COURT OF APPEAL FOR ONTARIO

CITATION: Colucci v. Colucci, 2017 ONCA 892

DATE: 20171122

DOCKET: C63664

Sharpe, Blair and Epstein JJ.A.

BETWEEN

Lina Colucci

Applicant (Respondent)

and

Felice Colucci

Respondent (Appellant)

Richard Gordner, for the appellant

Surinder Multani, for the respondent

Heard: October 5, 2017

On appeal from the order of Justice K.A. Gorman of the
    Superior Court of Justice, dated April 3, 2017.

Family Law – Divorce – Child Support – Arrears – Variation – Whether there is jurisdiction under s.17 of the Divorce Act to vary or discharge child support arrears once the children are no longer "children of the marriage" as defined in s. 2(1).

Sharpe J.A.:

[1]

The issue on this appeal is whether the Superior Court has jurisdiction
    under the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(1) to
    vary or discharge child support arrears where the application is brought after
    children are no longer children of the marriage.

[2]

That issue turns on how we are to interpret
D.B.S. v. S.R.G.
;
L.J.W. v. T.A.R
.;
Henry v. Henry
;
Hiemstra v. Hiemstra
, 2006 SCC
    37, [2006] 2 S.C.R. 231.
D.B.S
. holds that a court does not have
    jurisdiction to entertain an original application for child support under s.
    15.1(1) of the
Divorce Act
if the children are no longer children of
    the marriage. Does that mean that a court has no jurisdiction to vary an
    existing order for child support under s. 17(1) where the application to vary
    is made after children are no longer children of the marriage?

FACTS

[3]

The appellant father and the respondent mother were married in 1983 and
    divorced in 1996. They have two children born in 1988 and 1989. The appellant
    father was ordered to pay child support to the respondent mother at the time of
    the divorce in the amount of $115.00 per week for each child. He made more or
    less regular payments until April, 1998. Thereafter, payments were irregular
    and they eventually ceased in June 1999. He accrued more than $175,000 in
    arrears by the time both children were over eighteen years old and were no
    longer children of the marriage.

[4]

Since the divorce, the father has lived and worked as an unskilled
    labourer in Canada, the U.S. and Italy. His income tax returns and other
    financial disclosure report a declining income since 1997.

[5]

The father brought a motion to change the order retroactively and to
    have his arrears rescinded on the ground that there had been a change in
    circumstances. The mother brought a cross-motion to dismiss the application for
    want of jurisdiction. The father brought a motion for summary judgment, asking
    the court to determine that narrow issue. Specifically, he asked:

Does the court have jurisdiction to retroactively vary child
    support by discharging child support arrears which have accumulated pursuant to
    a court order, notwithstanding that the children are no longer entitled to
    support, i.e. they are no longer children of the marriage as defined by the
Divorce
    Act
, 1985 as of the date of the motion to change?

DECISION OF THE MOTION JUDGE

[6]

The motion judge dismissed the fathers motion and granted summary
    judgment dismissing the application to vary on the ground that D.B.S. deprives
    the court of jurisdiction to rescind or vary support arrears once the children
    are no longer children of the marriage.

ISSUE

[7]

The only issue on this appeal is whether the motion judge erred by
    dismissing the fathers application solely on the ground that the court did not
    have jurisdiction to entertain it.

ANALYSIS

[8]

The issue of jurisdiction turns on the effect of the Supreme Courts
    decision in
D.B.S.
That decision dealt with four applications to vary
    child support orders, two under Alberta legislation and two under the
Divorce
    Act
. The Supreme Court explained in some detail the principles governing
    child support and the variation of child support orders.

[9]

One of the points considered was whether an application for child
    support could be made under the
Divorce Act
after the child had ceased
    to be a child of the marriage. Writing for the majority of the court,
    Bastarache J. referred to the language of s. 15.1(1), the provision that
    authorizes a judge to make a child support order in a divorce application:

15.1 (1) A court of competent jurisdiction may, on application
    by either or both spouses, make an order requiring a spouse to pay for the
    support of any or all children of the marriage.

[10]

Relying on the specific language of the section, Bastarache J. held that
    s. 15.1(1) conferred jurisdiction to make a child support order only where
    there were children who were still children of the marriage. Given its
    importance to this appeal, I will quote the relevant part of the judgment, at paras.
    88 and 89, in full:

Under s. 15.1(1), an order may be made that requires a parent
    to pay for the support of any or all children of the marriage. The term
    child of the marriage is defined in s. 2(1) as

a child of two spouses or former
    spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn
    from their charge, or

(b) is the age of majority or over and under their charge
    but unable, by reason of illness, disability or other cause, to withdraw from
    their charge or to obtain the necessaries of life;

The question then arises when the material time is for
    retroactive child support awards. If the material time is the time of the
    application, a retroactive child support award will only be available so long
    as the child in question is a child of the marriage when the application is
    made. On the other hand, if the material time is the time to which the support
    order would correspond, a court would be able to make a retroactive award so
    long as the child in question was a child of the marriage when increased
    support should have been due.

In their analysis of the
Guidelines
, J. D. Payne and
    M. A. Payne conclude that the material time is the time of the application:
Child
    Support Guidelines in Canada
(2004), at p. 44. I would agree. While the
    determination of whether persons stand in the place of . . . parent[s] is to
    be examined with regard to a past time, i.e., the time when the family
    functioned as a unit, this is because a textual and purposive analysis of the
Divorce
    Act
leads to this conclusion; but the same cannot be said about the
    material time for child support applications:  see
Chartier v. Chartier
,
    [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over the age
    of majority and is not dependent, is not the type of person for whom Parliament
    envisioned child support orders being made. This is true, whether or not this
    adult should have received greater amounts of child support earlier in his/her
    life. Child support is for children of the marriage, not adults who used to
    have that status.

[11]

D.B.S.
did not directly consider the point at issue on this
    appeal, namely, whether the court has jurisdiction to entertain an application
    to vary a child support order after the children are no longer children of the
    marriage. That issue falls to be determined under s. 17(1) of the
Divorce
    Act
:

17 (1) A court of competent jurisdiction may make an order
    varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any
    provision thereof on application by either or both former spouses;

(4) Before the court makes a variation order in respect of a
    child support order, the court shall satisfy itself that a change of
    circumstances as provided for in the applicable guidelines has occurred since
    the making of the child support order or the last variation order made in
    respect of that order.

[12]

One of the four cases decided together with
D.B.S
.,
Henry
    v. Henry
, involved an application for retroactive variation of a child
    support order. At the time the notice of motion to vary was filed, the eldest
    child was no longer a child of the marriage. The Supreme Court held, at para. 150,
    that as the Notice to Disclose/Notice of Motion had been served while that
    child still was a child of the marriage, there was jurisdiction to entertain
    the application. That might suggest that there would have been no jurisdiction
    had the proceedings not been initiated while the child was still a child of the
    marriage, but the court did not directly consider or decide that point. In some
    cases, including the case at bar, trial level judges have held that
D.B.S.
governs and declined to vary child support orders after the children are no
    longer children of the marriage: see
Giroux v. Mueller
, 2013 ONSC
    246, [2013] O.J. No. 90;
Durso v. Mascherin
, 2013 ONSC 6522, [2013]
    O.J. No. 4803;
Noseworthy v. Noseworthy
(2011)
, 313 Nfld. & P.E.I.R. 1 (N.L.S.C.);
Boomhour
    v. Huskinson
(2008), 54 R.F.L. (6th) 297 (Ont. Sup. Ct.);
Krivanek v.
    Krivanek
(2008), 56 R.F.L. (6th) 390 (Ont.
    Sup. Ct.);
Haavisto v. Haavisto
, 2008 SKQB 446, 325 Sask. R. 82;
Millar v. Millar
,
    2007 SKQB 25, 292 Sask. R. 316.

[13]

There is, however, a strong line of conflicting authority supporting the
    view that given the different wording and purpose of s. 17(1), the test for
    jurisdiction to vary differs from the test for jurisdiction to make an original
    order under s. 15.1(1).

[14]

I am more persuaded by this line of authority. The leading and most
    carefully reasoned decision is
Buckingham v. Buckingham
,
2013 ABQB 155, 554 A.R. 256, where Strekaf
    J. concluded that both the wording of the statute and the principles of child
    support favoured distinguishing
D.B.S.
and interpreting s. 17(1) to
    allow a court to vary a child support order even though the children are no
    longer children of the marriage. The reasoning in
Buckingham
has been
    followed in a number of Ontario trial level decisions under the
Divorce Act
:
Timmers v. Timmers
, 2016 ONSC 306;
Charron v. Dumais
,
2016 ONSC 7491, [2016] O.J. No. 6235;
Lemay
    c. Longpré
,
2014 ONSC 5107,
    68 R.F.L. (7th) 365. Courts have also retained jurisdiction on the basis that
    the payor parents deliberate absence or deception prevented the recipient from
    applying for a variation while the child was still a child of the marriage:
George
    v. Gayed
, 2014 ONSC 5360, [2014] O.J. No. 4383;
Simone v. Herres
,
    2011 ONSC 1788, [2011] O.J. No. 1626.

[15]

I note as well that Ontario cases decided under the
Family Law Act,
R.S.O. 1990, c. F.3  hold that the court has jurisdiction to vary child support
    orders after retroactively after the children cease to be dependants,
    frequently citing
Buckingham
in support: see
Surighina v. Surighin
, 2017 ONCJ 384,
[2017] O.J. No. 3022;
Smith
    v. McQuinn
,
2016 ONSC
    7997, [2016] O.J. No. 6600;
Meyer v. Content
, 2014 ONSC 6001, [2014]
    O.J. No. 4992;
Catena v. Catena,
2015 ONSC 3186, 61 R.F.L. (7th) 463. While
    not determinative of the point at issue on this appeal, there would be an
    additional unfairness if parents in precisely the same situation were permitted
    to vary
Family Law Act
orders, but not orders under the
Divorce
    Act
.

[16]

To date, where retroactive variation is sought when the children are no
    longer entitled to support, the courts have seen fit to entertain the request
    in the following situations, summarized in
Smith v. McQuinn
, at para.
    59:

In summary, the case law has created exceptions to the DBS analysis
    in the following circumstances:

a) In variation proceedings where
    there is an existing order and an established support obligation under the
    Divorce Act, 1985, c. 3 (2nd Supp.) ("Divorce Act");

b) In motion to change proceedings
    where there is an existing order and an established support obligation under
    the FLA; and

c) When there has been blameworthy
    conduct on behalf of a support payor that has contributed to the support
    recipient's failure to bring the retroactive support claim within the requisite
    time.

