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“Unfair Forum Shopping”: A New Defence to Recognition of a Foreign Divorce


By Rebecca Winninger, Senior Associate Lawyer,
Lam Family Law*

In Ontario, a person cannot claim spousal support if they were validly divorced in another country. There is no jurisdiction to claim support under the federal Divorce Act unless a party is seeking a divorce in Canada, or has already obtained a divorce in Canada. There is no jurisdiction under the provincial Family Law Act (“FLA”), because the definition of a spouse for support purposes does not include a “former spouse”: Okmyansky v. Okmyansky, 2007 ONCA 427 (CanLII), at paras 41-42.

This situation creates a strong incentive to litigate the validity of foreign divorces. In the last year and a half alone, the Court of Appeal for Ontario (“ONCA”) has decided cases on:

Arguably, the ONCA’s most precedential decision in recent months is Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII) (“Vyazemskaya”), which introduced a new defence to the recognition of a foreign divorce.

First, some background on the recognition of foreign divorces is necessary. Under s. 22 of the Divorce Act, a foreign divorce will be recognized in Canada where there is a real and substantial connection between one of the parties and the granting jurisdiction, unless an exception applies: Vyazemskaya, at para 21. The Supreme Court of Canada (“SCC”) had previously recognized three exceptions: fraud, public policy, and lack of natural justice: Vyazemskaya, at para 26, citing Beals v Saldanha, 2003 SCC 72 (CanLII) (“Beals”), at paras 219-245.

In Vyazemskaya, the trial judge held that the public policy exception applied, because the husband had unfairly “forum shopped” to avoid spousal support obligations in Ontario. In other words, he specifically sought a divorce in Russia to avoid paying spousal support to the wife: Vyazemskaya, at paras 13-14.

On appeal, the husband argued that the trial judge erred in applying the public policy exception, because that exception targets only “repugnant laws” of the foreign country, not “repugnant facts”, such as the husband’s motivation in seeking the Russian divorce: Vyazemskaya, at para 17, citing Beals.

The ONCA acknowledged that international comity requires a “narrow public policy basis for rejecting foreign judgments”: Vyazemskaya, at para 25. However, the ONCA picked up on a passage from Beals where the SCC referred to what the ONCA considered to be “a fourth potential defence” of “unfair forum-shopping tactics”. The SCC indicated that a foreign judgment “should be entitled to full recognition and enforcement” provided it was “not prompted by unfair forum-shopping tactics on the plaintiff’s part”: Vyazemskaya, at para 30, citing Beals, at para 191 [underlining added].

Based on this passage, the ONCA held that Beals “leaves open” unfair forum-shopping “as a possible exception.” Like the other defences of fraud and natural justice, unfair forum-shopping is analytically distinct from the public policy defence. There is therefore no inconsistency in recognizing a defence which, unlike the public policy defence, is not based on morally repugnant foreign laws. While the public policy defence is aimed at “foreign laws that ‘violate our principles of morality’”, the unfair forum-shopping defence is about “decisions taken to avoid the application of domestic laws”: Vyazemskaya, at paras 31 & 34-35.

Given that Beals “leaves open” the forum-shopping defence, and there was evidence to support the judge’s conclusion that the husband obtained the divorce in Russia to avoid paying spousal support, the ONCA upheld the decision: Vyazemskaya, at paras 38-40.

The ONCA’s language around recognizing the new defence was oddly tentative. Even in a concluding paragraph, the ONCA stated it was “sufficient to conclude that…Beals leaves open ‘unfair forum-shopping tactics’ as a possible exception to the recognition of foreign divorces”: Vyazemskaya, at para 37. However, in upholding the trial judge’s decision, the ONCA appeared to endorse the defence, and it is curious that the court did not wish to come out and say definitively that it was recognizing the new defence.

The analysis was also relatively brief. The ONCA explained that the defence was consistent with the value placed on partnership and equality in the preamble to the FLA, and referred to other appellate cases where forum-shopping concerns impacted the analysis: Vyazemskaya, at paras 32-33, citing various cases.

However, I think there is more to be said in favour of the new defence. First, it fits well with the principle of international comity. The courts do not wish to be seen as criticizing the justice systems of other states. The unfair forum-shopping defence allows them to focus instead on the conduct of and motivations of the party who obtained the divorce.

Second, the defence recognizes the underlying motivation of much of this litigation. As discussed above, these cases are usually litigated because one party wants to claim spousal support, and cannot do so due to the foreign divorce. The new defence looks at whether escaping spousal support is what motivated the foreign divorce in the first place. This is a more honest way to approach the issue, in my opinion, than trying to shoehorn the facts to fit the other three defences.

However, the new defence arguably does not fit well with the idea that foreign judgments will be recognized in Canada save in “rare circumstances”: Akyuz v. Sahin, 2023 ONSC 1024 (CanLII), at para 14.

Read broadly, the unfair forum-shopping defence may extend to every case where the party contesting the divorce proves on a balance of probabilities that the party who obtained the divorce did so to avoid support obligations in Ontario. The ONCA cautioned that “[w]hile forum-shopping will not always violate our principles of morality, ‘unfair forum-shopping tactics’ most certainly will”: Vyazemskaya, at para 31. The forum shopping was unfair in the circumstances of Vyazemskaya simply because the husband obtained the divorce in Russia to avoid paying spousal support under Ontario law. This seems like a common scenario (although it may not always be easy to prove a party’s intention).

Litigation on this subject will likely remain common – and not rare – unless the FLA is amended to allow a “former spouse” to claim spousal support, as the ONCA suggested in Sonia v. Ratan, 2024 ONCA 152 (CanLII), at para 94. The ONCA also indicated it might be willing to revisit its own jurisprudence that there is no jurisdiction to order spousal support in Ontario in the face of a valid foreign divorce.

Note that there is also currently a Charter challenge alleging that s. 4 of the Divorce Act (jurisdiction in corollary relief proceedings) and s. 29 of the FLA (the definition of “spouse”) violate s. 15 of the Charter: Mehralian v. Dunmore, Toronto, FS-21-24032 (ONSC).

*with thanks to Vanessa Lam for her suggestions and edits.

Uncertainty in the Resulting Trust Analysis: What is the Effect of an Intention to Avoid a Merger under the Planning Act?


By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

Resulting Trust Analysis: Effect of an Intention to Avoid a Merger under the Planning Act

In Holtby v. Draper, the husband had put a property in his and his wife’s names as joint tenants for the purpose of preventing a merger under the Planning Act with an adjacent property he held in his name alone. The Court of Appeal for Ontario (“ONCA”) found that the wife rebutted the presumption of resulting trust for this property because having different beneficial ownership in the two properties was necessary for the husband to achieve his intended goal under the Planning Act: Holtby v. Draper, 2017 ONCA 932 (CanLII), at paras 68-70.

