Category: Uncategorized

“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

“Although on a temporary motion, courts should be cautious against ordering a disruption to the status quo, that is not to say there is a strict presumption in favour of the status quo.  Each case turns on its own particular facts, and in this matter although I considered the status quo, the court is mindful of parties who have imposed a status quo through unilateral decisions and without consulting or obtaining the consent of the other party, as is the case in the matter at bar. In L.M.B. v. F.J.D., 2020 ONCJ 239, at para. 31, Cheung J. writes:

The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party. (See Batsinda v. Batsinda, 2013 ONSC 7899 (CanLII), [2013] O.J. No. 6120 (Ont. S.C.J.), paragraph 28 and Kimpton v. Kimpton, [2002] O.J. 5367 (Ont. S.C.J.), paragraph 1).

In this matter, the court is dealing with a determination of what interim parenting schedule is in the children’s best interests more than two years after the separation.  It is undisputed that the children have been in the respondent’s primary care since separation.  However, it is clear to the court (and an undisputed fact) that the respondent has “imposed” or “directed” the schedule because she believes that it is in the children’s best interests.  In my view, it is inappropriate for the mother to rely on the length of time this imposed schedule has been in place as a reason that it should not be disrupted prior to a trial.  This schedule was never arrived at “on consent”.   In this situation, continuing to delay a change in residential arrangements until trial is not appropriate: see J.D. v. N.D., 2020 ONSC 7965, at paras 17-23, and Ma.M. v. A.W.M., 2019 ONSC 2128.”

         Pereira v. Ramos, 2021 ONSC 1737 (CanLII) at 38-3

“In my Reasons for Judgment, I found that Amy had not proven any of the allegations of abuse. I found that she had acted in bad faith in the manner in which she conducted the litigation. She aligned herself with professionals who were, unfortunately, willing to advance her allegations and adopt without any question the view that the children needed help to protect themselves from a violent father.

The combination of a parent who is willing to pursue unfounded allegations and professionals who enable that parent by assisting in misrepresenting the evidence is reprehensible and causes harm to the children and others who are living in the intolerable terror of domestic violence.”

            Waterhouse v. Waterhouse, 2022 ONSC 5962 (CanLII) at 8-9

“Counsel for the mother argues that in assessing what is in the best interests of the child at an interim motion, one of the most relevant factors is maintaining the status quo pending trial. Temporary Orders are based on limited evidence without the court having the benefit of cross-examination and therefore, only intended to provide a reasonably acceptable solution to a difficult problem pending trial. Counsel for the mother relies on the decision of Grant v Turgeon, 2000 CanLII 22565 (ONSC) wherein Justice Mackinnon stated that generally the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity to meet the children’s best interests: para 15. Justice Mackinnon goes onto state that the rationale for this principle lies in fairness to the parties and concern for best interests of the child as it is generally not in the best interests to change residential arrangements if there is a possibility of another change pending trial: Grant v Turgeon at para 15.

While there may be circumstances in which maintaining the status is in the child’s best interests, for example if the facts are heavily contradicted and a trial date is scheduled, I do not read Justice Mackinnon’s decision to read that changes to parenting schedules cannot be made during interim motions. The predominant consideration for determining parenting time at any stage of the proceedings is the best interests of the child. The status quo is but one aspect of the best interest test which requires consideration of the history of the child’s care and the need for ongoing stability: Subsections 24(3)(a) and (h) Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”).

Furthermore, as explained by Justice Leach in Peet v Zolob, concerns about disturbing status quo have more force when that status quo is reasonably clear and one that has been defined by a previous agreement or a court order: Peet v  Zolob,  (2014) ONSC 5748 at para 17. In this case, the fact that the father has abided by the various parenting schedules imposed by the mother in March 2020, March 2021, and September 2021, does not constitute consent or acquiescence.”