[17]

Other cases have avoided applying
D.B.S.
by framing the motion
    as a matter of enforcement rather than variation. For example, in
Lalande
    v. Pitre
, 2017 ONSC 208, [2017] O.J. No. 101, an existing child support
    order required annual disclosure and contemplated adjustments based on income
    fluctuations. Relying on the decision in
Meyer,
at paras. 65-67 and 83,
    the court found that because the right to variation was clearly established in
    the order, the mother was entitled to enforce it, by seeking a retroactive variation
    for the child who was no longer a child of the marriage.

[18]

Ontario courts have also avoided
D.B.S.
by framing the motion
    as a variation even if there is no existing court order. In
P.M.B. v.
    A.R.C.A
., 2015 ONCJ 720, 71 R.F.L. (7th) 474, at paras. 92-94, the court distinguished
    from
D.B.S.
on the basis that the mother, who had brought an
    originating application for child support, was in reality seeking to adjust the
    terms of a well-established oral child support agreement retroactively.

[19]

As Strekaf J. observed in
Buckingham
, the interpretation of s.
    15.1(1) in
D.B.S.
turned on the precise wording of that provision,
    which confers jurisdiction to make a child support order for any who were, at
    the material time, children of the marriage. The jurisdiction to vary a
    child support order under s. 17(1) is at large and is not limited by those
    words. I agree that we should look first to the words of the statute and that
    given this crucial difference between the words of s. 15.1(1) and 17(1), we are
    not bound to import the interpretation accorded to s. 15.1(1) by the Supreme
    Court in
D.B.S.
when interpreting s. 17(1). Section 17(1) does not, by
    its language, limit the jurisdiction of the court to vary a child support order
    to the time period when the children are still children of the marriage and
    the decision in D.B.S. does not compel us to interpret the jurisdiction
    conferred by s. 17(1) as being precisely the same as that conferred by s.
    15.1(1).

[20]

Section 17(1) puts parties who are subject to a s. 15.1(1) order on
    notice that the order may be changed. That puts them in a different position
    than parties for whom no s. 15.1(1) order has been made.

[21]

I also agree with Strekaf J. that allowing a court to vary an existing
    order after the children cease to be children of the marriage is consistent
    with the principles of child support. The principles at play here are first,
    that the amount of child support depends upon the income of the parents;
    second, that as the parents income changes, so too does the obligation to pay
    support. The third relevant principle must be balanced with the second, namely,
    that child support orders should, as far as possible, foster certainty,
    predictability and finality.

[22]

As
D.B.S.
explains, it is a basic principle of child support
    and the
Federal Child Support Guidelines
that the amount of support is
    essentially determined by the income of the payor parent. If an order imposes a
    child support obligation that does not correspond to the payor parents income,
    the order is not consistent with that principle. It is for that reason that
D.B.S.
permits retroactive orders in appropriate circumstances. Section 17(1) allows a
    court to vary an order where there has been a material change in circumstances
    to ensure that the child receives an amount of support commensurate with the
    income of the payor parent.

[23]

Certainty, consistency and finality are important considerations in
    relation to child support orders but they must be balanced with the concerns of
    flexibility and fairness.

[24]

As the Supreme Court explained in
D.B.S.
, at para. 64, parents
    should not have the impression that child support orders are set in stone[T]here
    is always the possibility that orders may be varied when these underlying
    circumstances change: see s. 17 of the
Divorce Act
. The court added:
    The certainty offered by a court order does not absolve parents of their
    responsibility to continually ensure that their children receive the appropriate
    amount of support. A payor parent is not entitled to assume that his or her
    obligation is fixed for all time. If the payors income goes up, the support obligation
    may be increased. Similarly, the recipient parent cannot safely assume that he
    or she will always continue to receive the same amount to help support the
    children. If the payor parents income goes down, the amount of support may be
    decreased. As
D.B.S.
explains at para. 74: As the circumstances
    underlying the original award change, the value of that award in defining
    parents obligations necessarily diminishes.

[25]

How should these principles apply to the variation of child support
    orders after the children are no longer children of the marriage?

[26]

The first two principles favour giving a court the jurisdiction to vary
    the order, particularly in the case of increased support. I can see no reason
    why the court should be deprived of jurisdiction to consider the request of a
    recipient parent who struggled to support the children and to shift part of
    that burden to the payor parent if there was a change in circumstance that
    would have justified a variation while the children were still children of the
    marriage. The court faced with a variation application would, of course, have
    to be mindful of the principle that child support is the right of the child,
    not the parent and that once the children are no longer children of the
    marriage, they will not directly benefit from increased support. However, a
    regime that gave payor parents immunity after the children ceased to be
    children of the marriage would create a perverse incentive. If the payor parent
    is to be absolved from responsibility once the children cease to be children
    of the marriage, the payor whose income increases might be encouraged not to
    respond to his or her increased obligations in the hope that the reciprocal
    spouse will delay making an application for a variation increasing support
    until the children lose their status to avoid opening the door to an increased
    obligation: see
Simone v. Herres
, at para. 27.

[27]

While the argument for allowing post-child of the marriage
    applications to decrease support is perhaps less compelling, if there is to be
    jurisdiction to entertain applications to increase, I agree with
Buckingham
that the law should adopt an even-handed approach and, from a jurisdictional
    perspective, treat payor and recipient parents the same way. If a court has
    jurisdiction to consider a recipient parents request for a retroactive
    increase in child support where the payors income increased, there should also
    be jurisdiction to consider a payor parents request for a reduction where his
    or her income declined. Moreover, as I will point out, while the question of
    jurisdiction is one thing, the question of whether such applications should be
    allowed is quite another.

[28]

This brings me to the considerations of certainty, predictability and
    finality. I recognize that these are important values in the family law regime.
    The law should strive to be as certain and predictable as possible. The law
    should also discourage disturbing settled arrangements so that parties are
    encouraged to resolve their disputes and get on with their lives following
    family break-down, ideally without ever resorting to litigation for the sake of
    the children: see
Louie v. Lastman
(2001), 54 O.R. (3d) 286 at paras.
    33-34 (S.C.), affd (2002), 61 O.R. (3d) 449 (C.A.), leave to appeal refused,
    [2002] S.C.C.A. No. 465.

[29]

But as I have already mentioned, the interests of fairness and the need
    to ensure that children get the support they deserve precludes a rigid approach
    that forbids changing support orders when there has been a change in
    circumstances. The very existence of s. 17(1) demonstrates that finality has
    its limits and that neither children nor parents can safely assume that support
    orders will never change. The interest of certainty and finality does not, in
    my view, justify erecting a rigid jurisdictional bar on variation applications
    simply because the children are no longer children of the marriage.

[30]

For these reasons, I conclude that neither the language of s. 17(1) nor
    the principles of child support require us to deny a court jurisdiction to vary
    an existing child support order or well established written or oral argument
    after the children cease to be children of the marriage.

[31]

As I have noted, the issue before us on this appeal is a narrow one. The
    parties brought cross motions for summary judgment on the single issue of
    whether the court had jurisdiction to consider the fathers application to vary
    the child support order. The motion judge was not asked to decide the merits of
    the fathers application. In these circumstances, it would not be appropriate
    for us to go beyond the narrow issue of jurisdiction on the facts of this case.
    However, it is appropriate to point out that having the jurisdiction to vary an
    order is one thing and deciding whether to vary it is quite another.
D.B.S.
offers some guidance on when it will be appropriate to vary a child support
    order retroactively. The factors the court will consider include whether there
    has been unreasonable delay in seeking the variation, any misconduct of the
    payor parent, the circumstances of the child, and hardship to the payor. The
    issue of arrears calls for special consideration: see
D.B.S
. at para.
    98, stating that the factors are not meant to apply when arrears have
    accumulated. [T]he payor parent cannot argue that the amounts claimed disrupt
    his/her interest in certainty and predictability; to the contrary, in the case
    of arrears, certainty and predictability militate in the opposite direction.

DISPOSITION

[32]

I would allow the appeal, grant summary judgment declaring that the
    court has jurisdiction to entertain the application, and remit the matter to
    the Superior Court for a determination on the merits. I would fix the costs of
    this appeal at $4500 but order that liability of those costs and the costs of
    the motion for summary judgment be reserved to the judge hearing this matter on
    the merits.

Released: November 22, 2017

Robert J. Sharpe
    J.A.

I agree R.A. Blair
    J.A.

I agree Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bakhshi v. Hosseinzadeh, 2017 ONCA 838

DATE: 20171102

DOCKET: C61561

Laskin, Feldman and Juriansz JJ.A.

BETWEEN

Faranak Bakhshi

Applicant (Respondent)

and

Masoud Hosseinzadeh

Respondent (Appellant)

Patrick Di Monte, for the appellant

Frances M. Wood, for the respondent

Heard: August 22, 2017

On appeal from the order of Justice J. Scott McLeod of
    the Superior Court of Justice, dated December 7, 2015, with reasons reported at
    2015 ONSC 7407.

Juriansz J.A.:

[1]

The main issue in this appeal is
    whether the property conveyed under an Islamic marriage contract, or Maher
    (sometimes also written as Mahr in the case law), is excluded from the
    definition of net family property (NFP) under s. 4(2) of the
Family
    Law Act
, R.S.O. 1990, c. F.3. (
FLA
) and excluded from equalization.

[2]

The parties entered into the Maher
    upon marrying in Iran on May 18, 1995.
[1]
The parties immigrated to Canada after they married. Among other things,
the
    Maher contained a clause requiring the husband to pay his wife 230 gold coins upon
    her prompt request.

[3]

On October 29, 2013, the wife
    issued an application in Ontario claiming a divorce, custody of their children,
    child support, equalization of NFP, and other relief. An order dated September
    23, 2014 granted a divorce and another order dated February 18, 2015 resolved
    other substantive matters leaving equalization, post-separation adjustments,
    and the treatment of the Maher for trial.

[4]

A one-day trial took place on
    November 20, 2015. It proceeded on an uncontested basis because the husband did
    not respond and disregarded several court orders. He was present at the trial
    but not permitted to participate.

A.