The impact of the transferring party’s intention to avoid the Planning Act was revisited by the ONCA in it’s February 2024 decision of Falsetto v. Falsetto. Here, the husband wanted to buy a property (“415 Lisgar”) that was adjacent to another property he owned in his sole name. To prevent a merger under the Planning Act, the husband’s solicitor suggested that the husband’s father (the “father”) be added to title. The husband and father accepted this advice but, six days before closing, the bank advised it did not have sufficient time to approve the father under the mortgage. The husband and father agreed the wife would take the father’s place on title instead: Falsetto v. Falsetto, 2024 ONCA 149 (CanLII), at paras 4-6.

The husband and father paid the down payment, land transfer tax, and other closing costs in equal shares. The wife made no financial contribution to the purchase. Title was taken jointly by the husband and wife and they were named as co-mortgagors. The property was subsequently rented out to tenants. All rental income was paid to the husband and father. The husband and father continued to pay for all expenses related to the property. The wife did not make any financial contributions to the property: Falsetto v. Falsetto, ibid, at paras 7-8.

When the husband and wife separated, the father claimed a purchase money resulting trust in 415 Lisgar. The trial judge rejected the father’s claim, concluding that he had intended to gift the wife his interest in the property: Falsetto v. Falsetto, ibid, at paras 10-12.

On appeal, the wife argued that Holtby v. Draper provided a complete response to the father’s application. The ONCA disagreed, finding that Holtby v. Draper does not stand for the proposition that “achieving the Planning Act goal was decisive in determining the transferor’s intention.” Rather, the ONCA found that the court in Holtby v. Draper “simply considered it as one factor “consistent with the presumption of joint ownership [that] in no way refute[d] it””: Falsetto v. Falsetto, ibid, at paras 25-26.

The ONCA considered the father’s intent at the time of the conveyance and whether he intended to retain a beneficial interest in 415 Lisgar, as presumed, or if he had intended to give the wife a gift. The ONCA found that the father’s evidence showed that (1) the end he was trying to achieve was to purchase 415 Lisgar as an investment property; (2) in so doing he wanted to avoid merging the title with the adjacent property; and (3) he thought he could achieve this through having the wife take legal title while he retained the beneficial interest. This evidence was rejected by the trial judge because “the plan could not have worked”. The ONCA held that the trial judge “erred in making the presumed operation of the Planning Act determinative of the question of whether” the father intended to make a gift of the purchase money or retain a beneficial interest in the property. As such, the ONCA allowed the appeal, finding that the father was the beneficial owner of a 50% interest in 415 Lisgar. It made an order vesting title of the wife’s interest in the father: Falsetto v. Falsetto, ibid, at paras 27 & 29-31.

Conclusion

The outcome in Falsetto v. Falsetto means that transferring or putting title in a person’s name for the purpose of avoiding a merger under the Planning Act is no longer determinative (as it appeared to be in Holtby v. Draper), but now simply one factor to consider in the resulting trust analysis. This makes it harder to predict the result in a particular case.

However, this is consistent with another part of the decision in Holtby v. Draper where the ONCA held that “[a] motive to shield property from creditors does not itself rebut the resulting trust presumption”: 2017 ONCA 932 (CanLII), at para 55. Subsequent case law showed that lower courts were applying this principle such that the intention to avoid creditors was a relevant, but not conclusive factor. To read more, check out my previous blog post from November 2023, called “An Update on Resulting Trust Claims in the Context of Creditor-Proofing”.

As a recent example from March 2024, in Skrak v. Skrak, the court followed Holtby v. Draper in stating that “[w]hile evidence of an intention to defeat creditors can be evidence of a gift, it’s not conclusive.” In that case, the husband had transferred title of the matrimonial home to the wife to shield the home from his creditors. Justice Agarwal found that this was insufficient to find the husband intended to gift his interest to the wife: Skrak v. Skrak, 2024 ONSC 1574 (CanLII), at paras 37-39.

So, as with an intention to avoid creditors, an intention to avoid the Planning Act requires a case-by-case evaluation of the evidence to ascertain the gratuitous transferor’s actual intention on the balance of probabilities to determine whether to rebut the presumption of a resulting trust. The intention to avoid creditors or avoid merger does not necessarily entail the intention to make a gift. See Falsetto v. Falsetto, 2024 ONCA 149 (CanLII), at para 18.

*With thanks to Vanessa Lam for her suggestions and edits.

Vexatious Litigant Orders in Ontario Family Law

By Maria Golarz, Senior Associate Research Lawyer,
Lam Family Law*

The Ontario government has recently passed amendments to the Courts of Justice Act, which will include changes to the procedure for seeking a vexatious litigant order.

This article:

  1. Provides an overview of the current procedure to seek a vexatious litigant order;
  2. Discusses the purposes of such an order and the factors to be considered;
  3. Highlights recent Ontario family case law where such an order has been made;
  4. Discusses upcoming amendments regarding vexatious litigant claims; and
  5. Provides alternatives remedies to consider.

1. Current Procedure

The Superior Court of Justice can make a “vexatious litigant order” pursuant to s. 140(1) of the Courts of Justice Act, RSO 1990, c. C.43:

Vexatious proceedings
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.

The Ontario Court of Justice cannot make a vexatious litigant order under s. 140: see, e.g., M.B. v. A.F., 2021 ONSC 5395 (CanLII), at para 7.

Although the legislative wording itself does not refer to a “vexatious litigant order”, this is what the courts call an order made under this subsection: see, e.g., Austin v. House, 2023 ONCA 55 (CanLII), at paras 4-5; Hart v. Fullarton, 2021 ONCA 438 (CanLII), at paras 11-12; & Kallaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), at paras 24-26.

The remedial purpose of s. 140(1) is to codify the inherent jurisdiction of the Superior Court of Justice to control its own process and to prevent abuses of that process by authorizing the judicial restriction – in defined circumstances – of a litigant’s right to access the courts: Kallaba v. Bylykbashi, ibid, at paras 30 & 40, citing Ballentine v. Ballentine, 2003 CanLII 27775 (ON CA).

Currently, the wording of the subsection means that a vexatious litigant claim can only be brought on application, not by way of motion: see Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at para 23, citing Lukezic v. Royal Bank of Canada, 2012 ONCA 350 (CanLII). This requirement is one of the most important changes in the proposed amendments, discussed below.

2. Purpose of Vexatious Litigant Order and Factors

The purposes for making a vexatious litigant order and the factors to be considered were recently outlined in the family law case of Austin v. House, 2022 ONSC 2349 (CanLII), at paras 7-10, citing various cases; aff’d 2023 ONCA 55 (CanLII), at paras 5-15.

As outlined by Justice Broad (at para 7 of the ONSC decision), there are two purposes for declaring a party vexatious: (1) to prevent litigants from harassing others; and (2) to protect the vexatious litigant from squandering their own resources.

