Author: dawi

“Section 6 of the Family Responsibility & Support Arrears Enforcement Act, 1996, S.O. 1996 c. 31, makes it clear that to stay enforcement by Family Responsibility Office, it is not enough just to obtain an order staying enforcement.  The support order itself must also be stayed.  Suspending or staying a final order is indistinguishable in effect from an interim variation of that order.  For a time, this meant the court was dealing with two different legal tests, one for the stay of enforcement (for example see Yip v. Yip, 1988 CanLII 4472 (ON SC), [1988] O.J. No. 2784 (Ont. H.C.)) and one for an interim variation of a final support order (for example see Dancsecs v. Dancsecs, 1994 CanLII 7434 (ON SC), [1994] O.J. No. 1070 (Gen.Div.)).

The two tests were melded in the often cited and relied on decision by Justice Quinlan of Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, at paragraph 37.  The test she set out was that the payor needed to demonstrate “a prima facie case on the merits of the variation application” and come to court with “clean hands”.

Shortly afterward Hayes v. Hayes, 2010 ONSC 3650 reviewed the different heads of relief and applicable tests as well starting at para. 27.  Justice Spies also concluded (at paragraph 39) that it would preferable to have one test for both the stay of enforcement and the request to suspend or vary the existing order on a temporary basis.  She adopted the test set out in Garneau, adding that the previous caselaw had also indicated that the moving party must establish a case of hardship.  As set out in paragraph 40 of that decision, she summarized that relief can be granted if the moving party (1) has established “a prima facie case that there has been a material change”, (2) has established hardship, and (3) and has come to the court with clean hands.

The following year the tests for an interim stay of enforcement and an interim variation of a support order were looked at again by Justice Mitrow in Clark v. Vanderhoeven, 2011 ONSC 2286.  He also found that there should only be one test, the first part being that the moving party must demonstrate “a prima facie case on the merits of the variation application”.  Drawing from previous cases, in his restatement of the test (at paragraph 67) he found that the “hardship” must be a clear case or there must be a finding that the continuation of the order is incongruous and absurd, which meant inappropriate, unreasonable or ridiculous.  He also reemphasized the need for the variation be urgent.

Justice Kurz recently also took a comprehensive look at the law in Berta v. Berta, 2019 ONSC 505.  Although that was a Divorce Act case, he found that the same principles and treatment applied in both legislative schemes.  In large measure he adopted the Hayes and Clark decisions (at para. 36), although in looking at the history of the test and the need for a “clear case” for relief, he was of the view the moving party’s prima facie case must be a strong one.  His version of the test is set out at para. 40, and was adopted recently in Raaflaub v. Gonosch, 2020 ONSC 1578 at para. 7 and Surdyka v. Surdyka, 2020 ONSC 3366 at para. 12.  I apply it here:

[40]        … the applicable test for an interim variation of a final support order (and by extension a stay of the previous one) requires the moving party to prove:

1. 1. 1. A strong prima faciecase;
      2. A clear case of hardship;
      3. Urgency;
      4. That the moving party has come to court with “clean hands”.

Regarding the first part of the test, the question is not just whether there has been a material change in circumstances, but whether there is a strong prima facie case on the merits of the variation application as a whole.  That means being mindful of the original support order and varying it only to the extent required by the change in circumstances: Haworth v. Haworth, 2018 ONCA 1055 at para. 21.”

            Brown v. Brown, 2020 ONSC 7085 (CanLII) at 23-28

“The position of Ms. Carder is that child support should be based upon Mr. Morris’ line 150 income minus union dues.  Mr. Morris’ position is that child support should be based upon his line 260 income which incorporates a further deduction related to his expenses travelling to and from work.

Mr. Morris is employed by E.F. Fox, a corporation based in Niagara Falls.  Mr. Morris’ employment is governed by a union contract which compensates him for driving approximately 68 kilometers each way to and from his home to work on the premises of Bruce Power.

Schedule III to the Child Support Guidelines provides for an adjustment to income for Income Tax Act section 8(1)(h.1) travel expenses, which provides as follows:

     (h.1)      where the taxpayer, in the year,

(i)      was ordinarily required to carry on the duties of the office or employment away from the employer’s place of business or in different places, and

(ii)     was required under the contract of employment to pay motor vehicle expenses incurred in the performance of the duties of the office or employment,

amounts expended by the taxpayer in the year in respect of motor vehicle expenses incurred for travelling in the course of the office or employment, except where the taxpayer

(iii)    received an allowance for motor vehicle expenses that was, because of paragraph 6(1)(b), not included in computing the taxpayer’s income for the year, or

(iv)     claims a deduction for the year under paragraph 8(1)(f);

Mr. Morris agreed in cross-examination that throughout all the years in question he worked at one location being Bruce Power.  He drove to work every day and parked his truck.  He did not need to use it for work and only needed it to drive back home.  I fail to see how expenses to get to work, constitute “expenses incurred for travelling in the course of the office or employment” as referred to in section 8.(1)(h.1).

