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Good afternoon.
Following are this week's summaries of the Court of Appeal for Ontario for the week of July 16, 2021.
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Topics covered this week included several family law decisions relating to custody and access, relocation and spousal support and labour law (duty to bargain in good faith).
Wishing everyone an enjoyable weekend.
John
Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Society of United Professionals v. New Horizon System Solutions, 2021 ONCA 503
Keywords: Labour Law, Administrative Law, Judicial Review, Reasonableness, Collective Bargaining, Duty to Bargain in Good Faith, Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17 and 70, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers' Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.), Bernard v. Canada (Attorney General), 2014 SCC 13, C.U.P.E., Local 2424 v. Carleton University, 1998 CarswellOnt 2648 (Ont. L.R.B.) Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), Royal Conservatory of Music Faculty Assn. v. University of Toronto (Royal Conservatory of Music), 1985 CanLII 1085 (Ont. L.R.B.)
Moreton v. Inthavixay , 2021 ONCA 501
Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Trials, Bifurcation, Adjournments, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C. 12, Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14, Bourke v. Davis, 2021 ONCA 97, Gordon v. Goertz, [1996] S.C.R. 27, Porter v. Bryan, 2017 ONCA 677, Decaen v. Decaen, 2013 ONCA 218
Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Standard of Review, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. Palmer, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300
Boudreau v. Jakobsen , 2021 ONCA 511
Keywords: Family Law, Spouse, Definition, Spousal Support, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8) and (9), Divorce Act, R.S.C., 1985, c. 3, s. 15.2(6), Spousal Support Advisory Guidelines, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), M. v. H., [1999] 2 S.C.R. 3, Climans v. Latner¸ 2020 ONCA 554, Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), Ballanger v. Ballanger, 2020 ONCA 626, Rioux v. Rioux, 2009 ONCA 569, Fisher v. Fisher, 2008 ONCA 11, Chutter v. Chutter, 2008 BCCA 507, Fong v. Chan (1990), 181 D.L.R. (4th) 614
Short Civil Decisions
Ontario College of Teachers v. Bouragba , 2021 ONCA 508
Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599
Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 512
Keywords: Damages, Costs
CIVIL DECISIONS
Society of United Professionals v. New Horizon System Solutions , 2021 ONCA 503
[Rouleau, Hoy and van Rensburg JJ.A.]
Counsel:
J.M. Andrew and B. Dosanjh, for the Appellant
D.M. Jeffries and A. Jamieson, for the Respondent, New Horizon System Solutions
L. Lawrence and A. Hart, for the respondent, Ontario Labour Relations Board
Keywords: Labour Law, Administrative Law, Judicial Review, Reasonableness, Collective Bargaining, Duty to Bargain in Good Faith, Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17 and 70, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers' Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.), Bernard v. Canada (Attorney General), 2014 SCC 13, C.U.P.E., Local 2424 v. Carleton University, 1998 CarswellOnt 2648 (Ont. L.R.B.) Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), Royal Conservatory of Music Faculty Assn. v. University of Toronto (Royal Conservatory of Music), 1985 CanLII 1085 (Ont. L.R.B.)
facts:
Information technology ("IT") employees at Ontario Power Generation ("OPG") were transferred to the Respondent company. The Appellant is the bargaining agent for these employees. As per the most recent Master Services Agreement ("MSA"), the Respondent provided IT services to OPG. The Appellant is not a party to the MSA. The collective agreement between the Appellant and Respondent has a voluntary separation program ("VSP"), which provides employees who accept termination with options for dealing with their pension. After seven positions were terminated in 2018, the Appellant requested disclosure of the MSA to best represent the affected employees. This request was denied. The Respondent then advised the Appellant that the pension plan was being wound up, and that the benefits would be worth about 70% of their currently calculated value.
The Appellant brought an application to the Ontario Labour Relations Board (the "Board") alleging that the Respondent violated ss. 17 and 70 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A ("LRA") because it failed to negotiate in good faith and interfered with the Appellant's representation of employees in the bargaining process. The allegations were based on the Respondent's refusal to disclose the unredacted copy of the MSA.
In a series of three decisions, the Board held that the Respondent 1) did not violate s. 70 of the LRA, 2) did violate the duty in s. 17 of the LRA and was ordered to make partial disclosure of the MSA, and 3) was not required to disclose a further provision of the MSA as requested by the Appellant. The Divisional Court dismissed the application in judicial review, holding that the decisions of the Board were reasonable.
issues:
(1) Was the Board's interpretation of s. 70 of the LRA unreasonable?
(2) Was the Board's decision to order partial disclosure of the MSA unreasonable?
(3) Was the decision to deny further disclosure of the MSA unreasonable?
holding:
Appeal dismissed.
reasoning:
(1) No.
S. 70 of the LRA prohibits an employer from interfering with the representation of employees by a union. The Board held that the Appellant is not mentioned in the MSA, nor is the MSA mentioned in the collective agreement. Therefore, the Appellant is not sufficiently connected to the MSA, as required for a violation of s. 70. Furthermore, the Board was reasonable in concluding that denying the Appellant's request for the MSA lacked interference because it was not necessary to carry out its representational duties, which is consistent with the Board's decision in Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers' Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.).
The Board's finding that the MSA was a commercial services contract that was ancillary to the Appellant's representation of the employees was also reasonable. In addition to the fact that the Appellant was not a party to the MSA, the record showed that there had been previous VSP cycles, and the Appellant had never sought to obtain an unredacted copy of the MSA.
Furthermore, the Board did not fail to balance the conflicting interests of the Appellant and Respondent with respect to disclosure of the MSA. The Board distinguished the balancing approach applied in Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), which was about interference in the context of discharging employees, not disclosing information. In a case of non-disclosure of information, the balancing approach is only applied where interference by the employer has already been established: Millcroft, at para. 17. The Board found no interference so there was no need to apply the balancing approach, which was consistent with the case law and therefore reasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 131.
(2) No.
S. 17 of the LRA encourages bargaining in good faith and states that parties shall make every reasonable effort to make a collective agreement. One of the functions of the duty to bargain in good faith is to foster rational, informed discussion thereby minimizing the potential for 'unnecessary' industrial conflict: United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), at para. 15.
The content of what an employer is required to disclose is dependant on proposals made in the bargaining process. As there were no bargaining proposals made, the Board determined that the Appellant should only be granted unredacted provisions of the MSA that were necessary for it to able to reasonably assess the bona fides of the Respondent's bargaining positions. The Divisional Court held that the Board's interpretation of the duty to bargain in good faith was reasonable and consistent with the jurisprudence. The Court agreed with the Divisional Court.
(3) No.
The Appellant requested to have a further provision disclosed in an urgent request. The Divisional Court held that the Board's decision to deny this request was reasonable. The Appellant argued that the Board accepted the evidence provided by counsel for the Respondent as to why this provision was outside of the scope of information that required disclosure and the source of the information was shielded from cross-examination. In assessing the reasonableness of the decision, the court must be alert to the history and context of the proceedings: Vavilov, at para. 94. Considering all evidence before the Board from past proceedings, the Appellant did not meet its burden of showing that the decision was unreasonable.
Moreton v. Inthavixay , 2021 ONCA 501
[Brown, Roberts and Zarnett JJ.A.]
Counsel:
M.H. Tweyman and A. Waye, for the appellant
C.M., acting in person
C.E. Tempesta and J. Hyndman, for the Office of the Children's Lawyer
Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Trials, Bifurcation, Adjournments, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C. 12, Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14, Bourke v. Davis, 2021 ONCA 97, Gordon v. Goertz, [1996] S.C.R. 27, Porter v. Bryan, 2017 ONCA 677, Decaen v. Decaen, 2013 ONCA 218
facts:
The appellant mother appeals the final order that the parties' children primarily reside with their father, the respondent, in Lindsay, Ontario, with substantial parenting time to the appellant (the "Relocation Order").
The respondent father moved to Lindsay, Ontario in late September 2020 for financial reasons, the children moved with him and have been enrolled in a school that is a five-minute walk away from the home. The Relocation Order varied the previous order that the children's primary residence was to be with the respondent in Toronto, with access granted to the appellant. The September 1, 2020 order bifurcated the trial with the relocation and residential schedule of the children being determined first, in September, and the custody and financial matters being determined in December 2020. During the first trial, the judge dismissed the appellant's requests to proceed with a long motion on the issues of relocation and the children's residential schedule and to hear these issues in December 2020. The appellant's motion for an adjournment of the trial was dismissed on September 16, 2020, and the appellant's leave to appeal the bifurcation of the trial was dismissed on September 22, 2020. The relocation order, granted on October 22, 2020, was the subject of this appeal.
issues:
(1) Did the trial judge err by determining the question of the children's relocation to Lindsay before deciding the issue of custody?
(2) Did the trial judge err in his application of the law on relocation to the facts of this case?
