Siegel's Family Court Calendar

“The responding party applied for, but was denied, leave to proceed with his appeal. Section 140 of the [Courts of Justice] Act makes it clear that, in those circumstances, he had no right to institute or continue an appeal in this court:

• • •  s. 140(1)of the Act permits a judge of the Superior Court of Justice to order that no further proceeding be instituted by a vexatious litigant in any court or that a proceeding previously instituted not be continued;

• • •  s. 140(3)of the Act requires that where a vexatious litigant seeks leave to institute or continue a proceeding, “the person shall do so by way of an application in the Superior Court of Justice”;

• • •  s.140(4)(a) of the Actsets out the test for leave; and

• • •  s. 140(4)(e) provides that “no appeal lies from a refusal to grant relief to the applicant.”

However, the responding party argues that, under rule 2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this court may, and should, dispense with compliance with the requirement that he obtain leave.

We do not accept this submission. Rule 2.03 provides that a court “may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time” (emphasis added). Rule 2.03 permits a court to dispense with compliance with the Rules of Civil Procedure. It does not authorize a court to dispense with compliance with the statutory leave requirement set out in s. 140 of the Act.”

         Vermette v. Nassr,2016 ONCA 658 (CanLII) at 6-8

“Under subrule 20.04(2) [of the Rules of Civil Procedure], summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

As set out in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process.  This is the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1).  If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, supra, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct a procedure such as a mini-trial, rather than a full trial.

The responding parties may not rely on the prospect of additional evidence that may be tendered at trial; the respondents must put their best foot forward on the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII) (Ont. S.C.J.), at para. 26, aff’d 2014 ONCA 878 (CanLII) (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).

In Sanzone, the Court of Appeal addressed cases such as this one where a respondent on a motion for summary judgment is self-represented:

Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36…

Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36.  A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”

Kanafani v. Hughes, 2017 ONSC 5253 (CanLII) at 60-64

“The trial judge admitted Ms. Brydson’s evidence under the principled exception to the hearsay rule, as articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787. The principled exception allows the admission of a hearsay statement if two conditions are fulfilled: necessity and reliability. While these are separate requirements, they should not be considered in isolation, as one could affect the other: Khelawon, para. 77.

Necessity is to be interpreted flexibly, and is not restricted to the absolute unavailability of a witness: Khelawon, para. 78. Given that Ms. Brydson was in Jamaica and not Ontario, that the parties’ focus was on the reliability requirement, and the conclusion I come to on that issue, I need not discuss necessity further.

Reliability is to be assessed functionally, by focusing “on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers”: Khelawon, para. 93. In general, the reliability requirement can be satisfied by showing either of the following conditions.

First, it is possible that despite being hearsay, “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon, para. 62. In other words, though the statement is hearsay, we can put “sufficient trust in [its] truth and accuracy”: Khelawon, para. 62. The court may consider the presence of corroborating or conflicting evidence to determine the inherent trustworthiness of the statement: Khelawon, paras. 93-95. The court may also consider whether the declarant was able to perceive the events described in the hearsay statement: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 933-35.

Alternatively, it may be that “no real concern arises from the fact that the statement is presented as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”: Khelawon, para. 63. This requirement may be met if the declarant is available for cross-examination: Khelawon, at para. 66.

In all cases, the principled exception to the hearsay rule operates as a case-by-case exception, and courts must resist any temptation to reduce the principled exception to a categorical or pigeon-holing exercise: Khelawon at para. 45.”

         Clayson-Martin v. Martin, 2015 ONCA 596 (CanLII) at 27-32

“…one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.”

R. v. A.M., 2014 ONCA 769 (CanLII) at 12-13

“An informed person viewing the matter realistically and practically – and having thought the matter through – could not possibly conclude that an arbitrator is biased simply because he or she rules on a disputed matter against one party, even if that occurs on more than one occasions.  Ruling on a disputed issue is the essence of the arbitrator’s role.”

La Fontaine v. Maxwell, 2018 ONSC 5123 (CanLII) at 42

“Further, the appellants too narrowly construe the doctrine of abuse of process. This doctrine is flexible and unencumbered by the specific requirements of res judicata or issue estoppel: Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), [2013] 2 S.C.R. 227, at para 40; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2002] 3 S.C.R. 77, at para. 42. Where a precondition for issue estoppel has not been met, such as mutuality of parties, courts have turned to the doctrine of abuse of process to preclude re-litigation of the same issue: C.U.P.E., at para. 37. While the doctrine is similar to issue estoppel in that it can bar litigation of legal and factual issues “that are necessarily bound up with the determination of” an issue in the prior proceeding, abuse of process also applies where issues “could have been determined”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460, at para. 54; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633 (CanLII), 363 D.L.R. (4th) 470, at para. 13; McQuillan v. Native Inter-Tribal Housing Co-Operative Inc. (1998), 1998 CanLII 6408 (ON CA), 42 O.R. (3d) 46 (C.A.), at pp. 50 – 51. As such, the doctrine of abuse of process is broader than res judicata and issue estoppel and applies to bar litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37.”

Winter v. Sherman Estate, 2018 ONCA 703 (CanLII) at 7

“The issue of post-separation increases in income was canvassed by Justice Chappel in Thomson v. Thomson, 2013 ONSC 5500 (CanLII), recently relied upon in Fox v. Fox, 2017 ONSC 6509 (CanLII) per Justice Mossip.  Justice Chappel emphasized that the treatment of post-separation increases in income is ultimately a matter of discretion for the Court, and summarized the principles that guide the Court in exercising its discretion as follows:

a)  A spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases;

b)  The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship;

c)  Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income;

d)  The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case;

e)  A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation;

f)  In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career;

g)  If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.

h)  By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.

i)  Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.

j)  Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase;

k)  Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult;

l)  The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post-separation income increases;

m)  Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.”

Easton v. Coxhead, 2018 ONSC 4784 (CanLII) at 106

“It is clear from Page-Cole v. Cole [2009] O.J. No. 4386 that a Motion to set aside a default judgment obtained in a family law proceeding must by analogy meet the requirements of Rule 19.08 of the Rules of Civil Procedure as is permitted by Rule 1 (7) of the Family Law Rules Diciaula v. Mastrogiacomo (2006) 2006 CanLII 11928 (ON SCDC), 25 C.P.C. (6^th) 107. The moving party must meet three criteria:

1)  The motion to set aside a default judgment should be made as soon as possible after the party becomes aware of the judgment;

2)  The material must set out the circumstances under which the     default arose that give a plausible explanation for the default; and

3)  The material must set forth facts to support the conclusion that there is at least an arguable case to present on its merits.”

Hesse v. Hesse,2010 ONSC 4690 (CanLII) at 14

“A deferential standard of review is applicable in family law cases in the context of a child welfare proceeding: C. (G.C.) v. New Brunswick (Minister of Health and Community Services) [1988] 1 S.C.R. No. 1073 and Children’s Aid Society of Toronto v. G.S. [2012] ONCA 783”

Catholic Children’s Aid Society of Toronto v. J.B., 2014 ONCA 609 (CanLII) at 8

“In Bracklow, the Supreme Court of Canada found that there are “three different conceptual bases for spousal support obligations – contractual, compensatory and non-compensatory” (paragraph 37). At paragraph 41, in reference to s.15.2(6) of the Divorce Act, the Court stated:

“[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6) (a):  see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.  Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage.  But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense.

Further, at paragraph 43, the court stated:

But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.  Need alone may be enough.”

Freiman v. Freiman, 2017 ONSC 4981 (CanLII) at 23-24