Siegel's Family Court Calendar

“The law on costs claimed by a self-represented litigant is set out in detail in Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814. In it, Justice Pazaratz followed Price J.’s decisions in Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, [2010] O.J. No. 3307, and Cassidy v. Cassidy, 2011 ONSC 791, [2011] O.J. No. 1053.

The following principles are taken from these aforementioned cases:

•   The Court of Appeal [in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 O.J. 4600 (Ont. C.A.)] confirmed a self-represented litigant’s entitlement to costs.

•   Self-represented litigants are not entitled to costs calculated on the same basis as litigants who retain counsel.

•   The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

•   Costs should only be awarded to those lay litigants who can demonstrate they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.

•   A party with counsel, opposite an unrepresented litigant, should not perceive that they are immune from a costs award merely because such opposite party is unrepresented. They should be discouraged from presuming they will face only nominal costs.

•    The right of a self-represented litigant to recover costs is not automatic. Quantification of those costs may be difficult. But without the option of awarding meaningful costs to self-represented litigants, the court’s ability to encourage settlements and discourage inappropriate behaviour will be greatly diminished.

•   Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 of the [FLR] apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.

•   If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award of costs.

•   To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable, and disabled; and deprive courts of a tool required re administration of justice.

•    Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value.  The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult—but not impossible—to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.

•   An “applicable hourly rate” should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.

•    In considering the appropriate hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.

•    Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant’s lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party’s efforts to settle because that party is a self-represented litigant.

•   The hourly rate of the lawyer representing the unsuccessful party is only one of several factors to be considered. It does not necessarily entitle the successful self-represented party to claim the same rate for time spent.

•   As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the [FLR’s] Rule 18 and 24 considerations.

•   There are no automatic calculations. We should not simply use the hourly rate for the opposing lawyer, or the hourly rate the self-represented litigant earns outside of court.

•   The quality of the self-represented litigant’s work and documentation must be considered, and its impact on hearing time and trial results. The emphasis must be on the value of the work done. This encompasses both the value of the work to the Court and the value of the time spent to the litigant who performed the work, or who hired a lawyer to perform it.

•   Calculating the amount of time the self-represented litigant should be compensated for can be a complex endeavour. All litigants suffer a loss of time through their involvement in the legal process. A self-represented litigant should not recover costs for the time and effort any litigant would have to devote to the case, including attendances in court where the party would ordinarily attend.

•   But if the self-represented litigant demonstrates he/she did the work ordinarily done by a lawyer, then they will have justified receiving an award of costs—including time spent on communications, drafting documents and correspondence, preparation and compensation for time spent arguing their case.

•   Self-represented litigants may be held to the standards of civility expected of lawyers and a proper reprimand for failure to do so is an award of costs on a substantial indemnity basis. Where either a litigant or his/her lawyer acts unreasonably, by incivility or otherwise, it is a factor that may result in discounting the costs that should otherwise be awarded. This discounting is a necessary part of quantifying costs and is consistent with the overall purpose of costs awards in improving the efficiency of the administration of justice.”

         Browne v. Cerasa, 2018 ONSC 2242 (CanLII) at 30-31

“As for the wife’s expenses, before turning to his analysis of the unequalized portion of the pension issue, the motion judge cited Boston v. Boston for the proposition that “where a pension is equalized by way of a lump sum payment, the payee is under an obligation to use those assets in an income-producing way … to create an ‘pension’ to provide for her future.”

However, Boston does not require the payee spouse to immediately invest the equalization assets. Instead, she must use them to generate income by the time the pension-holding spouse retires: see Boston at para. 54.”

Slongo v. Slongo, 2017 ONCA 272 (CanLII) at 108-109

“On a summary judgment motion, the judge must first determine if there is a genuine issue requiring a trial based only on the written evidence before her.  If the answer to this question is no, the court must grant summary judgment.  If it appears that there is a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion provided that doing so is not contrary to the interest of justice. Their use will not be contrary to the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See Hryniak v. Mauldin, 2014 SCC 7.”

CAS v. K.M. & A.T., 2019 ONSC 2089 (CanLII) at 28

“The Family Law Act, s. 55 (1), requires that domestic contracts be made in writing, signed by the parties and witnessed.  However, in Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524, the Court of Appeal confirmed that the court has jurisdiction to enforce settlements.

The Ontario Court of Appeal in Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.), stands for the proposition that if litigation is commenced, compliance with section 55(1) of the Family Law Act is not required. A settlement may be enforced in accordance with the principles set out in this Scherer case.

