December 6 – Interpreting a Contract

“It is well-established that the test for interpretation and certainty of the terms of a contract is objective. One party’s views about the agreement, or how it would later work, not agreed to by the other side, is irrelevant. See Ko v. Hillview Homes Ltd. 2012 ABCA 245 (CanLII), 2012 CarswellAlta 1759 (Alta. C.A.) at para. 26, citing, among other cases, Eli Lilly & Co. v Novopharm 1998 CanLII 791 (SCC), [1998] 2 SCR 129.

…

The case of Neher v. Kossowan, 2008 CarswellAlta 847 (Alta QB) confirmed that when construing an agreement, the court must give effect to the plain meaning of the words used unless it would result in an absurdity to do so. Words other than terms of art are to be construed in their ordinary and natural sense.  It is also noted that the same rules govern the interpretation of domestic contracts as govern the interpretation of contracts generally (see Krone v. Krone, 2011 CarswellNfld 67, at para. 112 quoting  James G. McLeod & Alfred A. Mamo, Annual Review of Family Law, (Toronto: Thomson Carswell, 2008) at page 625.)”

Carrigan v Brewer, 2012 ONSC 6952 (CanLII) at 21 and 25

December 5 – Declaratory Relief

“Insofar as declaratory relief is concerned, I note that the jurisprudence is to the effect that the Superior Court’s jurisdiction to grant declaratory relief is not to be exercised in a vacuum; a court must have a reason to exercise its discretion to grant declaratory relief; where legislation exists dealing with the subject matter, the court should consider whether a legislative gap exists that would give rise to a jurisprudential reason for exercising the court’s discretion to grant declaratory relief. See, for example, Danso-Coffey v. Ontario, 2010 ONCA 171 (CanLII), 99 O.R. (3d) 401, at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (2016-Rel. 3), (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can only be granted if it will have practical utility in settling a “live controversy” between the parties: see Daniels v. Canada, 2016 SCC 12 (CanLII), 395 D.L.R. (4th) 381, at para. 11, Khadr v. Canada (Prime Minister), 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of this jurisprudence was the subject of submissions before us.”

N.L. v. R.R.M., 2016 ONCA 915 (CanLII) at 51

December 4 – Bias

“As the Supreme Court explained in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60, the test for the demonstration of a reasonable apprehension of bias is as follows: What would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

Mwanri v. Mwanri, 2015 ONCA 843 at 16

November 30 – Failure to Disclose Financial Information

“…after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450 (CanLII), 65 R.F.L. (7th) 6, at para. 11.)  In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation.  Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

Manchanda v. Thethi, 2016 ONCA 909 (CanLII) at 13

November 28 – Seeking Costs Against Counsel

“In Rand Estate v. Lenton the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the conduct of an entire proceeding in order to “…produce an accurate tempered assessment…”

The parties agree and the case law confirms that the test for determining costs against counsel is a two part one. First, did counsel cause costs to be unnecessarily incurred? Second, should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme cautionbefore doing so (see Galganov v. Russell (Township))?

Decisions granting costs against lawyers are quite rare. As the Divisional Court stated in Carleton v. Beaverton Hotel,

I agree with the appellant’s submission that the ‘extreme caution’ which courts must exercise in awarding costs against a solicitor personally as stated in Young v. Young, means that these awards must only be made sparingly, with care and discretion, only in clear cases and not simply because the conduct of a solicitor may appear to fall within the circumstances described in rule 57.07(1).

In Galganov, the Ontario Court of Appeal reviewed a number of cases in order to determine the principles that apply to the determination of costs against a lawyer in a proceeding in which he or she has acted. It did so in the context of Rule 57.07(1) of the Rules of Civil Procedurerather than Rule 24(9) of theFamily LawRules. Nonetheless the two provisions are sufficiently similar that the case law from the former applies “by necessary implication” to the latter.

The Ontario Court of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:

a. The first step is to determine whether the conduct of the lawyer comes within the rule; that is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b. The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c. Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d. Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e. The costs rule is intended to apply “…only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court …”

f. In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application judge”. This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”. But a general observation of the lawyer’s conduct is not sufficient. Instead, the court must look to the specific incidents of conduct that are subject to complaint.

To be clear, and contrary to the submission of Mr. Fogelman, misconduct is not a prerequisite for the application of sub-rule 24(9) if counsel has caused the other side to incur wasted or unnecessary costs. As Justice Rene M. Pomerance of the Superior Court of Justice (“SCJ”) succinctly put it in D. (M.) v. Windsor-Essex Children’s Aid Society: “Compensation may be appropriate even if discipline is not.”

F.(V.) v. F.(J.), 2016 ONCJ 759 (CanLII) at 7-12

November 26 – Adding Grandparents as Parties

“It is clear from these provisions that grandparents are not automatically entitled to party status.  Grandparents, however, may be named as parties in other ways.  First, it may be possible to add grandparents as parties if they qualify as “parents” under  clause (d) of the definition of “parent” in subsection 37(1).  As mentioned above, Mr. W.H. and Mrs. R.H. have not demonstrated the requisite “settled intention” to fit within that definition.

Second, grandparents may also be granted a “limited party” status under subsection 39(3).  Strictly speaking, persons falling within subsection 39(3) are not parties; however, such persons receive some equivalent rights, such as receiving notice, being present at the hearing, being represented by a lawyer and making submissions.  Under the circumstances, Mr. W.H. and Mrs. R.H. did not care for their grandchildren continuously for six months prior to the hearing. Thus, they are not entitled to this quasi-party status.

Third, grandparents may be named as parties, if, in exercising its discretion under the rules, the court decides that they should be parties.

The majority of cases that consider the court’s discretion to add parties in child protection cases were decided under the former rules.  The former rule 10 of the Rules of the Unified Family Court,R.R.O. 1990, Reg. 202, as amended, was identical to rule 11 of the Rules of the Ontario Court (Provincial Division) in Family Matters,R.R.O. 1990, Reg. 199, as amended:

  11.—   The court may order that any person whose presence as a party is necessary to determine the matters in issue shall be added as a party.  

The courts have added grandparents as parties under the former rule for various reasons.  In Children’s Aid Society of Algoma v. Robert M. et al.(1997), 77 A.C.W.S. (3d) 777, 1997 CanLII 6398 (ON CJ), 1997 CanLII 6398, [1997] O.J. No. 5444, 1997 Cars­well­Ont 5459 (Ont. Prov. Div.), Provincial Judge John Kukurin allowed the grandparents’ motion because of their connection with the child by blood and native heritage.  In addition, the court found that the grandparents’ actual care of the child may have exceeded the care that other people, already granted party status, had given the child.  Finally, the court decided that the applicants did not add to the complexity of the proceedings and it was desirable to give the same status to all of the people seeking to be permanent caregivers.

Similarly, in Children’s Aid Society of Hamilton-Wentworth v. Annette M. and William R.(1990), 73 D.L.R. (4th) 102, 1990 CanLII 3819 (ON SC), 1990 CanLII 3819, [1990] O.J. No. 1723, 1990 Cars­well­Ont 936 (Ont. U.F.C.), Senior Justice David M. Steinberg agreed that the grandmother should be added as a party.  Upon review of the evidence, the court did not hesitate to add her because she had demonstrated in the past that she was available when the children were in need of protection.  Since it was probable that the grandmother could offer a plan that was in the children’s best interests, her motion was granted.

In Re Children’s Aid Society of Kingston and Frontenac County and Holly Florence K. (An Infant)(2000), 100 A.C.W.S. (3d) 425, 2000 CanLII 20582 (ON SC), 2000 CanLII 20582, [2000] O.J. No. 3854, 2000 Cars­well­Ont 3711 (Ont. Fam. Ct.)., Justice Mary F. Dunbar refused to add as a party a grandfather whose past behaviour included allegations of sexual misconduct with the child in question, as well as with other children.  Counsel for the grandfather argued that his presence was necessary for a determination of the issues.  The court disagreed at paragraph [11]:

  [11]         . . .  To grant the grandfather party status so that he may “clear his name” is not the proper focus for this matter and would undoubtedly delay and prolong the matter unduly.  That is clearly not in the best interests of the child nor in compliance with the provisions, intent and philosophy of the Child and Family Services Act as a whole and in the Family Law Rules where procedural time periods are set and the effects of delay are to be considered by the court as primary factors.  

The current rule 7 is worded differently than the former rule.  It has been interpreted, however, as giving judges the same, broad discretion that they had under the former rule.  In Children’s Aid Society of London and Middlesex v. J.P.(2000), 95 A.C.W.S. (3d) 316, 2000 CanLII 20732 (ON SC), 2000 CanLII 20732, [2000] O.J. No. 745, [2000] O.T.C. 139, 2000 Cars­well­Ont 718 (Ont. Fam. Ct.), a decision considering the party status of foster parents, Justice Mary E. Marshman stated at paragraph [4]:

  [4]         Rule 7(5) provides that the court may order that any person who should be a party shall be added as a party.  The rule gives no direction as to how the court should exercise its discretion.  The former rule and case law suggests that a person ought to be made a party if that person’s presence is “necessary to determine the matters in issue”.  I am satisfied that I have the discretion to add the foster parents as parties to this proceeding if their presence is necessary to determine the issues.  

In a more recent case, Justice Jennifer A. Blishen implicitly acknowledged her discretion under subrule 7(5) and refused to add a stepfather to status review proceedings:  see Children’s Aid Society of Ottawa v. Shelley Y.(2002), 113 A.C.W.S. (3d) 845, 2002 CanLII 46212 (ON SC), 2002 CanLII 46212, [2002] O.J. No. 1256, 2002 Cars­well­Ont 1159 (Ont. Fam. Ct.).

If any doubt remains concerning the court’s discretion to add parties, subsection 68(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended by S.O. 1991, c.46] incorporates subsection 66(2) and allows the Family Rules Committee to make rules even though they may alter or conform to the substantive law in relation to the “joinder of claims and parties”.  Thus, this court has jurisdiction to add a party to a child protection proceeding in an appropriate case, notwithstanding the apparent limitations of section 39 of the Child and Family Services Act;  see Children’s Aid Society of Hamilton-Wentworth v. Annette M. and William R., supra.

Since the court’s discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former rules continue to apply.  In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

  (i) whether the addition of the party is in the best interests of the child,
  (ii) whether the addition of the party will delay or prolong proceedings unduly,
  (iii) whether the addition of the party is necessary to determine the issues, and
  (iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.”

Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC) at 12-22.

November 23 – Large Property Settlements and the SSAG

“In any event, an award of spousal support does not simply aim to give a payee spouse an income sufficient to just meet expenses dollar for dollar. It is intended to give the payee spouse a lifestyle similar to that enjoyed during marriage. A recipient’s need is measured against the parties’ marital standard of living: Mason, at para. 201. The closer the economic union, the greater is the presumptive claim to an equal standard of living upon dissolution: Fisher, at para. 56.

…

Section 9.4 of the SSAGs addresses the payor’s needs and ability to pay. When applying the “without child support” formula (as in this case), it is important to look at the net income consequences of any particular amount of spousal support, especially for the payor. This is critical in longer marriages, where the formula percentages are higher.

Section 9.6 deals with property division and debts and states that:

Underpinning the Advisory Guidelines is a basic assumption that the parties have accumulated the typical family or matrimonial property for couples of their age, incomes and obligations, and that their property is divided equally under matrimonial property laws. Significant departures from these assumptions may affect where support is fixed within the ranges for amount and duration.

Further, “[i]f the recipient receives a large amount of property, the low end of the range might be more appropriate.”

Section 9 of the Spousal Support Advisory Guidelines: The Revised User’s Guide(Ottawa: Department of Justice Canada, 2016) further provides that property equalization “can influence location, mostly at the extremes. A large property settlement gives the spouses security and capital to fall back upon, likely leading to an amount lower in the range: Cochrane v. Cochrane, 2013 BCSC 2114.”

Berger v. Berger, 2016 ONCA 884 at 117, 122, 124-126

November 22 – Changing Child Support After Children Cease To Be Eligible

“As Strekaf J. observed in Buckingham, the interpretation of s. 15.1(1) in D.B.S. turned on the precise wording of that provision, which confers jurisdiction to make a child support order for any who were, “at the material time”, “children of the marriage”. The jurisdiction to vary a child support order under s. 17(1) is at large and is not limited by those words. I agree that we should look first to the words of the statute and that given this crucial difference between the words of s. 15.1(1) and 17(1), we are not bound to import the interpretation accorded to s. 15.1(1) by the Supreme Court in D.B.S. when interpreting s. 17(1).  Section 17(1) does not, by its language, limit the jurisdiction of the court to vary a child support order to the time period when the children are still “children of the marriage” and the decision in D.B.S. does not compel us to interpret the jurisdiction conferred by s. 17(1) as being precisely the same as that conferred by s. 15.1(1).

Section 17(1) puts parties who are subject to a s. 15.1(1) order on notice that the order may be changed. That puts them in a different position than parties for whom no s. 15.1(1) order has been made.

I also agree with Strekaf J. that allowing a court to vary an existing order after the children cease to be “children of the marriage” is consistent with the principles of child support. The principles at play here are first, that the amount of child support depends upon the income of the parents; second, that as the parents’ income changes, so too does the obligation to pay support. The third relevant principle must be balanced with the second, namely, that child support orders should, as far as possible, foster certainty, predictability and finality.

As D.B.S. explains, it is a basic principle of child support and the Federal Child Support Guidelines that the amount of support is essentially determined by the income of the payor parent. If an order imposes a child support obligation that does not correspond to the payor parent’s income, the order is not consistent with that principle. It is for that reason that D.B.S. permits retroactive orders in appropriate circumstances. Section 17(1) allows a court to vary an order where there has been a material change in circumstances to ensure that the child receives an amount of support commensurate with the income of the payor parent.

Certainty, consistency and finality are important considerations in relation to child support orders but they must be balanced with the concerns of flexibility and fairness.

As the Supreme Court explained in D.B.S., at para. 64, “parents should not have the impression that child support orders are set in stone…[T]here is always the possibility that orders may be varied when these underlying circumstances change: see s. 17 of the Divorce Act”. The court added: “The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.” A payor parent is not entitled to assume that his or her obligation is fixed for all time. If the payor’s income goes up, the support obligation may be increased. Similarly, the recipient parent cannot safely assume that he or she will always continue to receive the same amount to help support the children. If the payor parent’s income goes down, the amount of support may be decreased. As D.B.S. explains at para. 74: “As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes.”

How should these principles apply to the variation of child support orders after the children are no longer “children of the marriage”?

The first two principles favour giving a court the jurisdiction to vary the order, particularly in the case of increased support. I can see no reason why the court should be deprived of jurisdiction to consider the request of a recipient parent who struggled to support the children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage. The court faced with a variation application would, of course, have to be mindful of the principle that child support is the right of the child, not the parent and that once the children are no longer children of the marriage, they will not directly benefit from increased support. However, a regime that gave payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive. If the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation: see Simone v. Herres, at para. 27.

While the argument for allowing post-“child of the marriage” applications to decrease support is perhaps less compelling, if there is to be jurisdiction to entertain applications to increase, I agree with Buckingham that the law should adopt an even-handed approach and, from a jurisdictional perspective, treat payor and recipient parents the same way. If a court has jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined. Moreover, as I will point out, while the question of jurisdiction is one thing, the question of whether such applications should be allowed is quite another.

This brings me to the considerations of certainty, predictability and finality. I recognize that these are important values in the family law regime. The law should strive to be as certain and predictable as possible. The law should also discourage disturbing settled arrangements so that parties are encouraged to resolve their disputes and get on with their lives following family break-down, ideally without ever resorting to litigation for the sake of the children: see Louie v. Lastman (2001), 2001 CanLII 28065 (ON SC), 54 O.R. (3d) 286 at paras. 33-34 (S.C.), aff’d (2002), 2002 CanLII 45060 (ON CA), 61 O.R. (3d) 449 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 465.

But as I have already mentioned, the interests of fairness and the need to ensure that children get the support they deserve precludes a rigid approach that forbids changing support orders when there has been a change in circumstances. The very existence of s. 17(1) demonstrates that finality has its limits and that neither children nor parents can safely assume that support orders will never change. The interest of certainty and finality does not, in my view, justify erecting a rigid jurisdictional bar on variation applications simply because the children are no longer “children of the marriage”.

For these reasons, I conclude that neither the language of s. 17(1) nor the principles of child support require us to deny a court jurisdiction to vary an existing child support order or well established written or oral argument after the children cease to be “children of the marriage”.”

Colucci v. Colucci, 2017 ONCA 892 (CanLII) at 19-30