Court Of Appeal Summaries (September 13 ' 17, 2021)

• Published date: 21 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Family Law, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the Court of Appeal for Ontario for the week of September 13, 2021.

In a very lengthy child custody/abduction/relocation case, N. v. F., the Court upheld the trial judge's decision to order that the parties' children be returned to Dubai, as Ontario did not have jurisdiction to deal with the custody issues. It was felt that on the balance of probabilities, the children's best interests would be served by their return to Dubai, so that a court there could adjudicate the matters of custody, access, and guardianship. The Court confirmed that significant deference must be paid to family law decisions, and given the absence of a legal error or a palpable and overriding error of fact or mixed fact and law, the Court should not interfere. Lauwers J.A. dissented.

Other topics covered this week included leave to appeal a bankruptcy matter (denied), agreements of purchase and sale of land, a dispute over rights of way over a Toronto property that dated back to the early 1900's, and the quashing of an appeal because the order appealed from was interlocutory.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

N. v. F., 2021 ONCA 614

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Fresh Evidence, Standard of Review, Constitutional Law, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 22, 23 and 40, Canadian Charter of Rights and Freedoms, s. 2(a), 6(1), 7 and 15, Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, Palmer v. The Queen, [1980] 1 S.C.R. 759, H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, leave to appeal refused, [2016] S.C.C.A. No. 63, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, Canadian Western Bank v. Alberta, 2007 SCC 22, Office of the Children's Lawyer v. Balev, 2018 SCC 16, McKee v. McKee, [1950] S.C.R. 700, rev'd [1951] 2 D.L.R. 657 (P.C.), R. v. S. (S.), [1990] 2 S.C.R. 254, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Geliedan v. Rawdah, 2020 ONCA 254, Thomson v. Thomson, [1994] 3 S.C.R. 551, M.A.A. v. D.E.M.E., 2020 ONCA 486, leave to appeal refused, [2020] S.C.C.A. No. 402, Bolla v. Swart, 2017 ONSC 1488, Fraser v. Canada (Attorney General), 2020 SCC 28, Parsons v. Styger (1989), 67 O.R. (2d) 1 (H.C.), aff'd (1989), 67 O.R. (2d) 11 (C.A), J.P.B. v. C.B., 2016 ONCA 996, Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47.

James Henry Ting (Re), 2021 ONCA 622

Keywords: Bankruptcy and Insolvency, Civil Procedure, Orders, Enforcement, Contempt, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C 1985, c. B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 386, Rule 31(2), Rules of Civil Procedure, Rule 61.03.1 , Business Development Bank of Canada v. Pine Tree Resorts Inc, 2013 ONCA 282, Carey v. Laiken, 2015 SCC 17, Susin v. Susin, 2014 ONCA 733.

Forest Meadows Developments Inc. v. Shahrasebi, 2021 ONCA 620

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of land, Representation, Reliance, Breach of Contract, Anticipatory Breach, Termination of Contract, Standard of Review, Deference, Finding of Fact, Costs.

Yekrangian v. Boys, 2021 ONCA 629

Keywords: Real Property, Easements, Rights of Way, Abandonment, Palmer v. The Queen, [1980] 1 S.C.R. 759, Owners Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.)' Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, Gale on Easements, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), Tasker v. Badgerow, [2007] O.J. No. 2487 (S.C.J.), Overs v. ten Kortenaar (2006), 46 R.P.R. (4th) 118 (Ont. Sup. Ct.)

Pinder v. Biggar, 2021 ONCA 623

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Garnishment Hearings

Short Civil Decisions

Gefen v. Gaertner, 2021 ONCA 631

Keywords: Civil Procedure, Appeals, Costs, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161

South Beach Street Development Ltd. v. US Income Partners LLP, 2021 ONCA 624

Keywords: Civil Procedure, Settlements

CIVIL DECISIONS

N. v. F., 2021 ONCA 614

[Lauwers, Hourigan and Brown JJ.A.]

COUNSEL:

F. L. Jamal, F. Yehia and E. C. Conway, for the Appellant

B. R.G. Smith, L. Love-Forester and A. Lokan, for the Respondent

E. Garfin and H. Evans, for the intervener Attorney General of Ontario

C. E. Tempesta and S. Scott, for the intervener Office of the Children's Lawyer

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Fresh Evidence, Standard of Review, Constitutional Law, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 22, 23 and 40, Canadian Charter of Rights and Freedoms, s. 2(a), 6(1), 7 and 15, Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, Palmer v. The Queen, [1980] 1 S.C.R. 759, H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, leave to appeal refused, [2016] S.C.C.A. No. 63, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, Canadian Western Bank v. Alberta, 2007 SCC 22, Office of the Children's Lawyer v. Balev, 2018 SCC 16, McKee v. McKee, [1950] S.C.R. 700, rev'd [1951] 2 D.L.R. 657 (P.C.), R. v. S. (S.), [1990] 2 S.C.R. 254, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Geliedan v. Rawdah, 2020 ONCA 254, Thomson v. Thomson, [1994] 3 S.C.R. 551, M.A.A. v. D.E.M.E., 2020 ONCA 486, leave to appeal refused, [2020] S.C.C.A. No. 402, Bolla v. Swart, 2017 ONSC 1488, Fraser v. Canada (Attorney General), 2020 SCC 28, Parsons v. Styger (1989), 67 O.R. (2d) 1 (H.C.), aff'd (1989), 67 O.R. (2d) 11 (C.A), J.P.B. v. C.B., 2016 ONCA 996, Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

FACTS:

In the decision under appeal, the trial judge held that Ontario did not have jurisdiction to deal with the case under ss. 22 or 23 of the Children's Law Reform Act ("CLRA") and ordered the parties' children be returned to the United Arab Emirates ("UAE"). After an 11-day trial, the trial judge found that the respondent was "significantly more credible" than the appellant, and disbelieved many of the appellant's claims about why the children should remain in Ontario. He concluded that, on the balance of probabilities, the children's best interests would be served by their return to Dubai, so that a court there could adjudicate the matters of custody, access, and guardianship.

The appellant is a Canadian citizen, and the respondent is a Pakistani national. The parties married in February...