Author: dawi

“The case law generally favours an order for partition and sale of a home by a cotenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. That type of conduct is essentially bad faith conduct involving some sort of hidden agenda or purpose connected to the request for a sale of the property: see Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.J.) at para. 38. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:

That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner’s prima facie right to partition.”

Crews v. Bradford, 2018 ONSC 6413 (CanLII) at 15

“In Davis v. Crawford, 2011 ONCA 294 (Ont. C.A.), Justices Simmons and Lang writing for the five judge panel set out the following principles applicable to a lump sum support payment:

• A court’s ability to award a lump sum payment is not restricted to situations where there is a real risk that periodic payments will not be made or to very unusual circumstances (para. 51).
• Lump sum awards should not be made in the guise of support for the purpose of redistributing assets (para. 60).
• Lump sum awards can be made to relieve against financial hardship if this has not been done by orders dealing with distribution of property and the matrimonial home (para. 61).
• Whether the payor has the ability to make a lump sum payment without undermining his or her future self-sufficiency is an important consideration (para. 63).
• The court must weigh the advantages of a lump sum award against the disadvantages of doing so on the facts of each case (paras. 66-68).
• The judge making the lump sum award should provide a clear explanation for both the basis for the exercise of that discretion and the rationale for the figure arrived at (para. 75).
• If a lump sum award is made, the court should consider whether the amount is in keeping with the Spousal Support Advisory Guidelines and, if not, explain why the Guidelines do not provide a satisfactory result (para. 76).”

Golton v. Golton, 2018 ONSC 6245 (CanLII) at 291

“I concur the mother had a positive obligation to ensure Kaila be returned to the care of her father.  However, parents are not required to do the impossible in order to avoid a contempt finding.  They are, however, required to do all that they reasonably can (my emphasis).

In Supple v. Cashman [2014] O.J. No. 2800 (Ont. S.C.J.), A.D. Sheffield, J. dealt with among other things, a notice of motion by a father seeking to find the mother in contempt of prior orders as she was not facilitating his access.

The parties’ teenage children did not wish to see their father.  The father argued his estrangement was as a result of parental alienation by the mother and she was in contempt of court for not facilitating his access.  The evidence however failed to establish the mother intentionally breached the access order.  The mother had made attempts to facilitate access in the face of resistant teenagers.

At paragraph 17, J. Sheffield noted the following:

In making my order, I am also aware that the children in this case are entering adolescence.  They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidence by their adamant refusal to see their father despite the efforts of several adult relatives.  It is a simple reality that, despite a court order, teenagers are likely to seekout residency as it suits their desires and to “let their feet do the talking”.

Sheffield discussed the elements for a finding of civil contempt at paragraphs 31-34 as follows:

With respect to the third requirement, the court in Brookes v. Vander Muelen (1999), 1999 CanLII 14292 (MB QB), 141 Man. R. (2d) 25 (Q.B.) noted that the “standard of intention is knowledge of the reasons for the order and contravention of the other”.  Wilful disregard will count as intention, but casual, accidental or unintentional acts of disobedience are insufficient for a finding of contempt.

Evidence of contempt in family matters should be “clear and unequivocal”.  The courts are reluctant to make findings of contempt where a parent can show that she acted in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest: Brookes, supra.

In Geremia v. Harb (2007), 2007 CanLII 1893 (ON SC), 73 W.C.B. (2d) 395) (Ont. S.C.J.), Quinn J. discussed the efforts which a custodial parent must exert to honestly attempt to comply with a court order that children attend access visits with the non-custodial parent.  He stated, at paragraph 44:

Where a child should be physically forced by the custodial parent to go on an access visit depends on the facts of the case.  Certainly, the force used should not be such as to cause physical harm to the child.  And, although the specter of emotional harm is more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason.  Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform.  But ask we must and perform they must.  A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves.  The job of a parent is to parent.

In Sickinger, supra, the court noted that a parent does not have to force a child to go with the other parent but should “require” the child to do so.  Failure to require the child to attend access visits is considered contempt.