The factors that may lead to such an order include (also at para 7 of the ONSC decision):

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

However, it is not necessary that the litigant’s conduct fall within each of the factors. Further, the court may look at a litigant’s conduct in both judicial and non-judicial proceedings.

The court has also “sounded a note of caution, observing that s. 140 is to be interpreted narrowly, such that its application should be reserved for the clearest and most compelling of cases” (at para 8 of the ONSC decision). See also: Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at para 127, citing Howie, Sacks & Henry Llp et al. v Wei Chen, 2015 ONSC 2501 (CanLII) [court’s power to declare a vexatious litigant must be “used sparingly”].

3. Recent Family Law Cases

In recent Ontario family law cases, the court has made a vexatious litigant finding in the following circumstances:

  • Taking a “very aggressive” and unreasonable approach to litigation, including numerous pre-trial motions; re-visiting previously adjudicated issues; serving voluminous, extraneous, and irrelevant materials; and failing to pay costs awards: Austin v. House, 2022 ONSC 2349 (CanLII), at paras 14-23; appeal dism’d, 2023 ONCA 55 (CanLII), at paras 6-7 & 15.
  • Persistently “and without reasonable grounds” instituting vexatious proceedings and conducting proceedings in a vexatious manner: Justice for Children and Youth v. Glegg, 2021 ONSC 8515 (CanLII), at paras 1 & 78-97; appeal dism’d, Flores v. Glegg, 2022 ONCA 825 (CanLII).
  • Making numerous attempts to appeal or set aside orders; avoiding court-ordered obligations; pursuing “unattainable remedies” based on a conspiracy theory; commencement of civil and criminal proceedings against not only the other party but also lawyers, judges, and other professionals; bringing and abandoning motions; re-litigating issues; and displaying a “total disregard for the Court and its resources”: Teitler v. Dale, 2021 ONCA 577 (CanLII), at paras 1-3, 25, & 27 [ONCA also considered that litigant was in default of numerous costs awards in declining to extend time to appeal the vexatious litigant order]; aff’g unreported decision dated July 5, 2019.
  • Instituting numerous proceedings found to be “frivolous, vexatious and without merit; non-payment of costs”: Hart v. Fullarton, 2020 ONSC 6804 (CanLII), at paras 68-82; later proceedings at 2021 ONCA 438 (CanLII) [vexatious litigant finding not appealed].

4. Upcoming Amendments

On March 6, 2024, the Ontario government’s Bill that proposed changes to s. 140 of the Courts of Justice Act (vexatious proceedings) received Royal Assent: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157/status.

The changes to s. 140(1) come into force on a day to be named by proclamation of the Lieutenant Governor.

The Royal Assent version of Bill 157, Enhancing Access to Justice Act, 2024, can be viewed online, here: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157.

The changes affecting the vexatious litigant procedure are found in Schedule 6, which would amend s. 140 of the Courts of Justice Act to allow judges of both the Superior Court of Justice, and the Court of Appeal, to make orders related to vexatious proceedings. These orders may be made on the judge’s own initiative or on motion or application by any person. The new s. 140 also sets out rules for appeals and reviews of vexatious proceeding orders.

The new s. 140(1) will read:

Vexatious proceedings
(1) If a judge of the Superior Court of Justice or of the Court of Appeal is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner, the judge may make an order that includes any of the following terms:

1. No further proceeding may be instituted by the person in any court, except by leave of a judge of the Superior Court of Justice.
2. No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge of the Superior Court of Justice.
3. Any other term that is just.

Procedure
(2) An order under subsection (1) may be made on the judge’s own initiative or on motion or application by any person, as provided in the rules of court.
Notice required
(2.1) An order under subsection (1) may only be made on notice to the person who is the subject of the order, as provided in the rules of court.
Branches of the Superior Court of Justice
(2.2) An order of the Superior Court of Justice under subsection (1) may be made by a judge presiding in any branch of that court.
Appeals and reviews
(2.3) The following rules apply with respect to an order made under subsection (1):

1. If the order was made by a judge of the Superior Court of Justice, an appeal of the order lies to a panel of the Court of Appeal.
2. If the order was made by a judge of the Court of Appeal, a panel of the Court of Appeal may, on motion, set aside or vary the decision.
3. For greater certainty, leave is not required to bring an appeal under paragraph 1 or a motion under paragraph 2, unless the court orders otherwise.

The most important change is to how and when a vexatious litigant claim can be brought. As discussed above, such a claim must currently be brought on application. However, the amendments would allow a vexatious litigant claim to be sought on motion as well as on application. The amendments would also allow a vexatious litigant order to be made on the judge’s own initiative, as part of their inherent jurisdiction.

The substantive test of what type of conduct is required does not appear to be changed. However, the new wording does appear to broaden the type of order that a court may make, by adding in the catch-all “any other term that is just”.

5. Alternative Remedies to Consider

Overall, the threshold for a vexatious litigant order is high and will likely remain so under the new amendments.

However, it is expected that the amendments will make the procedure to get a vexatious litigant order easier, thus encouraging the use of s. 140.

In addition, the court has alternative options to a vexatious litigant order, including:

  • Staying or dismissing a proceeding that is vexatious or an abuse of the process of the court, pursuant to R. 2.1.01(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194. See, e.g., Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at paras 9-11 & McIntosh v Sutherland, 2023 ONSC 2788 (CanLII), at paras 9-19, for relevant principles.
  • Making an order to respond to a person’s failure to obey a court order or follow the Family Law Rules, pursuant to R. 1(8) or 1(8.1) of the Family Law Rules, O Reg 114/99, such as an order for costs, dismissing a claim, or striking out parts of a document or claim. See Oliver v. Oliver, 2020 ONSC 2321 (CanLII), at para 37, for the three-party inquiry in applying R. 1(8).
  • Imposing criteria pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules), such as seeking leave or providing specified documents, that must be satisfied before the respondent can initiate further proceedings. See Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at paras 138 & 143.
  • Remaining seized of any related proceeding, also pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules). See Robertson v. McKenzie, ibid, at paras 139 & 145.

*With thanks to Vanessa Lam for her suggestions and edits.

Bare Trusts: What Are They, and How Are They Relevant in Family Law?


By Rebecca Winninger, Senior Associate Lawyer, Lam Family Law*

Updated April 7, 2024 due to CRA changes announced after posting this blogThe CRA announced on March 28, 2024 that bare trusts will be exempt from trust reporting requirements for the 2023 tax year, unless the CRA makes a direct request for these filings . The CRA indicated this decision was made “[i]n recognition that the new reporting requirements for bare trusts have had an unintended impact on Canadians”. It is not yet clear whether bare trusts will be exempt in future years. The CRA says it will work with the Department of Finance in the coming months to “clarify its guidance on this filing requirement”, and will provide further information as it becomes available: Government of Canada, Bare trusts are exempt from trust reporting requirements for 2023 (March 28, 2024).

Original blog post:

Bare trusts have been getting a lot of attention in the media lately, and among legal and accounting professionals. The rules governing which trusts must file a T3 tax return have changed for trusts with a taxation year ending after December 30, 2023. Even bare trusts may now be required to file a T3 return, unless they meet certain exemptions. The Canada Revenue Agency (“CRA”) considers a “bare trust” to be “an arrangement under which the trustee can reasonably be considered to act as agent for all the beneficiaries”. A bare trustee has “no significant powers or responsibilities” and “can take no action without instructions from” the beneficiary: Government of Canada, New reporting requirements for trusts: T3 returns filed for tax years ending after December 30, 2023 (last updated March 12, 2024).

Commentators have suggested that the new rules may capture informal arrangements where, for example, an aging parent added their adult child to a joint account for convenience, or a parent holds title or joint title to their adult child’s home for mortgage financing reasons. See, for example, Rob Carrick, “A guide to family finances and the new CRA reporting rules for bare trusts – are you in the crosshairs?”, The Globe and Mail (March 25, 2024).

Family lawyers will not likely be in a position to advise their clients about CRA requirements. But it is worthwhile to review the definition and legal test for a bare trust, since the concept is relevant to property issues generally, including in family law, although it does not come up nearly as often as resulting and constructive trusts. It is also important for family lawyers to be aware of the change in reporting requirements so that they can request the appropriate tax disclosure if the issue arises.

The Court of Appeal for Ontario has defined a bare trust as “a trust where the trustee holds property without any active duties to perform other than to convey the trust property to the beneficiaries on demand”. The hallmarks of a bare trust are: (1) the beneficiaries must be able to call for the property when they please; and (2) the trustee must not have (or must no longer have) active duties in respect of the trust property. The duty to guard the property prior to conveyance is passive: Rubner v. Bistricer, 2019 ONCA 733 (CanLII), at para 56.

A bare trustee “has no independent powers, discretions, or responsibilities. Their only responsibility is to carry out the instructions of the principals – the beneficiaries. If the trustee does not have to accept instructions, if the trustee has any significant independent powers or responsibilities, the trustee is not a bare trustee”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII), at para 26, citing Trident Holdings Ltd. v. Danand Investments Ld., 1988 CanLII 194 (ON CA).

A bare trust is a form of an express trust, and there are four requirements for establishing a valid express trust:

  1. the relevant parties to the trust must have capacity;
  2. there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects (the “three certainties”);
  3. the trust must be constituted, meaning the trustees must hold legal title to the property; and
  4. the required formalities must be met: Lyttleton v. Lyttleton, ibid, at para 27, citing Rubner v. Bistricer, 2019 ONCA 733 (CanLII).

Certainty of intention requires that the settlor intended to create a trust, and that the trustee would be required to hold the trust property for the benefit of the beneficiary. This is a question of fact. A settlor need not fully understand the legal concept of trust in order to satisfy this test. Certainty of subject matter requires that the trust property is identifiable. Certainty of objects requires that the beneficiaries be sufficiently described to allow for trust performance: Rubner v. Bistricer, ibid, at paras 52-59.

With regard to the fourth requirement (that the required formalities must be met), a written document is not required to create a bare trust. However, the court requires “cogent evidence of the intention to create a trust from the context of the relevant words or circumstances”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII), at para 31. Additionally, if the trust includes real property, then a lack of documentation may breach the Statute of Frauds: Do v. Do, 2022 ONSC 6679 (CanLII), at para 36.

In some cases, litigants have pleaded a “bare trust” as an alternative claim, along with resulting and constructive trust. Do v. Do, 2022 ONSC 6679 (CanLII) is an example of a case where the court analyzed all three arguments, and found that there was no trust. In contrast, in Anspor v Neuberger, 2016 ONSC 75 (CanLII), at para 47, the court held that the evidence established “the essential elements for both a bare trust and a purchase money resulting trust.” Neither was a family law case, although Do v. Do was an intergenerational dispute.

In family law, bare trusts have come up in the following contexts:

  • Where a spouse did not hold legal title to property and denied any beneficial interest, but the court found they were the beneficial owner and that the person who did have legal title was a “bare trustee” for the spouse: Lokhandwala v. Khan, 2021 ONSC 7974 (CanLII) [wife successfully claimed that the husband’s mother was holding corporate shares as a bare trustee for the husband and wife].
  • Where a spouse did not hold legal title to property and claimed to be the beneficial owner, but the court found the spouse did not have a beneficial interest and the titled party was not a “bare trustee”: Lyttleton v. Lyttleton, 2022 ONSC 5120 (CanLII) [wife unsuccessfully claimed that the husband’s brother held property as a bare trustee for her and that she was entitled to half the current value of the property, as she did not establish certainty of intention].
  • Where a spouse did have legal title to property, but asserted they held it as a bare trustee with no beneficial interest: Sampath v. Deopersad, 2017 ONSC 7055 (CanLII) [husband unsuccessfully claimed that he held title as bare trustee for his new partner; court held that husband had a beneficial interest in proportion to his financial contribution to the purchase]; & David v. Stiuca, 2024 ONSC 83 (CanLII) [mother and adult son unsuccessfully claimed that the mother and her former husband held title in trust for the son]. See also Li v Liang, 2021 BCSC 862 (CanLII).

*with thanks to Vanessa Lam for her suggestions and edits.

Judicial Reliance on the AFCC-O Parenting Plan Guide


By Kayleigh Pink, Associate Research Lawyer, Lam Family Law*

The Ontario Chapter of the Association of Family and Conciliation Courts (“AFCC-O”) originally released its Parenting Plan Guide (the “AFCC-O Guide”) in January 2020, and a revised version in 2021. Over the past few years, Ontario courts have relied upon and placed significant weight on the AFCC-O Guide in many cases.

Ontario judges have acknowledged that the AFCC-O Guide, “though certainly not binding…has been lauded as a useful tool in crafting child-focused and realistic parenting plans for children of separated parents”: I.S. v. J.W., 2021 ONSC 1194 (CanLII), at para 163, per Bale J., citing various cases.

Courts Have Taken Judicial Notice of Information in the AFCC-O Guide

In at least two cases, the court has taken judicial notice of information contained in the AFCC-O Guide. In Bansal v. Kelly (2022), which was an interim motion decision on parenting time for two young children (aged 15 months and 4 years), Justice McGee took judicial notice of the AFCC-O’s recommendation that “children of their age should have regular, frequent contact with each parent and not be away from either parent for very long”: Bansal v. Kelly, 2022 ONSC 7049 (CanLII), at para 36. This is already a proposition for which there is lots of support in previous case law: see, e.g., H. v. A., 2022 ONSC 1560 (CanLII), at para 51 [aged 3]; Hewitt v. Doyle, 2020 ONSC 3416 (CanLII), at paras 87-91 [aged 6 months and 2 years]; BF v. AN, 2019 ONSC 3315 (CanLII), at para 74 [aged 19 months], citing Schmidt v. Haley, 2004 CarswellOnt 1149 (ON SC), at paras 20-21; & Panduro v. Davis, 2019 ONSC 1117 (CanLII), at para 29 [aged almost 2], citing Prasad v. Lee, 2008 CanLII 24545 (ON SC), at paras 48-49.

