Siegel's Family Court Calendar

“Non compensatory entitlement occurs when the support obligation arises from the marriage relationship itself when a spouse is unable to become self-sufficient.  It can be based on need.  Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. The needs based support could, therefore, consider the recipient’s ability to become self-sufficient for reasons such as health.

In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. Gray v. Gray, 2014 ONCA 659.

In Ford v. Waldhart, 2022 ONSC 6277, the court said:

Entitlement on a needs basis will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson (“SSAGs”). In the case before me, there is a large discrepancy in the parties’ incomes (regardless of whether I accept the Husband’s calculations or the Wife’s calculations of the Wife’s income).I find that the Husband suffered an economic hardship as a result of the breakdown of the long-term relationship. There is no question that the Husband cannot afford to maintain a standard of living similar to that enjoyed by the parties during the relationship.”

            S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 42-44

“…s. 10 of the FLA provides that questions of title must be settled before the property can be equalized: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 29; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, at pp. 90-91.

Questions of title may not always be resolved by simply looking to legal title; even if a party does not hold legal title, they may advance a claim that they hold beneficial ownership in the property through a resulting or constructive trust.

A resulting trust exists when a party makes a financial contribution to the initial purchase of a property, but then gratuitously transfers their title (i.e. transfers their title for nothing in return) to the other party, with the intention that the transferee holds the transferor’s title for the transferor’s benefit. In other words, one party contributes to the purchase of the property but then transfers their interest in the property to the other party for them to hold “in trust” for the transferring party: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16-19.

When dealing with a matrimonial home, s. 14 of the FLA creates a presumption of a resulting trust when there has been a gratuitous property transfer from one party to the other: Korman, at paras. 26-27. However, as Cromwell J. has observed, “the presumption of resulting trust … is neither universal nor irrebuttable”: Kerr v. Baranow, at para. 20. Accordingly, when the presumption applies, the party holding the interest may rebut the presumption by showing that the gratuitous transfer was a gift and there was no intention for them to hold the transferred interest for the other party’s benefit.

A constructive trust may arise where there was no financial contribution to the initial purchase of the property or gratuitous transfer of any interest, but where the party holding title to the property would be “unjustly enriched” (i.e. would unfairly benefit) if they were permitted to retain full ownership and benefit over the property. It is premised on the idea that one party contributed a benefit to the property, and it would be unreasonable in law or equity to allow the other party to retain that benefit. Accordingly, a constructive trust is a remedy for unjust enrichment.

As the Supreme Court explained in Kerr v. Baranow, at para. 50: “Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”.

There is no presumption of a constructive trust in the FLA, therefore, the party making a claim for a constructive trust has the burden to establish that unjust enrichment exists. Only then may a court impose a constructive trust to remedy the unfair benefit.

Kerr v. Baranow, at para. 32, articulates the three elements to an unjust enrichment claim: (1) an enrichment; (2) a deprivation; and (3) the absence of a juristic reason for the enrichment. To obtain a constructive trust as a remedy, the claimant must also demonstrate a “sufficiently substantial and direct” link, “causal connection”, or “nexus” between the party’s contributions and the relevant property, and that a monetary award would be insufficient in the circumstances: at paras. 51-52.”

          Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 66-72

“A tape recording must meet the authenticity requirements of s.34.1 of the Evidence Act. However, here, the authenticity of the electronic record is not seriously challenged by the applicant. I agree with that because of the presumption of integrity created by that section when there is evidence that the device was operating properly. Here, the evidence of the respondent is that she used the recording application on her working iPhone.

However, it is argued that the prejudicial effect of the recording outweighs its probative value because not only is there no opportunity to cross-examine the declarant, but also because of the systemic prejudice that would arise from the admission of secretly obtained evidence in family cases considering how it tends to undermine the core values of modern family law of assuring the best interests of the child, reducing conflict, and of maintaining, restructuring and encouraging family relationships.

When I consider the evidence and the law submitted in writing and orally by the parties, I arrive at the following conclusions.

Dealing firstly with the audio recording, I ultimately find that the probative value of this recorded statement is slight in comparison to the prejudice that might otherwise result should it be admitted, and therefore conclude that it is inadmissible.

The probative value of this recording is directed towards the child’s best interest, her well-being, and whether she is harmed while in the presence of her father. However, the recording is of very poor quality and it is difficult to hear what the child is saying. Too much reliance would be placed on the interpretation of this recording made by the respondent at trial. As a result, it is difficult to assess whether the child spoke spontaneously, all of which impacts not only the reliability, but at the residual stage of the analysis, the probative value of the recording.

As indicated by my colleague, Justice Fryer in Wilson v. Sinclair, 2021 ONSC 8345, at paras 18-19:

[18]      The basic test for admitting this evidence has not changed.  Rather, since the decision in Reddick, the court has placed a greater emphasis and weight on the presumptive, significant prejudice that must be overcome by a party seeking to admit surreptitious recordings.  See Scarlett v. Farrell, 2014 ONCJ 517. [emphasis added]

[19]      I concur with Kurz J. when he states:  the “presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children”:  Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at para 41. [emphasis added]”

            Ali v. Obas, 2022 ONSC 814 (CanLII) at 8-13

“It is well settled that when determining how much weight to give a child’s wishes, a court is to consider: 1) whether the parents are able to provide adequate care; 2) how clear and unambivalent the wishes are; 3) how informed the expression is; 4) the age of the child; 5) the child’s maturity level; 6) the strength of the wish; 7) how long they have expressed their preference; 8) the practicalities of the situation; 9) parental influence; 10) overall context; and 11) the circumstances of the preference from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42.”

            J.N. v. C.G., 2023 ONCA 77 (CanLII) at 32

“When a payor’s income exceeds $350,000, courts must take an individualized, fact-specific analysis: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 106.”

            Sne v. Sne, 2023 ONSC 566 (CanLII) at 50

“At paragraph 9 of Davis v. Nusca, 2003 CanLII 2301 (ON SCDC), Justice Benotto, writing for the Divisional Court in an appeal from a motion wherein a mother had been granted leave to move to Sweden with two small children before trial, noted that: “the status quo relates not so much to a location as to the continuity of care.”

At paragraph 26 of Grant v. Turgeon, 2000 CanLII 22565 (ON SC) Justice MacKinnon reasoned that a status quo required consistent residency and was difficult to discern where there was “factual controversy as to when the children were with each parent.”

Here, there is no such factual controversy: Deverick has been in Mother’s primary care and has spent alternate weekends and a mid-week evening visit with Father continuously for more than three years.  From Deverick’s perspective – which is the court’s focus in assessing his best interests – he lives primarily with his Mother in Kitchener and visits his Father in Ingersoll.  I find that this is the status quo.

What then, is the test for changing the status quo on motion?  At paragraph 26 of S.H. v. D.K., 2022 ONSC 1203, Justice Dambrot writing for the Divisional Court put it this way (internal citations omitted):

[26]           Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A.K. and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests.  That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”

Thus, the court is to exercise caution, and to generally maintain the status quo unless compelling reasons necessitate a change to meet a child’s best interests.  The reason is simple:  children ought not to be bandied about between households while the litigation unfolds.  Family circumstances fluctuate, and the wheels of justice turn slowly: from a child-focused public policy perspective, ever-changing parenting plans are not in the best interests of children whose lives have already been completely disrupted by their parents’ separation.

I do part ways with Justice MacKinnon in concluding that the underlying source of the status quo is irrelevant.  If it arises de jure, meaning from an existing Order of the Court (especially a Final Order), then a change in the parenting structure should be made in only the clearest of cases.  Greater flexibility may be exercised if the status quo arises de facto, meaning on the basis of lived reality, having regard to the simple fact of delays inherent in post-separation negotiation and litigation.  In my view, considerations applicable to the assessment of changing a status quo de facto, include:

• • • • • whether the parent seeking the change objected to the arrangement at its outset;
        • what steps were taken by the parent seeking the change, including attempts at negotiation or mediation;
        • whether the parent seeking the change commenced litigation quickly following the hardening of the parties’ positions;
        • how closely the parenting proposal made by the parent objecting to the status quoresembles the children’s lived experience pre-separation or, if applicable, immediately post-separation;
        • how much time has elapsed;
        • how each parenting proposal impacts upon the children’s day-to-day lived experience; and
        • the children’s views and preferences, where they can be reasonably ascertained.

Stanway v. Stanway, 2024 ONSC 477 (CanLII) at 12-17

“The decision whether to grant an adjournment is highly discretionary.  Roberts v Miller 2015 ONCA 500 (ON CA); Martin v Sansome 2014 ONCA 14 (ON CA); D.M. v. CAS of Ottawa, 2021 ONSC 8360 (SCJ).

An adjournment request must be considered in the context of the primary objective of the Family Law Rules which provides:

Primary objective

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing with cases justly

(3) Dealing with a case justly includes,

(a)  ensuring that the procedure is fair to all parties;

(b)  saving expense and time;

(c) dealing with the case in ways that are appropriate to its  importance and complexity; and

(d)  giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

Duty to promote primary objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

In Lakhtakia v Mehra 2022 ONSC 201, in an Appendix, Justice Pinto summarized the law with respect to adjournments:

In Konstan et al. v. Berkovits et al., 2021 ONSC 6749, at paras. 14-15, Diamond J. set out the legal test that a trial judge must apply when faced with an adjournment request. Although Konstan was a civil case and not a family law decision, I find that the same test applies:

[14]  All parties agree that a judge’s decision to adjourn or not adjourn a trial is highly discretionary. In Ariston Realty Corp. v Elcarim Inc.  2007 CanLII 13360 (ONSC), Justice Perell set out a helpful list of factors and principles for the Court to consider when exercising its discretion to grant or refuse an adjournment:

“Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:

• • • • • • • • • • the overall objective of a determination of the matter on its substantive merits;
                  • the principles of natural justice;
                  • that justice not only be done but appear to be done;
                  • the particular circumstances of the request for an adjournment and the reasons and justification for the request;
                  • the practical effect or consequences of an adjournment on both substantive and procedural justice;
                  • the competing interests of the parties in advancing or delaying the progress of the litigation;
                  • the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
                  •  whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
                  • the need of the administration of justice to orderly process civil proceedings; and
                  • the need of the administration of justice to effectively enforce court orders.

Both parties also rely upon the following comments of the Court of Appeal for Ontario in Turbo Logistics Canada Inc. v. HSBC Bank Canada 2016 ONCA 222 (CanLII):

“The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:

Laskin J.A.’s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.

The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.”

Khimji v. Dhanani was further considered by the Court of Appeal in Toronto-Dominion Bank v. Hylton, [2010] O.J. No. 4725 where the court stated:

[38]         Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.

[39]         Once again, the fact that a party is self-represented is a relevant factor.  That is not to say that a self-represented party is entitled to a “pass”.  However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities.  Linhares de Sousa J. provided a helpful list of ways to assist self-represented litigants in Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 R.F.L. (6^th) 62 (Ont. S.C.), at para. 65:

[N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question.  This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjournments and even the raising of substantive and evidentiary issues. [Emphasis added.]

In D.M. v. CAS of Ottawa, 2021 ONSC 8360 the Divisional Court focussed on procedural fairness and due process in summarizing the considerations in relation to adjourning a hearing:

[240]      Whether to grant or refuse an adjournment of a hearing is a matter of judicial discretion. Factors for a court to consider in deciding to grant or refuse an adjournment, include:

(a) the overall objective of a determination of the matter on its substantive merits;

(b) the principles of natural justice;

(c) that justice not only be done but appear to be done;

(d) the particular circumstances of the request for an adjournment and the reasons and justification for the request;

(e) the practical effect or consequences of an adjournment on both substantive and procedural justice;

(f) the competing interests of the parties in advancing or delaying the progress of the litigation;

(g) the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;

(h) whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;

(i) the need of the administration of justice to process civil proceedings in an orderly manner; and

(j) the need of the administration of justice to enforce court orders effectively.  That a party is self-represented is a relevant factor in the exercise of the court’s discretion to grant or refuse an adjournment because a part of the court’s obligation is to ensure that all litigants have a fair opportunity to advance their positions.”

          Angle v. Angle, 2024 ONSC 622 (CanLII) at 13-17

“To obtain an award for unjust enrichment arising from a joint family venture, a claimant must show two things: first, a joint family venture; and second, a link between the claimant’s contribution to the venture and the accumulation of assets or wealth: see Kerr v. Baranow, at para. 87.

