Siegel's Family Court Calendar

“In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92 (CanLII), 75 R.F.L (6th) 33, at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way.  For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.

It is true that a motion judge’s decision to strike pleadings and deny participation at trial is entitled to deference if exercised on proper principles: Purcaru, at para. 50. Absent palpable and overriding factual error, appellate courts ought not to interfere with a motion judge’s properly exercised discretion to strike pleadings. However, given the exceptional nature and significant implications of denying a party participation at trial, it is essential that this remedy of last resort be granted only on a proper evidentiary basis.”

            Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII) at 31-33

“In terms of her costs award, the motion judge correctly concluded that a risk premium could not be awarded.  She also correctly concluded that this was not a case for a full recovery award of costs.

Yet, that is not how the costs in this case were determined.  Rather, the resulting award approached a full recovery amount.  In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should “generally approach full recovery”.  I would make a couple of points in response to that contention.

First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement.  What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules.  Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.

Second, the respondent’s assertion that this court’s decision in Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730 supports the “full recovery” approach to costs in family matters also reflects a failure to read the decision closely.  What this court endorsed in that case was the principle that “a successful party in a family law case is presumptively entitled to costs” (at para. 94) subject, though, to the factors set out in Rule 24.  This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799 (CanLII), 132 O.R. (3d) 321, the Family Law Rules “embody a philosophy peculiar to a lawsuit that involves a family” (at para. 11).

There is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs.  Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs.  It reads:

(12) In setting the amount of costs, the court shall consider,

(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

As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

Further, a “close to full recovery” approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).  Consequently, the motion judge erred in principle in adopting a “close to full recovery” approach in fixing the costs of these motions.  I would note that such a result also appears inconsistent with her determination that full recovery costs were not appropriate in this case.”

Beaver v. Hill, 2018 ONCA 840 (CanLII) at 7-13

“Freedom of religion and expression are fundamental values protected by the Charter.  However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter.  The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access.  While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”

Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé

“The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 CanLII 2806 (ON SC), 31 R.F.L. 5^th 88 (SCJ).”

         Lachance v. Campbell, 2015 ONSC 6551 (CanLII) at 38

“Section 15.24(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support.  This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] 1 S.C.R. 920 at para. 29.

In Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

Here, the trial judge erred in the same way.  Mr. Joseph, counsel for Ms. Greenglass, quite properly concedes the error but describes it as a matter of form over substance.  He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

As will be seen, in the circumstances of this case, Mr. Joseph is correct.  That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis.  As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.”

         Greenglass v. Greenglass, 2010 ONCA 675 (CanLII) at 41-44.

“Section 22 of the Divorce Act provides for the recognition of foreign divorces in Canada. Section 22(3) expressly upholds the common law principles that were helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111: Canadian courts will recognize a foreign divorce: (i) where jurisdiction was assumed on the basis of the domicile of the spouses; (ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or (vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection. See also Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005) at para.17.2.a; El Qaoud v. Orabi, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14. As already noted, Mr. Lyzo contends that the Russian Divorce was properly obtained in the Russian Federation on the basis of the parties’ real and substantial connection to that jurisdiction.

A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including the absence of notice) or public policy: see Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, at p. 227; El Qaoud, at paras. 17-18; Delaporte v. Delaporte, [1927] 4 D.L.R. 933; and Canadian Conflict of Laws, at para.17.2.c.

In this case, the motion judge need not have been concerned with the deficiencies in the evidence as to whether the divorce was obtained in compliance with Russian law. In particular, she need not have been concerned with whether, had the Russian tribunal known about the respondent’s residence in Canada, it would have taken further measures to ensure proper service before granting the Russian Divorce. It is not typically appropriate or necessary for Canadian courts to inquire into the substantive grounds upon which a foreign divorce decree is granted: see e.g. Powell, at p. 228 and Pitre v. Nguyen, 2007 BCSC 1161, at paras. 17-18.

Nonetheless, the motion judge appropriately focussed on the lack of notice to Ms. Novikova, which was a denial of natural justice. This was the reason for the refusal to recognize the Russian Divorce. As in Powell, where there was evidence of fraud rather than lack of notice, it was appropriate to address this issue before (or without) engaging in an analysis of “real and substantial connection”: Powell, at p. 227. While it is true, as Mr. Lyzo submits, that fraud, natural justice, and public policy are often referred to as “defences”, it is not necessary for the court to consider them ‘second’, as demonstrated by Powell.”