In Godard v. Godard 2015 ONCA 568, the Appellant mother appealed an order of the motion judge, finding her in contempt of court as she was not facilitating access to the father.  In particular, the mother felt there had been insufficient proof to satisfy the judge beyond a reasonable doubt that she willfully disobeyed the access order as the judge agreed the appellant had made some efforts to encourage their 12-year old daughter to see their father.

The court rejected this argument and stated at paragraphs 28 and 29:

Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child.  As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathrust, (2008), O.J. No. 4734 (Ont. S.C.J.) at para. 8.  See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 Can LII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup. Ct.).

No doubt, it may be difficult to comply with an access order, especially aschildren get older.  Parents are not required to do the impossible to avoid a contempt finding.  They are however, required to do all that they reasonably can.  In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant’s failure to do all that she reasonably could; she failed to “take concrete measures to apply normal authority to have the child comply with the access order”.

I do note that in Godard the Ontario Court of Appeal noted the motion judge had previously advised the appellant in prior proceedings that more than mere encouragement was required if the child did not wish to attend for access.  Despite their previous warning, the mother did not go beyond mere encouragement and attempt stronger forms of persuasion.

            Teal v. Teal, 2020 ONSC 6395 (CanLII) at 38-45

“As the father is the sole shareholder of the business, s. 18 of the Child Support Guidelines gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Section 18 provides:

Whenever s.18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes: Nesbitt v. Nesbitt, 2001 MBCA 113 (CanLII), [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32 (CanLII), [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. The reasoning is due to the reality that the payor parent knows more about the business than the recipient, and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. Elder v. Dirstein, 2012 ONSC 2852 (CanLII).”

            Lachance v. Campbell, 2015 ONSC 6551 (CanLII) at 40

“The respondent’s position is that the applicant is a special party as defined in Rule 2(1) of the Family Law Rules.  According to that rule, a special party is defined as follow:

“special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result requires legal representation but does not include a child and has to be, access, Child protection or adoption of child support case.

The definition of incapacity is found at s.6 of the Substitute Decisions Act (“SDA’). The test for incapacity is:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate reasonably foreseeable consequences of a decision or lack of decision.

According to Rule 4(3) of the Family Law Rules:

(3) If there is no appropriate person willing to act as a special party’s representative, the courts may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with the patient’s consent.

…

In Children’s Aid Society of the Niagara Region v. W. D. 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244, at para. 11, Quinn J. stated:

From what I am able to determine, one is mentally incapable in respect of an issue in a case where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issue.

In the same decision, Quinn J. also found that there is a presumption that one has capacity.  According to Quinn, J. the presumption applies unless there are reasonable grounds to believe that one is not able to understand and appreciate.  The burden of proof of incapacity is on a balance of probabilities.

In C.C. v. Children’s Aid Society of Toronto [2007] O.J. No. 5613, Backhouse J. found at para 34:

Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian:

(a)  medical or psychological evidence as to capacity;

(b)  evidence from persons who know the litigant well;

(c)  the appearance and the demeanour of the litigant;

(d)  the testimony of the litigant;

(e)  the opinion of the litigant’s own counsel.”

         Must v. Shkuryna, 2017 ONSC 6258 (CanLII) at 2-4 & 13-15

“The Court will not condone a game of “chicken” between Parties.

There must be consequences to a decision of a Party who is eminently able to comply with a court order to not do so.  An Order of the Court is not a suggestion.  It is not an invitation to a further negotiation.   The Respondent has no right to impose his own payment terms, because he is unhappy with the outcome of a motion.

As Howden J. noted in Lee v. Chang, 2013 CarswellOnt 18085 at para. 36,

A court order is not some invitation to dance which can simply be ignored or excused.  … Compliance with court orders is not optional.  Non-compliance with court orders, absent circumstances beyond the party’s control, must have consequences.  The court’s response to failure or refusal to comply without proper excuse must be strong and decisive.

