Author: dawi

“There is no principle of which I am aware in the family law context that limits the application of tracing by number of transactions or mere changes in the form of the asset.  Nor can such limitations be implied into the language of the marriage contract.  At each stage, the question is whether the beneficiary can show that the subsequent property or proceeds were acquired, or partially acquired, with assets traceable to the trust property.

Thus, it is not the transformation of the asset that brings tracing to an end.  Rather, it is the inability of the beneficiary to prove the necessary connection or nexus between the trust property and the subsequently acquired asset.  For example, tracing may reach its limit when an asset is spent or dissipated or where it is used to pay down debt or otherwise becomes co-mingled with other assets such that the original trust property can no longer be discerned.

I have found no case which suggests that the excluded nature of property begins to “peter out” merely because it is exchanged for equally identifiable property or through the effluxion of time. Where there is clear documentary evidence of the transformation of an excluded asset into other identifiable property, the exclusion is preserved.” 

Ludmer v. Ludmer, 2013 ONSC 784 (CanLII) at 85-87

“Section 9(1) of the Family Law Act clothes the court with its statutory authority to grant remedies in the context of an equalization of net family property application under s. 7 of the Family Law Act. It sets out a series of options and, as Walsh J. observed, in Marsham v. Marsham (1987), 1987 CanLII 4041 (ON SC), 59 O.R. (2d) 609, [1987] O.J. No. 440 (H.C.J.), at pp. 622 and 625 O.R., equips the court with “a most extensive and comprehensive choice of powers”, and “the flexibility required to enable it to choose the most appropriate method of satisfying the equalization entitlement the court has previously determined”. This does not mean, however, that s. 9(1) contemplates an indiscriminate resort to the enhanced remedies it provides for. In my view, as I shall explain, it does not.

In summary, the choices available under s. 9(1) are (a) that the whole amount be paid; (b) that, in addition, security may be imposed, or the property transferred to or in trust for, or vested in, the receiving spouse absolutely, for life or for a term of years; and (c) if necessary, to avoid hardship, the whole amount may be paid in instalments, not to exceed a period of ten years.

…

Indeed, lower courts have recognized the need for a principled approach to the application of an enhanced s. 9(1) remedy. Such orders are to be made only where there is a real need for them, after all relevant considerations have been taken into account, and not as a matter of course. As Whalen J. stressed, in Colquhoun v. Colquhoun, [2007] O.J. No. 9, 2007 CarswellOnt 18 (S.C.J.), at para. 168, “[t]here must be a proven concern that payment [of an ordered equalization payment] will not be honoured” (emphasis added) before the court can order the transfer or partition and sale of property under s. 9(1).

The onus is on the party seeking such an order, and as a general rule the court’s discretion will only be exercised in favour of a s. 9(1) order where it is established — based on the targeted spouse’s previous actions and reasonably anticipated future behaviour — that the equalization payment order granted will not likely be complied with in the absence of additional, more intrusive provisions: Kennedy v. Sinclair, 2001 CanLII 28208 (ON SC), [2001] O.J. No. 1837, 18 R.F.L. (5th) 91 (S.C.J.), at para. 45; Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641, [2006] O.J. No. 5014 (C.A.), at para. 32; [page174] Raymond v. Raymond, 2008 CanLII 68138 (ON SC), [2008] O.J. No. 5294, 64 R.F.L. (6th) 160 (S.C.J.); Alldred v. Alldred, [1998] O.J. No. 3606, 82 A.C.W.S. (3d) 512 (Gen. Div.); McDonald v. McDonald, 1994 CanLII 7435 (ON SC), [1994] O.J. No. 1644, 5 R.F.L. (4th) 215 (Gen. Div.), affd 1997 CanLII 14551 (ON CA), [1997] O.J. No. 4688, 33 R.F.L. (4th) 425 (C.A.).

Accordingly, in my view, an order providing that an equalization payment to one spouse is to be made out of the payor spouse’s share of the proceeds of the sale of the matrimonial home, without more, does not create “property rights” in the payee spouse — equitable, securitized or otherwise. Absent clear language pointing to the trier of fact’s intention to order the transfer or vesting of a payor spouse’s assets, or the creation of security, or the imposition of a trust-like obligation, in satisfaction of the equalization payment, courts should be wary of giving effect to a proprietary right form of disposition, lest (a) what the legislature has clearly decided is to be an equalization regime is inadvertently transformed into a division of property regime under the guise of protecting a payee spouse’s right to receive the equalization payment awarded, and (b) otherwise legitimate claims of third parties be subverted and bankruptcy priorities reversed.”

Thibodeau v. Thibodeau, 2011 ONCA 110 (CanLII) at 31-32, 41-43

“A declaratory judgment is “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”: Zamir & Woolf, The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002) at para. 1.02. Courts have jurisdiction to grant declaratory relief under their inherent jurisdiction and pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The nature of the relief was articulated in detail by the Supreme Court of Canada in Solosky v. R., [1980] 1 S.C.R. 821 (S.C.C.). There, Dickson J. said at pp. 830-832:

Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined.

The principles which guide the court in exercising jurisdiction to grant declarations have been stated time and again. In the early case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd, [[1921], 2A.C. 438] in which parties to a contract sought assistance in construing it, the Court affirmed that declarations can be granted where real, rather than fictitious or academic, issues are raised. Lord Dunedin set out this test (at p. 448):

The question must be a real and not a theoretical question, the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [[1958 1 Q.B. 554], (rev’d [1960] A.C. 260, on other grounds), Lord Denning described the declaration in these general terms (p. 571):

.. if a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has a discretion to resolve it by a declaration, which it will exercise if there is good reason for so doing.

. . .

As Hudson suggests in his article, “Declaratory Judgments in Theoretical Cases: The Reality of the Dispute” (1977), 3 Dal.L.J. 706:

The declaratory action is discretionary and the two factors which will influence the court in the exercise of its discretion are the utility of the remedy, if granted, and whether, if it is granted, it will settle the questions at issue between the parties.”

G.(R.) v. G.(K.), 2017 ONCA 108 (CanLII) at 47

“Okmyansky is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce. Simmons J.A. held, at para. 38, that without a divorce granted in Canada, a support order could not properly be viewed as “corollary relief.”

Various superior court cases have followed Okmyansky in the last ten years. Thus the court in Stefanou v. Stefanou, 2012 ONSC 7265 (CanLII), 47 R.F.L. (7th) 385, held, at para. 170, that “[i]f the divorce is not granted pursuant to the Divorce Act, then there is no divorce to which corollary relief may be incidental.” The British Columbia Court of Appeal came to the same conclusion in L.R.V. v. A.A.V., 2006 BCCA 63 (CanLII), 52 B.C.L.R. (4th) 112, holding that the Supreme Court of British Columbia has no jurisdiction under the Divorce Act to grant corollary relief founded upon a foreign divorce. 

In my view, the trial judge erred in law when he attempted to distinguish this case from Okmyansky. That case was binding authority, and nothing in the unique circumstances of this case serves to confer jurisdiction where the statute does not provide jurisdiction. Simply put, there is no jurisdiction for an Ontario court to grant corollary relief under the Divorce Act after a foreign court has validly issued a divorce.” 

Cheng v. Liu, 2017 ONCA 104 (CanLII) at 28-30

“In Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.) at para. 4, Campbell J. stated that bad faith involves “…the conscious doing of a wrong because of a dishonest purpose or moral obliquity.”  In S.(C.) v. S.(M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. S.C.J.) at paras. 16-18, Perkins J. commented that “in order to come within the meaning of bad faith in subrule 24(8), behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behavior, to conceal information relevant to the issues or to deceive the other party or the court.” In Chomos at para. 45, Pazaratz J. stated that “bad faith involves intentional duplicity, obstruction or obfuscation.” 

Hill v. Gregory, 2019 ONSC 904 (CanLII) at 33

“The steps to be taken when s. 5(6) is engaged are well- established. The court must first ascertain the net family property of each spouse by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally — and before making an order under s. 5(1) — the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paras. 5(6)(a) through (h): see Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4, at pp. 93-94 S.C.R.; Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513, [1991] O.J. No. 788 (C.A.), at pp. 525-26O.R.; Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491, [2001] O.J. No. 3282 (C.A.), at para. 39; LeVan v. LeVan (2006), 2006 CanLII 31020 (ON SC), 82 O.R. (3d) 1, [2006] O.J. No. 3584 (S.C.J.).” 

