Siegel's Family Court Calendar

“The parties appear today seeking a validity Order declaring their marriage to be valid.

On July 14, 2018 the parties believed they were married after obtaining the requisite Marriage Licence.

Unbeknownst to them, the ceremony was performed by a friend whom they believed to be registered under the Marriage Act to perform marriages in Ontario: unfortunately he, himself, was under the mistaken belief that he was authorized to perform a marriage ceremony; having taken an online course that proved to be without foundation.  In other words, the course was bogus.

The parties are unable to register their marriage as it currently stands.

Under section 31 of the Marriage Act, R.S.O. 1990, c. M.3 as amended, the court is authorized to deem a marriage as being valid.

The criteria are:

1.       The marriage was solemnized in good faith.

2.       The marriage was intended to be in compliance with the legislation.

3.       Neither party was under a legal disqualification to contract marriage.

4.       The parties have lived together and cohabited as a married couple after           solemnization.

I have satisfied myself that all criteria have been met.

Unlike most litigants appearing before me seeking separation and rights flowing therefrom, these parties appear for opposite and valid reasons.

I therefore deem their marriage to be valid by the power vested in me by the Government of Canada and pursuant to section 31 of the Marriage Act.

They are hereby ordered to live happy together forever.”

Sandomirsky v. Attallah, 2018 ONSC 5012 (CanLII) at 1-8

“For married spouses, the [Family Law] Act provides a comprehensive scheme for resolving financial issues following marriage breakdown.  Section 10(1) of the Act authorizes a court to determine questions of title between spouses.  This includes considering whether legal title actually reflects beneficial ownership.  As indicated by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 118 O.R. (3d) 522, at para. 47, citing Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, “[b]efore property can be equalized under the [Act], a court must first determine the “net family property” of each spouse.  This exercise requires first that all questions of title be settled.”  In other words, property entitlements must be determined before they can be equalized.

Korman v. Korman, 2015 ONCA 578 (CanLII) at 25

“Limits on the quantum or duration of spousal support are sometimes an appropriate way to address the situation of a dependent spouse who may not make reasonable efforts toward self-sufficiency without such limits. See Bildy v. Bildy (1997), 1997 CanLII 12240 (ON SC), 28 R.F.L. (4th) 315 (Ont. Gen. Div.); (1999), 1999 CanLII 9319 (ON CA), 42 O.R. (3d) 737 (Ont. C.A.) and Purcell v. Purcell (1996), 1996 CanLII 1355 (ON CA), 26 R.F.L. (4th) 267 (Ont. C.A.). As a matter of law, such limits are not necessary. For example, in Choquette v. Choquette (1998), 1998 CanLII 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.), the husband appealed a decision awarding indefinite periodic support. The Court of Appeal held that:

…the husband’s concerns that the wife may not become self-sufficient as quickly as anticipated by the trial judge are better dealt with on a variation application brought in that eventuality. The non-happening of an anticipated event can constitute a material change in circumstances within the meaning of the Divorce Act: Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4^th) 418 (Ont. C.A.). Counsel for the wife conceded that proof of malingering by the wife could be the basis for a variation application. (p.386)

Limits on the quantum or duration of support are nevertheless an effective way of emphasizing the support recipient’s obligation under section 15.2(6)(d) of the Divorce Act.”

Bergeron v. Bergeron,1999 CanLII 14955 (ON SC) at 9-10

“The law on unjust enrichment arising out of the relationship between unmarried spouses has been comprehensively addressed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 S.C.C. 10. In Elkaim v. Markina 2011 ONSC 2586 (CanLII), at para. 9, Sachs J. summarized the framework set out in Kerr to assess property claims in common law relationships:

The law surrounding the resolution of property claims in common law relationships has recently been clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII). In that case the Court found that the “common intention” approach to resulting trust has no “useful role to play” in the resolution of property claims by domestic partners on the breakdown of their relationships: at para. 29. The Court also found that the role of the parties’ reasonable or legitimate expectations in the unjust enrichment analysis was a limited one. Rather, the framework to be used can be summarized as follows:

(a)     First, the court must determine if there has been an unjust enrichment.

In doing so, the questions are:

•           Has the defendant been enriched?

•           Has the plaintiff suffered a deprivation?

•        Is there “no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff?”: at para. 40.

It is in the consideration of the third stage, “if the case falls outside the existing categories” of juristic reasons for the retention of the benefit, then the court may consider looking to “the reasonable expectation of the parties and public policy considerations to assess…whether particular enrichments are unjust”: at paras.43-44.

(b)     If the court finds that there is a basis for the unjust enrichment claim the court must then turn its mind to the question of what remedy is appropriate to “reverse the unjustified enrichment.” This may include either a “monetary or proprietary remedy”: at para. 46.

(c)      On the question of remedy, the first remedy to consider is “always a monetary award. In most cases it will be sufficient to remedy the unjust enrichment”: para. 47.

(d)     A proprietary award may be required if:

(i)      the plaintiff has demonstrated a sufficiently substantial and direct link between his or her contributions and the property, in which case “a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”: at para 50; and,

(ii)     the plaintiff has established that a monetary award would be insufficient in the circumstances. This involves considering the probability of recovery of such an award and considering whether “there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights”: at para. 52.

(e)      If a monetary award is appropriate, the question then becomes how to quantify that award.

•         To do so, the court must first characterize the nature of the unjust enrichment claim. Is the basis of the “unjust enrichment…the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the plaintiff’s contributions to the joint venture and the accumulation of wealth”: at para. 81.

•         If so, “a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions”: at para. 87.

(f)      To determine whether a joint family venture exists, the court should have regard to the following factors as set out in Kerr v. Baranow at paras. 87-99:

(i)      Mutual Effort: Did the parties pool their efforts and work together towards common goals?

(ii)    Economic Integration: This involves considering how extensively the parties’ finances were integrated.

(iii)    Actual Intent: What did the parties actually intend? Did they intend to have their lives economically intertwined or did they make the choice not to? This intent may be expressed or inferred from conduct.

(iv)    Priority of the Family: This factor asks the court to consider to what extent the parties gave priority to the family in their decision making. “A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family.”

If the monetary award should not be quantified on a “joint family venture” basis, then the court should consider a “fee for service” or quantum meruit calculation. It is generally at this stage that the court will consider whether the claim should be discounted because of a mutual conferral of benefits.

At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit that justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at para. 788.”

McKay v. Langstaff,2015 ONSC 5223 (CanLII) at 46-47

“The discretion to make an unequal division pursuant to s. 5(6) [of the Family Law Act] is strictly limited.  The intent of this section is not to alleviate every situation that may be viewed as unfair or inequitable, as equal sharing should occur in most cases.  The property sharing upon marriage breakdown scheme in the Act is intended to promote predictability and thereby discourage litigation: Ward v. Ward, [2012] O.J. No. 3033 (Ont. C. A.).

The unconscionable threshold in s. 5(6) required to justify an unequal division is exceptionally high because the policy underlying the Act encouraging finality, predictability and certainty and minimizing the exercise of judicial discretion to the extent possible: Serra v. Serra, 2009 ONCA 105 (CanLII), [2009] O.J. No. 432 (Ont. C. A.)

Serra v. Serra, supra, contains a number of principles as to the interpretation of the relevant sections in the Act and the application thereof including:

(a)      post-separation events impacting value is a relevant consideration but not the only circumstance in determining whether equalization would be unconscionable which include but are not limited to fault-based conduct: paras 38, 42, 44, 45, 54 and 55;

(b)      the s. 5(6) threshold of “unconscionability” is exceptionally high and involves circumstances that must shock the conscience of the court.  Circumstances that are unfair, harsh or unjust alone do not meet the unconscionability threshold: para 47;

(c)      unconscionable circumstances has been interpreted as more than hardship, more than unfair, more than inequitable and includes conduct that is harsh and shocking to the conscience of the court and repugnant to anyone sense of justice: para 48;

(d)      the Act establishes equalization as the general rule subject to the s. 56 exception: para 57;

(e)      if the circumstances result in equalization being unconscionable, the court should then determine what equalization payment would be fair, just and equitable: paras 69, 70 and 94;

(f)      the Act is designed to promote the goals of certainty, predictability and finality in the resolution of property matters following separation, based upon the premise in s. 57 that inherent in the marital relationship there is equal contribution, whether financial or otherwise by the spouses to the assumption of joint responsibilities entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in s. 5(6): para 56, 57 and 71; and

(g)      judicial discretion with respect to equalization is severely restricted pursuant to s.s 5(7) and 5(6): para 57.”

Kruschenske v. Kruschenske, 2018 ONSC 4342 (CanLII) at 128-130

“During the trial both parties put enumerable texts and emails into evidence.  These contained many self-serving, prior consistent statements by each of them. Tendered as part of the narrative, in my view, a more rigorous application of the rules of evidence is called for.

The general rule is set out in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4^th ed at paras. 7.1 to 7.3:

There is a general rule against the admission of self-serving evidence to support the credibility of a witness unless his or her credibility has first been made an issue.  The rule is generally applied to prior consistent statements of the witness.  A witness, whether a party or not, may not repeat his or her own previous statements concerning the matter before the court, made to other persons out of court, and may not call other persons to testify to those statements.  Although contradictory statements may be used against a witness, “you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony.”

…

Different rationales have been given for the exclusion of such evidence. The one most commonly relied on is that, due to the risk of fabrication, no person should be allowed to create evidence for him or herself.

…

          Justice Pepall in R. v. B. (D.), added that:

The repetition is self-serving and the source lacks independence. Lastly, given that the evidence will have already been adduced at trial through oral testimony, exclusion of prior consistent statements serves the desirable objective of trial efficiency.

 Moreover, it would take needless trial time in order to deal with a matter that is not really in issue, for it is assumed that the witness is truthful until there is some particular reason for assailing his or her veracity.

More recently the Ontario Court of Appeal decided R. v. B.Z., 2017 ONCA 90 (CanLII), [2017] O.J. No. 512. The Court overturned a conviction for sexual assault based on the trial judge’s use of the complainant’s prior consistent statement.  Shortly after the alleged assault she had sent an anonymous email to the police saying the appellant had sexually assaulted her.  Her description of the assault in the email was consistent with her trial testimony.  The trial judge was held to have erred in relying on the email as corroboration of her trial testimony, a use of the prior consistent statement which was dependent on the truth of its contents.

The Court of Appeal confirmed that a prior consistent statement may be admissible for an evidentiary purpose for which the truth of its contents is irrelevant. For example the fact of sending of an email, the fact of a response to an email, or the fact of a failure to follow-up on an email may be relevant, independently of the truth of the contents of the email.

It may be that a contemporaneous email could be used if necessary to refresh a witness’s testimony, to confirm the date of an event, or by the opposing party for purposes of cross examination.  But the wholesale use of emails and text messages as the platform from which to testify should be curtailed.”

N.H. v. J.H., 2017 ONSC 4867 (CanLII) at 648-652

“Dad submits that the Families [Moving Forward] Program is “treatment” which requires the consent of the participants under section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A:

No treatment without consent

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

There is no evidence that any of the children have refused to participate in the Families Program.  There is no evidence that Dr. Fidler is a “health practitioner” within the meaning the of HCCA.   In any event, I am not satisfied that the Families Program whose purpose is to prevent strained family relationships constitutes “treatment” within the meaning of s. 2 of the HCCA given its focus on treatments that have a “health related purpose”.  Further, given that the Families Program is designed to ameliorate the family relationship and, as such, poses little or no risk of harm to the parties or the children, I find that it would in any event be excluded from the definition of “treatment”.”

E.T. v. L.D.,2017 ONSC 4870 (CanLII) at 50

“A person claiming that monies advanced by a family member is a loan has the onus of proving that it is a loan.

In Turner v. Hawkins, 2002 CanLII 2820 (ON SC), [2002] O.J. No. 4099 (S.C.J.). Kent J. at para. 17, stated that:

[T]he law provides where funds are advanced by family members to a daughter and son-in-law, there is a rebuttable presumption that the advance is a gift. If there is acceptable evidence which establishes on a balance of probabilities that the intent of the parties at the time of advancement was other than to give or receive a gift, then the advance may be found to be a loan. Such evidence is best if it is documentary, next best if it is independent and of the least assistance to the court if it is only the oral evidence of the involved and interested parties testifying on the basis of their recollection. This is particularly so, if anything in the evidence of the parties reflects unfavourable upon their credibility or reliability.”

Pitts v. Pitts,2018 ONSC 4686 (CanLII) at 22-23

I reject the husband’s submissions that an award of interim spousal support should be determined strictly on the basis of need as per this Court’s decision in Lemieux v. Lemieux, [2000] O. J. No. 2512 (QL) (S.C.J.). I note that in Lemieux v Lemieux, supra, Justice Blishen was provided limited evidence on which to resolve numerous legal and factual issues raised by the parties with respect to the needs and the abilities of the parties. In the case before me, I was supplied with ample evidence that the husband was capable of paying spousal support from at least June 14, 2000, in addition to child support in excess of the amounts he has voluntarily paid both before and since the order of Justice Polowin. I rely upon the reasoning of the Court in Cradduck v Cradduck (2000), 2000 CanLII 22433 (ON SC), 11 R.F.L. (5^th) 54 (Ont. S C.J.)  as support for the proposition that the traditional approach to interim support based on established need and ability to pay is not always an approach that is fair and just in the circumstances. I agree with the dicta in that case that, in circumstances such as these where ability to pay is not an issue, the parties should have the financial ability to enjoy a similar lifestyle regardless of whether they do in fact choose to enjoy such a lifestyle. I would add that the Supreme Court of Canada concluded in Bracklow v Bracklow (1999), 169 O.L.R. (3d) 577 (S.C.C.) that need was but one factor to consider in the award of spousal support under the Divorce Act, supra.”

Lakhani v. Lakhani, 2003 CanLII 2161 (ON SC) at 15

“In Chutter v. Chutter, 2008 BCCA 507 (CanLII), 301 D.L.R. (4th) 297, held, at paras. 50–51:

Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420], at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities will often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39)….

In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse”. [Emphasis in original.]

         Majeed v. Chaudry, 2018 ONSC 4758 (CanLII) at 61