Category: Uncategorized

“A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22.  The mother issued her application on March 6, 2019. Accordingly, her claim for retroactive support covers the period from January 1, 2017 until March 2019 – 2 years and 2 months.

The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. 1. 1. 1. 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
            2. The conduct of the payor parent.
            3. The circumstances of the child.
            4. The hardship that the retroactive award may entail.

None of the above factors are decisive or take priority and all should be considered in a global analysis.  In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. par. 97).

The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice (D.B.S., par. 101).

The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor’s own interests over the child’s right to an appropriate amount of support (D.B.S., par. 106). The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations. (D.B.S., par. 108).

Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5), but where the payor engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum. (D.B.S. par. 134)

Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121). In this case, the date of effective notice is the same as the date of formal notice – when the application was issued on March 6, 2019.

It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. See: D.B.S., pars. 95 and 96); Titova v. Titov, 2012 ONCA 864, par. 37; Baldwin v. Funston, 2007 CarswellOnt 3168 (C.A.)

Courts should attempt to craft the retroactive award in a way that minimizes hardship. Hardship to the payor parent may be mitigated by a judgment which allows for payment of an award in instalments: See: D.B.S., at para. 116; Connelly v. McGouran, 2007 ONCA 578.”

            James v. Hutchinson, 2019 ONCJ 801 (CanLII) at 26-35

“Credibility assessment is not an exact science. In Baker-Warren v. Denault, 2009 NSSC 59 (N.S.S.C.) Forgeron J. noted that,

“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.”  R. v. Gagnon, 2006 SCC 17, para. 20.  I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”  R v. R.E.M., 2008 SCC 51, para. 49.”

In Christakos v. De Caires, 2016 ONSC 702 at para. 10,  Nicholson J. adopted as helpful MacDonald J.’s following outline in Re Novak Estate, 2008 NSSC 283 (CanLII), 269 N.S.R. (3d) 84:

[36] There are many tools for assessing credibility:

a)  The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c)  The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d)  It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99 (CanLII) [at paras.] 70-75).

e)  Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.   v. J.H.2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

[37]   There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra).  [Emphasis in original.]

In Ouellette v. Udin, 2018 ONSC 4520 at para. 9, Shelston J. described credibility assessment as a “holistic undertaking incapable of precise formulation”. In Al-Sajee v Tawfic, 2019 ONSC 3857 at paras. 41 and 42, Chappel J. described assessing credibility as a complex task and provided a comprehensive summary listing what courts should consider in weighing and assessing the credibility and reliability of witnesses.”

            A.E. v. A.B., 2021 ONSC 7302 (CanLII) at 86-88

“The test for granting and discharging a CPL is set out in s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The applicable principles were recently summarized by Schabas J. in Marmak Holdings Inc. v. Miletta Maplecrete Holdings Ltd. et al., 2019 ONSC 4630, at para. 14 (citations omitted):

The moving party must demonstrate that there is a triable issue with respect to the moving party’s claim to an interest in the Property… The Court must consider all relevant factors between the parties, including whether damages would be a satisfactory remedy, and balance the interests of the parties in exercising its discretion equitably.

See also: 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at paras. 20-21.

The threshold is whether the plaintiff has demonstrated a triable issue, not whether the plaintiff is likely to succeed: Perruzza v. Spatone, 2010 ONSC 841 at para. 20 (ii). The triable issue must, however, relate to the plaintiff’s interest in land, not simply a right that would lead to an award of damages: Bobbie Mann v. Marcus Chac-Wai, 2017 ONSC 3416, at para. 5. In other words, an interest in land must be a possible remedy at trial based on the evidentiary record on the motion.

The cases confirm that granting a CPL is an equitable remedy: “[T[he governing test is that the Judge must exercise his discretion in equity and look at all of the relative matters between the parties…”: Clock Investments Ltd. v. Hardwood Estates Ltd. et al., 1977 CanLII 1414 (ON SC), 16 O.R. (2d) 671 (Div.Ct.), at para. 10; Perruzza at para. 20 (v) and cases cited therein; 2235209 Ontario Inc. v. Sedona Lifestyles (Rometown) Inc., 2020 ONSC 4008, at para. 70. See also: Bobbie Mann, at para. 5:

Even if the plaintiff has a potential case for a remedy related to an interest in land the court may still refuse the CPL if it would be unjust to order it. The court must consider the equities of granting this form of interim relief.  This is not a mechanical application of a test but an exercise of discretion to achieve a just result.”

Khan v. Taji, 2020 ONSC 6704 (CanLII) at 48-51

“Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided.”

Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 (CanLII) at 41

“The court’s jurisdiction to grant the injunction sought is found in s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This section is formulated as follows:

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

The purpose of the Mareva injunction is to tie up the assets of the defendant, pending any judgment adverse to the defendant, so that they would then be available to for execution in satisfaction of that judgment. It is ordering security before judgment: Chitel v. Rothbart, 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540, (Ont. C.A.) at para. 30.

A Mareva injunction can be granted post-judgment: Lamont v. Kent, [1999] O.J. No. 277 (Gen. Div.), at para. 8. When granted post-judgment, the relief is described as a Mareva injunction in aid of execution: Coast to Coast Against Cancer v. Sokolowski, 2016 ONSC 170, at para 5.

The purpose of the Mareva injunction post- judgment but before execution is to prohibit the dissipation of assets: Michael Wilson and Partners Ltd v Emmott, [2019] EWCA Civ 219 (Eng. C.A.), at para 40.

A Mareva injunction can be granted to protect against avoidance of a costs order: Jet West Ltd. v. Haddican, [1992] 1 All E.R. 545, [1992] 1 W.L.R. 487 (Eng. C.A.), considered in Hilltop Group Ltd. v. Katana, [2002] O.J. No. 4136, (Ont. SCJ), at para 19.

In Lamont, supra, Sachs J. set out the requirements for granting a Mareva injunction in aid of execution, as follows, at para.10:

1. 1. 1. 1. Full and frank disclosure by theplaintiff.
         2. Full and fair particulars of the plaintiff’sclaim.
         3. Assets of the defendant within thejurisdiction.
         4. A risk of removal of those assets by the defendant beforejudgment.
         5. An undertaking by the plaintiff as todamages.”

Da Silva Edgerly v. Edgerly, 2022 ONSC 6170 (CanLII) at 8-13

“Typically, a review under Rule 2.1 is commenced by a party asking the registrar to put a pleading before a judge under Rule 2.1.01 (6) or 2.1.02. A judge reviews the pleading to determine if there is a prima facie case that a proceeding or a motion in a proceeding may be frivolous, vexatious, or an abuse of process and that there may be reason to resort to the summary, written process under Rule 2.1 rather than a regular motion process. See Scaduto v The Law Society of Upper Canada, 2015 ONCA 733 (CanLII).  If the judge is satisfied that Rule 2.1 may apply, then she or he directs the registrar to send notice to the plaintiffs inviting submissions as to why the claim or motion should not be dismissed.

Under Rules 2.1.01 (1) and 2.1.02 (1) the court may commence a review of a claim or a motion in a claim on its own initiative. To avoid multiple reviews of the same pleading, the court should not limit its initial review just to the claims against the party or parties who initiated the process. That is, although a request for a review may be initiated by a single party under Rules 2.1.01 (6) or 2.1.02 (2), if, on the initial review, the court determines that the claim may be frivolous, vexatious, or an abuse of process in whole or in relation to more parties than just those who made the request, the court ought to broaden the inquiry at its own initiative. If it does so, the court should make careful note of the full breadth of review being undertaken in its call for submissions from the plaintiffs.

In my view, while the invitation to commence the Rule 2.1 review process may be made by or on behalf of a limited number of parties, the court ought to consider expanding the scope of the review under Rules 2.1.01 and 2.1.02 to avoid multiplicity and serial requests as has occurred in this case.”

P.Y. v. The Catholic Children’s Aid Society of Toronto, 2020 ONSC 6660 (CanLII) at 8-10

“The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34      (1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.).

In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:

a)  The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b)   Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c)   Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d)  The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e)   Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 12

Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.

Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, par. 132.

Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.

In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.”

Mpamugo v. Nyeche-Woluchor, 2022 ONCJ 488 (CanLII) at 49-58

“My general impression is that litigants too often think that the goal is to have a trial, when the goal is to resolve the issues by various means, of which trials are the last option. They need to know that settlement is a valid and the preferred option. The settlement rate is very high. Relatively few cases get to trial. There are various reasons for this. In a case such as this where the issues are financial, once the required disclosure is made in the prescribed forms, unresolved matters can be identified and dealt with and the answers become clearer. The cost/benefit analysis and other considerations militate against continued litigation, and especially trial. I encourage counsel to impress this upon their clients.

As for delay, recent statistics show that a trial in this matter would be months, perhaps even a year or more, away. There is plenty of time before then in which to hold settlement conferences even after a trial date is scheduled.”

            Hakim v. Hakim, 2022 ONSC 6051 (CanLII) at 27-28

“L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 SCR 775 remains the leading authority for the correct approach to determine whether there has been a change in circumstances which warrants a review of a spousal support order under section 17(1) of the Divorce Act R.S.C., 1985, c.3 (2^nd Supp.)  (‘the Act”). The long established definition of a change in circumstances refers to a “material” change that “if known at the time would likely have resulted in different terms.”   This definition, first found in Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a child support variation was adopted for variations of spousal support in G.(L)v. B. (G), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. (See L.M.P. at para. 30).

A section 17 variation inquiry begins with the presumption that the existing order’s terms complied with the objectives of the Act when it was made. (See L.M.P.at para. 33). This means the initial focus of the inquiry is on the nature and sufficiency of the change to determine whether the threshold test for a variation consideration has been satisfied by the moving party. The change must be enduring. If the moving party discharges this threshold onus, then the context and magnitude of the change will shape the scope of the inquiry, as well as the remedy. In this sense, L.M.P. guides us away from a rigid approach, which describes the hearing as either de novo or not, towards a more fluid approach regarding the proper scope of the hearing, driven by the unique facts of each case. (See L.M.P.at para. 47).

As noted by the court in L.M.P., a parties’ agreement is not ignored under section 17 but its treatment will be different than in the context of an initial application under section 15(2) because of the different purposes for each provision. (See L.M.P. at para 27).”

            Mckinnon v. Mckinnon, 2022 ONSC 6036 (CanLII) at 23-25

“Sections 5 and 37 of the Trustee Act, RSO 1990 c. T23, specifically allow the court to order that a trustee or personal representative be removed upon any ground upon which the court may remove any other trustee, and appoint a new trustee in substitution.  The relevant parts of these sections read as follows:

5(1) The Superior Court of Justice may make an order for the appointment of a new trustee . . . in substitution for . . . any existing trustee.

37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.

Justice Quinn in Radford v. Wilkins, 2008 CanLII 45548 (ONSC), summarized the relevant factors to be considered when an application is brought to remove a trustee pursuant to the Trustee Act.  Although Quinn J. was dealing with a request to remove an estate trustee in that case, his analysis equally applies in the context of requests to remove any trustee.  He said:

     jurisdiction to remove

[97]   The Superior Court of Justice has inherent jurisdiction to remove trustees: see St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (ON SC), [2007] O.J. No. 4641 (S.C.J.) at para. 25.

[98]   In addition, the Superior Court of Justice may remove a personal representative “and may appoint some other proper person or persons to act in the place of the executor . . . so removed”: see s. 37(1) of the Trustee Act.

     by whom to be brought

[99]   An application to remove an executor may be made by “any person interested in the estate of the deceased”: see s. 37(3) of the Trustee Act.

     choice of estate trustee not to be lightly interfered with

[100] “The Court should not lightly interfere with the discretion exercised by a person in choosing the person or persons to act as his executors and trustees”: see Re Weil, 1961 CanLII 157 (ON CA), [1961] O.R. 888 at 889 (C.A.).[14]

     clear necessity for removal must be established

[101] Interfering “with the discretion and choice of a person in preparing his last will and testament must be not only well justified but . . . must amount to a case of clear necessity”: see Re Weil, ibid.

     removal must be the only course to follow

[102] Removal of an estate trustee should only occur “on the clearest of evidence that there is no other course to follow”: see Crawford v. Jardine, [1997] O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18, citing Re Tempest (1866), L.R. 1 Ch. 485 and Re Owen (1989), 33 E.T.R. 213 at 215 (B.C.S.C.).

     removal to be guided by welfare of beneficiaries

[103] In deciding whether to remove an estate trustee, “the court’s main guide should be the welfare of the beneficiaries”: see Crawford v. Jardine, ibid, citing Letterstedt v. Broers (1884), 9 App. Cas. 371 at 385-387 and Re Anderson (1928), 35 O.W.N. 7 at 8 (H.C.J.).

     non-removal must likely prevent proper execution of trust

[104] “It is not every mistake or neglect of duty on the part of the trustees which will lead to their removal. It must be shown by the applicant that the non-removal of the trustee will likely prevent the trust from being properly executed”: see Crawford v. Jardine, ibid.

[105] “[I]t is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to [remove trustees]. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity”: see Letterstedt v. Broers, ibid, quoting s. 1289 of Story’s Equity Jurisprudence.

     removal not intended to punish past misconduct

[106] “The authorities are, I believe, consistent in placing the emphasis on the future administration of the estate, and the risks to which it will be exposed if the trustee remains in office. The question is whether the trust estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries. The sanction of removal is intended not to punish trustees for past misconduct but rather to protect the assets of the trust and the interests of the beneficiaries”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 28.

[107] But, “past misconduct that is likely to continue will often be sufficient to justify removal . . .”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 29.

     delay by estate trustee

[108] Where delay is the complaint, the question becomes whether the delay has compromised the estate in any manner and whether it will be repeated.

[109] As well, have the delays been reasonably explained and, if so, should they be excused?

     friction alone not a reason for removal

[111] “. . . friction alone is not itself a reason for the removal of trustees”: see Re Joss (1973), 2 O.R. 128 (H.C.J.) at para. 8, citing Letterstedt v. Broers, ibid.

[112] “The question is whether it would be difficult for the trustee to act with impartiality, not whether, in fact, [the trustee] would or would not do so”: see Re Shaw Co. Ltd, 1922 CanLII 97 (SK QB), [1922] 68 D.L.R. 616 (Sask. K.B.), citing In re Lamb; Ex parte Board of Trade, [1894] 2 Q.B. 805 per Lord Esher, M.R.

[113] Friction between co-estate trustees is likely to warrant the removal of either or both of them because it is prone to impact the decision-making process. However, this is a more remote likelihood where the friction is between a trustee and a truculent beneficiary. Of course, in either case, the friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust.”

            Chartrand v. Ebokem, 2022 ONSC 5990 (CanLII) at 22-23