(3) Did the trial proceed in an unfair manner to the appellant, whose adjournment and accommodation requests because of her disability went unheeded, such that a new hearing was required?
holding:
Appeal dismissed.
reasoning:
(1) No.
The rule in Bjornson does not require that the issue of custody be decided before the issue of relocation, but rather that the sequence of events reflects the best interests of the children. The appellant's submission that the trial judge erred by determining the question of relocation before custody was not accepted as it was not contrary to Bjornson. Here, the bifurcation order correctly determined the sequence of events in line with the best interests of the children.
(2) No.
The trial judge did not err in his determination that it was in the best interests of the children for their primary residence to be in Lindsay with their father, the respondent. Further, the trial judge's determination on this issue was entitled to significant deference. Among other factors, the trial judge considered that the children themselves wished to relocate to Lindsay with their father while continuing to maintain a relationship and parenting time with their mother, the appellant. There was no basis for intervention with this determination on appeal.
(3) No.
There was ample evidence supporting the trial judge's dismissal of the appellant's request for an adjournment of the bifurcated trial. The record revealed that the appellant was given accommodations and participated meaningfully in the trial of the issues of the children's primary residence and parenting time. Accordingly, there was no indication of prejudice to the appellant warranting appellate intervention.
Bors v. Bors, 2021 ONCA 513
[Feldman, van Rensburg and Sossin JJ.A.]
Counsel:
T.A. Frederick and G.E. Ichim, for the Appellant
B. Ludmer, for the Respondent
Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Standard of Review, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. Palmer, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300
facts:
The parties are former spouses and have two children together, M and C. The parties separated in 2012 and a custody and access investigation was undertaken by the Office of the Children's Lawyer ("OCL"). The OCL recommended that the appellant have custody and the respondent have access to the children every other weekend and one night a week. Shortly before trial, the parties reached an agreement, which was incorporated into the consent final order in 2015. The order provided that the appellant have custody and the respondent have access to the children on alternate weekends.
The respondent later brought multiple motions to address problems with his access, resulting in a final order in 2017; increasing his access time and for transitions to occur at the children's school. The OCL issued an updated report in 2018, reporting concerns about the respondent's lack of access to his children and recommended that the appellant engage in counselling support to foster a positive relationship between the children and the respondent and if this could not be achieved, consideration should be given to a change in custody. In June 2018, after the children were refusing to transition to the respondent's care, he brought an interim motion for access. The motion judge made an order increasing the respondent's parenting time and ordered a motion to proceed to trial.
The trial judge concluded that the children were alienated from their father and the mother was responsible. The trial judge held that the children's best interests required the respondent to have custody of the children and that the appellant would have limited contact with M and no contact with C for an initial period of time. The order required the parties and children to attend therapy and provide reports to the court.
The appellant argued that the trial judge erred in finding that she had alienated the children from the respondent and that the order was not in the children's best interests. The appellant further argued that some other order short of changing custody and restricting her access would have sufficed. Finally, the appellant submitted that she was deprived of a fair trial because she was ineffectively represented by her counsel and the trial judge demonstrated bias.
The respondent argued that there lacked any reversible errors and sought to rely on fresh evidence, consisting of his own affidavit which included a report from the family's therapist.
issues:
(1) Did the trial judge make a palpable and overriding error when she (i) concluded that the children's unwillingness to have access with the respondent resulted from parental alienation; and (ii) when she ignored evidence of domestic abuse?
(2) Did the trial judge err in making the order, changing custody, and restricting the children's access with the appellant, (i) when the respondent had only asked for joint custody; and (ii) when a less restrictive order could have been made to enforce the respondent's right of access?
(3) Was the appellant deprived of a fair trial by the ineffective assistance of her trial counsel and the trial judge's bias?
(4) Can the respondent file fresh evidence on appeal?
holding:
Appeal dismissed.
reasoning:
(1) No.
The Court applied the standard of review for an appeal of an order reversing custody after finding a parental alienation from A.M. v. C.H., 2019 ONCA 764: each case must be determined based on its facts and if there is no error in law, no palpable and overriding error of fact, and no misapprehension of evidence, appeal courts should not interfere.
The Court held that the trial judge provided sound reasoning for her conclusion firmly based in the evidence before the court. The trial judge heard evidence from both parties and several professionals, and the Court upheld the trial judge's finding that the mother's actions were consistent with alienation. The Court held that once a 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. The Court restated the long-standing rule that a parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568. The Court held that the appellant had been repeatedly advised to encourage the children's relationship with the respondent and that alienation could be highly damaging. The appellant did not do this, resulting in the children and respondent's relationship to deteriorate. Further, the Court rejected the appellant's argument that her failure to support and assist in the respondent's access was a result of her being a victim of domestic abuse.
