Siegel's Family Court Calendar

“The appeal must be allowed. In my view, the motion judge’s reasons do not adequately explain how she resolved the conflicts in the evidence, nor do they support the conclusion that she reached.

The motion judge was presented with two very different versions of what the parties had agreed to. Faced with this conflict in the evidence, the judge determined that the respondent’s version of events should be preferred over the version advanced by the appellants. There is little explanation as to why she rejected the appellants’ version other than her finding that, because of the respondent’s limited means, it made little sense for her to have invested all of her money in the Property.

There was, however, substantial affidavit evidence supporting the appellants’ version of events, including their evidence that their wills were amended to give effect to the respondent’s life interest and the fact that they paid all of the Property’s expenses from the outset. The motion judge’s reasons do not explain why this evidence was rejected nor does the motion judge make and explain credibility findings. Given the important issues which turn on credibility in this case, the failure to make such findings was an error. If credibility cannot be assessed on a written record, that should indicate that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Care must be taken “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.”

         Lesenko v. Guerette, 2017 ONCA 522 (CanLII) at 17-19

“The identification of the valuation date involves the determination of two issues.  First, the court must decide when the parties separated.  Second, it must determine the point at which there was no reasonable prospect that the parties would resume “cohabitation.”   As previously indicated, at the first stage of the analysis, the principles and factors relevant to deciding whether parties are separate and apart or cohabiting in a conjugal relationship for the purposes of divorce entitlement and spousal support apply likewise to the inquiry as to when the parties separated for valuation date purposes (see also Rosseter, at para. 9; Tokaji, at para. 3).   With respect to the second stage, as indicated above, s. 1(1) of the Family Law Act  provides that “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.  Accordingly, at the second phase of the analysis, the task is to determine the point at which there was no reasonable prospect that the parties would resume living together in a conjugal relationship.  The notion of “reasonableness” is at the heart of this analysis.  Half-hearted suggestions or discussions about possible reconciliation will not necessarily move the valuation date forward in the absence of sincere action by the parties to put their relationship back on track (Strobele, at para. 32). As Beckett J. stated in Torosantucci, a reasonable prospect of resumption of cohabitation “must be more than wishful thinking on the part of either party.   There must be more than residual affection that may linger by one or both of the parties.  The Act does not speak of a “prospect” of reconciliation but a “reasonable prospect.”   He added that in order to find that there is a reasonable prospect of resumed cohabitation, “there must be some indication or step taken by both of them in that direction” (see also Rosseter, at paras. 57-58; Tesfatsion, at para. 56).  A sincere desire on the part of one party to resume cohabitation and efforts by that party to advance this objective will not generate a reasonable prospect of resumed cohabitation if the other party has no mutual interest in exploring this possibility.  In the words of Corbett J. in Strobele, at para. 32, “groundless hopes of reconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship” (see also O’Brien, at para. 50).

The outcome of the second stage of the analysis may in some cases move the valuation date to a point later in time than the separation date for the purposes of divorce entitlement and spousal support.  As Whitten J. commented in Taylor v. Taylor, 1999 CarswellOnt 4653 (S.C.J.), at para. 9, it is possible that parties could be truly separated, but nonetheless both entertain a reasonable prospect that they may resume cohabitation at some ill-defined time in the future.  Whitten J. noted that in such circumstances, “[t]o seize upon the fact of separation without respect for the intention of the parties would discourage those who seek to contemplate the future of a relationship, outside the pressures of cohabitation” (see also Tesfatsion, at para. 45).

In Czepa, at para 15, the court described the quest for the valuation date in general terms as being “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards” (see also Shah v. Shah, 2018 ONSC 5784 (CanLII) (S.C.J.), at para. 77).  Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively.  In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (CanLII) (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship.  Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.

The various factors outlined above relating to cohabitation and the separation date are relevant to whether there was a reasonable prospect that the parties would resume cohabitation, but they are not determinative (Rosseter, at para. 53).  However, the evidence respecting the manner in which the parties managed their financial affairs post-separation may be particularly relevant to the determination of the valuation date.  When one or both of the spouses make plans for their assets and general finances as separated persons, the courts often consider this to be strongly indicative that there is no real prospect of resumed cohabitation (Oswell, at para. 19).”

Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII) at 37-40

“Part VI of the CJA (Courts of Justice Act)– under the heading “Judges and Officers” – provides for the appointment of the Children’s Lawyer by the Lieutenant Governor in Council:

Children’s Lawyer

89(1) The Lieutenant Governor in Council, on the recommendation of the Attorney General, may appoint a Children’s Lawyer for Ontario.

Subsections 89(3)-(3.1) set out the Children’s Lawyer’s duties:

(3) Where required to do so by an Act or the rules of court, the Children’s Lawyer shall act as litigation guardian of a minor or other person who is a party to a proceeding.

(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

Under s. 112, the Children’s Lawyer may also cause investigations to be made, report to the court, and make recommendations to the court in custody and access matters.

(3)         Other statutes

In addition to providing legal representation to children in custody and access disputes, the Children’s Lawyer:

• • • • Provides legal representation to children in child protection proceedings, alternative dispute resolution proceedings, and secure treatment and health emergency matters pursuant to ss. 78(3), 78(5), 17(3), 161(6)and 171(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”);

• • • • Provides independent legal advice to children as well as minor parents consenting to adoption pursuant to ss. 180(6), 180(7) and 180(11) of the CYFSA, and rr. 34(11) and 34(11.1) of the Family Law Rules, O. Reg. 114/99;

• • • • Acts as the litigation guardian for minors in all applications for guardianship of a child’s property; and

• • • • Is the head of the Office of the Children’s Lawyer (“OCL”). The OCL has one function: to support the Children’s Lawyer in fulfilling her independent statutory duties and functions.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 10-13

“In addition to a duty of confidence, a lawyer owes former clients a limited duty of loyalty not to act against them. I address the applicable law and relevant evidence below.

a)       The applicable law

In McKercher, McLachlin CJ, relying on the decision of the Supreme Court in R. v. Neil, 2002 SCC 70, distinguished between the law of conflicts and a duty of loyalty.

With respect to the “law of conflicts”, McLachlin CJ held that a lawyer’s main duty to a former client is to refrain from using confidential information. McLachlin CJ held (McKercher, at para. 23):

The law of conflicts is mainly concerned with two types of prejudice: prejudice as a result of the lawyer’s misuse of confidential information obtained from a client; and prejudice arising where the lawyer “soft peddles” his representation of a client in order to serve his own interests, those of another client, or those of a third person. As regards these concerns, the law distinguishes between former clients and current clients. The lawyer’s main duty to a former client is to refrain from misusing confidential information. With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation.

With respect to the duty of loyalty to an existing client, a law firm cannot act for a current client whose interests are directly adverse to the immediate interests of another client, even if the two mandates are unrelated, unless both clients consent and the law firm reasonably believes it can represent each client without adversely affecting the other (McKercher, at para. 27). This duty of loyalty protects against the risk that a lawyer might “soft peddle” his or her representation of a client in order to serve the lawyer’s interests (McKercher, at paras. 23, 27).”

         Hogarth v. Hogarth, 2016 ONSC 3875 (CanLII) at 91-94

 “Society counsel provided me in advance with Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, a case that explores the legal test to change temporary Orders.  It is not contested that the COVID-19 closure of the CAS facility is a change in circumstance sufficient to vary the temporary Order of February 11, 2020.

COVID-19 has had the unprecedented effect of cancelling in-person access at Society facilities across Ontario.  In Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170 the court took judicial notice of the fact that during the pandemic, Societies cannot provide the level of supervision that it might otherwise have been able to provide, and that many staff are working remotely.

Nonetheless, Societies are being ordered to facilitate access wherever possible and to find new ways of delivering services.  In C.A.S. v. J.N., A.F. and M.S., 2020 CarswellOnt 6741 Justice Piccoli summarizes the caselaw to date and confirms that “since COVID-19, the court has found that there is no presumptive authority extended to the Society to suspend in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169.””

         CAS v. C.F. and J.M., 2020 ONSC 3755 (CanLII) at 27-29

“Settlement agreements in matrimonial proceedings should ordinarily be respected and the parties should not be entitled to go back on their agreement to resolve their differences.  In their jointly authored judgment in Miglin v. Miglin, supra, Bastarache and Arbour JJ. state at para. 4:

[W]e believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. … [T]hese general objectives include not only the equitable sharing of the consequences of the marriage breakdown under s. 15(2), but also certainty, finality and autonomy.

At para. 54, Bastarache and Arbour JJ. refer to the importance of fostering settlements and state that if the policy of encouraging parties to resolve their matrimonial disputes is to be maintained, “more must be shown than mere deviation from what a trial judge would have awarded in an order before it is appropriate for the court to disregard the parties’ pre-existing agreement.” Miglin dealt with a separation agreement. We are concerned with minutes of settlement reached during the course of litigation where the promotion of certainty, autonomy and finality is especially important.