Then, in A.C. v. K.C. (2023), the parties did not oppose the court taking judicial notice of information contained in the AFCC-O Guide in a trial involving their child (aged 10). Justice Mandhane noted that the AFCC-O Guide “succinctly outlines the developmental needs of children of separated parents who are around the same age of the Child, and also provides guidance on developing appropriate parenting plans in the face of family violence”: A.C. v. K.C., 2023 ONSC 6017 (CanLII), para 3.

Use of the AFCC-O Guide in the Absence of Expert Evidence

The AFCC-O Guide may be particularly useful where there is no expert evidence. For example, in Dworakowski v. Dworakowski (2022), Justice Sharma noted that in “making parenting orders, and in the absence of third-party assessors or other expert evidence” at trial, he had considered the AFCC-O Guide. Justice Sharma placed significant weight on its suggestions for toddlers, particularly as it related to two of the factors in the best interests test: (1) the child’s needs, given his age/stage of development (almost 3 years old), and (2) any proceeding, order, condition or measure relevant to the safety, security, and well-being of the child (the mother’s immigration status in Canada was uncertain, and the child would suffer significantly if the mother was deported and they were separated): Dworakowski v. Dworakowski, 2022 ONSC 7209 (CanLII), paras 54, 56-57, & 110-112.

Sribalan v. Dickson (2023) is another case where the court relied heavily on the AFCC-O Guide on a motion in the absence of expert evidence to determine what parenting schedule was in the best interests of two children (aged 4 and 2). The mother sought primary residence, with the father having weekend and midweek parenting time, whereas the father sought equal parenting time. The AFCC-O Guide provides, on the one hand, that toddlers need predictable and consistent routines and clear structures. On the other hand, if parents fully shared in the caretaking arrangements before separation and the child has an easy temperament, shared parenting may be appropriate as long as the separations from each parent are not too long. Justice McDermot found that the father was sufficiently involved with the children to warrant an order for shared parenting. The court then determined that the appropriate schedule, based on the AFCC-O Guide, was a 2-2-3 arrangement, keeping in mind that shorter periods of time are preferable for children of this age: Sribalan v. Dickson, 2023 ONSC 1254 (CanLII), at paras 1, 4-5, 18-20, & 28-29.

Use of the AFCC-O Guide in Combination with Expert Evidence

The AFCC-O Guide has similarly been considered and adopted when there is also expert evidence. For example, in Sadiq v. Musa, 2023 ONSC 1811 (CanLII), the mother refused to allow the father any overnight parenting time post-separation with their young child (aged 17 months). The mother’s position was based on the child still breastfeeding, the mother’s religious beliefs around breastfeeding, and the history of family violence: para 8.

With respect to the sometimes-contentious breastfeeding argument, the interim motion judge, Justice Kristjanson, heard expert evidence, considered relevant jurisprudence, and relied on the AFCC-O Guide. The court acknowledged that the AFCC-O Guide “summarizes basic social science knowledge, and offers valuable guidance about formulating parenting arrangements in a child’s best interests, appropriate for various ages and stages”. In particular, the AFCC-O Guide notes that “parenting time with the other parent can be accommodated even if a child is breastfeeding with the mother”, including by feeding the infant expressed milk from a bottle. Justice Kristjanson rejected the mother’s argument that the child should stay with her at night until the child could take the bottle without fussing, given the importance of overnight parenting time at the child’s age, and because the AFCC-O Guide recognizes that “almost all infants adjust to taking a bottle of expressed breast milk…from another regular caregiver”: paras 34-36 [breastfeeding expert], 37-39 [relevant jurisprudence], & 40-43 [AFCC-O Guide].

Regarding the mother’s religious argument, the court heard from an expert in Sunni Islamic law (the mother’s religion) and found that granting the father overnight parenting time would not infringe on the mother’s religious freedoms. Additionally, based on the evidence provided, the court was not satisfied that the family violence alleged would affect the ability and willingness of the father to care for the child’s needs: paras 28 & 44-47.

Ultimately, Justice Kristjanson held that the mother’s parenting time proposal was not consistent with the expert evidence, the jurisprudence, nor the AFCC-O Guide. Rather, the court held it was in the child’s best interests to have overnight parenting time with the father given the importance of bonding with the father, taken together with other factors: paras 43 & 48.

*with thanks to Vanessa Lam and Rebecca Winninger for their suggestions and edits.

ONCA Confirms Enforcement of a Final Order Does Not Require a New Proceeding


By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

The court has a broad authority to deal with a party’s failure to obey a court order pursuant to R. 1(8)-(8.4) of the Family Law Rules, O. Reg. 114/99.

Recently, the Ontario Court of Appeal (“ONCA “) was asked to address whether a R. 1(8) motion, following a final order from the Ontario Court of Justice (“OCJ”), can be brought before the same OCJ judge without a new proceeding or whether a new proceeding must be brought solely for enforcement purposes.

The ONCA confirmed that, even where an order is final, the OCJ is not functus with respect to ensuring that the order is followed. In other words, the OCJ judge retained jurisdiction to ensure that the order made was followed: Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93 (CanLII), at para 24.

On the facts of that case, the OCJ trial judge determined that the two younger children should live with their parents while the oldest child should live with the grandparents. Both placements were for 12 months and subject to Society supervision, and the court ordered specified access between the younger children and their sibling and grandparents: paras 2-3. Following subsequent breaches of the access terms, the Office of the Children’s Lawyer brought an enforcement motion before the OCJ, on behalf of the oldest child: para 4. The matter was adjourned several times to provide the parents with time to remedy the breach. The Children’s Aid Society unsuccessfully appealed this order to the Superior Court of Justice (“SCJ”) on the issue of the OCJ’s jurisdiction to entertain the enforcement motion. The Society then appealed to the ONCA, arguing again that the OCJ did not have jurisdiction to hear a R. 1(8) motion where there was no live application before the court: paras 9-10.

The ONCA dismissed the appeal and confirmed that a party need not bring a new proceeding solely for the purpose of enforcing an order. Such a result would be “entirely inconsistent with one of the fundamental principles of our court system, which is to avoid a multiplicity of proceedings”: para 25. It would also be inconsistent with the Family Law Rules definition of a “case”: para 26, referring to R. 2(1) of the Family Law Rules, O. Reg. 114/99. The Family Law Rules expressly contemplate that enforcement “is part of the case” and enforcement of an order cannot take place until the order is made: paras 27-29.

As such, an OCJ judge – like any trial judge – retains jurisdiction to ensure that any order made is followed, without a new proceeding being brought. There need not be an existing proceeding, or ongoing case, for a judge to be able to resort to R. 1(8): paras 23-24.

