Author: dawi

“A joint owner of a property has a prima facie right to have the property sold. However, when the property is a matrimonial home, one owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold: Mignella, para. 23, Goldman v. Kudeyla, 2011 ONSC 2718, at para. 17.

As McGee J. noted in Goldman at para. 19, there have been many cases where the court has denied interim motions for sale. In each, there were compelling circumstances favouring the party resisting the sale, such as the availability of trial in a short period of time, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child.

McGee J. also noted that orders for the sale of the home should not be made as a matter of course. She wrote, at para. 20:

One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”

            Barbieri v. Vistoli, 2019 ONSC 6385 (CanLII) at 97-99

“The applicant wife seeks an order that the respondent husband pay her $150,000 within 30 days to cover interim disbursements.

Family Law Rule 24(12) states that “[t]he court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.”

Rule 24(12) is discretionary. In exercising discretion under rule 24(12), the court must ensure that the primary objective of fairness as set out in rules 2(2) and (3) is met. Specifically, the court must deal with cases justly and ensure that the procedure is fair to all parties. As Mesbur J. stated in Ludmer v. Ludmer, 2012 ONSC 4478 at para.14, “One of the primary themes of the case law is that orders may be required in order to ‘level the playing field’ between the litigants.”

The party seeking a payment under rule 24(12) does not have to prove that exceptional circumstances exist. Instead, the respondent must satisfy the following factors (see Stuart v. Stuart (2001), 2001 CanLII 28261 (ON SC), 24 R.F.L. (5th) 188 at para. 8; Ludmer at paras.15-17; Sadlier v. Carey, 2015 ONSC 3537 at paras. 34-38 and Turk v. Turk, 2016 ONSC 4210 at paras. 4, 24; McCain v. Melanson, 2017 ONSC 916 at paras. 2 to 4):

1. 1. 1. 1. 1. On a balance of probabilities, the moving party’s claim/defence has sufficient merit.
            2.  The legal fees are necessary and reasonable given the needs of the case and the funds available.
            3.  The moving party is incapable of funding the requested amount.”

Ballanger v. Ballanger, 2017 ONSC 6642 (CanLII) at 28-31

“This court can order that a litigation guardian for a person under disability pay the costs of an appeal.  See s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C-43, rule 57.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and Cameron (Public Guardian and Trustee of) v. Louden, [2002] O.J No. 2184 (Ont. S.C.J.).  In Cameron, Aitken J. thoroughly canvassed the applicable case law and competing policy concerns in ordering a statutory litigation guardian to pay the costs of an unsuccessful party under a disability.  The court has to ensure that the Public Guardian and Trustee is not unreasonably deterred from carrying out its duties by exposure to a costs order.  On the other hand, the court has to ensure that the Public Guardian and Trustee does not pursue frivolous litigation or otherwise act improperly at the expense of the opposing party.”

Hockey-Sweeney v. Sweeney, 2004 CanLII 34840 (ON CA) at 37

“In Greaves v. Greaves, 2004 CanLII 25489 (SCJ), Mesbur, J. was guided by the criteria defined by Weiler, J. (as she then was) in Oswell v. Oswell (1990), 74 O.R. (2^nd) (15) (H.C.J.), affirmed at (1992), 12 O. R. (3^rd) (95) (Ont. C. A.) to determine the date of separation.  Mesbur, J. framed this criteria in paragraph 34 of Greaves as follows:

34.   It is true that every marriage is different.  Parties can live apart under the same roof, and can still cohabit even if they live in separate locations.  The court must look at various objective factors to determine if the parties are living apart or not.  Oswell v. Oswell[5] perhaps best sets out the criteria for the court to consider.  These include the following:

(a)   there must be a physical separation…  Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b)   there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

(c)   the absence of sexual relations is not conclusive but is a factor to be considered;

(d)    other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(e)     Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f)      The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

In Greaves, Mesbur, J. did not find the presence or occurrence of a consistent sexual relationship to be determinative when she explained that:

37.   I accept the evidence of Mr. Greaves’ witnesses confirming the objective perception that this couple was separated.  They did not socialize as a couple.  They did not routinely eat together as a family.  They did not attend the same church.  Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be.

Heeney, J. in Tokaji v. Tokaji, [2016] O.J. No. 6547 relied on the quotation above taken from Greaves when called upon to consider several aspects of the lives of the parties to determine if their cohabitation was continual.  He considered the absence or presence of ongoing sexual relations to be indicative but not conclusive.  He also considered all aspects of their life with respect to purchasing a home an moving in together and expressions of intent to make the marriage work.  Heeney J. concluded that there remained a “reasonable prospect of presumption of cohabitation” until the husband in that case announced that he would not participate in marriage counselling. Heeney, J. based his finding that the parties had finally separated upon the happening of that event.”