The appellant submits that as the respondent received appropriate legal advice and as she proposed the terms of the minutes of settlement, it cannot be said that he took advantage of her by accepting her proposal.  Most agreements entered into with the benefit of a competent legal advice will be upheld, especially where the party seeking to avoid the settlement proposed the terms.”

            Simpkins v. Simpkins, 2004 CanLII 28909 (ON CA) at 17-19

“The respondent and the deceased were not married.  There is no dispute, however, that they were cohabiting as spouses on the date of the accident.  The issue is whether they were cohabiting on May 6, 2000, three years before the accident, as required by s. 29 [of the Family Law Act]. Section 29 defines “spouse” to include couples who have “cohabited continuously for a period of not less than three years” and s. 1(1) defines “cohabit” as “live together in a conjugal relationship, whether within or outside marriage”.

The crucial finding of the trial judge was at paragraph 30 of his reasons:

The necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later.  Their relationship was an exclusive one, neither party being unfaithful.  They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours.  While they may not have finalized any joint financial arrangements and continued to maintain separate residences, they lived together under the same roof.

The appellant submits that we should impose a bright line test and conclude that as the respondent had not “moved in” with the deceased as of May 6, they were not living together at that time.  We disagree.  In our view, “moving in” would add no precision to the meaning of “live together” and it would not provide the clear and definitive test sought by the appellant.  The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible.  In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 in this area.  We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting.  The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke [2003] O.J. No. 3471 (S.C.).”

         Stephen v. Stawecki, 2006 CanLII 20225 (ON CA) at 2-4

“The self-represented applicant, Mr. Owen Mullings, appealed a Family Court decision resolving numerous issues between the applicant and his former common law spouse, Ms. Jacqueline Robertson. On December 13, 2019, the applicant’s appeal was dismissed: 2019 ONCA 979. He now moves, pursuant to rr. 37.14(6) and 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to have the appeal decision set aside and he seeks leave for a new hearing. He also asks for interim relief and he asks this court to order the payment of sums in his favour, and relief from costs orders made in the appeal and at the Family Court trial.

Rule 61.16(6.1) refers to the two rules the applicant invokes. It provides that a decision of a panel of this court may only be varied or set aside pursuant to rr. 37.14 or 59.06.

For its part, r. 37.14 has no application here. This is not a case involving an order obtained on motion without notice, a failure to appear on a motion, or an order of the registrar: r. 37.14(1).

As for the court’s authority to reconsider a decision under r. 59.06, that authority is “limited and will be exercised sparingly and only where it is clearly in the interests of justice to do so”: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, at para. 6., leave to appeal dismissed, [2017] S.C.C.A. No. 366. This court will set aside a decision and rehear a case on its merits only in rare circumstances: see First Elgin Mills Development Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7.

In support of his application, the applicant argues that the appeal decision contains numerous “errors”. In each case he submits that this court “failed to consider that the trial judge erred” in making findings by arriving at decisions contrary to the preponderance of evidence or based on misapprehensions of the evidence. The misapprehensions of the evidence he identifies amount to no more than the failure by the trial judge to make the findings and orders the applicant advocates. In substance, the grounds the applicant offers in support of his request that this court’s decision be set aside and a new hearing be held amount to expressions of disagreement with the correctness of the appeal decision. Although made in the context of a criminal appeal, Charron J.A.’s comments in R. v. H. (E.), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 101-102, leave to appeal refused, [1997] S.C.C.A. No. 256, are apt:

[T]o the extent that an application to reopen an appeal is a challenge to the correctness of a decision … the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. … The power to further review the matter no longer belongs to this court.

We see no basis upon which it would be in the interests of justice to set aside the appeal decision. The proper route in contesting the appeal decision was for the applicant to have sought leave to appeal from the Supreme Court of Canada.”

         Mullings v. Robertson, 2020 ONCA 369 (CanLII) at 1-6

“Allowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition. This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples.

Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same- sex marriage. Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views.

In our view, the opposite-sex requirement in the definition of marriage does not minimally impair the rights of the claimants. Same-sex couples have been completely excluded from a fundamental societal institution. Complete exclusion cannot constitute minimal impairment.”

Halpern v. Canada (Attorney-General), 2003 CanLII 264037 (ON CA) at 137-139

“A party should not have to endure order after order after order being ignored and breached by the other side. A refusal to disclose one’s financial affairs is not just a mis-step in the pre-trial tactical game that deserves a two minute delay of game penalty. Failure to disclose is a breach of the primary objective. Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules. It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.”

         Manchanda v. Thethi, 2016 ONSC 3776 (CanLII) at 22