Siegel's Family Court Calendar

“My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18:

The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 [In Chambers], at paras. 14-15.”

Paschel v. Paschel, 2017 ONCA 972 (CanLII) at 9

“Under a combination of r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and r. 38(33) of the Family Law Rules, O. Reg. 114/99, the filing of a notice of appeal stays any provision requiring the payment of money except a provision that enforces a support order.”

Nguyen v. Tran, 2018 ONCA 985 (CanLII) at 2

“Issue #4 — the value of Mr. Butty’s liabilities was overstated by approximately $23,500 because the full debt of $151,000 to his mother was shown as outstanding. We query whether the difference is of a sufficient magnitude in the circumstances of this case to meet the statutory requirement that it is a failure to disclose a “significant” asset or debt. Having said that, again, we are not persuaded that it amounts to a failure to disclose. Ms. Butty was aware of the debt and of Mr. Butty’s obligation to repay the loan amount. If not aware of the precise amounts that had been paid, Ms. Butty’s first lawyer knew that Mr. Butty was making regular payments and the debt was being reduced.

Accordingly, this case is very different from LeVan v. LeVan (2008), 2008 ONCA 388 (CanLII), 90 O.R. (3d) 1, [2008] O.J. No. 1905, 2008 CarswellOnt 2738 (C.A.), in which this court recently affirmed a trial judge’s exercise of discretion pursuant to s. 56(4) of the Act. In LeVan, the following factors led to the exercise of that discretion [at para. 35]:

(1) The husband failed to disclose his income tax returns and the value of his significant assets. (2) The wife did not receive effective independent legal advice and some advice provided was wrong. (3) The wife did not understand the nature and consequence of the marriage contract. (4) The husband misrepresented the nature and terms of the marriage contract to the wife. (5) The husband’s failure to disclose his entire assets to his wife was deliberate. [page240] (6) The husband interfered with the wife’s receipt of legal assistance from her first lawyer.

Butty v. Butty, 2009 ONCA 852 (CanLII) at 58-59

“I see no error in the motion judge’s finding that the transfer of the 50% interest in the property to Shakiba was an irrevocable, unconditional gift and that no genuine issue requiring a trial was raised on the record with respect to that issue. 

It is accepted that the motion judge applied the proper test for the determination of a gift: an intention on the part of the donor to make a gift without consideration or expectation of remuneration; an acceptance of the gift by the donee; and a sufficient act of delivery or transfer of the property to complete the transaction. See McNamee v. McNamee, 2011 ONCA 533, 335 D.L.R. (4th) 704.”

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII) at 13-14

“Ms. Draper contends that there was no “transfer” of property by Mr. Holtby to her, as both parties participated in the incorporation of Knapton, so the doctrine of resulting trust does not apply. She further asserts that her receipt of the Knapton shares was not gratuitous: first, because she gave consideration, when she paid the $100 subscription for her shares, and second, because Knapton (in which she was already a 50% shareholder) gave fair market consideration to Mr. Holtby when it purchased the farm property and other assets from him. In this sense, Mr. Holtby did not make any gratuitous transfer of property to Knapton. She contests the trial judge’s reliance on Paddock v. Paddock (2008), 78 R.F.L. (6th) 54 (Ont. S.C.), aff’d 2009 ONCA 264, 78 R.F.L. (6th) 69.

In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 44, Rothstein J. explained that the trial judge must commence his or her inquiry with the applicable presumption and weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust: Pecore, at para. 24. The presumption of resulting trust applies to married spouses, except that where property is held in joint ownership, the presumption is that they intended to each own one half, in the absence of evidence to the contrary: Family Law Act, s. 14. The transferor’s intention at the time of the transfer is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30 and 41. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. Its reliability must be assessed to determine weight, guarding against evidence that is self-serving or reflects a change in intention: Pecore, at para. 59; Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 63.”

Holtby v. Draper, 2017 ONCA 932 (CanLII) at 31-32

“The quantum of income attributable to the husband is a finding of fact made by the trial judge on the basis of the evidence adduced by both parties.  In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, the Supreme Court of Canada has clearly told appellate courts not to interfere with a factual finding of a trial judge in the absence of palpable and overriding error, including a misapprehension of the evidence.

In my view, the trial judge made no such error and did not misapprehend the evidence.  The trial judge was not obligated to accept either the husband’s evidence about his minimal income or the wife’s expert evidence as to the husband’s 1997 and projected income.  The trial judge was entitled to attribute income based on his review of the whole of the evidence. On the evidence called at trial, he was entitled to his determination that neither party had persuaded him of a material change in the husband’s income since the divorce.  There is no reason to interfere with his conclusion.”

