Siegel's Family Court Calendar

“The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 (CanLII)…

It is the recusal order that forms the subject matter of the appeal to this court. The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue; thus the appeal lies to this court: Courts of Justice Act, s. 6(1)(b).

One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications?, but it is interlocutory if the merits of the case remain to be determined.

…

None of this changes the fact that the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.”

Brunning v. Fontaine, 2019 ONCA 98 (CanLII) at 4-6 & 11

“Parental alienation has all the features that make a great story: a heartbroken parent, an evil ex, and a victimized child. If real life were like Hollywood, the story would eventually end with the evil ex being punished (or seeing the light and repenting) and the   formerly heartbroken parent re-united with their now loving and devoted child. Unfortunately, real life is not Hollywood, and such picture-perfect endings rarely occur.”: initial paragraph of LL.M. thesis by Michelle McKelvey (1981-2014).

Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 (CanLII) at 1

“I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment [under section 30 of the CLRA]:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?”

 Glick v. Cale, 2013 ONSC 893 (CanLII) at 48

 “Whether a paid account should be treated as an interim or final account is a factual determination. Payment of an interim account creates a presumption that the client was satisfied with the fee charged but that presumption is rebuttable. Clients will obviously be inclined to pay interim accounts promptly in order to maintain a good relationship with their counsel and the fact that interims bills were paid without complaint does not necessarily indicate that the client was satisfied with the work performed or the amount of the bill. It depends on the circumstances.

In Price v. Sonsini, 2002 CanLII 41996, the Ontario Court of Appeal made a seemingly determinative statement regarding the treatment of interim accounts rendered in the course of a single retainer:

…where interim accounts are rendered in connection with the same matter, the limitation period for assessment under the Solicitors Act begins to run from the date of the final account, even if some of the interim accounts have been paid.

The court in Daniels, 2006 CanLII 119 ONSC came to a similar conclusion. Both Daniels and Price were cases involving family law proceedings. Family law litigation is frequently lengthy, the majority of clients are unsophisticated and the final amount of the retainer is commonly adjusted to reflect the outcome of the litigation. All of these circumstances are conducive to treating interim payments as interim payments.”

Adler v. Thomson, Rogers, 2019 ONSC 801 (CanLII) at 13-15

“A consent order may be set aside on the same grounds as the agreement giving rise to the order: McCowan v. McCowan (1995), 1995 CanLII 1085 (ON CA), 14 R.F.L. (4th) 325 (Ont. C.A.); Rick v Brandsema, 2009 SCC 10 (CanLII). The traditional grounds for setting aside a contract are: mistake, misrepresentation, unconscionability, and incapacity, with all of their various subcategories.

Ms. Glazer claims duress. Duress is a sub-category of unconscionability. In order for Ms. Glazer to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced. Ms. Glazer must establish, on a balance of probabilities, that illegitimate pressure put her in a position where she had no realistic alternative but to agree: Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 25 O.A.C. 174, 63 O.R. (2d) 545 (Ont. C.A.) at para. 48 and Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (Ont. C.A.) (CanLII) at para. 9.

In Stott at para. 48, the Court of Appeal emphasized that:

“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a ‘coercion of the will’, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no ‘realistic alternative’ but to submit to it…duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress…”

This reasoning in Stott was applied in the decision of the Court of Appeal in Taber where citing Stott, the court stated at para. 8 and 9:

“there is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis. However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to ‘a coercion of the will’ of the party relying on the concept.”

Glazer v. Hill, 2019 ONSC 809 (CanLII) at 36-39

“It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants.  Moreover, as the Court of Appeal emphasized recently in Mattina v. Mattina, a fourth fundamental purpose of costs awards in family law proceedings is to ensure that cases are dealt with justly, in accordance with Rule 2(2) of the Family Law Rules.

Rule 24(1) creates a presumption of costs in favour of the successful party.  While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.  Entitlement to costs is subject to a variety of factors, including whether the successful party has behaved unreasonably, whether there has been bad faith conduct, and the nature of any offers to settle made by either party.

In determining the appropriate quantum of costs, Rule 24(12) sets out the relevant considerations. It provides as follows:

(12) SETTING COSTS AMOUNTS – In setting the amount of costs, the court shall consider,

   (a) the reasonableness and proportionality of each of the following   factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their     rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

While Rule 24(12) sets out the relevant considerations, the key principles governing awards of costs in family law proceedings are proportionality and reasonableness. As Nordheimer J.A. stated recently in Beaver v. Hill, “[p]roportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters.” This conclusion flows directly from the fundamental Boucher principle, applied by Ontario courts on innumerable occasions, that costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.”

Nor is there any principle mandating that a successful party should receive costs that “generally approach full recovery”. In fact, any such “full recovery” principle would be inconsistent with the first objective of costs awards as set out by the Court of Appeal in Serra, which is that costs are intended to “partially indemnify successful litigants”. While the Rules contemplate full recovery in specific circumstances, such as bad faith under Rule 24(8), or besting an offer to settle under Rule 18(14), the quantum of costs must always meet the test of proportionality and reasonableness in light of the importance and complexity of the issues at stake in the litigation.”

Fielding v. Fielding, 2019 ONSC 833 (CanLII) at 4-9

“For an excellent review of the factors to consider in determining whether to make an order under CLRA section 36, and the cases on the issue in Ontario and elsewhere, see Patterson v Powell, 2014 ONSC 1419 (CanLII). At the risk of oversimplifying Pazaratz J’s very detailed and thoughtful decision, I note the following principles from it:

• • Section 36 of the Children’s Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15)

• • Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool.” (Para 16)

• •  Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)

• •  Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)

• •  Police should be served with notice, if a party proposes a broad order under section 36(4) that they “do all things reasonably able to be done”. (Para 30)

• • Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)

• • Chronic non compliance with a custody or access order is “likely … a problem that police can’t fix anyway.” (Para 74)

…

As Pazaratz J noted, there is a tendency to forget that section 36 requires a present, existing reality – that a person is unlawfully withholding a child, or that a person proposes at the time the order is sought to remove a child from Ontario – not a future risk or possibility that a child might not be returned or that a child might be removed. Further, section 36(3) assumes that a motion for a police enforcement clause will be made on notice, at least to the other party. The section says the order may be made without notice if “the court is satisfied that it is necessary that action be taken without delay.” This is a different test from the usual one for motions without notice as articulated in rule 14(12) of the Family Law Rules.”

L.(N.) v. M.(R.R.), 2016 ONSC 809 (CanLII) at 83 & 85

“In Kerr, the court dealt at length with unjust enrichment. At para. 33, Cromwell J. held that there is no separate line of authority for family cases developed within the law of unjust enrichment and reaffirmed the statement in Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at p. 997, that “the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases.” I refer to this point because, although this is a family law case, the determination of the limitation period issue will have ramifications beyond family law. The resolution of the limitation period issue cannot turn on the fact that this is a family law case. Thus, in my view, the fact that the Family Law Act prescribes a limitation period for claims under that Act cannot be determinative of the limitation period issue.

I recognize that Cromwell J. went on to hold at para. 34, again referring to Peter, at p.997, that the courts must “exercise flexibility and common sense applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases”.  Indeed, the family law context was front and centre when considering the remedy for unjust enrichment in such cases. But, in my view, the resolution of the strictly legal question as to the application of the Limitations Act, 2002 and the Real Property Limitations Act turns on the interpretation of the relevant provisions of those Acts. The issue of whether the Real Property Limitations Act applies to a claim for a constructive trust will be the same whether the equitable claim for an interest in land arises out of a domestic relationship or a purely business transaction.

In Kerr, at para. 32, the court reiterated the by now well-known elements of a claim for unjust enrichment as developed in Canadian law: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff and the absence of a juristic reason for the enrichment. At this stage of the proceeding, those elements are not in issue. The motion judge was asked to deal with the legal issue on the assumption that the respondent could make out those elements: see para. 13 of the motion judge’s reasons. This case turns rather on the remedy for the unjust enrichment and how the remedies should be characterized.

Remedies for unjust enrichment are restitutionary and the court in Kerr affirmed that proprietary and monetary remedies are available for unjust enrichment. At para. 46, Cromwell J. described the two available remedies in these terms:

A successful claim for unjust enrichment may attract either a “personal restitutionary award” or a “restitutionary proprietary award”. In other words, the plaintiff may be entitled to a monetary or a proprietary remedy (Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574, at p. 669, per La Forest J.).

Further, Cromwell J. also noted that the court should first consider whether a monetary award is sufficient; in most cases it is: para. 47. Most of Kerr is concerned with calculating the monetary award. The case does, however, refer to the proprietary award in several contexts. The first context is where the plaintiff, like this respondent, seeks a constructive trust. Justice Cromwell explains as follows at para. 50:

The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required. Pettkus is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust. Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property (Pettkus, at pp. 843-44 and 847-48). Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour (Pettkus, at pp. 852-53; Sorochan, at p. 50). Pettkus made clear that these principles apply equally to unmarried cohabitants, since “[t]he equitable principle on which the remedy of constructive trusts rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs” (pp. 850-51). [Emphasis added.]

Kerr also makes the point that there must be a significant link between the plaintiff’s contribution and the property that she seeks to have impressed with the trust. As Cromwell J. said at para. 51:

As to the nature of the link required between the contribution and the property, the Court has consistently held that the plaintiff must demonstrate a “sufficiently substantial and direct” link, a “causal connection” or a “nexus” between the plaintiff’s contributions and the property which is the subject matter of the trust (Peter, at pp. 988, 997 and 999; Pettkus at p. 852; Sorochan, at pp. 47-50; Rathwell, at p. 454). A minor or indirect contribution will not suffice (Peter, at p. 997). As Dickson C.J. put it in Sorochan, the primary focus is on whether the contributions have a “clear proprietary relationship” (p. 50, citing Professor McLeod’s annotation of Herman v. Smith (1984), 1984 CanLII 1238 (AB QB), 42 R.F.L. (2d) 154, at p. 156). Indirect contributions of money and direct contributions of labour may suffice, provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property (Sorochan, at p. 50; Pettkus, at p. 852).

With that background I return to the interpretive issue and specifically to the question of whether an application for the equitable remedy of a constructive trust in real property is an application for recovery of any land. In my view, the respondent is making a claim for recovery of land in the sense that she seeks to obtain land by judgment of the Court. That the court might provide her with the alternative remedy of a monetary award does not take away from the fact that her claim is for a share of the property. The repeated references to constructive trust as a remedy for unjust enrichment in Kerr demonstrate that a proprietary remedy is a viable remedy for unjust enrichment where there is a link or causal connection between her contributions and the acquisition, preservation, maintenance or improvement of the property.

In sum, I agree with the motion judge’s conclusion at para. 80 of his reasons:

From the plain meaning of the words “action to recover any land” in section 4 of the Real Property Limitations Act, in their “entire context” as described above, I find that the applicant’s claim in this case for an ownership interest in the house in question is an “action to recover any land” within the meaning of section 4 of the Real Property Limitations Act. It is subject to a ten year limitation period. Based on the record before me, it is not possible for me to conclude that the applicant’s claim in this case is barred by the ten year limitation. Accordingly, this part of her claim is entitled to proceed.”

McConnell v. Huxtable, 2014 ONCA 86 (CanLII) at 33-39

“Under s. 18 [of the Child Support Guidelines], the court has a discretionary power to include all or part of the pre-tax income of a corporation where it has determined that the amount of the payor’s annual income, as determined under s. 16, does not fairly reflect all the money available to the spouse for the payment of child support.  The factors a court ought to consider were set out in Koester v. Koester, 2003 CanLII 2150 (ON SC), [2003] CarswellOnt 5372 (S.C.J) at para. 34:

(a)    To what extent is the availability of access to pre-tax corporate income restricted by the ownership structure?

(b)    What restrictions on availability are imposed by nature of the corporation’s business including the amount of capital equipment required, the nature of the industry in which the company operates, the outlook in terms of expansion or contraction, the level of debt as well as any banking or financing restrictions?

(c)     Historical trends and practices of the corporation.”

Turk v. Turk, 2008 CanLII 3420 (ON SC) at 35

“I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.

Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.

Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.

Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation. In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes.”

         Moore v. Getahun, 2015 ONCA 55 (CanLII) at 62-65