Court Of Appeal Summaries (September 20 ' 24, 2021)

• Published date: 28 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, 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 20, 2021. The theme this week was family law.

Congratulations to our own Ryan Kniznik for his success in Muraven v. Muraven. In that case, the Court dismissed an appeal addressing property, child support and prejudgment interest issues.

In Meloche v. Meloche, the Court was asked to answer the following question: Where a retired member spouse's pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse's estate for the balance of the retired member spouse's life? The motion judge had answered that question in the negative. However, after an exhaustive review of the relevant provisions of the Pension Benefits Act and the Family Law Act, the Court set aside that decision and answer the question in the affirmative.

In Lalonde v. Agha, the Court dismissed the appellant's appeal from the trial judge's order that the parties' religious marriage in Tennessee that was not formally valid in that state because no marriage licence was obtained, was nonetheless deemed valid in Ontario pursuant to s. 31 of the Marriage Act, and therefore that the parties were "spouses" under the Family Law Act.

In Smith v. Kane, the Court upheld the trial judge's decision that there was no breach of the standard of care of a family doctor in failing to diagnose a rare condition that resulted in the loss of the patient's leg that could have been avoided if there had been an earlier diagnosis.

In Johnson v Ontario, the Court determined that a decision to deny an extension of time to a class member to opt out of a class proceeding so that the class member could proceed with his own individual action was a final order, not an interlocutory order. The Court was of the view that the opt out right was of such importance, that the denial of that right amounted to a decision that affected substantive legal rights, and not merely procedural rights. The order dismissing the class member's motion for an extension of time to opt out of the class proceeding was therefore characterized as a final order. Ontario's motion to quash the appeal on the basis that the order was interlocutory and therefore before the wrong court was dismissed.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School.

CPPO will serve as a guide to Ontario's Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil...