Siegel's Family Court Calendar

“The Family Law Act an the Child Support Guidelines govern the obligations of a parent to pay child support and to contribute to child care expenses. If an adjustment is claimed with respect to amounts that were or should have been paid in the past, the proper remedy is to apply for an adjustment under the applicable legislative scheme. Absent a determination under such scheme, there is simply no entitlement to either a refund for past payments or compensation for payments not received and an action for damages does not therefore lie in relation to such amounts.

Considered in this context, the appellant’s civil action for damages against the respondent is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system. See Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307, in which Finlayson J.A. described the court’s inherent power to invoke the doctrine of abuse of process as follows at para. 31:

The court can still utilize the broader doctrine of abuse of process.  Abuse of process is a discretionary principle that is not limited by any set number of categories.  It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.”

Cunningham v. Moran, 2011 ONCA 476 (CanLII) at 39-40

“The test for granting leave to appeal [a temporary order] under Rule 62.02(4) [of the Rules of Civil Procedure] is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

The first test

Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

I have been directed to no conflicting decisions by the moving party on the issues involved in this case.  Accordingly, in my view, the prerequisites of this test have not been satisfied.

The alternative test

Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted.

It is not necessary that a judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.).

In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 O.R. (2d) 110 (Div. Ct.).”

Huang v. Braga, 2017 ONSC 3826 (CanLII) at 13-18

“As this court said in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 524 “…where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.” Judges are presumed to know the law.”

Hersey v. Hersey, 2016 ONCA 494 at 14

“Over a century ago, in Reid v. Aull, the court held that “Divorce assumes the previous existence of the marriage status. Its result is to put an end to that status without affecting its existence in the past.”

Nullity, on the other hand, was described in Kerr v. Kerr.  The court held that, in the context of insanity, “[s]uits for nullity on the ground of insanity seek not to dissolve an existing marriage, but to declare that no marriage exists.”

A divorce therefore can only be granted where there is a valid existing marriage and the cause for ending the marriage arises after the marriage has come into existence. A nullity, however, will be granted in two situations: 1) where there is no valid existing marriage from the very outset, or 2) where the marriage was validly entered into but the cause for ending the marriage existed from the very outset.

The grounds of nullity fall into the two categories above. In the first situation, where there is no valid existing marriage from the outset, the marriage is considered void ab initio, meaning “from the beginning.” A marriage void ab initio is considered never to have taken place. A decree of nullity is purely declaratory in such a case, and is not legally required in order to end the marriage because the marriage is void already.

In the second situation, where the cause for ending the otherwise valid marriage was existing at the time it was entered into, the marriage is considered voidable. A voidable marriage is considered to be a valid marriage, with all its rights and consequences, unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”

Recently, in the Ross-Scott v. Groves Estate, the British Columbia Supreme Court relied on an academic source to articulate the distinction between the void and voidable scenarios:

In Canadian Family Law, 5th Ed. Julien D. Payne and Marilyn A. Payne, the authors describe the distinctions between void and voidable marriages. At page 21, they say:

Marriages may be valid, void, or voidable accordingly to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction. A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses. […] A void marriage, however, is impeachable by third parties who “have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit”. […]A void marriage may also be impugned collaterally after the death of one or both spouses.

In the following situations, marriages are considered to be void ab initio:

•   One or both parties is married to another person at the time of marriage

•    One or both parties did not consent to the marriage or lacked the mental capacity to consent

•    The parties are related within prohibited degrees

•    One or both of the parties is under the age of majority at the time of marriage

•    The marriage ceremony was incomplete

In the following scenarios, marriages were considered voidable:

•   The marriage was entered into for fraudulent purposes

•   Consummation of the marriage is impossible because of a lack of capacity; or there is a wilful refusal of a party to consummate the marriage, for instance, due to repugnance.

Lowe v. A.A., 2018 ONSC 3509 (CanLII) at 35-42

“The Children’s Lawyer is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court.

Her fiduciary duties to the child require undivided loyalty, good faith and attention to the child’s interests, to the exclusion of other interests, including the interests of the child’s parents, the interest of the Crown and the interests of MAG. As stated by Abella J., as she then was, in Re W. (1980), 1980 CanLII 1958 (ON CJ), 27 O.R. (2d) 314 (Prov. Ct.), at p. 317, the Children’s Lawyer has an obligation to ensure that the views expressed by the child are freely given without duress.

The Children’s Lawyer not only represents the child’s interests; she provides a safe, effective way for the child’s voice to be heard. For her to do this, she must provide a promise of confidentiality. Children must be able to disclose feelings and facts to the Children’s Lawyer that cannot or will not be communicated to parents. Children’s interests can be averse to that of their parents. Feelings of guilt and betrayal that may influence a child require a safe person to speak to.