THE DECISION OF THE TRIAL JUDGE

[5]

The trial judge determined the value of properties owned by each spouse
    and equalized those values pursuant to s. 5(1) of the
FLA
. He also made
    a valuation of the post-separation adjustments claimed by the wife.

[6]

The trial judge ordered the husband to pay the wife an equalization
    payment of $187,075 and post-separation adjustments of $44,449.93. The trial
    judge stated the equalization payment was inclusive of the Maher. The trial
    judge found the value of the 230 gold coins was $79,580. The trial judges description
    of his order as
an equalization payment of
    $187,075, inclusive of the Maher,
is misleading. As will be explained further
    below, the trial judge actually treated the Maher obligation as separate from,
    or, in the terms of the
FLA
, as excluded from the equalization
    calculation. Having calculated the equalization payment owing as $107,495, he
    then added the $79,580 Maher payment value to the amount owing by the husband
    to the wife to arrive at the total of $187,075. The trial judge also ordered the
    husband to apply for an Islamic Iranian divorce at an approved agency and to
    register the divorce with the Iranian government within 30 days.

[7]

The trial judge then went on to consider the Islamic marriage
    contract. He concluded that the Maher, including the payment of the gold coins,
    was a valid and binding marriage contract under s. 55 of the
FLA
. On
    this point, he adopted the reasoning in
Khanis v. Noor Mohamed
, [2009]
    O.J. No. 2245 (S.C.), 2009 CanLII 27829, affirmed 2011 ONCA 127. He noted the
    Maher in this case, as in
Khanis
, satisfies the requirements of s.
    55(1) of the
FLA
since it was in writing, signed by both parties, and
    witnessed.

[8]

The trial judge considered s. 56(4) of the
FLA
, which gives the
    court the discretion to set aside a marriage contract. However, he stated that there
    was no reason to exercise that discretion in this case as the terms of the
    contract were simple, and the husband understood the contract and its binding
    nature.

[9]

The trial judge concluded that the value of the Maher was to be excluded
    from the calculation of NFP. In making this conclusion he relied on s. 4(2)6 of
    the
FLA
. Section 4(2)6 excludes from NFP, [p]roperty that the spouses
    have agreed by a domestic contract is not to be included in the spouses net
    family property.

[10]

Having
    excluded the Maher payment from the calculation of the NFP and equalization
    payment, the trial judge treated it as an additional amount owing to the wife and
    added it to the equalization payment.

B.

ISSUES ON APPEAL

[11]

The
    primary ground of appeal, and the only one advanced in oral argument, is that
    the trial judge erred in his exclusion of the Maher payment from NFP. The
    secondary ground of appeal, as advanced in the husbands factum, disputes the trial
    judges valuation of other property and post-separation adjustments.

C.

THE HUSBANDS ARGUMENT

[12]

Counsel
    for the husband submitted the trial judge was wrong to interpret the Maher as imposing
    on the husband an unequivocal obligation to pay his wife 230 gold coins upon
    her prompt request. He pointed out that the second clause of the Maher listed a
    number of requirements for the husbands behaviour during the marriage. He
    submitted that, properly construed, the Maher entitled the wife to payment of
    230 gold coins only upon proving the husbands default of one of the listed behavioural
    requirements. He argued that, as a policy matter, a fault-based agreement of
    this nature should not be enforced since it would be contrary to Ontarios no-fault
    family law regime.

[13]

Alternatively,
    even if the Maher created a demand obligation, counsel for the husband submitted
    that the payment to the wife under the Maher should not be excluded from the
    NFP calculation. He pointed out that while the Maher in
Khanis
stated
    that it shall be in addition and without prejudice to and not in substitution
    of all my obligations provided for by the laws of the land, there was no such language
    in this case. Without an equivalent provision, he submitted that there was no
    basis to exclude the Maher payment from NFP.

[14]

In
    addition, counsel for the husband argued the wifes Form 13B Financial
    Statement erroneously listed the Maher payment as both the husbands existing
    debt at the date of marriage and an excluded asset. He submitted this error
    double-counted the Maher payment to the husbands detriment by inflating his
    NFP in the Financial Statement.

D.

THE WIFES ARGUMENT

[15]

Counsel
    for the wife submitted that the trial judges treatment of the Maher payment is
    entitled to deference. She submitted that this court could not interfere with
    the trial judgment absent a palpable and overriding error.

[16]

Counsel
    for the wife contended the trial judges construction of the Maher obligation as
    a promissory note was reasonable because the two clauses of the Maher were
    independent. Each of the two clauses had separate sets of signatures. She
    argued the first clause created the payment obligation and the second clause created
    a side binding agreement by which the husband granted the wife a power of
    attorney to seek a divorce if he breached one of the listed behavioural requirements.

[17]

Counsel for the wife submitted that the result in the
Khanis

case did not depend on the express term in its Maher that provided the payment
    was in addition to the husbands other legal obligations. She asserted the Maher
    payment would have been excluded from NFP in that case even without that
    clause. She said the wife had testified that the Maher was akin to a dowry and Mahers
    have been treated by the courts [as] more of a dowry. She submitted it was
    for that reason that the courts have accepted it as a contract separate and
    apart from equalization.

[18]

Finally, counsel for the wife argued that the Maher payment would
    have to be made even if the Maher payment were included in the wifes NFP, irrespective
    of the equalization calculation.

[19]

Therefore, counsel for the wife
    submitted the trial judge was correct in excluding the Maher payment from the NFP
    calculation.

E.

ANALYSIS

(1)

Enforcing a domestic contract with religious aspects

[20]

Ontario
    courts have dealt with obligations under a Maher on a number of occasions:
Ghaznavi
    v. Kashif-Ul-Haque
, 2011 ONSC 4062;
Yar v. Yar
, 2015 ONSC 151;
Bari
    v. Nassr
, 2015 ONSC 4318;
Boustanji v. Barazi
, 2017 ONSC 4261;
Mohammadi
    v. Safari
, 2017 ONSC 4696 and
Khanis
,
supra
.

[21]

Courts have proceeded on the basis that agreements that satisfy the
    elements of a valid civil contract may be legally enforceable even where they
    have a religious aspect since the Supreme Courts decision in
Marcovitz v.
    Bruker
, 2007 SCC 54, [2007] 3 S.C.R. 607. At para. 123 of
Marcovitz
,
    the Supreme Court held that if a spouse can show that the religious marriage
    contract meets all the requirements for a civil contract under provincial
    legislation, then the courts may order the fulfilment of undertakings to pay
    the amounts provided for in the contract. Ontario courts have followed
Marcovitz
and enforced Mahers that satisfy the
FLA
s domestic contract requirements
    in cases such as
Khanis, Bari
, and
Boustanji
.

[22]

These
    cases treat Mahers like any other contract that may impose a variety of different
    legal obligations. The outcome of each case depends, just as in any other case
    of contractual interpretation, on the objective intentions of the parties as
    ascertained through the particular wording of the Maher when read as a whole
    and considered in light of its factual matrix
. As such, e
vidence about the religious
    and/or cultural significance of the Maher to the parties could conceivably be
    relevant to the factual matrix in determining their objective contractual
    intentions. In the final analysis, however, the courts role is confined to
    enforcing only those undertakings that fulfil the requirements of a civil domestic
    contract under provincial legislation.

(2)

The
    standard of review

[23]

The
    trial judges conclusion as to the effect of the Maher on the husbands
    obligations to the wife was two-fold. First, he determined that the Maher
    payment was enforceable as a demand obligation. Second, he determined that the Maher
    payment was not included in the NFP.

[24]

The
    Supreme Court set out the
guiding principles
    concerning the standard of review on appeals from judicial decisions in
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235. Questions of law are reviewable for correctness, and questions of fact or
    questions of mixed fact and law are reviewable for palpable and overriding
    error, unless there is an extricable question of law:
Housen
, at paras. 8, 10, and 36.

[25]

The
    interpretation of non-standard form contracts is a question of mixed fact and
    law:

Sattva Capital Corp. v. Creston Moly Corp
.
, 2014 SCC 53,
    [2014] 2 S.C.R. 633, at para. 50; and
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at
    para. 4. As such, the trial judges interpretation of the Maher as creating a
    demand obligation that was enforceable under the
FLA
is reviewable for
    palpable and overriding error:
Housen
, at para. 36. There was no such
    error in the trial judges reasons on this issue.

[26]

The
    two main clauses of the agreement were separately executed and the second
    clause listing the husbands behavioural requirements is better related to the
    wifes right to exercise a power of attorney to seek a divorce. Moreover, the trial
    judges finding that the agreement was a valid domestic contract under s. 55(1)
    of the
FLA
and his decision not to exercise his discretion under s.
    56(4) was amply supported by the evidence. There is no basis to interfere with
    these conclusions.

[27]

On
    the other hand, the applicability of a statutory provision to a contract is a
    matter of statutory interpretation that is reviewable for correctness:
Collett
    v. Reliance Home Comfort Limited Partnership
, 2012 ONCA 821, at para. 45. As
    such, the trial judges application of ss. 4(1) and 4(2) of the
FLA
to
    conclude that the Maher payment was excluded from NFP is reviewable for
    correctness. The trial judge erred in applying these provisions.

(3)

The
    Maher in this case

[28]

After
    following the
Khanis
case to conclude the Maher payment was enforceable,
    the trial judge found that the Maher payment was excluded from NFP pursuant to s.
    4(2)6 of the
FLA
. In so doing, the trial judge erred in applying s. 4(2)6.

[29]

In

Khanis
, this court made clear that the outcome in that case rested
    squarely upon the express language in the domestic contract, which excluded the
    Maher payment from NFP. In dismissing the husbands appeal at paras. 9-10, this
    court reaffirmed the trial judges reasoning that:

By necessary implication of the words
    "in addition and without prejudice to and not in substitution of all my
    obligations provided for by the laws of the land", the
maher
amount is excluded from net family property. Otherwise it
    would undermine the express intention of the agreement and the contract would
    have no meaning.

[Emphasis in original.]

[30]

There
    is no equivalent provision in the Maher in this case.