Pirner v. Pirner, 2005 CanLII 44166 (ON CA)

“Defamation is a strict liability tort. The plaintiff must prove three things to obtain judgment and be awarded damages: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff”:  Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640 at para. 28.”

Kumar v. Khurana, 2019 ONSC 6825 (CanLII) at 13

“We find no error in the motion judge’s disposition of the motions.

Though there was a supervening event (the announcement of a new government policy), the supervening event did not constitute frustration of the agreement, as the announcement was not such that “performance of the contract becomes a ‘thing radically different from that which was undertaken by the contract’”: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 53.

Frustration applies to contracts including real estate transactions, when a supervening event alters the nature of the appellant’s obligation to contract with the respondent to such an extent that to compel performance despite the new and changed circumstances would be to order the appellant to do something radically different from what the parties agree to under their contract: Naylor, at para. 55.

A contract is not frustrated if the supervening event was contemplated by the parties at the time of contracting and was provided for or deliberately chosen not to be provided for in the contract: Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 1975 CanLII 726 (ON CA), 9 O.R. (2d) 617 (C.A.), at p. 626.

A party claiming that a contract has been frustrated has the onus of proving the constituent elements necessary to establish frustration: Bang v. Sebastian, 2018 ONSC 6226, at para. 30; Gerstel v. Kelman, 2015 ONSC 978, 40 B.L.R. (5th) 314.”

Perkins v. Sheikhtavi, 2019 ONCA 925 (CanLII) at 13-17

“Section 16(10) of the Divorce Act states that when the court makes a custody and access order, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” The court must also consider “the willingness of the person for whom custody is sought to facilitate such contact”.

When considering these sections, the courts have noted that a parent shall not be permitted to deprive a child of the benefit of the other parent’s input on childcare decisions without good reason: see Woolrich v. Woolrich, 2005 SKQB 72 (CanLII), at para. 26; and Mikan v. Mikan, 2004 CanLII 5062 (ON SC), 2004 CarswellOnt 772 (SCJ), at paras. 22-23.

At the same time, in its interpretation of section 16(10) of the Divorce Act, the Supreme Court of Canada recognized that the ‘maximum contact’ principle is not absolute; it must be reconciled with the best interests of the child. If circumstances are such that the child’s best interests might be compromised by the maximum contact principle, then the said principle may be modified or restricted to meet the particular circumstances, see Young at paras.117-118.

The ‘maximum contact’ principle is grounded on the view that maximum contact with both parents is generally in a child’s best interests. Young children with attachments to both parents need sufficient contact with both of them, without prolonged separations. This is what will enable them to maintain meaningful and close relationships with their parents. When seeking to resolve a custody dispute, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children: see Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824  at para. 122 (Chin Pang); Huisman v. Stefaniw (1997), 1997 CanLII 24463 (ON SC), 26 R.F.L. (4^th) 406, 1997 CarswellOnt 100 (Ont. Gen. Div.); and Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329, 1997 CarswellOnt 3115 (Ont. Gen. Div.).”

Ahmad v. Ahmad, 2019 ONSC 6804 (CanLII) at 95-98

“In Water’s Law of Trusts in Canada, at p. 362, a resulting trust is described as follows:

Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner, or to the person who did give value for it.

In the recent decision of Drakoulakos v. Stirpe [2017] O.J. No. 2506, Perell, J. defined a resulting trust as follows at para. 46:

On the assumption that there is no substantive merit to the Defendants’ defence, the material facts in the immediate case constitute a claim for a resulting trust. A resulting trust arises when title to the property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17; Andrade v. Andrade, 2016 ONCA 368. In Kerr v. Baranow, 2011 SCC 10 [2011] 1 S.C.R. 269, at para. 12, Justice Cromwell stated that it has been settled since at least 1788 in England that the trust of a legal estate results to the person who advances the purchase money.

The concept of a purchase money resulting trust is described at para. 1 in the Supreme Court of Canada’s decision of Nishi v. Rascal Ltd, 2013 SCC 33 (CanLII), [2013] 2 S.C.R. 438 as follows:

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of a property, but does not take legal title to that property.  Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution.  This is called the presumption of resulting trust.”

Sampath v. Deopersad, 2017 ONSC 7055 (CanLII) at 23-25