Siegel's Family Court Calendar

“I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.

Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.

Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.

Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation. In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes.”

         Moore v. Getahun, 2015 ONCA 55 (CanLII) at 62-65

“On the question of joint family venture, the trial judge considered how the parties had conducted themselves during their cohabitation. She considered, among other things, the improvements to the property without expectation of compensation, the granting of minority interests in the respondent’s company to the appellant and their son when it was incorporated in 2004, the fact that the appellant wrote cheques on the respondent’s bank account for his share of household expenses, and the fact that both parties worked full-time and contributed their earnings to the joint expenses of the household, including the cost of childcare. While the trial judge did not expressly consider the evidence under the various headings in Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269, at para. 100 (mutual effort, economic integration, actual intent and priority of the family), she clearly considered all of these factors. The finding that there was a joint family venture in this case was open to the trial judge on the evidence.

Further, we do not accept the appellant’s submission that the evidence was that the only payments the respondent made, other than loan repayments, were in the final two years of the relationship. Bank statements were only available for that period, and the trial judge accepted the respondent’s testimony that he had contributed to household expenses throughout the relationship, including some payments in cash. Further, having regard to the parties’ incomes, the only way the mortgage could have been paid down early was if both had contributed.

Finally, the appellant contends that the finding of joint family venture did not remove or lessen the burden on the respondent to quantify and prove his contributions. She says that there was no evidence to support the award of damages by the trial judge, and that after finding that there was a joint family enterprise, she simply awarded the respondent the lesser of one half of the net proceeds from the sale of the property after repayment to the appellant of $147,000, and $86,500 (the amount of his claim). She ought to have determined the respondent’s proportionate contribution before making the order she did.

We do not find reversible error here. The appropriate remedy in a joint family venture case is “a share of the wealth accumulated through the parties’ joint efforts proportionate to the claimant’s contributions”: Kerr, at para. 102. Contrary to the appellant’s submissions, that would not entail a detailed review of the respondent’s contributions (akin to a quantum meruit approach); indeed, as the court stated in Kerr, also at para. 102, “[w]hile determining the proportionate contributions of the parties is not an exact science, it generally does not call for a minute examination of the give and take of daily life. It calls, rather, for the reasoned exercise of judgment in light of all of the evidence.”

         Junker v. Hughes, 2016 ONCA 81 (CanLII) at 19-22

“In J.B. v. D.M., 2014 ONSC 7410 (CanLII), 2014 ONSC 7410 (Can LII), Horkins J. accepted that a Home Buyers Plan debt corresponded to a party’s RRSP asset which reflected that debt as a receivable.  In this, she noted that her treatment was consistent with Antemia v. Divito, 2010 ONSC 578 (CanLII), 2010 ONSC 578 (Can LII) and Grassie v. Grassie, 2013 ONSC 1198 (CanLII).  A more nuanced analysis would value the RRSP inclusive of the remaining payment obligation less that remaining payment obligation as a deduction and less a notional tax deduction for the gross value of the RRSP.  That analysis was not done in this case and there was no evidence as to the appropriate notional tax rate to be applied.”

Lawrence v. Lawrence, 2017 ONSC 431 (CanLII) at 38

“To the extent that Susan is seeking to vary paragraph (h) of the Gilmore Order, there are no grounds to support such a request.  As stated, the Gilmore Order is a consent order.  The jurisprudence is clear that a consent order may only be set aside or varied on the grounds of common mistake, misrepresentation, fraud or any other ground which would invalidate a contract.

As held by the Court of Appeal for Ontario in Miller Paving Ltd. v. B. Gottardo Construction Ltd. 2007 ONCA 422 (CanLII), in order to find the presence of common mistake, the following elements must be proven:

(a)    a common assumption as to the existence as to the state of affairs;

(b)    no warranty by either party that the state of affairs exists;

(c)    the non-existence of the state of affairs must not be attributable to the fault of either party;

(d)    the non-existence of the state of affairs must render performance of the contract impossible: and

(e)    the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.”

