Siegel's Family Court Calendar

“Solicitors have special rights both under statute and at common law to facilitate payment of their client accounts: Edwin G. Upenieks & Robert J. van Kessel, Enforcing Judgments and Orders, 2d ed. (Toronto: LexisNexis Canada Inc., 2016), at s. 8.1. These include both charging orders, under s. 34 of the Solicitors Act, and solicitors’ liens on funds, derived from the court’s inherent jurisdiction: see Halton Standard Condominium Corp. No. 627 v. Grandview Living Inc., 2017 ONSC 1761 (CanLII), at paras. 29-30; Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182 (CanLII), 349 D.L.R. (4th) 431, at paras. 84-89.

This takes us to the question of jurisdiction raised by Brown J.A.

A court’s inherent jurisdiction to declare a lien on the proceeds of its own judgments is well-established: Thomas Gold Pettinghill LLP, at para. 89; Re Tots and Teens Sault Ste. Marie Ltd. (1976), 1975 CanLII 535 (ON SC), 11 O.R. (2d) 103 (S.C.), at p. 108; Welsh v. Hole (1779), 99 E.R. 155 (K.B.), at pp. 15556. It follows that this court has the inherent jurisdiction to grant, when warranted, a solicitor’s lien over the $50,000 in costs awarded in favour of the Client on the appeal.

In the light of this conclusion, the question remains as to whether this court has jurisdiction to issue a charging order under the Solicitors Act or a solicitors’ lien over the damages and costs awarded by the Superior Court.

In our view, it does. A judge of the Court of Appeal is, by virtue of his or her office, a judge of the Superior Court with all of the jurisdiction, power and authority of a judge of that court under s. 13(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and under s. 134(1) of that Act may make any order or decision that could have been made by the court appealed from. There is no dispute that a judge of the Superior Court has the jurisdiction, both pursuant to s. 34 of the Solicitors Act and, as previously indicated, under the court’s inherent jurisdiction, to grant a charging order or lien on the damages and costs awarded in that court: e.g., Dalcor Inc. v. Unimac Group Ltd., 2017 ONSC 945 (CanLII), 136 O.R. (3d) 585, at para. 14; Thomas Gold Pettinghill LLP, at para. 89. To the extent a Superior Court judge could order a charge or a lien, a Court of Appeal judge is accordingly empowered to do so the same.”

Weenen v. Biadi, 2018 ONCA 288 (CanLII) at 8-12

“When a contract is filed under s. 35(1) [of the Family Law Act], it is open to a party who wishes to challenge enforcement or an application to vary to raise issues relating to the validity or enforceability of the contract before the court. Where choice of law issues are involved, the validity or enforceability of the contract will be determined according to the law mandated by the choice of law rules in s. 58. Contrary to the father’s submission, s. 35(2) does not provide that a domestic contract containing a provision for support is automatically deemed to be a court order in all circumstances, regardless of its terms. Section 35 simply provides a summary procedure which enables a party to file a contract with the court and to seek enforcement or variation of a provision as if that provision were an order of the court. This procedure allows parties to take advantage of a variety of statutory processes designed to facilitate recovery of support and maintenance payments.

There is nothing in s. 35 that prevents a party responding to enforcement or an application to vary from raising arguments with the court that the contract filed under s. 35(1) is not valid or enforceable. Indeed, it would not make sense that the mere filing of a contract that is invalid or unenforceable would have such an effect.”

Jasen v. Karassik, 2009 ONCA 245 (CanLII) at 33-34

“Subsection 16(10) of the Divorce Act enshrines the principle of maximum contact with both parents:

[T]he court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interest of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

The principle is important in custody disputes because maximum contact with both parents is usually in the child’s best interests.

Ms. Brand submits that the trial judge did not give sufficient weight to this important principle. I do not agree with her submission. I make three points. First, the maximum contact principle is not an absolute principle; if it were very few relocation requests would ever be allowed. Instead, as this court said in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), at para. 34, though the maximum contact principle is obviously important, “it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor.” And in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, still the leading case on mobility, McLachlin J. said at para. 24:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The [Divorce Act] only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18.

