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Family - Practice. Cohen v. Cohen
In Cohen v. Cohen (Ont CA, 2023) the Court of Appeal considered (and allowed an appeal from) a family law equalization order, here where there was an uncontested trial, and the respondent (for whom equalization was initially ordered) "made no financial disclosure at any stage of the proceedings".
Here the court comments on practice issues regarding such orders:[28] The appellant also raised concerns about the form of the order made by the trial judge. Specifically, she points to the fact that the order would foreseeably have resulted in the real estate solicitor being responsible for holding part of the net proceeds of the sale of the matrimonial home in trust for many years. In light of our conclusion that no equalization payment is owing and that the appellant is entitled to the entire proceeds of the sale of the matrimonial home, we do not reach this issue. We would however note that, absent a request from the parties, a lawyer should not ordinarily be ordered to administer funds over a period of many years. . Tran v. Taylor
In Tran v. Taylor (Ont CA, 2023) the Court of Appeal considered FLA s.2(2) ["All proceedings in one court"] in a messy case where two separate proceedings where commenced by the applicant, one for support before the OCJ and one for divorce before the Superior Court. The OCJ 'dismissed' the support application on the reasoning that the matters should have been combined before the Superior Court. Regardless, the appellant initially appealed to the Superior Court who sent it back down to the OCJ for reconsideration. The dissatisfied applicant/appellant further appealed that first appeal order to the CA - the present ruling. The CA held that the OCJ at the first instance should have transferred (effectively 'merged') it's proceeding to the Superior Court:[5] We understand the appellant’s frustration about the delay in dealing with her spousal support application. However, we are unable on this record to make an order for spousal support. Moreover, the trial judge was correct to state that the appellant’s financial claims should be heard in a single court in accordance with s. 2(2) of the Family Law Act, R.S.O. 1990, c. F3, which provides that:[N]o person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court’s opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time. [6] These provisions reflect both the inefficiency and injustice of determining interrelated financial claims under the Family Law Act separately at two different courts.
[7] That said, it is unfortunate that this matter was not transferred earlier and that the appellant had to incur the expense of the uncontested trial. As the appeal judge noted, it would have been preferable for the trial judge to have canvassed transferring the application, rather than simply dismissing it.
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[9] The order the appeal judge made returning the matter to the Ontario Court of Justice “to hear submissions on the issue of jurisdiction and make whatever orders may flow from therefrom” failed to give effect to the primary objective set out in Rule 2(2) to (4) of the Family Law Rules, O.Reg. 114/99, that cases should be dealt with justly, which includes ensuring that the procedure is fair to all parties and saving expense and time. Requiring the appellant, who has little income and few assets, to go back and forth between courts hardly promotes the primary objective. There is no lack of procedural fairness so long as the support claims are permitted to proceed in the Superior Court of Justice.
[10] The appellant is still proceeding with her equalization and divorce claims in the Superior Court of Justice. In our view, the disposition that best promotes the interests of justice is simply to transfer the appellant’s spousal support application to the Superior Court of Justice where it can be determined along with her claims for equalization and divorce. On the return of her application, she is entitled to seek the wasted costs of the past attendances before the Ontario Court of Justice and the Superior Court of Justice.
[11] Accordingly, the appeal is allowed. The order of the appeal judge is set aside. The appellant’s application for spousal support is transferred to the Superior Court of Justice, to be heard at the same time as her claim for equalization and divorce. To the extent that it is necessary to permit the appellant’s spousal support application to proceed in the Superior Court of Justice, we set aside the part of the Ontario Court of Justice order dismissing the application and instead impose a stay of the appellant’s spousal support application in the Ontario Court of Justice. . Unoh v. Agboola
In Unoh v. Agboola (Div Court, 2023) the Divisional Court considers it's jurisdiction to order an 'apology' - and it's propriety in any situation, particularly in family law proceedings where animosities can often run high:[91] The court’s authority to order an apology is an equitable remedy. Section 96 of the CJA provides:Rules of law and equity
96 (1) Courts shall administer concurrently all rules of equity and the common law.
Rules of equity to prevail
(2) Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails.
Jurisdiction for equitable relief
(3) Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. [92] While it is clear that I have jurisdiction to grant equitable relief, I was unable to find a case where a court has, in the context of a family law proceeding, ordered that one party provide a written apology to the other. That is likely because in high-conflict family matters such as this, forcing one party to apologize in the face of denial of wrongdoing simply produces an insincere expression of regret. A hollow apology serves no legitimate purpose. For this reason, I decline to grant the order requested. . Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law, here the practical sequential/procedural interaction:What is the procedure for a court considering a tort claim in a family law action?
[134] The trial judge began her analysis with the tort claims. She then addressed child support, spousal support, and equalization. She found the appellant owed (i) $20,788 in retroactive child support, and $802.20 per month going forward to the end of 2022; (ii) retroactive spousal support of $47,188 and periodic payments of $822 per month while child support remained payable, and $2,224 monthly until the earlier of the appellant’s retirement and 65th birthday. The equalization payment was agreed to on appeal in the amount of $5,296.00 based on the value of $16,950 for the husband’s business.
[135] These payments, added to the damage award, resulted in the respondent receiving all the proceeds of the matrimonial home. Although the parties agreed to the equalization on appeal, proper net family property statements were not addressed by the trial judge. In effect, the damage claim subsumed the trial and the statutory entitlements of the parties.
[136] The starting point for a determination of financial issues arising from the marriage is the application of the statutory provisions which, in this case are the Divorce Act and the Family Law Act, R.S.O. 1990, c. F.3. Only after those determinations are made should the court consider other claims.
[137] When claims other than those arising directly from the statute are raised in a family law proceeding, the statutory entitlements may inform those determinations. This issue arises in other situations, for example, when a party makes a claim for unjust enrichment. This court has held that the provisions of the Family Law Act entitlements should be established first: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 501. It may be that the operation of the equalization provisions would resolve the claim: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para 61.
[138] In Martin, Hoy A.C.J.O. (as she then was) explained at para. 66: “the aggrieved party's entitlement under the equalization provisions of the [Family Law Act] should first be calculated. Where appropriate, s. 5(6) of the [Family Law Act], which provides for an unequal division of net family properties where equalization would be unconscionable, should be invoked.”
[139] Likewise, in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, Gillese J.A. stressed that the “starting point” for inequities arising out of marriage breakdown is the application of the statutory framework. The trial judge had begun his determination with a consideration of whether the businesses in question amounted to a joint family venture. This court concluded that “the trial judge erred by beginning his analysis with the question of family venture. He should simply have had recourse to the [Family Law Act].”
[140] I recognize that a tort claim differs from a claim in equity. A claim in equity may go to asset ownership. But the principle of first determining statutory entitlements, including equalization and corollary relief under the Divorce Act, is sound. Child support is a right of the child and cannot be set aside for later. A compensatory support award under the Divorce Act may impact the quantum of damages. If the abuse allegation involves financial abuse, there may be an order for unequal division of net family property.
[141] In my view, the court should complete the statutory claims before assessing liability and damages for tort claims. . Kim v. McIntosh
In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted a family court practice of judge's making entries into 'Case History Reports' that precipitated bias allegations, here when cautionary notes were made with respect to a party. The court explains the issue at paras 38-60.
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