Canada: Court Of Appeal Summaries (August 25 To August 29)

Last Updated: September 9 2014
Article by John Polyzogopoulos

Hello everybody. Today's edition of Blaney's OCA Summaries includes decisions in the following areas: family law, child welfare, abuse of process in a solicitor's negligence case, an interesting decision where bankruptcy law, the Execution Act, the Mortgages Act and property law all intersect to determine the priority of distribution, and a quirky decision in constitutional law regarding whether the long-standing prohibition of Catholics ascending to the throne of England is constitutional or even justiciable.

Harris v. Levine, 2014 ONCA 608
[Blair, Pepall, Hourigan JJ.A.]
Joseph Markin, for the appellants
Louis C. Sokolov, for the respondent

Keywords:   Abuse of Process, Negligent Representation by Lawyer, Issue Estoppel, Collateral Attack

The appellant unsuccessfully appealed two convictions arising out of previous criminal proceedings. In the appeal from the convictions, he initially alleged incompetence against his former defence counsel, the respondent in this appeal, but abandoned that allegation prior to the hearing of the criminal appeal.

The appellant then sued the respondent for negligently representing him in the criminal matter. The respondent successfully moved to have the appellant's claim struck on the basis that it was an abuse of process.

Did the motion judge err in striking the appellant's claim for abuse of process?

Appeal Dismissed.

In order for the appellant's negligence claim to succeed, he would need to prove that he would have been acquitted but for the negligence of the respondent. Permitting the claim to proceed would constitute a collateral attack on his criminal convictions. This should not be permitted, particularly given that the issue of counsel's competence was not pursued on the criminal appeal. The proper course before bringing a negligence claim is to appeal or otherwise seek to set aside the convictions.

Katz v Katz, 2014 ONCA 606
[Doherty, Simmons & Tulloch JJ.A.]
R. David & J. Krob, for the appellant
S. Harris, for the respondent

Keywords: Family Law, s 7 Federal Child Support Guidelines, Divorce, Divorce Order, Costs, Life Insurance, s 14(19) Family Law Act, Evidence, Family Law Rules, O. Reg. 114/99, Civil Contempt, Feinstat v Feinstat, s 34 Family Law Act, s 15 Divorce Act

This was an appeal from a dismissal of two motions brought by the appellant for enforcement of the respondent's obligations under a divorce order. The divorce order specified that the respondent contribute to expenses for the parties' two younger children under s 7 of the Federal Child Support Guidelines, and obtain a $500,000 life insurance policy with the children designated as beneficiaries. With respect to the first motion, the respondent sought a finding of civil contempt against the respondent; with respect to the second motion, she sought an order that the appellant be entitled to obtain the required insurance and collect the premiums in the same manner as if it were child support. The motions judge dismissed both motions and made no order as to costs.

(1) Did the motion judge err in dismissing the appellant's enforcement motion as it related to s 7 expenses?
(2) Did the motion judge err in failing to award the appellant substantial indemnity costs of the enforcement motion?
(3) Did the motion judge err in failing to find the respondent in contempt for failing to obtain the life insurance specified in the divorce order?
(4) Did the motion judge err in dismissing the enforcement motion as it related to the appellant's obligation to obtain life insurance?
(5) Do s 34(1)(k) of the Family Law Act and s 15 of the Divorce Act permit a court to order a spouse to obtain an insurance policy to secure payment of an order following the payor spouse's death?

Appeal Dismissed

(1) No. In response to the motion, the respondent analyzed the appellant's s 7 claims, paid expenses that were properly documented and supported, and concluded that he complied with his obligations under s 7. The respondent did not pay claims that were not properly documented or supported. The motion judge found the respondent's analysis reasonable and the Court found no error in that reasoning.

(2) No. The appellant argued that s 51 of the divorce order provided that if the appellant was required to bring a motion to enforce s 7 expenses, she would be entitled to her costs on a full indemnity basis. The motion judge made no ruling with respect to costs. The Court did not disturb this finding, holding that the issue of costs remained within the discretion of the motion judge, despite the terms of the divorce order.

(3) No. The appellant argued that the motion judge erred in failing to find the respondent in contempt based on the respondent's failure to obtain the life insurance specified in the divorce order. At the motions court, the respondent adduced evidence of efforts he made to obtain life insurance and evidence to support the fact that he had been denied coverage because he suffered from prostate cancer. The motion judge found that the respondent made reasonable efforts to obtain coverage, but was unable to do so. The appellant sought to adduce new evidence to support the respondent's ability to obtain coverage. The Court refused to accept this new evidence because it did not comply with the technical requirements of ss 14(19) and 31(3) of the Family Law Rules, O. Reg. 114/99. It held that it was for the motion judge to determine the credibility of the respondent's evidence, and there was no basis for the Court to interfere with the motion judge's decision.

