Court Of Appeal Summaries (August 31 ' September 4, 2020)

Published date08 September 2020
Subject MatterFinance and Banking, Litigation, Mediation & Arbitration, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Family Law, Court Procedure, Trials & Appeals & Compensation
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good morning.

There were four substantive decisions of the Court of Appeal last week.

Two were family law decisions. In Climans v. Latner the Court confirmed that parties can be "spouses" for the purposes of spousal support under the Family Law Act even if they keep separate residences. The trial judge ordered over $50,000 per month in support for an indefinite period, having found that the "Rule of 65" applied. The Court of Appeal agreed that there was an entitled to support, but disagreed that the Rule of 65 applied based on the trial judge's findings of fact. Accordingly, it reduced the duration of support from indefinite to ten years.

One decision related to a deceased's intentions as to whether a loan made to her daughter would be forgiven upon her death or repayable to her estate. The other decision was a motion for leave to appeal a costs order arising out of litigation relating to a mortgage financing that did not materialize.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email


Auciello v. CIBC Mortgages Inc., 2020 ONCA 553

[Lauwers, Brown and Nordheimer JJ.A.]


VA, acting in person

Onofrio Ferlisi, for the responding party CIBC Mortgages Inc.

Amanda Jackson, for the responding party Home Trust Company

Keywords: Civil Procedure, Leave to Appeal Costs, Adjournments, Colistro v. Tbaytel, 2019 ONCA 197 Carroll v. McEwan, 2018 ONCA 902, McNaughton Automotive Limited v. Co-operators General Insurance Company 2008 ONCA 597, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9


The moving party sought leave to appeal the costs order in the court below following a motion for summary judgment in a dispute regarding a failed mortgage financing.


1. Should this motion be adjourned?
2. Should leave to appeal the costs order be granted?


Motion dismissed.


1. No.

2. No. The test for leave to appeal an order as to costs is stringent. Leave to appeal will not be granted save in obvious cases where the party seeking leave convinces the court there are strong grounds upon which the court could find that the judge erred in exercising his discretion. This approach is consistent with the principle that a court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.

The moving party's original submission to the court below that the responding parties' requests were just too high is a submission losing parties often make, but the costs decision is conventional in its expression and the amounts awarded in light of the amount at issue are not obviously disproportionate. The moving party pointed to no error in principle or in fact that influenced the result.

The moving party submitted that the delay in and of itself caused him an injustice. However, initiating the machinery of the civil justice system as he did does not come cost free to those who do so. Nothing in this case proceeded with alacrity. The request for the mortgage refinancing was made in January 2010. The lawsuit was started in January 2012. An Amended, Fresh as Amended Statement of Claim was served in May 2016, and the summary judgment motion was argued and decided in April 2017. The appeal was argued and decided in April 2018. When the motion judge's oversight in not issuing the costs decision was brought to her attention in June 2019, she decided it in October 2019. Then came this motion for leave. While the delay in the motion judge's costs decision is regrettable, that does not, of itself, raise strong grounds upon which the Court could find that the motion judge erred in exercising her discretion.

Climans v. Latner, 2020 ONCA 554

[Gillese, Brown and Paciocco JJ.A.]


Chris G. Paliare and Andrew K. Lokan, for the appellant

Bryan R.G. Smith and Jennifer Cook, for the respondent

Keywords: Family Law, Definition of "Spouse", Definition of "Cohabit", "The Rule of 65", Civil Procedure, Costs, Divided Success, Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1), 29, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 133(b), Family Law Rules, O. Reg. 114/99, Rule 24, Spousal Support Advisory Guidelines, s. 7, Djekic v. Zai, 2015 ONCA 25, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), Campbell v. Szoke (2006), 45 R.F.L. (5th) 261, at para. 51. She observed that in M. v. H., [1999] 2 S.C.R. 3, Stephen v. Stawecki (2006), 32 R.F.L. (6th) 282 (Ont. C.A.), Stajduhar v. Wolfe, 2017 ONSC 4954, aff'd 2018 ONCA 256, leave to appeal refused, [2018] S.C.C.A. No. 431, Beaver v. Hill, 2018 ONCA 840, Tadayon v. Mohtashami, 2015 ONCA 777, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82, St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9


