Siegel's Family Court Calendar

“An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 25.

Section 22 of the Divorce Act provides for the recognition of foreign divorce decrees. In certain circumstances, courts in Canada have refused to recognize foreign divorces, including talaq divorces under Sharia Law in particular.

In Novikova v. Lyzo, 2019 ONCA 821, the Court of Appeal for Ontario upheld the motion judge’s refusal to recognize a foreign divorce because the wife was not given proper notice of the proceeding in the Russian Federation. In Kadri v. Kadri, 2015 ONSC 321, the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy: at para. 83. With respect to talaq divorces in particular, the court in Kadri observed that numerous immigration decisions of the federal court have expressed concerns about talaq divorces where the procedure consist only of a unilateral announcement of divorce by one party, usually the male: at para. 85.

A “bare” talaq divorce was described in Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 FCR 531, at para. 20, as a private recitation of a verbal formula in front of witnesses. The verbal recitation may be pronounced in a mosque. It may be reinforced by written documents containing such information, whether accurate or not. The pronouncement of the divorce before witnesses is what brings about the divorce.

The court further observed in Amin that the ritual performance of the bare talaq lacks any necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity, even if merely to register or recognize what has been done. While the essential procedure differs, the court concluded in Amin that to recognize a bare talaq divorce would be manifestly contrary to Canadian public policy.

I do not know, and there is no evidence before me as to, the procedure invoked that led to the talaq in this case. I am satisfied that it is not for the Applicant to prove that the talaq is not valid. Rather, the onus of proving a legally valid foreign divorce is on the party seeking to rely on that divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 10. Foreign law and the validity of a foreign court order are questions of fact to be established by the proponents. In this case, the onus is on the Respondent to show that the foreign divorce is valid. The Respondent has filed nothing in this proceeding.”

            Abdulla v. Al-Kayem, 2021 ONSC 3562 (CanLII) at 17-22

“Assessing credibility is not a science.  It is difficult to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48.  A judge is not required to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, the judge may accept none, all, or part of a witness’s evidence: Kinsella v. Mills, 2020 ONSC 4785, at para. 69.

In assessing a witness’s credibility, as set out in Kinsella v. Mills at para. 69, the court may take into account considerations including the following:

• • • •  Were there inconsistencies and weaknesses in the witness’s evidence, including internal inconsistencies or evidence of prior inconsistent statements?
      •   Was there a logical flow to the evidence?
      •   Were there inconsistencies between the witness’s testimony and the documentary evidence?
      •   Were there inconsistencies between the witness’s evidence and that of other credible witnesses?
      •    Is there other independent evidence that confirms or contradicts the witness’s testimony?
      •    Did the witness have an interest in the outcome, or were they personally connected to either party?
      •    Did the witness have a motive to deceive?
      •   Did the witness have the ability to observe the factual matters about which they testified?
      •   Did they have a sufficient power of recollection to provide the court with an accurate account?
      •   Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?”
      •  Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
      •  Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
      •    Consideration may also be givento the demeanor of the witness, including their sincerity and use of language.  However, this should be done with caution.  The courts have also cautioned against preferring the testimony of the better actor in court, and, conversely, misinterpreting an honest witness’s poor presentation as deceptive.”

            Kostrinsky v. Nasri, 2022 ONSC 2926 (CanLII) at 28

“The two themes are that the trial judge rejected the recommendation in the OCL report and also changed the status quo.

A trial judge is not required to accept the OCL recommendations. They are just that: recommendations.”

            Knapp v. Knapp, 2021 ONCA 305 (CanLII) at 19-20

“Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way.

In at least three decisions, the Ontario Court of Appeal has highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320.  At para. 15 of Khan v. Law Society, the Court cautioned judges regarding reliance on r. 2.1.01:

We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.

The principles to be applied by a judge considering a requisition under r. 2.1.01 include, but are not limited to, the following:

• • • • • The statement of claim must be read generously.  Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
        • “[R]ule 2.1 is not for close calls.  Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP,  2015 ONSC 801 (CanLII), at para. 9;
        • An action should be dismissed under r. 2.1 only if there is “a basis in the pleadings to support the resort to the attenuated process” resulting from the use of the rule: Raji, at para. 9;
        • The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
        • The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 (CanLII), at para. 3.