            N.L.-C. v. J.C., 2019 ONSC 6207 (CanLII) at 83-85

“There is a high hurdle to overcome for a claim to succeed under s. 5(6) on the basis of marital infidelity. I concur with the view of Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 (CanLII), 55 R.F.L. (7th) 117, at paras. 46 and 49:

All of the provisions of section 5(6) are directly linked to the impact on one or both spouses’ debts, liabilities, or property. A general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient. … It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else.

…

However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. … Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

Therefore, while the threshold is high, two matters are clear. First, the determination can only be made after the usual equalization payment is calculated. It is that calculation that must result in unconscionability. By definition, therefore, this determination cannot be made on a pleadings motion; it can only be made once the equalization payment is known. This explains why the cases relied upon by the motions judge to strike the claim were trial judgments.”.

Frick v. Frick, 2016 ONCA 799 (CanLII) at 32-33

“When there is a finding of parental alienation, little weight should be given to the child’s wishes.  For example, in Pettenuzzo, at para. 55, Whalen J. stated “if I accept that there has been parental alienation in this case, as I do, then the child’s preferences are not her own, but are those of her mother or other maternal family as she has been convinced.”

This concept is consistently applied in parental alienation jurisprudence.”

Malhotra v. Henhoeffer, 2018 ONSC 6472 (CanLII) at 146-147

“M.H. seeks disclosure from R.B. — specifically a copy of the Crown brief with regard to the alleged assault.  Counsel for R.B. has received a copy of the Crown brief.

…

R.B. opposes this motion for disclosure.

…

The Crown Attorney was not served with M.H.’s motion but, by way of affidavit filed by R.B., it is clear that the Crown attorney opposes disclosure of the Crown brief.

I accept the reasoning set out in the cases submitted by counsel for M.H..  See D.P. v. Wagg, 2001 CanLII 28033, 52 O.R. (3d) 625, 8 C.P.C. (5th) 252, 81 C.R.R. (2d) 182, [2001] O.J. No. 595, 2001 Cars­well­Ont 546 (Ont. S.C.); Fullowka v. Royal Oak Mines Inc., 1998 CanLII 5724, [1998] N.W.T.R. 42, [1998] N.W.T.J. No. 11, 1998 Cars­well­NWT 4 (N.W.T.S.C.); and, Consolidated NBS Inc. v. Price Waterhouse (1994), 1994 CanLII 10979 (ON SCDC), 69 O.A.C. 236, 111 D.L.R. (4th) 656, 3 C.C.L.S. 186, 24 C.P.C. (3d) 185, [1994] O.J. No. 263, 1994 Cars­well­Ont 494 (Ont. Div. Ct.).  These cases form the basis of my decision on the motion for disclosure.

The use of material, such as the Crown brief, in civil cases does not constitute an ulterior or collateral use of the material.  Disclosure is not being sought for use against the Crown.  There is no solicitor-and-client privilege that can be claimed by R.B. since the Crown brief was not prepared by his counsel for use in this proceeding.

It is apparently the policy of the Crown attorney’s office to provide disclosure to an accused, subject to certain conditions.  Logically, the imposition of these conditions, as a general policy, is contrary to the Crown’s own disclosure obligations in criminal cases.  See paragraphs [13]-[16] of Fullowka v. Royal Oak Mines, supra.

There is no principle against self-incrimination in civil proceedings.  Litigants are required to make full disclosure and to seek out relevant documents for production.

In Cook v. Ip, 1985 CanLII 163, 52 O.R. (2d) 289, 11 O.A.C. 171, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81, [1985] O.J. No. 2653, 1985 Cars­well­Ont 586 (Ont. C.A.), Appeal Justice Peter D. Cory, as he then was, stated:

There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court.  This is essential if justice is to be done between the parties.”

            M.H. v. R.B., 2002 CanLII 54808 (ON CJ) at 3, 5 & 7-12

“In her notice of appeal, the appellant alleges that the motion judge’s reasons were insufficient on the analysis of credibility and fail to assess contradictory evidence. Insufficiency of reasons is an error of law that, if established upon appeal, would lead to an order for a new trial.