[31]

The
    trial judge states at para. 10 of his reasons that [t]he contract does not specify
    that the Maher payment is in substitution of the husbands obligations arising
    out of marriage. But that is not the issue. The relevant parts of ss.4(1) and
    4(2) of the
FLA
state
:

4(1) In this Part,

[]

net family property means the value of
all the property
,
    except property described in subsection (2), that a spouse owns on the
    valuation date

[]

4(2) The value of the following property that a spouse owns on
    the valuation date does not form part of the spouses net family property:

1.       Property,
    other than a matrimonial home, that was acquired by gift or inheritance from a
    third person after the date of marriage.

[]

6.       Property
    that the spouses have
agreed
by a domestic contract is not to be
    included in the spouses net family property.

[]

[Emphasis
    added.]

[32]

As
    such, s.
4(2)6 of the
FLA
, operates as an exception
    to the general rule and allows spouses to agree to exclude certain property
    from the NFP calculation.
The issue in this case is whether the
    parties agreed to exclude the Maher payment from the wifes NFP, as they had in
Khanis
.
The
    trial judge erred in law by not reviewing the Maher to determine whether the
    spouses had actually made such an agreement.

[33]

As noted, the Maher in this case contains no express agreement that the
    Maher payment is to be excluded from the wifes NFP. Moreover, there is no basis
    for inferring the parties intended to exclude it. The objective contractual
    intentions of the parties are to be determined at the time when the contract is
    made:
Davidson v. Allelix Inc
.
(1991), 86 D.L.R. (4th) 542 at
    547 (C.A.), [1991] O.J. No. 2230, at para. 16;
Eli Lilly & Co. v.
    Novopharm Ltd.
, [1998] 2 S.C.R. 129, at para. 54;
Family Insurance
    Corp. v. Lombard Canada Ltd.
, 2002 SCC 48, [2002] 2 S.C.R. 695, at para.
    36; and
Dumbrell v. Regional Group of Cos.
, 2007 ONCA 59, at paras. 48
    and 53. Here, at the time they executed the Maher in Iran, the parties
    evidently contemplated their continued life in Iran. The Maher, for example,
    contemplated that the husband could take a second wife. It also required the
    husband to grant the wife a power of attorney so she could initiate a divorce
    if he defaulted on any of the prescribed behavioural requirements. There is no
    basis in this case to infer that the parties contemplated their mutual
    obligations under Ontarios
FLA
.

[34]

Absent
    any evidence of an objective intention at the time of contract to treat the
    Maher differently, the Maher payment must be treated under the
FLA
like
    any other payment obligation between the spouses.

[35]

Counsel
    for the wife submitted that all transactions between spouses, irrespective of
    any domestic contract, should be excluded from NFP. Counsel submitted it is
    pointless to include transactions between spouses because they have no net
    effect on equalization. I reject this submission for three reasons. First, there
    is simply no provision in the
FLA
that excludes transactions between
    spouses. On the contrary,
bona fide
inter-spousal debts must be
    included in NFP:
Burke (Public Trustee of) v. Burke Estate
, [1994]
    O.J. No. 1342 (Gen. Div.), at paras. 37-40, 1994 CanLII 7442, at paras. 38-41;
    and
Long v. Long
, 1989 CarswellOnt 2687 (H.C.), at paras. 15-17.
    Second, because of the effect of the deeming provision in s. 4(5), transactions
    between spouses may affect the equalization payment where a spouses net assets
    would otherwise be negative. Transferred assets that fluctuate in value could
    also make a difference. Third, excluding transactions between spouses would be inconsistent
    with the separate property regime under the
FLA
, which continues during
    a marriage and terminates only on the triggering of the valuation date. As
    Feldman J.A. said in
Stone v. Stone
(2001), 55 O.R. (3d) 491 (C.A.),
    at para. 26:

The nature of the property regime established as between
    spouses under the
Family Law Act
was clearly described by Cory J. in
Rawluk
    v. Rawluk

Spouses each own their separate property throughout the
    marriage.
However, upon the happening of one of the five triggering events,
    there is a valuation date.

[Underlining added. Citations omitted.]

[36]

The
    wifes submission that the Maher payment should be considered akin to a dowry also
    does not assist her. A dowry from the husband would be included as part of NFP
    since only gifts given by third parties after the date of marriage are excluded:
FLA
, s. 4(2)1.
[2]

F.

THE HUSBANDS OTHER ARGUMENTS

[37]

The
    husband also advanced other attacks on the trial judges equalization
    calculations.

[38]

First,
    he argued that certain assets, particularly some real property in Iran, were
    not appraised. He submits that this resulted in inaccurate determinations of
    the parties respective obligations. The trial judge found that these assets
    belonged to the husband. As such, it was his responsibility to provide
    appraisals for those assets:
Family Law Rules
, O. Reg. 114/99, r.
    13(3.3) (as they appeared from June 10, 2015 to June 22, 2016). Though there
    were no appraisals, the trial judges valuation of the assets was not
    arbitrary. He used what he found to be their purchase price for their value,
    which was substantially less than what the wife claimed in her evidence. As
    such, the husband benefitted from this determination since it reduced his NFP.

[39]

Second,
    the husband submitted the trial judge double-counted the effect of the Maher
    payment on the husbands NFP as the Form 13B Financial Statement in the trial
    record shows the Maher payment both as an excluded asset and a debt existing on
    the date of marriage. While this is so, the resulting numbers indicate the
    trial judge treated the Maher payment solely as excluded property.

[40]

Third,
    he submits there was an inadequate evidentiary base for the post-separation
    adjustments. I do not agree. The trial judge was entitled to accept the
    testimony and documentary evidence of the wife. There is no basis for
    interfering with these factual determinations by the trial judge.

G.

THE EQUALIZATION PAYMENT IN THIS CASE

[41]

The
    Maher payment must be included in NFP and the equalization order varied as a
    result. The wifes Form 13B Financial Statement in the record was not
    calculated correctly. However, based on the data in the statement as varied by
    the trial judge, and before considering the Maher obligation, the husband and
    wife had net assets of $214,990 and -$17,210, respectively. Since the trial
    judge treated the Maher obligation as excluded property, he deemed the wifes
    NFP to be zero pursuant to s. 4(5) of the
FLA
. As a result, the trial
    judge calculated the equalization payment to be $107,495.

[42]

Properly
    including the Maher obligation as part of NFP reduces the husbands net assets
    by $79,580 and increases the wifes net assets by $79,580. Accordingly, the
    parties NFPs are $135,410 and $62,370, respectively. This obviates the need to
    rely on the deeming provision as the wife has a positive NFP. The resulting
    equalization payment is $36,520.

[43]

Counsel
    for the wife pointed out that the Maher payment needs to be actually paid even
    if it is included in equalization. I agree. The Maher payment included in the
    equalization calculation is a demand obligation with a paper value. Collection
    of the demand obligation is not an equalization issue but a debt collection
    issue. This can be seen clearly by considering the situation where, during the
    marriage, the husband endorses over to the wife a third partys promissory
    note. The third partys promissory note would be included in equalization, and
    afterwards the wife could collect the debt from the third party. The same
    reasoning applies to the husbands own promissory Maher obligation in this
    case. The wife is entitled to collect the debt owed to her. Thus the wife is
    entitled to an equalization payment of $36,520 plus post-separation adjustments
    of $44,449.93 plus realization of the Maher obligation of $79,580 for a grand
    total of $160,549.93.

H.

Conclusion

[44]

I
    would allow the appeal and vary paragraph one of the judgment below to order a
    payment of $116,100 composed of an equalization payment of $36,520 and $79,580 in
    realization of the promissory Maher obligation included in the equalization
    calculation.

[45]

The
    husband was successful on the family law issue of whether the Maher obligation should
    have been included in equalization. However, the wife was successful on the
    collection issue and obtained an order allowing her debt collection claim. As
    success is divided, I would not make an order as to costs of the appeal.

Released:  NOV -2 2017                            R.G.
    Juriansz J.A.

JL                                                             I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.

APPENDIX A
The Maher dated May 18, 1995

[1]
A
    copy of a translation of the Maher, as filed in Tab 11 of the Appellants
    Exhibit Book, is attached in the appendix to these reasons.

[2]
See also
Berta v. Berta
,
    2015 ONSC 1493, at para. 21, reversed on other grounds 2015 ONCA 918, where the
    trial judge held that the wifes position that gifts from her husband during
    marriage were excluded from NFP had no chance of success in law. This court
    reversed the costs award on other grounds, but agreed at paras. 95-96 with the
    trial judge that the wifes untenable positions regarding the parties NFPs
    was amply supported by the evidentiary record.


COURT OF APPEAL FOR ONTARIO

CITATION: Berta v. Berta, 2017 ONCA 874

DATE: 20171116

DOCKET: C62797

MacPherson, Juriansz and Roberts JJ.A.

BETWEEN

Delia Joan Berta

Applicant (Appellant)

and

Raymond Louis Berta

Respondent (Respondent)

Aaron Franks and Michael Zalev, for the appellant

Peter Callahan, for the respondent

Heard: October 16, 2017

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated September 13, 2016, with reasons reported
    at 2016 ONSC 5723, 133 O.R. (3d) 704.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Delia Joan Berta (Joan), and the respondent, Raymond
    Louis Berta (Ray), were married for 27 years. They owned equal shares of a
    business created by Ray during the marriage and developed a lavish lifestyle
    when the business prospered.

[2]

The marriage ended and the parties could not resolve several financial
    issues. After a nine day trial in 2013, Harper J. ordered Joan to make an equalization
    payment to Ray, and ordered Ray to pay Joan indefinite spousal support on the
    low end of the
Spousal Support Advisory Guidelines
(
SSAGs
)
    in the amount of $5,380 per month. Joan was also ordered to pay Rays costs of
    $460,179.57 on a full indemnity basis due to,
inter alia
, Joans
    unreasonable behaviour throughout the litigation, including her repeated
    unproven allegations of fraud against Ray.

[3]

Joan appealed from the trial judges decision on three grounds: the
    quantum of spousal support, the equalization payment, and the costs award.

[4]

This court allowed the appeal:
Berta v. Berta
, 2015 ONCA 918.
    The court returned the case to the trial judge to reconsider the spousal
    support and costs issues in accordance with the reasons of this Court.

[5]

The parties agreed to file the same material at the rehearing and made
    only written submissions. No new financial information about the parties was
    prepared or filed.

[6]

At the rehearing, the trial judge awarded Joan indefinite spousal
    support of $8,000 per month and awarded Ray costs of $322,125.70.

[7]

Joan appeals both the new spousal support and costs awards.

B.

