Siegel's Family Court Calendar

“To succeed in the tort of defamation the plaintiff must prove three things:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damages are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. (Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640 at para. 28.)

Once the plaintiff proves the three essential elements on a balance of probabilities, the defendant can defend the claim by proving the defamatory words were true or that the words were part of a privileged communication absolute or qualified.

Qualified privilege was explained by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J.:

143        Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself.  As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.”

 

A.H. v. D.K. and E.A.,2018 ONSC 4173 (CanLII) at 65

“Under s. 2 of the Partition Act, R.S.O. 1990, c. P.4, courts should compel partition and sale unless the applicant has behaved maliciously, oppressively or with a vexatious intent: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at para. 15.”

         Scalia v. Scalia, 2015 ONCA 492 (CanLII) at 47

“Offers to settle are inadmissible in subsequent family law proceedings except when dealing with costs issues: see rule 18(8) of the Family Law Rules, O. Reg. 114/99. The same applies to draft minutes of settlement tendered on another party but not signed: Parreira v. Parreira, 2013 ONSC 6595 (CanLII). This rationale extends to a settlement that was agreed upon but could not be implemented. the Family Law Rules, O. Reg. 114/99.”

McKinnon v. McKinnon, 2018 ONCA 596 (CanLII) at 30

“Section 140(1) of the CJA [Courts of Justice Act] provides:

140(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

In my view, there is no conflict between s. 140 of the CJA and s. 17 of the DA. The statutes have different purposes. Section 17 of the DA provides statutory authority to a judge to vary, rescind or suspend support orders and custody orders. It also provides guidance for when such orders may be made. For example, before a variation order for spousal support can be made, the court must satisfy itself that there has been a change in the condition, means, needs or other circumstances or either former spouse. Similarly, before an order to vary custody can be made, the court must be satisfied that there has been a change in the condition, means, needs or other circumstances of the child of the marriage.

In contrast, s. 140 of the CJA does not deal in pith and substance with divorce, support or custody. Its purpose is to prevent abuses of the court’s process. It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious proceedings from instituting further legal proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody. As noted by Polowin J. in Beattie v. Ladouceur (2001), 2001 CanLII 28166 (ON SC), 23 R.F.L. (5th) 33 (Ont. S.C.J.) at p. 62 R.F.L.: “There is a significant body of case law with respect to the issue of vexatious litigation. It is perhaps not surprising that many of the cases involve family litigation where emotions often run very deep.” Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied. Indeed, this was the situation in Winkler, where Davidson J. observed, at p. 51 Man. R.:

The litigation between Mr. and Mrs. Winkler has, unfortunately, fallen into a regular pattern. Mrs. Winkler brings custody, access and support claims (among others) before the court; is unsuccessful, generally; costs are awarded against her, which she can’t pay; she waits a period of time, and then brings the same matters back before the court.

Accordingly, initiating new court proceedings could become a form of harassment of one’s former spouse. Section 140 of the CJA is a mechanism to prevent such abuse.”

         Ballentine v. Ballentine, 2003 CanLII 27775 (ON CA) at 21, 38-39

“Pursuant to s. 130 of the CJA, the court has the discretion to make an order for interest at a rate other than as prescribed by s. 128 (pre-judgment) or s. 129 (post-judgment).  However, the manner in which that discretion is exercised is mandated by s. 130(2) of the CJA.  That subsection provides that “the court shall take into account” six specific factors (ss.130(2)(a)-(f)).  Those factors include:

a)  Changes in market interest rates;

b)  The circumstances of the case;

…

e)  The amount claimed and the amount recovered in the proceeding; [and]

f)  The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.”

         Pitre v. Lalande, 2018 ONSC 3985 (CanLII) at 16

“The function of a status review hearing was explained as follows by the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165:

“37. The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection….

This flexible approach is in line with the objective of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail”.

Children’s Aid Society of Ottawa v. D.C.-L,2018 ONSC 3995 (CanLII) at 284.

“The Family Law Act an the Child Support Guidelines govern the obligations of a parent to pay child support and to contribute to child care expenses. If an adjustment is claimed with respect to amounts that were or should have been paid in the past, the proper remedy is to apply for an adjustment under the applicable legislative scheme. Absent a determination under such scheme, there is simply no entitlement to either a refund for past payments or compensation for payments not received and an action for damages does not therefore lie in relation to such amounts.

Considered in this context, the appellant’s civil action for damages against the respondent is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system. See Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307, in which Finlayson J.A. described the court’s inherent power to invoke the doctrine of abuse of process as follows at para. 31:

The court can still utilize the broader doctrine of abuse of process.  Abuse of process is a discretionary principle that is not limited by any set number of categories.  It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.”

Cunningham v. Moran, 2011 ONCA 476 (CanLII) at 39-40

“The test for granting leave to appeal [a temporary order] under Rule 62.02(4) [of the Rules of Civil Procedure] is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

The first test

Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

I have been directed to no conflicting decisions by the moving party on the issues involved in this case.  Accordingly, in my view, the prerequisites of this test have not been satisfied.

The alternative test

Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted.

It is not necessary that a judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.).

In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 O.R. (2d) 110 (Div. Ct.).”

Huang v. Braga, 2017 ONSC 3826 (CanLII) at 13-18

“As this court said in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 524 “…where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.” Judges are presumed to know the law.”

Hersey v. Hersey, 2016 ONCA 494 at 14

“Over a century ago, in Reid v. Aull, the court held that “Divorce assumes the previous existence of the marriage status. Its result is to put an end to that status without affecting its existence in the past.”

Nullity, on the other hand, was described in Kerr v. Kerr.  The court held that, in the context of insanity, “[s]uits for nullity on the ground of insanity seek not to dissolve an existing marriage, but to declare that no marriage exists.”

A divorce therefore can only be granted where there is a valid existing marriage and the cause for ending the marriage arises after the marriage has come into existence. A nullity, however, will be granted in two situations: 1) where there is no valid existing marriage from the very outset, or 2) where the marriage was validly entered into but the cause for ending the marriage existed from the very outset.

The grounds of nullity fall into the two categories above. In the first situation, where there is no valid existing marriage from the outset, the marriage is considered void ab initio, meaning “from the beginning.” A marriage void ab initio is considered never to have taken place. A decree of nullity is purely declaratory in such a case, and is not legally required in order to end the marriage because the marriage is void already.

In the second situation, where the cause for ending the otherwise valid marriage was existing at the time it was entered into, the marriage is considered voidable. A voidable marriage is considered to be a valid marriage, with all its rights and consequences, unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”

Recently, in the Ross-Scott v. Groves Estate, the British Columbia Supreme Court relied on an academic source to articulate the distinction between the void and voidable scenarios:

In Canadian Family Law, 5th Ed. Julien D. Payne and Marilyn A. Payne, the authors describe the distinctions between void and voidable marriages. At page 21, they say:

Marriages may be valid, void, or voidable accordingly to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction. A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses. […] A void marriage, however, is impeachable by third parties who “have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit”. […]A void marriage may also be impugned collaterally after the death of one or both spouses.

In the following situations, marriages are considered to be void ab initio:

•   One or both parties is married to another person at the time of marriage

•    One or both parties did not consent to the marriage or lacked the mental capacity to consent

•    The parties are related within prohibited degrees

•    One or both of the parties is under the age of majority at the time of marriage

•    The marriage ceremony was incomplete

In the following scenarios, marriages were considered voidable:

•   The marriage was entered into for fraudulent purposes

•   Consummation of the marriage is impossible because of a lack of capacity; or there is a wilful refusal of a party to consummate the marriage, for instance, due to repugnance.

Lowe v. A.A., 2018 ONSC 3509 (CanLII) at 35-42