To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act.  Alternatively, the court may consider the typical characteristics of the form and content of an action brought by a “querulous litigant” as reviewed by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497 (CanLII), at para. 15.

At para. 9 in Gao, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”:  “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”: quoting from Currie v. Halton Regional Police Services Board, 2003 CanLII 7815, Ont. C.A., at para. 14.

Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation.  See Gao, at para. 18:

It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case.  The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant.  While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not be considered lightly or dismissively.

In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Ontario Court of Appeal endorsed the approach taken to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.”

          McIntosh v. Sutherland, 2023 ONSC 2788 (CanLII) at 11-17

“As there is no final order regarding the parenting arrangement, the respondent need not establish a material change in circumstances in her relocation request. A question arose at trial as to the sequence in which the court should address the terms of a parenting order where relocation is in issue. Relying on Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 17 and 49, the respondent submitted the court should first determine which of the parties is the primary caregiver of the child.

In my view, this approach is inconsistent with the significant legislative amendments that now transcend the common law relocation framework established in Gordon. The Supreme Court of Canada considered the new statutory regime and commented that without a pre-existing judicial determination, a parent’s desire to relocate is simply one part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child: Barendregt, at para. 112. The CLRA directs a holistic analysis of the child’s best interests.  It would be problematic to first consider which parent is or has been the primary caregiver to the child, particularly when that issue is included as a factor to consider in the relocation analysis at s. 39.4(3)(c). In determining what parenting orders are in K.L.’s best interests, the logically prior issue is where she should primarily reside:  Zorab v. Zourob, 2021 ONSC 6552 and Credland v. Cymbalisty, 2022 ONSC 433, at para. 23.”

          LaBonte v. Godin, 2023 ONSC 2767 (CanLII) at 46-47

“The courts have said that where there is an existing support obligation, retirement must be reasonable and for a valid reason: Smith v. Smith, 2013 ONSC 6261 (S.C.J.) at 59.

Generally speaking, unemployment or underemployment cannot be deliberately created to avoid a support obligation: Smith, at para. 60, citing Dishman v. Dishman, 2010 ONSC 5239, 94 R.F.L. (6th) 217 (S.C.J.), and Muirhead v. Muirhead, 1995 CanLII 627 (BC CA), [1995] B.C.J. No. 1088, 6 B.C.L.R. (3d) 229, 14 R.F.L. (4th) 276 (B.C.C.A.).

…

In Smith v. Smith, Gordon J. considered the concept of early retirement and opined that “[t]hat concept applies to premature retirement on a reduced pension for the purpose of defeating a legitimate support claim.”: Smith, at 65. While the concept of early retirement may mean somewhat different things in different contexts, it usually connotes a situation where the employee has made a voluntary decision to elect premature retirement. That is, the effective decision-maker is the employee. Here, in stark contrast, the effective decision-maker was Fiat Chrysler, whose decision to pull all work from Comber Tool, effectively sealed the fate of the business. In that vein, this is clearly not a case of early retirement.

Neither is this a case of voluntary retirement, as has been considered by the courts in cases like Dillman v. Dillman – a case much replied upon by the applicant wife (although subsequently reversed on other grounds on appeal) – where Harris J. concluded (in the context of a summary judgment motion) that “Mr. Dillman’s voluntary retirement does not trigger a material change of circumstances of a kind which would substantially diminish the weight of the original separation agreement.”: Dillman v. Dillman, 2019 ONSC 6249 (S.C.J.), at para. 39, reversed in part, 2021 ONSC 326, 51 R.F.L. (8th) 21 (Div. Ct.).

          Casier v. Casier, 2021 ONSC 3407 (CanLII) at 73-74, 79-80

“A charging order is a discretionary order that “will not be granted if it would offend the principles of equity, either by reason of the conduct of the solicitor or unfairness to the creditors by allowing the charging order to have effect”: Guergis v. Hamilton, 2016 ONSC 4428, at para. 6.”