Vasarhelyiv v. Borges, 2019 ONSC 590 (CanLII) at 18-19 

“The leading case under s. 9 [of the Child Support Guidelines] is the seminal decision of the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII). The following principles emerge from that decision:

1. 1. 1. The first step is to determine whether the evidence establishes that the 40% threshold has been met;
      2. If it has, then the court must determine the appropriate amount of support based on a budget;
      3. The discretion to be exercised by the court requires consideration of the conditions and means of the parents and the needs of the children;
      4. The weight to be accorded each factor will vary according to the facts of each case;
      5. A pro-rated set-off of the amount each parent is required to pay according to the applicable Table is a starting point for analysis of the means and conditions of the parents;
      6. Further adjustments may be warranted to account for fixed and variable costs that each parent bears as part of his or her spending patterns;
      7. The court should consider the budgets and actual child care expenses of each parent as they relate to increased costs, if any, that arise under the shared care arrangements; and
      8. There is a broad discretion under s. 9(c) to conduct an analysis of the resources and needs of both parents and children. That analysis is necessarily contextualized to the particular facts of the case. Helpful factors include the actual spending patterns of the parents, the ability of each parent to bear the increased costs of shared care, and the standard of living of the children in each household.”

  Willert v. Willert, 2019 ONSC 614 (CanLII) at 108

“Financial disclosure is important in marriage contracts. Prior to entering into a contract, the parties need to fully understand their rights and obligations as if no contract existed (LeVan, para. 52). In addition to understanding their rights and what they are being asked to give up, the parties also need to understand each spouse’s asset base (ibid, para. 53).

If a party enters into a marriage contract aware of any disclosure shortcomings, the party cannot then rely on those shortcomings as a basis for setting aside the contract. See Butty v. Butty, 2009 ONCA 852 (CanLII), 99 O.R. (3d) 228, at para. 54. Similarly, a party cannot resile from the consequences of failing to compel further disclosure unless that party can demonstrate that the financial disclosure provided was inaccurate, misleading or false (see Quinn v. Keiper (2007), 2007 CanLII 45714 (ON SC), 87 O.R. (3d) 184 (Ont. S.C.) [Quinn]).

In Quinn, the trial judge sets out at, para. 47, a two-stage analysis for considering whether a domestic contract should be set aside for non-disclosure:

(i)    First, the party seeking to set aside the agreement must demonstrate that the other party failed to discharge its duty to disclose significant assets. The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets, and the failure to disclose changes in income. The significance of an asset is assessed by measuring the value of the asset against a party’s disclosed net assets. To conclude that a party has failed to disclose a significant asset, there must be some evidence to verify the value or extent of the party’s assets either at the date of marriage or the date of the agreement;

(ii)   If a court finds that a party has failed to disclose a significant asset, the court must determine, in light of the facts of each case, whether it should exercise its discretion to rescind the domestic contract. The burden of proof lies on the party seeking to set aside the contract to persuade the court to exercise its discretion in its favour. The court will take into account a variety of factors in exercising its discretion:

i.     whether the party who did not make full disclosure was asked or refused to do so; whether that party misrepresented or concealed financial facts; whether the other party had full financial information in any event; and, whether the other party would have signed the contract even if the disclosure had occurred;

ii.   whether the party relied on the non-disclosure or misrepresentations in entering into the separation agreement in the sense that the party would not have entered the agreement had she known the true value of the assets;

iii.    whether a party consented to incomplete disclosure, or was otherwise aware of the asset and had the means to ascertain its value;

iv.    whether one party took benefits under the contract and then moved to set it aside; and,

v.   whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosure; whether she moved expeditiously to have the agreement set aside; and whether the other party had fulfilled his obligations under the agreement.”

         Toscano v. Toscano, 2015 ONSC 487 (CanLII) at 46-48

“Disclosure is not a fishing expedition. Disclosure cannot be used to cause delay, deliberately burden an opponent with unnecessary costs or to reap tactical advantage: Chernyakhovsky v. Chernyakhovsky  2005 CarswellOnt 942.  It cannot be used to confuse, mislead or distract the trier of fact’s attention from the main issues – even if done inadvertently”: Boyd v. Fields  2006 CarswellOnt 8675.”