Justice Perell in Pastoor v. Pastoor (2007), 2007 CanLII 28331 (ON SC), 48 R.F.L. (6th) 94 (Ont. S.C.), confirmed that settlements of existing matrimonial litigation do not need to comply with section 55 of the Family Law Act.  At paragraph 7, he quotes from Geropoulos at pp. 768-769:

The court’s jurisdiction to enforce settlement or refuse to do so, notwithstanding any agreement between solicitor or counsel, is well-established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court’s overriding jurisdiction with respect to domestic contracts.

In Harris v. Harris (1996), 7 O.T.C. 265 (Gen. Div.), Justice Laforme stated that Geropolous has been interpreted as holding that the courts should encourage settlement and retain the discretion to determine whether a settlement is enforceable.

Although the agreement does not have to conform with the Family Law Act section 55, Justice Laforme indicated in Harris at paragraph 10, that there were certain factors that the court should consider when determining whether a settlement is enforceable:

1.  Was either of the parties represented by legal counsel or the beneficiary of legal advice?

2.  Was either party otherwise disadvantaged at any time during the course of the negotiations?

3.  Can the written material the parties prepared, or the oral presentations, that are being relied upon support a prima facie conclusion that either constitutes a settlement agreement?

4.  Does the evidence demonstrate that the parties intended that the written or oral representations or negotiations are to be binding on them?

5.  Was there an intention that some final act or determination be made before the settlement was to be final and binding?

6.  Does the enforcement or non-enforcement of the negotiated resolution result in an injustice to either of the parties?

7.  Does enforcement encourage negotiated settlement and discourage litigation and does it support the overall purpose and intent of the principles of the Family Law Act?

At common law, the acceptance must match the offer. An acceptance that indicates different terms cannot accept the offer. Did the father reasonably understand that the mother’s communication constituted an acceptance?  See: UBS Securities Canada Inc. v. Sands Brothers Canada, Ltd., 2007 ONCA 405, 224 O.A.C. 315.

In determining whether a contract was formed and hence should be enforced, the court must apply the objective test of contract formation. The Court of Appeal quotes from Waddams on the Law of Contracts (5ed) at page 103:

But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an inquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee.

It is a basic principle of contract law that an offer which is responded to with an acceptance including an added condition is a counter-offer.”

J.S.G. v. E.M.G., 2016 ONSC 2233 (CanLII) at 34-41

“Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where:

a)      it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return.

There are limited defences to the operation of Articles 3 and 12. For instance, where the habitual residence of the child has changed, a defence against an application for his or her mandatory return to the former habitual residence will be available. Further, Article 13(a) of the Hague Convention provides that the mandatory return of the child is not required where the person having the care of the child had consented to or subsequently acquiesced in the removal or retention of the child.”

Unger v. Unger, 2017 ONCA 270 (CanLII) at 2-4

“When the Court grants an order for Crown Wardship, there is presumption in the legislation against access.  The onus is then on the party seeking access to demonstrate that the criteria under s. 59(2.1) [of the Child and Family Services Act (Ontario)] are fulfilled to rebut the presumption against access. The presumption will not be rebutted unless the party seeking access can show that access would be meaningful and beneficial to the child. In addition, the party seeking access must demonstrate that an access order would not interfere with the child’s opportunity for a permanent placement.

In Children’s Aid Society of Niagara Region v. V.J.(M.), (2004), 2004 CanLII 2667 (ON SC), 4 R.F.L. (6th) 245 (ON SC), the CAS obtained a crown ward status for six children.  Access was found not to be beneficial or meaningful to three of the youngest children and termination of access would not have a negative impact on them.

On p. 9, para. 45, Justice Quinn indicates the following:

A beneficial relationship is one that is advantageous.  A meaningful relationship is one that is significant.  Consequently, even if there are some positive aspects to the relationship, that is not enough.  It must be significantly advantageous to the child.

Justice Quinn speaks of:

…an existing relationship between parent and child and not a future relationship as it precludes the Court from considering whether a parent might cure their shortcomings as to create, in time, a relationship that may be beneficial and meaningful to the child.  This accords with common sense for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

In Native Child and Family Services of Toronto v. K.W.H., 2007 ONCJ 169 at paras. 40-43, Justice Murray stated that “case law has observed that the fact that a relationship is pleasant is not sufficient for it to be beneficial and meaningful.  The relationship must be significantly advantageous to the child.”

In Children and Family Services for York Region v. J.E., [2008] O.J. No. 3948, Justice Graham noted at paras. 174-180:

Some evidence indicates that access visits with Ms. E are meaningful to child P. In particular, P has stated that Ms. E is special to her.  P enjoys the visits and is sad when they do not occur. On the other hand, as noted by Ms. Sheehan, the degree of attachment demonstrated by P towards Ms. E is limited and as noted by Ms. W, P is easily consoled when visits are cancelled.  Further simply enjoying visits and having an emotional bond with the visitor are not sufficiently significant to be meaningful.

