Author: dawi

“As I have said, I do not agree with the Divisional Court’s conclusion that the type of evidence – whether fact or opinion – is the key factor in determining to whom rule 53.03 applies.

Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• • • the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
    • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.

As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.”

            Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII) at 59-64

“In recent decades, Canadian courts have adopted the equitable concept of unjust enrichment inter alia as the basis for remedying the injustice that occurs where one person makes a substantial contribution to the property of another person without compensation.  The doctrine has been applied to a variety of situations, from claims for payments made under mistake to claims arising from conjugal relationships.  While courts have not been adverse to applying the concept of unjust enrichment in new circumstances, they have insisted on adhering to the fundamental principles which have long underlain the equitable doctrine of unjust enrichment.  As stated by La Forest J.A. (as he then was) in White v. Central Trust Co. (1984), 1984 CanLII 3002 (NB CA), 54 N.B.R. (2d) 293, at p. 309 “… the well recognized categories of unjust enrichment must be regarded as clear examples of the more general principle that transcends them”.

The basic notions are simple enough.  An action for unjust enrichment arises when three elements are satisfied:  (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment.  These proven, the action is established and the right to claim relief made out.  At this point, a second doctrinal concern arises:  the nature of the remedy.  “Unjust enrichment” in equity permitted a number of remedies, depending on the circumstances.  One was a payment for services rendered on the basis of quantum meruit or quantum valebat.  Another equitable remedy, available traditionally where one person was possessed of legal title to property in which another had an interest, was the constructive trust.  While the first remedy to be considered was a monetary award, the Canadian jurisprudence recognized that in some cases it might be insufficient.  This may occur, to quote La Forest J. in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574, at p. 678, “if there is reason to grant to the plaintiff the additional rights that flow from recognition of a right of property”.  Or to quote Dickson J., as he then was, in Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at p. 852, where there is a “contribution [to the property] sufficiently substantial and direct as to entitle [the plaintiff] to a portion of the profits realized upon sale of [the property].”  In other words, the remedy of constructive trust arises, where monetary damages are inadequate and where there is a link between the contribution that founds the action and the property in which the constructive trust is claimed.”

Peter v. Beblow, 1993 CanLII 126 (SCC)

“None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset.  A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.

And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications.  There will be no easy answers.

But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.

Most of our social, government and employment institutions are struggling to cope with COVID-19.  That includes our court system.  Despite extremely limited resources, we will always prioritize cases involving children.  But parents and lawyers should be mindful of the practical limitations we are facing.

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.

We will deal with COVID-19 parenting issues on a case-by-case basis.

The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.

Everyone should be clear about expectations during this crisis.  Parents want judges to protect their children.  But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families.  We know there’s a problem.  What we’re looking for is realistic solutions.  We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

In family court we are used to dealing with parenting disputes.  But right now it’s not “business as usual” for any of us.  The court system will always be here to deal with truly urgent matters, especially involving children.  But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.”

         Ribiero v. Wright, 2020 ONSC 1829 (CanLII) at 10-24

“This is not the first time that a parent who was ordered to pay child support on the basis of imputed income has later sought to vary the order based on line 150 income.  In Trang v. Trang, 2013 ONSC 1980, Justice Pazaratz considered a motion like that of Mr. Dunn. In Trang, as here, the moving party failed to make any financial disclosure prior to the trial that resulted in the order and failed to attend the trial.  Justice Pazaratz’s comments at paras. 51 and 52 about how to approach a motion like this are directly relevant to Mr. Dunn’s motion:

When a court imputes income, that’s a determination of a fact.  It’s not an estimate.  It’s not a guess.  It’s not a provisional order awaiting better disclosure, or further review.   It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for — representations from the payor.

