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

• Published date: 08 September 2020
• Law Firm: Blaney McMurtry LLP
• Author: Mr 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

CIVIL DECISIONS

Auciello v. CIBC Mortgages Inc., 2020 ONCA 553

[Lauwers, Brown and Nordheimer JJ.A.]

Counsel:

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

facts:

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.

issues:

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

holding:

Motion dismissed.

reasoning:

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.]

Counsel:

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

facts:

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...