It is difficult enough for children to be the subject of litigation. For their voices to be heard, they must be guaranteed confidentiality when they say, “please, don’t tell my mom”, or “please, don’t tell my dad”.

To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 68-72

“The courts in Ontario now recognize that self-represented litigants should be entitled to costs if they are the successful party in a proceeding, but not for costs calculated on the same basis as those litigants who retain counsel. In Fong v. Chan, the Court of Appeal explained that a self-represented litigant should not recover costs for the time and effort that any litigant in the case would have devoted to the case. The Court of Appeal then set out the entitlement of a self-represented litigant to, and the limits of, costs in the following way:

[26]  I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process.  The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.  Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.  As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case.  This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event.  The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

Generally speaking, costs submissions do not require that evidence be filed by counsel or a self-represented litigant in support of those submissions. Counsel are expected to make accurate and truthful representations as to the time and effort expended for fees, and the precise amount for disbursements incurred when making submissions on costs as officers of the court. Self-represented litigants who give estimates of expended time and details of disbursements incurred may be called upon to provide evidence in affidavit form to substantiate their claims for costs if the court considers it necessary. This power flows from the court’s discretion over the costs process if those time estimates or disbursements seem unreasonable in the experienced eyes of the court.”

Voth v. Voth, 2016 ONSC 4002 (CanLII) at 10-11

“The term “custody” refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)).  The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term well-being, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26;  Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.);  Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.);  Chou v. Chou, 2005 CanLII 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.);  Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.));  Scott v. Chenier, 2015 ONSC  7866 (S.C.J.) (CanLII);  Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.) (CanLII);  Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.) (CanLII)).  The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit.  Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child.  It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at 185 (S.C.C.);  Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 132 (S.C.C.)).

The term “access” refers to the rights of a party in circumstances where the other party is granted sole custody. Access rights include not only visitation privileges, but also the right to make inquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.”

Roloson v. Clyde, 2017 ONSC 3642 (CanLII) at 42-43

“While in most situations there is an obvious physical separation of the parties, case law has recognized that it is possible for parties to be living apart with no reasonable prospect of resuming cohabitation even while maintaining the same address.  The court must look at the specific facts related to each situation as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship.  Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.

Both counsel have directed the Court to Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117, affirmed at [1992] O.J. No. 3563.  This case provides a list of indicia for the Court to consider when determining a valuation date, a list that has been used in many cases since.  While it is appropriate as a starting point to look at the indicia indicated in that case, it must be remembered that the final determination will be based on the specifics of the case being considered.  This approach recognizes that what is acceptable for one family unit may be quite different for another.

The list set out in Oswell, provides the following considerations for the Court to take into account:

1.     Is there a physical separation?

2.     Has one (or both of the spouses) taken steps to demonstrate his or her intent to destroy the matrimonial consortium?

3.     Is there an absence of sexual relations that should be factored in?

4.   What is the level of discussion of family problems and communication between the parties?  Are there joint social activities? What is the meal pattern?

5.     Are household tasks being performed?

Additional indicia may be found in other cases as well.  For example, do the family finances reflect separated persons (Newton v. Newton, [1995] O.J. No. 519) and how are the parties presenting themselves to others, including to the CRA?

The court must always be vigilant of the significance of the valuation date and guard against any party attempting to manipulate the facts in order to protect their own interests, whether that be to include or exclude any equalization claim.”

Hogarth v. Hogarth, 2018 ONSC 3580 (CanLII) at 9-12

“First, a fundamental purpose of the appellant’s fresh evidence is to explain her absence at trial and her motion. In order to succeed on her appeal, her explanation must be sufficiently cogent that it credibly excuses her absence and such that it would be procedurally unfair to allow the trial and motion orders to stand. The level of her inability to attend must obviously be serious to reasonably explain her absence. However, there is no requirement that she prove a certain level of incapacity including one that rises to the definition under the Substitute Decisions Act, S.O. 1992, C.30 or the Mental Health Act. We also note that incapacity for the purposes of the representation of a person under a disability under r. 7.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, speaks to a person who is “mentally incapable … in respect of an issue in the proceeding” [emphasis added], not necessarily for all purposes in all aspects of her life.”

         Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539 (CanLII) at 18

“Allowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition. This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples.

Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same- sex marriage. Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views.

In our view, the opposite-sex requirement in the definition of marriage does not minimally impair the rights of the claimants. Same-sex couples have been completely excluded from a fundamental societal institution. Complete exclusion cannot constitute minimal impairment.”

Halpern v. Canada (Attorney-General),2003 CanLII 264037 (ON CA) at 137-139