Siegel's Family Court Calendar

“Property is equalized under the [Family Law Act] through the three- step process set out by Cory J. in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4. First, a court determines the ownership of property under s. 4. Second, it calculates the equalization payment under s. 5(1). Third, and only after a determination of the first two steps, will a court turn its mind to what Cory J. described as “a last avenue of judicial discretion” provided by s. 5(6) to award an amount having regard to a spouse’s unconscionable conduct. This approach of determining ownership, equalization, and unconsionability, in that order, was confirmed in Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513, [1991] O.J. No. 788 (C.A.).

Clearly, a reapportionment of net family property under s. 5(6) is not a declaration about ownership of property, but only about distributing the value of the parties’ net family properties to redress unconsionable conduct. This is reinforced by the legislative restriction of s. 5(6)’s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse. See Hamilton v. Hamilton, 1996 CanLII 599 (ON CA), [1996] O.J. No. 2634, 92 O.A.C. 103 (C.A.) and Brett v. Brett (1999), 1999 CanLII 3711 (ON CA), 44 O.R. (3d) 61, [1999] O.J. No. 1384 (C.A.).

Accordingly, a s. 5(6) reapportionment is only available on those rare occasions when a party is able to meet the high threshold required to establish unconscionability. Only in such an exceptional case does the legislature give a court the discretion to fashion a remedy.”

         Von Czieslik v. Ayuso, 2007 ONCA 305 (CanLII) at 28-30

“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