Court Of Appeal Summaries (August 25 – August 29) - Civil Law

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 25, 2025.

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R.L. v. M.F. involved a dispute over spousal support following the end of an over 14-year marriage in which both the husband and wife were high income earners. The husband was the primary breadwinner while the wife took on most household and parenting responsibilities along with her part-time professional career. The trial judge awarded the wife ongoing spousal support, recognizing her entitlement based on both her contributions to the marriage and the economic partnership it created. The husband challenged the spousal support order on multiple grounds. The Court dismissed all grounds of appeal, finding no errors in the trial judge's reasoning, and reaffirmed the principle of equitable sharing of marital benefits and the discretionary nature of spousal support awards.

Kirby v. Woods involved a dispute between divorced parents over the return of their daughter, X, to their country of origin under the Hague Convention after the mother brought X and her sibling to Canada and successfully claimed refugee status. The father sought X's return, while the mother argued that X, now recognized as a refugee, would face serious harm if returned. The application judge ordered X's return, finding the exceptions to return under the Hague Convention did not apply and questioning the child's independent objection. On appeal, the Court found that the judge erred by failing to apply the rebuttable presumption against returning a recognized refugee child and by not giving proper weight to X's own objections and fears of violence. The appeal was allowed and the order for X's return set aside.

In Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, the Court held that a lawsuit stemming from a land sale dispute was an abuse of process because it attempted to re-litigate issues already decided or that could have been raised in prior proceedings.

In Barry v. Anantharajah, a pedestrian struck by a vehicle sued for negligence and was awarded only $16,160.50 after a three-week jury trial. The trial judge awarded the plaintiff $300,000 in costs (over $100,000 less than the plaintiff had claimed), finding that she was more successful at trial than the defendant, especially since the defendant and her insurer (Aviva) had refused to make any monetary settlement offer and had pursued an aggressive litigation strategy. On appeal, the Court upheld the costs award, emphasizing the trial judge's discretion, the reasonableness of the plaintiff's legal costs given the case's complexity, and the importance of balancing proportionality with other costs considerations. The Court concluded that though the costs far exceeded the damages awarded, this was not uncommon and was justified in this case. The message to insurers that I take away is that there is a price to pay for being too aggressive (and clogging up the courts in the process).

Wishing everyone an enjoyable weekend.

Civil Decisions

R.L. v. M.F., 2025 ONCA

Keywords: Family Law, Spousal Support, Entitlement, Compensatory, Non-Compensatory, Post-separation Income, Property, Equalization of Net Family Property, Divorce, Pre-judgment Interest, Divorce Act, R.S.C. 1985, c. 3, s.15.2(6), s.15.2(4) and (6), s.15.2(5)(a), Courts of Justice Act, R.S.O. 1990, c. C.43, s.128(1)(2)-(4), s.130(2), Hickey v. Hickey, [1999] 2 S.C.R. 518, Hendriks v. Hendriks, 2022 ONCA 165, Scheibler v. Scheibler, 2024 ONCA 191, Berta v. Berta, 2017 ONCA 874, Ballanger v. Ballanger, 2020 ONCA 626, Johanson v. Hinde, 2016 ONCA 430, Debora v. Debora (2006), 83 O.R. (3d) 81 (C.A.), Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448, Moge v. Moge, [1992] 3 S.C.R. 813, Miglin v. Miglin, 2003 SCC 24, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, Plese v. Herjavec, 2020 ONCA 810, Cassidy v. McNeil, 2010 ONCA 218, Droit de la famille – 1221, 2012 QCCA 19, Zacharias v. Zacharias, 2015 BCCA 376, Allaire v. Allaire, (2003), 170 O.A.C. 72 (C.A.), Chutter v. Chutter, 2008 BCCA 507, Sea v. He, 2024 BCCA 161, Linton v. Linton (1990), 1 O.R. (3d) 1 (C.A.), Halliwell v. Halliwell, 2017 ONCA 349, Kerr v. Baranow, 2011 SCC 10, Aquila v. Aquila, 2016 MBCA 333, Farrar v. Farrar (2003), 63 O.R. (3d) 141 (C.A.), Gilliland v. Gilliland, 72 R.F.L. (6th) 88 (Ont. S.C.), McKenzie v. McKenzie, 2014 BCCA 381, Macdonald v. Macdonald, 2017 NSCA 34, Hodgkinson v. Hodgkinson, 2006 BCCA 158, Berger v. Berger, 2016 ONCA 884, Andrews v. Andrews (1999), 45 O.R. (32d) 577, Adams v. Adams (2001), 15 R.F.L. (5th), Dancy v. Mason, 2019 ONCA 410, Hathaway v. Hathaway, 2014 BCCA 310, [2014] S.C.C.A. No. 412, Patton-Casse v. Casse, 2012 ONCA 709, Rémillard v. Rémillard, 2014 MBCA 101, Kinsella v. Mills, 2020 ONSC 4785, Horner v. Horner (2004), 72 O.R. (3d) 561 (C.A.), Linn v. Frank, 2014 SKCA 87, Kohan v. Kohan, 2016 ABCA 125, Helle v. Helle, 2019 BCCA 97, Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (C.A.), Hartshorne v. Hartshorne, 2009 BCSC 698, Hersey v. Hersey, 2016 ONCA 494, Thompson v. Thompson, 2013 ONSC 5500, Kirvan v. Kirvan, 2016 ONSC 7712, Hamilton v. St. Denis, 2019 ONSC 2766, Fisher v. Fisher, 2008 ONCA 11, Burgess v. Burgess (1995), O.R. (3d) 547 (C.A.), Starkman v. Starkman (1990), 75 O.R. (2d) 19, M.R. v. G.M., 2016 NBCA 33, Anderson v. McWatt, 2016 ONCA 553, Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines, Ottawa: Department of Justice, 2008, Rollie Thompson, "SSAG FAQS 2022, Your Frequently (Or Occasionally) Asked Questions about the SSAG and Some 'Answers'": March 2022, Rollie Thompson, "It's Complicated: How Entitlement Wends Its Way In and Out of the SSAG", Paper delivered at the 15th Biennial Family Law Conference 2025, July 3, 2015, Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User's Guide, Ottawa: Department of Justice Canada, 2016