Other Key Takeaways

  • Rule 1(8) motions to enforce orders can be brought in child protection proceedings, just as they can in domestic family law proceedings: paras 10-14, 28, & 30.
  • For a recent case setting out the three-part inquiry in applying R. 1(8), see, e.g., H.C. v. J.S., 2023 ONSC 2551 (CanLII), at paras 9-11, citing various cases.
  • There are two other Rules that deal with enforcement: (1) R. 26 deals with certain types of enforcement; and (2) R. 31 deals with contempt: para 27, citing Rs. 26 & 31 of the Family Law Rules, O. Reg. 114/99.
  • Another issue that the ONCA dealt with briefly was that the test for a reasonable apprehension of bias is high (and was not found here): paras 18-21, citing Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC).

*with thanks to Vanessa Lam and Kayleigh Pink for their suggestions and edits.

A Successful Unjust Enrichment Claim Between Married Spouses: Mullin v Sherlock, 2023 ONSC 4769


By Rebecca Winninger, Senior Associate Lawyer, Lam Family Law*

In Martin v. Sansome (2014), the Court of Appeal for Ontario (“ONCA”) held that in the “vast majority” of cases, unjust enrichment between married spouses will be fully addressed by the equalization provisions of the Family Law Act, including unequal division under s. 5(6). The ONCA left “for another day” the issue of how courts should address “rare cases” where the equalization provisions will not adequately unjust enrichment: Martin v. Sansome, 2014 ONCA 14 (CanLII), at paras 64-67.

That day has not yet arrived for the ONCA, but it did for the Ontario Superior Court of Justice in Mullin v Sherlock (2023). In this case, the applicant wife successfully claimed $3,000,000 in monetary damages for unjust enrichment, calculated on a joint family venture basis. The wife argued that she gave up her career in architecture to work for the husband’s company. She contributed to the company’s growth, but her pay was not commensurate with the value of her work. She relied on the husband’s assurances that “she was investing in their joint retirement.” The wife also maintained the parties’ properties, and attended to other domestic responsibilities: Mullin v Sherlock, 2023 ONSC 3744 (CanLII), at paras 11-15.

Conversely, the husband argued that the wife was a salaried employee and was compensated for her time and effort. She did not help “build” his company, and it was “exceedingly rare” for a married spouse to prove a joint family venture: at paras 37-39 & 41.

The wife was not claiming equalization, due to the husband’s failure to provide necessary financial disclosure. For his part, the husband could not claim equalization because his Answer had been struck for non-disclosure: at paras 18 & 71. His failure to disclose was confirmed by the ONCA in 2018 when it upheld the decision to strike his Answer – Justice Pepall noted in that decision that the husband had failed to provide information required “to assist in establishing…the wife’s equalization of net family property claim”: at paras 71-72, citing Mulllin v. Sherock, 2018 ONCA 1063 (CanLII), at para 51. [Note: Vanessa Lam has previously written about the ONCA’s decision here: Mullin v. Sherlock: ONCA Provides Framework for Motions to Strike Based on Non-Disclosure and Encourages Alternative Remedies].

Justice Bloom observed that in Martin v. Sansome (2014), the ONCA allowed that there may be situations where equalization is not a sufficient remedy for unjust enrichment. This was such a case, given that the wife could not pursue equalization due to the husband’s non-disclosure: at para 72.

Justice Bloom went on to hold that the wife had discharged her onus to prove an unjust enrichment, and ordered a monetary remedy of $3,000,000 based on 50% of the value of the husband’s company: at paras 122 & 128-129. The wife’s contributions (both domestic and non-domestic) were equal to those of the husband in creating the company’s $6,000,000 value: at para 129.

The breadth of Justice Bloom’s holding is open to debate, but a reasonable interpretation is that if there is no equalization claim before the court through no fault of the party claiming unjust enrichment, then the court may quantify damages on a joint family venture basis. Cases of this kind will likely continue to be rare, but Mullin v Sherlock (2023) is a useful reminder to pursue exceptional relief where there is a principled basis for it.

*with thanks to Vanessa Lam and Maria Golarz for their suggestions and edits.

Costs Following a Conference are Mandatory in Certain Circumstances (and Can be Substantial)


By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

Costs in family law proceedings were a hot topic over the last year.

Broadly, Rules 18 (Offers to Settle) and 24 (Costs) of the Family Law Rules (“FLR”) govern costs in family law proceedings. Consideration of success is “the starting point.” Rule 24(1) creates a presumption of costs in favour of the successful party: FLR, R. 24(1) & Rogers v. Porga, 2021 ONSC 5442 (CanLII), at paras 11-12 & Family Law Rules, O. Reg. 114/99 (“FLR”), rr. 18 & 24.

Rule 24(10) provides that the judge who deals with a step in a case shall (a) determine who, if anyone, is entitled to costs; or (b) expressly reserve the decision on costs for determination at a later stage in the case: FLR, at r. 24(10).

Costs following a conference – i.e., a Case Conference, Settlement Conference, or Trial Management Conference – are also governed by r. 17(18). Costs are not to be awarded following a conference unless certain circumstances arise:

(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a)  order the party to pay the costs of the conference immediately;

(b)  decide the amount of the costs; and

(c)  give any directions that are needed. [underlining added]

Note the mandatory, not permissive, wording of the provision. If such circumstances arise, the court shall order costs immediately.

An enumerated circumstance arose in Mitchell v. Mitchell, 2023 ONSC 2341 (WL), where Justice Kraft was tasked with addressing costs for a Settlement Conference where one party was unprepared and “otherwise contributed to the Conference being unproductive.” The husband had “behaved unreasonably” and the wife was put to “excessive” legal fees due to his refusal to comply with his financial disclosure obligations (including court ordered disclosure): para 12.

In particular, at the time of the conference:

  1. the husband was in breach of two consent disclosure orders;
  2. his failure to comply with those orders caused additional expense to the wife;
  3. he had not served or filed an updated financial statement, updated certificate of financial disclosure, Net Family Property Statement, expert reports, or an Offer to Settle, as required by the FLR;
  4. his failure to provide basic financial disclosure deprived the wife of the opportunity to have a judge explore settlement or narrow the issues (two purposes of a Settlement Conference as per r. 17(5)), or to advance to a Trial Management Conference;
  5. his previously sworn financial statements omitted relevant information and assets;
  6. he blamed his delay and failure to comply on his age, lack of computer skills, and lack of representation (despite being represented for part of the litigation);
  7. the wife had been forced to bring a motion to dispense with his consent to accept an offer to purchase a jointly owned property, above list price, despite his previous agreement to sell, and had recovered some but not all of her costs of that motion; and
  8. the wife was forced to incur fees to obtain documentation of cash receipts which the husband had failed to disclose: para 7.

