Siegel's Family Court Calendar

“The ISO is based on model, uniform legislation designed to streamline the process by which support orders are affected and enforced across provincial and national boundaries. It works in tandem with comparable legislation in reciprocating jurisdictions, including England.

Under the ISO, applications originating in certain jurisdictions require a “provisional variation order” to be made by a court in the jurisdiction where the applicant is ordinarily resident before the materials are sent to Ontario. Other jurisdictions do not involve securing a provisional order before materials are sent to Ontario and an application is made here.

The United Kingdom requires applicants for support variation orders first to obtain provisional variation orders in their own jurisdiction: see, Mathers v. Bruce, 2005 BCCA 410, 51 BCLR (4th) 54 at paras. 24-26. In such a case, an applicant brings a court application in the jurisdiction in which they ordinarily reside, without giving notice to the respondent. If the provisional variation order is made, both it and the support variation application are sent to the court in the reciprocating jurisdiction where the respondent ordinarily resides. When the Ontario court receives the provisional order, the respondent is served with a copy of the application and notice of hearing: see ISO, s.33(1).

Rule 37 of the Family Law Rules, O. Reg. 114/99 deals with proceedings pursuant to the ISO. Rule 37(7) requires an application pursuant to ISO to be dealt with on the basis of written material without the need of the parties or their lawyers having to appear.  However, a responding party may request an oral hearing by filing a form 14B motion within 30 days of being served with the notice of hearing (r. 37(8)), or the court may order an oral hearing (r. 37(9)).  Neither David nor the court requested an oral hearing.”

            Hickling v. Coates, 2022 ONSC 5455 (CanLII) at 32-35

“As stated in Manchanda v. Thethi, 2016 ONSC 3776 (CanLII), 2016 CarswellOnt 8951 (S.C.J.) “Without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.”  The Court of Appeal held that striking of pleadings is not reserved for drastic and extreme cases” (2016 ONCA 909).

In Lamothe v. Ellis (2021 ONSC 4883, at para 42), the court struck the Respondent’s pleadings due to his chronic and persistent disregard of court orders.  Chozik J. considered the following five factors in determining whether it was appropriate to strike the Respondent’s pleadings:

(a)               That the Respondent’s non-compliance is extensive and persistent;

(b)              That his non-compliance is willful in nature;

(c)            That the Respondent has not made any reasonable efforts to comply with the court orders and is unable to provide acceptable explanations for the breaches;

(d)              That in claiming that he is financially unable to pay the costs awards and minimal child support, the Respondent has not provided adequate financial disclosure to the Applicant or the underlying documentations that would allow her (and the court) to make adequate determinations as to his income and employment; and

(e)               That the remedy must not go beyond that which is necessary to express the court’s disapproval of the conduct in issue and must be proportionate to the issues in question and the conduct of the Respondent: Lamothe v. Ellis, 2021 ONSC 4883, at para 42.”

Raisfirooz v. Dajmar, 2022 ONSC 5382 (CanLII) at 12-13

“For article 3 of the Hague Convention to apply, I would have to find that the children were habitually resident in Florida immediately before the wrongful retention, which was June 6, 2022, according to the mother. The father challenges the application of the Hague Convention on the basis that the separation agreement dictates that the children were to be returned to Toronto if by the review date the mother had not met certain conditions. While the mother maintains that Florida was the children’s habitual residence, the father submits that the children’s habitual residence was Toronto and their time in Florida was always intended to be temporary unless and until the conditions were met by the mother.

The Balev decision sets out how an application judge should determine the question of a child’s habitual residence. The three possible approaches were discussed: the parental intention approach, the child-centered approach, and the hybrid approach. Until Balev, the parental intention approach dominated Canadian jurisprudence. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The hybrid approach is fact-bound, practical and unencumbered with rigid rules, formulas, or presumptions: Balev, at paragraphs 45-47.

In Balev, at para. 37, the Supreme Court of Canada held:

The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.

The Court endorsed a hybrid approach to determining a child’s habitual residence, which tasks the court with determining the “focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to the removal or retention”: Balev, at paras. 40-43.

The judge considers all of the child’s relevant links to and circumstances in country A, the circumstances of the child’s move from country A to country B, and the child’s links to and circumstances in country B: Balev, at para. 43. These considerations include the duration, regularity, conditions, and reasons for the child’s stay in the territory of a member state, and the child’s nationality.

The task of determining the children’s habitual residence is to consider how connected the children are to the jurisdictions involved, in this case both Florida and Ontario: K.F. v. J.F., NLCA 33, at para. 60. Such an inquiry must look at all relevant factors. Habitual residence is a question of fact. As set out in Bearisto v. Cook, 2018 NSCA 90, at paragraph 110, in relying on A.R. v. R.N. (2015), [2015] UKSC 35 (U.K.S.C.),

…It is the stability of the residence that is important, not its length or permanency…habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”

The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. However, the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: Balev, at para 45, also see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.”

            Thompson v. Thompson, 2022 ONSC 5474 (CanLII) at 59-65

“Any party seeking equitable relief in an action must be open to an examination of their own conduct and ethics throughout the relevant time period and transactions.”

            Calver v. Calver, 2019 ONSC 5418 (CanLII) at 56

“Allegations involving intimate partner violence (IPV) are serious. Study after study has confirmed that as a facet of family (or domestic) violence, IPV reached a crisis point years ago and impacts the physical, sexual and mental health of survivors and has far-reaching impacts on children who are exposed to the trauma of family violence: Intimate partner violence in Canada, 2018: An Overview (Adam Cotter, Canadian Centre for Justice and Community Safety Statistics, Release date: April 26, 2021); also, Intimate Partner Violence in the Age of the Pandemic: Implications for Courts. National Judicial Institute, November 2020. But assessing IPV and family violence allegations at an interim stage of a court case is often fraught with evidentiary frailties, especially since credibility is so pivotal, and can be so elusive. The seriousness of the allegation must be balanced by appropriate caution at an early stage in a case. In De Rocchis v. De Rocchis, 2024 ONSC 3983, a case in which the mother alleged, and the father denied, repeated physical abuse, Sharma J. highlighted the delicate balancing act faced by the court in an interim motion:

[27] This Court must regularly consider allegations of family violence on an interim motion when, like in this case, there are competing versions of facts. The Legislature has nonetheless directed this Court to consider family violence and its implications even when making parenting orders – temporary or final. The allegations cannot be ignored. This presents challenges when the Court is forced to make interim findings on a contested affidavit record.

[28] Regrettably, there are cases where one parent makes false allegations of abuse, in the hopes of securing an “upper hand” in the family litigation. This is a reprehensible tactic because it can wrongfully deny children time with a parent. Alleged abusers often respond by saying the allegation is false and a mere tactic. When criminal charges are laid against an alleged abuser, that party may be instructed by criminal cases to be careful in responding to abuse allegations in the family proceeding.”

In finding that at least some of the family violence alleged by the mother in De Rocchis had likely occurred, Sharma J. observed that “… in the context of a parenting motion, I have to assess the potential for this violence to re-occur and the impact on the children…” in crafting an order: De Rocchis, at para. 33.

            Aslam v. Janakovic, 2024 ONSC 5135 (CanLII) at 25-26

“The legislative criteria under the Divorce Act for granting temporary spousal support orders is identical to those relating to a final support order.   However, the following general principles are applied by the courts in dealing with motions for temporary spousal support:

a.    The party claiming interim spousal support has the onus of establishing that there is a triable (prima facie)case, both with respect to entitlement and quantum.  The merits of the case in its entirety are to be dealt with at trial: Kowalski v. Grant, 2007 MBQB 235 (CanLII), 2007 CarswellMan 422 (Man. Q.B.); Charbonneau v. Charbonneau, 2004 CarswellOnt 5211 (Ont. S.C.J.);  Robles v. Kuhn, 2009 BCSC 1163 (CanLII), 2009 CarswellBC 2239 (B.C. Master).

b.    In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay: Belcourt v. Chartrand,2006 CarswellOnt 2272 (Ont. S.C.J.);  Gerlitz v. Gerlitz, 2005 CarswellAlta 1841 (Alta. C.A.), reversing in part 2005 CarswellAlta 1240 (Alta. Q.B.).

c.    The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial: Kowalski v. Grant, 2007 MBQB 235 (CanLII), 2007 CarswellMan 422 (Man. Q.B.). Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial: Ibid.

d.    The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown.   That task is for the trial judge: Ibid.

e.    Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs: Lila v. Lila, 1986 CarswellOnt 294 (Ont. C.A.).;  Kowalski v. Grant,Supra.;  Robles v. Kuhn, Supra.   The objective of encouraging self sufficiency is of less importance: Robles v. Kuhn, Ibid.;  Ridgeway-Firman v. Firman, 1999 CarswellOnt. 1201 (Ont. Gen. Div.).

            Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII) at 38

“There was considerable overlap in the arguments made by Optiva seeking to set aside the arbitration award under s. 46 and the arguments seeking leave to appeal that award under s. 45 of the Act. The application judge addressed the application to set aside the award first. His treatment of many of the same issues in the context of the leave to appeal application was considerably briefer.

The application judge described as “without merit” the argument that leave to appeal should be granted on the ground that the arbitrator based his decision on the limitation of liability clause on a legal theory not advanced by the parties. The application judge had addressed and rejected the same argument on the motion to set aside the award earlier in his reasons: Optiva Inc., at paras. 57-64. I have considered that argument in the context of the appeal from the refusal to set aside the arbitrator’s award: see supra, at paras. 51-59.

The application judge also refused to grant leave to appeal on the interpretation of the limitation of liability clause in the contract. He held that this argument did not raise a question of law alone, as required under s. 45 of the Act. In his view, the arbitrator’s interpretation of the relevant clause involved a question of mixed fact and law: see Optiva Inc., at para. 67.

Optiva has a preliminary problem in advancing the submission that the application judge erred in refusing to grant leave to appeal. The refusal to grant leave under s. 45 of the Act is, as a general rule, not appealable to this court. A refusal to grant leave will be appealable if it reflects an erroneous declining of the jurisdiction given to the Superior Court judge to grant leave under s. 45: Denison Mines Ltd. v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181, at paras. 5-8; Ottawa (City) v. Coliseum Inc., 2016 ONCA 363, 398 D.L.R. (4th) 34, at paras. 23-29.

The application judge did not decline to exercise his jurisdiction to determine whether leave to appeal should be granted under s. 45. He refused leave on the merits. He described one argument based on the arbitrator’s alleged reliance on a legal theory not advanced as “without merit”. He referred to the second argument arising out of the interpretation of the limitation of liability provisions in the contract as raising a question of mixed fact and law. Optiva could only obtain leave to appeal on a question of law alone.

Optiva submits that the application judge was wrong in characterizing the contractual issue as one of mixed fact and law. That error, says Optiva, amounts to “an arbitrary decision that is a declination of jurisdiction.”

The rationale underlying restrictions on appeals to this court from the refusal to grant leave to appeal in the Superior Court would be defeated if this court were to engage in an assessment of the merits of the decision refusing leave under the guise of considering whether the court below declined to exercise its jurisdiction. Under the terms of s. 45 of the Act, the question on which leave is given must be a question of law. The characterization of the issue is part of the merits of the leave application. The application judge’s conclusion that the question raised by Optiva involved a question of mixed fact and law, whether right or wrong, was a determination on the merits of Optiva’s application for leave to appeal. That decision is not appealable to this court.”

          Optiva Inc. v. Tbaytel, 2022 ONCA 646 (CanLII) at 60-66

“The relevant provisions are s. 38(2) and (3) of the Trustee Act.

Section 38(2) provides as follows:

Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

The two-year limitation period applicable to claims under s. 38(2) is set out in s. 38(3) of the Trustee Act, as follows: “An action under this section shall not be brought after the expiration of two years from the death of the deceased.”

In Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.), at para. 8, this court confirmed that the two-year limitation period under s. 38(3) of the Trustee Act is a strict limit and the discoverability principle does not apply to actions under s. 38: “[r]egardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.”

I agree with the appellants’ and intervener’s submissions that the inapplicability of the discoverability principle and the clear two-year limit for bringing an action under s. 38 of the Trustee Act demonstrate the legislative intent that actions against estates be subject to the shorter limitation period. The shorter, two-year limitation period for estate matters reflects the long-established duty of estate trustees to administer estates promptly and diligently, including ascertaining the estate’s liabilities and debts as quickly as possible, as the expeditious administration of estates is in the interests of justice: Appleyard v. Zealand, 2022 ONCA 570, 162 O.R. (3d) 494, at para. 60; Omiciuolo v. Pasco, 2008 ONCA 241, 90 O.R. (3d) 175, at para. 25; Euring Estate (Re), (1997), 1997 CanLII 1080 (ON CA), 31 O.R. (3d) 777 (C.A.), at p. 792. It is also consistent with the interest of finality in the administration of estates: Roth v. Weston Estate, 1997 CanLII 1125 (ON CA), [1997] O.J. No. 4445 (C.A.), at para. 11.”

            Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII) at 23-27

“In Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at paras. 52-54 the court discussed the equitable doctrine of fraudulent concealment:

52               Fraudulent concealment is an equitable doctrine that prevents limitation periods from being used “as an instrument of injustice” (M. (K.), at pp. 58-59).  Where the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud (Guerin v. R., 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 (S.C.C.), at p. 390).  It is a form of “equitable fraud” (Guerin, at p. 390; M.(K.), at pp. 56-57), which is not confined to the parameters of the common law action for fraud (M.(K.), at p. 57).  As Lord Evershed, M.R. explained in Kitchen v. Royal Air Force Assn., [1958] 2 All E.R. 241 (Eng. C.A.), at p. 249, cited in M. (K.), at pp. 56-57:

It is now clear … that the word “fraud” in s. 26(b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S., Ltd., [1949] 1 All E.R. 465, that no degree of oral turpitude is necessary to establish fraud within the section.  What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is unconscionable thing for the one to do towards the other. [Emphasis added in M. (K.).]

 53         While it is therefore clear that equitable fraud can be established in cases where a special relationship subsists between the parties, Lord Evershed, M.R. did not limit its establishment to such circumstances, nor did he purport to define exhaustively the circumstances in which it would or would not apply (see T.P. v. A.P., 1988 ABCA 352, 92 A.R. 122, at para. 10). Indeed, he expressly refused to do so: “[w]hat is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now” (Kitchen, at p. 249, emphasis added).

54           When, then, does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action.  This was the Court’s point in Performance Industries Ltd. v. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] S.C.R. 678 (S.C.C.), at para. 39:

 [Equitable fraud] “… refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained (p. 37).  Fraud in the “wider sense” of a ground for equitable relief “is so infinite in its varieties that the Courts have not attempted to define it”, but “all kinds of unfair dealing and unconscionable conduct in matters of contract come within its ken” [Emphasis added.]

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of taking advantage of a special relationship with the plaintiff.  Nor is the doctrine’s application limited, as my colleague suggests, to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant (paras. 171 and 173-74).  While a special relationship is a means by which a defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour,  such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” (M.(K.), at p. 57, citing Halsbury’s Laws of England (4th ed. 1979), vol. 28, para. 919). In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself.”

            Sanchez v. Sotomarino, 2024 ONSC 5030 (CanLII) at 26

“The court’s discretion not to enforce a settlement is a limited one given the importance of certainty in the resolution of family disputes: see Van Delst v. Hronowsky, 2020 ONCA 329, 318 A.C.W.S. (3d) 504, at para. 1.”

            Dembo v. Hannas, 2020 ONCA 564 (CanLII) at 17