FACTS

(1)

The parties and events

[8]

The parties married in 1982. Joan was 44 and Ray was 37. They did not
    have children together.

[9]

Ray worked in several jobs in the early years of the marriage. Joan had
    a senior management position in Stelco in Hamilton.

[10]

In
    1986, Ray decided to start a clinical research business. He called it Applied
    Consumer Clinical Evaluations Inc. (ACCE). Joan and Ray were equal
    shareholders in ACCE, and both were directors of the company. Both contributed
    labour and funds to the growth of ACCE, but Ray operated the company on a daily
    basis.

[11]

In
    1993, Joan took early retirement from Stelco and set up a consulting business.

[12]

Both
    businesses flourished, especially ACCE, which became very successful and
    profitable.

[13]

Joan
    and Ray enjoyed a lavish lifestyle together, especially in the later years of
    their marriage. They had expensive homes and vacation properties, travelled
    extensively, hosted extravagant social events, and gave each other very
    expensive gifts  a real fire truck for Ray and an antique T-Bird car for Joan.

[14]

The
    marriage ended in March 2010. Joan and Ray sold their matrimonial home, divided
    the net proceeds of sale equally, and purchased separate homes in Ontario. Joan
    also bought a small condominium in Florida. Ray purchased Joans ACCE shares
    for $2.2 million, payable in part on closing with the balance of $1.85 million
    to be paid over time.

[15]

The
    parties were unable to resolve many of the relevant financial issues. They went
    through a nine day trial in November 2013.

(2)

The trial

[16]

The
    trial judge dealt with three issues at the trial  equalization, spousal
    support and costs.

(a)

Equalization

[17]

The
    trial judge ordered Joan to pay an equalization payment of $101,223.13 to Ray.

(b)

Spousal support

[18]

Both
    Joan and Ray called accountants as expert witnesses to provide evidence on determining
    income for support purposes. The trial judge preferred the evidence of Rays
    expert. He found that Joans expert had improperly acted as an advocate for
    her, acting as her [g]eneral to lead her into battle, rather than a neutral
    expert seeking information to assist the court. He said that, both before and
    during the trial, Joan and her expert engaged in a relentless quest to
    demonstrate that Ray had engaged in fraud or some other nefarious activity.
    Joans expert also failed to meet with Rays expert to narrow the issues.

[19]

The
    trial judge found that Rays average annual income was $644,172, comprising
    employment income, CPP, OAS, other pensions, investment income, and actual
    capital gains.

[20]

The
    trial judge found that Joan had substantial assets, including a pension, a
    RRIF account, the money received from her ACCE shares, proceeds from the sale
    of the matrimonial home, and other savings. However, she failed to maximize the
    income that she could earn from these assets. She did not meet with a financial
    advisor and kept the funds in a traditional bank account with a low interest
    rate (between 1.35 and 1.9 per cent). She acknowledged that she had done
    nothing to ensure that she received the best return on her assets. The trial
    judge was also critical of Joans behaviour in two important respects
    non-disclosure of two sources of income and surreptitious removal of money from
    ACCE when she knew it was in financial distress. Taking account of all these
    factors, the trial judge fixed Joans annual income at $484,356, which
    includes pension income and investment income.

[21]

In
    light of the parties incomes, the trial judge observed that the
SSAGs
indicated that spousal support could be $5,380 in the low range, $6,227 in the
    mid-range, and $7,174 in the high range. He concluded that because Joan was
    not maximizing her resources after separation, the fairest approach was to
    order support at the low end of the
SSAGs
 $5,380 per month.

(c)

Costs

[22]

The
    trial judge was highly critical of Joans conduct and positions throughout the
    litigation, including her allegations of fraud that were not supported by any
    evidence. He also referred to Rays reasonable offers to settle and Rays
    success on all material issues. The trial judge ordered full indemnity costs
    fixed at $460,179.57.

(3)

The first appeal

[23]

Joan
    appealed on the issues of equalization, spousal support and costs.

[24]

On
    the equalization issue, this court upheld the trial judges analysis and
    calculation.

[25]

On
    the spousal support issue, this court concluded that the trial judges
    determination of Joans income was unsustainable and preclude[d] meaningful appellate
    review. It returned the issue to the trial judge to be determined in accordance
    with the reasons of this Court.

[26]

On
    the costs issue, this court concluded that the trial judge fell into error in
    two ways  first, by stating that Rays offer to settle was as good as if not
    better than the outcome at trial; and second, by stating that Ray had been
    successful at trial [on] all material issues.

[27]

In
    light of these errors, and against the backdrop of the return of the spousal
    support issue to the trial judge, this court determined that the costs issue
    should also be returned to the trial judge to fix an appropriate award of
    costs, in light of the relative success of the parties, their conduct at trial,
    and other relevant considerations under the
Rules
.

(4)

The rehearing

[28]

The
    trial judge dealt with two issues at the rehearing  spousal support and costs.
    Both parties made written submissions on these issues. They agreed that the
    trial judge should consider only the original evidence in making his decision;
    they would not provide an update on their financial positions. The parties
    agreed that they would decide how to proceed once the trial judge rendered his
    second decision.

(a)

Spousal support

[29]

On
    the crucial issue of Joans sale of her shares in ACCE to Ray, the trial judge
    concluded that the capital receipts they generated should only be considered
    for what they can reasonably yield as income if invested in a reasonable
    manner. He then considered that income  using a generous six per cent
    return  and her various pension incomes, and arrived at an average annual
    income for Joan of $282,119, down from $484,356 at the original trial.

[30]

The
    trial judge stated that Rays average annual income was $644,172, the same
    number as determined at trial.

[31]

Then,
    in the crucial passage in his reasons in the rehearing, the trial judge reached
    his conclusion on the spousal support issue:

Based on the income ranges set out above, Raymond should pay
    the low end of the SSAG calculations. This amounts to $8,000 per month in
    spousal support. That level of support results in Joan retaining 40% of the Net
    Disposable Income and Raymond retaining 60%.

(b)

Costs

[32]

The
    trial judges reasons on the costs issue were brief, so I set them out in full:

With its reasons, the Court of Appeal has also requested a
    reconsideration of the cost award. Ray Berta submits that this reconsideration
    by me should make a specific finding that Joan Berta acted in bad faith given
    my other findings in the original reasons. I agree with these submissions.
    Although I did not use the term bad faith, my findings describe conduct that
    amounts to bad faith.

Joan Berta served and filed an offer to settle that the Court
    of Appeal felt was better than the judgment granted in favour of Ray Berta.
    They observed that Ray Berta took the position that Joan was not entitled to
    spousal support, and I found that she was. Taking both of these factors into
    consideration, it is my view that bad faith amounts to fueling the fire of
    litigation. Such conduct cannot be condoned, even if an offer was better than
    the judgment. I view this as similar to a successful party being disentitled to
    costs when the court finds that they acted unreasonably.

In weighting the considerations of Joans offer with her
    conduct amounting to bad faith that drove the litigation, I am of the view that
    Ray Berta should recover a substantial portion of his costs. Under the
    circumstance I find that reducing his full indemnity costs by 30 percent would
    be a fair allotment.

As a result of the above factors, Joan shall pay costs to Ray
    in the total amount of $322,125.70.

[33]

Joan
    appeals on both the spousal support and costs issues.

C.

ISSUES

[34]

Joan
    raises two issues on the appeal:

1.      Did
    the trial judge err by awarding Joan spousal support of $8,000 per month; and

2.      Was
    the trial judges costs award of $322,125.70 in favour of Ray unfair,
    unreasonable or clearly wrong?

D.

ANALYSIS

(1)

Spousal support

[35]

Joan
    contends that the trial judge erred by fixing indefinite spousal support at
    $8,000 per month. She says that this amount is too low. She submits that the
    trial judge made three errors in arriving at this number  he erred in calculating
    Joans income for support purposes; he erred in applying the low range of the
SSAGs
;
    and he made a mathematical error when he applied the
SSAGs
. I will consider
    these submissions in turn.

(a)

Joans income

[36]

The
    trial judge fixed Joans annual income at $282,119. He adopted the Court of
    Appeals approach, which meant that the income flowed from two sources
    imputed (not actual) income on her investment portfolio ($179,400) and income
    from other sources, including OAS, CPP, Stelco pension, RRIF income, U.S.
    benefits, loan income, and rental income ($102,719).

[37]

While
    she submits support should be calculated based on an annual income of $85,000, Joan
    does not specifically challenge the figure for actual income. She challenges
    the imputed income figure on two bases.

[38]

First,
    Joan asserts that the trial judge failed to take account of the tax
    implications of her receipt of $2.2 million for the sale of her ACCE shares to Ray.

[39]

I
    agree with this submission. Joan acknowledged in one of her financial documents
    prepared for the trial that she would have to pay taxes, over a period of
    years, on the income she received from the sale of her ACCE shares. Ray does
    not challenge this assertion. The calculation prepared by McGillivray and
    Associates (a firm retained by Ray to advise both parties about the income tax
    implications of Joans sale of her ACCE shares to Ray) established that the
    cumulative cash Joan would retain after 2016 from the sale of the shares was $1,685,923.
    I accept this figure.

[40]

Second,
    Joan submits that the trial judge erred by in effect double counting certain
    items in both the imputed income and other sources categories of income.

[41]

I
    agree. The trial judge improperly added to Joans asset portfolio the value of
    the RIFF, the income from which is already accounted for in her line 150 income.
    He also incorrectly included the proceeds from the sale of her matrimonial home
    which she used to buy a new home and which were not available to invest, as
    well as amounts for personal property like a car and jewellery, which could not
    generate income.

[42]

Subtracting
    the amounts related to these items leaves a final number in the imputed income
    category of $1,685,923  the cumulative cash retained from the share sale.

[43]

Third,
    Joan contends that the trial judge erred by determining that she should be earning
    six per cent a year on her capital. She says that this is too high a figure for
    an elderly, conservative investor.

[44]

I
    do not accept this submission. In its appeal decision, this court used a six
    per cent figure, which it described as generous, in calculating Joans
    potential annual income. In addition, the record established that Joans RIFF
    return from 2010 to 2013 was around six per cent. Accordingly, while I would
    not endorse six per cent as the usual rate of return to be imputed, I do not
    fault the trial judge for choosing this number. I do not think that this
    figure, in the circumstances of this case, with two wealthy and financially
    savvy spouses, is predicated upon insensitive standards on how the payee
    spouse should have managed her finances from the point of separation: see
Boston
    v. Boston
, 2001 SCC 43, at para. 58.