Serra v. Serra, 2009 ONCA 105 (CanLII) at 37

“The Chief of Police submitted that “police officers are independent officers who retain discretion to execute their duties in a manner that is in compliance with the law.” Further, the Chief argued that it was incongruous that police be required to “take a youth from a situation that has not been shown to be unsafe, and put him in a situation where he has demonstrated a willingness to jeopardize his own safety in order to escape,” and this was “divergent with the common law duties of a police officer, which include the preservation of the peace, the prevention of crime, and the protection of life and property.”.

I agree that police have a general discretion in how they go about their duties, and that their discretion should be informed by their general, common law duties. That discretion would logically come into play in determining what is “reasonably able to be done” in locating a child, for example (CLRA, section 36(4)).

However, where a statute and an order confer a particular duty on police – a duty to do “all things reasonably able to be done to locate, apprehend and deliver the child” – it must be only in exceptional cases that they decline to carry out that particular duty, and they must promptly seek by proper means to be relieved of that duty. It is not necessary for me to decide whether everything was done as it should have been in the days and weeks immediately following the making of the order in question before me. Certainly the police had evidence that the younger son was willing to put himself and others at physical risk, rather than acquiesce to being in his father’s care. The events in this case bring to the fore how important it is for parties and courts to consider carefully before adding a police enforcement clause to a custody or access order, and to have the police enforcement provision reviewed promptly when difficulties arise.” 

L.(N.) v. M.(R.R.), 2016 ONSC (CanLII) at 90-92

“A first appeal from a final custody order of the Family Court will lie to the Divisional Court and a second appeal, with leave, to the Ontario Court of Appeal. The appeal of the exact same order made at the Ontario Court of Justice will lie to the Superior Court and then to the Court of Appeal. If the order is made at the Superior Court of Justice the first appeal will be directly to the Court of Appeal as of right.

The inconsistency in current appeal routes can be confusing for the public, for counsel and for institutional litigants. It can also create an inequality in access to justice between litigants whose disputes at first instance are heard in provincial courts versus superior courts – the former must incur the costs and delays of two appeals in order to reach the Court of Appeal while the latter must incur the cost and delay of only one. The inconsistency may also encourage forum shopping among litigants. In addition, under the current appeal route structure, the allocation of time dedicated to the development of the jurisprudence through judicial decisions is unequal, with a greater focus and opportunity for clarification of the law for cases that have an appeal route directly to the Court of Appeal. For example, given current appeal routes, fewer decisions involving child protection matters that are heard at first instance at the Ontario Court of Justice will receive Court of Appeal consideration because they must first be appealed to the Superior Court of Justice. On the other hand, cases involving the division of property are appealed from the Superior Court of Justice directly to the Court of Appeal, resulting in a higher focus on family law property divisions than on child protection issues at the Court of Appeal.

The arbitrariness of geographical limitations is accordingly a serious concern, but one that extends far beyond the scope of this case. Legislative reform in this area would be welcome. In particular, it seems to me that, given the tremendous importance of custody matters and the desirability of resolving these matters quickly and finally, careful consideration should be given to providing a single direct appeal to the Court of Appeal, no matter which court makes the initial custody decision.”

Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII) at 34-36

“An admission shall be not withdrawn without the consent of the other party or permission from the court: Rule 22(5) Family Law Rules, O. Reg. 114/99. An admission is a concession of an important fact and is meant to stand unless the test for withdrawing it is met or the opposing party agrees that they will suffer no prejudice by the withdrawal and accordingly consents: Vaseloff v. Leo, 2013 ONSC 5270 (CanLII), at para. 8. A court may permit the withdrawal of an admission when it determines that it is in the interest of justice to do so: Serra v. Serra, 2009 ONCA 105 (CanLII), 93 O.R. (3d) 161.”

Nobrega v. MacLennan, 2019 ONSC 820 (CanLII) at 11

“Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation. As explained by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 S.C.R. 319, at para. 27, the object of litigation privilege “is to ensure the efficacy of the adversarial process”, and “to achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.” These concerns are important in the context of the preparation of expert witnesses and their reports.

In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation.” The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.

Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.

Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings.”

Moore v. Getahun, 2015 ONCA 55 (CanLII) at 68-71