Cliff’s Notes

November 2019 Newsletter

Hello again! I hope you have enjoyed a good summer; the weather certainly helped. While my summer was relaxing, the Ontario Courts continued, as always, to work very hard. Numerous reserved decisions have been released over the past few months that will be helpful to family arbitrators and mediators. Neither time nor space will allow me to canvass more than a sampling.

In Khan v. Ahmed [2019 ONCA 614] the Ontario Court of Appeal dismissed an appeal over an access issue brought by the father of two young children .Their mother had died; the mother’s brother (maternal uncle) was granted access by the trial judge, notwithstanding a finding that there was great animosity between the father and uncle (brother-in-law). The father’s appeal was dismissed because the trial judge was alive to the conflict between the men, but determined that access, even in the circumstances, would be in the children’s best interests. The right of a custodial parent to make access decisions is not untrammelled.

Phil Epstein has already reported on Rados v. Rados [2019 ONCA 627] but it is worth mentioning again, because it deals with a common situation: discounting loans from parent(s) to either or both married spouses. In this case, the husband’s father had clearly loaned a considerable amount of money to a corporation controlled by his son, the husband. Factually, it was found that, as there was little or no expectation of repayment, a discount should be applied. Here it was 90%. The husband appealed but lost. Yet another example of the importance of factual findings made at trial.

In Francois v. Mackenzie [2019 ONSC 3650] the motions judge imputed the husband’s income at a fairly high level (for child support purposes) in part because the mother’s financial disclosure was unduly delayed and full of contradictions and inconsistencies. Won’t parties ever learn? Timely and frank disclosure is essential. Far too frequently, a party falls woefully short in making proper disclosure.

Beaver v. Hill [2019 ONCA 520] has occupied a great deal of time in the courts. Many have commented on it before now. I have included it in this issue of NOTES as trial judges have been banging the drum for many years, trying hard to contain out-of-control litigation. The Court of Appeal is now certainly on side. In dismissing motions by the husband, the Court of Appeal writes as follows:

This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expenses as required by the Rules. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.

The decision contains many other comments from two Superior Court Justices about their frustration with the conduct of the litigation. Such comments to date, however, have seemingly been ignored. Lots of money in this case… at least on one side, so stay tuned.

Knight v. Knight [2019 ONCA 538] picks up a similar theme. In this case, a costs award at trial against the husband, in the amount of $490,000.00 was upheld by the Court of Appeal in its entirety. The Court accepted the trial finding that the appellant husband’s approach to the litigation was unreasonable and that he was to blame for the high cost. The Court of Appeal also reminds us of the overriding discretion a trial judge can utilize in awarding costs. Would arbitrators go this far? I would like to think so.

In Jantzen v. Jantzen [2019 ONSC 3532] you will find a helpful list of requirements that are imposed on a party who has no income through no fault of his own. Although a support award may be changed, the payor has continuing (non-monetary) obligations to the recipient.

The case of Rigillo v. Rigillo [2019 ONCA 548] expresses a basic point that we sometimes forget. When dealing with access, remember to take into account the “maximum contact” rule. Not to do so, nor even mention it, was, in this case, a palpable and overriding error.

In Klasios v. Klasios [2019 ONSC 4841] we learn what can happen to support, pending an appeal of an arbitration award. That, in itself, is instructive but it is also important to read this case in order to understand how crucial an arbitrator’s factual findings can be for an appellate judge.

Another case that Phil Epstein wrote about this summer involves an appeal of an order made by a Superior Court Justice who allowed an appeal from an arbitrator in a case dealing with parenting issues (including mobility). In Petersoo v. Petersoo [2019 ONCA 624] the Court of Appeal overruled the judge’s decision and re-instated the arbitrator’s award. I raise this case because of the very helpful remarks by the Court about mediation and arbitration, and about the role of the arbitrator in a family law proceeding.

In Kagan v. Kagan [2019 ONCA 495] the Court of Appeal allowed fresh evidence by way of a clinical report addressing access. The Court points out that, where the best interest of a child are concerned, the most current information about the child is important. The threshold for admission of a professional report as fresh evidence is low.

The cases I have set out above are simply reference points for you, if you feel an issue is of interest. They offer solutions to problems which arise. There were many other decisions released which are also helpful but there are simply too many for these short NOTES.

Until next time ….

After 19 years on the Bench (with the Superior Court of Justice), the now-retired Cliff Nelson provides us with commentary on developments in law relevant to FDR.