Siegel's Family Court Calendar

“The appellant submits that the trial judge placed insufficient weight on the evidence of Dr. Jaffe. The trial judge preferred Dr. Butkowsky who had known the child and the family for nearly all of the child’s life. That he placed little weight on the evidence of Dr. Jaffe who never met the child, is not surprising. Indeed, it is not clear that Dr. Jaffe’s evidence was admissible in the first place.

Several trial judges have admitted critique evidence and then discounted its weight. However, other courts have determined that it is not admissible because it does not meet the criteria set out in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 SCR 9. In Mayfield v. Mayfield (2001) 2001 CanLII 28213 (ON SC), 18 R.F.L. (5^th) 328, Justice Wein ruled that evidence critiquing an assessment report was not admissible. After considering the threshold of “helpfulness” often applied in family law cases, she said:

Prior to the decision in Mohan, the general standard for admissibility of expert evidence was the relatively low threshold of “helpfulness.”….[S]ubsequent to Mohan, the Court in effect had been asked to function as a “gatekeeper,”….[T]he standard of helpfulness was explicitly rejected as being too low….(para. 34)

She went on to find that critique evidence will “rarely” be admissible. She said that:

[I]n most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique…it will rarely, if ever, be “necessary” to introduce the critique as original evidence or to call the critique as a witness. (para. 44)

Her words were cited with approval by this court in Sordi v. Sordi, 2011 ONCA 665. This was an appeal from a custody order. The trial judge had refused to admit critique evidence. Epstein J.A. “strongly supported” the view set out in Mayfield and said:

I find no fault with the trial judge’s refusal to admit the [critique] on the basis of (1) its frailties, and (2) the fact that its value – to impeach the report of the court-appointed expert – remained available to the appellant through cross-examination and, ultimately, argument. (para.14)

When these considerations are applied to Dr. Jaffe’s report, it is evident why the trial judge gave it little weight. Dr. Jaffe’s self-described task was to “raise concerns” about the court-appointed assessment. It would be difficult to find that such evidence meets the criteria of Mohan.

I too support the view that critique evidence is rarely appropriate. It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”

M. v. F., 2015 ONCA 277 (CanLII) at 29-34

“There is a division in the case law regarding the applicability of the general two-year limitation period prescribed by s. 4 of the Limitations Act, 2002, to cases of ongoing oppression. The positions of the parties on this appeal reflect this division.

…

In my view, an oppression remedy claim under the OBCA [Ontario Business Corporations Act] is subject to the general two-year limitation period prescribed by s. 4 of the Limitations Act, 2002. Oppression is not listed under s. 16 as a claim to which no limitation period applies, nor is it exempted under s. 19 of the legislation. Special circumstances are also not available to extend the limitation period.”

            Maurice v. Alles, 2016 ONCA 287 (CanLII) at 36 & 43

“Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement. But the judge also considers all other evidence relevant to the child’s habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot unilaterally change a child’s habitual residence, or that a parent’s consent to a time-limited stay cannot shift the child’s habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal.”

Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII) at 73

“An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere.”

Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII)

“Professors Rogerson and Thompson, writing in the SSAG, tie the claim to postseparation increases in income to “some rough notion of causation”. They write at para. 14.3:

Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).

In the [Revised Users Guide] Professors Rogerson and Thompson make clear that “some rough notion of causation” is not to be taken as requiring a clear line of causation between the relationship and the income increase. They state:

It would be better to describe it as a “link” or “connection”, between the marriage and the increase after separation. That has certainly been the approach of most courts, especially those in B.C. and Ontario.

Professors Rogerson and Thompson add that, strictly speaking, a finding of compensatory entitlement is not a prerequisite to a spouse sharing in post-separation income increases, particularly in long-term marriages. They say:

The basis of entitlement has a significant impact upon the degree of sharing of increases, with compensatory claims more likely to result in sharing than non-compensatory claims, but not exclusively so. There can be sharing—partial, or even full—in non-compensatory cases too, especially after long marriages.

The authors add that practically speaking, cases regarding post-separation income increases are “complex … involving a mix of facts and legal factors, with a strong discretionary element to the final judgment.”

Cameron v. Cameron, 2018 ONSC 2456 (CanLII) at 66-69

“In DMello v. Law Society of Upper Canada, 2013 ONSC 6857, Himel J. reviewed the general principles governing an extension of time, as well as the Byers decision that holds that the time to appeal runs from the date of judgment not the date costs are awarded, as follows:

[12]           The Byers decision sets out a detailed analysis of the effect of a costs judgment rendered after the rendering or release of the judgment on its merits.   Justice Borins noted that the two decisions are separate determinations and concluded at para. 16 that “…a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case.”  He disagreed with counsel’s position that the release of the trial judge’s costs decision in effect extended the time for serving the appellant’s notice of appeal from the merits judgment to thirty days following that date.  Following a historical review of the jurisprudence, he determined that a judgment on the merits is final and appealable when it finally disposes of the proceeding, that the time for appealing runs from the date that the judgment is pronounced and that the awarding of costs does not have the effect of extending the time for filing an appeal.”

         Siddiqui v. Franchetto, 2016 ONSC 2499 (CanLII) at 4

“Irrespective of whether the proposed support is periodic or lump sum, it is incumbent upon counsel to provide the judge deciding the matter with submissions concerning the basis for awarding and the method of calculating the proposed support, together with a range of possible outcomes. Further, it is highly desirable that a judge making a lump sum award provide a clear explanation of both the basis for exercising the discretion to award lump sum support and the rationale for arriving at a particular figure. Clear presentations by counsel and explanations by trial judges will make such an award more transparent and enhance the appearance of justice. Over time, this approach will undoubtedly foster greater consistency and predictability in the result.

As part of this approach, where an award of lump sum spousal support is made as a substitute for an award of periodic support, it is preferable that, with the benefit of submissions from counsel, the judge consider whether the amount awarded is [in keeping with the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (the “Guidelines”). If it is not, some reasons should be provided for why the Guidelines do not provide an appropriate result: Fisher v. Fisher (2008), 2008 ONCA 11 CanLII, 88 O.R. (3d) 241, [2008] O.J. No. 38 (C.A.), at para. 103.”

Davis v. Crawford, 2011 ONCA 294 (CanLII) at 75-76

“In Van v. Palombi, [2017] O.J. No. 2288, 2017 ONSC 2492 (Ont. S.C. Div.) (CanLII), the Divisional Court held that the case law well establishes that the legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows:

(1)   Is there a triggering event justifying the striking of pleadings?

(2)   Is it appropriate to strike the pleadings in the circumstances of the case?

(3)   Are there other remedies in lieu of striking pleadings that might suffice?

However, the case law is clear that striking a party’s pleadings is a remedy of last resort. In a number of decisions, the Ontario Court of Appeal has made it clear that the power to strike out a party’s pleadings should be used sparingly and only in exceptional cases. See Roberts v. Roberts, 2015 ONCA 450 (CanLII), [2015] O.J. No. 3236, 2015 Cars­well­Ont 9247 (Ont. C.A.); Manchanda v. Thethi, 2016 ONCA 909 (CanLII).

Even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Given the exceptional nature of the remedy, the court should examine other remedies that might be appropriate in lieu of striking pleadings, which is the third step of the three-pronged test. See Van v. Palombi, supra, at paragraph 36.

In Chiaramonte v. Chiaramonte, the Ontario Court of Appeal held that in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice, following its earlier decision in Purcaru v. Purcaru. The Court of Appeal went on to say as follows at paragraph 32 of that decision:

“Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way.  For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.”

Where custody and access interests are involved, the court should avoid the sanction of striking pleadings or use utmost caution because trial courts need the participation of both parties and information that each can provide about best interests. A full evidentiary record, which involves the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486 (CanLII), [2009] O.J. No. 2466, (Ont. C.A.), cited with approval in D.D. v. H.D., [2015] O.J. No. 2959 (Ont. C.A.), and Haunert-Faga v. Faga, 2005 CANLII 39324 (Ont. C.A.), (2005), 20 R.F.L. (6th) 293 (Ont. C.A.).

Further, in Kovachis v. Kovachis, 2013 ONCA 663 (CanLII), the court held that on a motion to strike a party’s pleadings in the family law case because of non-compliance with court orders, the court must consider whether the default is willful and whether striking the pleadings is the only appropriate remedy.

The Court of Appeal has also stated that in exercising the discretion to strike pleadings, a court has the jurisdiction to order the reinstatement of pleadings on conditions. In Costabile v. Costabile, 2005 CarswellOnt. 6909 (Ont. C.A.), the court upheld the lower court’s decision to strike the appellant’s pleadings as the judge contemplated that the appellant would have the right to move to set aside the default and to try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. The Court of Appeal opined that this was “a sensible resolution of the matter” and given the broad discretion under the Family Law Rules, the Court also held that a family court judge had jurisdiction to make such an order.

Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman (2002), 2002 CanLII 44930 (ON CA), 28 R.F.L. (5^th) 447 (Ont. C.A.).

Finally, before striking a pleading for failure to pay support, the court must consider a payor’s financial circumstances and his or her ability to pay support. See Higgins v. Higgins, 2006 CanLII 33303 (ON CA), [2006] O.J. No. 3913 (Ont. C.A.). Courts have also given a party the opportunity to restore the pleading if arrears of support are paid. See Stein v. Stein, [2003] O.J. No. 2288 (Ont. C.A.); Roberts v. Roberts, 2015 ONCA 450 (CanLII).”

Rose v. Baylis, 2018 ONCJ 230 (CanLII) at 43-51

“Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.  As the Court of Appeal pointed out in Fisher v. Fisher, self-sufficiency, with its connotation of economic independence, is a relative concept.  It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation and could reasonably anticipate afterward.  It requires consideration of:

•   The parties’ present and potential incomes;

•   Their standard of living during cohabitation;

•   The efficacy of any suggested steps to increase a party’s means;

•   The parties’ likely post-separation circumstances (including the impact of equalization of their property);

•   The duration of their cohabitation; and

•   any other relevant factors.

The Court of Appeal stated in Linton:

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations.  In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent.  In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained.

L’Heureux-Dubé J. stated in Moge: “The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”

Although the doctrine of spousal support, which focuses on equitable sharing, does not guarantee to either party the standard of living enjoyed during the marriage, this standard is still relevant to support entitlement.   Furthermore, great disparities that would result in the spouses’ respective standards of living in the absence of support are often a revealing indication of the economic disadvantages inherent in the role that one of the parties assumed during the marriage.”

McConnell v. McConnell, 2015 ONSC 2243 (CanLII) at 65-68

“Justice D.C. Shaw set out an excellent and thorough review of the law in McKay v. Langstaff, 2015 ONSC 5223 commencing at paragraph 46:

(i)           The Law of Unjust Enrichment

[46]      The law on unjust enrichment arising out of the relationship between unmarried spouses has been comprehensively addressed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 S.C.C. 10. In Elkaim v. Markina 2011 ONSC 2586 (CanLII), at para. 9, Sachs J. summarized the framework set out in Kerr to assess property claims in common law relationships:

The law surrounding the resolution of property claims in common law relationships has recently been clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10.  In that case the Court found that the “common intention” approach to resulting trust has no “useful role to play” in the resolution of property claims by domestic partners on the breakdown of their relationships: at para. 29. The Court also found that the role of the parties’ reasonable or legitimate expectations in the unjust enrichment analysis was a limited one. Rather, the framework to be used can be summarized as follows:

(a)  First, the court must determine if there has been an unjust enrichment.

In doing so, the questions are:

•   Has the defendant been enriched?

•   Has the plaintiff suffered a deprivation?

• Is there “no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff?”: at para. 40.

It is in the consideration of the third stage, “if the case falls outside the existing categories” of juristic reasons for the retention of the benefit, then the court may consider looking to “the reasonable expectation of the parties and public policy considerations to assess…whether particular enrichments are unjust”: at paras. 43-44.

(b)  If the court finds that there is a basis for the unjust enrichment claim the court must then turn its mind to the question of what remedy is appropriate to “reverse the unjustified enrichment.” This may include either a “monetary or proprietary remedy”: at para. 46.

(c)  On the question of remedy, the first remedy to consider is “always a monetary award. In most cases it will be sufficient to remedy the unjust enrichment”: para. 47.

(d)  A proprietary award may be required if:

(i) the plaintiff has demonstrated a sufficiently substantial and direct link between his or her contributions and the property, in which case “a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”: at para 50; and,

(ii) the plaintiff has established that a monetary award would be insufficient in the circumstances. This involves considering the probability of recovery of such an award and considering whether “there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights”: at para. 52.

(e) If a monetary award is appropriate, the question then becomes how to quantify that award.

•  To do so, the court must first characterize the nature of the unjust enrichment claim. Is the basis of the “unjust enrichment…the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the plaintiff’s contributions to the joint venture and the accumulation of wealth”: at para. 81.

•  If so, “a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions”: at para. 87.

(f)          To determine whether a joint family venture exists, the court should have regard to the following factors as set out in Kerr v. Baranow at paras. 87-99:

(i) Mutual Effort: Did the parties pool their efforts and work together towards common goals?

(ii) Economic Integration: This involves considering how extensively the parties’ finances were integrated.

(iii) Actual Intent: What did the parties actually intend? Did they intend to have their lives economically intertwined or did they make the choice not to? This intent may be expressed or inferred from conduct.

(iv) Priority of the Family: This factor asks the court to consider to what extent the parties gave priority to the family in their decision making. “A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family.”

If the monetary award should not be quantified on a “joint family venture” basis, then the court should consider a “fee for service” or quantum meruit calculation. It is generally at this stage that the court will consider whether the claim should be discounted because of a mutual conferral of benefits.

[47]      At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit that justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at para. 788.

[48]      The Court has taken a straightforward economic approach to the first two elements – enrichment and corresponding deprivation: Kerr, para. 37.

38.     For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money.  Moreover, the benefit must be tangible.  It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (citations omitted).

39.     Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90).  That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (citations omitted).

[49]      The provision of domestic services can support a claim for unjust enrichment: Kerr para. 42.

[50]      During both the benefit analysis and the deprivation analysis, the court must resist the temptation to evaluate the reciprocal exchange of benefits. “Attempting to set-off or account for reciprocal benefits to show that the plaintiff has not suffered any detriment and is, in fact, better off than before is not appropriate” Wilson v. Fotsch, 2010 BCCA 5 (CanLII), [2010] B.C.J. No. 8 (B.C.C.A.), at para. 19. “The receipt of benefits by a plaintiff does not mean ipso facto that the defendant has not been unjustly enriched”: Wilson, para. 31.

[51]       Although mutual conferral of benefits should not be addressed at the benefit/detriment stage of the analysis, that is not to say that mutual benefits are to be ignored. Rather, as stated by Cromwell J. in Kerr, at para. 109:

109.  As I noted earlier, my view is that mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment.  Otherwise, the mutual exchange of benefits should be taken into account at the defence and/or remedy stage.  It is important to note that this can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.

[52]      At para. 124 of Kerr, Cromwell J. summarized the role of the parties’ reasonable expectations in the domestic context:

                        124.     To summarize:

1. The parties’ reasonable or legitimate expectations have little role to play in deciding whether the services were provided for a juristic reason within the existing categories.

2. In some cases, the fact that mutual benefits were conferred or that the benefits were provided pursuant to the parties’ reasonable expectations may be relevant evidence of whether one of the existing categories of juristic reasons is present. An example might be whether there was a contract for the provision of the benefits. However, generally the existence of mutual benefits flowing from the defendant to the claimant will not be considered at the juristic reason stage of the analysis.

3. The parties’ reasonable or legitimate expectations have a role to play at the second step of the juristic reason analysis, that is, where the defendant bears the burden of establishing that there is a juristic reason for retaining the benefit which does not fall within the existing categories.  It is the mutual or legitimate expectations of both parties that must be considered, and not simply the expectations of either the claimant or the defendant.  The question is whether the parties’ expectations show that retention of the benefits is just.

[53]      The concept of a “joint family venture” comes into play at the remedy stage, after it has been determined that there has been an unjust enrichment

         [55]      At para. 80, Cromwell J. held:

Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of what McLachlin J. referred to in Peter (at p. 1001) as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact.

        [56]      At para. 81, Cromwell J. described the appropriate remedy:

In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth.  Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life” (McCamus, at p. 366).  The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure.  Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”.  In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.”

            Peters v. Swayze, 2017 ONSC 1779 (CanLII) at 22