Siegel's Family Court Calendar

“Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.  The Court of Appeal pointed out in Fisher v. Fisher, (2008), that self-sufficiency, with its connotation of economic independence, is a relative concept: para 51. It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation, and could reasonably anticipate afterward. It requires consideration of:

(a)  The parties’ present and potential incomes;

(b)  Their standard of living during cohabitation;

(c)  The efficacy of any suggested steps to increase a party’s means;

(d)  The parties’ likely post-separation circumstances (including the impact of equalization of their property);

(e)  The duration of their cohabitation; and

(f)    Any other relevant factors: Fisher, at para 53.”

Samnani v. Galmani, 2018 ONSC 7280 (CanLII) at 118

“I do not think it appropriate to provide for police enforcement of the parenting time in this order.  In my view, s. 36 of the Children’s Law Reform Act allows for police enforcement in response to an existing or reasonably anticipated situation of unlawful withholding of the child.   The wording of the section does not contemplate its use as a long-term, open-ended and instant remedy for possible future contempt of court.  I am also concerned that such an order would be open for abuse by either parent to escalate a minor disagreement rather than to problem-solve.  Most important, these young children have already been exposed to enough police involvement and have unfortunately witnessed their parents resort to calling the police when unable to manage and coordinate their parenting in a mature manner.  This is hardly a model environment in which they should be raised.  They deserve better from their parents.  I agree with the maternal grandmother’s observations that: “they need to act like parents, grow up and work like parents.”

A better long-term strategy that promotes the best interests of the children is for both parents to use therapeutic alternatives, such as the counselling I have ordered, to minimize the risks of future non-compliance and conflict during access.

Congdon v. Baarrts, 2019 ONSC 7126 (CanLII) at 82-83

“In Serra v. Serra, 2009 ONCA 395 (CanLII), 66 R.F.L. (6th) 40, the Court of Appeal has confirmed that the law of costs in family law cases is designed to foster three important costs principles: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants: see also, Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).  In Mattina v. Mattina, 2018 ONCA 867 (CanLII) at para. 10, the Court of Appeal stated that Family Law Rule 2(2) adds a fourth factor: to ensure that cases are dealt with justly.”

Shah v. Irvine, 2018 ONSC 7359 (CanLII) at 40

“My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18:

The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 [In Chambers], at paras. 14-15.”

Paschel v. Paschel, 2017 ONCA 972 (CanLII) at 9

“Under a combination of r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and r. 38(33) of the Family Law Rules, O. Reg. 114/99, the filing of a notice of appeal stays any provision requiring the payment of money except a provision that enforces a support order.”

Nguyen v. Tran, 2018 ONCA 985 (CanLII) at 2

“Issue #4 — the value of Mr. Butty’s liabilities was overstated by approximately $23,500 because the full debt of $151,000 to his mother was shown as outstanding. We query whether the difference is of a sufficient magnitude in the circumstances of this case to meet the statutory requirement that it is a failure to disclose a “significant” asset or debt. Having said that, again, we are not persuaded that it amounts to a failure to disclose. Ms. Butty was aware of the debt and of Mr. Butty’s obligation to repay the loan amount. If not aware of the precise amounts that had been paid, Ms. Butty’s first lawyer knew that Mr. Butty was making regular payments and the debt was being reduced.

Accordingly, this case is very different from LeVan v. LeVan (2008), 2008 ONCA 388 (CanLII), 90 O.R. (3d) 1, [2008] O.J. No. 1905, 2008 CarswellOnt 2738 (C.A.), in which this court recently affirmed a trial judge’s exercise of discretion pursuant to s. 56(4) of the Act. In LeVan, the following factors led to the exercise of that discretion [at para. 35]:

(1) The husband failed to disclose his income tax returns and the value of his significant assets. (2) The wife did not receive effective independent legal advice and some advice provided was wrong. (3) The wife did not understand the nature and consequence of the marriage contract. (4) The husband misrepresented the nature and terms of the marriage contract to the wife. (5) The husband’s failure to disclose his entire assets to his wife was deliberate. [page240] (6) The husband interfered with the wife’s receipt of legal assistance from her first lawyer.

Butty v. Butty, 2009 ONCA 852 (CanLII) at 58-59

“I see no error in the motion judge’s finding that the transfer of the 50% interest in the property to Shakiba was an irrevocable, unconditional gift and that no genuine issue requiring a trial was raised on the record with respect to that issue. 

It is accepted that the motion judge applied the proper test for the determination of a gift: an intention on the part of the donor to make a gift without consideration or expectation of remuneration; an acceptance of the gift by the donee; and a sufficient act of delivery or transfer of the property to complete the transaction. See McNamee v. McNamee, 2011 ONCA 533, 335 D.L.R. (4th) 704.”

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII) at 13-14

“Ms. Draper contends that there was no “transfer” of property by Mr. Holtby to her, as both parties participated in the incorporation of Knapton, so the doctrine of resulting trust does not apply. She further asserts that her receipt of the Knapton shares was not gratuitous: first, because she gave consideration, when she paid the $100 subscription for her shares, and second, because Knapton (in which she was already a 50% shareholder) gave fair market consideration to Mr. Holtby when it purchased the farm property and other assets from him. In this sense, Mr. Holtby did not make any gratuitous transfer of property to Knapton. She contests the trial judge’s reliance on Paddock v. Paddock (2008), 78 R.F.L. (6th) 54 (Ont. S.C.), aff’d 2009 ONCA 264, 78 R.F.L. (6th) 69.

In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 44, Rothstein J. explained that the trial judge must commence his or her inquiry with the applicable presumption and weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust: Pecore, at para. 24. The presumption of resulting trust applies to married spouses, except that where property is held in joint ownership, the presumption is that they intended to each own one half, in the absence of evidence to the contrary: Family Law Act, s. 14. The transferor’s intention at the time of the transfer is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30 and 41. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. Its reliability must be assessed to determine weight, guarding against evidence that is self-serving or reflects a change in intention: Pecore, at para. 59; Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 63.”

Holtby v. Draper, 2017 ONCA 932 (CanLII) at 31-32

“The quantum of income attributable to the husband is a finding of fact made by the trial judge on the basis of the evidence adduced by both parties.  In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, the Supreme Court of Canada has clearly told appellate courts not to interfere with a factual finding of a trial judge in the absence of palpable and overriding error, including a misapprehension of the evidence.

In my view, the trial judge made no such error and did not misapprehend the evidence.  The trial judge was not obligated to accept either the husband’s evidence about his minimal income or the wife’s expert evidence as to the husband’s 1997 and projected income.  The trial judge was entitled to attribute income based on his review of the whole of the evidence. On the evidence called at trial, he was entitled to his determination that neither party had persuaded him of a material change in the husband’s income since the divorce.  There is no reason to interfere with his conclusion.”

Pirner v. Pirner, 2005 CanLII 44166 (ON CA)

“Defamation is a strict liability tort. The plaintiff must prove three things to obtain judgment and be awarded damages: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff”:  Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640 at para. 28.”

Kumar v. Khurana, 2019 ONSC 6825 (CanLII) at 13