Written by: Naa Lansana with Collaboration of Stefania Rotundu

Fielding v Fielding, 2024 ONCA 807: Lessons Learned

On October 29, 2024, the Ontario Court of Appeal dismissed an appeal in what was described as a “high conflict family proceeding.” ¹In upholding the trial judge’s decisions regarding the termination of spousal support, the Court imparted important lessons for litigants in family law matters.

The case involved Craig Fielding, the Respondent, and Victoria Fielding, the Applicant, who married in June 1993 and separated in December 2010. They had three adult children. At the time of their marriage, both were practicing physicians—Craig was a plastic surgeon with a private practice, and Victoria was a urologist. However, in 2007, Victoria left her medical practice due to degenerative eye problems and began receiving long-term disability benefits. By the time of their divorce order in April 2014, Victoria had received a substantial equalization payment.

The case was particularly complicated because of lengthy litigation. In 2013, there had been a 15-day trial regarding parenting issues. In 2014, there had been a 10-day trial over financial issues. In 2015, the Applicant brought unsuccessful appeals of her two trial decisions. In 2018, there was an 11-day trial in respect of Craig’s first Motion to Change. This appeal arose out of another Motion to Change brought by the Respondent aimed at terminating his child support and spousal support obligations because he had retired. Meanwhile, the Appellant sought to double her spousal support payments owing to her disability benefits ending and claimed she should continue receiving child support until her youngest child completed her graduate degree in 2023. The trial judge concluded that the Respondent’s decision to retire effective December 31, 2021, was reasonable. The trial judge also held that the Applicant was entitled to receive child support for her youngest child until August 31, 2023.

The Applicant challenged the trial judge’s decision on 24 grounds. The Court of Appeal distilled these into three main arguments and ultimately dismissed the appeal, finding it lacked merit. In particular, the Court upheld the motion judge’s finding that the Respondent’s retirement was reasonable, noting that the Applicant had been given several months’ notice of his plans. As such, among other things, the motion judge’s decision to end the Respondent’s spousal support was also found to be reasonable. The Court of Appeal found no “palpable and overriding error in fact or error in principle”2. Finally, the Court of Appeal denied the Applicant’s leave to appeal the motion judge’s costs award and awarded costs to the Respondent in the amount of $30,000.00.

The Court’s decision in Fielding v Fielding highlights three important lessons for litigants in family law proceedings:
1. Ensure Your Claims Have Merit: Litigants should carefully assess whether their spousal support claims are meritorious. The Court will dismiss appeals that lack sufficient grounds.
2. Deference to Trial Judges: The Court of Appeal will generally defer to trial judges and will not reweigh the evidence or retry the case. Absent palpable errors in fact or law, appellate courts will give considerable weight to the trial judge’s findings.
3. Beware of Costs in Frivolous Appeals: If litigants bring spousal support proceedings with no merits, they should beware of incurring additional costs.

Ultimately, Fielding v Fielding serves as a cautionary tale for litigious parties, reinforcing, inter alia, the importance of reasonable claims and awareness of the potential financial consequences of meritless spousal support appeals.

¹ Fielding v Fielding, 2024 ONCA 807 at para 1.
Ibid at para 6.

Written by: Sara Bahadori 

The Canadian government has announced new changes to the Temporary Foreign Worker Program (TFWP), set to take effect in two phases on October 28, 2024, and November 8, 2024. These reforms are designed to enhance the integrity of the program and ensure that employers who rely on foreign talent adhere to stricter requirements. For employers, foreign workers, and the broader Canadian labour market, these changes could have significant implications.

Effective October 28, 2024: New Business Legitimacy Requirements

Starting October 28, 2024, employers using the TFWP will face new standards to prove the legitimacy of their business operations. Previously, businesses could submit attestations from accountants or lawyers to demonstrate their legitimacy. However, under the new rules, such attestations will no longer be accepted.

Instead, the government will rely on information-sharing agreements with provincial and territorial authorities, as well as existing employer registries, to verify whether a business is legitimate. This change is part of an effort to reduce misuse of the TFWP, prevent fraud, and ensure that only genuine employers with valid job offers are able to access foreign labour through the program.

For employers, this means increased scrutiny and a higher burden of proof to demonstrate compliance with the program requirements.