Kirby v. Woods, 2025 ONCA 601

Keywords: Family Law, International Law, Hague Convention, Refugee Status, Domestic Violence, Child Abduction, Parenting Order, Rebuttable Presumption, Non-refoulement, Best Interests of the Child, Procedural Fairness, Interim Orders, Judicial Review, Interveners, Designated Representative, Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, arts. 3, 12, 13(b), 13(2), 20, Hague Convention, the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 12(1), Children's Law Reform Act, R.S.O. 1990, c. C.12., s. 23, 40, 46, 64-64.2, ss. 22, 41, Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96-98, 110, 115(1), 107, 166(c), 167(2), 169(b), 170,170(i) ss. 170(g)-(h), Extradition Act, S.C. 1999, c. 18, s. 44(1), Canadian Charter of Rights and Freedoms, s. 7, Refugee Protection Division Rules, SOR/2012-256, r. 1, 20(10), 23, 26(2), 37.2(2), 44(1), 55, rr. 1, 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, UNHCR, Asylum Processes (Fair and Efficient Asylum Procedures), Global Consultations on International Protection, EC/GC/01/12 (31 May 2001), Child Guideline, the Gender Guideline, and Chairperson Guideline 8: Accessibility to IRB Proceedings – Procedural Accommodations and Substantive Considerations, Policy on the Treatment of Unsolicited Information in the Refugee Protection Division, No. 2015-02, IRB, Designated Representative Guide, s. 2.2, A.M.R.I. v. K.E.R., 2011 ONCA 417, Németh v. Canada (Justice), 2010 SCC 56, M.A.A. v. D.E.M.E., 2020 ONCA 486, [2020] S.C.C.A. No. 402, F. v. N., 2022 SCC 51, Thomson v. Thomson, [1994] 3 S.C.R. 551, Barendregt v. Grebliunas, 2022 SCC 22, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Palmer v. The Queen, [1980] 1 S.C.R. 759, Cannock v. Fleguel, 2008 ONCA 758, Osaloni v. Osaloni, 2023 ABCA 116, Ellis v. Wentzell-Ellis, 2010 ONCA 347, Landman v. Daviau, 2012 ONSC 547, Husid v. Daviau, 2012 ONCA 655, [2012] S.C.C.A. No. 485, Pollastro v. Pollastro, (1999), 43 O.R. (3d) 485 (C.A.), Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, Singh v. Canada (Citizenship and Immigration), 2022 FC 339, Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, Olah v. Canada (Citizenship and Immigration), 2019 FC 401, Mabrouki v. Canada (Minister of Citizenship and Immigration), 2003 FC 1104, Vartia v. Canada (Citizenship and Immigration), 2023 FC 1426, Bukvic v. Canada (Citizenship and Immigration), 2017 FC 638, X (Re), 2017 CanLII 145536 (I.R.B.), X (Re), 2019 CanLII 120799 (I.R.B.), The Minister of Citizenship and Immigration v. Flores Carrillo, 2008 FCA 94, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada (Citizenship and Immigration) v. Munderere, 2008 FCA 84, [2008] S.C.C.A. No. 187, Quintana Murillo v. Canada (Citizenship and Immigration), 2008 FC 966, Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1204, Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, Senadheerage v. Canada (Citizenship and Immigration), 2020 FC 968, Posluszny v. Canada (Minister of Citizenship and Immigration), 2004 FC 1085, Reyes Pino v. Canada (Citizenship and Immigration), 2012 FC 200, Odetoyinbo v. Canada (Citizenship and Immigration), 2009 FC 501, Burai v. Canada (Citizenship and Immigration), 2020 FC 966, A.A. v Z.S.M., 2025 ONCA 283, In Office of the Children's Lawyer v. Balev, 2018 SCC 16, re M. (Abduction: Rights of Custody), [2007] U.K.H.L. 55, Ludwig v. Ludwig, 2019 ONCA 680

Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

Keywords: Contracts, Duty of Honest Performance, Doctrine of Merger, Torts, Intimidation, Concerted Design (Conspiracy), Abuse of Process, Corporations, Oppression, Civil Procedure, Striking Pleadings, Abuse of Process, No Reasonable Cause of Action, Standard of Review, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 134, 248, Rules of Civil Procedure, rr. 21.01(1)(b) and 21.01(3)(d), SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, Davies v. Clarington (Municipality), 2023 ONCA 376, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Behn v. Moulton Contracting Ltd., 2013 SCC 26, Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, Winter v. Sherman Estate, 2018 ONCA 703, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Quinn v. British Columbia, 2018 BCCA 320, Skypower CL 1 LP and Others v. Ontario Power & HMQ, 2014 ONSC 6950, PricewaterhouseCoopers Inc v. Perpetual Energy Inc, 2022 ABCA 111, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Henry v. British Columbia (Attorney General), 2015 SCC 24, Metrick v. Deeb (2002), 172 O.A.C. 229 (C.A.), Mitchinson v. Baker, 2015 ONCA 623, 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447, John G. Fleming, The Law of Torts, 4th ed., Sydney: Law Book Co., 1971

Barry v. Anantharajah, 2025 ONCA 603

Keywords: Torts, Negligence, MVA, Defences, Contributory Negligence, Damages, Civil Procedure, Costs, Offers to Settle, Proportionality, Insurance Act, R.S.O. 1990, C. I.8, ss. 258.5, 258.6(1) and 267.5(8.3), Courts of Justice Act, R.S.O. 1990, c. C43, s. 131.1, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96, s. 5.1(1), Rules of Civil Procedure, r. 1.01(1.1), r. 49, r. 57.01(1), Wray v. Pereira, 2019 ONSC 3354. Persampieri v. Hobbs, 2018 ONSC 368, Corbett v. Odorico, 2016 ONSC 2961, Brophy v. Harrison, 2019 ONSC 4377, Hamilton v. Open Bakery Ltd., 2004 SCC 9, Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, R. v. Range, 2010 ONCA 488, Nolan v. Kerry (Canada), 2009 SCC 39, Frazer v. Haukioja, 2010 ONCA 249, McNaughton Automobiles Limited v. Co-Operators General Insurance Company, 2008 ONCA 597, 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447, Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135 (C.A.), Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, Lenet (Total Business Solutions) v. Dorfin Distribution Inc., 2008 CanLII 6423 (Ont. S.C.), Elbakhiet v. Palmer, 2014 ONCA 544, [2015] S.C.C.A. No. 427, Cobb v. Long Estate, 2017 ONCA 717, Cobb v. Long Estate, 2015 ONSC 8167, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Gardiner v. MacDonald, 2016 ONSC 2770, aff'd 2016 ONCA 968, Aacurate v. Tarasco, 2015 ONSC 598, Clinedale Property Group Ltd. v. BeyRose Acquisitions Ltd., 2024 ONSC 7264, Keam v. Caddey, 2010 ONCA 565, Ross v. Bacchus, 2015 ONCA 347, Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, The state of the Canadian legal fee landscape: an in-depth report", Canadian Lawyer Magazine, October 2024, Noel Semple, The Cost of Seeking Civil Justice in Canada, (2016) 93 Can. Bar Rev. 639, John Sanderson & Richard H. McLaren, Innovative Dispute Resolution: The Alternative, Toronto: Thomson Reuters Canada Ltd., 2025 (loose-leaf 2024-Rel. 5)

CIVIL DECISIONS

R.L. v. M.F., 2025 ONCA 595

[Roberts, Miller and Pomerance JJ.A.]

Counsel:

Hansen and J. Robinson, for the appellant

Nicoll and V. Lam, for the respondent

Keywords:Family Law, Spousal Support, Entitlement, Compensatory, Non-Compensatory, Post-separation Income, Property, Equalization of Net Family Property, Divorce, Pre-judgment Interest, Divorce Act, R.S.C. 1985, c. 3, s.15.2(6), s.15.2(4) and (6), s.15.2(5)(a), Courts of Justice Act, R.S.O. 1990, c. C.43, s.128(1)(2)-(4), s.130(2), Hickey v. Hickey, [1999] 2 S.C.R. 518, Hendriks v. Hendriks, 2022 ONCA 165, Scheibler v. Scheibler, 2024 ONCA 191, Berta v. Berta, 2017 ONCA 874, Ballanger v. Ballanger, 2020 ONCA 626, Johanson v. Hinde, 2016 ONCA 430, Debora v. Debora (2006), 83 O.R. (3d) 81 (C.A.), Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448, Moge v. Moge, [1992] 3 S.C.R. 813, Miglin v. Miglin, 2003 SCC 24, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, Plese v. Herjavec, 2020 ONCA 810, Cassidy v. McNeil, 2010 ONCA 218, Droit de la famille – 1221, 2012 QCCA 19, Zacharias v. Zacharias, 2015 BCCA 376, Allaire v. Allaire, (2003), 170 O.A.C. 72 (C.A.), Chutter v. Chutter, 2008 BCCA 507, Sea v. He, 2024 BCCA 161, Linton v. Linton (1990), 1 O.R. (3d) 1 (C.A.), Halliwell v. Halliwell, 2017 ONCA 349, Kerr v. Baranow, 2011 SCC 10, Aquila v. Aquila, 2016 MBCA 333, Farrar v. Farrar (2003), 63 O.R. (3d) 141 (C.A.), Gilliland v. Gilliland, 72 R.F.L. (6th) 88 (Ont. S.C.), McKenzie v. McKenzie, 2014 BCCA 381, Macdonald v. Macdonald, 2017 NSCA 34, Hodgkinson v. Hodgkinson, 2006 BCCA 158, Berger v. Berger, 2016 ONCA 884, Andrews v. Andrews (1999), 45 O.R. (32d) 577, Adams v. Adams (2001), 15 R.F.L. (5th), Dancy v. Mason, 2019 ONCA 410, Hathaway v. Hathaway, 2014 BCCA 310, [2014] S.C.C.A. No. 412, Patton-Casse v. Casse, 2012 ONCA 709, Rémillard v. Rémillard, 2014 MBCA 101, Kinsella v. Mills, 2020 ONSC 4785, Horner v. Horner (2004), 72 O.R. (3d) 561 (C.A.), Linn v. Frank, 2014 SKCA 87, Kohan v. Kohan, 2016 ABCA 125, Helle v. Helle, 2019 BCCA 97, Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (C.A.), Hartshorne v. Hartshorne, 2009 BCSC 698, Hersey v. Hersey, 2016 ONCA 494, Thompson v. Thompson, 2013 ONSC 5500, Kirvan v. Kirvan, 2016 ONSC 7712, Hamilton v. St. Denis, 2019 ONSC 2766, Fisher v. Fisher, 2008 ONCA 11, Burgess v. Burgess (1995), O.R. (3d) 547 (C.A.), Starkman v. Starkman (1990), 75 O.R. (2d) 19, M.R. v. G.M., 2016 NBCA 33, Anderson v. McWatt, 2016 ONCA 553, Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines, Ottawa: Department of Justice, 2008, Rollie Thompson, "SSAG FAQS 2022, Your Frequently (Or Occasionally) Asked Questions about the SSAG and Some 'Answers'": March 2022, Rollie Thompson, "It's Complicated: How Entitlement Wends Its Way In and Out of the SSAG", Paper delivered at the 15th Biennial Family Law Conference 2025, July 3, 2015, Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User's Guide, Ottawa: Department of Justice Canada, 2016

facts:

This appeal emerged from a dispute about spousal support following the breakdown of the parties' 14 and a half-year marriage. The former husband (the "appellant") and wife (the "respondent") both earned high incomes, employed as a financial advisor and respirologist respectively. During their marriage they adopted traditional roles. The appellant worked long hours as the primary breadwinner while the respondent took on most of the household work and parenting responsibilities for their two daughters. She also worked in her medical specialty part-time.

Upon separation, the parties settled the issue of child support. A trial judge determined the issues of parenting time, the matrimonial home, and spousal support, ordering the husband to pay $20,000 in monthly spousal support for a further 9 and a half years. He reasoned that the respondent was entitled to spousal support on a compensatory and non-compensatory basis, though he imputed a $550,000 yearly income to her because she continued to work part-time after it was no longer necessary for childcare.

On appeal, the appellant attacked multiple aspects of the spousal support order. The essence of his appeal was that the respondent did not deserve spousal support because of her high imputed income, lack of economic disadvantage, and receipt of monthly child-support payments to fulfill her non-compensatory needs.

issues:

Did the trial judge err in finding the respondent entitled to spousal support?
Did the trial judge err in fixing the quantum and duration of spousal support?
Did the trial judge err in ordering spousal support on the appellant's post-separation income increase?
Did the trial judge err by failing to perform or receive support calculations in order to determine the appropriate quantum of spousal support?
Did the trial judge err in ordering pre-judgment interest on the appellant's equalization payment to the respondent?

holding:

Appeal dismissed.

reasoning:

1. No. The Court found no error in the trial judge's order requiring the appellant to pay the respondent spousal support. The appellant's submission that the respondent had suffered zero economic loss from the marriage and therefore was not entitled to compensatory support was flawed. The Divorce Act (the "Act") makes clear that spousal support orders are meant to recognize any economic disadvantage or economic advantage arising from a marriage and to apportion the financial consequences between the spouses.

Citing s.15.2 of the Act and the Supreme Court decision in Moge, the Court emphasized that spouses expect and are entitled to share in the financial benefits flowing from the economic partnership inherent in marriage. Relying on this doctrine of equitable sharing, the Court held that the assumption by one spouse of household and childcare responsibilities must not be viewed as having reduced economic value compared to the role of the higher-earning spouse. The spouse who did the lion's share of domestic and parenting labour may be entitled to compensatory spousal support to share in the enhanced earning capacity of the other spouse. Per Moge, the longer the marriage persists, the closer the economic union and the greater the presumptive claim to equal living standards upon marital dissolution.

The Court affirmed the trial judge's findings regarding the allocation of domestic labour in the parties' household. The spouses' joint decision that the respondent work part-time and act as the children's primary caregiver allowed the appellant to become highly successful in his career. Though the respondent's highly paid part-time medical work meant she did not suffer economic or career disadvantages from the marriage, the respondent had a moderate compensatory entitlement to spousal support reflecting her share in the economic advantage that the marriage brought her former husband. Moreover, the respondent may have been disadvantaged by the marriage breakdown in the sense of losing some degree of her prior standard of living enjoyed during the parties' marriage. Overall, the trial judge carefully considered all relevant factors set out in the Act in reaching his decision to award the respondent spousal support. The Court thus declined to interfere with this order, noting that spousal support determinations are highly discretionary, attracting significant deference on appeal.

2. No. The Court held that the trial judge did not err in calculating the quantum and duration of spousal support, rejecting each of the appellant's three arguments. First, the appellant submitted that the trial judge failed to appreciate the role Net Disposable Income ("NDI") plays in assessing the support quantum and erred by ordering support that left the appellant with 56% of NDI. The Court affirmed that the amount of leftover NDI in this support order was not unreasonable given the length of the marriage and the spouses' roles. Referring to the Spousal Support Advisory Guidelines (the "SSAG") and relevant case law, the Court commented that fairness is the overarching consideration pertaining to the proportionate share of family NDI allocated to each party. Per Andrews, there is no NDI upper limit for a support recipient. The trial judge considered all relevant circumstances including NDIs produced by different ranges of spousal support, made no errors and selected a support amount below the lower end of the SSAG.

The appellant further alleged that the trial judge erred in setting support at $20,000 per month for the next nine and a half years, claiming this exceeded all reasonable need. The Court disposed of the "reasonable need" argument with reference to its earlier conclusion on compensatory support. Turning to quantum, the Court stated that the trial judge acknowledged that the SSAG could not apply mechanically since the appellant's income exceeded $350,000. Instead, the trial judge properly utilized the SSAG as a tool in his individualized, fact-specific analysis of the support amount. The trial judge's chosen quantum was consistent with the mid-range length of the parties' marriage, and case law involving high income-earning payor and recipient spouses.

The Court also rejected the appellant's argument that the trial judge erred in not providing a review mechanism for the support order. Following Plese, the Court held that nothing in the trial judge's order or reasons deprived the appellant of his right to seek a review upon a material change in either party's circumstances.

3. No. The trial judge made no reversible error when ordering spousal support associated with the appellant's post-separation income increase. A recipient spouse has no automatic entitlement to such increased spousal support. The test to ascertain whether the payor spouse's post-separation income increase must be shared involves assessing if a link exists between the marriage and the increased income. The Court noted that a compensatory basis for spousal support entitlement may provide a stronger claim for the sharing of one spouse's increased income after separation. As stated above, a payee spouse should be compensated for their share in the economic advantages conferred on the payor by the marriage. Furthermore, the recipient must demonstrate that they directly or indirectly contributed to the increase. Other important considerations include the length of the marriage, the extent of the recipient's sacrifices during and after the relationship and any evidence that the payor spouse's knowledge, expertise and/or credentials leading to the income increase were acquired and developed during the relationship. The Court asserted that a longer traditional marriage with children justifies full or substantial sharing of post-separation income increases. Since the trial judge followed these principles in his detailed reasons, the Court declined to intervene.

4. No. The trial judge did not fail to perform or receive support calculations to aid in calculating the appropriate spousal support amount. The trial judge's reasons referred to support calculations provided by the parties.

5. No. The Court held that the trial judge did not err by ordering prejudgment interest on the equalization payment. Though the Courts of Justice Act sets out various exceptions and exclusions to the general rule of awarding prejudgment interest on an equalization payment, none applied in these circumstances. The Court thus declined to interfere with the trial judge's broad discretion to make this award.

Kirby v. Woods, 2025 ONCA 601

[Coroze, Madsen, and Rahman JJ. A.]

Counsel:

M. McCarthy, M.D. Snoo and N. Burrows, for the appellant

M. Melito, M. Stangarone and A. MacEachern, for the respondent Kirby

C. Tempesta, R. Austin and C. Robinson, for the respondent X, The Child

M. Silcoff and A.B. Sadinsky, for the intervener Canadian Association of Refugee Lawyers (CARL)

L. Waldman and C. Steven, for the intervener United Nations High Commissioner for Refugees (UNHCR)

A. Smith, A. Pridham and A. Faizi, for the intervener Canadian Council for Refugees (CCR)

L. Best and X.H. Pastran, for the intervener Immigration and Refugee Law Clinic (IRLC)

P. Balasundaram and A. Hirji, for the intervener Canadian Civil Liberties Association (CCLA)

facts:

The mother and father were both citizens of another country ("country of origin"). They married in 2003, separated in 2015, and divorced in 2019. They had three daughters including X and Y. The youngest daughter, X, was the subject of the order under appeal. Both children were removed from the father's care following an incident in September 2021. The father had no contact with X until December 2023, when the court in the country of origin granted him parenting time with X. In January 2024, the father was arrested and charged in relation to the September 2021 incident. The charge was later withdrawn. His parenting time was increased in April 2024 to alternate weekends. With the father's consent, the mother traveled to Canada with her second husband, X and Y for a vacation. They did not return. On August 14, 2024, the mother filed a refugee claim in Ontario for herself, X and Y.

The father brought an application under art. 12 of the Hague Convention and s. 40 of the Children's Law and Reform Act (CLRA), seeking the return of X. The OCL was subsequently appointed to represent X. The mother filed her answer, asking the Superior Court to exercise jurisdiction under s. 23 of the CLRA. She argued the child would be at risk of serious harm if returned. The mother conceded the removal was wrongful under art. 3 of the Hague Convention but asserted that the exceptions under arts. 13 and 20 applied.

The application was heard over ten days. The application judge held that the exceptions under arts. 13(b), 13(2), and 20 did not apply, granted the father's application, and ordered the return of the child (with a 14-day stay of execution). She accepted the father's expert evidence and found inconsistencies in the mother's evidence. The judge was satisfied that it was "highly unlikely" that violence would reoccur. She rejected the OCL's position under art. 13(2), finding the child had been influenced by her mother. Under art. 20, the application judge reiterated that the child would not be subjected to human rights violations upon return.

Five organizations were granted leave to intervene. The UNHCR submitted that a return under the Hague Convention must comply with non-refoulement obligations (the obligation under article 33 of the Refugee Convention that obligates contracting states not to expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened). CARL argued for deference to refugee tribunals and proposed a framework for the presumption. IRLC outlined policies governing evidence at the IRB. CCR outlined Refugee Protection Division (RPD) procedures and the appointment of Designated Representatives. CCLA argued a return post-refugee determination constituted refoulement and violated s. 7 of the Canadian Charter of Rights and Freedoms.

issues:

Was the rebuttable presumption applied?
Was the evidence of the now 13-year-old child's objection to return to her country of origin properly considered?

holding:

Appeal allowed.

reasoning:

1. No. The Court held that the application judge referred to but did not apply the rebuttable presumption against the return of a refugee child. Questioning the basis for the presumption and choosing not to apply it absent case-specific rebuttal constituted an error of law, reviewable for correctness. The Court held that this error alone was sufficient to allow the appeal.

A.M.R.I. established that when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to their country of habitual residence. Following the refugee determination, the onus shifted to the father to rebut the presumption of grave risk of harm. The application judge's reasons suggested that she went behind the presumption, questioning the process before the RPD, rather than finding that the presumption of grave risk of harm was rebutted in the specific circumstances of the case. The application judge dismissed the RPD process and decision, notwithstanding the high degree of deference required by A.M.R.I. The application judge relied on the father's expert, who testified and was cross-examined about the legislative framework in the country of origin. While the qualification of experts is a matter largely within the discretion of application judges, here, the appropriate approach would have been to defer to the tribunal whose expertise includes those very questions.

Németh directs that the non-refoulement obligation requires an assessment of whether risk persists. There is no onus on the refugee in this regard. Here, the RPD decision was released during the ongoing Hague application. There was therefore no question of persisting risk. Risk had been found contemporaneous with the Hague application.

2. No. The Court held that while the application judge acknowledged that art. 13(2) of the Hague Convention creates a stand-alone defence to the return of the child, she effectively allowed her concerns about the mother's credibility to overshadow her assessment of the evidence regarding the child's independent objection to return. The refugee child clearly and repeatedly objected to return based on fear of violence by her father. The child's objection, in these circumstances, ought to have been given effect. Dismissing the child's objection constituted a palpable and overriding error, which permitted the Court's intervention.

The evidence did not support, on any available interpretation, the conclusion reached regarding the independence of the child's views. The application judge relied on what was effectively one sentence in an inadmissible 2024 custody and access report prepared by a social worker, who was not cross-examined. From that, the author extrapolated that the child "did not want to feel negative about either parent" and "was at an age to feel the effects of being caught in the middle of the mutual resentment between her parents". By contrast, before the Hague hearing, the child met with an experienced OCL clinician on multiple occasions. The clinician's affidavit set out the child's memory of the September 2021 attack on her sister, her fear that her father would also attack her, and that she was afraid for her safety in the country of origin if returned. The child confirmed to the clinician that her thoughts were her own and denied that anyone had spoken to her about the case or influenced her views about her relationship with her father.

The child was found, by the tribunal specialized to make the finding, to have a well-founded fear of persecution. While the decision under appeal stated that the views of a refugee child gain greater importance, that was not reflected in the application judge's treatment of the child's views. The Court agreed with the mother and the OCL that in comparing the descriptions of the September 2021 incident, the application judge parsed the words of the mother and the child, even while recognizing that a serious violent incident took place, rejecting the father's denials of violence, and acknowledging the fear X "may have". This was not a reasonable basis on which to find that the child was under the influence of or aligned with the mother so as to negate the strength of the child's clear objection.

Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

[Sossin, Favreau and Monahan JJ.A.]

Counsel:

M.A. Klaiman, for the appellant

A.A. Blumenfeld and N. Hollard, for the respondents

facts:

Rolling Meadows owned approximately 400 acres of land in the City of Thorold, Ontario. It sold off portions of those lands to various builders for the purpose of developing residential properties. Pine Glen is a building company. Prior to the APS at issue in this case, Rolling Meadows and Pine Glen had entered into other agreements whereby Pine Glen purchased portions of the lands from Rolling Meadows.

On June 2, 2020, the parties entered into the APS that has led to this litigation. The APS set out a sale price of $4,466,000, based on 58 units with 20 feet of frontage at $3,850 per foot of frontage. The APS also included a provision that allowed Rolling Meadows to increase the purchase price by a maximum of $200 per foot of frontage at its sole discretion. The APS further provided that the sale was to be completed by June 15, 2023, but that Pine Glen could complete the purchase earlier on a lot-by-lot basis.

On October 14, 2020, the parties signed an amendment to the APS. The APS amended the purchase price from $4,466,000 to $6,148,000. The amendment removed Rolling Meadows' option to increase the purchase price by up to $200 per foot of frontage. The amendment also removed conditions that Pine Glen be satisfied regarding the financial feasibility of the project and that Rolling Meadows obtain the City of Thorold's approval for the plan of subdivision by December 31, 2020.

On January 25, 2022, Pine Glen submitted a Cooperation Agreement to Rolling Meadows that was meant to assist Pine Glen in obtaining construction financing. Rolling Meadows had signed a similar agreement in the context of an earlier transaction between the parties. Around that time, Pine Glen had entered into agreements of purchase and sale with buyers for all the lots it was to purchase from Rolling Meadows under the APS. Rolling Meadows refused to sign the Cooperation Agreement. Rolling Meadows also took the position that the purchase price was now $7,863,822 rather than $6,148,000. A dispute then arose between the parties regarding the terms and enforceability of the amended APS. In order to resolve this dispute, on February 2, 2022, Pine Glen proposed in writing that: (a) Rolling Meadows sign the Cooperation Agreement on a without prejudice basis; (b) Pine Glen commence construction of the units; and (c) if the parties were not able to resolve the dispute, Rolling Meadows would receive the $6,148,000, and the balance of the funds in dispute would be paid into court or held in trust pending a settlement or disposition by the court. Rolling Meadows did not agree to this proposal.

In February 2022, Pine Glen applied to the Superior Court for a declaration that the amended Agreement of Purchase and Sale (APS) was binding at a price of $6,148,000, while Rolling Meadows countered with an application claiming the APS was unenforceable due to undue influence, lack of independent legal advice, and non-payment of deposit. The application judge heard both applications in August 2022, ruled in Pine Glen's favour, and confirmed the purchase price at $6,148,000, finding Rolling Meadows' objections amounted to "seller's remorse." The Court of Appeal upheld this decision in July 2023. In the meantime, Pine Glen closed the purchase in October 2022 and, in December, sued Rolling Meadows and its principal for $5 million, alleging breach of contract, breach of good faith, statutory oppression under the OBCA, and several torts, including intimidation, concerted design, and abuse of process. The claim argued that Rolling Meadows had raised frivolous defences, refused to sign a Cooperation Agreement, and delayed proceedings to exert economic pressure.

Rolling Meadows brought a motion to strike, asserting the claim disclosed no valid causes of action, was an abuse of process, and was partly barred by merger. The motion judge struck the claim in full, holding that Pine Glen had not pleaded deceit or misleading conduct to support breach of good faith, failed to qualify as a complainant or allege oppressive conduct under the OBCA, and omitted essential elements of intimidation and abuse of process. He further noted that Pine Glen had already amended once and that any new claims would likely be statute-barred. Having found no reasonable cause of action, he declined to rule on whether the lawsuit itself was an abuse of process.

issues:

Did the motion judge err in striking the claims for:
1. Breaching the duty to act honestly and in good faith;
2. Oppression; and
3. Intimidation?
Did the motion judge err in denying leave to amend?
Should the claim be dismissed altogether as an abuse of process and based on the doctrine of merger?

holding:

Appeal dismissed.

reasoning:

1. Not considered. The Court noted that analytically, it made more sense to first look at the claim as a whole to determine whether it was an abuse of process. Because it was found to be an abuse of process, it was not necessary to examine each individually pleaded cause of action.

2. Not considered. The Court also found that this issue was irrelevant due to the overall finding of abuse of process.

3. Yes. The Court first noted that there is a standard of review discrepancy related to abuse of process between the ONCA and the SCC. However, this issue must be decided de novo because the motion judge did not weigh in on the abuse of process question, thereby obviating the standard of review discussion.

The Pine Glen action was found to be an abuse of process for two interrelated reasons. First, many of the issues Pine Glen raised were raised or could have been raised before the application judge in the prior litigation. Secondly, any new issues Pine Glen raised related to the conduct of the prior litigation, which was not the proper subject of a civil action against the respondents.

Pursuant to the Rules of Civil Procedure, the court can stay or dismiss an action on the basis that the action is an abuse of process. In addition, judges have an inherent discretion to prevent an abuse of the court's process.

The applications between Pine Glen and Rolling Meadows previously resolved the enforceability of the amended APS, with the application judge ruling in Pine Glen's favour and confirming the purchase price at $6,148,000. Despite that, Pine Glen's new claim recounted the history of dealings, including Rolling Meadows' refusal to sign a Cooperation Agreement, its demand for a higher price, and its rejection of Pine Glen's February 2022 proposal. Pine Glen alleged that Rolling Meadows deliberately delayed proceedings to exert economic pressure and to try to escape the APS so it could resell the land at a higher price.

The claim repeated these allegations to ground several causes of action, including breach of contract, bad faith performance, and attempted termination of the APS. Pine Glen asserted that Rolling Meadows raised frivolous defences, made false deposit allegations, resisted settlement, and sought to block construction. Relying on these points, Pine Glen argued it suffered losses from delays in closing and beginning construction, including higher financing and building costs, and stated that full particulars of damages would be provided before trial.

The Court concluded that the issues on appeal were raised or could have been raised in the previous litigation. The factual background to the previously decided applications and Pine Glen's new claim were identical. They both arose from the APS and Rolling Meadows' refusal to close the APS as amended. The only differences between the two proceedings were that Pine Glen sought damages for the delay in closing the APS, and that it claimed Rolling Meadows acted in bad faith by refusing to sign the Cooperation Agreement and to agree to the February 2, 2022 proposal. In the Court's view, these were issues that could have been raised in the previous proceedings.

Pine Glen argued that the earlier proceedings were applications and that it did not have an opportunity to seek damages in the context of an application. The Court agreed that it would not have been open to Pine Glen to seek damages on its application given the limits regarding the types of relief that may be claimed in an application. However, the Court found that this was not the end of the inquiry. The doctrine of abuse of process is flexible and does not require that the two sets of proceedings be identical. Pine Glen could have brought an action for damages, but chose to bring an application. Pine Glen did not try to convert its application to an action when it became aware that it would suffer damages due to the delay. The option chose by Pine Glen amounted to litigation by instalment.

Additionally, Pine Glen argued that it did not know the full extent of its damages until it obtained the SCJ declaration. However, the Court noted that it is common for parties not to know the extent of their damages when bringing a claim.

Ultimately, the central flaw in Pine Glen's claim was its focus on Rolling Meadows' conduct during prior litigation. The Court noted that generally, a civil action cannot be based on a party's behaviour in earlier proceedings, and that this amounted to abuse of process. The Court emphasized that parties must be generally free to litigate without fear of new lawsuits based on their litigation strategies. The appropriate response to unreasonable conduct is through cost sanctions, not fresh civil actions. Allowing this appeal would have risked endless retaliatory litigation and would undermine judicial economy, finality and integrity of the justice system.

Barry v. Anantharajah, 2025 ONCA 603

[Pepall, Paciocco and Sossin JJ.A.]

Counsel:

A. McCutcheon and M. Grivich, for the appellant

G. Will and G.A. Marsden, for the respondent

facts:

The respondent, JB, was crossing at a crosswalk when she was hit by a motor vehicle driven by the appellant, PA. JB sued for negligence in 2016, claiming $300,000 in general damages, $700,000 in special damages and payment for healthcare and home maintenance. A litigation guardian was appointed for JB, meaning settlement offers required court approval. In October 2018, PA, through her insurer Aviva, offered to settle for a dismissal without costs. JB counter-offered for $500,000 damages plus costs. PA replied by reiterating her original offer and alternatively proposed to admit liability in exchange for JB limiting her claim to PA's insurance policy limit. PA never made a monetary offer to settle before or during trial.

A three-week judge and jury trial was held in 2024. JB testified and called multiple witnesses, including experts, to speak to the physical, mental and emotional toll of the crash. PA defended vigorously, impugning JB's credibility and calling contrary expert evidence. PA eventually conceded liability but continued to argue that JB's impairments were either pre-existing, minor or had resolved. The jury ultimately awarded JB $24,166 in general damages, $26,000 in special damages for past income loss and nothing for the remaining claims. The jury also found JB 15% contributorily negligent, which, combined with the statutory general damages deductible, left JB with an award of $16,160.50. After this verdict, the trial judge, Mandhane J., granted PA's motion under s. 267.5 of the Insurance Act, holding that JB had not sustained a permanent, serious impairment of an important physical, mental or psychological function.

JB sought partial indemnity costs of the action amounting to $404,809. Mandhane J. awarded her $300,000 encompassing legal fees, HST, and disbursements. Citing r. 57.01(1) of the Rules, to assess costs the trial judge considered the proceeding's result and the written settlement offers. She agreed with JB that JB achieved greater success at trial than PA. Mandhane J. refused to exercise her discretion to grant no costs because the damages award fell within the Small Claims monetary jurisdiction. She considered the defence's decision not to make a monetary offer before trial to have been unreasonable, particularly since a defence expert admitted that the accident damaged JB's mental wellbeing. Mandhane J. found JB's bill of costs reasonable. Nevertheless, she reduced the costs amount by $100,000 based on proportionality and to account for duplication caused by JB's unnecessary retention of two senior lawyers. Other factors informing the costs award were the complex factual issues in dispute, the voluminous documentary record and the important interests at stake. Mandhane J. concluded that PA ought to bear the costs of her counsel's aggressive litigation strategy that was meant to force JB to trial lest she settle for nothing, a strategy premised on outdated stereotypes about the credibility of plaintiffs with mental disabilities. PA appealed

issues:

Did the trial judge err in finding that the respondent, JB, was more successful than the appellant, PA?
Was the costs award of $300,000 disproportionate to the net damages award of $16,160.50?

holding:

Appeal dismissed.

reasoning:

1. No. On appeal, PA asserted that Mandhane J. applied the wrong test to determine success at trial and should have focused on the result on the issues, not whether the judgment exceeded PA's settlement offers.

In response, JB reiterated that the trial judge specifically found she was more successful, emphasizing that PA asked the jury to award JB nothing and JB received an award exceeding lost income. Moreover, the trial judge was entitled to inform her costs award by considering PA's aggressive tactics and her failure to make a settlement offer despite foreseeable damages.

After a lengthy analysis, the Court held that the trial judge did not err in finding JB more successful at trial than PA. The Court emphasized that a deferential approach must be taken when reviewing a trial judge's discretionary costs award. Such an approach recognizes the lower court's expertise and the unique advantage it has from observing evidence firsthand. The Court commented that even where a trial judge makes an error in principle related to a costs award, it is not fatal, so long as an independent basis exists upon which to uphold the award. Per Pryzk and Bell, it is an error in principle to deny a successful defendant costs due to its refusal to make a pre-trial settlement offer, if the refusal proves reasonable. In Pryzk however, though the trial judge made the aforementioned error in denying the defendant costs despite a reasonable refusal, the appellate court upheld the costs denial on an independent basis: the novel issue of eldercare raised by the dispute.

Applied to this case, the Court did not accept PA's argument that Mandhane J. used the wrong test to assess success at trial. Contrary to PA's interpretation, the Court did not understand Mandhane J.'s statement that success was determined relative to the parties' positions at trial as meaning that she solely focussed on whether the award exceeded earlier (non-monetary) offers. The Court noted that Mandhane J. identified and analyzed the correct r. 57.01(1) factors for determining costs and expressly found that JB was more successful than PA at trial. Mandhane J. did not make the same error as the courts in Pryzk and Bell. Instead, she concluded, justified by the available information, that JB was going to be entitled to some damages and thus PA's refusal to offer any money was unreasonable. Ultimately, the Court affirmed that defendants always face the risk of being found liable to pay the plaintiff's costs if the plaintiff recovers even a modest amount. The Court further stated that had Mandhane J. made an error, independent bases would have bolstered the costs award anyways, including PA's use of old-fashioned stereotypes in its trial strategy.

2. No. PA further argued that the costs award was wholly disproportionate to the recovery. She maintained that the parties should bear their own costs. JB submitted that Mandhane J. recognized proportionality as a relevant but not determinative factor. JB further asserted that no error in principle was made, and the award was not plainly wrong, and thus the high standard of review for setting aside costs awards was not met.

Though the costs order substantially exceeded the recovery, the Court affirmed Mandhane J.'s conclusion that it was proportionate to the importance and complexity of the issues and the amount involved in the litigation. Cases cited by PA were distinguishable. The Court reiterated that deference is owed to costs awards absent an error in principle or a plainly wrong decision. Moreover, the Court cited case law and commentary stating that proportionality is an important consideration but does not necessarily trump all other factors in a costs assessment. Proportionality must be balanced alongside access to justice and indemnity. The Persampieri decision, which also had a defendant insured by Aviva, exemplified another personal injury case where costs were assessed to far exceed the plaintiff's net recovery. The judge declined to lower the costs award because proportionality was outweighed by other valid considerations.

The Court also pointed to significant increases in legal fees in recent years, which when juxtaposed against statutorily limited motor vehicle accident awards can make such awards seem modest. Mandhane J. expressly considered proportionality, reducing JB's requested legal fees based on proportionality and to account for higher fees generated by JB's choice to retain two senior lawyers. Though some cases require appellate intervention in costs awards to rectify disproportionate outcomes, the Court held this was not such a case. Sections 258.5 and 258.6 of the Insurance Act, which sets out costs consequences to encourage expeditious settlement of bodily injury claims by insurers, further bolstered the Court's conclusion that the principle of proportionality should not invariably triumph when a defending insurer opts to take the risk of not offering a monetary settlement before trial.

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

Court Of Appeal Summaries (August 25 – August 29)

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Table of Contents

R.L. v. M.F., 2025 ONCA

Kirby v. Woods, 2025 ONCA 601

Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

Barry v. Anantharajah, 2025 ONCA 603

CIVIL DECISIONS

R.L. v. M.F., 2025 ONCA 595

Kirby v. Woods, 2025 ONCA 601

Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604

Barry v. Anantharajah, 2025 ONCA 603

Litigation, Mediation & Arbitration

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Canada