Siegel's Family Court Calendar

“It is well established law that presumptively the parties are entitled to receive their equal shares of the sale proceeds. But this distribution is subject to each party’s Divorce Act and Family Law Act claims, none of which had been resolved or adjudicated at the time of the motion, four years on from separation. Therefore, in the absence of agreement about how the proceeds should be distributed, the court is tasked with ensuring both parties’ trial positions are not prejudiced.

In these types of cases, it is incumbent upon each party to make submissions regarding whether any hold back is needed to protect their respective unresolved claims and, if so, for how much and from whose one-half share. The hold back amount need not be precise; it is without prejudice to any final adjudication on the merits of all claims. But the court does require evidence to arrive at a fair amount to be preserved pending trial.”

         White v. White, 2022 ONSC 1111 (CanLII) at 15-16

“First, does the Ontario court lack jurisdiction over the subject matter of Ms. Bakhsh’s claim because the claim should have been brought in the parties’ annulment proceedings or other civil proceedings in Saudi Arabia, and is it also res judicata? The answer is no.

Ms. Bakhsh could not have brought her claim in Saudi Arabia. It is not disputed that, as the motion judge found, in accordance with s. 15 of the FLA, the law of Saudi Arabia, as the parties’ last common habitual residence, applies to Ms. Bakhsh’s claim in respect of the Ontario property. Based on the expert evidence called by the parties, the motion judge determined, correctly, in our view, that the question of the parties’ interests in property located outside Saudi Arabia had not been decided and could not have been decided in their annulment proceedings or in the separate civil proceedings concerning a property in Saudi Arabia.

The parties’ annulment proceedings only dissolved the marriage and did not resolve any other legal issues. As the parties’ experts agreed, and the motion judge accepted, Saudi Arabian law does not provide for equalization claims. The family courts in Saudi Arabia resolve issues related to the status of marriages, such as divorces and annulments, but do not have jurisdiction over property and financial disputes. The motion judge accepted Ms. Bakhsh’s expert’s evidence that property and financial disputes are within the jurisdiction of the Saudi Arabian civil courts.

In fact, and in confirmation of Ms. Bakhsh’s expert’s opinion accepted by the motion judge, the parties have been engaged in separate civil proceedings, apart from their annulment proceedings, in the civil court in Saudi Arabia. Ms. Bakhsh commenced a lawsuit in the civil court to determine the parties’ respective interests in property located in Jeddah, Saudi Arabia, that was acquired during their marriage. Further, the motion judge accepted Ms. Bakhsh’s expert’s unchallenged evidence that the civil courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership of property and land outside of Saudi Arabia.

It is therefore clear that Ms. Bakhsh could not bring her claim for the condominium property in Saudi Arabia. Saudi Arabia does not have jurisdiction over the claim and the claim is therefore not res judicata. Moreover, Ontario clearly has jurisdiction to adjudicate the claim of Ms. Bakhsh, who resides in Ontario, concerning property located in Ontario, legal title to which is in Mr. Merdad’s name.

The motion judge’s determination that the Ontario court does not lack jurisdiction and that Ms. Bakhsh’s claim was not res judicata was amply supported by the record and contains no error.”

         Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 5-10

“In recent years we have come to better understand that “high conflict families” require special attention – specific strategies – to guard against their destructive and sometimes dangerous inclinations.

a.    We flag high conflict cases.

b.    We fast track them.

c.    We try to get them into case management quickly, with an assigned judge for consistency.

d.    We direct them to supportive resources like mediation, parenting coordinators, reconciliation counselling, etc.

e.    If necessary, we expedite their trials, and perhaps offer focussed hearings.

f.     Trial judges seize themselves, for future efficiency and consistency.

g.    We sanction needlessly aggressive litigation behaviour with formidable costs orders.

h.    We’ll do anything necessary to take the conflict out of “high conflict families.”

Perhaps we need to develop similar awareness and strategies to deal with “high conflict individuals.”

We already have mechanisms in place to deal with vexatious litigants.  On rare occasions, we have to restrict certain individuals from repeatedly pursuing meritless claims in court.

But what about people who abuse not just our court system – but all of our community systems, in combination?

What about people who have become very adept at understanding that everyone has a boss.  And if you just keep complaining to their bosses every time you don’t get your own way, sooner or later people will stop resisting you.  Because it’s not worth the hassle.

What about the inveterate complainer?

