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“The appellant submits that the trial judge erred in treating s. 36(3) of the RHPA (Regulated Health Professions Act) as inapplicable, which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA. Her decision to admit the CPSO materials tainted her decision and she erroneously gave no weight to the assessor’s opinion or recommendations.

Section 36(3) of the RHPA provides the following:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 CanLII 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.

…

A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”

The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.

However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.”

          K.K. v. M.M., 2022 ONCA 72 (CanLII) at 44-48, 54-57

“The functional purpose of the solicitor-client privilege goes to the very heart of the administration of the legal system. All persons must have access to expert legal counsel without fear that this recourse may be used to their detriment: Jones v. Smith, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 46.

The onus rests on the party asserting privilege to establish that the communications in question are in fact, privileged: Davies v. American Home Assurance Co., 2002 CanLII 62442 (ON SCDC), 60 OR (3d) 512 (Div. Crt.) at para. 37. Once that is established, the burden then shifts to the party wishing to overcome the privilege and compel disclosure of communication between solicitor and client: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 CPC (6th) 276 (Ont. S.C), at para 76.

In Laliberté v. Monteith, 2021 ONSC 4133, at para. 22, the Divisional Court approved the lower court’s statement of the circumstances in which privilege can be waived:

[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.

[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.

[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15.”

          Shalaby v. Nafei, 2022 ONSC 561 (CanLII) at 18-20

“Pursuant to s. 16 of the CSG, the starting point in determining income for support purposes is the payor’s line 15000 of their TI general income tax return.

The CSG provide for other methods of determining income when s. 16 is not the “fairest determination of that income” (s. 17, CSG), does “not fairly reflect all the money available to the parent or spouse” (s. 18, CSG), or when a Court “imputes such amount of income to a spouse as it considers appropriate.” (s. 19, CSG)

Section 18 of the CSG states:

Shareholder, director or officer

1. 1. 1. 1. 1. 18. (1) Where a parent or spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent’s or spouse’s annual    income as determined under section 16 does not fairly reflect all the money available    to the parent or spouse for the payment of child support, the court may consider the situations described in section 17 and determine the parent’s or spouse’s annual    income to include,

(a)  all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b)  an amount commensurate with the services that the parent or spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

By virtue of the use of the word “may” in section 18 of the CSG, the Court has discretion to add all or part of the corporation’s pre-tax income to a payor’s income if the payor’s annual income, as determined under section 16 of the CSG does not fairly reflect all money available to the payor for the payment of support.

In L.M.P. v. M.D.P, 2021 ONSC 3577 (Ont. Sup. Ct.) at para. 58, MacPherson J. reviewed the case law and concluded that the considerations and questions to take into account by the Court when determining whether to exercise its discretion to attribute pre-tax corporate income can be condensed as follows:

a.   Does the Respondent have control over dividend declarations?

b.   Is there a business reason for retaining the earnings?

c.   Should the Court exercise its discretion and attribute pre-tax corporate income?”

          Sloss v. Liscoumb, 2022 ONSC 1396 (CanLII) at 80-84

“In Fisher v. Fisher, 2008 ONCA 11, at para. 103, the Court of Appeal states that the SSAGs must be treated as a “significant authority” in determining the quantum of spousal support, and that, if the court is departing from the SSAGs, it must provide an explanation as to why.  This is confirmed by Sherr J. in Decker where he suggests that the SSAGs should be adhered to barring “exceptional circumstances”: see para. 28, supra.  In Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338, the court went so far as to indicate that an order of spousal support which falls substantially above or below the suggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy.

Section 12.1 of the SSAGs provides for an exception to utilizing the ranges of support in compelling financial circumstances at the interim stage of a proceeding. The general principle, as outlined in Slongo v. Slongo, 2017 ONCA 272, is that, absent exceptional circumstances, it is standard practice for interim support to be ordered within the Guidelines’ range.

Although the Respondent failed to provide case law to support the awarding of spousal support to address the issue of joint venture income, there is case law to support a departure from the SSAGs under certain circumstances.  For example, in Tasman v. Henderson, 2013 ONSC 4377 (Ont. S.C.J.), the court exceeded the amount recommended by the Guidelines (while also disagreeing with the inputs used by the respondent in calculating the range) in their interim award for spousal support on the basis that the SSAGs underestimated the applicant’s needs because of the length of the marriage and the lack of children. It was alleged that the appropriate range was between $600 and $800 per month. The court decided to award $1,500 per month.  In Osanlo v. Onghaei, 2012 CarswellOnt 4139, 2012 ONSC 2158, McGee J. departed from the SSAGs but the basis for this was hardship:  the children ended up with the husband through what McGee J. described as “high handedness, misadventure or fraud” and the “custodial payor range” SSAG amount was inadequate to permit the wife “an equal opportunity to settle into accommodations suitable for the children.”  A review of that case indicates that those circumstances were based upon severe hardship arising from the application of the SSAGs and are therefore not applicable to the present case. In certain cases the interim exception should be invoked in deviating from the SSAGs to do justice between the parties; however, this is not one of those cases.