Prior to the Settlement Conference, the parties had reached a consent regarding several issues, including payment of interim spousal support, sharing net rental income, a non-dissipation order regarding the proceeds of sale of various assets, a process for selling a property, and timing for outstanding and new disclosure. Still, the wife argued that the consent order was only possible due to extensive efforts by herself and her counsel to gather evidence: paras 1 & 8.

Justice Kraft went on to make several observations about how courts are to decide the quantum of costs following a conference:

  • The two traditional scales of costs (i.e., solicitor-and-client and party-and-party) are no longer appropriate to quantify costs under the FLR. Having determined one party is liable to pay costs, the court must fix an amount somewhere between a “nominal sum” and “full recovery”, having regard to the factors set out in r. 24: para 13, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC) and A.M. v. D.M., 2003 CanLII 18880 (ON CA).
  • The FLR do not explicitly provide for “partial” or “substantial” indemnity costs. Rule 24(8) does refer to costs on a “full recovery basis” where a party has acted in “bad faith”. However, absent bad faith, the court does not need to find “special circumstances” before ordering costs on a full recovery basis: para 14, citing Sordi v. Sordi, 2011 ONCA 665 (CanLII).
  • Nevertheless, there is no general approach in family law to “close to full recovery costs”. Full recovery is only warranted in certain circumstances, such as bad faith (r. 24(8)) or beating an offer to settle (r. 18(4)): para 15, citing Beaver v Hill, 2018 ONCA 840 (CanLII).
  • Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs they may face if unsuccessful. Unreasonable behaviour may result in a higher award of costs: para 16.

Here, the wife had initially sought costs of $10,000 at the Settlement Conference. She served a new Bill of Costs the day after, seeking costs of $34,558.33, representing 60% of her costs incurred since the earlier disclosure orders. The husband argued the new Bill of Costs contained billings related to other issues, including a motion to strike the husband’s pleadings, correspondence, and other matters not related to disclosure or the adjourned Settlement Conference dates: para 4.

Ultimately, Justice Kraft ordered costs to the wife in the amount of $18,000 to be paid within 10 days. This was an appropriate order in light of the husband’s lack of preparedness for the conference, his ongoing breach of disclosure orders and the FLR, particularly since the first order was made in February 2022, the reasonableness and proportionality of the wife’s counsel’s work, and the fact that the husband should have expected to pay costs given his disclosure failures: paras 2 & 19.

Tips for Effective Settlement Conferences (and Getting Your Costs After an Unproductive One)

  • Review the purposes of a Settlement Conference as set out in r. 17(5) of the FLR.
  • Review outstanding disclosure and other orders with your client beforehand.
  • Manage client expectations – clients need to know that costs may be awarded against them at a conference for certain unreasonable behaviour.
  • Reference in your Settlement Conference Brief why costs of the conference should be ordered – i.e., that the opposing party was not prepared, did not serve the required documents, did not make required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow r. 17(18), of the FLR.
  • Review the docket entries on your Bill of Costs to make sure there is enough detail for a judge to understand what each time entry relates to.
  • On the date of the conference, be prepared with a Bill of Costs – and don’t be afraid to amend it as necessary, and as is reasonable, before any costs determination.

*with thanks to Vanessa Lam and Rebecca Winninger for their suggestions and edits.

How to Prove it: What Evidence is Needed to Show Reasonable Health Needs Justify Under/Unemployment?


By Kayleigh Pink, Associate Research Lawyer, Lam Family Law*

Fairly frequently, a parent or spouse claims that a medical condition or health needs prevents or limits their ability to work. But what kinds of evidence does a court need to accept their claim, and not impute income to them for child or spousal support purposes?

The Test for Imputing Income Based on Under/Unemployment

Pursuant to s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where the spouse is intentionally under-employed or unemployed. There are a few exceptions where the under-employment or unemployment is justified, including by the reasonable health needs of a spouse.

The leading case on imputing income remains Drygala v. Pauli, 2002 CanLII 41868 (ON CA), where the Court of Appeal for Ontario set out the following three questions which should be answered by a court in considering a request to impute income (para 23):

  1. Is the spouse intentionally under-employed or unemployed?
  2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs or the respondent’s health needs?
  3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The onus is on the party seeking to impute income to establish a prima facie case of intentional under-employment or unemployment. They must establish an evidentiary basis upon which this finding can be made: Mohamoud v Farah, 2023 ONCJ 103 (CanLII), at para 172, citing Homsi v. Zaya2009 ONCA 322 (CanLII).

Once there is an evidentiary basis establishing a prima facie case, the onus shifts to the other party to defend the income position they are taking: Mohamoud v Farah, ibid, at para 173, citing Lo v. Lo, 2011 ONSC 7663 (CanLII) & Charron v. Carriere2016 ONSC 4719 (CanLII).

Evidence Required to Show Reasonable Health Needs

Since Drygala v. Pauli (2002), there have been numerous cases where a prima facie case has been established or conceded, but the under-employed or unemployed spouse argues that they should not be imputed with income because their under-employment or unemployment is required by virtue of reasonable health needs.

Recently, in Mohamoud v Farah, 2023 ONCJ 103 (CanLII), Justice Kapurura reviewed what evidence is required to satisfy the court that a party’s reasonable health needs justify their decision to work less or to not work: para 195.

Justice Kapurura held that the party resisting imputation should provide cogent medical evidence in the form of a detailed medical opinion: para 195, citing various cases. The medical report should set out at least the following information: para 196, citing Davidson v. Patten, 2021 ONCJ 437 (CanLII), Curtis J.:

i. Diagnosis;
ii. Prognosis;
iii. Treatment plan (is there a treatment plan? And what is it?);
iv. Compliance with the treatment plan; and,
v. Specific and detailed information connecting the medical condition to the inability to work. (e.g., this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever.)

In Mohamoud v Farah (2023), the payor father provided a medical report from a physician at a neuromuscular clinic regarding neuropathy in the father’s wrist. Justice Kapurura found the report to be insufficient, and took issue with it being three years old by the time of trial: at paras 193-194 & 198-199.

As a further example, in Geishardt v. Ahmed, 2017 ONSC 5513 (CanLII), Justice Corbett held that a party who wishes to have their medical condition taken into account bears the onus to establish “material disability”: at para 36. This onus “cannot ordinarily be discharged solely on the basis of the party’s testimony”: at para 36. Despite the wife’s testimony that she was on medication for anxiety and depression and could not work, Justice Corbett found that the wife had not discharged her onus as she did not produce medical records nor expert evidence about her condition, prospects, or treatment: at paras 33-35 & 37-38.

Mohamoud v Farah (2023) focused on the payor resisting a claim for imputation of income. However, the same requirement for cogent medical evidence applies to a support claimant relying upon disability or illness as the basis for a spousal support claim: Karnes v. Reid, 2023 ONCJ 167 (CanLII), at paras 24-26, per Baker J., citing Davidson v. Patten, 2021 ONCJ 437 (CanLII), Curtis J.

