Category: Uncategorized

“All parties agree that the inability of J.T.’s biological parents to care for her directly engages the CYFSA.

The paramount purpose of the CYFSA, set out in s. 1(1), is to promote the best interests, protection, and well-being of children. The CYFSA sets out additional purposes that apply to all children in s. 1(2), such as supporting the autonomy and integrity of the family unit, using the least disruptive course of action, and individualizing services to a child in a manner that:

i.   respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment;

ii.   takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;

iii.     takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;

iv.    takes into account a child’s or young person’s cultural and linguistic needs;

v.    provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests; and

vi.    includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

Importantly, s. 1(2) of the CYFSA includes an additional purpose distinct to First Nations, Inuit and Métis peoples: wherever possible, they should be entitled to provide their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

“Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.

Customary care under the CYFSA

What is “customary care”? The concept is defined in s. 2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”. I note the use of the word “person” and not “agency” in this definition.

Customary care is the preferred approach for Indigenous children. Section 80 of the CYFSA requires a society to “make all reasonable efforts” to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child:

1. 1. 1. 1. 1. a.   is in need of protection;
            2. b.   cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and
            3. c.   is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

The practice of customary care arose as an alternative to court-related processes and court-ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities.

Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.

Like any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA. The child’s legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care: see Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen’s Printer for Ontario, 2013) (“MCYS Guide”).

Customary care does not operate outside judicial oversight. As Justice Wolfe noted in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become engaged where there is evidence of bad faith or improper procedure:

I find that the CYFSA does not include statutory timelines that need to be strictly enforced by courts regarding customary care. In choosing that path, the parties to a [customary care agreement] agree that it is in the child(ren)’s best interests to avoid adversarial child protection proceedings in Canadian courts. This is subject to evidence of bad faith or improper procedure which could render placements made out of court invalid. [Emphasis added.]

Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R., at paras. 68-69.”

M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240 (CanLII) at 30-40

“Subrule 7(5) of the Family Law Rules states that a court may make an order to add any person that should be added as a party.

The test for adding parties to a proceeding was set out in Noik v. Noik, 2001 CanLii 27970 (ON SC): can the issue between the applicant and the respondent be effectually and completely settled without the addition of the non-parties; and, will the relief sought by the applicant directly affect the non-parties?”

         Hill v. Green, 2022 ONSC 1789 (CanLII) at 13-14

“The burden of proof for setting aside a domestic contract is on the person alleging that the domestic contract is invalid. The party seeking to escape the effect of the agreement has the onus to show that there are grounds for setting it aside (see Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (Ont. C.A.), at para. 11, Loy v. Loy, [2007] O.J. No. 4274 (Ont. S.C.J.), at para. 161), Shair v. Shair, [2015] O.J. No. 4883 (Ont. S.C.J.) at para. 44).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract. It is desirable that the parties should settle their own affairs if possible, as they are more likely to accept their own solution to their problem than one imposed on them (Farquar v. Farquar, [1983] O.J. No. 3185 (Ont. C.A.), at paras. 19-20, Harnett v. Harnett, 2014 ONSC 359, [2014] O.J. No. 237 (Ont. S.C.J.), at paras. 87-88)).

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, supra,

90 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.

91 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.”

92 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. (4th) 267 (ONCA)

93 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. (4th) 267 (Ont. C.A.).

94 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, ONCA.”

         S.(J.) v. S.(D.B.), 2016 ONSC 1704 (CanLII) at 27-29

“In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at 15, the Supreme Court described the doctrine of mootness as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.

The Court went on, at para. 16, to prescribe a two stage analysis in circumstances where a case may be moot:

16        The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.”

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 (CanLII) at 28-29

“The applicable principles to be considered a motion for sale of jointly owned properties during family law proceedings were set out in Dhaliwal v. Dhaliwal (2020) ONSC 3971, at para. 16:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home.

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.

d.   The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy.

e.   The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.

f.   Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issuein order to avoid the sale.

g.   Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion.

h.   In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined.

i.   The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.

j.   In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.

…

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.

n.   Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale.

…

r.   A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal.  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option.

s.   The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage? [Citations omitted.]

The Divisional Court, in Nogueira v. Nogueira, 2021 ONSC 7564, at para. 3, recently cited Dhaliwal with approval.

Neither Dhaliwal not Nogueira involved farms, but the above principles remain applicable here. However, s. 11(1) applies to farms so additional considerations are in play.”

            Urness v. McDonald, 2022 ONSC 1697 (CanLII) at 9-11

“Separation in the context of family law litigation presumes that cohabitation no longer exists.  Pursuant to s. 1(1) of the Family Law Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.  Cohabiting is something more than simply sharing the same address.  Parties may not be cohabiting even if living under the same roof.  Separation has been described as the point in time when either party regards the relationship as being at an end and by his or her conduct demonstrates that this is a settled intention.  A much-cited case addressing the issue of cohabitation and determination of whether parties are spouses under the legislation is Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376.  In that case, Kurisko J. reviewed a considerable bank of law relating to cohabitation and listed areas that he considered relevant to determining whether a spousal relationship exists.  These considerations are equally important when deciding the question of whether and/or when a separation actually has occurred. Found at para. 16 of this decision, the list entails:

(1)         SHELTER:

(a)    Did the parties live under the same roof?

(b)    What were the sleeping arrangements?

(c)    Did anyone else occupy or share the available accommodation?

(2)         SEXUAL AND PERSONAL BEHAVIOUR:

(a)    Did the parties have sexual relations? If not, why not?

(b)    Did they maintain an attitude of fidelity to each other?

(c)    What were their feelings toward each other?

(d)    Did they communicate on a personal level?

(e)    Did they eat their meals together?

(f)      What, if anything, did they do to assist each other with problems or during illness?

(g)     Did they buy gifts for each other on special occasions?

(3)         SERVICES:

What was the conduct and habit of the parties in relation to:

(a)    Preparation of meals,

(b)    Washing and mending clothes,

(c)    Shopping,

(d)    Household maintenance,

(e)    Any other domestic services?

(4)         SOCIAL:

(a)    Did they participate together or separately in neighbourhood and community activities?

(b)    What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)         SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)         SUPPORT (ECONOMIC):

(a)    What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b)    What were the arrangements concerning the acquisition and ownership of property?

(c)    Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)         CHILDREN:

What was the attitude and conduct of the parties concerning children?”

         Pennington v. Pennington, 2022 ONSC 1631 (CanLII) at 23

“There is no dispute that the Court retains a very limited discretion to vary a final order (and in particular, one obtained on consent of the parties) on a temporary basis.  In the recent decision of S.H. v. D.K., 2022 ONSC 1203 (CanLII), the Divisional Court described the test for granting a temporary variation of a final order to be “stringent”, requiring any supporting evidentiary basis to be quite “compelling”.

The final order sought to be varied in the S.H. decision was a final parenting order, and not a final support order.  Is the test for a temporary variation of a final support order (within a pending Motion to Change) some type of different animal?

Absent a settlement between the parties, the Applicant’s Motion to Change will ultimately result in a formal hearing.  In the Toronto region, motions to change are no longer proceeding by way of trial, but will be heard as long motions going forward.

The jurisprudence relied upon by the Applicant to support her view that this Court has a more general discretion to vary final orders on a temporary basis is not helpful.  During argument, counsel for the Applicant referred the Court to three decisions in support of her position.  I have reviewed those three decisions and cannot find the necessary foundation to support the Applicant’s position.

In Gordon v. Guimont 2016 ONSC 4569 (CanLII) Justice Doyle granted a request to require a father to pay both retroactive and ongoing child support, together with an order sharing section 7 expenses.  On my review of this decision, Justice Doyle was actually hearing the Motion to Change itself.  This appears to be self-evident as Justice Doyle relied upon, inter alia, formal expert income valuation reports filed by both parties.

The Applicant also relies upon the decision of Justice Wolder in Bertram v. Murdock 2006 ONCJ 69 (CanLII).  In Bertram, the mother sought a temporary order of child support and payment of section 7 expenses for the child of the marriage attending university at the time.  There is nothing in the Bertram decision which relates to the within proceeding, as there was no Motion to Change before Justice Wolder who explicitly notes that the mother had commenced an application for child support.

Finally, the Applicant relies upon the decision of Justice Labrosse in Gorska v. Gorski 2015 ONSC 7522 (CanLII), in which the Court heard a motion by the mother for a temporary order for retroactive and ongoing child support together with payment of both retroactive and current section 7 expenses.  Once again, Justice Labrosse was not faced with a situation where either party was bringing a Motion to Change.

In the within proceeding, the Applicant’s motion is essentially akin to a request for partial summary judgment, as the Applicant would obtain (at least in part) temporary relief which she seeks on a final basis in the face of a consent final order which still needs to be varied.

In what circumstances should, or more particularly can, the Court grant such temporary relief in the face of a pending Motion to Change?

Section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 allows a judge of this Court to vary, rescind or suspend a support and/or parenting order.  Section 17(4) of the Divorce Act provides that an order under section 17(1) may only be issued if a moving party satisfies the Court that there has been a material change in circumstances.  I note that the Applicant is not seeking a review, but a formal variation on her Motion to Change.  As such, a material change in circumstances must be found in to order to grant the relief she ultimately seeks.

On this motion, the Applicant seeks a temporary variation of an existing (ie. final) support order pending the hearing of Motion to Change.  In S.H., Justice Dambrot speaking for the Divisional Court offered the following helpful comments when dealing with a temporary request to vary an existing parental arrangement set out in a final order:

“Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.

………

To all of this, the appellant added, in her factum, that this stringent test (i) ensures that important and difficult decisions relating to a child’s best interests are not, save for exceptional circumstances, made on the basis of incomplete information, (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and (iii) ensures that a child’s routine and schedule are not turned upside down on a motion only to be potentially changed again at a final hearing. I adopt these considerations as well as those identified in the cases I have referred to.

The motion judge accepted the statement of the law in F.K. v. A.K., with one caveat. While he agreed that there must be compelling evidence to support changing a final order on an interim basis, he cautioned that the stringent test in F.K. v. A.K. should not be read in a manner that places too much emphasis on maintaining the status quo.

I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.”

I see no compelling reason to avoid using the same approach when dealing with a temporary request to vary existing final support orders.  The Applicant has engaged this Court’s jurisdiction to assess the merits of her request to vary the Paisley Order on a permanent basis.  That request requires a fulsome, thorough hearing by way of a long motion (in the Toronto Region).  If this Court is to implement an “immediate change” to the existing support arrangements in the Paisley Order, the Applicant must demonstrate, at a minimum, the existence of compelling and exceptional circumstances to warrant that temporary variation.”

            Pham v. Ho, 2022 ONSC 1625 (CanLII) at 6-17

“Justice Kraft addressed the challenge of imputing income at interim stage in Lidell-MacInnis v. MacInnis:

[75]           The   court   may   impute   income   to   a   party in   the   context   of   a   motion for temporary spousal or child support, but should exercise caution in doing so having regard for limitations on the court’s ability in the context of a motion to obtain a complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households. However, the decision as to whether or not income should be imputed ultimately remains in the discretion of the motions judge and depends on the particular facts of each case

d.    Once again, given the fact that the parties could have already had their trial – and they can still have their trial within a few months if they choose to make themselves available – I am not prepared to guess and make assailable findings within the needlessly restrictive (in this case) confines of a motion.

e.    Based on the incomplete, contradictory and untested evidence before me, I am not prepared to impute income to the father on an interim basis. This is a complex determination which must await what should be an imminent trial.

f.    Motions for interim support are usually presented relatively soon after separation.  But even if they are brought late in the litigation stream, motions are no replacement for a trial.  As Justice Charney recently noted in Da Silva v. Kelly, 2022 ONSC 1402 (SCJ), the level of analysis is inherently more limited at the motion stage:

[75]         Motions for interim support are summary in nature. The Court will generally not conduct a detailed investigation into the merits of the case: Singh v. Singh, 2013 ONSC 6476, at para. 11; Sandhu v. Dhillon, 2021 ONSC 1143, at para. 14. The full financial circumstances of the parties are not yet available, and a complete inquiry into all aspects and details of the case will have to wait until trial: Matus v. René, 2021 ONSC 1925, at para. 120. As stated by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600, at para. 59:

An interim order is just that — one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.

[76]         I am also guided by the principles set out by Harvison Young J. (as she then was) in Teitler v. Dale, [2017] O.J. No. 182, at para. 23 (as reproduced by Faieta J. in Nifco v. Nifco, 2018 ONSC 2603, at para. 22):

1. 1. 1. 1. 1. 1. On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
               2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
               3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
               4. The courts should not unduly emphasize any one of the statutory considerations above others;
               5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
               6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
               7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out; and
               8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

         Gafanha v. Gafanha, 2022 ONSC 1613 (CanLII) at 49

“In reaching my decision with respect to whether the time spent by counsel and his legal team is reasonable and proportionate, I have also kept in the forefront of my mind the words of the court in D’Andrede v Schrage, 2011 Carswell on 5124 (SCJ) at paragraph 8, the court writes:

8      In reviewing Ms. D’Andrade’s detailed claim for full recovery costs there is nothing in that claim that would cause me to conclude that the charges were so grossly excessive that they should be second guessed by me. She retained thorough and competent counsel who took the steps necessary to advance her claims and defend her against the numerous claims that were being made against her by Mr. Schrage. With respect to the concept of proportionality, I agree with the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 CarswellOnt 609 (Ont. S.C.J.) at para. 19 where he states as follows:

The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.”

         Barran v. Schanck, 2019 ONCJ 218 (CanLII) at 74

“For there to be an enforceable oral agreement, it is necessary for the three basic elements of contract formation to have been satisfied:

a)                  there must be an offer;

b)                  The offer must be accepted; and

c)                  There must be consideration provided with the acceptance.

When the agreement is oral, there must be additional factors present including certainty regarding the essential terms of the agreement and the intention to create a legally binding agreement. (IMG Canada Limited v. General Motors of Canada Limited, 2017 ONSC 3841, at para 9, citing Donovan Homes Ltd. v. Modern Paving Ltd., 2011 NLCA 39, 308 Nfld. & P.E.I.R. 180, at paras. 30, 32-33).

When determining whether there was an intention to create a legally binding contract, the court must determine whether there was a “meeting of the minds” such that an agreement was formed. A meeting of the minds is established when the following is present:

“… [T]he parties will be found to have reached a meeting of the minds, in other words be ad idem, where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined within a reasonable degree of certainty …”

(UBS Securities Canada Inc. v. Sands Brothers Canada Ltd., 2008 CanLII 19507 (ONSC); [2008] O.J. No. 1676, at para. 40 (Ont. S.C.J.), Pepall J.)”

            Spencer v. Hutchings, 2022 ONSC 1555 (CanLII) at 33-35