(4) No. The appellant argued that the motions judge erred in law in holding that there is no legal basis on which the appellant can insure the respondent's life and in dismissing the appellant's enforcement motion for that reason. She sought an order that would allow her to obtain the required life insurance, or alternate insurance, and to collect the premiums from the respondent as if they were child-support. The respondent argued that the material filed by the appellant was inadmissible and inadequate to support making any specific order for enforcement. The court agreed with this reasoning.

(5) Yes. Relying on Feinstat v Feinstat 2012 ONSC 5339 (Div Ct), the respondent argued that it would be unjust and unfair to enforce an obligation with which he could not reasonably comply through no fault of his own. He argued that in Feinstat the court found that while s 34 of the Family Law Act permits a court to order a spouse who already has insurance to designate a dependent as a beneficiary, s 34 does not permit a court to require a spouse to obtain or reinstate life insurance. The respondent argued that a similar reading should apply to s 15 of the Divorce Act, RSC 1985, c 3 (2nd Supp). The Court rejected the respondent's argument. Both ss 34(1)(k) of the Family Law Act and s 15 of the Divorce Act permit a court to order a spouse to obtain an insurance policy to secure payment of an order following the payor spouse's death. The Court, however, articulated several criteria that a court should consider before making such an order. These are:

  1. evidence of the payor's insurability;
  2. evidence of the amount and cost of the available insurance;
  3. the insurance amount should not exceed the total amount of support likely to be payable over the duration of the support award;
  4. the insurance should be less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout;
  5. the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes;
  6. the obligation to maintain insurance should end when the support obligation ceases;
  7. when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor's estate.

Catholic Children's Aid Society of Toronto v. J.B., 2014 ONCA 609
[Blair, Pepall and Hourigan JJ.A.]
Nancy Charbonneau, for the appellant
Rachel Buhler, for the respondent

Keywords: Family law, Custody, Best Interests of the Child, Child and Family Services Act, Crown Ward

This appeal arises from an order of a Superior Court judge dismissing J.B.'s appeal from an order making her child a Crown ward without any access given to J.B. The child, who is four years old, had only been in J.B.'s custody for a total of six months. J.B. consented to a protection finding under s. 37(2)(b)(i) of the Child and Family Services Act, and the only issue at trial was the disposition. J.B. argued the trial judge ignored material evidence that supported her position.

Did the trial judge make palpable and overriding errors?

Appeal Dismissed.

The trial judge may have overstated some of the evidence and misidentified the source; however, the errors were not palpable and overriding. Also, material evidence was not ignored. A deferential standard of review is applicable in family law cases in the context of child welfare proceedings.

Teskey v. Canada (Attorney General), 2014 ONCA 612
[Blair, Pepall and Hourigan JJ.A.]
Bryan Teskey, in person
J. Sanderson Graham and David Aaron for the respondent

Keywords: Constitutional Law, Commonwealth, Royal Succession Rules, the Perth Agreement, Canadian Charter of Rights and Freedoms, s.15, Discrimination, Public Interest Standing, Justiciable Issue

In 2011 the Perth Agreement was entered into at a meeting of 16 Commonwealth First Ministers in Perth, Australia. It proposed changes to the royal succession rules of the British Monarchy. The Government of the United Kingdom introduced a bill to effect the changes and Canada formally provided its assent through legislation that has been passed but not yet proclaimed into force. The changes to the succession rules abolished the male preference primogeniture and removed the provision that anyone who marries a Roman Catholic is ineligible to succeed to the monarchy. However, the succession rules continue to preclude any Roman Catholic from succeeding to the throne. Mr. Teskey is a Roman Catholic who argued that this prohibition is discriminatory and contravened his rights and the rights of other Canadian Roman Catholics under s.15 of the Canadian Charter of Rights and Freedoms. Teskey brought an application seeking various forms of declaratory relief. The application was dismissed on the basis that the application did not raise a justiciable issue and the applicant did not have standing. Mr. Teskey appealed that decision.

1) Does the application raise justiciable issues?
2) Does Mr. Teskey have standing to bring the application?

Appeal Dismissed.

No to both questions. The court agreed with the reasoning of the trial judge. It noted that the rules of succession are a fabric of the constitution of Canada and cannot be trumped or amended by the Charter. The application therefore did not raise a justiciable issue. Additionally, Mr. Teskey did not have any personal interest in the issue raised, and did not meet the test for public interest standing. The application judge properly relied on the previously affirmed decision of O'Donohue v Canada which dealt with a challenge to the same succession rule.