Effective November 8, 2024: Higher Wage Thresholds for the High-Wage Stream

As of November 8, 2024, employers seeking to hire foreign workers through the TFWP’s high-wage stream will need to offer significantly higher wages. The new wage requirement will mandate that employers pay foreign workers at least 20% higher than the current median wage in the relevant province or territory.

This change represents an hourly wage increase of between $5 and $8 per hour, depending on the region, and is aimed at ensuring that foreign workers in high-wage jobs are compensated more competitively to prioritize the hiring of domestic workers. Jobs that fall below this wage threshold will be reclassified under the low-wage stream, which comes with increased employer responsibilities related to housing, transportation, and the recruitment of workers already in Canada.

Employers relying on foreign talent should prepare for these new requirements to remain eligible under the TFWP and continue accessing the foreign labour necessary to meet their business needs.

Written by: Naa Lansana

Case Comment – Moran v Moran, 2023 ONSC 6832

Disclosure is a fundamental requirement underpinning determination of family law matters. Where disclosure is incomplete or missing, it makes the resolution of oft difficult matters gravely challenging. As articulated by the court in Cunha v. Cunha1.

Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done2.

However, one litigant learned that it matters how that disclosure is obtained. In Moran v Moran3, the Applicant decided to take matters into her hands with serious negative consequences for her. This case serves as a reminder, that while the need for financial disclosure in family law is crucial, it does not trump the requirement to adhere to confidentiality and privilege considerations.

In this case, the Applicant wife and Respondent husband (the “Parties”) were married for 25 years and separated in 2020. The Parties’ matter was before the court with both seeking various relief. Among that being sought by the Applicant was that the Respondent respond to outstanding disclosure.

The Applicant, however, made the decision to advance the matter by resorting to unauthorized securing of the disclosure without the Respondent’s consent. Despite being separated and living apart, the Applicant entered the matrimonial home, where the Respondent had de facto exclusive possession (as the Applicant had moved out), and surreptitiously made copies of the Respondent’s private computer files, documents, email and text correspondence.

The Respondent subsequently went on a motion to compel the Applicant to produce all computers she utilized in downloading the Respondent’s information. This was so that a third-party forensic investigator could undertake a comprehensive audit of all materials obtained by the Applicant, inclusive of those she viewed, erased, removed and/or passed on to her legal team.

The court ruled that the forensic audit is necessary to determine precisely the materials that were accessed by the Applicant. There was no dispute as to whether she had indeed surreptitiously obtained the materials at hand, as by her own admission during questioning, the Applicant had obtained the materials from the Respondent’s computer two years after the Parties separated. The Respondent’s expectation was that his confidential information kept on his computer in the home he had been residing in since March 2021 would be out of bounds. However, a number of those confidential materials found their way to his Questioning, put to him by the Applicant’s counsel. As well, the Applicant attached a selection with her materials filed with the court. Despite the Applicant indicating that she did not read any materials that would be classified as being solicitor-client privileged, her answers during Questioning belied that assertion.

Ultimately, Justice Kraft ordered, among other relief, that the Applicant hand over her devices used in extracting the Respondent’s electronic materials to a third-party expert for a forensic audit, that she provide the identity and contact information for any third-party who was in receipt of the surreptitiously obtained information, and that she pay the upfront cost of the audit subject to reapportionment during trial.

The Applicant’s rationale for surreptitiously accessing the Respondent’s information was that the latter had evaded his financial disclosure obligations. The Applicant is quoted as stating, “[b]ut for me accessing this information, I would have had no other way of proving it.”4

The Applicant took an ill-advised risk in an attempt to tackle the lack of financial disclosure in her family law matter. Whether or not she was correct in her assessment that her method was the only viable way to obtain the disclosure, she discovered, by the court’s ruling, that more important than the provision of financial disclosure, is how that disclosure is obtained and brought to the attention of the court in the first place.

—
1 1994 CarswellBC 509.
2 Ibid at para 9.
3 2023 ONSC 6832.
4 Ibid at para 10 (f).

What is a breach of contract?

A breach of a contract occurs when one or more of the agreed upon terms and/or conditions of a binding contract or agreement is broken or unfulfilled by one or more of the contracting parties. Anything from a late payment to a more significant infraction, such as failure or omission to perform a specific action or duty, may constitute a breach.

 

Conditions vs. Warranties:

A contract will typically list the specific provisions that are needed to be completed in order to abide by an agreed upon contract. The terms contained within an agreement or contract can be separated into two categories: conditions and warranties. Depending on whether the breach is deemed to be a violation or breach of a condition or of a warranty, there will be different remedies available to the non-breaching party:

Conditions are the terms of the contract which outline the required actions or steps that the contracting parties must do to fulfill their end of the contract. They are the fundamental provisions that form the basis of the binding contract. There are express and implied conditions typically present in a contract, which may have legally enforceable time limits stipulated. Upon the breach of a condition, the non-breaching party can claim damages as a result of the breach, and can choose whether or not to terminate the contract entirely.

Example: For instance, a seller’s condition for selling their automobile may be that the ownership transfer date must take place on November 30. In this case, if the condition is breached in the sense that the buyer has entered a contract to purchase the automobile and transfer the ownership to their name on November 30, but then is unable or unwilling to take legal ownership of the automobile on November 30, then the seller may consider the buyer to have breached a material condition and has the option to back out from completing the deal. On the other hand, the seller may still want to complete the deal, and can still do so while also making a claim to recover damages from the buyer after the fact.

 

Warranties act as guarantees that can be written into contacts to ensure the quality, condition, quantity or nature of the goods or services included in the contract so that parties and consumers are protected by way of a genuine assurance and indemnity with regards to an assertion of quality within the transaction. Similarly to conditions, there are express and implied warranties present in contracts, both of which are legally binding and considered to be a further set of rules in addition to the conditions of the contract. Warranties may or may not be provided for with a time limit on the quality of the goods or services contained within the contract. A warranty typically will provide for a specific remedy such as repair or replacement in the event the goods or services fails to meet the warranty provided. A breach of warranty is often not enough to terminate a contract entirely. Upon the breach of a warranty, the non-breaching party is permitted to rely on the warranty and can take legal action to seek legal remedy, such as claiming a refund or damages as a result of the breach. Contrary to a breach of condition, the non-breaching party will nevertheless be required to uphold their end of the contract, even if the other party to the contract has breached a warranty.

Example: In the case of the sale of a used car, a seller’s guarantee or warranty to a buyer may be that the vehicle will be in good and working mechanical condition for at least 1 year after the purchase date. Should the vehicle’s gearbox break down soon after the buyer has driven away from the car lot or within the 1 year stipulated in the warranty and no repair or replacement has been provided, the buyer may be entitled to seek damages from the seller for breach of warranty. However, the buyer cannot go back on the deal and return the car to the seller demanding to refund the consideration that was exchanged as per the contract.

One of the trickiest part of interpreting contracts can be determining whether a breach was significant enough to materially deprive the innocent contracting party of what they would have otherwise had if there was no breach, especially when the conditions and warranties contained in a contract are difficult to differentiate. The circumstances and the way the contract is interpreted will often determine whether a violation of a warranty or condition constitutes a breach of contract.

 

Remedies:

Damages: A monetary judgment for damages is the default remedy for an innocent or non-breaching party when there is a breach of the contract. Damages are typically awarded on the basis of compensation in a reasonable amount that aims to consolidate the non-breaching party’s interests in terms of their expectations, reliance and overall benefit relied on in the contract. In this way, it aims to place non-breaching parties in the same position as they would be if the contract had been performed. These compensatory damages are assessed using a complicated and fact-based approach and might include lost earnings, interest, and/or additional costs needed to complete the contract. Damages can be awarded for loss of enjoyment, peace of mind, and mental anguish if they stem from the breach, in addition to strictly compensating the plaintiff for the defendant’s breach of the contract. Depending on the breaching party’s conduct and behaviour throughout the duration of the contract, punitive damages may also be granted to the non-breaching party.

Additional remedies include injunctions or specific performance, which refers to a court order which could either require the breaching party to uphold its contractual duties by action or omission, or to prohibit a breaching party from continuing to breach the contract.

