Siegel's Family Court Calendar

“If the legislative scheme is no longer available to the appellants because they long ago ceased being children, I do not think that they can assert a right to some equitable remedy to obtain, in effect, what might have been obtained had the legal remedies been pursued in a timely fashion. La Forest J. dealt with that issue in Frame v. Smith at pp. 114-15 S.C.R.:

The Legislature created the rights of custody and access and, as we saw, provided a whole array of remedies for enforcing them, from directions for supervising access, to restraining orders against interference, to apprehending the child, if necessary by permitting entries into premises and searches by the police or the sheriff, to fines and imprisonment. Why the legislature should be thought to have intended enforcement by an action for breach of a fiduciary obligation when there is a failure to comply with an access order, when an intention to permit a tortious action will not be implied, I fail to understand. All the more so when the Legislature has taken pains to abolish all non-statutory actions that had any obvious relevance to the matter. Indeed there are in my view stronger reasons to doubt that the Legislature would have contemplated recourse to this action. It is extremely ill- defined and it would scarcely be one that would immediately leap to mind.

In this respect, I agree with the motions judge when she said the following [at p. 295 O.R.]:

Parents have an obligation to support their dependent children. There are serious consequences for those who default. They can lose their drivers’ license. They can lose their passport. They can go to jail. The stringent enforcement provisions reflect the moral outrage of a society that labels them “deadbeats”. But the laws are meant to provide for children. They are meant to ensure that children receive support for their day-to-day needs while they are dependent. Child support legislation was not intended to operate as a weapon in the hands of grown-ups who sue their parents for perceived deficiencies in their upbringing. That is why the Supreme Court of Canada [in Frame v. Smith] refused to allow persons to sue for damages for breach of a family law statutory obligation. The statutory scheme provides the entire remedy. If the legislature had intended to extend the remedy to damages, it would have said so.”

Louie v. Lastman (No.1), 2002 CanLII 45060 (ON CA) at 20-21

“A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other.  Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute.  In my opinion, the plain language of s. 4 is consistent with such an interpretation.  Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”.  Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000.  I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.

I add one final comment.  As noted above, Abella J.A. was concerned with the differential treatment of children.  In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines.  The plain wording of s. 4(b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income.  They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000.  Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded.  In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent.  However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments.  Section 26.1(2) of the Act states that “[t]he guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added).  While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs.  In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.  I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support.  But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.  Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4.  In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support.  This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”. 

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-41

“The Ontario Rules of Civil Procedure refer to three “scales” or “ranges” for costs award, namely “partial indemnity costs”, “substantial indemnity costs” and “full indemnity” costs.  The Family Law Rules do not make reference to these scales, but adopt the phrase “full recovery” costs as being the appropriate award in certain situations.   There has been some discussion about whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the full amount claimed and the concept of “substantial indemnity.” (See Mary Jo Maur and Nicholas Bala, “Re-thinking Costs in Family Cases:  Encouraging Parties to Move Forward,” paper presented at the National Family Law Program, July 2014, Whistler, British Columbia.). In my view, the term “full recovery” refers to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed.  In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91).  This conclusion accords with the case-law in the civil context which has interpreted the phrase “full indemnity costs.” (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)). While the Family Law Rules outline certain circumstances in which full recovery costs are appropriate, the court is not limited to making a full recovery award in those specified situations (Sims-Howarth). It is ultimately a matter of the court’s discretion to determine whether full recovery is appropriate having regard for the particular circumstances of the case.”

E.L. v. N.R., 2017 ONSC 5406 (CanLII) at 34

“A domestic contract and its intent remind the court of the old advertisement a deoderant soap, namely that it “takes the worry out of being close”.  However, once the fragrance of the relationship dissipates, the emotional consequences of the breakdown of the relationship motivate parties to closely scrutinize the agreement that was made; rarely is it that both parties find fault with their agreement and frequently, one wishes to rely upon it and the other wishes to set it aside.  Television and its fictional interpretation of reality (perhaps), provided us with attorney Arnold Becker who stated “I’ve never seen a prenup I couldn’t break”

Balsmeier v. Balsmeier, 2014 ONSC 5305 (CanLII) at 43

“By way of analogy, for appeal purposes in ordinary civil proceedings, an order for security for costs is regarded as a procedural order from which there is no right of appeal. Such an order is interlocutory in nature, incidental to the resolution of the subject matter of the dispute, and, accordingly, an appeal only lies to the Divisional Court with leave: see Susin v. Chapman, [1998] O.J. No. 2472, 1998 CanLII 3224 (C.A.); Shuter v. Toronto Dominion Bank, [2007] O.J. No. 3435, 2007 CanLII 37475 (S.C.J.).

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders — for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings — may carry the ultimate sanction of dismissal of the non-complying party’s claim. But if the claim is dismissed, the dismissal flows from the party’s failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to dismissal: see Laurentian Plaza Corp. v. Martin (1992), 1992 CanLII 7561 (ON CA), 7 O.R. (3d) 111, [1992] O.J. No. 230 (C.A.).”

Inforica Inc. v. CGI Information Systems and Management Consultants Inc, 2009 ONCA 642 (CanLII) at 26

“A party attorns to a court’s jurisdiction when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits: see Van Damme v. Gelber, 2013 ONCA 388 (CanLII), 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused, [2013] S.C.C.A. No. 342; and Wolfe v. Wyeth, 2011 ONCA 374 (CanLII), 282 O.A.C. 64, at para. 44.”

Kunuthur v. Govindareddigari, 2018 ONCA 730 (CanLII) at 18

“This basic understanding of the common sense meaning of the words “interim” or “temporary” has long been recognized by various courts. In Ford v. Ford, the Court confirmed Justice Zuber’s comments in Sypher:

… interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

In B. (A.) v. A. (N.L.), Justice Czutrin observed:

Except for motions to change orders under Rule 15 or summary judgment motions under Rule 16, most motions are either procedural or result in temporary orders which are intended to last only until a subsequent consent final order or a final order made after a trial.

In Oxley v. Oxley, Justice Boswell noted:

Temporary orders for support, as the name suggests, are not final orders. They were formerly known as “interim orders”, referencing the fact that they were intended to cover the interim period between the commencement of proceedings and trial. The Family Law Rules now use the term “temporary” to underscore the notion that they are not intended to be long term solutions. They are by their nature imperfect solutions. They are based on limited and typically untested information. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (Ont. S.C.J.) per Sachs J.”.

Hamdy v. Hamdy, 2015, ONSC 5605 (CanLII) at 16-18

“The responding party applied for, but was denied, leave to proceed with his appeal. Section 140 of the [Courts of Justice] Act makes it clear that, in those circumstances, he had no right to institute or continue an appeal in this court:

• • •  s. 140(1)of the Act permits a judge of the Superior Court of Justice to order that no further proceeding be instituted by a vexatious litigant in any court or that a proceeding previously instituted not be continued;

• • •  s. 140(3)of the Act requires that where a vexatious litigant seeks leave to institute or continue a proceeding, “the person shall do so by way of an application in the Superior Court of Justice”;

• • •  s.140(4)(a) of the Actsets out the test for leave; and

• • •  s. 140(4)(e) provides that “no appeal lies from a refusal to grant relief to the applicant.”

However, the responding party argues that, under rule 2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this court may, and should, dispense with compliance with the requirement that he obtain leave.

We do not accept this submission. Rule 2.03 provides that a court “may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time” (emphasis added). Rule 2.03 permits a court to dispense with compliance with the Rules of Civil Procedure. It does not authorize a court to dispense with compliance with the statutory leave requirement set out in s. 140 of the Act.”

         Vermette v. Nassr,2016 ONCA 658 (CanLII) at 6-8

“Under subrule 20.04(2) [of the Rules of Civil Procedure], summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

As set out in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process.  This is the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1).  If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, supra, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct a procedure such as a mini-trial, rather than a full trial.

The responding parties may not rely on the prospect of additional evidence that may be tendered at trial; the respondents must put their best foot forward on the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII) (Ont. S.C.J.), at para. 26, aff’d 2014 ONCA 878 (CanLII) (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).

In Sanzone, the Court of Appeal addressed cases such as this one where a respondent on a motion for summary judgment is self-represented:

Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36…

Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36.  A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”

Kanafani v. Hughes, 2017 ONSC 5253 (CanLII) at 60-64

“The trial judge admitted Ms. Brydson’s evidence under the principled exception to the hearsay rule, as articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787. The principled exception allows the admission of a hearsay statement if two conditions are fulfilled: necessity and reliability. While these are separate requirements, they should not be considered in isolation, as one could affect the other: Khelawon, para. 77.

Necessity is to be interpreted flexibly, and is not restricted to the absolute unavailability of a witness: Khelawon, para. 78. Given that Ms. Brydson was in Jamaica and not Ontario, that the parties’ focus was on the reliability requirement, and the conclusion I come to on that issue, I need not discuss necessity further.

Reliability is to be assessed functionally, by focusing “on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers”: Khelawon, para. 93. In general, the reliability requirement can be satisfied by showing either of the following conditions.

First, it is possible that despite being hearsay, “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon, para. 62. In other words, though the statement is hearsay, we can put “sufficient trust in [its] truth and accuracy”: Khelawon, para. 62. The court may consider the presence of corroborating or conflicting evidence to determine the inherent trustworthiness of the statement: Khelawon, paras. 93-95. The court may also consider whether the declarant was able to perceive the events described in the hearsay statement: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 933-35.

Alternatively, it may be that “no real concern arises from the fact that the statement is presented as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”: Khelawon, para. 63. This requirement may be met if the declarant is available for cross-examination: Khelawon, at para. 66.

In all cases, the principled exception to the hearsay rule operates as a case-by-case exception, and courts must resist any temptation to reduce the principled exception to a categorical or pigeon-holing exercise: Khelawon at para. 45.”

         Clayson-Martin v. Martin, 2015 ONCA 596 (CanLII) at 27-32