Siegel's Family Court Calendar

“In Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, 221 D.L.R. (4th) 1, the Supreme Court of Canada upheld Nova Scotia’s legislation that provides equalization to married spouses but not to common law spouses. The court stated, at para. 54:

[The Nova Scotia legislation] is primarily directed at regulating the relationship between the parties to the marriage itself; parties who, by marrying, must be presumed to have a mutual intention to enter into an economic partnership. Unmarried cohabitants, however, have not undertaken a similar unequivocal act. I cannot accept that the decision to live together, without more, is sufficient to indicate a positive intention to contribute to and share in each other’s assets and liabilities. It may very well be true that some, if not many, unmarried cohabitants have agreed as between themselves to live as economic partners for the duration of their relationship . . . . It does not necessarily follow, however, that these same persons would agree to restrict their ability to deal with their own property during the relationship or to share in all of the other’s assets and liabilities following the end of the relationship.

Accordingly, there is no presumption that the net family property of common law spouses should be equalized upon breakdown of the relationship.”

Wylie v. Leclair, 2003 CanLII 49737 (ON CA) at 18.

“Our view on this principal issue may be summarized as follows. Section 15(1) of the Charter is infringed by the definition of “spouse” in s. 29 of the FLA.  This definition, which only applies to Part III of the FLA, draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex relationships of a specific degree of duration. We emphasize that the definition of “spouse” found in s. 1(1) of the FLA, and which applies to other parts of the FLA, includes only married persons and is not at issue in this appeal.  Essentially, the definition of “spouse” in s. 29 of the FLA extends the obligation to provide spousal support, found in Part III of the FLA,  beyond married persons to include individuals in conjugal opposite-sex relationships of some permanence. Same-sex relationships are capable of being both conjugal and lengthy, but individuals in such relationships are nonetheless denied access to the court-enforced system of support provided by the FLA. This differential treatment is on the basis of a personal characteristic, namely sexual orientation, that, in previous jurisprudence, has been found to be analogous to those characteristics specifically enumerated in s. 15(1).

The crux of the issue is that this differential treatment discriminates in a substantive sense by violating the human dignity of individuals in same-sex relationships.  As Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, established, the inquiry into substantive discrimination is to be undertaken in a purposive and contextual manner. In the present appeal, several factors are important to consider. First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation. Second, the legislation at issue fails to take into account the claimant’s actual situation. Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case. Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances. Taking these factors into account, it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of “spouse” in s. 29 of the FLA.”

M. v. H., 1999 CanLII 686 (SCC) per Cory & Iacobucci JJ at 2-3

“Turning to spousal support, there is a heavy onus on the party that seeks to vary a temporary spousal support order. Chappel J. summarized the test in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para. 20:

The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson [1972 CanLII 470 (ON CA), [1972] 3 O.R. 403-404] that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.

This test has been applied consistently by the court: Oxley v. Oxley, 2010 ONSC 1609, at para. 26; Biddle v. Biddle, [2005] O.J. No. 737 at para. 18; Boissy v. Boissy, [2008] O.J. No. 2783 at para. 16; Colivas v. Colivas, 2016 ONSC 715 at para. 26.”

Kahansky v. Wilkes, 2017 ONSC 3080 (CanLII) at 69-70

“As discussed, the issue of focus at trial was whether the husband had complied with his financial disclosure obligation under s. 56(4)(a). In Patrick v. Patrick, [2002] O.J. No. 639, 112 A.C.W.S. (3d) 302 (S.C.J.), the husband failed to disclose either the existence or value of his RRSPs prior to entering into a marriage contract. At trial, the husband argued that his failure to disclose was immaterial, since the RRSPs were not to be shared at any time, regardless of their value. Mesbur J. rejected this argument, noting at para. 53 that “[p]arties are, therefore, not even permitted to contract out of the obligation to disclose” and ordered that the contract be set aside for failure to make financial disclosure in accordance with s. 56(4)(a). In reaching this conclusion, at para. 52 the trial judge emphasized the importance of ensuring that parties have a full understanding of their rights before entering into such contracts:

  Marriage contracts are a device by which parties can opt out

  of most or part of the Family Law Act, its property

  provisions, its support provisions, or both. Fundamental to a

  choice to opt out of the legislative scheme is a clear

  understanding of what one’s rights and obligations might be

  if there were no marriage contract. It is in this context

  that financial disclosure is critical.