At para. 179, he was noted as follows:

Ms. E has shown only a limited commitment to P.  Although her attendance and her conduct at access has improved, she has not had sufficient commitment to P to complete an anger management course or parenting course prior to trial despite having had 3 ½ years to do so.” Further, her access continued to be supervised at the Society. The Court found that “Ms. E had not met her burden of proving on a balance of probabilities that her relationship with P is meaningful and beneficial to P within the meaning of s. 59(2)(a) of the CFSA.”

In Catholic Children’s Aid Society of Toronto v. S.R.M, [2006] O.J. No. 1741, Justice Zuker interpreted s. 59(2) at para 168 and added at paras 169 and 170:

I read s. 59(2) as speaking of an existing relationship between the person seeking access and the child and not a future relationship…

Even if the relationship is beneficial and meaningful as a final precaution I think that there must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

In Children’s Aid Society of Hamilton, (supra), Justice Gordon concluded at para. 242:

There is some attachment or bond established over time; however it appears to be done out of routine and not from parenting. D.H. enjoys time with his parents and there is obviously some benefit to him.”

The Children’s Aid Society of Ottawa v. T-L.L, 2016 ONSC 2128 (CanLII) at 320-327

“The trial judge concluded that the mortgage was a sham. He found that the mortgage was put in place to “trick” third party claims, or to recover only from the wife if the marriage failed.

The most commonly cited definition of the sham doctrine is that of Lord Diplock in Snook v. London & West Riding Investments Ltd., [1967] 1 All E.R. 518 (C.A.). He stated, at p. 528, that a sham means:

[A]cts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties the legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create… [F]or acts or documents to be a “sham”, with whatever legal consequences follow from this, all parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

This definition of a sham has been cited many times by all levels of Canadian courts, including the Supreme Court of Canada. In Stubart Investments Ltd. v. The Queen, 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536, 1984 CarswellNat 222, at para. 51 (WL Can), Estey J. described the element of “deceit” as being at the heart of the sham doctrine. In discussing the required level of deceit in Antle v. Canada, 2010 FCA 280, 413 N.R. 128, at para. 20, Noël J.A. held that it suffices that the parties to a transaction present it as being different from what they know it to be. The majority of cases involving the sham doctrine arise in the tax context, but the doctrine has been used in appropriate cases to strike down mortgages: see Moghimi v. Dashi, 2016 ONSC 2580.”

S.A. v. A.A., 2017 ONCA 243 (CanLII) at 35-37

“Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice: Surgeoner v. Surgeoner (1991), [1992] O.J. No. 299, 6 C.P.C. (3d) 318, 31 A.C.W.S. (3d) 1247 (Ont. Gen. Div.); Ricafort v. Ricafort, [2006] O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 16.

The wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice: Kassay v. Kassay, 2000 CarswellOnt 3262, 11 R.F.L. (5th) 308, [2000] O.J. No. 3373 (Ont. S.C.J.), para 15.

The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a parent to believe that she “knows what is right,” even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, supra.

The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it: Ricafort v. Ricafort, [2006] O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554, 171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 18.”:

Peers v. Poupore, 2012 ONCJ 306 (CanLII) at 21-24

“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.).

The Ontario Court of Appeal in Drygala, set out the following three questions that should be answered by a court in considering a request to impute income:

1.Is the party intentionally under-employed or unemployed?

2.If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3.If not, what income is appropriately imputed?

In answering the first question in Drygala, the court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.

The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (Canlii) (CanLII).

When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23.  It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (Ont. S.C.J.), at paragraph 19.”

Bennett v. Reeves, 2014 ONCJ 145 (CanLII) at 19-23

“It has always been accepted that on occasion it is not only desirable but necessary that the trial judge question a witness for the purpose of clarification of the evidence. However, it is appropriate to recall the words of this court in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (C.A.), where the court addressed the issue of interventions by a trial judge.  At p. 205, the court stated:

When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants.  His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”.  Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction.  The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

In the present case, the trial judge crossed the line set out in Majcenic.  The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel’s conduct of the trial.  The trial judge effectively took the case into his own hands and out of the hands of counsel: see J.M.W. Recycling Inc. v. Attorney-General of Canada (1982), 1982 CanLII 1947 (ON CA), 35 O.R. (2d) 355 at p. 362 and Farrar v. Farrar (2003), 2003 CanLII 15943 (ON CA), 63 O.R. 141 (C.A.) at paragraph 25.

This court has stated on numerous occasions that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed: see for example Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 1995 CanLII 1069 (ON CA), 23 O.R. (3d) 362 (C.A.).  This is such a case.

 Ross v. Hern, 2004 CanLII 16950 (ON CA) at 11-13