…

In Kerr v. Baranow, Cromwell J. said that to be entitled to a remedy for unjust enrichment arising from a joint family venture, the claimant must show “a link between his or her contributions to it and the accumulation of assets and/or wealth” (at para. 100). In other words, the family’s accumulation of wealth must have resulted from the parties’ mutual efforts. Cromwell J. wrote, at para. 102:

Once the claimant has established his or her contribution to a joint family venture, and a link between that contribution and the accumulation of wealth, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share.”

            Farkas v. Bedic, 2016 ONCA 82 (CanLII) at 35, 42

The Court of Appeal in Gray v. Gray 2017 ONCA 100 at paras. 26-31 in the course of holding that Rule 25(19) of the Family Law Rules encompassed the setting aside of an order, opted for a broad interpretation of this provision. Part of the reason was the unique challenges of litigation involving a family. The Rules are to “provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues”: para. 31, quoting with approval from Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11.

Although there must, consistent with this philosophy, be some flexibility incorporated into application of the Rules, ss. e cannot be stretched to include what happened in this instance.

Several judges have seized upon the characterization of the breadth of Rule 25(19) in Gray in order to read in a residual power additional to the five criteria set out in the provision. In establishing this residual power, the case law has drawn upon the law with respect to setting aside a default judgment in the civil context: see Gray v. Gray, 2017 ONSC 5028 at paras.; E.S.R. v. R.S.C., 2019 ONCJ 381 at paras. 62-70; Benarroch v. Abitbol et al, 2018 ONSC 5964 at paras. 28-31.

These cases have relied on the leading case for setting aside a default judgment in Ontario, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. In her oral submissions, counsel for the Applicant made reference to the pertinent factors for setting aside a default judgment at paras. 48-49 of Justice Gillese’s reasons in that case,

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

(c) whether the facts establish that the defendant has an arguable defence on the merits.

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

There factors are cumulative and must be examined together in order to determine whether a case for setting aside has been established. The Mountain View factors, in my view, incline strongly away from the relief sought by the Respondent.”

          Singla v. Tayal, 2023 ONSC 688 (CanLII) at 10-14

“The appropriate method of calculating the monetary remedy for an unjust enrichment claim must be determined.  Quantification of a monetary remedy may be performed on either a value received, or value survived basis. Value received refers to the value that a person has received from the other person’s contributions, while value survived refers to the value that the other person has retained as a result of those contributions.

When the contributions of both parties over time have resulted in an accumulation of wealth and following the breakdown of the relationship one party retains a disproportionate share of the assets that are the product of their joint efforts, the relationship may be characterized as a “joint family venture”.  As Cromwell J., noted in Kerr v. Baranow, at para. 7:

[7]         …[W]here both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality.

For damages to be quantified on a joint family venture basis, a claimant must show two things: first, a joint family venture; and second, a link between the claimant’s contribution to the venture and the accumulation of assets or wealth: Farkas v. Bedic, 2016 ONCA 82 (CanLII), at para. 35, citing Kerr v. Baranow, at para. 87.  This is not intended to be a line-by-line bookkeeping exercise.  In Kerr v. Baranow, at para. 48, Justice Cromwell recognized the challenge associated with the parties and the court trying to “create, retroactively, a notional ledger to record and value every service rendered by each party to the other”.  This applies equally to monetary contributions made over time.

At para. 81 of Kerr v. Baranow, Cromwell J., noted that:

[81]…The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure.  Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”.  In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts.  The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.”

To determine whether the parties have been engaged in a joint family venture, the circumstances of each relationship must be considered.  The court is required to consider all relevant circumstances, including factors relating to mutual effort, economic integration, actual intent, and priority of the family.  The court applies these factors to determine whether the parties formed a true partnership, working jointly towards important mutual goals:  Farkas v. Bedic, at para. 36, citing Kerr v. Baranow, at para. 89.

Generally, when considering a remedy based on joint family venture, it is appropriate to look to all the family assets rather than just one of them to determine the value of a claimant’s contributions to the family venture:  Kerr v. Baranow, at para. 68.  Having said this, courts have considered the joint family venture concept with respect to one asset alone:  Kamermans, at para. 55.

Overall, the remedy should match, as best as possible, the extent of the enrichment unjustly retained:  Kerr v. Baranow, at para. 73.”

            Mansfield v. Kolinski, 2024 ONSC 553 (CanLII) at 67-73