Category: Uncategorized

“A person commits battery when they intentionally inflict unlawful force on another person: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at p. 246.  The court must conclude that the defendant intended to, and did in fact, make physical contact.  The contact must be either physically harmful or offensive to the victim’s reasonable sense of dignity: Linden and Feldthusen, Canadian Tort Law, 8^th ed. (Markham, Ont.:  LexisNexis Butterworths, 2006) (“Canadian Tort Law”), at p. 44; Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, at paras. 142-43.

Ana and Ilinca allege that Liviu spanked, hit, beat, slapped, pinched or choked them or dragged them by their hair and that these acts constituted battery.  To succeed in this claim, they must prove not only that Liviu committed some or all of these physical acts, but that he did so intentionally and that the contact was harmful or offensive.

Assault

A civil assault is a threat, through words or conduct, to commit battery.   The tort of assault exists to protect individuals not only from actual physical harm but from the fear of physical harm: Canadian Tort Law, at pp. 46-47.   To prove assault, a plaintiff must show that the defendant intentionally created the apprehension of imminent harmful or offensive contact: Canadian Tort Law, at pp. 46-47; Costantini v. Costantini, 2013 ONSC 1626, 28 R.F.L. (7^th) 356 (“Costantini”), at para. 30.

Ana and Ilinca allege that Liviu assaulted them on March 26, 2005 and on other occasions, by threatening to kill them or seriously hurt them.  If they prove that these incidents took place, and that they reasonably feared that he would harm them, then Liviu would be liable for assault.

Breach of fiduciary duty

Parents are obliged to act in their children’s best interests and not exploit the power and authority they hold over them: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 (“M v. M.”), at pp. 62-63. They have a wide discretion in the performance of their duties as parents, but this does not extend to willfully inflicting personal injuries beyond the limits of reasonable parental discipline.  Physical abuse of a child is a breach of the parent’s fiduciary obligation to protect and care for their children: M. v. M., at p. 67.

Ana and Ilinca allege that Liviu physically, verbally and emotionally abused them, and that this constituted a breach of his fiduciary duty to them as a father. To succeed in this cause of action, they must prove that he committed the acts alleged and these acts did not fall within the range of reasonable parental discipline.

Negligence

A person is negligent if they owe a duty of care to another person, they act or fail to act in accordance with that duty, and the other person suffers harm as a result: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13.

Ana and Ilinca allege that Liviu breached his duty of care towards them, as a parent, through acts of verbal, physical and emotional abuse, and that this caused them both physical injuries and psychological harm.  To succeed in this cause of action, they must again prove the acts they allege, that these acts breached Liviu’s duty of care toward them, and that the acts caused them injuries that may and should be compensated through an award of damages.

Intentional infliction of mental distress

The tort of the intentional infliction of mental distress arises when a defendant engages in flagrant and outrageous conduct calculated to produce harm, which results in a visible and provable injury such as a recognized psychiatric illness McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, 344 O.A.C. 5, at paras. 29-30.

Ana and Ilinca allege that Liviu terrorized them and isolated them from their extended family and their peers and that, as a result, they suffer from depression, anxiety and post-traumatic stress disorder (“PTSD”).  If they can prove that this conduct occurred, that it was intentional, and that it caused them to have a recognized psychiatric illness, then they will have made out a claim for intentional infliction of mental distress.

Wrongful imprisonment

A person wrongfully imprisons another if they deprive them of liberty against their will, either through physical or psychological means: Sankreacha v. Cameron J. and Beach Sales Ltd., 2018 ONSC 7216, 51 C.C.E.L. (4th) 264, at para. 233.

Ana and Ilinca allege that they did not feel safe in the Calin home, yet felt compelled to remain because Liviu isolated them socially and undermined their sense of self-worth.  To prove that this amounted to unlawful imprisonment, they would have to show that the acts they alleged occurred and that the situation led them to be deprived of their liberty.”

Calin v. Calin, 2019 ONSC 3564 (CanLII) at 18-29

“In the case of Hansen Estate v. Hansen, 2012 ONCA 112 (CanLII), 109 O.R. (3d) 241, at para. 32, the Ontario Court of Appeal endorsed three ways in which a joint tenancy may be severed, referring to the classic statement by Vice-Chancellor Wood in Williams v. Hensman (1861), 70 E.R. 862, (Eng. Ch.), at p. 867:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund — losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 Ir. Eq. R. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Chancellor)].

