Category: Uncategorized

“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22).  The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)).  Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person.  In the case of a child, family violence includes the direct or indirect exposure to such conduct.

Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.  Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence.  For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

1. 1. 1. Making numerous unsubstantiated allegations against the other party;

1. 1. 2. Unilaterally changing court-ordered parenting time terms without justification; and,

1. 1. 3. Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187).”

     Malone v. Cappon, 2023 ONSC 4344 (CanLII) at 120-121

“The father further argues that if L.G. resides with the maternal grandmother, he should not be required to pay child support to the mother.  I disagree.  In Lefebvre v. Gowan, 2014 ONSC 6221 (CanLII), Justice Robert Smith stated:

[9]     The maternal grandparents have provided assistance to their daughter by allowing the Respondent mother to reside at their residence with Taylor and by providing the funds required by the Respondent mother to pay for prescription medications, and psychological counselling for Taylor. I find that the fact that the maternal grandparents have assisted their daughter in the above manner does not remove the Applicant father’s responsibility to provide child support and contribute to special expenses for a child for whom he is in loco parentis.

[Emphasis added]

The Ontario Court of Appeal approved Lefebvre v. Gowan in Squires v Crouch 2016 ONCA 774 (CanLII), when upholding a trial judgment that awarded child support to a mother although the maternal grandmother was paying some of the grandchildren’s s. 7 expenses.

In Wright v. Conway, 2018 ONSC 133 (CanLII), at paras. 50 to 55, Jarvis J., after reviewing the relevant authorities, concluded, “In none of the authorities referenced was a parent relieved of their child support responsibility in circumstances where the child remained a dependent and attended school but lived with another family member.”

            T.G. v. S.G., 2020 ONSC 4662 (CanLII) at 19-21

“The test to determine the capacity to consent to treatment is set out in s. 4(1) of the HCCA which provides that:

(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Therefore, there are two parts of this test:

• • • the person is able to understand the information relevant to making the decision about the treatment; and,
    • the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.

The inability to understand the information relevant to making a decision about treatment must be as a result of a mental disorder.  As stated in Starson v. Swaze:

[A] patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity.  The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences.  For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences.  Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences.  A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision: Starson v. Swaze, 2003 SCC 2, at para. 81.”

            A.B. v. Shafro, 2021 ONSC 5670 (CanLII) at 19-21

“An award for retroactive child support should generally be retroactive to the date when the recipient parent gave the payor parent “effective notice” of their intention to seek an increase in support payments: Hachey, at para. 49, citing S. (D.B.) v. G. (S.R.), 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 (S.C.C.).

The factors to be considered when deciding whether a variation in child support should be retroactive or not, include:

1. 1. 1. a reasonable excuse for why support was not sought earlier;
      2. the conduct of the payor parent;
      3. the circumstances of the child; and
      4. any hardship that may be occasioned as a result of a retroactive order: Hachey, at para. 57.

Where the court determines that a retroactive order is appropriate, there are typically four dates to choose from in terms of the date of retroactivity:

1. 1. 1.  the date when the application was made to the court;
      2. the date when “formal notice” was given to the payor parent (e.g., service of a motion to change);
      3. the date when “effective notice” was given to the payor parent; and,
      4. the date when the amount of child support should have been increased based on the changed circumstances: see Hachey, at para. 59.

If there is retroactivity, the award should generally be retroactive to the date of “effective notice”. However, the court usually does not go back more than three years before “formal notice” was given unless the payor parent has engaged in blameworthy conduct: see Hachey, at paras. 60-61 and 93-94.”

            Metcalfe v. Metcalfe, 2022 ONSC 4471 (CanLII) at 60-63

“The “clean hands doctrine” comes from the 18^th century maxim that “he who comes to equity must come with clean hands”: see e.g., Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 22; Bolianatz Estate v. Simon, 2006 SKCA 16, 264 D.L.R. (4th) 58, at para. 116; Dering v. Earl of Winchelsea (1787), 1 Cox 318, 2 E.R. 1184, at pp. 319-320.

Doug submits that Melissa’s improper withdrawals should therefore have disentitled her to the equitable remedy granted by the trial judge. We disagree that the “clean hands” doctrine applies in the circumstances of this case.

First, the trial judge did not grant equitable relief. As we earlier concluded, the trial judge made no error in finding that there was an agreement between Doug and Melissa to increase Melissa’s common shareholdings to 50%. This was not the granting of equitable relief but the finding by the trial judge of the existence of an agreement between the parties and the granting of the relief that flowed from that agreement.