         Novikova v. Lyzo, 2019 ONCA 821 (CanLII) at 14-17

“It is important in qualifying an expert that not only must he or she have the relevant expertise, but the testimony must be relevant and necessary in assisting the trier of fact. Most importantly for present purposes, the opinion evidence must be such as to assist the tier of fact in being “able to keep an open mind and objectively assess the worth of the evidence”: R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. As Cromwell J. put it in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 SCR 182, para 2, “Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.”

The Court of Appeal has instructed that, “in the governing framework for admissibility, the court should consider an expert’s potential bias when determining whether the expert is properly qualified at the initial threshold: Bruff-Murphy v Gunawardena, 2017 ONCA 502, para 38. Accordingly, the question of independence falls to be considered and decided “at the time the evidence is proffered and the expert witness’s qualification is requested by a party”: Ibid., para 60.”

         Barker v. Barker, 2019 ONSC 5906 (CanLII) at 10-11

“The protection of the integrity of the judicial process requires that an expert witness be immune from civil suit by any person with whom his or her only relationship derives from the judicial proceeding: Varghese v. Landau (2004), 2004 CanLII 5084 (ON SC), 3 R.F.L. (6th) 204 (Ont. S.C.), at para. 48; Carnahan v. Coates (1990), 1990 CanLII 2299 (BC SC), 71 D.L.R. (4th) 464 (B.C.S.C.), at p. 474; Howatt v. Klassen (2005), 31 C.C.L.T. (3d) 54 (Ont. S.C.), at paras. 11 and 15, citing Fabian v. Margulies (1985), 1985 CanLII 2063 (ON CA), 53 O.R. (2d) 380 (Ont. C.A.).

Immunity from suit extends not only to reports filed in court and oral evidence given in court, but also to activities outside of court related to a report or its preparation: Varghese v. Landau, at para. 49; Smith (next friend of). v. Kneier, 2001 ABQB 291, 288 A.R. 144, at para. 11, citing Evans v. London Hospital Medical College [1981], 1 All E.R. 715 (Q.B.).

The protection is absolute.  Even allegations of bad faith are insufficient to remove the application of the immunity doctrine: Howatt v. Klassen, at paras. 11-13, citing Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 CanLII 3776 (ON CA), 124 O.A.C. 125 (C.A.).

One of the justifications for immunity is the protection of the court process, which seeks to discourage relitigation of issues: Smith (next friend of). v. Kneier, at para. 14.  This is especially important in the family law context, which is already fraught with conflict.  In the family law context, attempts to sue expert witnesses have been dismissed or struck out at early stages because of immunity: e.g. Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 648; Carnahan v. Coates; Howatt v. Klassen; Varghese v. Landau; Smith (next friend of) v. Kneier.”

         Sheehan v. Snell, 2016 ONSC 6340 (CanLII) at 43-46

“Many cases have considered how the court should approach its task under s. 7(1) of the Arbitration Act, which provides:

7(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. [Emphasis added.]

The law favours giving effect to arbitration agreements. This is evident in both legislation and in jurisprudence. Section 7 of the Arbitration Act contains mandatory language, stating “the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding” (emphasis added).

The mandatory wording in s. 7 of the Arbitration Act is a change from s. 7 of the old Arbitrations Act, R.S.O. 1990, c. A.24, which gave the court discretion to stay the action:

[I]f satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was at the time when the proceeding was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, [the court] may make an order staying the proceeding. [Emphasis added.]

As can be seen, the statutory language in s.7 of the current Arbitration Act is directory, not equivocal. It strongly favours giving effect to an arbitration agreement. This policy direction is reinforced by s. 17 of the Arbitration Act:

17(1)  An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

(2)  If the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.

Subsection 17(1) did not exist in the 1980 or the 1990 Arbitrations Act.  Subsection 17(2) codifies the common law, and establishes that an arbitration agreement can survive even where the contract in which it is found is determined to be invalid.”

         Haas v. Gunasekaram, 2016 ONCA 744 (CanLII) at 9-13

“One of the desired objectives of a custody order is to maximize the involvement of both parents in the child’s life. The extent to which evidence shows that a parent has failed to communicate with and inform the other parent and tried their best to reach mutual decisions on significant guardianship questions, is an important consideration when deciding what parenting arrangement is in the best interests of a child. If a parent has made access to the child difficult for the other parent, that is also a factor: D.L.S. v. R.S., 2012 BCSC 977 (CanLII), paras. 171, 208. I also consider the ability and commitment of each parent to putting their child’s interests ahead of their own, including their commitment to ensuring the child maintains a positive relationship with the other parent: Hawkins v. Schlosser, 2012 ONSC 2707 (CanLII), para 71.”

Liu v. Huang, 2018 ONSC 3499 (CanLII) at 114