Chief Justice Winkler continued in Hansen Estate at para. 34:

The three modes of severance referred to in Williams v. Hensman have come to be known as the “three rules” … [which] may be summarized as follows:

Rule 1:  unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and

Rule 3:  any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

For the purpose of these applications, the parties agree that the potentially relevant mode of severance is by a “course of dealing.”

The equitable principle underlying the rule is to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties in cases where there is no explicit agreement to sever the joint tenancy.”

         Marley v. Salga, 2019 ONSC 3527 (CanLII) at 19-22

“The Applicant attaches what appear to be parts of a series of text messages and emails directed at her by a Dufferin Child and Family Services case worker which she characterizes as supportive of her theory.

I have on more than one occasion been critical of the local agency knowingly or otherwise allowing themselves to be made a catspaw by one or the other party to a domestic family law proceeding.  Those parties seek to use the agency as an ally to advance their position – albeit usually not as baldly as the Applicant here.  It is unclear whether the CAS was aware that the private communications of the Applicant with their worker would be used in this forum.

To be clear, agencies such as the local CAS have an essential role to play in the welfare of children and young adults in this province that is defined by legislation.  This role engages child welfare options and counselling and supportive children’s mental health options, among other tasks.  If there are child protection concerns apparent the agency must by law take steps to try to address those concerns including in a formal way if necessary.  This may include in extremely serious cases by removing children to a place of safety with or without a warrant.

It is not one of the legislative roles of a child welfare agency to act behind the scenes to manipulate or steer a domestic action currently before the courts in one direction or another although that route may seem to be easy and cost effective.”

         Hillyer v. Pulver, 2021 ONCJ 317 (CanLII) at 11-14

“Unlike the FLA, which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant’s interest must be proportionate to their contributions: Kerr, at para. 102. When the contributions are unequal, the shares should be unequal: Kerr, at paras. 84-85.”

         Lesko v. Lesko, 2021 ONCA 369 (CanLII) at 34

“The Statute of Frauds generally requires that contracts creating interest in land or for the sale of land be in writing.  The fact that a contract does not comply with the Statute of Frauds because it is not in writing does not render the contract void, but it renders it unenforceable in certain circumstances.

Section 4 of the Statute of Frauds provides that no action can be brought to enforce an oral agreement regarding the sale of land or an interest in land.

The purpose of section 4 is to prevent fraudulent dealings in land based upon perjured evidence.

Equity, however, will not allow the Statute of Frauds to be used as an “engine of fraud.”

There is a remedy in equity or by way of equitable doctrine that allows the Court to rely on an oral agreement, when the Statute of Frauds would otherwise preclude such reliance.  The equitable doctrine is the doctrine of part performance.

The equitable doctrine of part performance is to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing it was designed to remedy.  See Hill v Nova Scotia (Attorney General) 1997 CanLII 401 (SCC), [1997] 1 SCR 69 at paragraph 10 (“Hill”).

The requirements of s. 4 must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document that is, they diminish the opportunity for fraudulent dealings with land based upon perjured evidence.

  In Hill at paragraph 9 the court stated:

.. .  where the terms of an agreement have already been carried out the danger of fraud is averted or at least greatly reduced.

 As Corey J. stated in Hill:

. . . equity recognizes as done that which ought to be done. . .  and a verbal agreement which has been partly performed will be enforced.

This doctrine is engaged, when one party relies to his or her detriment on the oral promise of the other party and partly performs his or her obligation under the contract while the other party “stands by it.”  It is inequitable for the other party to rely on the Statute of Frauds to excuse his or her non-performance of the oral contract.  The doctrine of part performance has been held to exclude the operation of s. 4 of the Statute of Frauds.  See Erie (supra).

The doctrine requires the acts said to evidence the part performance must unequivocally refer to and support the alleged agreement and be amenable to no other interpretation.  An objective reasonable bystander would conclude in all of the circumstances that the parties had intended to contract.

  In Erie, the ONCA considered the following questions:

Did the parties’ discussions amount to an agreement? 

If the answer is yes, were there sufficient acts of part performance to take the agreement outside the requirements of s. 4 of the Statute of Frauds? 

If so, should specific performance be ordered? Or, was it properly ordered at the trial level?”

         Foertsch v. Foertsch, 2021 ONSC 3999 (CanLII) at 149-160

“Section 8 of the AHRA [Assisted Human Reproduction Act, S.C. 2004, c. 2] reflects deep societal respect for donor consent in the context of reproductive technology. Indeed, that is why it survived constitutional scrutiny in Reference re AHRA: see McLachlin C.J. at paras. 10, 156, and Cromwell J. at paras. 291, 294. Section 8(3) makes it a criminal offence to use an in vitro embryo without consent and, therefore, the absence of consent is an essential element of that criminal offence. Accordingly, were the respondent to go ahead and use the embryo in the face of the appellant’s lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.

An individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law. Any effort to do so is void ab initio: Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7 (CanLII), [2004] 1 S.C.R. 249, at para. 22; G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Carswell, 2011), at 364-68; S.M. Waddams, The Law of Contracts, 6th ed. (Aurora, Ont.: Canada Law Book Inc., 2010), at 419-25. Accordingly, despite having contracted in Ontario to permit the respondent to unilaterally deal with the embryo according to her wishes in the event of divorce, the appellant did not, nor could he have, contracted out of the protections afforded to him under s. 8(3) of the AHRA and the Consent Regulations. To the extent that the Ontario contract purports to do that, it is void.”

S.H. v. D.H., 2019 ONCA 454 (CanLII) at 71-72

“The Court has jurisdiction to monitor and police its own case management process. In the circumstances of the case before me, it cannot lie in the respondent’s mouth to interpret Rule 1(8) so strictly, while at the same time choosing to consistently not play by the rules (including the Family Law Rules). Rule 1(8) permits the Court to make “any order that it considers necessary for a just determination of the matter”. The list of options available to the Court under Rule 1(8) is not exhaustive in nature, but inclusive. A just determination of any family proceeding is rooted in the protection of the administration of justice as a whole, and when a party chooses to consistently disobey a court order, the administration of justice itself is called into question.”

         Granofsky v. Lambersky, 2019 ONSC 325 (CanLII) at 25

“This case raises a single issue: the arrangements for selling the matrimonial home. The appellant wanted to sell the home and divide the net proceeds of the sale, while the respondent wanted to purchase the appellant’s interest in it. The current value of the home was not established at trial. The trial judge granted the respondent the right to purchase the matrimonial home within 30 days from the release of his decision after obtaining a fair market value assessment.

The appellant submits that the trial judge erred in making this order. We agree.

As this court explained in Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser.”

         Barry v. Barry, 2020 ONCA 321 (CanLII) at 7-9

“Thus the following two issues arises in relation to these capital distributions:

1. 1. 1. 1. are encroachments on the capital of the Trust that are distributed to the Respondent to be included in the calculation of his income for spousal support purposes in the relevant year; and
         2. if the answer to the first question is “yes”, should the capital distribution in a particular year be “grossed up” to take account of the fact that no income tax is paid on such distribution

Should distributions from the Trust’s capital be included in the calculation of the Respondent’s income for support purposes?

Section 15.2(4) of the Divorce Act requires the court making an interim order for spousal support to take into consideration the “condition, means, needs and other circumstances of each spouse…” In determining the “means” of a spouse with an obligation to pay spousal support, the starting point of the analysis is that spouse’s “income” as determined in accordance with line 150 of his or her Income Tax Return: see the Guidelines, s. 3 (1) and 16. But s. 19 (1) of the Guidelines also provides discretion to a court to impute such amount of income to a payor spouse that it considers appropriate in the circumstances, including the following:

(e)     the spouse’s property is not reasonably utilized to generate income;

…

(h)     the spouse derives a significant portion of income from dividends, capital gains or other sources of income that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i)       the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Subsection 19(1)(e) makes it plain that a spouse must reasonably utilize their property to generate income and that a failure to do so may result in the imputation of income. However, while property must be reasonably utilized to generate income, courts have generally not required a payor spouse to draw down or dispose of their property or capital in order to fund support payments. As the Court of Appeal noted in Bak v Dobell, the Guidelines proceed on the assumption that child and spousal support are based on a payor’s income rather than their capital, and “while income from investments is part of a payor’s total income, his or her underlying investments are not.”: 2007 ONCA 34 at para. 52. Thus in Laurain v Clarke, Price J. declined to impute income on annuity payments being received by a payor spouse on the basis that they were payments of capital, not income generated by capital: 2011 ONSC 7195, at para. 103. The Respondent relies on the distinction between income and capital to argue that, whereas income generated by the Trust is appropriately included within his Guidelines income, distributions of capital are not.

The difficulty with the Respondent’s argument is that s. 19(1)(i) of the Guidelines specifically provides that it is appropriate to impute income on “income or other benefits” received from a trust. What this broad language suggests is that Parliament has made a determination that distributions from a trust, whether from the income or the capital of the trust, constitute part of the “means” of the payor spouse and may be taken into account in calculating a spouse’s income for support purposes.

This was the conclusion reached in Jackson v. Jackson, where Pardu J. found that the receipt by the husband of approximately $105,000 annually from the capital of a trust should be considered to be a “benefit from the trust” and imputed as income pursuant to s. 19(1)(i) of the Guidelines: 1997 CanLII 12392 (ON SC), [1997] O.J. No. 4790. In fact, if the words “income or other benefits from the trust” did not extend to capital distributions paid or payable to a beneficiary, s. 19 (1) (i) would have no practical effect. This is because amounts payable to a beneficiary out of the income of a trust are already taxable and included as line 150 income. By providing that income may be imputed on “income or other benefits” received or receivable from a trust, Parliament must have intended to go beyond amounts that are already taxable and permit inclusion of capital distributions as a “benefit” received from the trust.

To be sure, s. 19 does not require the automatic inclusion in Guidelines income of all amounts received from a trust, since courts have the discretion to impute such amounts as are considered appropriate in the circumstances. In Clapp v Clapp, one spouse had received a number of capital distributions from a trust, with these amounts having been used primarily to renovate a family cottage and to purchase certain vehicles: 2014 ONSC 4591. The last such capital distribution had occurred over seven years prior to the parties’ separation, and the cottage and the vehicles were being included in the equalization of net family property. In these circumstances Price J. declined to impute the capital distributions as Guidelines income.”

            Bledin v. Bledin, 2021 ONSC 3815 (CanLII) at 29-34

“As a general principle, the courts have been reluctant to suspend access or parenting time as a result of the COVID-19 pandemic. Numerous cases since the advent of the COVID-19 pandemic have recognized that while parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives, there is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child. See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; J.F. v. L.K., 2020 ONSC 5766, at para. 20.

That said, courts have been reluctant to require children to travel outside of Canada in the face of government protocols directing that non-essential travel outside of Canada be avoided. For example, in Semkiw v. Sutherland, 2020 ONSC 4088, at paras. 36-37, Horkins J. stated:

The children have in the past travelled to Texas with the mother and have enjoyed their time there. Now is a different time and decisions about the children’s travel must take into consideration the COVID-19 pandemic and where the children are going. The air travel that the mother proposes involves crossing a border that is closed to non-essential travel due to the pandemic and arriving and travelling through the State of Texas that is experiencing a surge in COVID-19 cases and hospitalizations. After the summer weeks are over, the children would travel back home. On return, the children would have to self-isolate for three weeks with their father.

The mother has chosen to move to Texas and give birth in this State. She is not entitled to have the children join her in Texas during this pandemic. This proposed travel is non-essential and would recklessly expose the children to the risk of infection. This would not be in the best interests of the children.

The courts have expressed concerns with the potential health risks to the children as well as the requirement that children quarantine upon their return to Canada: Semkiw v. Sutherland, 2020 ONSC 7477, at paras. 20-23.

In Onuoha v. Onuoha, 2020 ONSC 1815 Madsen J. stated, at para. 10:

It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein.

In Yohannes v. Boni, 2020 ONSC 4756, Nishikawa J. suspended a court order granting the father, who resided in France, six weeks parenting time with his 10 year old child in France. She held, at para. 20:

I am satisfied that the current COVID-19 pandemic is a material change in circumstances that affects or is likely to affect the best interests of the child such that the Parenting Order should be varied on an interim, without prejudice basis.

Nishikawa J. stated, at paras. 26-27:

My finding that it is not in Selyana’s best interests to travel to France during the pandemic does not in any way minimize the importance of the relationship between her and the Respondent, or her time with him, her grandparents, and her extended family in France. The global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the Respondent and Selyana living in different countries…

In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, Selyana’s health and safety cannot be put at risk… While I recognize that requiring that the Respondent exercise his parenting time in Toronto is not ideal, it is the best interests of the child that govern.

See also: Saini v. Tuli, 2021 ONSC 3413, at para. 29:

In this context, the children’s safety is a critical consideration. The COVID-19 protocols clearly direct that non-essential travel outside of Canada be avoided. I do not accept the Respondent’s speculation regarding the children’s relative risks of contracting COVID-19 if they remain with the Applicant while she is in California. Further, while the Applicant’s travel to the United States may be essential for her in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.

See also Bourke v. Davis, 2021 ONCA 97, at paras. 69-72, where the Court of Appeal recognizes that government travel restrictions may legitimately affect the ability of parties to comply with an order for parenting time that requires the children to travel to the United States.”

            Grieder v. Zabinski, 2021 ONSC 3796 (CanLII) at 25-32