As we approach the end of the year, it is crucial to reflect on the legal landscape, especially in a field as dynamic as family law. Melanie A. Larock, a partner and family law litigator at Thomson Rogers, has carefully curated a list of the top five family law cases in Ontario for the year 2023. These cases, heard in both the Ontario Court of Appeal and the Supreme Court of Canada, have far-reaching implications for individuals navigating the complexities of family law. Let's delve into the intricacies of each case to better understand their significance.
- Presumption in favour of Health Canada Approved Vaccinations
Although many lower court decisions were released during the COVID-19 pandemic concerning whether children should be compelled to undergo vaccination against COVID-19, the first decision released by the Court of Appeal for Ontario that squarely addressed this issue was J.N. v. C.G., 2023 ONCA 77. This was an appeal from a final order awarding decision-making authority with respect to children’s vaccination against COVID-19.
The Court of Appeal was clear that judicial notice should be taken of the regulatory approval of vaccines, and regulatory approval is a strong indicator of safety and effectiveness. The Court held that if a vaccine has been approved by Health Canada, the parent objecting to the administration of the vaccine to their child bears the onus of proving why the child should not receive the vaccine. The mother relied on online materials which were not reliable or independent and could not satisfy that onus. As a result, the father was granted sole decision-making authority with respect to the children’s vaccination against COVID-19. Leave to appeal to the Supreme Court of Canada was dismissed.
The Court of Appeal explained that evidence of government recommendations with respect to vaccination are admissible for the truth of their contents pursuant to the public document exception to the hearsay rule. As stated in J.N. v. C.G., “it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” In the absence of admissible evidence that rebuts the presumption in favour of vaccination, government health recommendations should be followed.
This decision has larger application beyond the COVID-19 vaccine and will assist in resolving disputes concerning the vaccination of children and the administration of Health Canada-approved medication. Courts have applied the principles of J.N. v. C.G. on Motions for the vaccination of children against COVID-19 on an interim basis.
- Tort of Family Violence is unnecessary
The Court of Appeal for Ontario in Ahluwalia v. Ahluwalia, 2023 ONCA 476 rejected the creation of a new tort of family violence. The Court framed the question it had to decide as whether there were existing “adequate alternative remedies” sufficient to address the harm caused by intimate partner violence. The existing torts of battery, assault and intentional infliction of emotional distress were concluded to be “flexible enough to address the fact that abuse has many forms,” such as patterns of “recurring and ongoing abuse, intimidation, domination and financial abuse.”
The Court also rejected a proposed narrower tort of coercive control and concluded that the tort of intentional infliction of emotional distress provided an adequate remedy.
The Court then turned to the award of damages in the amount of $150,000, comprised of $100,000 on account of compensatory and aggravated damages and $50,000 for punitive damages. The damage award was reduced to $100,000 as the award of punitive damages was rejected. According to the Court, compensatory and aggravated damages were sufficient to accomplish the objectives of condemnation. The Court also acknowledged that the quantum of damages was higher than in other intimate partner violence cases, but it reflected an “emerging understanding of the evils of intimate partner violence and its harms.” Benotto, J.A, writing for the court, went so far to say that the quantum of damages historically ordered may need to evolve to reflect the current societal understanding of such harms.
On the issue of the timing of the determination of a tort claim, the Court made it clear that tort claims in the family law context ought to be considered after statutory claims, such as equalization and support, are first determined.
Recently, the Alberta Court rejected the tort of family violence in Alberta following Ahluwalia. However, the Ontario Court of Appeal may not have the last word. Leave to appeal to the Supreme Court of Canada is being sought. As acknowledged in Ahluwalia: “In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.”
- A trust claim cannot be advanced for purposes of equalization only
In Karatzouglou v. Commisso, 2023 ONCA 738, the Court of Appeal for Ontario was tasked with deciding whether a married spouse can advance a trust claim against a third party on behalf of their spouse to increase that spouse’s net family property. The purpose of advancing such a trust claim is to share in the value of the subject property as at separation with the other spouse through the equalization of net family property.
The wife had named her mother-in-law as a party to the divorce proceeding and claimed that she was holding two properties in trust for the husband. There was no evidence in this case of a trust of any description with respect to the properties. The Court concluded that a spouse does not have standing to make a trust claim on behalf of the other non-titled spouse for purposes of equalization. A claim for a constructive trust is a privately held claim such that “one cannot sue upon an interest that one does not have.”
The Court adopted the reasoning in Morris v. Nicolaidis, 2021 ONSC 2957 and in doing so, cited a future hypothetical situation where there is a legitimate trust claim unlike in this case. Recourse seems to be to invoke the unconscionability provisions of Section 5(6) of the Family Law Act to vary the equalization payment.
- Occupation rent is not an exceptional remedy
In family law cases, occupation rent is ordered sparingly and cautiously. The release of the Court of Appeal for Ontario’s decision in Chhom v. Green, 2023 ONCA 692 may signal a future trend in favour of courts ordering occupation rent as it is now clear that such an award is not “exceptional.”
In Chhom, the wife appealed the trial judge’s order requiring her to pay the husband the amount of $31,500 on account of occupation rent on the ground that there were no exceptional circumstances to warrant such an order. The Court of Appeal dismissed the appeal holding that while an order for occupation rent must be “reasonable”, it did not need to be “exceptional.”
The Court of Appeal echoed the relevant factors to be considered when occupation rent is in issue in a family law context from its earlier decision in Griffiths v. Zambosco, 2001 CanLII 24097, which are: the timing of the claim; the duration of the occupancy; the inability of the non-occupying spouse to realize on their equity; any reasonable set-off costs; and, any other competing claims in the litigation. The trial judge had considered such factors and the order for occupation rent was reasonable.
A claim for occupation rent should no longer be discounted. A shift towards increased awards of occupation rent, particularly given the state of surging rental prices and high interest rates, would spur parties to address the disposition of the jointly owned home more swiftly.
- “Kitchen table” or Informal Domestic Contracts
The Supreme Court of Canada released one family law decision in 2023 to date, namely, Anderson v. Anderson, 2023 SCC 13. In Anderson, the Supreme Court provided direction on how to approach informal separation agreements addressing the division of property that do not meet formal statutory requirements. Although the Court considered Section 40 of Saskatchewan’s The Family Property Act (“FPA”), the analysis should assist across the country where an agreement does not meet the formal statutory requirements under other provincial family property legislation.
The Supreme Court rejected transposing the framework from Miglin v. Miglin, 2003 SCC 24 (“Miglin”), which dealt with spousal support under the Divorce Act to a property division context under provincial law. The Court unanimously ruled that the Miglin analysis must be adjusted depending on the specific property statute at play.
Justice Karakatsanis set out the approach that the Court should take when dealing with an agreement that does not confirm to the statutory formalities . First, the Court must determine whether the agreement is valid according to ordinary contract law principles. Second, the Court will assess the substantive fairness of the agreement to determine how much weight it should be afforded. The weight will depend on what is fair and equitable according to the statutory scheme.
Although the agreement in question did not meet the statutory requirements set out in the FPA and there was a lack of financial disclosure and independent legal advice, it was nonetheless upheld by the Supreme Court as binding and enforceable. Given that disclosure and independent legal advice were not required by the legislation, their absence does not necessarily result in an unenforceable agreement. The Supreme Court of Canada emphasized that the absence of disclosure and legal advice is only relevant if it results in prejudice or unfairness in the bargaining process. As such, “kitchen table agreements” may be enforced by the Court when it is fair and equitable to do so.