Specific performance:  A non-breaching party may ask the court for an order for performance under the contract instead of, or in addition to, being awarded damages. This remedy is offered where the non-breaching party in a claim would not be sufficiently compensated by awarding damages alone. For example, if the seller of a particular piece of land fails to complete the deal with the buyer and the buyer’s development project cannot be replaced or compensated for, the court may require the seller to uphold the contract and transfer ownership of the land to the buyer.

Injunction: A non-breaching party may ask the court for an order for an injunction, as opposed to specific performance, in order to prevent the breaching party from committing or omitting to commit an act which would cause violation and breach of contract. For example, when a non-compete clause is included in an employment contract and it has been breached by an employee, an injunction might be the most appropriate remedy as it does not require proof of damages, but instead askes the court to uphold the non-complete clause and forces the employee to leave the new employer.

 

1. Stephen Ben-Ishai & David R. Percy, Contracts: Cases and Commentaries, 10th ed. (Toronto: Carswell, 2018).
2. UpCounsel, What is Warranty and Condition in Contract law? online : UpCounsel <https://www.upcounsel.com/warranty-and-condition-in-contract-law>

 

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.

How does a landlord properly vacate existing tenants? Under what circumstances? What about
when the landlord is selling the property and the new owners want vacant possession?

Under the Residential Tenancies Act, a landlord is allowed to terminate a tenancy “for cause”.
For cause reasons refer to actions taken by the tenant that give landlords the right to end their
agreement. Common examples of this are when the tenant fails to pay rent in full, causes damage
to the property, or engages in illegal activity in the rental property.

A landlord may also vacate existing tenants if an agreement is reached between the parties to
terminate the tenancy before the lease is finished. It is best to get this agreement in writing, and
Form N11 from the Landlord and Tenant Board can be used for this purpose. The tenancy end
date should be specified on the form, and the tenant will have to vacate the rental unit by that
date.

Another way a landlord may vacate existing tenants is through “no-fault” reasons. No-fault
reasons generally refer to the landlord’s use of their property. These include when:

1. The landlord wants to carry out major renovations or repairs;
2. The landlord wants their rental unit back for their own use or for the use of their
   immediate family. Immediate family includes children, spouse, or parents;
3. The landlord is selling the property and the new owners want vacant possession.

If a landlord is selling the property and new owners wish for vacant possession, it must be
because they wish to use the property for themselves or immediate family. The landlord must
provide the current tenants with 60 days’ notice. The landlord must fill out the appropriate form
from the Landlord and Tenant Board. In the case that the property is being sold, the appropriate
notice would be Form N12, “Notice to End your Tenancy Because the Landlord, Purchaser or a
Family Member Requires the Rental Unit”. If a tenant is served with an N12 notice, they must be
paid one month’s rent in compensation or offered another unit if possible. This requirement must
be completed by the termination date on the notice. Additionally, once a tenant is given the N12
notice, they can choose to terminate their tenancy at an earlier date by giving 10 days written
notice in response. This is the N9 form “Tenants Notice to End the Tenancy”

If a landlord decides to end a tenancy agreement for any of the reasons listed above, they must
give the tenant a notice of termination. After serving the notice, the landlord should apply to the
Board for an eviction order within 30 days of the termination date on the N12 notice given to the
tenant. It should also include a Certificate of Service, which proves that you gave the N12 notice
to your tenant, as well as a declaration from the person who will be making personal use of the
unit. The declaration must show that the person requires the rental unit in good faith.
If a former tenant believes that the notice was given in bad faith, they can file with the Board and
can claim general compensation worth up to 12 months’ rent if conditions for bad faith are
proven.

Sources:
https://tribunalsontario.ca/ltb/
https://www.ontario.ca/laws/statute/06r17#BK83

 

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.

Congratulations to MUNERA’s Litigation department for successfully arguing at the Ontario Court of Appeal, in favour of Ontario’s jurisdiction on a matter involving out-of-province parties doing business in Ontario.

GIAO Consultants Ltd. v. 7779534 Canada Inc. et al, 2020 ONCA 778

Toronto Star Article about MUNERA’s latest positive outcome at the Federal Court of Canada addressing the unreasonableness of IRCC in assessing Humanitarian and Compassionate Grounds in a permanent residence application under the Live-In Caregiver Program.

Judge rips immigration officials who blamed a Toronto nanny for their mistakes — then said losing her would help kids’ emotional ‘growth’