Siegel's Family Court Calendar

“The Arbitration Act entrenches the primacy of arbitration proceedings over judicial proceedings once the parties have entered into an arbitration agreement: Cityscape Richmond Corp. v. Vanbots Construction Corp. 2001 CanLII 24155 (ON CA), [2001] O.J. No. 648, at para 19 (“Cityscape”); Haas v. Gunasekaram, 2017 ONCA 744, at para 12 (“Haas”); and TELUS Communications Inc. v. Wellman, 2019 SCC 19, at 63. Arbitration clauses are to be given a large, liberal and remedial interpretation to effectuate the dispute resolution goals of the parties: Ibid, at para 19.

The courts have limited ability to intervene in disputes that fall under the Arbitration Act, as provided for in Section 6 of the Act which states that:

6. No Court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations;

2. To ensure that arbitrations are conducted in accordance with arbitration agreements;

3. To prevent unequal and unfair treatment of parties to arbitration agreements; and

4.  To enforce awards.

As held by Trafford, J. in Cityscape,

“this legislation provides a forceful statement signalling a shift in public policy and attitude towards the resolution of disputes in civil matters through consensual dispute resolution mechanisms. See Ontario Hydro v. Dennison Mines Limited, [1992] O.J. No. 2948 (Blair, J.). The Act is designed to encourage parties to resort to arbitration as a method of resolving their disputes in commercial and other matters and to required them to hold to that course once they have agreed to do so….

Section 8(2) of the Act empowers the arbitral tribunal to determine any questions of law that arise during the arbitration. Section 17(1) of the Act empowers the tribunal to decide questions of its own jurisdiction including questions respective the existence or validity of the arbitration agreement itself. Section 31gives the tribunal broad powers to decide disputes in accordance with the law and equity and makes reference to the power to order specific performance, injunctions and other equitable remedies.

Similarly, the Supreme Court of Canada in TELUS Communications Inc. v. Wellman, noted that s. 6 of the Arbitration Act, “signals that courts are generally to take a “hands off” approach to matters governed by the Arbitration Act.”

Section 7(1) of the Arbitration Act directs courts to give effect to arbitration agreements. This section of the Act sets the general rues that the court “shall” stay a proceeding covered by an arbitration agreement. Section 7(1) provides:

“If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding”. [emphasis added]

Subsection 17(1) of the Arbitration Act bestows upon arbitral tribunals the power to determine any questions as to the existence and validity of the arbitration agreement, also known as the principle of competence-competence: Section 17(1) of the Arbitration Act states, (1) “An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement; (2) if the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be valid.” This section of the Act reinforces the legislation’s clear intent to promote and support arbitration clauses.

As set out in Haas, the analytical framework following by courts in determining whether a stay under Section 7 of the Arbitration Act ought to be ordered, is as follows:

1. Is there an Arbitration Agreement?

2. What is the subject matter of the dispute?

3. What is the scope of the arbitration agreement?

4. Does the dispute arguable fall within the scope of the arbitration agreement?

5. Are there grounds on which the court should refuse to stay the action?”

            Pezo v. Pezo et al., 2021 ONSC 5406 (CanLII) at 42-48

“Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances.  Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended.  There are two ways that the federal regime allows courts to affect the quantum of retroactive awards (D.B.S., par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., par. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award.  Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).

The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable.  In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.  However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent.  Where the payor parent does not do so, and thus engages in blameworthy behaviour, there is no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing (D.B.S., par. 125).”

J.C.M. v. K.C.M., 2016 ONCJ 475 (CanLII) at 74-75

“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22).  The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)).  Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person.  In the case of a child, family violence includes the direct or indirect exposure to such conduct.

Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.  Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence.  For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

1. 1. 1. Making numerous unsubstantiated allegations against the other party;

1. 1. 2. Unilaterally changing court-ordered parenting time terms without justification; and,

1. 1. 3. Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187).”

     Malone v. Cappon, 2023 ONSC 4344 (CanLII) at 120-121

“The father further argues that if L.G. resides with the maternal grandmother, he should not be required to pay child support to the mother.  I disagree.  In Lefebvre v. Gowan, 2014 ONSC 6221 (CanLII), Justice Robert Smith stated:

[9]     The maternal grandparents have provided assistance to their daughter by allowing the Respondent mother to reside at their residence with Taylor and by providing the funds required by the Respondent mother to pay for prescription medications, and psychological counselling for Taylor. I find that the fact that the maternal grandparents have assisted their daughter in the above manner does not remove the Applicant father’s responsibility to provide child support and contribute to special expenses for a child for whom he is in loco parentis.

[Emphasis added]

The Ontario Court of Appeal approved Lefebvre v. Gowan in Squires v Crouch 2016 ONCA 774 (CanLII), when upholding a trial judgment that awarded child support to a mother although the maternal grandmother was paying some of the grandchildren’s s. 7 expenses.

In Wright v. Conway, 2018 ONSC 133 (CanLII), at paras. 50 to 55, Jarvis J., after reviewing the relevant authorities, concluded, “In none of the authorities referenced was a parent relieved of their child support responsibility in circumstances where the child remained a dependent and attended school but lived with another family member.”

            T.G. v. S.G., 2020 ONSC 4662 (CanLII) at 19-21

“The test to determine the capacity to consent to treatment is set out in s. 4(1) of the HCCA which provides that:

(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Therefore, there are two parts of this test:

• • • the person is able to understand the information relevant to making the decision about the treatment; and,
    • the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.

The inability to understand the information relevant to making a decision about treatment must be as a result of a mental disorder.  As stated in Starson v. Swaze:

[A] patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity.  The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences.  For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences.  Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences.  A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision: Starson v. Swaze, 2003 SCC 2, at para. 81.”

            A.B. v. Shafro, 2021 ONSC 5670 (CanLII) at 19-21

“An award for retroactive child support should generally be retroactive to the date when the recipient parent gave the payor parent “effective notice” of their intention to seek an increase in support payments: Hachey, at para. 49, citing S. (D.B.) v. G. (S.R.), 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 (S.C.C.).

The factors to be considered when deciding whether a variation in child support should be retroactive or not, include:

1. 1. 1. a reasonable excuse for why support was not sought earlier;
      2. the conduct of the payor parent;
      3. the circumstances of the child; and
      4. any hardship that may be occasioned as a result of a retroactive order: Hachey, at para. 57.

Where the court determines that a retroactive order is appropriate, there are typically four dates to choose from in terms of the date of retroactivity:

1. 1. 1.  the date when the application was made to the court;
      2. the date when “formal notice” was given to the payor parent (e.g., service of a motion to change);
      3. the date when “effective notice” was given to the payor parent; and,
      4. the date when the amount of child support should have been increased based on the changed circumstances: see Hachey, at para. 59.

If there is retroactivity, the award should generally be retroactive to the date of “effective notice”. However, the court usually does not go back more than three years before “formal notice” was given unless the payor parent has engaged in blameworthy conduct: see Hachey, at paras. 60-61 and 93-94.”

            Metcalfe v. Metcalfe, 2022 ONSC 4471 (CanLII) at 60-63

“The “clean hands doctrine” comes from the 18^th century maxim that “he who comes to equity must come with clean hands”: see e.g., Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 22; Bolianatz Estate v. Simon, 2006 SKCA 16, 264 D.L.R. (4th) 58, at para. 116; Dering v. Earl of Winchelsea (1787), 1 Cox 318, 2 E.R. 1184, at pp. 319-320.

Doug submits that Melissa’s improper withdrawals should therefore have disentitled her to the equitable remedy granted by the trial judge. We disagree that the “clean hands” doctrine applies in the circumstances of this case.

First, the trial judge did not grant equitable relief. As we earlier concluded, the trial judge made no error in finding that there was an agreement between Doug and Melissa to increase Melissa’s common shareholdings to 50%. This was not the granting of equitable relief but the finding by the trial judge of the existence of an agreement between the parties and the granting of the relief that flowed from that agreement.

Moreover, because Melissa’s withdrawals from the company and from Doug’s line of credit are unrelated to the proper division of the shares, Melissa’s conduct would not fall within the application of the “clean hands” doctrine: see e.g., BMO Nesbitt Burns Inc. v. Wellington West Capital Inc. (2005), 2005 CanLII 30303 (ON CA), 77 O.R. (3d) 161 (C.A.), at para. 27; Toronto (City) v. Polai, 1969 CanLII 339 (ON CA), [1970] 1 O.R. 483 (C.A.), at pp. 493-494, aff’d 1972 CanLII 22 (SCC), [1973] S.C.R. 38.

In any event, the “clean hands” doctrine does not automatically disentitle a party with “unclean hands” from obtaining any relief. Equitable principles are not based on the application of strict rules but are applied at the judge’s discretion and are “crafted in accordance with the specific circumstances of each case”: Pro Swing Inc., at para. 22. As this court observed in Sorrento Developments Ltd. v. Caledon (Town), 2005 CanLII 2549 (Ont. C.A.), at para. 5: “It is a matter of discretion for the trial judge whether to refuse to grant equitable relief on the basis that a litigant has not come to court with clean hands”. Here, the trial judge carefully considered the circumstances surrounding both withdrawals.”

            Hrvoic v. Hrvoic, 2023 ONCA 508 (CanLII) at 14-18

“In the motion before the court, Nathalie Mouralian asks the court to appoint a “litigation guardian counsel” for the purpose of assisting her with her appeal in the underlying proceeding. The evidence in support of her motion shows that she suffers from serious mental health challenges as well as a “brain injury/severe concussion” suffered from an accident in 2021.

The responding party does not oppose the motion.

Nonetheless, the motion is dismissed for two reasons.

First, in answer to the court’s questions, Ms. Mouralian confirmed that she needs counsel, not simply a litigation guardian, to assist her with the underlying appeal. I have not been pointed to any authority giving this court the power to appoint a litigation guardian counsel.

Second, if Ms. Mouralian is seeking the appointment of a litigation guardian pursuant to r. 7.04(1) of the Rules of Civil Procedure, it is not clear to me that the provision gives this court the jurisdiction to make such an appointment. Assuming that it does, s. 7.04(1)(b) is the applicable provision. Pursuant to that provision, the court must be satisfied that Ms. Mouralian “is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding”. The medical evidence filed in support of the motion does not contain a medical opinion to that effect. Instead, the evidence of Ms. Mouralian’s treating psychiatrist sets out her psychiatric diagnoses and other medical problems.”

            Mouralian v. Groleau, 2023 ONCA 513 (CanLII) at 1-5

“The parties consent to an urgent order requiring Toronto Children’s Aid Society to provide them with a copy of its file including a staff report concerning the parties and the issues in this proceeding by August 1, 2023.

The next case conference in this proceeding is scheduled for August 11, 2023.

Toronto Children’s Aid Society has advised the parties that its document disclosure department is backlogged. It cannot provide the parties with a copy of its file and the report about their family before the case conference.

I am told however, that people at the Toronto Children’s Aid Society have advised the respondent and one of the respondent’s lawyer’s offices that they could expedite delivery of the report in time for the case conference if the court ordered it to do so.

So, the parties ask me for that order.

On what basis am I asked to make an order against Toronto Children’s Aid Society?

If I am to order Toronto Children’s Aid Society to do something, do I not first need to find that they are in breach of a law requiring it to do so?

By what standards am I to assess the requirement for such an order?

Are counsel inviting me to make an assessment of the urgency of this case to determine if the parties truly need their file and report more than others in the queue at Toronto Children’s Aid Society? A simple consent order tells me nothing of the urgency for the file and the report either in this case or as compared to others in the queue.

Moreover, isn’t it for Toronto Children’s Aid Society to triage its own workflow? Am I being asked to consider if Toronto Children’s Aid Society is meeting its disclosure obligations? Is that a performance standards issue or perhaps a staffing issue? Is it an issue of prioritization of resource allocation? None of that is possibly before me.

Am I being asked for an order simply to give plausible deniability to a Toronto Children’s Aid Society clerk who can blame the court for deferring disclosure to others while jumping this report to the top of the disclosure pile?

A court order is not a shield behind which to hide institutional issues. If Toronto Children’s Aid Society cannot disclose its files quickly, the answer is not for clients who can afford lawyers to obtain artificial consent orders to expedite their cases ahead of all others. Toronto Children’s Aid Society should not be asked to prioritize disclosure to the squeaky wheel or the well-heeled. Toronto Children’s Aid Society is able to prioritize disclosure requests for those with early upcoming case conferences if it wishes to do so. There is no justiciable issue presented to the court in this motion.

If the parties seek relief against Toronto Children’s Aid Society, they may move on notice to it and with proper evidence and legal support for the relief sought. Moreover, if counsel are seeking to require a public entity to comply with a legal duty with which it refuses to comply, they may also wish to consider whether the proper application is for judicial review in the nature of mandamus or a mandatory order.”

            Jamali v. Parsamehr, 2023 ONSC 4324 (CanLII) at 1-13

“Under the law of privilege, there are authorities that hold where a party’s knowledge is in issue, that party must reveal what he knows, even if the knowledge is  from his solicitor. At the same time, those authorities recognize that disclosing this knowledge from that source is inherently problematic as the solicitor-client communication itself is privileged unless it falls within an exception. One such exception is where the initiating party contesting disclosure has put into issue the question of what legal advice he did or did not receive, thus waiving the solicitor-client privilege that might otherwise applied.  See Jonas v. Pacitto, 2020 ONCA 727 (CanLII).

When determining whether privilege has been or should be deemed to be waived, the court must find the balance between the interests of full disclosure to the parties involved in the adversarial process to ensure a fair trial (or motion for summary judgment), and the preservation of solicitor and client privilege. When a party places her or his state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.  This waiver can arise where the document (or evidence) is used as the basis for a claim or defence: James v. Maloney, 1972 CanLII 518 (SCJ).”

            Capar v. Vujnovic, 2021 ONSC 4713 (CanLII) at 52-53