Siegel's Family Court Calendar

“…the fact that the parties agreed not to terminate the support does not prevent a party from returning to court where there is a change in circumstances such as to warrant a variation including the possibility of ending support altogether. As explained by the Supreme Court of Canada in L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, a consent order is always open to variation in the event that a material change in circumstances so warrants. The majority of the Court in L.M.P. stated, at para. 41:

But even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted …. A provision indicating that the order is final merely states the obvious: the order of the court is final subject to s. 17 of the Divorce Act. Courts will always apply the Willick [v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670] inquiry to determine if a material change of circumstances exists. [Citations omitted; emphasis in original.]

In L.M.P., the majority of the Court characterized the “Willick inquiry” as follows, at para. 32:

That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) [v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370] confirmed that this threshold also applies to spousal support variations.”

Pustai v. Pustai, 2014 ONCA 422 at 18-19

“I agree with the appellant’s submission that D.B.S., supra, has made some changes to the legal regime that was in effect in Ontario at the time of the trial decision. In light of D.B.S., it is now clear that the trial judge erred in concluding the respondent had not engaged in blameworthy conduct. In D.B.S., Bastarache J. indicated that any conduct that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support should be characterized as blameworthy conduct. While there is a presumption that the payor parent is acting reasonably by complying with the terms of a previous court order or agreement, this presumption may be rebutted where the change in circumstances is sufficiently pronounced. In determining the reasonability of the payor parent’s belief that his or her obligations were being met, the court should compare the amount the parent actually paid with how much he or she should have paid.

Applying this approach to this case, the respondent’s failure to report the increase in his income must be seen as blameworthy conduct given the magnitude of that increase.

The respondent’s blameworthy conduct in failing to report the increase in his income militates in favour of a retroactive award, but it is not determinative. It is only one of four factors Bastarache J. identified, at paras. 100-16, to be considered:

1. Reasonable excuse for why support was not sought earlier

2. Conduct of the payor parent

3. Circumstances of the child

4. Hardship occasioned by a retroactive award[.]

Importantly, Bastarache J. stressed at para. 99 of D.B.S., supra, “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.”

Baldwin v. Funston, 2007 ONCA 381 (CanLII) at 18-21

“Our view on this principal issue may be summarized as follows. Section 15(1) of the Charter is infringed by the definition of “spouse” in s. 29 of the FLA.  This definition, which only applies to Part III of the FLA, draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex relationships of a specific degree of duration. We emphasize that the definition of “spouse” found in s. 1(1) of the FLA, and which applies to other parts of the FLA, includes only married persons and is not at issue in this appeal.  Essentially, the definition of “spouse” in s. 29 of the FLA extends the obligation to provide spousal support, found in Part III of the FLA,  beyond married persons to include individuals in conjugal opposite-sex relationships of some permanence. Same-sex relationships are capable of being both conjugal and lengthy, but individuals in such relationships are nonetheless denied access to the court-enforced system of support provided by the FLA. This differential treatment is on the basis of a personal characteristic, namely sexual orientation, that, in previous jurisprudence, has been found to be analogous to those characteristics specifically enumerated in s.15(1).

The crux of the issue is that this differential treatment discriminates in a substantive sense by violating the human dignity of individuals in same-sex relationships.  As Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, established, the inquiry into substantive discrimination is to be undertaken in a purposive and contextual manner. In the present appeal, several factors are important to consider. First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation. Second, the legislation at issue fails to take into account the claimant’s actual situation. Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case. Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances. Taking these factors into account, it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of “spouse” in s. 29 of the FLA.”

M. v. H., [1999] 2 SCR 3, 1999 CanLII 686 (SCC) per Cory & Iacobucci JJ at 2-3

“Whether make up time is appropriate in any given case, and in what amount, must be based on a determination of the best interests of the children that takes into account all of the relevant circumstances. The relevant circumstances will invariably include the magnitude of the make up time sought and can, in the appropriate case, include considerations such as the wishes of the children and concerns about alienation of one of the parents.”

Balice v. Serkeyn, 2016 ONCA 372 at 17

“As stated in Jackson, at para. 91: “quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318 (CanLII), 2015 ONCJ 318 (OCJ). The Rules do not require the Court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo 2015 ONSC 3327 (CanLII), 2015 ONSC 3327 (SCJ).”

The approach to be used in assessing the quantum of costs when a party has been successful was aptly stated by Justice Perkins in Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.):

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

The Court must consider whether the costs incurred are proportional to the issues argued.  As stated in Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.), and Gale v. Gale, 2006 CarswellOnt 6328 (Div. Ct.): there should be a correlation between legal fees incurred and the importance or monetary value of the issues at stake.

In Berta v. Berta, 2015 ONCA 918 (CanLII), 128 O.R. (3d) 730, the Court of Appeal sets out the principles in assessing costs in a family law matter. At para. 94:

[94] Thus, a successful party in a family law case is presumptively entitled to costs.  An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40–43.”

Wehbe v. Wehbe, 2016 ONSC 3227 (CanLII) at 41-44

“Section 56(4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses. It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, [2004] S.C.J. No.20, at para. 14. The provision is of such significance that, in accordance with s. 56(7), it cannot be waived by the parties.

The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk, [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case.”

LeVan v. LeVan, 2008 ONCA 388 at 50-51

“In the motion judge’s view, the fact that the appellant “had information that should have caused her to question” the veracity of the husband’s disclosure precluded any chance of successfully setting aside the agreement even if the respondent had, in fact, deliberately made false disclosure. In other words, the motion judge determined that the appellant ought to have known that the value her husband attributed to his date of marriage interest in Renegade was overstated; the appellant was in a position and had information that should have caused her to question the value assigned to Renegade and the respondent’s interest in it.

In making this determination, the motion judge relied on an excerpt from Cheshire & Fifoot.  She wrote at para. 83 of her reasons:

Further, where the recipient spouse has a reason to question the information provided, but does not, no misrepresentation or omission could result in the contract being avoided.  I refer to Cheshire and Fifoot, The Law of Contract, 10th ed., at p. 244, and quoted in Farquar, at para. 35:

Knowledge of the untruth of a representation is a complete bar to relief, since the plaintiff cannot assert that he has been misled by the statement, even if the misstatement was made fraudulently.  In such a case, “the misrepresentation and concealment go for just absolutely nothing…”.

However, the motion judge failed to mention that the authors of Cheshire & Fifoot went on to write:

It must be carefully noticed, however, that relief will not be withheld on this ground except upon clear proof that the plaintiff possessed actual and complete knowledge of the true facts – actual not constructive, complete not fragmentary.  The onus is on the defendant to prove that the plaintiff had unequivocal notice of the truth.  In particular, the mere fact that a party has been afforded an opportunity to investigate and verify a representation does not deprive him of his right to resist specific performance or to sue for rescission.  As Lord Dunedin once said:

No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction.

…

[I]t is no answer to a suit for relief to say that inspection of the contracts or of the lease or of the bills of costs was expressly invited but was not accepted. [Emphasis added.]

Once the motion judge assumed that there had been deliberate material misrepresentations, she erred in shifting the onus to the appellant to inquire as to the veracity of the respondent’s financial disclosure. In the face of a deliberate material misrepresentation, the onus is not appropriately placed on the recipient spouse.  Rather, the burden is on the party disclosing to establish actual knowledge of the falsehood by the recipient.  The respondent could point to no authority for the proposition that the suggested duty of a spouse receiving financial disclosure in a matrimonial case, to investigate or test the veracity of the information provided, overtakes deliberate material non-disclosure by the other spouse.

…

It is one thing to disclose assets and liabilities and their values believing the disclosure to be true.  It is quite another to deliberately misrepresent the values of assets and liabilities knowing them to be untrue.  The law does not entitle a liar to succeed just because the recipient of the falsehoods has not ferreted them out.”:

Virc v. Blair, 2014 ONCA 392 (CanLII) at 55-58, 68

“Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion:  see Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21.  An appellate court should set aside a costs order only if the trial judge has made an error in principle or if the costs award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27.”

Petruzziello v. Albert, 2014 ONCA 393 (CanLII) at 35

“Punitive damages are a censure by society for harsh, reprehensible and malicious conduct.  Their purpose is punishment and deterrence:  Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R. (2d) 278 (Ont. C.A.), leave to appeal to S.C.C. refused [1993] 2 S.C.R. x.  Where tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit.  To do so is to punish twice for the same offence:  Rioux v. Smith (1983), 1983 CanLII 544 (BC CA), 48 B.C.L.R. 126 (C.A.).  Where, however, the civil proceedings establish that the sexual abuse was of longer duration than the criminal conduct framed within the indictment, the sentence does not fully sanction the tortfeasor’s behaviour.  In such instances, punitive damages may be awarded:  B.(A.) v. J.(I.),1991 CanLII 5865 (AB QB), [1991] 5 W.W.R. 748 at 756; B.(P.) v. B. (W.) (1992), 1992 CanLII 7666 (ON SC), 11 O.R. (3d) 161 at 169 (Gen. Div.).”

Fleury v. Fleury, 2001 CanLII 294 (ON CA) at 11

“In Rizzi v. Mavros (2007), 85 O.R. (3d) 40 (C.A.), at para. 16, Gillese J.A. set out the factors to consider on a motion for leave to extend time to file an appeal:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of the delay and explanation for the delay;

(3) any prejudice to the respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case requires it.”

Robertson v. Robertson, 2016 ONCA 356 at 5