Siegel's Family Court Calendar

“The Family Law Rules do not address the procedure applicable to seeking leave to institute a new proceeding in the face of a [Courts of Justice Act] CJA s. 140(1) vexatious proceeding order. As a result, I issue these directions to the wife regarding her leave application.

Section 140 of the Courts of Justice Act, which applies to family litigants who are subject to a vexatious proceedings order, provides that:

•        a person subject to a vexatious proceedings order who seeks leave to institute or continue a proceeding must do so by way of application (s. 140(3));

•         relief that may be sought on a section 140 (3) application is restricted to the granting of leave to institute or continue a proceeding, and rescission of the vexatious proceedings order. No other relief may be sought in the application (s. 140(4)(b); and,

•        the Attorney General is entitled to be heard on the application (s. 140(4)(d)).

Procedural rules governing applications for leave to institute proceedings under CJA section 140 (3) are set out in Rule 38.13 of the Rules of Civil Procedure. There is no equivalent rule under the Family Law Rules.  The key provisions of Rule 38(13) of the Rules of Civil Procedure are that:

•        The application shall be made in writing, unless a judge orders otherwise (R. 38.13(2))

•        The application shall be commenced by filing both a notice of application and an  application record (R. 38.13(3))

•         The notice of application, application record and, if applicable, factum, must be served on all parties as well as on the Attorney General of Ontario (R. 38.13(6)), and proof of service must be filed

•         The court shall not make an order under subsection 140(4) of the Courts of Justice Act granting leave to institute or continue a proceeding, or rescinding an order made under CJA s. 140(1), without giving the other parties and the Attorney General of Ontario an opportunity to serve and file a respondent’s application record and factum. (R. 38.13(10))

Rule 1(7) of the Family Law Rules, “Matters Not Covered in Rules”, governs in this case.  It provides:

If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

I set out directions applicable to this case below by analogy to the Rules of Civil Procedure, taking into context the history of the litigants and the oral argument and written materials filed to date.

Directions on Procedure re Rule 140(3) Application

I give the following directions:

(1)     The matter must be commenced by way of application in Form 8, pursuant to Rule 8 of the Family Law Rules.

(2)     Pursuant to CJA s. 140(4)(b), the only relief that can be sought is an order for leave to commence the proceedings identified in the application.  This is not a motion to vary a foreign support order or a motion to register a foreign order, but an application for leave to commence proceedings under CJA s. 140(3).  This falls within the “Other” category on the Form 8, Claim by Applicant, page 4.

(3)      The matter is generally subject to the Family Law Rules unless I specify otherwise.

(4)     The application must be accompanied by an application record, which by analogy to Rule 38.09(2) of the Rules of Civil Procedure, shall contain:

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

(b) a copy of the notice of application;

(c) a copy of all affidavits and other material served by any party for use on the application; and

(e) a copy of any other material in the court file that is necessary for the hearing of the application.”

            Gonos v. Hadzipetros, 2017 ONSC 6773 (CanLII) at 13-18

“Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy:  It is often tantamount to child abuse.   It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.”

            Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) at 418-419

“The appellant, Michael Finley Lawrence Blair, appeals from the March 20, 2017 order of Jarvis J. dismissing the appellant’s dispute of the garnishment of his pension benefits paid through the vehicle of a Retirement Compensation Arrangement (the “RCA”) contractually negotiated between a trustee and his former employer (a company owned and controlled by the appellant).

The appellant principally argues that his RCA is exempt from garnishment due to the provisions of the Pension Benefits Act, R.S.O. 1990, c. P.8 (the “PBA”).  In the alternative, he argues that the garnishment of his RCA is limited to 50 percent under either the Wages Act, R.S.O. 1990, c. W.1 or the Family Responsibility and Support Arrears Act, S.O. 1996, c. 31.  We would dismiss the appeal on all of these bases.

Subsection 66(1) of the PBA protects from garnishment money payable under a “pension plan” as defined in the PBA.   No protection is provided if the plan does not fall within the definition.

Section 1 of the PBA defines “pension plan” as a plan organized and administered to provide pensions for employees, but excludes some pension arrangements, as well as “any other prescribed type of plan”.

“Prescribed” is defined in s. 1 of the PBA as meaning prescribed by the regulations.

Subsection 47(3) of the PBA’s General Regulation 909, R.R.O. 1990, states that a RCA as defined in s. 248(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) is exempted from the application of the PBA and its regulations.

A senior trust officer for Royal Trust Corporation of Canada, who administers the RCA trust of which the appellant is the only beneficiary, confirmed that the appellant’s plan is such a RCA. The appellant also admits that it is a RCA.

As the appellant’s plan is a RCA, the appellant cannot benefit from the provisions of the PBA to protect his RCA from garnishment.

Nor are payments made through the RCA wages as defined by s. 1 of the Wages Act.  Therefore provisions in the Wages Act restricting the percentage that can be seized do not apply.  Also, because the garnishment is pursued in execution of a judgment for an equalization payment, provisions restricting the amount that can be garnished for support under the Wages Act or by the Director of the Family Responsibility Office under the Family Responsibility and Support Arrears Act are inapplicable.”

            Virc v. Blair, 2017 ONCA 849 (CanLII) at 1-9

“The Court of Appeal of Newfoundland, in Duffy v. Duffy, 2009 NLCA 48 (CanLII) summarized a number of general principles regarding the application of the Child Support Guidelines at para. 35:

1.      The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.

2.       A parent will not be permitted to knowingly avoid or diminish, and not choose to ignore his or her obligation to support his or her children.

3.       A parent is required to act responsibility when making financial decisions that may affect the level of child support available from that parent.

4.      Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control.

5.       The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

6.      Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.

7.      A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

8.      A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.”

D’Angelo v. Barrett, 2014 ONSC 6429 (CanLII) at 60.

“The husband seeks an order for sale of the parties’ two jointly owned properties: the matrimonial home on Lynnhaven and the parties’ cottage in Tiny, Ontario. The wife resists the sale of the properties.

The wife argues that the husband is not entitled to force the sale of the properties under the Family Law Act, R.S.O. 1990, c. F.3, because the provisions of the Family Law Act dealing with sale are only engaged where ownership of a property is in issue. In this case, there is no dispute that the properties are jointly owned.

The wife argues that the husband would thus be limited to seeking sale before trial based on the Partition Act, R.S.O. 1990, c. P.4. However, she argues that he has not pleaded the Partition Act. She relies on the Court of Appeal decision in Martin v. Martin, (1992) 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.) to argue that the failure to plead the Partition Act is fatal to his claim.

The husband has pleaded the Partition Act in his Amended Notice of Motion. The wife states this is insufficient, but I disagree. In Mignella v. Federico, 2012 ONSC 5696, at para. 21, Price J. noted that the party seeking sale had not pleaded the Partition Act in either his Notice of Motion or his Application; by doing so Price J. implied that pleading the statute in either document would have been sufficient. I agree with this approach.

The point of pleading a statute is to alert the other party of the basis for the relief one seeks. Here, it comes as no surprise to the wife that the husband seeks sale of the properties. She is not prejudiced by the fact that the statute is pleaded in the Amended Notice of Motion as opposed to in the Application. To defeat the husband’s claim to sale on the basis that he pleaded the statute in the wrong document would be to elevate form over substance and would, in my view, be inconsistent with the primary objective contained in r. 2 of the Family Law Rules O. Reg. 114/99. It would force the husband to seek to amend his Application to plead the Partition Act and then renew his motion for sale, which in turn would cause the parties to incur additional costs and force further court attendances, all in waste of parties’ and the court’s resources.”

            Barbieri v. Vistoli, 2019 ONSC 6385 (CanLII) at 92-96

“A good summary of factors to consider in relation to a claim for occupation rent is provided in Casey v. Casey, 2013 SKCA 58 (CanLII), [2013] S.J. No. 308 (CA) at paragraph 48:

48     From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:

1. Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.

2. The remedy is exceptional and should be used cautiously.

3. The following factors, where relevant, are appropriately considered:

* The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgoshat paras. 99 and 109; Good at para. 90).

* Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16-17; Wilgoshat para. 108).

*  If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106, Good at para. 90, and Peltier at para. 16).

* Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier at paras. 16-17; Wilgosh at para. 106).

* Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses (Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108).

* Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17).

* Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).

4.  The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.”

N.H. v. J.H., 2017 ONSC 6607 (CanLII) at 95

“ In Children’s Aid Society of Hamilton v. L. (K.), 2014 ONSC 3679 (Ont. S.C.J.) (CanLII), [2014] O.J. No. 2860 (Ont. S.C.J.), Justice Deborah Chappel conducted a thorough review of the case law dealing with costs claims against child protection agencies, and set out the following general principles.

1. 1. 1. Child protection agencies do not enjoy immunity from a costs award.
      2. However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.
      3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.
      4. The high threshold of “bad faith” is not the standard by which to determine a claim for costs against a child protection agency.
      5. Costs will generally only be awarded against a Children’s Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.
      6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.
      7. Important factors to consider in deciding whether costs against a Society are appropriate include the following:

i. Has the Society conducted a thorough investigation of the issues in question?

ii. Has the Society remained open minded about possible versions of relevant events?

iii. Has the Society reassessed its position as more information became available?

iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society’s efforts to diligently carry out its statutory mandate of protecting children.

In Hastings Children’s Aid Society v. L. (J.,), 2012 ONCJ 362 (Ont. C.J.), Justice Elaine Deluzio wrote, “The essential test for the appropriateness of an award of costs against a Society is whether the Society should be perceived by the ordinary persons as having acted fairly.”

Children’s Aid Society of Toronto v. S.W., 2018 ONCJ 772 (CanLII) at 37-38

“In R. v. White, 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at p. 272, the Supreme Court of Canada discussed the inexact science of weighing a witness’ credibility:

It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive.

In Christakos v. De Caires, 2016 ONSC 702 (CanLII), 2016 CarswellOnt 1433, at para. 10, I summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283 (CanLII), 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99 (CanLII) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.  v. J.H.,2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA)[at paras.] 51-56).  There is no principle of law that requires a trier of fact to believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. (See R. v. D.R. 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]”

A.M. v. C.H., 2018 ONSC 6472 (CanLII)

“This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395 (CanLII), 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (CanLII), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (CanLII), at para. 37. And Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution: Frick v. Frick, 2016 ONCA 799 (CanLII), 132 O.R. (3d) 321, at para. 11; E.H. v. O.K., at para. 34.

Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730, at para. 94. And the presumption that a successful party is entitled to costs applies equally to custody and access cases: Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.

Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94.

Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

Mattina v. Mattina, 2018 ONCA 867 (CanLII) at 10-18

“The motion judge properly held that the CYFSA [Child and Youth Family Services Act, S.O. 2017, c. 14, Sched. 1] provides that existing access orders are terminated when a child is placed in extended society care unless the party seeking access establishes that ongoing contact is in the child’s best interests. This complies with the statutory requirements set out in CYFSA subsections 105(5) and (6), which provide:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

  Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

…

The motion judge specifically considered the effect of the transition from the CFSA[Child and Family Service Act, R.S.O. 1990, c C.11] to the CYFSA. Under the CFSA, once access was terminated, the burden was upon the person seeking access to rebut the presumption against access. The motion judge explicitly considered this in explaining that while the predecessor legislation had been rigid in requiring that parents demonstrate a meaningful and beneficial relationship, the CYFSA takes a more flexible approach in subsuming the meaningful and beneficial factor within the greater context of the best interests analysis. In this way, the new access test recognizes that a case-by-case weighing of all relevant factors against the needs of the child is more appropriate than confining the court to the one-dimensional definition of “meaningful and beneficial” for determining whether access can occur.

The motion judge’s approach accords with the approach set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., at para. 49, decided after the motion judge’s decision:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.

Jewish Family and Child Service of Greater Toronto v. E.K.B, 2019 ONSC 6214 (CanLII) at 154, 157 and 158