Courts, have acknowledged, as have the SSAGs themselves, that there may be challenges in inadequately ascertaining precise income figures at the interim stage. Interim support can be adjusted retroactively later at trial if the income figures chosen were incorrect; see Frank v. Linn 2014 SKCA 87 and Stork v. Stork, 2015 ONSC 312.”

          Rushton v. Cuff, 2020 ONSC 490 (CanLII) at 38-41

“The Hague Convention sets out the rules that apply to the parental abduction of a child across international borders and seeks to remedy the serious harms caused by international child abduction: Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 23-24. The Hague Convention is aimed at enforcing custody rights and securing the prompt return of children to their country of habitual residence.

Articles 3 and 4 of the Hague Convention require the Applicant/Mother to satisfy three conditions prior to me ordering the mandatory return of the child, namely, that:

a.   the child was habitually resident in a contracting state immediately before any breach of custody or access rights;

b.   she has custody rights to the child; and

c.   the child was wrongfully removed or retained.

If those 3 conditions are satisfied, Article 12 of the Convention mandates an order for the return of the child forthwith to the place of his or her habitual residence (save for the enumerated and narrow exceptions that are not applicable on the facts of this case).

While “habitual residence” is the sole connecting factor triggering the child’s return, the term is not defined in the Convention. The Supreme Court of Canada in Office of the Children’s Lawyer v. Balev and Baggott, 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398, held that “habitual residence” should be determined through a hybrid approach that considers “all relevant considerations” including but not limited to the parents’ intentions and the child’s interests: Balev, para. 42. The judge must determine the focal point of the child’s family and social environment immediately prior to the removal:” Balev, paras. 43 and 67. Indeed, the Court cautioned against “over-reliance” on parental intention.

The Court of Appeal for Ontario recently had an opportunity to weigh in on the proper interpretation and application of Balev in Ludwig v. Ludwig, 2019 ONCA 680. The Court of Appeal endorsed a two-step approach to determining habitual residence: first, the Court must determine the date of alleged wrongful removal; then, it must go on to consider where the child was habitually resident immediately before the date of the alleged wrongful removal.

In Ludwig, the Court of Appeal reiterated that Court may consider a variety of factors when determining habitual residence, such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on.  The Court of Appeal emphasized that there is no one dominating factor and the judge must consider the “entirety” of the child’s situation.”

            Miklendova v. Kadlcik, 2021 ONSC 577 (CanLII) at 22-27

“Where a litigant lacks mental capacity, the Court may designate them a special party and appoint the OPGT as his or her representative.  The cases recognize that the definition of a “special party” under the FLRs is broader than that of a party “under disability” pursuant to Rule 7 of the Rules of Civil Procedure Zabawskyj v. Zabawskyj, 2007 CanLII 51349 (SCJ), para. 13.

Rule 2(1) of the FLRs provides that a “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 in a custody, access, child protection or child support case.

If there is no appropriate person willing to represent a special party, rule 4(3) provides that the Court may authorize the Office of the Children’s Lawyer or the OPGT to act as representative, but only with that official’s consent.

Section 6 of the Substitute Decisions Act, 1992, defines “incapacity” as 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 the reasonably foreseeable consequences of a decision or lack of decision.

In Constantino v. Constantino, 2016 ONSC 7229, at paras. 36-37, Price J. confirms that the appointment of a litigation guardian is meant to protect not only the person suffering from a disability but the integrity of the judicial process for all participants in the litigation, including the Court.

When incapacity if raised as a concern, it must be proven by a moving party on a balance of probabilities: Constantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309.

The test for incapacity is an objective test. Capacity must be determined on the basis of “the evidentiary record, not subjective assessments.”: Chai v. Law, 2020 ONSC 6998, paras. 33-38.

The concept of mental incapacity under the Substitute Decisions Act, 1992, is “quite broad”.  The question is whether the person is able to understand information that is relevant to making a decision in the management of his/her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  On the basis of that definition, a “special party” is “a person who is mentally incapable about an issue in a case where the party 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 about the issue”: Zabawskyj, para. 13; Chai, paras. 33-38.

In Costantino v. Costantino, Price J. noted, at para. 40, that “[t]he test for appointment of a litigation guardian is a functional one.  It relates to the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation.”

As set out in Y.S. v. J.Y., 2021 ONSC 5736, at para. 16 and Constantino, at para 57, the following factors should be considered when determining whether a party is under disability and requires a litigation guardian:

a.   A person’s ability to know or understand the minimum choices or decisions required and to make them;

b.   An appreciation of the consequences and effects of his or her choices or decisions;

c.   An appreciation of the nature of the proceedings;

d.   A person’s inability to choose and keep counsel;

e.   A person’s inability to represent him or herself;

f.   A person’s inability to distinguish between relevant and irrelevant issues; and,

g.   A person’s mistaken beliefs regarding the law or court procedures.”

Liddell-MacInnis v. MacInnis, 2023 ONSC 513 (CanLII) at 5-14

“In Kerr v. Baranow, 2011 SCC 10, at para. 87, Cromwell J. explained that when parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions.  Obviously, in order to apply this approach, it is necessary to first determine whether the parties have, in fact, been engaged in a joint family venture.