Toronto-Dominion Bank v. Phillips, 2014 ONCA 613
[MacFarland, Pepall and Strathy JJ.A.]
G.F. Camelino, for the appellant, C.L. Phillips
M. Odumodu, for the respondent, R.J. Phillips

Keywords: Bankruptcy, Division II Consumer Proposal, Bankruptcy and Insolvency Act, BIA s 66.13, BIA s 69.2(1), BIA s 66.4(1), BIA s 70(1), BIA s 69.2(4), Severance of Joint Tenancy, Execution Creditor, Unsecured Creditor, Mortgages Act s 27, Joint Debtors.  

The appellant, Cindy Phillips, is a consumer debtor who filed a Division II consumer proposal ("proposal") under section 66.13 of the Bankruptcy and Insolvency Act ("BIA"). At the time the proposal was filed, the appellant and her respondent husband owned a residential property in Ontario as joint tenants. This property was mortgaged, and the mortgage was held by the Toronto- Dominion Bank ("TD"). Prior to the filing of the proposal, the Bank of Montreal ("BMO") obtained default judgment against both the appellant and respondent for a joint debt. It filed a writ of seizure and sale with the Sheriff, but did not execute it. Months later, the appellant and respondent defaulted on their mortgage and TD commenced power of sale proceedings. After power of sale proceedings were commenced, the appellant filed the consumer proposal.

The proposal was approved by both the court and participating creditors, including BMO. After approval TD sold the property, and a surplus of $52,295.14 remained. TD applied to pay the surplus into court less the costs of the application, leaving a final surplus of $51,545.14. The appellant and respondent agreed that a sum of $19,327.50 would be paid out of the final surplus to BMO to satisfy their joint debt, and the application judge ordered this accordingly. The application judge also ordered that after TD and BMO had been paid, the remaining balance of $32, 217.64 should be split equally between the appellant and respondent. In that proceeding, the appellant unsuccessfully argued that due to the operation of the stay of proceedings imposed by s. 69.2(1) of the BIA, 50% of the remaining balance should be paid to her, and BMO's writ should be paid out of the respondent's 50% share. Effectively, the appellant argued that the respondent should pay the entire amount of the debt owing to BMO.

On appeal, the appellant submitted that the application judge erred in finding that an execution creditor is a subsequent encumbrancer within the meaning of s. 27 of the Mortgages Act and erred in respect of BMO's right to enforce its writ against the appellant.  The appellant argued that BMO's claim against her was stayed as a result of s. 69.2(1) of the BIA.  Accordingly, BMO could only realize against the respondent's share of the residue remaining after payment to TD.

(1) Does the filing of a consumer proposal under section 66.13 BIA stay the proceedings against the execution creditor BMO, such that it cannot execute its writ of seizure and sale against the appellant?
(2) Does court approval of a consumer proposal take precedence over the proceedings of an execution creditor to recover a claim from a debtor?
(3) Was the joint tenancy of the residential property severed by the filing of the consumer proposal, such that BMO can execute its writ only against the respondent?

Appeal Allowed.

(1) Yes. Section 69.2(1) of the BIA provides that once a consumer proposal has been filed, unsecured execution creditors are prohibited from commencing or continuing proceedings against debtors to recover claims.

(2) Yes. The BIA does not expressly state that consumer proposals take precedence over the actions of execution creditors to recover claims from debtors. However, the court interpreted section 66.4(1) of the BIA in a purposive manner and held that section 70 (1), which applies to bankruptcy proceedings, applies equally to consumer proposals. Therefore, once a consumer proposal has been filed and approved by the court, it will take precedence over the claims of execution creditors that they may have against debtors. The court here held that the policy rationale underlying section 70 (1) of the BIA supports its application to consumer proposals, which is to treat all unsecured creditors equally, after the claims of secured creditors have first been satisfied. This policy rationale is supported by the case of Forest v. Hancor Inc. As a result, BMO's claim against the appellant was stayed at the time she filed her consumer proposal, such that it could not execute its writ against any of her property.

(3) Yes. BMO could not execute its writ against the appellant, because it was stayed by operating of the filing of her consumer proposal. However, since the debt owed to BMO was joint, BMO was at liberty to recover its debt only from the respondent. Once the application judge ordered payment be made to BMO, the execution was completed and acted upon. Relying on a combination of authorities, including Halsbury's Laws of Canada, and the case of Royal & SunAlliance Insurance Company v. Muir, BMO took sufficient steps to execute its writ. At this particular point in time, the joint tenancy was severed and payment to BMO could only be made from the respondent's 50% share of the surplus.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

John Polyzogopoulos
Events from this Firm
8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions