Siegel's Family Court Calendar

“Natalia submits the trial judge did not apply a sufficiently detailed test when considering her request to reopen her case. The trial judge relied on the decision in Scott v. Cook, 1970 CanLII 331 (ON SC), [1970] 2 O.R. 769 (H.C.), which held that on a motion to reopen trial proceedings, the requesting party must show that the evidence sought to be adduced is such that, if it had been presented during the trial, it probably would have changed the result.

Natalia contends the more appropriate test to be applied in the context of family law proceedings is that set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762 (CanLII), 64 R.F.L. (7th) 470. In that case, as in the present one, the request to reopen the case was made before the judge had given reasons for judgment, in contrast to Scott where the request was made after reasons for judgment had been delivered but before formal judgment had been entered.

In Catholic Children’s Aid Society of Toronto, the court stated, at para. 17:

Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:

•    At what stage of the trial is the motion made?

•   Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?

•   What is the prejudice to the defendant?  A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.

•    Can any prejudice be remedied in costs?

•    How would a reopening of the case affect the length of the trial?  How much evidence would have to be revisited?

•    What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?  Does it merely “shore up” evidence led in chief?

•   Is the proposed new evidence presumptively credible? [Footnotes omitted.]

We agree that the Catholic Children’s Aid Society of Toronto case provides a helpful list of factors for a trial judge to consider when entertaining a party’s request to reopen her case.”

Malkov v. Stovichek-Malkov, 2018 ONCA 620 (CanLII) at 12-15

“In accordance with R. v. Guerin, [1984] 2 S.C.R. 335 at paras. 98-99, the limitation period did not start to run until the respondent “discovers the fraud, or until the time when, with reasonable diligence, she ought to have discovered it.”

Anderson v. McWatt, 2016 ONCA 553 (CanLII) at 9

“It has been oft repeated that there is no limitation period for an application for spousal support. However extreme delay in bringing the application can defeat or diminish such a claim. As Chappel J. of this court put it in Fyfe v. Jouppien, following an exhaustive review of the relevant factors in determining whether delay should defeat or reduce a spousal support claim:

…excessive delay in seeking spousal support by a party may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse.

Chappel J. set out a number of important factors that a court must consider in the face of extreme delay. They include financial need arising after separation, financial interdependence, both before and particularly after separation, and the length of the delay in making the claim.

While delay may indicate that the parties have taken steps to unravel their financial interdependence, that is not always the case. As Chappel J. stated at para. 54(d):

On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.”

Karlovic v. Karlovic, 2018 ONSC 4233 (CanLII) at 56-58

“First, I considered the ability, willingness and plan of each parent to provide the Child guidance, education, and the necessities of life. In essence, this is an analysis of each parent’s ability to act as a parent.

Today, some may view the concept of “acting like a parent” as a moving target. Our culture is undergoing a moral revolution such that those who suggest there are right and wrong answers to the questions of life, and an ultimate truth to be discovered, are viewed as intolerant and/or delusional. It is my view, however, that acting like a parent involves creating rules, establishing boundaries, and providing moral guidance about these truths for our children.

I agree with Beckett J. in DiMeco v. DiMeco, [1995] O.J. No. 3650 (Ont. Gen. Div.) at para. 36:

The parent is a role model for the child. Children learn their behaviour from their parents. Surely it is in the best interest of every child that he or she learn the values of love, caring, honesty, integrity, understanding, gentleness to others, and should be shielded from violence and dishonesty.

If a parent’s own life is characterized by dishonesty, deception and violence, then he or she will likely be incapable of modeling positive behaviour for the child.”

            LW v. SW, 2018 ONSC 4197 (CanLII) at 53-56

“To succeed in the tort of defamation the plaintiff must prove three things:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damages are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. (Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640 at para. 28.)

Once the plaintiff proves the three essential elements on a balance of probabilities, the defendant can defend the claim by proving the defamatory words were true or that the words were part of a privileged communication absolute or qualified.

Qualified privilege was explained by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J.:

143        Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself.  As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.”

 

A.H. v. D.K. and E.A.,2018 ONSC 4173 (CanLII) at 65

“Under s. 2 of the Partition Act, R.S.O. 1990, c. P.4, courts should compel partition and sale unless the applicant has behaved maliciously, oppressively or with a vexatious intent: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at para. 15.”

         Scalia v. Scalia, 2015 ONCA 492 (CanLII) at 47

“Offers to settle are inadmissible in subsequent family law proceedings except when dealing with costs issues: see rule 18(8) of the Family Law Rules, O. Reg. 114/99. The same applies to draft minutes of settlement tendered on another party but not signed: Parreira v. Parreira, 2013 ONSC 6595 (CanLII). This rationale extends to a settlement that was agreed upon but could not be implemented. the Family Law Rules, O. Reg. 114/99.”

McKinnon v. McKinnon, 2018 ONCA 596 (CanLII) at 30

“Section 140(1) of the CJA [Courts of Justice Act] provides:

140(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

In my view, there is no conflict between s. 140 of the CJA and s. 17 of the DA. The statutes have different purposes. Section 17 of the DA provides statutory authority to a judge to vary, rescind or suspend support orders and custody orders. It also provides guidance for when such orders may be made. For example, before a variation order for spousal support can be made, the court must satisfy itself that there has been a change in the condition, means, needs or other circumstances or either former spouse. Similarly, before an order to vary custody can be made, the court must be satisfied that there has been a change in the condition, means, needs or other circumstances of the child of the marriage.

In contrast, s. 140 of the CJA does not deal in pith and substance with divorce, support or custody. Its purpose is to prevent abuses of the court’s process. It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious proceedings from instituting further legal proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody. As noted by Polowin J. in Beattie v. Ladouceur (2001), 2001 CanLII 28166 (ON SC), 23 R.F.L. (5th) 33 (Ont. S.C.J.) at p. 62 R.F.L.: “There is a significant body of case law with respect to the issue of vexatious litigation. It is perhaps not surprising that many of the cases involve family litigation where emotions often run very deep.” Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied. Indeed, this was the situation in Winkler, where Davidson J. observed, at p. 51 Man. R.:

The litigation between Mr. and Mrs. Winkler has, unfortunately, fallen into a regular pattern. Mrs. Winkler brings custody, access and support claims (among others) before the court; is unsuccessful, generally; costs are awarded against her, which she can’t pay; she waits a period of time, and then brings the same matters back before the court.

Accordingly, initiating new court proceedings could become a form of harassment of one’s former spouse. Section 140 of the CJA is a mechanism to prevent such abuse.”

         Ballentine v. Ballentine, 2003 CanLII 27775 (ON CA) at 21, 38-39

“Pursuant to s. 130 of the CJA, the court has the discretion to make an order for interest at a rate other than as prescribed by s. 128 (pre-judgment) or s. 129 (post-judgment).  However, the manner in which that discretion is exercised is mandated by s. 130(2) of the CJA.  That subsection provides that “the court shall take into account” six specific factors (ss.130(2)(a)-(f)).  Those factors include:

a)  Changes in market interest rates;

b)  The circumstances of the case;

…

e)  The amount claimed and the amount recovered in the proceeding; [and]

f)  The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.”

         Pitre v. Lalande, 2018 ONSC 3985 (CanLII) at 16

“The function of a status review hearing was explained as follows by the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165:

“37. The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection….

This flexible approach is in line with the objective of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail”.

Children’s Aid Society of Ottawa v. D.C.-L,2018 ONSC 3995 (CanLII) at 284.