Canada: Court Of Appeal Summaries (August 3 – 6, 2015)

Last Updated: August 13 2015
Article by John Polyzogopoulos

There were only two judgments released by the Court of Appeal this week. One was a family law case concerning the obligation of the primary custodial parent to secure the compliance of a child to an access order in favour of the other parent. The other is an insolvency law decision relating to circumstances in which a CCAA judge can terminate a CCAA liquidation proceeding and assign the insolvent companies into bankruptcy, thereby impacting the priority contest between secured creditors and a pension plan.

A note about one of the features of this blog and the weekly email in particular, that may have caused our blog followers some frustration in the last few weeks. Some of you will have noticed that the feature of clicking on the case name in the table of contents below to take you down to the summary of that decision only works by clicking on the link in the email on your desktop or laptop. This feature does not work when pressing the link in the email from a smartphone. To use this feature from a smartphone, you can click on the link to the weekly post on our website, and then press the name of the case in the table of contents when reading from the blog site rather than from the email. We are trying to find a way to correct this technical glitch, but in the meantime, we wanted our followers to be aware of it.

We hope you continue to find this blog useful and are sharing it with colleagues who may be interested. As always, we welcome your comments and feedback.

Table of Contents

Civil Cases

Godard v Godard, 2015 ONCA 568

Keywords: Family Law, Access Orders, Parental Obligation to Secure Compliance from Child, Contempt, Findings of Fact, The Rule in Browne v. Dunn

Grant Forest Products Inc v The Toronto-Dominion Bank, 2015 ONCA 570

Keywords: Bankruptcy & Insolvency, Pensions, Companies' Creditors Arrangement Act, Pension Benefits Act, ss 57(3) and (4), Personal Property Security Act, s. 30(7), Deemed Trust, Wind-Up of Pension, Sun Indalex Finance LLC v United Steelworkers, Century Services v Canada, Doctrine of Paramountcy, Standard of Review, Reasonableness

Godard v. Godard, 2015 ONCA 568

[Hoy A.C.J.O, Epstein and Huscroft JJ.A.]


G.A. Wainwright, for the appellant.

P. Mongenais, for the respondent.

Keywords: Family Law, Access Orders, Parental Obligation to Secure Compliance from Child, Contempt, Findings of Fact, The Rule in Browne v. Dunn


The appellant wife and respondent husband are separated. They have two children, I. and S. A number of temporary custody and access orders have been made since the separation.

The respondent brought a contempt motion on June 18, 2014, alleging that he had been deprived of weekend access since January 2014. Justice Cornell dismissed the contempt motion but made an order for summer access on the basis of agreed dates. The respondent did not have access to S. as the order required. The appellant attempted to justify this situation by citing S.'s refusal to attend for access with the respondent.

On October 14, 2014, the respondent brought a motion for an order for specified access and an updated exchange protocol. On November 3, 2014, MacDonald J. made an order that the respondent shall have access to S. every other weekend. The appellant did not bring S. to the respondent as required by the order. The respondent brought a second motion to find the appellant in contempt.

The motion judge employed the three-part test for contempt as outlined by this court in G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 669 (C.A.). The motion judge found that the order of Cornell J. dated July 18, 2014, did not state clearly and unequivocally what the appellant was required to do. However, the motion judge found the order of MacDonald J. to be clear and unequivocal in setting out the requirement to drop off S. Therefore, the motion judge found the appellant mother in contempt of the order of MacDonald J. granting the respondent father access to his daughter, S. The appellant mother appealed.


  • Did the motion judge err by failing to consider alternative remedies to contempt?
  • Did the motion judge err by rejecting the appellant's un-contradicted evidence?
  • Did the motion judge err by finding that the appellant had deliberately and willfully breached the access order?


The appeal is dismissed. The appellant shall pay the respondent $8,293.79, inclusive of taxes and disbursements, for the costs of the appeal. Costs of the motion will be determined by the motion judge when he addresses the sanction for contempt.


  • No, the motion judge did not err by failing to consider alternative remedies to contempt. Though Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, stands for the proposition that contempt findings should only be made sparingly and as a last resort, the history of this case belies the adequacy of alternative approaches. The respondent has brought numerous motions asserting his access rights in the face of the appellant's persistent non-compliance with access orders.
  • No, the motion judge did not err by rejecting the appellant's un-contradicted evidence in the absence of cross-examination on her affidavit, thereby violating the rule in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.). The motion judge's key findings of fact were, in fact, consistent with the appellant's affidavit evidence. There was, in other words, no conflict in the affidavit evidence relevant to the disposition of the motion. The motion judge found that the appellant's affidavit supported the conclusions that she has "left up to the child the decision as to whether or not she will attend for access with her father", and that she has "effectively abdicated her parental authority on the issue of access". These findings form the basis for the finding of contempt and were open to the judge on the affidavit evidence, as discussed below.
  • No, the motion judge did not err by finding that the appellant had deliberately and willfully breached the access order. Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have consistently held that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.). Parents are expected to do all that they reasonably can to get a child to comply with an access order. The appellant has been put on notice in prior proceedings that more than mere encouragement was required. In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order". The motion judge properly concluded that deliberate and willful disobedience was established beyond a reasonable doubt.

Tags: Family Law, Access Orders, Parental Obligation to Secure Compliance from Child, Contempt, Findings of Fact, The Rule in Browne v. Dunn

Grant Forest Products Inc v The Toronto-Dominion Bank, 2015 ONCA 570

[Doherty, Gillese and Lauwers JJ.A.]


  1. Bailey and D. McPhail, for the appellant Superintendent of Financial Services
  2. Dietrich, for the respondents Grant Forest Products Inc., Grant Alberta Inc., Grant Forest Product Sales Inc., and Grant U.S. Holdings GP
  3. Marshall and R. Jaipargas, for the respondent West Face Capital Inc.
  4. Cobb, for the respondent Mercer (Canada) Limited
  5. Byers and D. Murdoch, for the respondent Ernst & Young Inc.
  6. J. Hatnay, J. Harnum and A. Scotchmer, for the intervener the court-appointed Representative Counsel to non-union active employees and retirees of U.S. Steel Canada Inc. in its CCAA Proceedings

Keywords: Bankruptcy & Insolvency, Pensions, Companies' Creditors Arrangement Act, Pension Benefits Act, ss 57(3) and (4), Personal Property Security Act, s. 30(7), Deemed Trust, Wind-Up of Pension, Sun Indalex Finance LLC v United Steelworkers, Century Services v Canada, Doctrine of Paramountcy, Standard of Review, Reasonableness


The debtor companies in this case obtained protection under the Companies' Creditors Arrangement Act, RSC 1985, c. C-36 (the "CCAA") and entered into a liquidation process. After selling their assets and paying out the first lien lenders in full, there were insufficient funds to satisfy the claims of the second lien lenders and the claims asserted on behalf of two of the debtor companies' pension plans. A contest ensued between one of the secured creditors and the pension claimants.

The CCAA judge ordered the remaining debtor companies into bankruptcy, thereby resolving the contest in favour of the secured creditor. Ontario's Superintendent of Financial Services (the "Superintendent") appeals.

During the CCAA proceeding, the Superintendent made wind-up orders in respect of the two pension plans. He contends that a deemed trust arose on wind-up of each plan. He says that those wind up deemed trusts encompassing all unpaid contributions took priority over the claims of the secured creditors because the remaining funds are the proceeds of sale of debtor companies' accounts and inventory. The Superintendent contends that the decision below is inconsistent with the Supreme Court of Canada's recent decision in Sun Indalex Finance, LLC v United Steelworkers, 2013 SCC 6, [2013] 1 SCR 271.


(1) What standard of review applies to the CCAA judge's decision to lift the CCAA stay of proceedings and order the remaining applicants into bankruptcy?

(2) Did the CCAA judge make a procedural error in his treatment of the pension motion at issue in the case? I.e. did he act improperly in adjourning the pension motion on his own motion so that additional notice could be given to second lien lenders?

(3) Did the CCAA judge err in principle, or act unreasonably, in lifting the stay and ordering the remaining applicants into bankruptcy?

Holding: Appeal dismissed.


(1) The decision to lift the stay and order the remaining applicants into bankruptcy was a discretionary decision. The standard of review is therefore reasonableness.

(2) As discussed in Century Services Inc v Canada (Attorney General), 2010 SCC 60, the CCAA judge must be cognizant of the various interests at stake in the reorganization, which can extend beyond those of debtor and creditors. Thus, the judge had to be cognizant of the interests of the second lien lenders, as well as those of the moving parties and the pension claimants. The pension motion had the potential to adversely affect the interests of the second lien lenders. The funds that remained at the time that the pension motion was brought were insufficient to meet the claims of both the second lien lenders and the pension claimants. Had the CCAA judge refused to grant the pension motion and contributions continued to be made to the Plans, the second lien lenders would have been prejudiced because there would have been even fewer funds available to satisfy their claims. Given these circumstances, it was understandable that the CCAA judge had concerns about the adequacy of notice to the second lien lenders. Thus, the adjournments of the pension motion did not amount to procedural unfairness. Rather, they were consonant with the Supreme Court's dictates in Century Services.

(3) There was no error in the CCAA judge's exercise of discretion to lift the CCAA stay and order the remaining applicants into bankruptcy. At the time the motions were heard, GFPI had long since ceased operating, its assets had been sold, and the bulk of the sale proceeds had been distributed. It was a liquidating CCAA with nothing left to liquidate. Nor was there anything left to reorganize or restructure. All that was left was to distribute the remaining funds, and it was clear that those funds were insufficient to meet the claims of both the second lien lenders and the pension claimants. in those circumstances, the breadth of the CCAA judge's discretion was sufficient to lift the stay and order the remaining applicants into bankruptcy. The judge's discretion was not exercised unreasonably.

Tags: Bankruptcy & Insolvency, Pensions, Companies' Creditors Arrangement Act, Pension Benefits Act, ss 57(3) and (4), Personal Property Security Act, s. 30(7), Deemed Trust, Wind-Up of Pension, Sun Indalex Finance LLC v United Steelworkers, Century Services v Canada, Doctrine of Paramountcy, Standard of Review, Reasonableness

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
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.