 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income.  They must address why income had to be imputed in the first place.  They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income.  The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

Mr. Dunn has not proven, or even explained, why it is “no longer necessary or appropriate to impute income” to him.  He simply asserts that the court should accept his line 150 income.  I agree with Pazaratz J. that this is not enough:

If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place.  It might even be a disincentive for payors to participate in the initial court process.  They could simply ignore support Applications – as they often do.   They could wait to see if the court imputes income, and how much.  If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. (Trang, para. 53)”

         Lapp v. Dunn, 2020 ONSC 1720 (CanLII) at 12-13

“The effect of Rule 24(10) is that where a court makes no costs ruling or is silent on costs in an earlier preliminary step, it is not open to the motions or trial judge to rule on costs with respect to the earlier preliminary step: Klimowicz v. Moffat-Klimowiz, 2007 CanLII 40866 (Ont. S.C.), at para. 1. This was the status quo in March 2017, when the Order was made. Since then, Rule 24(10) has been modified by Rule 24 (11) as follows:

The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.”

         Zeppieri v. Zeppieri, 2019 ONSC 1870 (CanLII) at 6

“The issue in this appeal is whether the motion judge erred by setting off costs and interest of $331,533.54 owed by the wife to the husband against accumulated spousal support and costs of $479,130.91 owed by the husband to the wife. In the result, the husband owes the wife $147,597.37.

The husband appeals arguing that the motion judge erred by allowing the wife to amend her notice of motion to request the set off, then further erred in granting the set off because set off is not available in law and usurps the jurisdiction of the Family Responsibility Office (“FRO”).

We do not accept these submissions.

The motion judge did not err by allowing the amendment. The Family Law Rules require the court to ensure that cases are dealt with fairly by saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and by giving appropriate resources to the case while taking account of the need to give resources to other cases. The amendment was appropriately allowed.

Nor do we agree that set off was unavailable. The motion judge correctly referred to s. 111 of the Courts of Justice Act. While the Director of the FRO has the duty to enforce support orders, nothing in the Family Responsibility Enforcement Act limits the court’s jurisdiction to order set off. Finally, to allow the husband to pursue a claim against the wife when he is significantly in debt to her would be highly unjust.”

         Berta v. Berta, 2019 ONCA 218 (CanLII) at 2-6

“In her article, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly on page 5, Professor Martha Shaffer writes that, “increasingly, courts have resolved questions about whether to admit surreptitiously obtained evidence in family law cases through the application of their ‘general exclusionary discretion’.”  That discretion enables a judge to exclude otherwise admissible evidence  on the basis that the probative value of the evidence is outweighed by its prejudicial effects.

This type of analysis is also apparent in other family law cases, including Turk v. Turk, 2015 ONSC 216, (transcripts of surreptitiously recorded interactions not admissible on a motion based on  policy reasons strongly discouraging their use  in family law litigation and  finding that the probative value of the evidence was not compelling);  Hameed v. Hameed, 2006 ONCJ 274 (policy considerations were weighed against probative value, compelling reason for admission not shown); Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (probative value outweighed prejudice where  recording said to contain threat by a parent to abduct a child).

Building on  Professor Rollie Thompson’s statement of  three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present  in relation to the admission of surreptitiously obtained evidence in family cases, since its admission  “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.”  In her article, Professor Shaffer elaborates that:

• • • • the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
      • surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
      • admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.

Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:

• • • • large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
      • infliction of emotional trauma to a parent or child; and
      • potential detriment to specific relationships in the family.

Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.

So, for example a series of surreptitious recordings in Nalli v. Nalli 2015 ONSC 3921 were admitted because they showed the father actively encouraging a child to reject and act out against the mother. Recordings in AF v. JW, 2013 ONSC 4272 showed the mother on various occasions engaging in significantly destructive and alienating behaviour, and, her denials to the contrary, that she was contravening a court order by continuing to undermine the relationship between father and children. These recordings demonstrated egregious, even shocking, behaviour on the part of the mother in the presence of the children. The court described what she did as “horrible emotional abuse at hands of mother.”

The father also referred to Reddick v. Reddick [1997] O.J. No. 2497 (Gen. Div.) where the court allowed in four tape-recorded telephone conversations made by the father of the mother speaking to the children. The specific content is not set out in the reported decision, and it appears that it may have been inappropriate or insensitive.   Reddick is one of the earliest reported decisions on the issue. The ruling was based on the best interests of the children which is not in step with the current principled approach of the law of evidence.   The recordings were tendered during the cross examination of the mother at trial.  One concludes from this, although it is not addressed in the ruling, that the intended use was impeachment of the mother’s testimony.   This issue is one for trial that was not before me on this motion.”