In Levely v. Levely, [2013] O.J. No. 753, at paragraphs 12 and 13, Chappel J. made the following comments:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner.  Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial hardship for the other party. The frequency with which Family Law litigation degenerates into an abuse game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders.  Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice.  The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to a resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and children in their care.

The Rules referred to above are the main tools which a judge presiding over family law matters has in their toolbox to prevent a party from embarking on a game of litigation abuse.   The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner.   Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive.  The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

Holly v. Greco, 2018 ONSC 6219 (CanLII) at 28-31

“Our courts repeatedly have emphasized the challenging nature of making important parenting determinations on an urgent and interim basis, bearing in mind the potential for such “interim” decisions to assume, in practice and effect, more extended and lasting significance.  In particular:

a.    Frequently, the material filed by parties is hastily prepared, incomplete, and untested. Moreover, the facts are often still evolving.

b.    Already elevated emotions are heightened by the fact that the parties are in a state of transition; e.g., with one or both parties relocating to new homes. Even without ongoing custody litigation, that would be stressful for all concerned, including children.

c.    The obvious strategic dynamics associated with temporary motions cannot be ignored.  Counsel frequently embark on arguments based on preservation of a “status quo” even before there is agreement on what the status quo might be, and even “interim interim” orders, intended to have only temporary effect, often have significant long-term implications. Being fair to the parties as litigants is important. However, being fair to the children is even more important.

d.    In such a context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process, and quite often at a trial.

e.    To the extent it can be ascertained, the status quo ordinarily should be maintained until trial, unless there is material evidence that the children’s best interest demands an immediate change.

f.    Courts must be mindful of, and actively discourage, efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.

g.    Physical separation between parents usually entails some continuing geographic proximity, usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of “best interests” considerations, including maximizing contact between a child and both of his or her parents.

h.    Frequency of contact is particularly important for young children, and where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues.

For authority emphasizing the considerations set out in this particular paragraph, see in particular Coe v. Tope, 2014 ONSC 4002, at paragraph 25, and the numerous authorities cited therein.”

Medeiros v. Butterworth, 2020 ONSC 6202 (CanLII) at 33

“In Laamanen v. Laamanen, 2005 CanLII 50808 (ON SC), [2005] O.J. 5823 (Ont. S.C.J.) at paras. 12 to 15 Justice Karakatsanis, as she then was, discussed the principles which should govern an advance of funds based on an equalization claim:

12  Although the husband characterized the request for a partial advance on an equalization payment as a motion for partial summary judgment, I prefer not to consider the request on that basis. The construct of a Rule 20 motion does not fit this context. The motion would raise issues of res judicata and would not resolve any issues or shorten the time at trial. The Ontario Court of Appeal in Ford Motor Company of Canada Limited v. Ontario Municipal Employees Retirement Board et al (1997), 1997 CanLII 1302 (ON CA), 36 O.R. (3d) 384, held that parties cannot move for partial judgment as soon as they can prove a minimum recovery, especially where it does not resolve an issue, or shorten trial time. Rule 20 does not involve any consideration of need for the funds or an ability to pay.

13  I prefer the approach of Lane J. in Zadanski v. Zadanski (2001), 2001 CanLII 27981 (ON SC), 19 R.F.L. (5^th) 458, Lane J. referred to the difficulties in proceeding under Rule 20 for partial summary judgment and canvassed the cases where the Court had ordered partial advances on equalization. He found that the Court had jurisdiction in a proper case to make an interim order for the payment of an advance on the equalization payment. Although leave to appeal to Divisional Court was granted, [2002] O.J. No. 3415, the appeal was not pursued. By granting leave to appeal, one Superior Court Judge had some reservations about the correctness of that decision; however, numerous other judges of this Court have ordered advances, either as an advance on equalization payment, or for interim disbursements, or to be characterized by the trial judge. Where a minimum equalization payment is conceded, an advance can avoid an interim judicial determination on issues best dealt with at trial, thus avoiding the need for interim support determinations and interim disbursements.

