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“The Respondent further used the affidavit as an opportunity to criticize the Applicant’s cooking, cleaning and her adequacy as the homemaker and primary caregiver of the children.  He questioned her credibility and mental health because of her delay in reporting the allegations of family violence and by bringing up allegations of her historic childhood trauma.   In my view, the Respondent’s affidavit contained many statements based upon some of the common myths and stereotypes about Applicants who make false claims of family violence to gain an advantage in family court.  The court does not dispute that this has occurred in some cases, however, a delay in reporting and/or the past behaviour of the alleged victim do not definitively prove that the allegations of family violence did not occur.  Not unlike myths and stereotypes in other types of assault cases, there is no one model or rule for how a victim of trauma and/or family violence behaves.  (See summary of myths and stereotypes about victims of trauma and sexual assault in R. v. D.R., 2022 NLCA 2 at 17-33; majority affirmed 2022 SCC 50).

Family violence, power imbalance and control issues are serious and red flags respecting safety that cannot be ignored. Recent changes to the Divorce Act, require courts to consider the impact of family violence.  Family violence is defined in section 2 (1) of the Divorce Act as follows,

“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes

(a)   Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b)   Sexual abuse;

(c)   Threats to kill or cause bodily harm to any person;

(d)   Harassment, including stalking;

(e)   The failure to provide the necessities of life;

(f)   Psychological abuse;

(g)   Financial abuse;

(h)   Threats to kill or harm an animal or damage property; and

(i)     The killing or harming of an animal or the damaging of property.

In situations of coercive controlling family violence, it is actually very common for the victim to delay reporting the allegations, because of the level of coercion and control being exerted upon them when they are in the relationship.  It is also common for their stories to have some degree of inconsistency in the details and timelines because they are recovering from the effects of prolonged stress and trauma.  In the circumstances of this case, it is my view that the delayed and/or non-reporting of the alleged abuses and the lack of sufficient evidence to lay charges, does not mean that the Applicant’s allegations and reports are untrue or that the Applicant lacks credibility.”

            Johnston v. Da Silva, 2023 ONSC 2710 (CanLII) at 12-14

“The CLRA framework specifically defines the circumstances in which one of the parents bears the burden of proof on relocation issues:  s. 39.4 (5), (6), (7), (8). K.L. spends the “vast majority” of time in the care of the respondent such that her father would arguably bear the burden of proof in demonstrating that relocation is not in his daughter’s best interest: 39.4(6). However, the current parenting schedule and residency terms are pursuant to an interim order. The child’s primary residency and the parenting arrangement are a central issue in this matter, for which there is no prior final order. Pursuant to s. 39.4(8), I accordingly find that s. 39.4(6) does not apply to require the applicant to bear the burden of proving that relocation is not in the best interests of his daughter. Pursuant to s. 39.4(7), I find that both parties have the burden of proving whether the relocation is in the best interests of K.L.”

            LaBonte v. Godin, 2023 ONSC 2767 (CanLII) at 48

“As a result, in order to fund any lump sum spousal award in the order of $300,000, the respondent husband would be required to deplete his capital assets.

However, the courts have held that, under the Divorce Act, there is no authority to support the transfer of capital assets in the guise of spousal support: Steinfeld v Koenigsberg, 2019 ONSC 5996 (S.C.J.), at para 179. While the court is entitled to take into consideration the means of the parties, including their capital assets, a party should not be required to pay spousal support out of his savings or to deplete his capital assets for that purpose: Laurain v. Clarke, 2011 ONSC 7195, 16 R.F.L. (7th) 316 (S.C.J.), at 83.”

            Casier v. Casier, 2021 ONSC 3407 (CanLII) at 101-102

“On this motion, the applicant primarily relied on the Automatic Order and on r. 8.0.1 of the Rules. During oral submissions, counsel for the applicant indicated that it would be unprecedented for the court to grant the order sought by the respondent. Both counsel indicated that there were no cases on point. The respondent, in turn, relied primarily on r. 2(2) of the Rules, which sets out the primary objective of the Rules.

In my view, there is ample authority that address situations where a threshold decision ought to be made which is binding on the court. An automatic order is governed by r. 8.0.1 of the Rules and applies to a claim for support under the Divorce Act. The addition of the automatic order to the Rules came into force in December 2021, and not surprisingly, neither party can point to a case on point. As noted by the applicant, the Automatic Order requires the respondent to provide financial disclosure pursuant to r. 13 of the Rules.

When the Application was served, the respondent would have been provided with an Automatic Disclosure order which sets out the financial disclosure required. The Automatic Order codifies the parties’ disclosure obligations at the commencement of the proceedings and applies to the person bringing a claim for the relief set out in r. 8.0.1. Such claims may be included in an issued application, an answer, motion to change a final order, or agreement under r. 15, or delivered as a response to a motion to change that contains a claim. In Manchanda v. Thethi, 2016 ONSC 3776, 131 O.R. (3d) 393, Myers J. provided a detailed and concise history of the rationale for the automatic disclosure order in family law proceedings. He noted, at para. 20:

Without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful. Without enforcement, 17 years into the piece, all of the important words recited above, written by so many experienced family law judges, amount to little more than spilled ink.

Rule 8.0.1 applies to claims made on or after February 1, 2022, respecting:

(a) decision-making responsibility or parenting time;

(b) net family property;

(c) the matrimonial home; or

(d) support.

The applicant’s claim for spousal support is under the Divorce Act, and therefore r. 8.0.1 of the Rules presumptively applies. Form 8.01 mirrors the financial disclosure obligation in r. 13.

In my view, having regard to the objective of the Rules and the nature of the information disclosed, and in the context of pending summary judgment motion to determine the validity and enforceability of the Separation Agreement and release clause, I would not order disclosure in accordance with r. 8.0.1 at this time. Let me explain.”

            Barris v. Barris, 2024 ONSC 2546 (CanLII) at 30-35

“Sections 4 and 5 of the Limitations Act, 2002 reads as follows:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.  2002, c. 24, Sched. B, s. 4.

Discovery

5 (1)  A claim is discovered on the earlier of,

            (a) the day on which the person with the claim first knew,

(i)   that the injury, loss or damage had occurred,

(ii)  that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).  2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2)  A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.  2002, c. 24, Sched. B, s. 5 (2).

Section 4 of the Limitations Act, 2002 was referred to by the Court of Appeal for Ontario in Studley v. Studley, 2022 ONCA 810 whereby the Court of Appeal acknowledged the difference between the two-year limitation period under the Limitations Act, 2002 and the 10-year limitation period pursuant to section 4 of the Real Property Limitations Act, RSO 1990, c L.15. In that case, the two-year limitation period did not apply because the claim was being made in respect of a trust interest in land.

In McConnell v. Huxtable, 2014 ONCA 86, 370 DLR (4th) 554 the Court of Appeal considered the tension between s. 4 of the Limitations Act, 2002 and s. 4 of the Real Property Limitations Act. Briefly stated, if the Limitations Act, 2002 applies, a claim for equitable relief can be statute barred.  In McConnell, the issue was that the appellant claimed an interest in land, with an alternative claim for monetary compensation.  In the end, the Court of Appeal acknowledged that it was open to the legislature to prescribe different limitation periods for unjust enrichment actions where the claim is for a proprietary remedy and that an equitable claim such as a claim for unjust enrichment is caught by s. 4 of the Limitations Act, 2002.”

            Boutin v. Lucitt, 2023 ONSC 2753 (CanLII) at 68-70

“An assessment under s. 30 is not to be ordered routinely. If the court is in a position to reasonably decide the issue without the assessment it should not be ordered. The assessment must be reasonably necessary to assist the court in determining the issues before it (Kramer v. Kramer, (2003) RFL (5^th) 381; 2003 CanLII 64318 (ON SC), [2003] CarswellOnt 1228 at para. 36, 41). A “clinical issue” is not required before an assessment order is made (Glick v. Cale, 2013 ONSC 893 at paras. 40-46). The court also must consider whether the intrusive and time-consuming nature of an assessment would outweigh its benefits (Kramer at para. 51)

The burden is on the party seeking the assessment to demonstrate that it is reasonably necessary.

In Glick, Kiteley J. outlined a non-exhaustive list of criteria to consider in determining whether an assessment is reasonably necessary, as follows:

a.   What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b.   Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

c.   Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d.   Do the parents have a mutual disregard for the other parent’s ability to parent?

e.   Do the parents blame each other for the dysfunction each describes?

f.   Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g.   Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h.   What is the age of the child at separation and at the time of the request for the assessment?

i.   Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j.   Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

k.   Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l.   What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

m.   What is the estimated cost? Do the parents have the financial resources to pay that cost?

n.   Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

o.   Is an assessment in the best interests of the child?”

            Rosen v. Rosen, 2023 ONSC 3022 (CanLII) at 6-8

“In Carey v. Laiken, 2015 SCC 17 (S.C.C.), at para. 38, the court described the requisite mental element of contempt as follows:

38      It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at ¶6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530 (Ont. C.A.) (para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at ¶6.200.

A party seeking a finding of contempt must therefore only prove that the alleged contemnor intentionally did not do what was required under the order. The absence of contumacious intent is a mitigating but not an exculpatory circumstance:  Sheppard, Re, 1976 CanLII 710 (ON CA), [1976] 67 D.L.R. (3d) 592 (Ont. C.A.), at 595-596.

In Moncur v. Plante, 2021 ONCA 462, at para. 10, the Ontario Court of Appeal set out concisely the general principles that govern the use of the court’s power to find a party in contempt for breaching a court order, as follows:

10      The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. 1. 1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
                  2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A., 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385 Ont. C.A., 25 R.F.L. (8th) 144, at paras. 18–19.
                  3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

At paras. 19 and 20, the court addressed the importance, especially in family law cases, of considering alternatives to contempt as follows:

19      I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self-represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.

20      It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.”

            Carey v. Carey, 2024 ONSC 2516 (CanLII) at 48-51

“The onus is on the Respondent to prove the value of the jewellery on the date of marriage and the date of valuation pursuant to s. 4(3) of the FLA because the jewellery is in her possession: Pulitano v. Pulitano, 2010 ONCA 64.

