Siegel's Family Court Calendar

“A relocation is more likely to be approved “where the clear primary caregiver for a child seeks to relocate and more likely to be denied if there is a shared parenting arrangement” (see: Barendregt, at para. 121).

The applicable burdens of proof on a relocation application are as follows:

a.      if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests (see: Divorce Act, s. 16.93(1));

b.      if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests (see: Divorce Act, s. 16.93(2)); and

c.      in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests (see: Divorce Act, s. 16.93(3)).

The law of statutory interpretation is well settled.  The words of a statute “are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (see: Wong v Liu, 2023 ONCA 272, at para. 19).  The appropriate interpretation is one “that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences” (see: Wong, at para. 19).”

          Tass v. Jackson, 2023 ONSC 6564 (CanLII) at 24-26

“I agree with Justice Pazaratz that “[s]upervised access is not intended to be a long-term solution to access problems”, but that it may be an appropriate intermediate step in situations where, for instance, there are substance abuse issues that need to be addressed and/or where the child is being introduced or reintroduced to a parent after a significant absence.  Izyuk v. Bilousov, 2015 ONSC 3684, at paragraphs 52-53.

At the same time, however, it must be remembered that supervised access is a short step away from complete termination of any relationship between a parent and a child, and thus it should be seen as the exception and not the norm, as a last resort and not as a knee-jerk reaction to one parent’s allegations against the other.  There is a very helpful article on the subject written by Nicholas Bala, Michael Saini and Sarah Spitz, found at 2016-085 of the December 2016 edition of the Queen’s Law Research Paper Series, titled Supervised Access as a Stepping Stone Rather Than a Destination: A Qualitative Review of Ontario Services & Policies for Assisting Families Transitioning from Supervised Access, 2016 CanLIIDocs 4597.”

          T.E. v. G.E., 2021 ONSC 7661 (CanLII) at 8-9

“I note that the onus is on the payor-spouse to justify a deviation from the s. 16 method of determining income: see Fung v. Lin, 2001 CanLII 28193 (ON SC), [2001] O.J. No. 456 (S.C.).

The case law confirms that this issue is factually driven and determined by what is appropriate in the particular circumstances of the case.

In Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7^th) 311, at para. 97, the Court of Appeal for Ontario, for instance, held that RRSP income is presumptively part of a spouse’s income for child support purposes, since RRSP income is included in “total income” on the T1 General form.

At paras. 103-104, J. Simmons J.A. notes as follows:

[103] The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.

[104] Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father’s first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four-bedroom house should not deprive his children of an available source of child support.

In Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7^th) 17, the Court of Appeal upheld the exclusion of RRSP withdrawals where, in the Court’s discretion, it was considered appropriate in the circumstances not to include them. In that case, the withdrawals were found to be “non-repeating encroachments on capital” that were used by the payor to fund the costly litigation and not to enhance the payor’s lifestyle: at para. 24.

In Kotyck v. Kotyck, 2017 ONSC 7261, the Court considered whether the $57,261 the payor received from the collapse of his United States 401(K), the equivalent to a Canadian RRSP, should be included in his income.  The court noted that RRSP income is presumptively part of a parent’s income for child support purposes and no exception for withdrawals has been provided in Schedule III of the Guidelines.  Justice Hood found that the payor had not demonstrated any unfairness in including the equivalent of the RRSP withdrawal in his income: at para. 9.

In Knight v. Frobel, 2018 ONSC 3651 (Ont. Div. Ct.), the Divisional Court upheld the trial judge’s decision to include a severance payment in the calculation of the payor’s income for a given year.

In MacDonald v. MacDonald, 1997 ABCA 409, 57 Alta. L.R. (3d) 195, the Court of Appeal overturned the trial judge’s decision when the trial judge found that bonuses, stock options and a severance package were property, rather than income.  They said that a bonus is considered income for tax purposes and that if any bonus had previously been received by the payor, the Court would look upon it as income for purposes of calculating child support under the Guidelines: at para. 15. The Court of Appeal also found that a severance package was an acceleration of income and a direct income replacement, so it should be added to any other income the payor earns during the period, at para. 17.

In Molitor v. Andreou, [2005] O.J. No. 3815 (S.C.), Mr. Justice Clark found, at para. 7, that a payor does not have the right to forego readily available income to the prejudice of his or her child in terms of reduced support and the Court imputed income to the payor, when he made such a deferral.  This Court, in that instance, also included in income for purposes of calculating child support, a one-time payment of USD $353,288, which was a payment settling a collusion claim: at para. 9.”

            Ramezani v. Najafi, 2021 ONSC 7638 (CanLII) at 249-257

“In A.M. v. C.H., 2019 ONCA 764, the Ontario Court of Appeal confirmed that the court has jurisdiction to make therapeutic orders, which includes reconciliation therapy. Therein, the court noted:

(a) The Health Care and Consent Act is not a controlling factor when a judge decides whether to make a therapeutic order in a parenting case (para. 47).

(b) Judges have broad authority under sections 16(a) and 16(2) of the Divorce Act and sections 28(1)(a),(b), and (c) of the Children’s Law Reform Act to make orders for counselling or therapy (paras. 49-51).

(c) Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests (para. 65).

(d) Notwithstanding the court’s jurisdiction to order therapy, in the case of mature adolescents, a tension exists between their strong claims to autonomy and the duty of the court to act protectively. The ‘best interests’ standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making. Their wishes should carry greater weight as their maturity increases, and scrutiny of their maturity level should intensify in relation to the severity of the potential consequences of the treatment or its refusal (paras. 66-68)

(e) There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case (paras. 72-74).

In determining whether the court should make an order for reconciliation counselling, the following principles are applicable:

(a) Such orders are to be made sparingly.