14  In Haroun v Haroun, 2001 CanLII 28128 (ON SC), [2001] O.J. No. 2575 (S.C.J.), the motions judge refused to grant an advance on equalization because she was unable to determine a minimum equalization payment. In Armstrong v. Miller (11 January 2001, 5 April 2001) Toronto 00-GL-907 Toronto (S.C.J.) at paras 26 and 19 to 20 respectively, the motions judge refused to grant summary judgment where there was a great deal of confusion about fiscal issues; he was not prepared to accept an answer on cross-examination regarding a minimum payment as anything more than an estimate pending determination by fiscal and accounting experts. In this case, the minimum equalization payment was conceded by counsel.

15  The cases show that the Court may use its discretion to order an advance on equalization where 1) there is a reasonable requirement for the funds; 2) there is little doubt that the person will receive an equalization payment of at least that amount; and 3) it is just to do so in the circumstances, including the payor’s ability to pay.”

Gangodawila v. Fernando, 2020 ONSC 6219 (CanLII) at 6

“In Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, Deschamps J., speaking for the majority of the Supreme Court, articulated a general rule, at para. 84: “I would lay down a general rule that in any case involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator.” This has become known as the “competence-competence principle”. The exception is where a “challenge to the arbitrator’s jurisdiction is based solely on a question of law, or one of mixed fact and law that requires for its disposition ‘only superficial consideration of the documentary evidence in the record’” (Dell Computer, at para. 84).  See also Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 4.

This court most recently discussed the “competence-competence” principle in Ciano Trading & Services C.T. & S.R.L. v. Skylink Aviation Inc., 2015 ONCA 89, stating “where it is unclear if the arbitrator has jurisdiction, it is preferable to leave the issue to the arbitrator pursuant to the competence-competence principle” (at para. 7). In Dancap Productions Inc. v. Key Brand Entertainment, Inc., 2009 ONCA 135, 246 O.A.C. 226, at paras. 32-33, Sharpe J.A. explained:

It is now well-established in Ontario that the court should grant a stay under art. 8(1) of the Model Law where it is “arguable” that the dispute falls within the terms of an arbitration agreement. In Dalimpex Ltd. v. Janicki (2003), 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737 (C.A.), at para. 21, Charron J.A. adopted the following passage by Hinkson J.A. in Gulf Canada Resources Ltd. v. Arochem International Ltd. (1992), 1992 CanLII 4033 (BC CA), 66 B.C.L.R. (2d) 113 (B.C.C.A.), at paras. 39-40, as “the proper approach” to art. 8(1):

it is not for the court on an application for a stay of proceedings to reach any final determination as to the scope of the arbitration agreement or whether a particular party to the legal proceedings is a party to the arbitration agreement because those are matters within the jurisdiction of the arbitral tribunal. Only where it is clear that the dispute is outside the terms of the arbitration agreement or that a party is not a party to the arbitration agreement or that the application is out of time should the court reach any final determination in respect of such matters on an application for a stay of proceedings.

Where it is arguable that the dispute falls within the terms of the arbitration agreement or where it is arguable that a party to the legal proceedings is a party to the arbitration agreement then, in my view, the stay should be granted and those matters left to be determined by the arbitral tribunal.

As Charron J.A. explained in Dalimpex, at para. 22, “a deferential approach” allowing the arbitrator to decide whether the dispute is arbitrable, absent a clear case to the contrary, “is consistent both with the wording of the legislation and the intention of the parties to review their disputes to arbitration.”

Haas v. Gunasekaram, 2016 ONCA 744 (CanLII) at 14-15

“The motion judge did not give Mr. Hill leave to amend the answer in relation to the constitutional claim, presumably on the basis that she had dismissed it. In the circumstances of this case, this was an error in principle. There is a general right to amend pleadings absent non-compensable prejudice: r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; r. 11 of the Family Law Rules, 0. Reg. 114/99. Even where the motion is to strike the pleading for failure to disclose a cause of action, the court should consider whether an amendment could remedy the deficiency: Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296 (CanLII), 348 O.A.C. 330, at para. 37.”

Beaver v. Hill, 2018 ONCA 816 (CanLII) at 20