This view is reinforced in Dubin v. Dubin, [2003] O.J No. 547, 2003 CanLII 2103 (ON SC), 34 R.F.L. (5th) 227 (S.C.J.), at para. 32:

  . . . knowing assets and liabilities at the date of the

  agreement is fundamental to an eventual calculation of net

  family property. A party needs to know what asset base might

  potentially grow, in order to determine what he or she is

  being asked to give up in the agreement. Coupled with

  financial disclosure is the notion of understanding legal

  rights and obligations under the legislative scheme. This

  second notion carries with it the concept of independent

  legal advice. Thus, a party must know what assets and

  liabilities exist at the date of the contract, and must

  understand the general legislative scheme in order to know

  what he or she is giving up in the proposed agreement.”

LeVan v. LeVan, 2008 ONCA 388 (CanLII) at 52-53

“Section 55(1) of the FLA provides:

A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

The purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed: see A. Swan & J. Adamski, Canadian Contract Law, 3d ed. (Toronto: LexisNexis Canada Inc., 2012), at para. 5.50.

In contrast, another statute that addresses formal execution, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), has more specific execution requirements than the FLA.  Section 4(1) of the SLRA provides:

Subject to sections 5 and 6, a will is not valid unless,

(a) at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

In Waters v. Conrod, 2007 BCCA 230, 66 B.C.L.R. (4th) 181,  the British Columbia Court of Appeal addressed s. 61(3) of the Family Relations Act, R.S.B.C. 1996, c. 128, the language of which is substantially similar to s. 55(1) of Ontario’s FLA and which, like the FLA, imposes a witness requirement on marriage agreements.  The British Columbia Court of Appeal upheld the enforceability of an agreement in circumstances where the parties signed it and only afterwards met with a notary whom the trial judge found to have “‘witnessed’ the agreement”.  The court concluded that to hold otherwise would defeat the statute’s purpose, which was to give no effect to agreements that were not freely made.

The language of s. 55(1) of the FLA is not as strict as s. 4(1) of the SLRA.  In unusual circumstances such as those found in the case under appeal, the language of s. 55(1) allows for a less strict application of the witnessing requirement rule.  Here, the appellant admitted signing the agreement, accepted the benefits of the agreement and waited for close to two years to raise the issue of non-compliance with s. 55(1).  Moreover, the co-worker witness recognized and was able to identify the appellant’s signature.  In these circumstances, it was not open to the appellant to successfully assert non-compliance with s. 55(1) of the FLA and the motion judge was correct in determining that this was not a genuine issue requiring a trial.”

         Virc v. Blair, 2014 ONCA 392 (CanLII) at 77-81

“Article 13(b) [of the Hague Convention on the Civil Aspects of International Child Abduction] creates an exception to the general rule that a child wrongfully removed or retained in a contracting state should be returned to his country of habitual residence. The provision sets a high threshold of a “grave risk” of physical or psychological harm or otherwise placing the child in an “intolerable situation”.

This interpretation is only reinforced when examining the text in its context and in light of the treaty’s object and purpose. As stated by Chamberland J.A. in F. (R.) v. G. (M.), 2002 CanLII 41087 (QC CA), [2002] J.Q. no 3568, [2002] R.D.F. 785 (C.A.), at para. 30:

The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also . . . a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.

This court in Jabbaz v. Mouammar, 2003 CanLII 37565 (ON CA), [2003] O.J. No. 1616, 226 D.L.R. (4th) 494 (C.A.) agreed with those comments and went on to add further comment, which is of particular relevance to this appeal. At para. 33, Rosenberg J.A., writing for this court, observed:

Refusing to enforce the Convention because the child might have to move a short time later is not consistent with the rigorous interpretation required and is inconsistent with the stated objects of the Convention to secure the prompt return of children wrongfully removed or retained from the Contracting State and to ensure that custody rights are respected. Such an interpretation is, in my view, inconsistent with the thrust of the cases in this province such as this court’s decisions inPollastro and Finizio. Continuity in residence is desirable but some instability is not intolerable.