         DeGiorgio v. DeGiorgio, 2020 ONSC 1674 (CanLII) at 10-16

“Section 15 of the Family Law Act, supra, provides as follows:

15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residenceor, if there is no place where the spouses had a common habitual residence, by the law of Ontario. (Emphasis added).

The Applicant submits that Ontario is the place where both spouses had their last common habitual residence, and the Respondent contends that the spouses’ last common habitual residence was in Lebanon, where they married and had spent the previous seven months.

In the case of Pershadsingh v. Pershadsingh, 1987 CanLII 4361, this is was squarely dealt with by Walsh J. of the High Court of Justice of Ontario, as it was then known. At page 3, Walsh J. stated:

The key words of s. 15 are “last common habitual residence”. I interpret these words to mean the place where the spouses most recently lived together as a husband and wife and participated together in everyday family life.

Further on the same page, Justice Walsh accepted the description of “habitual residence from Dicey and Morris, The Conflict of Laws, 10^th ed., and he from that treatise as follows:

It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time,” it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.

It has been said that an element of intention to reside is required, though not determinative…The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.”

         Zakhour v. Nayel, 2017 ONSC 1735 (CanLII) at 14-17

“Settlement agreements among parties should be enforced unless the court is satisfied that, in all the circumstances, there is a real risk of clear injustice: L-Jalco Holdings Inc. v. Lawrynowicz & Associates, 2018 ONSC 4002, 294 A.C.W.S. (3d) 274, at para. 34; or there is prejudice, mistake or any other “good reason not to enforce”: Sentry Metrics Inc. v. Erenwein 2013 ONSC 959, [2013] O.J. No. 685, at para. 16.

A judge has discretion to refuse to enforce an agreement where: a) a material fact relevant and significant to the resolution has not been disclosed; and b) the existence of the material fact was or could reasonably have been within the knowledge of the party seeking to rely on the settlement agreement: Saballoy Inc. v. Techno Genia S.A., [1993] A.J. No 276 (Alta QB), at paras. 22-24.

Where parties are engaged in litigation and have properly retained solicitors who enter into settlements on their behalf, these settlements ought to be binding upon the parties and the court should so order: Marcel Equipment Ltd. v. Equipements Benoit D’Armours et Fils Inc., [1995] O.J. No. 673 (Gen. Div.), at para. 78.

The settlement agreement is an enforceable contract and the rules of contractual interpretation apply: L-Jalco Holdings Inc., at para. 34.

…

The authority of a solicitor to enter into settlement discussions and compromise a client’s position is well-settled. In Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.), Evans J.A., writing for the majority, at paras. 10 and 11, stated as follows:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. … A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court.

…

Where a settlement is negotiated between duly appointed counsel with no limitation of authority, the settlement ought to be binding on the parties. I find that the settlement agreement as evidenced in the correspondence between the lawyers for the parties demonstrates a mutual intention to create a legally binding relationship and there was agreement on all essential terms of the settlement.

A failure to enforce settlement agreements duly entered into by lawyers would be contrary to both the court and public policy of encouraging settlement and would result in chaos in the settlement process: Marcel, at paras. 77-78.”

         Gelber v. Gelber, 2020 ONSC 1570 (CanLII) at 19-22, 24, 26-27

“The new approach to fact finding under the Family Law Rules has been to make disclosure a given. Fact-finding is not to be a battleground. There ought to be an orderly, prompt request for disclosure with an organized speedy reply. The process is not to go on forever and the case is to move on because the facts point to a resolution or to the necessity of a trial. Obtaining the factual evidence is no longer a game of hide and seek.

The rules provide a number of tools to create this approach. Rules 19 and 20 set up the process. Sanctions for failure to comply with a disclosure order are found in Rules 1(8), 13(7), 14(23) and 19(10). These sanctions are severe. A litigant may find his or her pleadings struck and the case proceeding without his or her participation. The severity of the sanctions serves to emphasize the importance of disclosing the necessary information in a file quickly.

The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case?  Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness.”

        Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC) at 6-8