“Where there is such a degree of friction between equally competent spouses so as to make joint decision-making impossible, custody should be awarded to the parent who is more likely to ensure that the child reaps the benefit of both households: see Huisman v. Stefaniw (1997), 26 R.F.L. (4th) 406 (Ont. Gen. Div. Fam. Ct.); Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329 (Ont. Gen. Div. Fam. Ct.); and Wilson v. Wilson, 2015 ONSC 479 (CanLII).”
December 10, 2021 – Unjust Enrichment and Remedies
“The Supreme Court of Canada, in Rathwell v. Rathwell, (1978), distinguished between the remedies of resulting trust and constructive trust in the context of claims made where one spouse had become enriched at the expense of the other: 1978 CanLII 3 (SCC). In resulting trusts, courts require a common intention, manifested by words or acts, that one of the parties is acquiring property as a trustee whereas, in constructive trusts, no intention is required.
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Where the court finds that there has been an unjust enrichment in relation to the acquisition or preservation of property, it exercises discretion as to whether to order a payment of money to the aggrieved party, or an actual interest in property. A constructive trust interest in the property itself is available only when a monetary remedy is inadequate and where there is a link between the services rendered and the property in which the trust is claimed: Peter v. Beblow, 1993 CanLII 126 (SCC). A constructive trust is appropriate, for example, where there is a finding of fraud in relation to the particular property: Soulos v. Korkontzilas, 1997 CanLII 346 (SCC).”
December 9, 2021 – Life Insurance
“In Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, the Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:
(a) The Divorce Act does not have a provision like s. 34(1)(k) of the Family Law Act, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death;
(b) Despite not having the specific provisions, the Court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment, to be binding on the payor’s estate; and
(c) The factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.”
December 8, 2021 – What Does “Success” Mean When Assessing Costs?
“The issue as to who was the successful party is an important one, given that Rule 24(1) provides that there is a presumption that the successful party is entitled to costs. I will, therefore, begin my analysis with that issue.
At para. 14 of Negin, Faieta J. offers the following definition of “successful”:
A person is “successful” if he or she accomplishes an aim or purpose: See Concise Oxford English Dictionary, (12th ed. 2011) at p. 1439. Success is assessed by comparing the terms of the order made against the relief requested in the pleadings and, where applicable, against the terms of an offer to settle: C. (A.) v. K. (G.), 2015 ONCJ 399, 64 R.F.L. (7th) 496 (Ont. C.J.), para 17; Johanns v. Fulford, 2010 ONCJ 756, 15 R.F.L. (7th) 148 (Ont. C.J.), para 13.”
December 7, 2021 – Motion For Recusal
“Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks “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”: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 31.”
December 6, 2021 – Section 56(4), Family Law Act
“The appellant argues that the trial judge erred by placing an onus on her to inquire as to the existence and value of the respondent’s assets. While incomplete disclosure rightfully attracts the risk that an agreement might be set aside, s. 56(4) [of the Family Law Act] makes it clear that failure to disclose even a significant asset does not necessarily attract that consequence.
The appellant also argues that the trial judge erred in determining whether the non-disclosed assets were “significant”.
The trial judge is said to have answered the wrong question – whether the non-disclosure was significant – instead of whether the non-disclosed assets were themselves significant. But this seems to be a purely semantic distinction. It is the significance of the non-disclosed assets that makes the non-disclosure itself significant. Determining the significance of non-disclosed assets is not, as the appellant argued, the purely mathematical exercise of comparing the value of the non-disclosed assets against the value of the disclosed assets. Rather, the trial judge appropriately relied on case law finding that “the term significant must refer and be measured in the context of the entire relationship between the parties” (see Currey v. Currey (2002), 2002 CanLII 49561 (ON SC), 26 R.F.L. (5th) 28 (Ont. S.C.), at para. 17), and that significance “should not be considered in isolation of all of the surrounding circumstances” (see Bruni v. Bruni, 2010 ONSC 6568 (CanLII), 104 O.R. (3d) 254, at para. 102).
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Furthermore, the finding of significance, as the trial judge correctly stated, is only the first step in a s. 56(4) analysis: Virc v. Blair, 2014 ONCA 392 (CanLII), 119 O.R. (3d) 721, at para. 52. Once a party seeking to set aside a separation agreement has established that s. 56(4) applies, the court must still determine whether it should exercise its discretion to set aside the agreement. The criteria set out in Dochuk v. Dochuk (1999), 1999 CanLII 14971 (ON SC), 44 R.F.L. (4th) 97 (Ont. Gen. Div.), at paras. 18-19, provide a useful guide for this exercise of discretion.”