            Weinkauf v. Ruest, 2022 ONSC 1472 (CanLII) at 30-32

“The following principles emerge from a review of the caselaw in relation to the duties on a litigant who proceeds without notice. These duties apply wherever a matter proceeds without notice, such as: on an ex parte emergency motion; where the responding party is in default having not filed an answer; and even where the responding party has filed an answer but that answer has been struck for failure to meet obligations in the litigation process. While the duty is at its highest on an ex parte emergency motion where the court is typically asked to make decisions very quickly, and perhaps somewhat attenuated where a respondent party is in “flagrant violation” of court orders, in my view there is no “sliding scale” when it comes to the obligation to disclose material facts to the court.

There is a “very high duty” on the applicant to make “full and frank disclosure” to the court, and a “positive duty” to at least “alert the court” to material facts required to make a just determination: see Caldwell v. Caldwell (2007), 2007 CanLII 1913 (ON SC), 51 R.F.L. (6th) 399 (Ont. S.C.) at paras. 52-53. As stated by Timms J. in that case at para. 52, where the hearing proceeded on an uncontested basis following the striking of pleadings, “there is a reason that the oath administered to witnesses in our courts compels them to ‘tell the truth, the whole truth, and nothing but the truth.’”. In Caldwell, the court found that the applicant failed to meet these obligations when she omitted to advise the court of the respondent’s inheritance, his job loss, and his support obligations to his first wife. See also Sangster v. Sangster (2003), 2003 CanLII 48248 (ON CA), 34 R.F.L. (5th) 154 (Ont. C.A.), an appeal of a decision declining to set aside a final order obtained on default, in which the Court of Appeal for Ontario stated at para. 7:

The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. A court is entitled to rely on materials filed as being full and frank, particularly where, as here, the motion is brought on an ex parte basis.

In Caldwell, the court held that the “duty of candour” on a party seeking default judgment is akin to the duty on a party seeking an order on a motion without notice (at para. 53). The caselaw governing the obligations on parties who come to court without notice establish a very high standard of transparency and accountability: Ahmed v. Hawthorne, 2016 ONSC 571, 75 R.F.L. (7th) 230, at para. 24. In Ahmed, where a wife moved to set aside a divorce judgment obtained without notice, Myers J. stated at para. 24: “Parties who seek relief without notice must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order being set aside even where the moving party establishes that he ultimately had good grounds for the relief sought.” In D’Alessio v. D’Alessio, 2010 ONSC 321, 75 R.F.L. (7th) 230, where the husband sought to set aside a default judgment, Ray J. described the overarching test as one of fairness.

Where inaccurate facts could have materially impacted the court’s assessment of the case, thus affecting the outcome, an order may be set aside: Ontario (Director, Family Responsibility Office) v. Shore, 2010 ONSC 5267, [2010] O.J. No. 4148 at para. 8. In Shore, the applicant proceeded on an uncontested basis after the respondent’s pleadings were struck. The final order obtained by the applicant was set aside on findings that Ms. Shore had provided one-sided and inaccurate information to the court. The court found that she failed in her duty to be “careful and candid” and that the misinformation conveyed resulted in a different order than would otherwise have been made. See also Cadas v. Cadas, 2013 ONSC 2608, 34 R.F.L. (7th) 357, per Stevenson J. at paras. 42-48.

The lack of intention to mislead is not a defence to the failure to make full and frank disclosure. The issue is whether the court was in fact mislead: Rosenhek v. Kerzner, 1997 CarswellOnt 2148 (Ont. Gen. Div.) at para. 17; Mosregion Investments Corp. v. Ukraine International Airlines (2009), 2009 CanLII 63600 (ON SCDC), 99 O.R. (3d) 49 (Ont. S.C., at para. 15.  As stated by Cameron J. in Rosenhek at para. 19:

This court relies on full, true, and plain disclosure in all evidence presented to it. It is the foundation for the administration of justice. Compliance with the principle must be scrupulous where a party opposite in interest is not given the opportunity to cross-examine on the affidavit and present other evidence to ensure the facts before the court are complete, true, and plain. Lack of mala fides is not the issue. Substantial compliance with the principle is the issue.