          Foulidis v. Foulidis, 2022 ONCA 362 (CanLII) at 50

“The best interests of children are not necessarily the same as the wishes of the children or of the parents: see Kaplanis v. Kaplanis, 2005 CanLII 1625, at paras. 10 and 13. (Ont. C.A.). Given that the children are 9 and 11 years old, their views are relevant but not determinative. Although stated with respect to custody (now decision-making), not parenting time, Julien D. Payne and Marilyn A. Payne, Canadian Family Law, 5th ed. (Irwin Law, 2013) addresses the child’s preferences when determining the best interests of the child in custody disputes:

The best interests of a child are not to be confused with the wishes of the child, but a child’s views and preferences fall within the parameters of a child’s best interests. When children are under nine years of age, courts do not usually place much, if any, reliance on their expressed preference. The wishes of children aged ten to thirteen are commonly treated as an important but not a decisive factor. The wishes of the children increase in significance as they grow older and courts have openly recognized the futility of ignoring the wishes of children over the age of fourteen years.”

          Cuthbert v. Nolis, 2021 ONSC 2499 (CanLII) at 66

“A recent publication on parenting time by Professor Nicholas Bala and Dr. Rachel Birnbaum is entitled, “Focusing on Children in Post-Separation Parenting.”  The article considers arguments made in favour of a presumption of shared parenting (that it is more just and fair) and against such a presumption (that it puts victims of family violence at further risk of harm).  The Canadian government declined to include such a presumption in the recent Divorce Act amendments.  The authors support the government’s decision and disagree with the notion that family justice professionals act out of economic self-interest when they decline to support a presumption.  Instead, the researchers state as follows:

“Australia adopted such a reform in 2006, but abandoned it in 2012, as it resulted in increased litigation and endangered children. As in Canada, a majority of parents in Australia settle their cases, and many more make plans for shared parenting. But having a presumption in favour of shared parenting actually seemed to inflame the high conflict cases and cause more litigation. The problem with a legal presumption of shared parenting is that the cases where this is most relevant, those which are litigated, are atypical higher conflict cases….”

Professor Bala and Dr. Birnbaum highlight the importance of considering the views of children about post-separation parenting arrangements.

“Research suggests that most children appreciate having significant, continuing involvement with both parents, but that many resent the rigidity of parents who insist on “equal” parenting arrangements. Children want flexibility, especially when they reach adolescence. Most teenagers want a role in making arrangements that meet their evolving needs. Many adolescents want a significant relationship with both parents, but prefer having a “home base” rather than a division of their time in way that parents might consider “fair”.”

MacLellan v. Sidiropoulos, 2022 ONSC 2599 (CanLII) at 21-22

“Identifying the valuation date involves the determination of two issues: the date when the parties separated and the point in time when, as noted in s. 5(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation”.  Most often these two events are the same but where a dispute about the choice of a valuation date arises it is invariably financially driven due to the consequences of the date selected. In cases where, as in this case, the parties continued to reside under the same roof after an alleged separation event and there are, also as in this case, differences (even though modest) to their respective net family properties depending on the valuation date, caution must be exercised by the court before concluding that the marriage cannot be salvaged. In Newton v. Newton, (1995) 1995 CanLII 17875 (ON CJ), Czutrin J. observed:

… extreme caution should be exercised in fixing a valuation date.

Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added)

Separation and valuation dates are not necessarily synonymous terms. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell, 1992 CarswellOnt 306.  In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected an earlier January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”: Ibid, para 1. Those decisions must, however, be supported by the evidence: as per Locco J. in DiFrancesco v. DiFrancesco, 2011 ONSC 3844 at para 38.

A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart” and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic, 2019 ONSC 3857 at paras 12-26 and 32-40. In that case the parties disputed their date of separation: this impacted the determination of their net family properties. The husband claimed a date about three and a half years earlier than the wife’s date. Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, concluding that despite evidence that the parties, among other things, had travelled together with their children internationally and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose. Relevant to the analysis in the case before this court are the following observations:

… Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively.  In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other: Ibid, at para 39.”

          Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII) at 22-24