…

But there’s no point in the community funding an inefficient 41-day trial spread over 16 months, unless we learn something from the experience.

a.    The average taxpayer reading this judgment could have no idea how much this document ended up costing them.

b.    Hundreds of thousands of dollars?  Easily. That’s just court time.

c.    Probably close to a million of dollars once you factor in all the work – and extra work – that various social and regulatory agencies had to do, to respond to the precarious demands of this file.

d.    Everyone is entitled to their day in court.  Everyone is entitled to access community services.  Public servants don’t always get it right.  Sometimes complaints can be justified.

e.    But while we pride ourselves on our institutions – including our court system – we are becoming tone-deaf to a growing crisis of sustainability.

f.    Every day we are told there’s not enough money:  not for schools; doctors; police, legal aid; the OCL; affordable housing; child care; autism; mental health; the environment; medical research; hospital wait times; the opioid crisis.  You name it.

g.    Every day in my courtroom I deal with people who have real problems which go unaddressed because of government cutbacks and budget restraints.  Children whose vital needs can’t be met.

h.    Funding is a serious problem.  And it’s getting worse.

i.    So, if there’s not enough money for people who really needhelp — perhaps we should to re-think our tolerance for the waste and distraction caused by chronic complainers who abuse the system.

            D.D. and F.D. v. H.G., 2020 ONSC 889 (CanLII) at 487-492, 496

“The open court principle is a fundamental principle of law that is codified by s. 135 of the CJA.  Nevertheless, s. 137 of the CJA provides that a court may exclude the public from the hearing and may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.  Such order should be granted where: (1) it is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the order outweigh its deleterious effects: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 S.C.R. 522, para. 53.

The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding.  A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified.  Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim.  In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.”

            Fedeli v. Brown, 2020 ONSC 994 (CanLII) at 8-9

“In Brienza v. Brienza, 2014 ONSC 6942 (CanLII), Justice Perell indicated at paragraphs 22 through 25:

[22] Section 2 of the Partition Act states that a joint tenant or tenant in common may be compelled to make or suffer partition or sale. The general principles to determine when partition and sale should be granted were laid down in Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), where the Court of Appeal stated:

There continues to be a prima facie right of a joint tenant to partition of sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

[23] The onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal: Davis v. Davis, supra; Silva v. Bettencourt, [2002] O.J. No. 1878 (S.C.J.).

[24] In cases after Davis, the Act has been interpreted to mean that the court has a very limited discretion to refuse an application for partition or sale: Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183, supra; Hay v. Gooderham (1979), 1979 CanLII 1690 (ON SC), 24 O.R. (2d) 701 (Div. Ct.); Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 (CanLII), [2010] O.J. No. 2900 (Div. Ct.).

[25] Only in exceptional circumstances will a joint tenant or tenant in common be denied his or her request that the property be partitioned or sold. The court’s discretion to refuse partition and sale is narrow, and there must be malicious, vexatious or oppressive conduct to justify the refusal to grant partition and sale: Silva v. Silva, supra; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126 (C.A.), affg. [2001] O.J. No. 5291 (Div. Ct.); Fellows v. Lunkenheimer (1998), 21 R.P.R. (3d) 142 (Ont. Gen. Div.); Kalita v. Freskiw Estate, [1998] O. J. No 5180 (Gen Div.); Jakubiszyn v. Tekielak, [1991] O.J. No. 2362 (Gen. Div.); Garfella Apartments Inc. v. Chouduri, supra.

“No sufficient reason as to why such an order should not be made” has been provided in this case. Thus, there shall be an order for the sale of 153 Bandelier Way.”

            Vo v. Tran, 2021 ONSC 1075 (CanLII) at 36-37

“The father invokes the maximum contact principle to substantiate his clam for increased parenting time. As pointed out by counsel for the mother, recent revisions to family law legislation have revoked the maximum contact principle and the notion that the courts should support maximum contact between a child. The focus is instead on the child’s best interests; that a child should have has much time with each parent as is consistent with their best interests. As stated in T.P. v. A.E., 2021 ONSC 6022 at paras 150-151:

150 …. It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

151 While there is no presumption of equal parenting time, the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6); Bembenek v. Bembenek, 2019 ONSC 4050; Kirichenko v. Kirichenko, 2021 ONSC 2833.”

            Boucher v. Walker, 2022 ONSC 934 (CanLII) at 47

“Case law diverges on the issue of whether a private agreement between the parties to arbitrate future disputes that does not, itself, constitute a family arbitration agreement may be enforced by a subsequent court order. In Giddings v. Giddings, 2019 ONSC 7203, Justice Gray relied on the contractual obligation of good faith contractual performance, to enforce an agreement that took the form of minutes of settlement that were intended to be final but had not been made into a court order, and directed the parties to execute a formal, enforceable family law arbitration agreement.

In Magotiaux v. Stanton, 2020 ONSC 4049, Justice Mackinnon ruled that an interim parenting agreement was not a bar to a proceeding in court, stating at paras. 6, 7 and 8:

[6]        … I conclude that the Interim Parenting Agreement is not a bar to the applicant proceeding in court and that the stay motion should be dismissed.  Parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.

[7]               The situation might be different if the parties had expressly undertaken in their agreement to execute an arbitration agreement that complies with the governing Act and Regulation. In that situation, the court might order the party in breach to comply with their undertaking. The Interim Parenting Agreement does not include such an express provision.

[8]               Prudence dictates that family litigants wishing to provide for a potential future arbitration should append a detailed family arbitration agreement containing the mandatory terms to their settlement document and should agree to complete and execute the agreement in the form attached, at the appropriate time.

At paras. 22 and 30 in Magotiaux, Mackinnon J. distinguished Giddings from the case before her, as follows:

[22]      The agreement in Giddings specified that if the equalization issue was not resolved it would be arbitrated by a named arbitrator, that the parties would proceed to domestic violence screening and thereafter execute an arbitration agreement with the arbitrator to provide him with arbitral power.  The court relied on this provision to rule that the recalcitrant party was required to execute a family arbitration agreement as he had agreed to do and in accordance with his obligation of good faith contractual performance.

…

[30]      … I was not persuaded that case law provided a basis on which the court could read in the mandatory requirements to the Interim Parenting Agreement or imply a term to enter into a compliant arbitration agreement to give effect to its dispute resolution clause. I conclude that the Interim Parenting Agreement does not comply with the Regulation and the stay should be denied.

In Moncur, Justice Laliberte described this area of the law as unsettled, however, there does not appear to be divergent case law on the point of whether the court may enforce its own order by requiring parties to execute a compliant family law arbitration agreement.”

            Fekete v. Brown, 2022 ONSC 903 (CanLII) at 21-24

“An offer has to be wholly equal to or better than the result achieved at trial: see Gurley v. Gurley, 2013 ONCJ 482 where Sherr J. stated at para. 9:

The offer included incidents of custody that were not included in the final order, including a term that the father could apply for the children’s identification, including passports, without the mother’s consent, and a term that the mother not expose the children to smoke or marijuana use. Close does not count when applying subrule 18(14). Its presumptive costs consequences were not triggered by this offer.

Even though the financial issues were settled in the present case rather than being adjudicated on, the same principle applies.  If the result at trial, through settlement or decision, is not the same as or better than all of the terms of the offer, the court cannot presumptively award the costs of a proceeding under Rule 18(14).  Nothing in that rule permits a court to presumptively award costs because the party making the offer bettered part of the offer.  Without the offer being severable, the Applicant is only entitled to partial recovery costs based upon his success in the proceedings, something the Respondent already acknowledges.

That might have been remedied had the offer stated that its terms were severable, which would have allowed me to award costs based only upon the major issue at trial, which was the mother’s claim for a change in custody.  Without a severability clause, the offer cannot be used to presumptively award full recovery costs because the financial provisions in that offer differed from the end result.  Wildman J. spoke to the issue of the severability of an offer in Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII), [2010] O.J. No. 1566 (S.C.J.) in a statement that is particularly applicable to the present case at para. 13 and 14:

13 Unfortunately, this offer was not severable. There would have been no disadvantage to the wife in making the custody offer, in particular, severable from the financial and property terms. Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues. Had the custody terms of the wife’s offer been severable from the other terms, I would have been prepared to consider ordering full recovery costs on the custody issue from the date of the offer forward. As this was the majority of the trial time, that would have been a significant cost advantage to the wife.

14 However, as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14). Since the husband got an additional week of access, as well as an order that spousal support would reduce from $1000 in three years, Ms. Nanayakkara did not do as well as or better than her offer in its totality.

Wildman J. goes on to state that this does not prevent the court from taking the offer into account when awarding costs under Rule 18(16).

            Meitine v. Grigoryan, 2020 ONSC 867 (CanLII) at 10-13

“It is essential that our courts remain open in order that members of the public and the media may observe, critique, publish or share information concerning the workings of the Justice system. The open court principle is a crucial aspect of our democracy and is protected by the right to freedom of expression under section 2(b) of the Charter.

The law does recognize rare occasions when the open court principle must give way to other important interests related to the administration of justice. The test for determining whether a sealing order should be granted was stated by the Supreme Court of Canada in Sierra Club of Canada versus Canada Minister of Finance, [2002] S.C.R. 522 at paragraph 46:

A publication ban should only be ordered when:

(a)  such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b)   the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.” 

Adler v. Thomson, Rogers, 2019 ONSC 801 (CanLII) at 79-80

“At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.

Parents are not required to do the impossible in order to avoid a contempt finding. They are however required to do all that they reasonably can: see Godard, at para. 29.”

            McCarthy v. Murray, 2022 ONSC 855 (CanLII) at 33-35