Relevant and material facts relied upon when proceeding without notice, in particular on an ex parte urgent motion, should be specifically referred to in the body of the affidavit: Mosregion at para. 14. See also 830356 Ontario Inc. v. 156170 Canada Ltd., 1995 CarswellOnt 4360 (Ont. Gen. Div.) at para. 23.

However, on a default hearing or uncontested trial, where the court is not under similar time constraints, a court may be taken to be aware of the contents of exhibits filed as evidence in the hearing:  Dodge v. Dodge (2007), 2007 CanLII 80075 (ON SC), 44 R.F.L. (6th) 317 (Ont. S.C.) at para. 48.

The fact that a party’s pleadings have been struck does not open the door to permit the moving party to make less than full disclosure of material facts. Thus, in Shore, the court stated at para. 2, “the fact that Mr. Shore was non-compliant will not deprive him of a remedy in such circumstances as were thereafter created by Ms. Martin.” Similarly, in Caldwell at para. 66, Timms J. stated:

While it is tempting to say that the respondent’s prior “bad conduct” should bar him from arguing that the order of Salmers J. should be changed, it is my view that justice requires that he be allowed to do so.

However, the positive duty referred to above does not extend so far as to prove the respondent’s case for him. In Dodge, the husband sought to set aside an order where he argued in part that the evidence placed before the court on the default hearing was lacking “critical” information that was intentionally withheld from the court. Campbell J. found that all necessary, appropriate, and relevant information was put before the court and that the court was aware of that information. Counsel’s obligation was to be open, honest, trustworthy, reliable, and candid, but there is no obligation to put the other party’s claims or allegations before the court or argue the other party’s case. The husband could not shift his responsibility for his own “avoidant” behavior onto the wife’s counsel (paras. 45–48).

In Gupta v. Gupta, 2019 ONSC 20, [2019] O.J. No. 304, where the father alleged that the mother obtained an order based on fraud and the father’s pleadings had been struck for “flagrant violations of court orders,” the court stated the “Mother’s obligation is to put forward such relevant evidence that Father produced up to that point, as to his income and the value of the assets. She has no obligation to test the veracity, accuracy or reliability of that evidence, nor is she obliged to unearth other evidence within Father’s power to disclose, that he did not disclose” (para. 36). While Gupta seems to suggest a lower standard of required disclosure where the respondent’s behavior has led to the striking of pleadings, the case nevertheless confirms the obligation on an applicant to put forward the “relevant” evidence of the respondent.

I suggest that it can never be appropriate or acceptable to omit material facts or materially misstate evidence to the court. Even where a respondent has failed to obey court orders, resulting in his or her pleadings being struck, this does not justify the applicant’s filing of court documents with material omissions: Caldwell, at para. 55.

I note that some of the caselaw with respect to full disclosure cited above developed under the Ontario Rules of Civil Procedure, in particular under r. 39.01(6) which states that where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and that the failure to do so is in itself sufficient ground to set aside any order obtained. In my view, there would be no reason why the disclosure obligations on applicants proceeding in the family context on an uncontested or ex parte basis or otherwise without notice, would be any less exacting than in the civil context more generally.”

            Irons v. Irons, 2020 ONSC 1471 (CanLII) at 89-100

“When considering whether to retroactively vary the father’s child support obligations and rescind his arrears, I have to balance three interests to achieve a fair result:

1. 1. 1. 1. The children’s interest in receiving the appropriate amount of support to which they are entitled;
         2. The interest of the parties and the children in certainty and predictability; and
         3. The need for flexibility to ensure a just result in light of fluctuations in the father’s income.