The main takeaway is that if either party’s position is based on being unable to work due to their health needs, they ought to be prepared to provide the opposing party and court with detailed, recent, and cogent medical evidence that connects their medical condition to their inability to work.

Timing Considerations

Further, if settlement efforts fail, a party making such a claim may need to provide an updated or supplementary expert medical report or participant expert written opinion to ensure it is up to date for trial.

Keep in mind the timelines to serve and file such reports, and the minimum contents of such a report as set out in the Family Law Rules, O Reg 114/99, R. 20.2. Also, the time for an order for late filing normally needs to be made at the settlement conference, although the trial judge or judge managing the case may also order otherwise: Family Law Rules, ibid, R. 20.2(14.1).

*with thanks to Vanessa Lam and Rebecca Winninger for their suggestions and edits.

Appeal vs. Variation: What to Do When Circumstances Change After Trial


By Rebecca Winninger, Senior Associate Lawyer, Lam Family Law*

We assist family lawyers and select direct clients with appeals, and fresh evidence is an issue that comes up frequently. In some cases, the fresh evidence which a party seeks to introduce is voluminous, and the appeal begins to resemble what the Supreme Court of Canada (“SCC”) referred to in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII) as a “disguised application to vary”.  With this in mind, I want to review the differences between an appeal and a motion to change, and discuss how to decide which course to take when circumstances have changed after trial.

Neither avenue offers a de novo hearing. In order to promote finality, appellate courts rarely consider events which occurred after trial. For the same reason, on a motion to change, the court will not reconsider events which occurred before the trial.

The Test to Admit Post-Trial Evidence on Appeal

An appellate court will not consider “new” or post-trial evidence unless it meets the stringent four-part test for admitting fresh evidence on appeal, from Palmer v. The Queen, 1979 CanLII 8 (SCC), at p. 775:

  1. the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will not be applied as strictly in a criminal case as in civil cases);
  2. the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
  3. the evidence is credible in the sense that it is reasonably capable of belief; and
  4. the evidence is such that, if believed, it could have affected the result at trial.

In the past, some appellate courts in Canada, including the Court of Appeal for Ontario (“ONCA”), had applied the Palmer test more flexibly in cases involving children. This more flexible approach was so that the court could have the most current information possible when determining the child’s best interests: see, e.g., Goldman v. Kudelya, 2017 ONCA 300 (CanLII), at para 25.

However, in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), the SCC held that the Palmer test applies even when the appeal concerns the best interests of a child: paras 66 & 69-71.

Appellate courts also used to distinguish between “fresh evidence”, which existed at the time of trial but was not put before the court, and “new evidence” which only arose after trial. The SCC held in Barendregt that the Palmer test applies whether the evidence arose before or after trial. The “core inquiries” under the test remain the same regardless of when the evidence or fact came into existence: paras 3, 27, 48-50, & 55.

To summarize, evidence arising after trial – such as a child’s resistance to a new parenting schedule – must still meet the stringent Palmer test to be considered on appeal. The Palmer test ensures that admission of fresh evidence will be rare, and that the issues between the parties will “narrow rather than expand as [a] case proceeds up the appellate ladder”: Barendregt, at para 31.

Even if the evidence is admitted, the appeal court must defer to the trial judge’s findings that are not affected by the post-trial evidence, absent palpable and overriding error: Barendregt, at para 81.

Maintaining the Distinct Purposes of Appeals and Motions to Change

The SCC also observed in Barendregt that it may not be necessary to admit post-trial evidence on appeal because variation schemes exist. Courts “must be wary of permitting parties to use the Palmer framework to circumvent legislative schemes that provide specific procedures for review”: paras 73 & 75.

Neither an appeal nor a motion to change is a de novo hearing. The purpose of an appeal is to determine whether the trial judge erred, and the focus is not on “the implications of subsequent events”. The assessment is retrospective. In a motion to change, the court assumes the correctness of the original decision, and the moving party must prove a material change in circumstances. If the moving party meets this burden, “the assessment is prospective”. In a parenting case, the court will make a fresh inquiry as to the child’s best interests, considering the findings of fact of the judge who made the previous order and the evidence of new circumstances: paras 75-76.

It is essential that “variation procedures and appeals remain distinct in the family law context” so that litigants do not unfairly have to “defend the original order – absent a material error – in the wrong forum with appellate judges effectively performing work assigned to first instance judges in variation procedures”. Consequently, where the request to admit post-trial evidence amounts to “a disguised application to vary”, the court may refuse to admit it without considering the Palmer test: paras 78-80.

A motion to change is likewise not an “indirect route of appeal” from the original order. The court cannot retry the case. It must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Gordon v. Goertz, 1996 CanLII 191 (SCC), at para 11.

Choosing Between a Fresh Evidence Motion and a Motion to Change

A motion to change is generally the correct and natural forum to address post-trial events, if you can argue that the post-trial events amount to a material change in circumstances.

That said, if you are appealing an order and a highly probative, credible, and focused piece of evidence comes into existence after trial, then there is a chance the appellate court will consider it.

The pre-Barendregt case law shows that independent evidence regarding post-trial events is more likely to be admitted on appeal. For example, Bors v. Bors, 2021 ONCA 513 (CanLII) was a parental alienation case where the ONCA admitted a therapist’s report summarizing therapeutic work carried out with the family after trial. However, the report was attached to an affidavit from the father which the ONCA did not admit, characterizing the affidavit as “a whole new record”: paras 59-62. The Palmer framework is “not an opportunity for parents to continue an affidavit war”: R.F. v. J.W., 2021 ONCA 528 (CanLII), at para 8. The court will not consider evidence that is similar to other evidence led at first instance, which the judge did not give effect to: Austin v. House, 2023 ONCA 55 (CanLII), at para 14.

The ONCA also admitted a report from the children’s therapist in Fiorito v. Wiggins, 2015 ONCA 729 (CanLII), and correspondence from a psychologist in M.P.M. v. A.L.M., 2021 ONCA 465 (CanLII), where the final order called for the psychologist to oversee counselling for the family, but the psychologist was not willing to do so without continued oversight by the court: paras 2-4 & 7-10.

Bear in mind that if your client does not appeal an order, then the legal holdings and factual findings of the trial judge stand and cannot be relitigated in a subsequent motion to change.

In addition, you may not be able to move to vary an order while an appeal is outstanding. If the appeal is successful, the motion to change may be superfluous. To allow a motion to change to proceed while the appeal is outstanding would be inconsistent with the primary objective of the Family Law Rules: Unoh v. Agboola, 2023 ONSC 5751 (CanLII) (Div Ct), at paras 41-42 & 44-45, citing Hawkins v. Schlosser, 2013 ONSC 2120 (CanLII), at para 17 & Lapier v Roebuck, 2017 ONSC 1640 (CanLII), at para 49.

 

*with thanks to Vanessa Lam for her suggestions and edits.

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