Moreover, because Melissa’s withdrawals from the company and from Doug’s line of credit are unrelated to the proper division of the shares, Melissa’s conduct would not fall within the application of the “clean hands” doctrine: see e.g., BMO Nesbitt Burns Inc. v. Wellington West Capital Inc. (2005), 2005 CanLII 30303 (ON CA), 77 O.R. (3d) 161 (C.A.), at para. 27; Toronto (City) v. Polai, 1969 CanLII 339 (ON CA), [1970] 1 O.R. 483 (C.A.), at pp. 493-494, aff’d 1972 CanLII 22 (SCC), [1973] S.C.R. 38.

In any event, the “clean hands” doctrine does not automatically disentitle a party with “unclean hands” from obtaining any relief. Equitable principles are not based on the application of strict rules but are applied at the judge’s discretion and are “crafted in accordance with the specific circumstances of each case”: Pro Swing Inc., at para. 22. As this court observed in Sorrento Developments Ltd. v. Caledon (Town), 2005 CanLII 2549 (Ont. C.A.), at para. 5: “It is a matter of discretion for the trial judge whether to refuse to grant equitable relief on the basis that a litigant has not come to court with clean hands”. Here, the trial judge carefully considered the circumstances surrounding both withdrawals.”

            Hrvoic v. Hrvoic, 2023 ONCA 508 (CanLII) at 14-18

“In the motion before the court, Nathalie Mouralian asks the court to appoint a “litigation guardian counsel” for the purpose of assisting her with her appeal in the underlying proceeding. The evidence in support of her motion shows that she suffers from serious mental health challenges as well as a “brain injury/severe concussion” suffered from an accident in 2021.

The responding party does not oppose the motion.

Nonetheless, the motion is dismissed for two reasons.

First, in answer to the court’s questions, Ms. Mouralian confirmed that she needs counsel, not simply a litigation guardian, to assist her with the underlying appeal. I have not been pointed to any authority giving this court the power to appoint a litigation guardian counsel.

Second, if Ms. Mouralian is seeking the appointment of a litigation guardian pursuant to r. 7.04(1) of the Rules of Civil Procedure, it is not clear to me that the provision gives this court the jurisdiction to make such an appointment. Assuming that it does, s. 7.04(1)(b) is the applicable provision. Pursuant to that provision, the court must be satisfied that Ms. Mouralian “is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding”. The medical evidence filed in support of the motion does not contain a medical opinion to that effect. Instead, the evidence of Ms. Mouralian’s treating psychiatrist sets out her psychiatric diagnoses and other medical problems.”

            Mouralian v. Groleau, 2023 ONCA 513 (CanLII) at 1-5

“The parties consent to an urgent order requiring Toronto Children’s Aid Society to provide them with a copy of its file including a staff report concerning the parties and the issues in this proceeding by August 1, 2023.

The next case conference in this proceeding is scheduled for August 11, 2023.

Toronto Children’s Aid Society has advised the parties that its document disclosure department is backlogged. It cannot provide the parties with a copy of its file and the report about their family before the case conference.

I am told however, that people at the Toronto Children’s Aid Society have advised the respondent and one of the respondent’s lawyer’s offices that they could expedite delivery of the report in time for the case conference if the court ordered it to do so.

So, the parties ask me for that order.

On what basis am I asked to make an order against Toronto Children’s Aid Society?

If I am to order Toronto Children’s Aid Society to do something, do I not first need to find that they are in breach of a law requiring it to do so?

By what standards am I to assess the requirement for such an order?

Are counsel inviting me to make an assessment of the urgency of this case to determine if the parties truly need their file and report more than others in the queue at Toronto Children’s Aid Society? A simple consent order tells me nothing of the urgency for the file and the report either in this case or as compared to others in the queue.

Moreover, isn’t it for Toronto Children’s Aid Society to triage its own workflow? Am I being asked to consider if Toronto Children’s Aid Society is meeting its disclosure obligations? Is that a performance standards issue or perhaps a staffing issue? Is it an issue of prioritization of resource allocation? None of that is possibly before me.

Am I being asked for an order simply to give plausible deniability to a Toronto Children’s Aid Society clerk who can blame the court for deferring disclosure to others while jumping this report to the top of the disclosure pile?

A court order is not a shield behind which to hide institutional issues. If Toronto Children’s Aid Society cannot disclose its files quickly, the answer is not for clients who can afford lawyers to obtain artificial consent orders to expedite their cases ahead of all others. Toronto Children’s Aid Society should not be asked to prioritize disclosure to the squeaky wheel or the well-heeled. Toronto Children’s Aid Society is able to prioritize disclosure requests for those with early upcoming case conferences if it wishes to do so. There is no justiciable issue presented to the court in this motion.