The respondent and the appellant were in a romantic relationship from October 2001 to May 2015, a period of almost 14 years. Throughout their relationship, they maintained separate homes in Toronto where each resided. They never married or moved in together. Both had children from previous marriages. The appellant was very wealthy. Early in their relationship, the appellant told the respondent that he would not marry her or live with her unless she first signed a domestic contract. At times, he prepared draft contracts and presented them to her but no such contract was ever signed. During their relationship, the respondent and the appellant lived together in July and August at the appellant's Muskoka cottage. They spent weekends in Florida in the winter months. Sometimes, they spent March break week in Florida. The parties also vacationed together. Beginning early in their relationship, the appellant supported the respondent financially. During their relationship, he provided her and her children with a lavish lifestyle. The parties' personal and social lives were closely interwoven and they presented as a couple in public.

When their relationship ended, the respondent brought an action in the Superior Court of Justice, asking that she be recognized as the appellant's spouse and that he be required to pay her spousal support. The appellant resisted the claim, arguing that while they had had a romantic relationship, as they had never married or cohabited, the respondent was not his spouse.

Following an eight-day trial, the parties were declared to be spouses within the meaning of s. 29 of the Family Law Act ("FLA"). The appellant was ordered to pay the respondent spousal support of $53,077 per month, commencing January 1, 2019, for an indefinite duration on the basis of the "Rule of 65".

As the successful party at trial, the respondent was found to be entitled to costs on a substantial indemnity basis in the amount of $324,179. The trial judge ordered costs on a substantial indemnity basis for two reasons. First, she viewed the appellant's position that he and the respondent had not been spouses to be unreasonable. Second, she found that the appellant had not been "forthcoming" in his financial disclosure.


Did the trial judge err in:

  1. concluding that the parties met the definition of "spouse" in s. 29 of the FLA;
  2. concluding that the parties began cohabiting in the first five months of their relationship so as to meet the Rule of 65; and
  3. awarding the respondent costs on a substantial indemnity basis?


Appeal allowed in part.


1. No. There was no basis on which to interfere with the trial judge's finding that the parties were spouses within the meaning of s. 29 of the FLA.

Pursuant to s. 29 of the FLA, the definition of "spouse" includes "either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years." Under ss. 1(1), "cohabit" means "to live together in a conjugal relationship, whether within or outside marriage."

Lack of a shared residence is not determinative of the issue of cohabitation. As the trial judge's review of the case law demonstrated, there are many cases in which courts have found cohabitation where the parties stayed together only intermittently. The trial judge recognized that cohabitation requires not only that the parties had a conjugal relationship but also that they lived together. There needs to be some element of living together under the same roof. Whether the parties lived together - despite having chosen to maintain separate residences - was a question that gave the trial judge pause. She wrestled at length with whether the intermittent periods during which the parties shared a roof - including the respondent's overnight stays, the summers at the cottage, and the time spent in Florida - could, in all the circumstances, constitute living together in a conjugal relationship. She was entitled to conclude that they did and to find cohabitation. The trial judge took into consideration both the relevant factors for a conjugal relationship and her findings of fact on the parties' relationship that led her to conclude that they had lived together. The trial judge correctly interpreted the legislation and articulated the governing legal principles in deciding whether the parties had been spouses. The Court was pointed to no errors in her factual findings, much less ones that are palpable and overriding. The appellant was asking the Court to reweigh the evidence - that is, to apply the law to the facts and come up with a different result than that of the trial judge. That was not the role of the Court. Absent reversible error, the Court must defer to the trial judge's application of the law to the facts as she found them. Since the appellant had not established a basis for appellate intervention with the trial judge's determination that the parties had been spouses, her determination must stand.

2. Yes. The trial judge erred in principle in concluding that the Rule of 65 applied. Consequently, the order for indefinite spousal support was set aside and substituted with an order requiring that spousal...

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