Milgrom v. Levy, 2019 ONSC 564 (CanLII) at 28

“When the parties argued the summary judgment motion in February, 2016, the Limitations Act, 2002 contained two limitation period regimes for sexual assault claims, the application of which turned upon the nature of the relationship between the plaintiff and the defendant. First, under s. 16(1)(h), no limitation period applied to a sexual assault claim against a person in a position of trust or authority over the complainant or on whom the complainant was dependent. Second, for all other sexual assault claims, the ordinary two-year limitation period applied. However, pursuant to s. 10(1), time did not run while the complainant was incapable of commencing a proceeding because of her physical, psychological or mental condition; s. 10(3) presumed the person was incapable of commencing the proceeding earlier than the date it was commenced, unless the contrary was proved.

Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act significantly changed the provisions of the Limitations Act, 2002 concerning sexual assault claims. Section 16(1)(h) of the Act was amended to provide there is no limitation period in respect of “a proceeding arising from a sexual assault.” Section 10 of the Act dealing with a plaintiff’s capacity was repealed.

The new ss. 16(1.1) and (1.2) gave retroactive effect to the removal of any limitation period for “a proceeding arising from a sexual assault”:

16. (1.1) Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2).

(1.2) Subsection (1.1) applies to a proceeding that was commenced before the day subsection 4 (2) of Schedule 2 to the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force, unless the proceeding,

(a) was dismissed by a court and no further appeal is available; or

(b) was settled by the parties and the settlement is legally binding.”

Cook v. Joyce, 2017 ONCA 49 (CanLII) at 18-20

“I have already found that there is no triable issue concerning the negotiation of this agreement.  However, in Scheel v. Henkelman (2001) 2001 CanLII 24133 (ON CA), 52 O.R. (3d) 1 (C.A.), Borins J.A. pointed out that the test for the setting aside of a domestic contract under s. 56(4) of the FLA is more stringent than that for setting aside a waiver of spousal support because of unconscionability under s. 33(4)(a) of the FLA.  He states that s. 33(4)(a) is directed towards the unconscionable results of a spousal support waiver as distinguished from an unconscionable agreement:

The use of the phrase “results in” in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application: Mance v. Mance (1981), 22 R.F.L. (2d) 445 (Ont. Co. Ct.); aff’d. (December 18, 1981), Cory, Jessup, Wilson JJ.A. (Ont. C.A.); Newby v. Newby (1986), 1986 CanLII 2616 (ON SC), 56 O.R. (2d) 483 (Ont. H.C.). As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision “results in unconscionable circumstances”. In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.

As set out in Scheel, unconscionability has been defined in a number of ways.  It can be seen as being “shocking to the conscience of the court”, “harsh and unjust” or “improvident or unfortunate”:  see para. 19 and 21 of Scheel.  Borins J.A. suggested at para. 20 that the court consider three factors in determining whether the present circumstances are unconscionable:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b)  the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c)  the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their life-style.”

Milne v. Milne, 2019 ONSC 459 (CanLII) at 72-73

“The main issue before me on this motion is whether I should make an order directing the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act, 1992.

The court has jurisdiction under s. 105 of the Courts of Justice Act to make an order for a capacity assessment. The parties agree that the husband bears the burden of establishing that the order should be made. Section 105(2) provides that:

Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Where, as here, the request for a capacity assessment comes from another party, s. 105(3) applies. It provides:

Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

In 626381 Ontario ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114 (CanLII), Stinson J. made clear that a mental examination should not be the norm on a motion to appoint or remove a litigation guardian. Rather, an order under s. 105 is exceptional. He wrote, at para. 40:

A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

Stinson J. went on to find that a contextual analysis must be employed to determine whether an order should issue under s. 105 in a civil proceeding. He held that the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable, the interests of the other parties and the court, as well as the societal interest in a fair, efficient and effective dispute resolution process: para. 58. He noted that the court cannot make a determination whether a party requires the assistance and protection of a litigation guardian without adequate evidence. Where it is not available, it may be necessary to require a mental examination under s. 105: para. 59.

Although Kagan, Shastri was a decision made in a civil context, the principles enunciated therein with respect to litigation guardians apply equally in the family law context: Costantino v. Costantino, 2016 ONSC 7279 (CanLII) at paras. 36-37. In a family law case, in my view, when considering the possible appointment of a litigation guardian, the court is not concerned only with the litigant, the other parties, itself, and society’s interest; it must also be concerned with the interests of the children who may be affected.”

Sadhu v. Kaul, 2019 ONSC 140 (CanLII) at 10, 12-16