[45]

Combining
    my conclusions on the three issues raised relating to Joans income, my
    ultimate conclusion is that it was appropriate to impute an asset portfolio of
    $1,685,923. If invested so as to generate an annual return of six per cent, the
    annual income in this category would be $101,155. If this is added to the other
    income sources totalling $102,719, Joans total annual income would be
    $203,874.

(b)

The low range of the
SSAGs

[46]

After
    determining that Rays annual income was $644,172 and Joans annual income was
    $282,119, the trial judge stated: Based on the income ranges set out above,
    Raymond should pay the low end of the SSAG calculations. Joan contends that
    the trial judge offered no reasons in support of this conclusion and that he
    erred in choosing to apply the low end of the
SSAGs
.

[47]

I
    am not persuaded by these submissions.

[48]

The
    trial judge concluded that there was no compensatory entitlement to support
    here. The only entitlement was non-compensatory or needs-based. He also carefully
    reviewed the financial situations of both parties. It is obvious from a review
    of his reasons that he concluded that both parties have substantial resources.
    His treatment of this issue is far removed from a no reasons analysis.

[49]

Absent
    an error in principle, a significant misapprehension of the evidence, or an
    award that is clearly wrong, the trial judges conclusion on spousal support
    awards should be affirmed: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
    at paras. 11-12, and
Halliwell v. Halliwell
, 2017 ONCA 349, at para.
    88. This deference is augmented for payor incomes over $350,000 where the
SSAGs
themselves suggest pure discretion as one of two possible approaches: see
    Department of Justice Canada, Spousal Support Advisory Guidelines (July 2008), (Ottawa:
    Department of Justice, 2008) at p. 112 and
Hathaway v. Hathaway
, 2014
    BCCA 310, at para. 46. This approach remains unchanged in the April 2016
    Revised Users Guide. I cannot say that the trial judges decision to make a
    spousal support order at the low end of the
SSAGs
calculation amounts
    to any of the errors set out in
Hickey
and
Halliwell
.

[50]

Finally,
    I note that in oral argument Joan conceded that the midrange of the
SSAGs
would be a bit high.

[51]

For
    these reasons, I conclude that the trial judge did not err by purporting to
    apply the low end of the
SSAGs
when calculating Rays support
    obligation.

(c)

The mathematical error

[52]

The
    trial judges ultimate conclusion on the spousal support issue was:

Based on the income ranges set out above, Raymond should pay
    the low end of the SSAG calculations. This amounts to $8,000 per month in
    spousal support. That level of support results in Joan retaining 40% of the Net
    Disposable Income and Raymond retaining 60%.

[53]

Joan contends that the trial judges intent here
    was to order support at the low end of the
SSAGs
range. The order of $8,000 per month was simply a mathematical
    error in applying this intent. To support this, she refers to the trial judges
    original decision:

The spousal support calculations given my
    findings are as follows: $5,380 for low, $6,227 for mid and $7,174 for high.

Given my findings relating to Joan not
    maximizing her resources after separation, I am of the view that the fairest
    approach is to order support that is at the low end of the SSAG calculations.

For the foregoing reasons, I am ordering
    spousal support in the amount of $5,380 per month.

[54]

Ray concedes that based on an income for him of
    $644,172 and an income for Joan of $282,119, the support payable at the low end
    of the range is $11,314. He argues, however, that it is the trial judges last
    sentence about the net disposable income split of 40/60 that reflects his true
    intent. In this way, on the trial judges income findings, Joan would be
    entitled to $6,173 per month.

[55]

I agree with Joan on this point.

[56]

The decision under appeal was a rehearing
    further to direction from this court on appeal. On that first appeal, this
    court found no error in the initial decisions application of the low end of
    the
SSAGs
. Furthermore, there was no stated
    intent in the trial judges rehearing decision to depart from this original
    choice.  All this given, I would agree with Joan that the trial judge intended
    to apply the low end of the
SSAGs
range to the
    revised calculation of Joans income and simply made a mathematical error in
    calculating this amount (as well as in calculating the net disposable income
    split).

[57]

I would accordingly apply the low end of the
SSAGs
to the corrected income figure of $203,874 to generate the
    appropriate spousal support amount. This amounts to $13,759 per month in
    spousal support.

(2)

Costs

[58]

At
    the first trial, the trial judge awarded Ray full indemnity costs fixed at
    $460,179.57.

[59]

On
    appeal, this court identified two errors in the trial judges costs analysis
    his treatment of Rays offer to settle and his conclusion that Ray had been
    successful at trial [o]n all material issues. The court returned the costs
    issue to the trial judge to fix an appropriate award of costs, in light of the
    relative success of the parties, their conduct at trial, and other relevant
    considerations under the
Rules
.

[60]

At
    the rehearing, the trial judge made a specific finding that Joan acted in bad
    faith at the original trial. However, he heeded the comments of this court and
    concluded that Ray should recover a substantial portion of his costs, not
    full indemnity. He reduced the full indemnity costs by 30 per cent and awarded
    Ray costs of $322,125.70.

[61]

Joan
    submits that this costs award is unreasonable, especially since she was
    successful on the spousal support issue.

[62]

I
    do not accept this submission. The trial judge was in the best position to
    assess the parties conduct before and during a nine day trial. In both his
    trial and rehearing reasons he made explicit negative findings about Joans
    conduct. In his rehearing reasons, the trial judge specifically stated that his
    findings at the trial describe conduct that amounts to bad faith.

[63]

In
    its appeal reasons, this court referred to the trial judges findings that the
    Wife and her expert both acted unreasonably throughout the litigation and the
    Wife also made baseless allegations of fraud against the Husband, and
    continued: These findings are amply supported by the evidentiary record. They
    strongly support an award of costs to the Husband on a full recovery basis.

[64]

Importantly,
    at the rehearing, the trial judge, taking account of this courts comments in
    its appeal reasons, reduced the costs award in favour of Ray by about $138,000.

[65]

In
    the end, I cannot say that the new costs award made by the trial judge at the
    rehearing  $322,125.70, not full indemnity costs of $460,179.57  even
    approaches being unreasonable.

E.

DISPOSITION

[66]

I
    would allow the appeal in part on the spousal support issue and order that the
    respondent pay spousal support to the appellant in the amount of
$13,759
per month.

[67]

I
    would dismiss the appeal on the costs issue.

[68]

Success
    on the appeal is divided. I would order that each party bear its own costs of
    the appeal.

Released: JCM  NOV 16 2017

J.C. MacPherson
    J.A.

I agree. R.G.
    Juriansz J.A.

I agree. L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bois v. MD Physician Services Inc., 2017 ONCA 857

DATE: 20171108

DOCKET: C63311

Simmons, Rouleau and Brown JJ.A.

BETWEEN

Mark Bois

Plaintiff (Appellant)

and

MD Physician Services Inc., MD Private Investment
    Management Inc. and MD Management Limited

Defendants (Respondents)

Morgan Rowe, for the appellant

Ashlee L. Barber, for the respondents

Heard: October 20, 2017

On appeal from the judgment of Justice Sylvia Corthorn of
    the Superior Court of Justice, dated December 28, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal raises a single issue: Did the
    motion judge err in concluding the active employment requirement in the
    respondents Variable Incentive Plan (VIP) under which the appellant, Mark
    Bois, was awarded a bonus did not conflict with ss. 11(5) and 13(1) of the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41 (
ESA
)?

FACTS

[2]

The material facts are not in dispute. The
    appellant worked for the respondents from August, 1997 until his resignation in
    October 2011.

[3]

In 2009 and 2010 the appellant was awarded
    bonuses under the respondents VIP. Under the plan, a bonus awarded for a year
    was payable in equal installments over the three years following the calendar
    year for which the bonus was awarded. Installment payouts would be made in
    February or March of each year.

[4]

The 2007 VIP stated:

In the event a Participants continuous Active
    Employment terminates, either voluntarily or involuntarily and whether for
    cause or not for cause, the Participant will immediately forfeit any
    entitlement to any payments under this plan whether attributable to prior years
    or to the current year.

[5]

The 2011 VIP that replaced the 2007 VIP effective
    January 3, 2011 contained a similar provision: Any employee who has left the
    organization or has given notice to leave the organization on or before the
    incentive payment date will not be eligible to receive a payment.

[6]

A March 16, 2010 letter from the respondents
    signed and agreed to by the appellant stated:

In any given year, you must be a permanent
    employee of the CMAH Group of Companies on December 31 of the year for which
    the incentive is paid and continue to be so employed on the payment date(s) to
    receive a payment. Any employee who is no longer employed with the organization
    or has given notice of termination prior to the payout date will not be
    eligible to receive a payment.

[7]

The appellant resigned before the pay-out dates
    for the final installment of his 2009 bonus and two installments of his 2010
    bonus. The future installments totaled $114,916.79.

[8]

The appellant commenced this action seeking
    those installments. The motion judge granted the respondents summary judgment
    dismissing his action.

ISSUE

[9]

The appellant submits the motion judge erred in
    her interpretation of ss. 11(5) and 13 of the
ESA
, which state:

11(5) If an employees employment
    ends, the employer shall pay any wages to which the employee is entitled to the
    employee not later than the later of,

(a) seven days after the
    employment ends; and

(b) the day that would have been
    the employees next pay day.

13(1) An employer shall not withhold
    wages payable to an employee, make a deduction from an employees wages or
    cause the employee to return his or her wages to the employer unless authorized
    to do so under this section.

[10]

The appellant contends that where a bonus has
    been awarded for a year, but at the time of the employees resignation future
    bonus installments remain to be paid-out, s. 11(5) of the
ESA
effectively operates to accelerate the employers obligation to pay-out future
    installments, notwithstanding language in an incentive plan requiring the
    employee to be actively employed at the date of any future pay-outs. To the
    extent that the terms of the VIPs sought to disentitle the appellant to the
    future installments, they were void as they contravened s. 13(1) of the
ESA
.

ANALYSIS

[11]

We are not persuaded by the appellants
    submission.

[12]

The motion judge interpreted the VIPs as
    requiring an employee to be actively employed with the respondents on the date
    of a bonus installment pay-out in order to receive the installment. If the
    employee resigned before an incentive payment date, he would not be eligible to
    receive a payment: at para. 61. She also held the appellant had notice of the
    active employment eligibility requirement and he knew or ought to have known
    when he resigned that he would be forfeiting entitlement to the bonus: at para.
    66. Those findings are not challenged on appeal.

[13]

The motion judge construed s. 11(5) of the
ESA
as requiring the respondents to determine whether, at the time the appellants
    employment ended, he was entitled to the payment of any bonus installments
    based on the wording of the VIPs and the length of his notice period: at para.
    101. She concluded the respondents rightfully and correctly determined that by
    reason of his resignation the plaintiffs entitlement to the Bonus was
    extinguished: at para. 102.

[14]

We see no error in the motion judges approach
    or conclusion.

[15]

It was open to the parties to agree how and when
    any bonus was declared, earned, accrued and would be payable:
Kielb v.
    National Money Mart Company
, 2017 ONCA 356, at para. 12.

[16]

By the terms of the VIPs, the appellant was not
    entitled to the three bonus installments whose pay-out dates fell well after
    the date of his resignation. While those three installments would constitute
    wages payable upon each of the future pay-out dates, they were not wages to
    which the appellant [was] entitled when he resigned and his employment ended.
    Accordingly, we see no basis to interfere with the motion judges conclusion
    that where, as in circumstances such as those of the present case, the entitlement
    to an incentive plan payment does not arise until after an employees
    resignation or the expiration of the reasonable period of notice of
    termination, a plans requirement that the employee be actively employed at the
    time of a future pay-out does not contravene s. 11(5) of the
ESA
.

[17]

Nor does such an active employment provision
    contravene s. 13(1) of the
ESA
, as the future pay-outs do not
    constitute wages payable to an employee at the time of his resignation.

DISPOSITION

[18]

For the reasons set out above, we dismiss the
    appeal.

[19]

The respondents are entitled to their costs of appeal on a partial
    indemnity basis fixed at $5,000, inclusive of disbursements and all applicable
    taxes.

Janet
    Simmons J.A.
Paul Rouleau J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brooks v. Ontario Racing Commission, 2017 ONCA 833

DATE: 20171101

DOCKET: C62986

MacFarland, Hourigan and Pardu JJ.A.

BETWEEN

Jeffrey
    Brooks and

Bulletproof
    Enterprises

Applicants

(Appellants)

and

Ontario
    Racing Commission and

Director
    of the Ontario Racing Commission

Respondents

(Respondents)

David Moore and Kenneth Jones, for the appellants

Brendan van Niejenhuis and Benjamin Kates, for the respondents

Heard: October 24, 2017

On appeal from the order of the Divisional Court (Justice
    Harriet E. Sachs, Justice Elizabeth M. Stewart and Justice Laurence A. Pattillo),
    dated March 11, 2016 with reasons reported at 2016 ONSC 1136.

REASONS FOR DECISION

Introduction

[1]

The appellants, Bulletproof Enterprises (Bulletproof) and its owner
    Jeffrey Brooks, appeal the Divisional Courts dismissal of their judicial
    review application. For the reasons that follow, we dismiss the appeal.

Facts

[2]

The judicial review application was brought in relation to three
    decisions. First, the Director of the Ontario Racing Commission (ORC) issued
    a Suspension and Freezing Order against Mr. Brooks on the basis that his
    brother, David Brooks, had been involved in running Bulletproof, despite having
    been suspended by the ORC (the Freezing Order). Second, the ORC dismissed the
    appellants motion to quash or stay both the Freezing Order and the Notice of
    Proposed Order to Suspend Licences (the Notice of Proposed Order) and
    dismissed the motion in the alternative for particulars (the Procedural
    Decision). Third, after a hearing before a panel of the ORC, the panel made
    findings of wrongdoing against the appellants and ordered forfeiture of the
    frozen accounts, ten year licence suspensions, and a fine of $400,000 (the
    Merits Decision).

[3]

The Divisional Court dismissed the application for judicial review. Justice
    Sachs, writing for the court, found that although the Director did not have
    jurisdiction to grant the Freezing Order, the granting of that order did not
    require the Merits Decision to be set aside because ultimately the panel had
    the power to seize the funds subject to the Freezing Order. She further found
    that both the Procedural Decision and Merits Decision were reasonable and the
    manner in which the proceedings were conducted did not breach the appellants
    rights to natural justice.

Issues

[4]

The appellants advance three grounds of appeal in this court:

1)

The
    ORCs refusal to provide sufficient particulars amounted to a deprivation of
    notice and a breach of procedural fairness;

2)

The
    panels decision to allow Vice-Chair Donnelly to continue sitting as a hearing
    panel member after the expiration of his term of appointment resulted in the
    panel losing jurisdiction and the failure of the panel to permit the parties to
    make submissions on the issue was a breach of natural justice; and

3)

The
    panel made unsupported factual findings, failed to address contradictory
    evidence, and its reasons were so inadequate that they amounted to a breach of
    procedural fairness.

Analysis

(a)

Standard of Review

[5]

Before turning to the issues, there is the question of the appropriate
    standard of review. When considering an allegation of a breach of procedural
    fairness or natural justice, no standard of review analysis is necessary.
    Rather, the court is only required to analyze
whether
    the rules of procedural fairness or natural justice have been adhered to: see
1657575
    Ontario Inc. v. Hamilton (City)
,
2008 ONCA 570, 92 O.R. (3d) 374,
    at para. 23. Thus the issues of the adequacy of the notice and the decision not
    to invite sub
missions with respect to the panel members continuing
    tenure do not attract a standard of review.

[6]

The appellants submit that the failure of the panel to provide adequate
    reasons is an issue of fairness and there is therefore no applicable standard
    of review. We do not agree with that submission. In our view, this argument has
    been conclusively answered by the Supreme Court of Canada in
Newfoundland
    and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board)
,
2011
SCC 62,
[2011] 3 S.C.R. 708,
at
    para. 22:

It is true that the breach of a duty of procedural fairness is
    an error in law. Where there are no reasons in circumstances where they are
    required, there is nothing to review. But where, as here, there are reasons,
    there is no such breach. Any challenge to the reasoning/result of the decision
    should therefore be made within the reasonableness analysis.

[7]

The
adequacy of
    reasons is not a stand-alone basis for quashing a decision. The reasons must be
    read together with the outcome and assessed for whether the result falls within
    a range of possible outcomes. According to the Supreme Court, if the reasons
    allow the reviewing court to understand why the tribunal made its decision and
    permit it to determine whether the conclusion is within the range of acceptable
    outcomes, the Dunsmuir criteria are met: see
Newfoundland and
    Labrador Nurses Union,
at paras. 14,
    16.

[8]

The ORC has long been recognized as a
    tribunal with specialized expertise and its decisions are reviewed on a
    reasonableness standard: see
Ontario
    Harness Racing Horse Association v. Ontario Racing Commission
, 2012 ONSC 821,
290 O.A.C. 56,
at para. 46. There are no issues raised that are of
    central importance to the legal system as a whole or that are outside the ORCs
    specialized area of expertise, such that a standard of correctness is warranted
:
see
Dunsmuir
    v. New Brunswick
, 2008 SCC 9,
[2008] 1 S.C.R. 190,
at para. 60. Nor does any
    exceptional question of true jurisdiction arise: see
Alberta Teachers Assn. v. Alberta (Information &
    Privacy Commissioner)
, 2011 SCC 61,
[2011]
    3 S.C.R. 654,
at para. 33.

(b)

Reasons

[9]

We reject the submission that the panel made unsupported factual
    findings, failed to address contradictory evidence, and its reasons were so
    inadequate that they amounted to a breach of procedural fairness.

[10]

In
    our view, the panel made reasonable factual findings available to it on the
    evidentiary record. In this regard, it is important to note that the appellants
    called no evidence at the hearing. Their objection to the reasons amounts to
    nothing more than an assertion that the panel should have drawn different
    inferences from the evidence given by the ORCs witnesses. We are not satisfied
    that the conclusions drawn by the panel from the evidence were unreasonable.
    Moreover, reasons need not reference every piece of contradictory evidence. We
    are satisfied that the reasons of the panel adequately explain the decision
    made and its underlying analysis.

[11]

Here, the reasons allow this court to understand
    why the tribunal made its decision and the reasons together with the record
    enable this court to conclude that the outcome is within the range of
    acceptable outcomes.

(c)

Notice

[12]

With
    regard to the adequacy of notice, the appellants submit that the failure of the
    ORC to provide particulars of the allegation was in breach of the duty of
    fairness, as it prevented them from mounting a full defence. Specifically, they
    argue that they were not provided adequate particulars regarding the timing of
    the alleged misconduct. They also complain that the Notice of Proposed Order did
    not allege fraud but the panel ultimately found that they engaged in fraud.

[13]

We
    do not accept this submission. The Divisional Court correctly held that the
    particulars in the Notice of Proposed Order constituted sufficient notice, such
    that the appellants understood the case they had to meet. The evidence led at
    the hearing related directly to the particulars contained in the Notice of
    Proposed Order. Moreover, the wrongdoing alleged in the Notice of Proposed
    Order was directly connected to the eventual findings of the panel at the
    merits hearing.

[14]

With
    respect to the specific complaint regarding inadequate disclosure of the timing
    of the alleged misconduct, the time period in issue would have been clear to
    the appellants on receipt of the Notice of Proposed Order. The central
    allegation made by the ORC was that the appellants permitted David Brooks to be
    involved in Bulletproofs business despite the fact that he had not held a
    racing licence since the fall of 2007.  It would have been plain from that
    allegation that the pertinent time period was from the fall of 2007 onward.

[15]

With
    respect to the finding of fraud, while we agree that the ORCs language could
    be considered intemperate, there is nothing in this finding that should have
    taken the appellants by surprise. They knew that their honesty and integrity
    were at the forefront of the hearing;
the Notice of Proposed
    Order expressly indicated that their honesty and integrity were in issue
.
    They also knew that the central allegation against them was that they had
    surreptitiously permitted David Brooks to participate in their racing enterprise
    when he was not authorized to do so. The finding of fraud relates directly to
    that central allegation.

(d)

Jurisdiction

[16]

Next,
    the appellants submit that the panel lost jurisdiction since a members
    appointment term expired before the hearing on the merits commenced.