(2) No.
At the outset of the trial, the respondent preferred an order for joint custody but by the end of trial it was clear that joint custody would not address the ongoing parental alienation. The respondent's request for joint custody as one alternative did not prevent the trial judge from making the order as it was clear even before the trial started that an order reversing custody might be required.
The Court noted that the repeated attempts to solve issues between the parties regarding access had not succeeded. Although the appellant had asked for an order for reunification therapy at trial, she had not complied with earlier directions for therapy nor followed the OCL's recommendations for individual therapy. Given the history and the facts at bar, the trial judge was reasonable in concluding that the family reconciliation therapy was best supported by a reversal of custody and restriction of the appellant's access to the children for a period of time. The Court held that the reversal of custody was needed for the appellant mother to comply with the order and improve the respondent's relationship with his children.
(3) No.
The Court held that the case was presented effectively by the appellant's trial counsel and the trial judge did not demonstrate bias. The Court held that in order for the appellant to establish ineffective assistance of counsel as a ground of appeal, she must satisfy, on a balance of probabilities, that her trial counsel's conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice which occurs when the ineffective representation undermines the appearance of a fair trial or the reliabilities of the result: R. v. Archer (2005), 203 O.A.C. 56 (C.A.). The Court held that the appellant had not provided any evidence in this regard and the evidence before the trial judge did not suggest her counsel were ineffective. The Court held that the trial counsel advocated for the appellant in a way that was not ineffective or incompetent.
The Court then turned to whether the trial judge demonstrated bias and held that the appellant did not meet the threshold for showing such bias had occurred. The standard for showing bias is objective and the test is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial judge would not decide the matter fairly: McGregor v. Pitawanakwat, 2017 ONCA 77, citing Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. After a review of the evidence that the appellant submitted regarding bias, the Court held that nothing the trial judge said would suggest to a reasonable person that she was biased, or that she had prejudged the issue of parental alienation. The trial judge's comments were fair and appropriate on the evidence before the court.
(4) No, except for the therapist's report.
The Court held that the respondent could not file his lengthy affidavit but could file the family therapist's report. The Court reiterated the test for admitting fresh evidence on appeal outlined in R. v. Palmer, [1980] 1 S.C.R. 759, and held that the respondent's evidence did not meet this test even when it was flexibly applied. The Court held that the proposed fresh evidence was essentially a new record with a contextualized narrative that expanded on trial issues.
The respondent could file the therapist's report, as per the Court's decision in Fiorito v. Wiggins, 2015 ONCA 729. In this case, the therapist's report provided some comfort that the measures that were ordered were underway and have gone a considerable distance to restoring the children's relationship with the respondent. The report also provided evidence that there were problems with the appellant's engagement in reconciliation therapy, partially because of her pursuit of this appeal. The Court expected that now that the appeal had been determined, the appellant will comply with the terms of the order.
Boudreau v. Jakobsen , 2021 ONCA 511
[Brown, Roberts and Zarnett JJ.A.]
Counsel:
M. Stangarone and S. Kirby, for the Appellant
J. Beaton and J. Grys, for the Respondent
Keywords: Family Law, Spouse, Definition, Spousal Support, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8) and (9), Divorce Act, R.S.C., 1985, c. 3, s. 15.2(6), Spousal Support Advisory Guidelines, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), M. v. H., [1999] 2 S.C.R. 3, Climans v. Latner¸ 2020 ONCA 554, Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), Ballanger v. Ballanger, 2020 ONCA 626, Rioux v. Rioux, 2009 ONCA 569, Fisher v. Fisher, 2008 ONCA 11, Chutter v. Chutter, 2008 BCCA 507, Fong v. Chan (1990), 181 D.L.R. (4th) 614
facts:
The appellant appealed from the trial judge's order requiring her to pay spousal support to the respondent. The trial judge found that the respondent and the appellant were common law spouses. The parties never married and have no children. They lived together since 1997. The appellant financially supported the respondent. The appellant purchased the house in which they both resided since 2008. The respondent had access to the appellant's bank account, credit cards, as well as a joint bank account. The respondent suffers from mental health issues and has been mostly unemployed, earning no more than $10,000 in any of the few years he worked. The appellant and the respondent presented to the public as a couple. The relationship ended on April 7, 2018, when the respondent was charged with assaulting the appellant. The appellant was 49 and the respondent was 52 years old at the time of separation. The parties were self represented at trial.
The trial judge found that the respondent was intentionally underemployed and financially advantaged by living with the appellant. The trial judge imputed to the respondent a yearly income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. The trial judge ordered the appellant to pay the respondent retroactive and ongoing spousal support in an amount below the lowest end of the Spousal Support Advisory Guidelines ("SSAG") from May 1, 2018, subject to review on December 31, 2025 at the latest, unless a material change in circumstances justified an earlier review.
issues:
(1) Did the trial judge err in finding that parties were spouses?
(2) Did the trial judge err in awarding retroactive and ongoing spousal support to the respondent?
(3) Did the trial judge err in failing to allow parties to make submissions as to costs and in failing to make any provision for costs in her decision?
holding:
Appeal dismissed.
reasoning:
(1) No
The Court saw no error in the trial judge's analysis on this issue that warranted appellate intervention. There was significant evidentiary support for the trial judge's conclusion that the parties lived together in a conjugal relationship and, therefore, were common law spouses.
The Court did not accept the appellant's argument that the trial judge based her findings on a narrow review of select documentary evidence. The Court stated that the trial judge demonstrated a careful review of all relevant evidence in her reasons. The trial judge reviewed the applicable definition of "spouse" under s. 29 of the Family Law Act and correctly instructed herself that the question to be answered was whether the parties were in a conjugal relationship under this definition. In determining whether the parties were in a conjugal relationship the trial judge carefully reviewed the relevant evidence in accordance with the well-established factors set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).
The Court found that it was reasonable and necessary for the trial judge to turn to documentary evidence to assist her in determining the issue, as the parties and their witnesses had serious credibility and reliability issues. Documentary evidence such as the appellant's will, powers of attorney, life insurance policy, pension plan, group retirement savings plan and extended medical and health insurance, consistently named the respondent as her common law spouse and beneficiary. On cross-examination, the appellant admitted that she indicated that the respondent was her common law spouse in her will and powers of attorney because she felt that he was.
(2) No
The Court found no basis for interference with the trial judge's award. The Court noted that significant deference is accorded to decisions of trial judges relating to support orders: Ballanger v. Ballanger, 2020 ONCA 626. The trial judge's award was not so high that it warranted intervention. Rather it was at the lowest end of the range of the SSAG. Given the finding that the parties had cohabited for 21 years and the respondent was 52 at the time of separation, the trial judge could have awarded time-unlimited support in accordance with the Rule of 65 under the SSAGs. However, the trial judge was alive to the respondent's deliberate failure to become economically self-sufficient and implicitly imposed a time-limited award by ordering a mandatory review of her support order no later than 2025.
The Court found that the trial judge made an error in determining the respondent's entitlement to spousal support. However, the Court stated that the error was not so material that it wholly undermined the trial judge's decision. The trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. However, the Court stated that there was significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self-sufficiency within a reasonable period of time figures prominently in both statutes. The Court noted that economic self-sufficiency does not mean mere subsistence but is a relative concept tied to the achievement of a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship and the time needed to reach the goal of self-sufficiency: Rioux v. Rioux, 2009 ONCA 569, at paras. 42- 44; Fisher v. Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59; Chutter v. Chutter, 2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61. There was ample evidence to support the respondent's economic dependence on the appellant during their relationship and his need for financial support following separation.
(3) No
The Court declined to make any order respecting the trial costs and concluded that the trial judge did not err in failing to allow the parties to make submissions as to costs and in failing to make any provision for costs in her decision. As the parties were unrepresented at trial, to obtain an award of costs, it was incumbent on the appellant to demonstrate that she forewent income or incurred disbursements in relation to the trial: Fong v. Chan (1990), 181 D.L.R. (4th) 614, at para. 26. There was no evidence in the record to support the appellant's claim for any trial costs.
SHORT CIVIL DECISIONS
Ontario College of Teachers v. Bouragba , 2021 ONCA 508
[Brown, Roberts and Zarnett JJ.A]
Counsel:
A. B., acting in person
C. Malischewski, for the responding party
Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599
Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 512
[Roberts, Zarnett, and Sossin JJ.A]
Counsel:
K. G. Ferreira and A. A. Moten, for the Appellant
R. C. Dunford and S. Wouters, for the Respondent
Keywords: Damages, Costs
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