As observed by the Court of Appeal in Pulitano, that onus might be discharged by the owner spouse’s testimony of the estimated value (absent credible contrary evidence): at para. 5.”

            Merchant v. Amir Ali, 2024 ONSC 2522 (CanLII) at 44-45

“The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate. The amendments to the Children’s Law Reform Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of a child, the court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well being: s.24(2).

The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

a.   There must be evidence of historical communication between the parents and appropriate communication between them.

b.   Joint custody cannot be ordered in the hope that it will improve communication.

c.   Just because both parents are fit does not mean that joint custody should be ordered.

d.   The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

e.   No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f.   The younger the child, the more important communication is.

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (CA).

Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child.  A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ).  The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop 2009 CanLII 6423 (ON SC).

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 CanLii 19764 (ON SC).

A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody.  The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.

Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.”

            Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 81-87

“Well aware that Geropoulos involved settlement negotiations in the midst of active litigation, and thus that he was extending an existing principle, [in Pastoor v. Pastoor, 2007 CarswellOnt 4661 (Ont. S.C.J.) Justice Perrell] His Honour wrote: “it is arguable that what Robins, J.A. was saying … is that the formalities of s. 55(1) of the Family Law Act are not necessary when a settlement is negotiated freely and properly entered into with lawyer’s advice whether or not there was pending litigation.” His Honour went on to quote extensively from Scherer v. Paletta a well-known decision of the Court of Appeal addressing the ability of retained counsel to compromise a client’s position in reaching a binding settlement of active personal injury litigation.

For clarity, Justice Perell was being asked to cure the absence of the signature of one party and a witness on a half-signed domestic contract. His Honour did so on the basis that the terms of settlement had been negotiated freely and with the benefit of legal advice. I am being asked to extend that judicial involvement even further. I am being asked to deem an exchange of correspondence between counsel, pre-litigation, to be a valid and enforceable domestic contract. I conclude that I cannot do so for the following reasons:

a. Statutory Construction

A first principle of statutory construction is the presumption that the parliamentary body enacting the legislation crafted its language carefully.

Section 55(1) of the Family Law Act is clearly exclusive in nature. It provides three requirements that must be met in order for a document to be a “domestic contract.” The three requirements are that the document be in writing, signed by the parties and witnessed. In the absence of these three requirements, the document is not a domestic contract.

Further, section 56(4) sets out three situations in which a domestic contract may be set aside:

56.  (4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Notably, there is no mention of legal advice being a necessary prerequisite to the existence of a contract or of its absence being a trigger for the setting aside of a domestic contract.

b.  Scope of Retainer – Negotiation vs. Litigation

There is an important distinction between the involvement of counsel retained to negotiate pre-litigation and counsel retained to conduct litigation. This distinction is evident in the rules of court in all areas of practice. Litigation counsel are served with court documents and regularly attend court in the absence of their clients. This is true even in serious criminal matters, where a Designation of Counsel form may be filed with the Court under section 650.01 of the Criminal Code of Canada which alleviates the need for the accused to be present at all court appearances.

c.  Requirement of Legal Advice

In my view, relaxing the Family Law Act formalities to deem an exchange of pre-litigation correspondence to be a domestic contract as a result of the availability of legal advice actually exacerbates the uncertainty in family litigation. The foundation upon which such a principle would be based – the availability of legal advice – is unstable. Questions come to mind such as:

(1) What does “legal advice” look like, exactly? Is there a demarcation point compelling the announcement of the involvement of the advising lawyers if parties are otherwise negotiating smoothly between themselves? Do the advising lawyers have to communicate with one another in writing? Will this cause a chilling effect on the provision of “unbundled” legal services?¹²

(2) Are retainer agreements regarding the scope of pre-litigation counsel to automatically become material evidence when an alleged correspondence-based settlement is disputed? Does this mean that pre-litigation counsel must refer the client to another lawyer in every case of failed settlement negotiation lest he or she become a potential witness in the litigation?

(3) What if only one party has legal advice? What is the assessment process around the other party’s need for legal advice?

(4) What if a party’s unique vulnerabilities are not compensated for by legal advice?

(5) What if a party alleges that he or she received bad advice?

(6) Is there a strong public policy reason to add a legal advice factor to alleged settlements when Courts routinely uphold fully-compliant domestic contracts where no legal advice was obtained?

d.   General Uncertainty

Separation and divorce are characterized by uncertainty at the outset and often by a continuing absence of closure as the litigation unfolds. This can be the case even where spouses understand themselves to be bound by Court Orders, which may be appealed or subsequently altered due to a material change in circumstances. If Court oversight is not a guarantee of closure, it is essential to avoid any confusion regarding the specific requirements of pre-litigation settlement so as to allow separating spouses to move forward with their lives. To raise an exchange of correspondence to the level of a binding domestic contract, absent clear legislative authority, would be to extend judicial involvement too far and contribute to increased uncertainty in matrimonial settlement negotiations.”

            Greve v. Shaw, 2022 ONSC 2598 (CanLII) at 22-23