[17]

We
    disagree. In our view, this courts decision in
Piller v. Assn. of Ontario
    Land
Surveyors
, 160 O.A.C. 333 is dispositive of that submission.
Section
    4.3 of the
Statutory Powers Procedure Act
,
R.S.O. 1990,
    c. S.22 reads:

If the term of office of a member of a tribunal who
    has participated in a hearing expires before a decision is given, the term
    shall be deemed to continue, but only for the purpose of participating in the
    decision and for no other purpose.

Whether a hearing commences with preliminary motions,
    such that a member can be said to have participated is a question of
    statutory interpretation that is reviewable on a standard of reasonableness.
    The panels conclusion that the member could continue to sit was not
    unreasonable given this courts jurisprudence in
Piller
.

[18]

We
    find that there was no breach of natural justice by reason of the panels failure
    to hear submissions on the issue. The duty of fairness is flexible and
    variable, and depends on the circumstances of the particular case: see
Baker
    v. Minister of Citizenship and Immigration
, [1999] 2 S.C.R. 817, at para.
    22. In the present case, the terms of office of the panel members was a matter
    of public record. No complaint was made by any party regarding any panel member
    participating in the hearing. In these unique circumstances, where there was no
    objection, it was not a denial of natural justice to decline to invite
    submissions on the issue.

Disposition

[19]

The
    appeal is dismissed. The appellants shall pay the costs of the appeal and the
    motion for leave to appeal to the respondent in the all-inclusive amount of
    $20,000.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chechui v. Nieman, 2017 ONCA 911

DATE: 20171124

DOCKET: C62247

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Victoria Chechui

Applicant

(Respondent in appeal)

and

Ian Jamieson Nieman

Respondent

(Appellant)

Earl A. Cherniak, Q.C., Zohar R. Levy and Valois P.
    Ambrosino, for the appellant

Harold Niman and Chloe van Wirdum, for the respondent

Heard: May 8, 2017

On appeal
    from the orders of Justice Kenneth G. Hood of the Superior Court of Justice,
    dated May 12, 2016 and July 25, 2016, with reasons reported at 2016 ONSC 1905,
18 E.T.R. (4th) 329
and
2016 ONSC 4667
,
18 E.T.R. (4th) 348
.

COSTS ENDORSEMENT

[1]

This court released its decision in this appeal on August 28,
    2017.  In that decision, the court awarded the appellant, Ian Jamieson Nieman,
    part of his agreed costs of the appeal, fixed in the total amount of $12,500,
    inclusive of disbursements and all applicable taxes.  Further, the court
    invited the parties to make written submissions regarding the $180,000 costs
    award made by the application judge in favour of the respondent, Victoria
    Chechui:
Chechui v.
    Nieman
, 2017 ONCA 669.

[2]

The court has now received and reviewed the parties submissions
    concerning that costs award.

[3]

The appellant overstates his success before this court.  Contrary
    to his contention, he achieved only partial success on the appeal.  In light of
    the disputed issues on appeal and this courts rulings on those issues, we
    conclude that the respondent remains entitled to her costs of the application
    although some reduction in the quantum of those costs is appropriate.

[4]

Having considered the parties submissions, the principles
    governing the awarding of costs, the matters at issue on the application, the
    application judges findings concerning the parties conduct of the litigation,
    and the outcome on appeal, we conclude that a reduction of 25 per cent in the
    quantum of the costs of the application awarded to the respondent is both fair
    and justified.  This results in a revised award of costs of the application to
    the respondent in the sum of $135,000 and we so order.

[5]

The appellant also submits that he is entitled to his costs of
    his motion for a stay of the application judges decision pending appeal, in
    the amount of $31,881.47.

[6]

We disagree.  First, the costs claimed by the appellant are
    almost three times the amount of the respondents costs for defending the same
    motion.  In our view, they are excessive.

[7]

Second, the appellants motion was not limited to the requested
    stay order.  He also sought a contempt order and other relief, including
    financial penalties, against the respondent.  Eventually, his motion and the
    respondents cross-motion (for dismissal of the appellants motion) were
    resolved on consent.

[8]

In these circumstances, we agree with the respondent that no
    award of costs of the motion is appropriate or warranted.

[9]

In the result, therefore, the respondents award of costs for her
    costs of the application are reduced to the total sum of $135,000.  We make no
    award of costs for the stay/contempt motion.

G.R. Strathy C.J.O.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Clark v. 1682211 Ontario Inc.
    (Sports Café Champions),

2017 ONCA 851

DATE: 20171106

DOCKET: C63628

Sharpe, Rouleau and Fairburn JJ.A.

BETWEEN

David Clark

Plaintiff (Appellant)

and

Sports Café Champions a.k.a. 1682211 Ontario Inc.

Defendant (Respondent)

David Clark, acting in person

John Philpott, for the respondent

Heard and released orally: November 1, 2017

On appeal from the order of Justice F.I. Myers of the Superior
    Court of Justice, dated December 21, 2016.

REASONS FOR DECISION

[1]

The appellant appeals a r. 2.1 order dismissing his claim as frivolous,
    vexatious and an abuse of process. He also asks this court to note the
    respondent in default for failing to file a proper statement of defence.

[2]

We see no merit in this appeal. The r. 2.1 process was properly
    conducted. It was initiated by a letter to the registrar from the respondent,
    copied to the appellant, asking that the file be referred to a judge for
    consideration under the rule.

[3]

The appellant was notified that the court was considering making a r.
    2.1 order and given a chance to make written submissions. The motion judge
    provided thorough reasons explaining that the law offered no way to satisfy the
    appellants claim regarding the isolation he feels and negative emotional
    impact he claims he suffered as a result of a series of events that flowed from
    an incident in the respondents café where the respondent allegedly refused to
    provide ice in the drink of the appellants disabled friend.

[4]

We agree with the motion judges assessment that this claim has no hope
    of success and that this was a proper case to invoke r. 2.1.

[5]

As the action has been dismissed, there is no basis upon which we could
    strike the statement of defence or note the respondent in default.

[6]

Like the motion judge, we have sympathy for the distress the appellant
    has suffered but unfortunately the courts are not the forum in which to address
    his issues.

[7]

Accordingly, the appeal is dismissed.

[8]

Costs to the respondent fixed at $2500, inclusive of taxes and
    disbursements.

Robert J. Sharpe
    J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Colaco (Re), 2017 ONCA 869

DATE: 20171110

DOCKET: C63545

Watt, Brown and Roberts JJ.A.

IN THE MATTER OF: Kenneth Colaco

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel Medd, for the appellant Kenneth Colaco

Karen Shai, for the Ministry of the Attorney General

Michele Warner, for Centre for Addiction and Mental Health

Heard: November 3, 2017

On appeal from the disposition of the Ontario Review
    Board dated, February 6, 2017.

REASONS FOR DECISION

[1]

The appellant
appeals from the
    disposition of the Ontario Review Board, dated February 6, 2017.

[2]

The appellant raises a single issue on his appeal. He contends the Board
    erred by adding the requirement of 24-hour-a-day supervision to what he
    contends was a joint submission at the hearing recommending the inclusion of a
    supervised community accommodation condition.

[3]

We see no merit in this submission.  The hearing transcript reveals
    counsel for CAMH proposed a housing clause in which the living environment
    would replicate the features of the appellants then unit at CAMH with 24-hour
    staff supervision, locked door and staff specifically trained to address the
    appellants unique needs and risks. The appellants counsel supported CAMHs
    proposed housing clause.

[4]

Accordingly, the resulting disposition of the Board incorporating the
    requirement for 24-hour-a-day supervision did not mark a departure from the
    parties joint submission. On the contrary, it accepted their joint submission.

[5]

The appeal is dismissed.

[6]

In light of this disposition, we see no need to deal with the fresh
    evidence CAMH seeks to admit.

David
    Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Corbett v. Odorico, 2017 ONCA 887

DATE: 20171121

DOCKET: C62038

Pardu, Trotter and Paciocco JJ.A.

BETWEEN

Sarah Corbett, Scott Corbett, Sam Corbett by his
    Litigation Guardian,
Scott Corbett and William Corbett by his Litigation Guardian, Scott Corbett

Plaintiffs/Respondents

and

Eva Odorico

Defendant/Appellant

Todd J. McCarthy, Michael Switzer and Standford
    Cummings, for the appellant

Allan A. Farrer, for the respondents

Heard and released orally: November 16, 2017

On appeal from the judgment of Justice Charles T.
    Hackland of the Superior Court of Justice, dated March 22, 2016.

REASONS FOR DECISION

[1]

The appellant alleges that certain events at trial led to a miscarriage
    of justice. We do not agree. The events complained of include the following:

1.

leading questions asked by plaintiffs counsel;

2.

mention by plaintiffs counsel that defence had conducted independent
    medical examinations of the plaintiff;

3.

discussion between plaintiffs counsel and the plaintiff after
    cross-examination and before re-examination;

4.

mention that the defendant was insured;

5.

allowing a body shop manager who saw the vehicle immediately after the
    accident and who happened to be the father of the plaintiff to utter an opinion
    about the speed of the vehicle at fault, an estimate significantly lower than
    the plaintiffs own estimate of the speed of the oncoming vehicle. The trial
    judge cautioned the jury to treat this only as evidence suggesting that this
    was more than a minor fender bender.

6.

The trial judges charge excluded the possibility of a zero award of
    general damages. Defence counsel conceded that it was clear that the plaintiff
    was shaken up by the accident and indicated we dont have issue, but the fact
    that His Honour is going to suggest that zero is not appropriate. There was no
    objection to this aspect of the charge.

[2]

None of these events either individually or cumulatively approached
    anywhere near a miscarriage of justice. We see no error in the manner in which
    the trial judge handle these events.

[3]

The appellant also seeks leave to appeal the trial judges decision
    regarding costs. He alleges that the trial judge erred by failing to give
    greater weight to proportionality. There is no dispute that the hours claimed,
    the hourly rate and the disbursements expended were reasonable. The trial judge
    considered all of the relevant factors, including proportionality, a last
    minute admission of liability, the complexity of the matter, the time needed
    for the trial and the conduct of both counsel. We see no error in principle and
    leave to appeal costs is dismissed.

[4]

Appeal dismissed. Costs to the respondent in the agreed amount fixed at
    $15,000 including disbursements and HST.

G. Pardu
    J.A.

G.T.
    Trotter J.A.

David Paciocco J.A.