Further, if Mr. Morris is allowed to pay support based on line 260 income he would be treated better (and Tyler would be treated worse) than the vast majority of employee-payors who incur expense to get to work and then pay child support on line 150 income.

I, therefore, calculate Mr. Morris’ obligation based on his line 150 income.”

            Carder v. Morris, 2020 ONSC 6950 (CanLII) at 14-19

“In D’Agnone v. D’Agnone, 2017 ABCA 35 (CanLII), 48 Alta. L.R. (6th) 8, at paras. 19-25, the Alberta Court of Appeal provided the following guidance regarding what must be proven to establish a claim in conspiracy:

The tort of conspiracy requires the defendants to have an agreement to engage in a course of conduct with the predominant purpose of injuring the plaintiff, or if the conduct of the defendants is unlawful, to have acted knowingly or having ought to have known that injury to the plaintiff is likely to result: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452 (S.C.C.).

In Cement LaFarge, the court acknowledged that “the scope of the tort of conspiracy is far from clear”, but it may be found where parties combine and effect loss in the following manner:

1. 1. 1. 1. 1. 1. 1. Whether the means used by the defendants are lawful or unlawful the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or
                  2. Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In Mraiche Investment Corp. v. Paul, 2012 ABCA 95 (CanLII), 524 A.R. 151 (Alta. C.A.) at para 40, this Court adopted the somewhat restated test as follows:

. . . the following elements must be proved:

1. 1. 1. 1. 1. 1. 1. an agreement between two or more persons;
                  2. concerted action taken pursuant to the agreement;
                  3. (i) if the action is lawful there must be evidence that the conspirators intended to cause damage to the plaintiff;

(ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the plaintiff (constructive intent);

1. 1. 1. 1. 1. 1. 4. actual damage suffered by the plaintiff;

The tort of conspiracy requires an agreement that is acted on and causes injury to the plaintiff. The agreement may be inferred and need not be in any specific form, or even constitute a binding contract: .. . Proving an agreement to a conspiracy is often dependent on circumstantial evidence. However, to be party to a conspiracy, more than mere knowledge that a conspiracy exists is required: … . The facts of the alleged agreement must be known and intention to be part of the alleged agreement must be found: … . There must be intentional participation with a view to furthering the common design and purpose.

The first form of civil conspiracy identified above, predominant purpose conspiracy, requires that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff, using lawful or unlawful means, and that the plaintiff suffers loss caused by the defendants’ conduct: … .

The second form, unlawful means conspiracy, requires that the alleged co-conspirators do something contrary to law to further their agreement. Unlawful means have been held to include fraud, perjury and breach of court orders: … .

A third characterization of civil conspiracy includes knowing assistance in breach of trust. This requires that there be a trust, that the trustee perpetuate a dishonest and fraudulent breach of trust, and that the respondent participate in and have actual knowledge of the trustee’s dishonest and fraudulent breach of trust: … . The knowledge requirement for this type of liability is actual knowledge; recklessness or wilful blindness will also suffice: … .”

            Leitch v. Novac, 2017 ONSC 6888 (CanLII) at 43

“The parties agree that the test for the date of separation is the objective determination of the date the parties separated with no reasonable prospect or expectation of resuming cohabitation.  Both parties rely upon Warren v. Warren, 2019 ONSC 1751, and say it supports their respective position.

At paragraph 7 of Warren, a list of objective factors is set out to assist the reasonable person in determining whether there has been a separation with no reasonable prospect of resuming cohabitation.  It has to be an objective determination.  A relationship requires two people and sometimes one of the parties does not understand or accept the relationship is over.  On the other hand, sometimes one of the parties may harbour a secret resolution that the relationship is over but has not made it clear to the other of this fact.  It must also be remembered that the purpose of the separation date is to set a date at which time the parties ceased being one entity for financial purposes—a couple—and became another, a separated couple: see Strobele v. Strobele, [2005] O.J. No. 6312, at paras. 29 – 32.

The main point in Warren and in all the cases cited is recognition that each relationship is different.  Because of this, the list of factors set out in Warren at paragraph 7 is only that: a list.  It is not as if one factor takes precedence, or that a certain combination of factors is necessary, or a majority of factors will decide the issue.”

