hurts children and to cooperate in spite of their past sorrows and hurts.

28.    A further component of the guidelines is that the order for parenting coordination should be after a final order that sets out to the parenting plan. This case illustrates why this is preferable. It is not the job of the parenting coordinator to decide what the plan should be but two new wells the smaller issues of an overall established plan. The parenting coordinator is not to develop the plan, but to help the parties implement a final plan from a final order or agreement.

…

[60]      I agree with the dicta in Sehota v Sehota and Jirova v Benincasa, that a parenting coordination process should only be used for implementing, interpreting and applying a final order. Unfortunately, the parties engaged the parenting coordinator at a stage where the final order had not been issued. The parties were at a temporary order stage. The purpose of a parenting coordinator is to assist the parties in the implementation, interpretation and application of the terms of a final order.

…

With the greatest respect to the parenting coordinator, I am concerned about statements made by the parenting coordinator as to her role in creating a parenting schedule. In paragraph 14 and 25 of her January 27, 2021 Award, the parenting coordinator made the following comments:

[14]   … In the event that the parties are unable to agree, the parenting coordinator should be able to make an Award as Arbitrator to ensure that the preparation of the parenting plan proceeds in a timely fashion.

[25]   …The purpose of adding time was based on Ms. Bourgeois view that in order for her to be able to reasonably and fairly assess the father’s ability to care for the child, it would be best to have in place an adequate amount of parenting time.

I disagree with those statements. The parenting coordinator’s role is not to create a parenting schedule but rather it is to work with the existing schedule and to assist the parties in putting together a comprehensive parenting schedule.”

Ali v. Obas, 2021 ONSC 3412 (CanLII) at 42-44, 60, 78-79

“We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]

Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.”

         Ruffolo v. David, 2019 ONCA 385 (CanLII) at 18-19

“The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 CanLII 20774 (Ont. SCJ pars. 7-13).

Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.”

         Winiarz v. Anderson, 2020 ONCJ 238 (CanLII) at 20-21

“In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate.   A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator.   In addition, co-operative arrangements may lead to opportunities for further family violence.  To help courts assess the impact, severity and risks of family violence, s.16(4) provides a non-exhaustive list of additional criteria.

Subsection 16(4) provides the following in respect of factors relating to family violence.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or

whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family         member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.”

         Bell v. Reinhardt, 2021 ONSC 3352 (CanLII) at 15-16

“This is a classic example of why there are exceptions built into the SSAGs.  Where the SSAG formula generates results that are inconsistent with the objectives of the Divorce Act or the Family Law Act, an appropriate result is achieved by departing from the formula, for example:

a.   For short marriages, that can involve large compensatory claims that are disproportionate to the length of the marriage (SSAGs, c. 12.5); and

b.   Where there is a prior agreement, the SSAGs cannot be used to override an existing agreement (SSAGs, c. 5.2).

In short term marriages, support may be required to alleviate economic loss, such as when one spouse moves across the country (or from another country) to marry and has given up a job or business.  These types of circumstances can also bring the situation under the basic needs/hardship exception of the SSAGs.  Compelling financial circumstances at the interim stage may dictate a higher amount of support for a transitional period:  Divorce Act, s. 15.2(6)(c), and SSAGs, cc. 10.1 and 12.7.

An agreement, such as the Sponsorship Agreement that includes a promise by the Applicant to support the Respondent for three (3) years, is also a relevant factor in deciding spousal support.  The existence of such an agreement can create a reasonable expectation that the wife in this case would receive financial assistance from her husband: M. (O.) v. M. (N.E.), 2003 BCPC 99, 40 R.F.L. (5th) 189, and F.Y. v. F.F.G., 2005 MBQB 36, 16 R.F.L. (6^th) 420, at para. 43.”

         Khan v. Irum, 2021 ONSC 3314 (CanLII) at 19-21

“I agree with the observations of Forgeron J. in MacNeil v. Playford, 2008 NSSC 268 as follows:

[10] Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his/her child.  Domestic violence demonstrates an inability to problem solve in a healthy manner.  Domestic violence shows the absence of respect and dignity for the other parent.  Domestic violence demonstrates a reactive personality with poor impulse control.  Domestic violence is emblematic of poor parenting skills.

[11] Domestic violence will usually impact on the court’s determination as to whom should be assigned primary care of a child.  This is one factor, albeit a significant one, which determines the best interests of the child.  The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined and balanced in determining the best interest of the child.”

         Baran v. Baran, 2019 ONSC 2653 (CanLII) at 53

“The trial judge recognized that Kerr v. Baranow was decided within the context of common-law relationships.  He also knew that, in the present case, the parties had been married. Nonetheless, he understood that this court’s decision in Martin v. Sansome, 2014 ONCA 14 (CanLII), 118 O.R. (3d) 522, mandates that such an approach be followed for married couples, as well as those in common-law relationships. At para. 44 of his reasons, the trial judge states, “the first step must be the determination of whether or not the elements of a joint family venture exist and then determine whether or not there is fair compensation after reviewing the calculations in accordance with the scheme set out in the FLA for equalization of property.”

In my view, the trial judge erred by beginning his analysis with the question of joint family venture. He should simply have had recourse to the FLA. This court’s decision in Martin does not suggest otherwise.

In Martin, the trial judge concluded that the farm business was a joint family venture and awarded the wife a constructive trust interest in it. This court set aside the trial judge’s determination and replaced it with a calculation of the wife’s entitlement under the equalization provisions of the FLA.

At para. 63 of Martin, Hoy A.C.J.O., writing for the court, explains that s. 5(7) of the FLA makes it clear that the express purpose of the FLA equalization provisions is to address the unjust enrichment that would otherwise arise on marriage breakdown.

She then refers to para. 66 of McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, in which this court stated that, “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the [FLA]”.

At para. 66 of Martin, Hoy A.C.J.O. concludes,

if unjust enrichment as the result of a marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party’s entitlement under the equalization provisions of the FLA should first be calculated.

For these reasons, it was an error for the trial judge to begin his analysis by considering the possible existence of a joint family venture. For married couples, application of the FLA equalization provisions is the starting point for addressing inequities arising from marriage breakdown.”

            Halliwell v. Halliwell, 2017 ONCA 349 (CanLII) at 65-71

“In proposing an equal time-sharing parenting schedule, Michael did not focus on the children’s needs or best interests. Rather, he proposed an equal-time sharing schedule on the basis of what he saw as his right to have maximum time with the children. There is no presumption of equal time-sharing of children after a child’s parents separate. Section 24(9) of the Children’s Law Reform Act provides that a child should have as much time as possible with each parent. Section 24(9) does not override the best interests test contained in s.24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. It is noteworthy that Michael addressed his request for equal time with the children on the basis of his perceived right to equal time and not time on facts, which according to him, demonstrated that the children should be in his care 50% of the time.

Michael did not support his request for an equal time-sharing schedule on the basis of evidence, which, according to him had demonstrated that it would be in their best interests to be in each party’s care 50% of the time.  Section 24(9) of the Children’s Law Reform Act requires that the Court determine what “as much time as possible with each parent” means where parents disagree on the amount of time it would be in the children’s best interests to spend in their respective care.”

         Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 62-63