December 3, 2021 – The Law of Defamation
“A defamation claim requires a claimant to prove three elements, on a balance of probabilities: (i) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (ii) the words in fact referred to the plaintiff; and (iii) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.”
December 2, 2021 – Retroactive Child Support In The Age of Michel v. Graydon
“The Supreme Court of Canada provided further directions when considering retroactive child support claims in its decision in Michel v Graydon 2020 SCC 24 (CanLII), 2020 S.C.C. 24. These include:
o The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
o Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).
o Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and recover monies owed but unpaid.
o Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (par. 132).
o The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it because child support is a continued obligation owed independently of any statute or court order. While a court may forgive a child support debt, it remains true that such a debt is owed from the moment it ought to have accrued – no matter the length of the delay.
o Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their income increases. At any given point in time, the payor knows what their support obligation should be, while the recipient parent may not (par. 32). Failure to disclose material information is the cancer of family law litigation (par. 33).
o The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor’s interest in certainty (par. 34).
o The effective notice date is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (par. 36). In D.B.S., the court established that the date to which a child support order should be retroactive is, by default, the date when the effective notice was given to the payor (par. 118). This is the date as of which the child support obligation ought to be enforced. It is explicit in the majority’s judgment that the date of effective notice constitutes a compromise between the date of the recipient’s Application for child support and the date the amount of child support ought to have increased (par. 127).
o D.B.S. set a “soft limit” or rough guideline of recovery of three years (par. 127).
o The idea behind some form of notice is fairness. It is about having and sharing accurate information so everyone can meet their legal obligations and plan accordingly. Payors should rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are owed (par. 128).
o It is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support by the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130 and 131).”
December 1, 2021 – Test For Summary Judgment in Child Protection
“The Family Law Rules, O. Reg. 114/99, allow for a matter to be resolved without trial by way of a motion for summary judgment. The moving party (FACS) has the burden of proof and shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial: see r. 16(4).
In response to the affidavit or other evidence served by FACS, the responding party may not rest on “mere allegations or denials” but shall set out specific facts showing that there is a “genuine issue for trial”. If the evidence supports that there is no genuine issue for trial, the court is mandated by r. 16(6) to make a final order: see rr. 16(4)-(4.1) and (6). In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada established a new approach to summary judgment motions, the details of which are described further below. In response to Hryniak, new powers were added under rr. 16(6.1) and (6.2) that permit the court to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial.
In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80, the Court of Appeal for Ontario provided the following concise summary of the approach that the court should take to summary judgment within the context of child protection litigation, considering the decision in Hryniak:
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- Hryniak’sfairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
- The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
- The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
- Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons(2006) (online) established by the Canadian Judicial Council.
- The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
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Hyrniak confirmed that the summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make a determination. Hyrniak states that the judge must first determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to those facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: see Hryniak, at para. 4.
In child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage the rights of a vulnerable segment of our society under the Canadian Charter of Rights and Freedoms. Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings, which apply the objectives of the CYFSA, including the best interests of the child, and which promotes Hryniak’s principle of reaching a fair and just determination on the merits: see Kawartha-Haliburton Children’s Aid Society v. M.W, at para. 76.
A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospects than existed at the time of the Society’s removal of the child from their care and that they have developed some new ability as a parent: see Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.); Children’s Aid Society of Toronto v. C.G., 2012 ONCJ 423, at para. 98.
Children before the court deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care but are unable to take the steps to translate their proposals into a plausible reality: see Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, at para. 7.”
November 30, 2021 – Defamanation
“Defamation is established where the words complained of: 1) are defamatory, in that they would tend to lower a person’s reputation in the estimation of reasonable people; 2) are about the plaintiff; and 3) have been published to a third party. To determine whether the words complained of are defamatory, the plaintiff must show the main thrust, or “defamatory sting,” of those words. In every defamation action, the trier of fact must determine the defamatory sting from both the plain meaning of the words complained of and from what the ordinary, reasonable person would infer from them in the context in which those words were published: Cusson v. Quan, 2007 ONCA 771 at para 34.
What the ordinary man would infer without special knowledge has generally been called the “natural and ordinary meaning” of the words. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.
The defamatory sting is not determined on a narrow reading of the words complained of in isolation. Context is crucial, as it informs what meaning the ordinary person will infer from the words complained of: the words must be given their meaning in context. The statements do not stand by themselves, but must be read in light of what has preceded them and what follows.”