Second, the submission that the trial judge did not give sufficient weight to the maximum contact principle is not a basis for appellate intervention. Mobility or relocation decisions are discretionary decisions: Porter v. Bryan, 2017 ONCA 677 (CanLII), at para. 11; and Elliott v. Elliott, 2009 ONCA 240 (CanLII), 247 O.A.C. 174, at para. 19. The exercise of discretion involves the weighing of relevant considerations – here the maximum contact principle. To accede to the submission that an appeal court should intervene because it would have given more weight to a relevant consideration is to abandon discretion altogether. To be justified in interfering, an appellate court would have to be satisfied that the trial judge’s exercise of discretion was unreasonable. See: R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35; and Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.”

Reeves v. Brand, 2018 ONCA 263 (CanLII) at 21-23

“In my view, the trial judge did not err by failing to consider Ms. DiDonato’s admissions regarding her understanding of the insurance obligation in the Agreement. In resolving disputes arising from the interpretation of contracts, the objective is to protect the reasonable expectations of the parties, as set out in the language of their agreement. In the absence of ambiguity in the words of the contract, parole evidence of the subjective intention of the parties has no place in the interpretive exercise: see Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59, at paras. 54-56.”

Turner v. DiDonato, 2009 ONCA 235 (CanLII) at 44

“Section 39 of the Domestic Relations Ordinance provides that the rules of equity will apply in custody matters where they do not conflict with the provisions of the Ordinance. The application of equitable rules in this case would permit the Court to exercise the parens patriae jurisdiction and to treat the welfare of the child as the paramount consideration. I see no conflict in this respect with the Ordinance. Section 37, if it applied in this situation, would itself require a demonstration that the best interests of the child be served before it could be returned to the mother. The rules of equity, therefore, are to be applied in this determination.

This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

In my view, which I find supported in modern authority in this country and in the United Kingdom: see Re Moores and Feldstein; Beson; Racine; and J. v. C., [1970] A.C. 668 (H.L.), and particularly where the governing statute preserves and dictates the application of the rules of equity, the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination.”

King v. Low, [1985] 1 SCR 87, 1985 CanLII 59 (SCC) at 26, 27 and 34

“Counsel for Mr. Krane has not asked that spousal support be terminated earlier than the date of my order.  By this, I understand that Mr. Krane has recognized his obligation to pay spousal support and Ms. Dryden’s entitlement to it, at least until the completion of the trial.  Accordingly, what I am being asked to consider is whether spousal support should be changed retroactively and if so, whether such retroactivity should extend beyond the commencement of the Respondent’s motion.  The Ontario Court of Appeal in Bremer v. Bremer [2005] O.J. Nov 608 summarized a number of factors to consider in making this determination:

i)   the extent to which the claimant established past need and the payor’s ability to pay;

ii)  the underlying basis for the support obligation;

iii) the requirement that there be a reason for awarding retroactive support;

iv) the impact of a retroactive award on the payor and in particular whether a

retroactive order will create an undue burden on the payor or effect a redistribution of capital;

v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;

vi) notice of an intention to seek support and negotiations to that end;

vii) delay in proceeding and any explanation for the delay; and

viii) the appropriateness of a retroactive order pre-dating the date on which the application issued.”

Krane v. Krane, 2010 ONSC 1488 (CanLII) at 23

“Dubin C.J.O. is frequently cited as succinctly articulating the test for determining a motion to intervene in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164:  “[T]he matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.”

Issai v. Rosenzweig, 2011 ONCA 198 (CanLII) at 11

“At common law, an agreement is binding if the parties consider that it contains all essential terms, even if the parties also agree that those terms will subsequently be recorded in a more formal document together with the usual terms ancillary to that type of agreement. However, an agreement is not final or binding if it is merely an agreement to later agree on essential provisions or to defer the binding nature of the agreement until the execution of the proposed subsequent formal contract. The proper approach was discussed in Bogue v. Bogue (1990), 1999 CanLII 3284 (ON CA), 46 O.R. (3d) 1, [1999] O.J. No. 4310 (C.A.), where, at para. 12, Rosenberg J.A. cites Robins J.A. in Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), [1991] O.J. No. 495, 79 D.L.R. (4th) 97 (C.A.), at pp. 103-104 D.L.R., as explaining the “true legal position”:

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself. (Emphasis added; citations omitted)

As well, to be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content. As Rosenberg J.A. observed in Bogue, at para. 13:

While there was no express discussion about a release, the settlement of the action implied an obligation to furnish releases: Fieguth v. Acklands Ltd. (1989), 1989 CanLII 2744 (BC CA), 59 D.L.R. (4th) 114 (B.C.C.A.). At the end of those negotiations, the parties had bound themselves to the settlement. It only remained for the lawyers to reduce the terms to a formal document. This was not simply an agreement to agree.”

Ward v. Ward, 2011 ONCA 178 (CanLII) at 53-54

“The order under appeal is an order for sale of the matrimonial home. Although the appellant refers in his factum to the order as an interlocutory order, because the order finally disposes of the issue of whether the matrimonial home should be sold, it is a final order and this court has jurisdiction to hear this appeal.

We are not aware of any statutory provision or precedent that would support the motion judge’s order delegating the court’s authority to approve the sale price at which the matrimonial home should be listed and to accept an offer on the appellant’s behalf. That order should not have been made. Similarly, absent the agreement of both parties, the motion judge’s orders granting rights of first refusal should not have been made. See Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41 (C.A.)”

 Laurignano v. Laurignano, 2009 ONCA 241 (CanLII) at 2-3

“The trial judge, at para. 21, quoted above, referenced three decisions of this court: Drygala v. Pauli, 2003 CanLII 48241 (ON CA), [2003] O.J. No. 3, 167 O.A.C. 274; Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401, 215 O.A.C. 239; and Writer v. Peroff, [2006] O.J. No. 4567 (S.C.), aff’d [2006] O.J. No. 4061.  In each of these cases, this court upheld a trial judge’s discretionary decision to order costs awarded in a matrimonial proceeding enforceable by the FRO as support.  Indeed, in Drygala, at para. 16, the validity of an order making a costs award at trial enforceable in its entirety by the FRO was specifically affirmed.

However, the validity of an FRO enforcement order per se is not challenged in this case.  There can be no tenable suggestion, and Gregory does not argue, that the courts lack jurisdiction to direct that costs awarded in a matrimonial proceeding be enforceable as support or maintenance by the FRO.  The Act provides otherwise.

The critical question is whether the FRO enforcement mechanism can be triggered by characterizing the costs of a matrimonial proceeding as referable to lump sum spousal support where no claim for spousal support was advanced or adjudicated upon at trial.  None of the cases cited by the trial judge supports that proposition.  To the contrary, in each of Drygala, Wildman and Writer, child and/or spousal support, among other matters, was in issue at trial.  And, in each of these cases, the costs of the underlying proceeding and of the appeal before this court were ordered enforceable by the FRO as support.

Nor do any of the appellate-level cases relied upon by Georgia stand for this proposition.  For example, Sordi v. Sordi, 2010 ONSC 6236 (CanLII), aff’d 2011 ONCA 665 (CanLII), [2011] O.J. No. 4681, cited by Georgia, provides no authority for the approach employed by the trial judge.  In Sordi, this court upheld a trial judge’s order that part of the costs awarded at a matrimonial trial should be enforceable by the FRO as support.  However, the issues at trial included claims for child and spousal support, thus linking the costs award to support.

The relevant authorities, including those mentioned above, confirm that a trial judge’s allocation of costs as relating to support or maintenance for FRO enforcement purposes attracts considerable deference from a reviewing court.  That said, in those authorities cited above where costs were designated enforceable by the FRO as “spousal support”, the costs were incurred in a proceeding in which spousal support was implicated.

I therefore conclude that the trial judge erred in this case by characterizing his costs award as lump sum spousal support for the purpose of invoking enforcement of the award by the FRO.  For the reasons given, this characterization of Georgia’s costs award cannot stand.”

Clark v. Clark, 2014 ONCA 175 (CanLII) at 69-74