            Zahelova v. Wiley, 2020 ONSC 6990 (CanLII) at 20-22

“Rule 1(8) reads as follows:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

Rule 1(8) of the Family Law Rules has its civil counterparts in Rules 60.12 and 53.07(2) and of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  It contains a broad selection of sanctions available to courts to change litigation conduct and to promote the objectives of Rule 2: timely, procedurally fair, cost effective and proportional management of family law cases.

Amongst the subrule’s array of sanctions, Rule 1(8)(b) is the nuclear option. It is more than a stay pending compliance – it is the end of a claim even were there to be future compliance.  It brings the claim itself to an end, not just the litigation. Because it is such a significant Order, it must always be an Order of last resort.

Judicial treatment of Rule 1(8) generally begins with Justice Quinn’s admonition in Gordon v. Starr, [2007] W.D.F.L. 4107, [2007] (Ont. S.C.) that “court Orders are not suggestions” and that “[o]ne of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.”

In Roberts v. Roberts, 2015 ONCA 450 (CanLII) Justice Benotto of the Ontario Court of Appeal spoke specifically about obeying Orders for disclosure, emphasizing that the most basic obligation in family law is the duty to disclose financial information and the failure to abide by this fundamental, immediate and ongoing obligation “impedes the progress of the action, causes delay and generally acts to the disadvantage to the opposite party.  It also impacts on the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.  Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.”

In Manchanda v. Thethi, 2016 ONSC 3776 (CanLII), appeal dismissed 2016 ONCA 909 (CanLII), Justice Myers at para. 22 was crystal clear about the consequence of failing to evidence one’s case on a timely basis.

A party should not have to endure order after order after order being ignored and breached by the other side.  A refusal to disclose one’s financial affairs is not just a mis-step in the pre-trial tactical game that deserves a two-minute delay of game penalty.  Failure to disclose is a breach of the primary objective.  Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules.  It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.

Courts serve the public by assisting litigants in the resolution or the adjudication of their legal disputes. They cannot and must not be used to unnecessarily further those disputes or for an improper purpose: such as making a temporary order effectively final by preventing the matter from ever reaching trial.  As stated by Justice Diamond in Granofsky v. Lambersky, 2019 ONSC 3251, a just determination of any family proceeding is rooted in the protection of the administration of justice as a whole, and when a party chooses to consistently disobey a court order, the administration of justice itself is called into question.”

            Milne v. Milne, 2019 ONSC 6601 (CanLII) at 5-11

“The question of when a judge should hear oral evidence when deciding an application under the Hague Convention has not been the subject of extensive judicial discussion in Canada. Typical is the statement of Little J. at para. 25 of In Mahler v. Mahler (1999), 1999 CanLII 14255 (MB QB), 3 R.F.L. (5th) 428 that “The Hague Convention procedures are summary ones and except in the most unusual of circumstances are based on affidavit evidence.”

It is worth noting that in Thomson, the application judge was asked but refused to order a trial on the issue of harm. The Supreme Court of Canada noted this fact in its description of the proceedings below but said no more about it.

In this court, in Cornfeld v. Cornfeld, [2001] O.J. No. 5773 (C.A.) the application judge refused to order a psychological assessment of the children requested by the mother to support the Article 13(b) exception. Charron J.A. in refusing to stay the order of return found that “the applications judge was justified in finding that the matter could, and should, be decided on the basis of the existing record.”

The jurisprudence of other jurisdictions is instructive. Lord Justice Thorpe of the Court of Appeal (Civil Division) of England and Wales succinctly stated what I consider the proper approach in Re W (a Child). At para. 23 he said:

The experience and the instinct of the trial judge is always to protect the child and to pursue the welfare of the child. That instinct and experience sometimes is challenged by the international obligation to apply strict boundaries in the determination of an application for summary return. The authorities do restrain the judges from admitting oral evidence except in exceptional cases. The authorities do restrain the judges from making too ready judgments upon written statements that set out conflicting accounts of adult relationships. What the authorities do not do is to inhibit the judge from himself or herself requiring oral evidence in a case where the judge conceives that oral evidence might be determinative. The judge’s conduct of the proceedings is not to be restricted by tactical or strategic decisions taken by the parties. However, to warrant oral exploration of written evidence, the judge must be satisfied that there is a realistic possibility that oral evidence will establish an Article 13(b) case that is only embryonic on the written material.”

Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at 33-36

“The Ontario Court of Appeal has reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.), Serra v. Serra, 2009 ONCA 395 and Mattina v. Mattina, 2018 ONCA 867 (C.A.).  In those cases, the court held that modern rules respecting costs aim to foster the following four fundamental purposes:

1. 1. 1. 1. 1. To partially indemnify successful litigants for the cost of litigation;
            2. To encourage settlement;
            3. To discourage and sanction inappropriate behaviour by litigants;  and
            4. To ensure that cases are dealt with justly, in accordance with the primary objective of the Family Law Rulesset out in Rule 2(2).

While these four objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice.  Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.); Climans v. Latner, 2020 ONCA 554 (C.A.), at para. 90).

The Court of Appeal has highlighted the discretionary nature of costs awards and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews (1980), 1980 CanLII 1913 (ON CA), 32 O.R. (2d) 29 (C.A.)).  It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181, 2003 CarswellOnt 3606 (C.A.);  Fielding v. Fielding, 2015 ONCA 901 (C.A.).

The determination of costs is a two-stage process.  First, the court must decide whether any party is liable for costs.  If costs liability is established, the court must then determine the appropriate amount of the costs award.  Rule 24(10) of the Family Law Rules establishes the general principle that the court shall promptly after dealing with a step in the case determine in a summary manner who, if anyone, is entitled to costs in relation to that step and set the amount of any costs, or alternatively shall expressly reserve the decision on costs for determination at a later stage in the case.   However, Rule 24(11) provides that the court’s failure to act pursuant to Rule 24(10) in relation to a step in the case does not prevent a judge from awarding costs in relation to the step at a later stage in the case.”

            Weber v. Weber, 2020 ONSC 6855 (CanLII) at 10-13

“From a child’s perspective, joint custody has an inherent appeal.  It allows each parent to be actively involved in the child’s life, and to have meaningful input with respect to important decisions.  It may help ameliorate a child’s sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally.  Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.

But joint custody will only work if the parents have the desire and the capacity to make it work.  It is not a risk-free option.  In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles.  Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency.  They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 503-504

“Although the grandmother may bring an application for access, she does not have a legal right of access. To be successful she must show that access is in her granddaughter’s best interests. Further the court will give considerable weight to the wishes of the custodial parent. Chapman v. Chapman, 15 RFL (5^th) (Ont. C.A.).

The case law supports that the following must be established: does a positive grandparent grandchild relationship already exist; has the parents’ decision to terminate access imperiled the positive grandparent grandchild relationship and has the parent acted arbitrarily. Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184.

Elements of a positive relationship have been summarized as: a strong loving tie between the child and grandparent; the relationship must be constructive in the sense it is worth preserving but if relationships are too poisoned the relationship may not be capable for preserving: the child’s age and the last time the child saw the grandparents. Torabi v. Patterson, 2016 ONCJ 210.”

            Beckwith v. Beckwith et al, 2019 ONSC 6470 (CanLII) at 6-8

“At the outset of the trial, the Respondent brought a motion for an order initializing the names of the parties in this proceeding. The Applicant consented to the motion.

An order initializing the names of parties to a proceeding is a restriction on the open court principle which is fundamental to the Canadian justice system and protected by s. 2(b) of the Canadian Charter of Rights and Freedoms: Vancouver Sun (Re), 2004 SCC 43 (CanLII), [2004] 2 S.C.R. 332. Regardless of the Applicant’s consent, I must still determine whether the Respondent has met the test for an order initializing the parties’ names.

In Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 the Supreme Court of Canada set out a two part test to be applied where a court is asked to order that public access to a court file be limited or restricted. Because of the importance of the open court principle in the common law and our democratic society, the test for restricting public access to judicial proceedings is a stringent one. The party seeking an order restricting access to the file must establish that:

1. 1. 1. 1. 1. The order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and,
            2. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The Respondent argues that the parties’ identities should be protected because there is a risk of harm to the safety and security of future children or family members of both parties if they were to learn the details of this case.

The Applicant is 41 years old. The Respondent is 63 years old. There is no evidence before the Court that either party has children or that a serious risk of emotional or other harm would result if any of their respective adult family members were to discover the existence and facts of this case.

The Respondent may be embarrassed and not want the details of his private life to be part of the public court record, but this is not sufficient to justify limiting the open court principle. “A litigant’s personal interest in keeping certain litigation details private cannot establish the “necessity” branch of the Dagenais/Mentuck test. Rather, the jeopardized interest must have a public component…there must be convincing evidence of harm to the administration of justice.”:  L.C.F. v. G.F. 2016 ONSC 6732 at paras. 32, 36 and 37.

I find that the Respondent has not met the test in Dagenais/Mentuck. The motion for an order initializing the names of the parties is dismissed.”

            Hart v. Fullarton, 2020 ONSC 6804 (CanLII) at 4-10