Cohabiting couples are not a homogenous group.  The analysis must take into account the unique circumstances of each particular relationship. There is no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives.  A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.  The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so: Kerr v. Baranow at para. 88.

Cromwell J. directed trial judges undertaking this analysis to consider the evidence under four main headings:  mutual effort, economic integration, actual intent and priority of the family.  Cromwell J. further observed that there is inevitably overlap among factors that may be relevant under these headings and that there is no closed list of relevant factors: Kerr v. Baranow at para. 89.”

            Hurdon v. Crooks, 2023 ONSC 481 (CanLII) at 54-56

“Essentially, in asking for the net proceeds of sale, less $200,000, to be held in trust, Mr. Zadeh seeks a preservation order. Section 12 of the Family Law Act provides that if the court considers it necessary for the protection of the other’s spouse’s interest under this Part, the court may make an interim or final order a) restraining the depletion of a spouse’s property; and b) for the possession, delivering up, safekeeping and preservation of the property.

If a spouse resists the release of funds under s. 12 of the Family Law Act, where title to a property is held in the name of both spouses, that spouse has the onus to show why a preservation order should be made: Godfrey v. Godfrey, 2019 ONSC 3093, at para. 15. Again, in this case, Ms. Zadeh is the sole legal owner of the matrimonial home and is presumptively entitled to 100% of the proceeds, but agrees to hold 50% of the net proceeds in trust until Mr. Zamani’s claims can be heard at trial.

The test the Court applies in determining whether to grant a preservation order was set out in Price v. Price, 2016 ONSC 728, as follows:

a.    The onus lies on the party asserting that a preservation order is necessary to protect his or her interests under Part I of the FLA, or that his or her claim for support under Part III of the Act would be impaired or defeated unless a preservation order was made, to demonstrate that on the balance of probabilities.

b.    The standard that the court should apply is not the high threshold required for the granting of a Mareva injunction.

c.    Different decisions apply different standards.  Some consider whether there is “a real risk that assets could be dissipated before the equalization claim is determined”: Davis v. Tangredi, 2006 CanLII 44269 (ONSC), at para. 23; others suggest that an order should be made “out of an abundance of caution”: Barbini v. Edwards, 2014 ONSC 6762, at para. 91. The correct standard is the same one to be applied when determining whether to grant an interim injunction:

 i.     Is there a serious issue to be tried?

 ii.     Will the moving party suffer irreparable harm if relief is not granted? And

 iii.      Which party will suffer the greater harm from granting or refusing the remedy pending a decision of the merits?”

          Zadeh v. Zamani, 2023 ONSC 522 (CanLII) at 36-38

“Section 53(2) of the Family Law Act provides that regardless of whether contemplated at the time, when parties to a cohabitation agreement marry, the agreement shall be deemed to be a marriage contract.

Per section 56(4):

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract: Hartshorne v. Hartshorne, 2004 CarswellBC 603 (S.C.C.)

It is desirable that parties settle their own affairs: Farquar v. Farquar (1983), 35 R.F.L. (2d) 287 (Ont. C.A.) and courts are generally loathe to set aside domestic contracts. See page 297:

the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts … as a general rule … courts should enforce the agreement arrived at between the parties…. The parties to the agreement need to be able to rely on [them] as final in the planning and arranging of their own future affairs

Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure: Clayton v. Clayton, 1998 CarswellOnt 2088 (Ont. Gen. Div.).

A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other, or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 3 R.F.L. (4^th) 267 (Ont. C.A.)

The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 3 R.F.L. (4^th) 267 (Ont. C.A.).

The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v. LeVan, 2008 CarswellOnt 2738 (Ont. C.A.).

A finding that a party violated a provision of s. 56(4) of the FLA does not automatically render the contract a nullity. Rather, a trial judge must determine whether it is appropriate, in the circumstances, to order that the contract be set aside. It is a discretionary exercise: LeVan paragraph 33.

The lack of independent legal advice is not by itself determinative. It is only one factor: Dougherty v. Dougherty, 2008 CarswellOnt 2203 (Ont. C.A.); Raaymakers v. Green, 2004 CarswellOnt 2712 (Ont. S.C.J.)”

          Harnett v. Harnett, 2014 ONSC 359 (CanLII) at 85-96

“I note that there are strong policy reasons discouraging the use of surreptitiously recorded interactions in family law litigation, except in cases where the probative value of the evidence is compelling: Turk v. Turk, 2015 ONSC 3165 (SCJ). See generally, Martha Shaffer, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly 259. Courts have found that the admission of surreptitiously obtained evidence tends to undermine the goals and values of family law, since 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: DeGiorgio v. DeGiorgio, 2020 ONSC 1674 at para 12. Courts have also found that admitting evidence obtained through surreptitious practices sends the wrong message by appearing to reward the behavior, whereas such practices should be discouraged: Seddon v. Seddon, [1994] BCJ No, 1729 (BC SC) at para 26. Because the introduction of such material will generally be contested, it is likely to unnecessarily prolong the case, with added costs to the parties as well as to the administration of justice generally.”

          Arbitman v. Lee, 2021 ONSC 315 (CanLII) at 18