The threshold with respect to the exceptions set out in the Convention is thus a high one. The Supreme Court of Canada in Thomson held, at para. 28, that the risk to the child must be one of substantial psychological harm to the child. In Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226, [1999] O.J. No. 3579 (C.A.), relying on Thomson, MacPherson J.A., writing for the court, found that the father had on one occasion struck the mother, but held that this was not a sufficient reason to refuse his application to have the children returned to Italy. This conclusion was based in part on the assertion that it should be left to the police and courts of Italy to minimize any harmful effects of returning the children there: Finizio, at paras. 33-35, citing C. v. C. (minor: abduction: rights of custody abroad), [1989] 1 W.L.R. 654, [1989] 2 All E.R. 465 (C.A.).

In contrast, in Pollastro v. Pollastro (1999), 1999 CanLII 19933 (ON CA), 43 O.R. (3d) 485, [1999] O.J. No. 911 (C.A.), this court found that a continued pattern of escalating emotional and physical abuse, combined with threats against the mother and her family, were sufficient to create an intolerable situation for the child. I would note that the court’s conclusions in that case were based on evidence from the mother’s doctor as well as transcripts of a taped phone message.”

            Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII) at 37-41

“Moreover, even accepting that Ms. Lovsin’s services benefited Jack and Meryl Hodgins, this conferring of a benefit does not, by itself, constitute unjust enrichment. As Dickson J. said in Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 at p. 848: “The common law has never been willing to compensate a plaintiff on the sole basis that his actions have benefited another.”

To show that the enrichment was unjust, the provider of the benefits (here Ms. Lovsin) must reasonably expect to be compensated, and the recipients of the benefits (here Jack and Meryl Hodgins) must know or ought to have known of that reasonable expectation. In the words of Dickson J. at p. 849 of Pettkus:

[w]here one person in a relationship tantamount to spousal prejudices herself in a reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it.”

Lovsin v. Hodgins Estate, 2008 ONCA 371 (CanLII) at 7-8

“It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated.”

Lewi v. Lewi, 2006 CanLII 15446 (ON CA) at 171. 

“The principles laid down by the Supreme Court in Hryniak are important. There has been a fundamental change in how motions judges have been called upon to apply the law as it relates to a motion for summary judgment.  Much of the change has been positive. However, the facts of this case and the facts of Amelin demonstrate how litigants have shifted the responsibility for laying out the facts through the trial process to the motion judge, who must sift through a mountain of paper in the hope of reaching a fair and just determination on the merits without the need for a trial.

The actual hearing of the motion for summary judgment may only take a day. The preparation for the motion for summary judgment, including the drafting of affidavits; the preparation for and attendance at the cross-examinations of the deponents to those affidavits; and the preparation of factums, are time consuming and expensive. One may seriously question, on the facts of this case, like many that the court sees, whether that time and effort represents much in the way of any saving for the litigants.  Certainly, if the motion is unsuccessful, there has been unnecessary delay and expense in getting the case to trial.

What is also lost on the litigants is that, after the motion has been heard, the motion judge then has the responsibility of sifting through a mountain of paper.  The motion may have been argued in a matter of hours, but the motion judge’s job is far from over. Put also in the context that many judges are circuiting from courthouse to courthouse with ever changing assignments, it is not always possible to release a judgment in the time expected by the litigants. Where the court is confronted with two banker’s boxes of material as was the case before me, counsel and their clients should seriously consider if the case is one where the court can truly conclude that there is no genuine issue for trial. Some may argue that regardless of the volume of material, it is still possible, after argument and time, to reflect that the court can do justice to the principles laid down in Hryniak.  I entirely disagree. With the pressures imposed on the court by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, it will be a rare case that a motions judge in a busy centre such as Newmarket, can dedicate the time necessary to review two banker’s boxes of material before moving on to various criminal trials previously assigned in that judge’s calendar.

The volume of material that was filed in this case, in my view, should have made it self-evident to the parties and their counsel that this was not the kind of case that was suitable for a motion under Rule 20.  There are serious credibility issues between the parties and the various witnesses, that make this case an obvious case where the court cannot be satisfied that it can reach a fair and just determination.  The motion is dismissed.”

Mak (Estate) v. Mak, 2019 ONSC 2710 (CanLII) at 18-21

“R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48 sets out limits for resorting to judicial notice:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”

Curley v. Taafe, 2019 ONCA 368 (CanLII) at 36