If the parties seek relief against Toronto Children’s Aid Society, they may move on notice to it and with proper evidence and legal support for the relief sought. Moreover, if counsel are seeking to require a public entity to comply with a legal duty with which it refuses to comply, they may also wish to consider whether the proper application is for judicial review in the nature of mandamus or a mandatory order.”

            Jamali v. Parsamehr, 2023 ONSC 4324 (CanLII) at 1-13

“Under the law of privilege, there are authorities that hold where a party’s knowledge is in issue, that party must reveal what he knows, even if the knowledge is  from his solicitor. At the same time, those authorities recognize that disclosing this knowledge from that source is inherently problematic as the solicitor-client communication itself is privileged unless it falls within an exception. One such exception is where the initiating party contesting disclosure has put into issue the question of what legal advice he did or did not receive, thus waiving the solicitor-client privilege that might otherwise applied.  See Jonas v. Pacitto, 2020 ONCA 727 (CanLII).

When determining whether privilege has been or should be deemed to be waived, the court must find the balance between the interests of full disclosure to the parties involved in the adversarial process to ensure a fair trial (or motion for summary judgment), and the preservation of solicitor and client privilege. When a party places her or his state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.  This waiver can arise where the document (or evidence) is used as the basis for a claim or defence: James v. Maloney, 1972 CanLII 518 (SCJ).”

            Capar v. Vujnovic, 2021 ONSC 4713 (CanLII) at 52-53

“Section 52(1) of the Family Law Act provides that two persons who are married to each other may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation.  This includes the rights and obligations of the parties in relation to the ownership in, or division of property.

Any challenge to set aside or to nullify a marriage contract in Ontario is brought under s. 56(4) of the Family Law Act.  Section 56(4) reads as follows:

               Setting aside domestic contract

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

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

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

(c) otherwise in accordance with the law of contract.

The proper approach on an application to set aside a marriage contract under s. 56(4) involves a two step process.  First, the party seeking to set aside a marriage contract must demonstrate to the court that one of the listed circumstances within s. 56(4) has been engaged.  Second, the court must then consider whether it is appropriate to exercise its discretion in favour of setting aside the agreement or a provision within it.  When exercising discretion under this second step, fairness between the parties is a guiding consideration.  See Moses Estate v. Metzer, 2017 ONCA 767 and LeVan v. LeVan, 2008 ONCA 388.

It is reasonable for the court to rely on the plain reading of the marriage contract for the purpose of determining whether the court should uphold the agreement or to enforce its terms: Peerenboom v. Peerenboom, 2020 ONCA 240 at para 62 and Hartstein v. Ricottone, 2016 ONCA 913.

In Toscano v. Toscano, 2015 ONSC 487, Blishen J. of this court confirmed that the burden of proof to set aside a domestic contract is on the party seeking to set it aside.

Mr. Capar submits that Ms. Vujnovic made no financial disclosure of the value of the Grey Owl Property she was seeking to exclude from any equalization process at the time they entered the marriage contract.  This is the sole asset at issue on the marriage contract issue in the application, and on this motion.

Ms. Vujnovic argues that, to the contrary, awareness of the other party’s assets is sufficient to avoid setting aside an agreement: Quinn v. Epstein Cole LLP, 2007 CanLII 45714 (ON SC); and Butty v. Butty, 2009 ONCA 852.      As Raikes J. observed in Golton v. Golton, 2018 ONSC 6245, those authorities make it clear that a party cannot enter a marriage contract knowing of shortcomings in disclosure beforehand, and then rely on those shortcomings when attempting to set the agreement aside.  Individuals are expected to conduct their due diligence in a timely fashion, and will be held accountable for their failure to ask obvious questions.”

            Capar v. Vujnovic, 2021 ONSC 4713 (CanLII) at 45-51

“Every breakdown in the lawyer-client relationship occasions – to one degree or other – stress and anxiety for both the client and the lawyer.  The client is faced with, among other things, having to retain new counsel or be self-represented.  The lawyer is faced with, among other things, possibly unrecoverable accounts.  On the lawyer’s end of things, there is an inherent conflict between its interests and its obligation as fiduciary.  Despite that conflict, however, counsel are subject to continuing obligations to their clients both during and after their retainers (see: TSX Trust Company v Fiorentino, 2023 ONSC 2560, at para. 5).”

            Smoljan et al. v. Branion et al., 2023 ONSC 4246 (CanLII) at 10