I find that the motion judge’s reasons were comprehensive, and the purposes for providing reasons were met. As set out by the Supreme Court of Canada in R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 41, reasons have three fundamental purposes:

(a)      Reasons should tell the parties affected by the decision (especially the losing party) why the decision was made. Reasons also show that the judge has heard and considered the evidence and arguments before them and has not considered extraneous considerations.

(b)     Reasons should provide public accountability by showing that justice is not only done but is seen to be done.

(c)      Reasons must permit effective appellate review. This requires the judge to give a clear articulation of the factual findings and legal principles that underlay the decision.

Jewish Family and Child Service of Greater Toronto v. E.K.B, 2019 ONSC 6214 (CanLII) at 146-147

“The payor also however, relies on Rule 19.08 of the Rules of Civil Procedure. That rule provides that the court may set aside a default order or vary it on terms as are just. The caselaw establishes that the court may rely on Rule 19.08 to set aside a warrant of committal (see 122164 Canada Ltd. v. C.M. Takacs Holding Corp. 2015 ONSC 3007 (Ont. S.C.J.) ). The factors that the court should consider in determining whether to grant such relief are as follows:

1. 1. 1. 1. 1. The ultimate issue on such a motion is whether it is in the interests of justice to set aside the default judgment. In deciding this issue, the judge should have regard for:

a)  The potential prejudice to the moving party if the motion is dismissed;

b)  The potential prejudice to the respondent should the motion be allowed; and

c) The effect of any order the motion judge may make on the overall integrity of the administration of justice (see Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 41 C.P.C. (6^th) 316, 2007 ONCA 333(Ont. C.A.).

2.   In assessing the issue of prejudice in the context of a motion to set aside a warrant of committal made in a Family Responsibility Office enforcement proceeding, the court should also consider any prejudice to the recipient from either granting or refusing the order (Mariani, at para. 67).

3.   In carrying out the analysis required on such a motion, the court should be guided by the following considerations:

a)   Whether the moving party moved promptly after learning of the order to have it set aside;

b)  Whether the moving party has provided an adequate explanation for the default; and

c)   Whether the moving party has an arguable case on the merits in the Family Responsibility Office default proceeding itself.

These three considerations are guidelines only for the court’s exercise of its discretion, and are not rigid preconditions to the exercise of the court’s discretion (Peterbilt ; Mariani ; Ontario (Director of Family Responsibility) v. Dick, 2013 ONCJ 198 (Ont. C.J.) ).

4.    The exercise of the court’s discretion on a motion to set aside a warrant of committal issued under the Family Responsibility and Support Arrears Enforcement Act, 1996. S.O. 1996, C.31, as am., should also be guided by the purposes of incarceration in this context. The caselaw establishes that imprisonment in the context of support enforcement is meant as a means of enforcement, and not as a means of punishment. The enforcement rationale for imprisonment upon non-payment of support only makes sense if the payor has the ability to pay the support and fails to do so (Mariani, para. 56).”

Director of Family Responsibility v. Lucy, 2017 ONSC 6497 (CanLII) at 7

“Even though an original RRSP contribution or deduction does not reduce the payor’s income for child support purposes, when RRSP monies are withdrawn in a later year they are included in Line 150 by operation of CSG section 16, and presumptively form part of the payor’s income for child support purposes: Fraser v. Fraser, 2013 ONCA 715 (CanLII), [2013] O.J. No. 5347 (Ont. C.A.) at para. 97.  There is some flexibility, however, and if the court is of the opinion that including the RRSP withdrawals would not be the fairest determination of the parent’s income, it can apply CSG section 17 as set out above and determine a different amount that is fair and reasonable: see Ludmer v. Ludmer, 2014 ONCA 827 at para. 23.  This is a discretionary exercise: Ludmer at para. 23; Liu v. Huang, 2020 ONCA 450 at para. 30.

…

Ludmer v. Ludmer is the leading decision regarding whether withdrawn RRSP monies used to pay for legal fees should be excluded from Line 150 income for child support purposes.  In that case the issues included both child support (in a shared parenting plan) and spousal support.  Both party’s incomes were therefore relevant.  Each parent in that case had taken out sizeable amounts from their RRSPs, although the mother took out substantially more.  If both sums were included in income for support calculations, that would have favored the father in calculating the set-off or CSG section 9 child support.  The trial judge excluded both.  The Court of Appeal agreed, noting that the mother per her Financial Statement had used her proceeds “primarily” to fund the litigation, not to enhance her lifestyle (para. 24).  The parties there had “engaged in scorched-earth litigation warfare”, explaining the high fees.”

            Richard v. Holmes, 2020 ONSC 6485 (CanLII) at 29 & 32