The legal principles applicable to this analysis have been very recently reviewed and set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24.  Even though that particular case was decided pursuant s. 17 of the Divorce Act, it is equally applicable to similar requests, such as this one, being made under our provincial legislation. The Court summarized those principles as follows:

[113] To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

…

[138] Accordingly, in this third category of cases [where the prior order corresponds with the payor’s income], the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears (Earle, at para. 26; Corcios, at para. 55; Gray, at para. 58). Present inability to pay does not, in itself, foreclose the prospect of future ability to pay, although it may justify a temporary suspension of arrears (Haisman, at para. 26). This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor. It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large. Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant (Bakht et al., at p. 550).

. . .

[141] While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances” (Gray, at para. 53), the standard should remain a stringent one. Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases, such as where the payor suffers a “catastrophic injury” (Gray, at para. 53, citing Tremblay v. Daley, 2012 ONCA 780, 23 R.F.L. (7th) 91). I agree with Ms. Colucci that the availability of rescission would otherwise become an “open invitation to intentionally avoid one’s legal obligations” (Haisman (Q.B.), at para. 18, citing Schmidt v. Schmidt (1985), 1985 CanLII 3777 (MB QB), 46 R.F.L. (2d) 71 (Man. Q.B.), at p. 73; R.F., at para. 57). Simply stated, how many payors would pay in full when the amounts come due if they can expect to pay less later? The rule should not allow or encourage debtors to wait out their obligations or subvert statutory enforcement regimes that recognize child support arrears as debts to be taken seriously. [emphasis added]”

         Savage v. Kaczmarek, 2022 ONSC 1313 (CanLII) at 14

“The fact that an adult child is undertaking educational studies may constitute “other cause” within the meaning of s. 2(1) of the Divorce Act. In Menegaldo, at para. 157, Chappel J. summarized several factors that courts have considered in answering the question of whether an adult child pursuing post-secondary educational programs remains a child of the marriage:

1. 1. 1. 1. 1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
            2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
            3. The ability of the child to contribute to their own support through part time employment.
            4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
            5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
            6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
            7. The age, qualifications and experience of the child.
            8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
            9. Whether the child is performing well in the chosen course of studies.
            10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
            11. The means, needs and other circumstances of the parents and the child.
            12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

While none of these factors is determinative, the first factor – whether the child is in fact enrolled in a course of studies – is of central importance.”

            Edwards v. Edwards, 2021 ONSC 1550 (CanLII) at 34-35

“The Court has the jurisdiction to vary interim support orders.

In Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403, the Court of Appeal directed that motions to vary interim spousal support orders “were not to be encouraged and that it would take a substantial change in the circumstances before such an application would be permitted.”

As explained by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a motion to vary is neither an appeal nor an opportunity to re-litigate the prevailing Order.  A motion to vary proceeds on the basis that the prevailing order was correct when it was made.

The parties provided case law setting out a variety of considerations which should be taken into account in determining whether a variation of an interim support order should be made including: a) whether the failure to vary the Order would cause the payor to suffer undue hardship; and b) whether continuation of the Order would be incongruous or absurd; Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para 30 citing Pakka v. Nygard, 2004 CanLII 5071 (ON SC), [2004] O.J. No. 100 (Ont.S.C.J.) at para 5.  The test is not whether I would have made the same Order.

As stated by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (Ont.S.C.J.):

20 The test that applied on a motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary support order rather than waiting until trial is a heavy one.”

            Albaum v. Albaum, 2022 ONSC 1300 (CanLII) at 5-9

“At the outset of trial, as a preliminary matter, the Father argued that the Mother’s tort claim was statute barred. I ruled that it was not because it was based on an alleged assault while the parties were in an “intimate relationship” and/or in a relationship of dependency. According to s. 16(1)(h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, no limitation period applies in such circumstances:

16(1) There is no limitation period in respect of,

(h.2)  a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

(i)  they had an intimate relationship,

(ii)  the person with the claim was financially, emotionally, physically or otherwise dependent on the other person.”

          Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII) at 30