(b) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?

(c) Is the cause for the family dysfunction (whether alienation, alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?

(d) There must be compelling evidence that the therapy will be beneficial to the child.

(e) The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is to be expected.

(f) Are the parents likely to meaningfully engage in counselling despite their initial resistance to the making of the order? Will a strong judicial recommendation compel participation and cooperation by the recalcitrant parent?

(g) Is the child likely to voluntarily engage in counselling therapy?

(h) Resistance to therapy is an important factor but is not the determining factor whether such an order should be made.

(i)  Where a clinical investigation or assessment is underway, no order should be made pending their conclusion.

(j)  Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

See: Testani v. Haughton, 2016 ONSC 5827 at para. 18;  Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 69.

This list of considerations overlaps significantly and not surprisingly with the best interests factors outlined at section 24(3) of the CLRA.”

            B.J. v. D.M., 2023 ONCJ 515 (CanLII) at 38-40

“It is not the role of appellate courts to second-guess the weight assigned the items of evidence by the trier: Housen v. Nikolaisen, 2002 SCC 33, para. 23.  In particular, the fact that an alternative factual finding could be reached based on a different ascription of weight by an appellate court does not mean that a palpable and overriding error has been made: Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33.  It is the trier of fact’s discretion to determine what areas of the evidence should be included in their reasons.  The trier is not obliged to reconcile every frailty in the evidence: R. v. Channani, 2020 ONSC 7168, para. 30.  Failure to mention some aspects of the evidence does not constitute an error, if the trier has grappled with the substance of the live issues. R. v. T.C., 2020 ONCA 469 para. 25.

Okafor v. College of Physicians and Surgeons of Ontario, 2023 ONSC 6332 (CanLII) at 36

“The Supreme Court of Canada summarized as follows the principles applicable to a “purchase money resulting trust” in Nishi v. Rascal Trucking Ltd., 2013 SCC 33 at paras. 1-2 (“Nishi”):

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property.  Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution.  This is called the presumption of resulting trust.

The presumption can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title.  While rebutting the presumption requires evidence of the intention of the person who advanced the funds at the time of the advance, after the fact evidence can be admitted so long as the trier of fact is careful to consider the possibility of self-serving changes in intention over time.  [Emphasis in the original.]

When there is no evidence of a gratuitous transfer, the presumption of resulting trust does not apply: see Gill v. Gill, 2022 ONSC 4610 at para. 33.

As stated above, if the presumption of resulting trust applies, it can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title. There is a gift at law when the evidence demonstrates that, at the time of the transfer, the transferor intended the transferee to hold the beneficial interest in the property being purchased: see Nishi at para. 37.  A contribution to the purchase price without any intention to impose conditions or requirements is a legal gift: see Nishi at para. 31.

The courts have developed a list of relevant factors to consider when determining whether advances from parents to children constitute a loan or a gift.  The following factors have been identified:

a.    whether there are any contemporaneous documents evidencing a loan;

b.    whether the manner of repayment is specified;

c.    whether there is security held for the loan;

d.    whether there are advances to one child and not others, or advances of unequal amounts to various children;

e.    whether there has been any demand for payment before the separation of the parties;

f.     whether there has been any partial repayment; and

g    whether there was any expectation, or likelihood, of repayment.

See Locke v. Locke, 2000 BCSC 1300 at para. 20 and Chao v. Chao, 2017 ONCA 701 at para. 54.”

          Gomes v. Da Silva, 2023 ONSC 6392 (CanLII) at 108-111

“Subrule 24(1) creates a presumption of costs in favour of the successful party. There are two schools of thought regarding the appropriate approach to determination of a litigant’s success.  Some judges have held that settlement offers are the yardstick by which success at trial should be measured: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), at para. 7.  Others have held that success should be measured by comparing the outcome at trial with the relief sought by the parties in the litigation, rather than with the terms of any offers: Lazare v Heitner, 2018 ONSC 4861, at para. 16; Guo v. Li, Li and Zhang, 2020 ONSC 2435, at para. 17.  I agree with the latter approach.

Success should be measured by comparing the positions of the parties on the issues litigated with the orders made.  For the reasons articulated by my colleague Kurz, J. in DeSantis v. Hood, 2021 ONSC 5496, at paras. 40 to 53, I find that offers to settle are not a factor in the determination of success in a proceeding.  As will be explained below, settlement offers are nevertheless an important consideration in assessing both liability for costs and quantum of costs.”

          Saroli v. Saroli, 2021 ONSC 7491 (CanLII) at 7-8

“Based on my review of the caselaw, I conclude that principles including the following must guide this court’s determination of whether an individual may be qualified as a “participant expert” in a family law proceeding:

Under Rule 20.2

a.   A witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence without complying with the requirements of Rule 20.2 where the opinion is given based on the witness’s observation or on participation in the events at issue and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events (Westerhof v Gee Estate, 2015 ONCA 206 at 60; Imeson v. Maryvale(Maryvale Adolescent and Family Services), 2018 ONCA 888 [“Imeson”] at 62; Hoang v Vicentini, 2016 ONCA 723 at 28; and Girao v. Cunningham, 2020 ONCA 260 [“Girao”] at 41.

b.   A party does not “engage” an expert to provide opinion evidence simply by calling the expert to testify about an opinion he or she has already formed. Westerhofat 83. The question is not on which party’s behalf the witness testifies, but whether the opinion was formed for the purpose of litigation. Attorney General (Ontario) v 855 Darby Road, Welland, et al, 2017 ONSC 4953 at 29.

c.   Participant experts do not testify because they are being paid a fee to provide an expert’s report as contemplated by Rule 20.2. Rather, they testify because they were involved in underlying events and have generally documented their opinions in notes or summaries made at or about the time of their involvement.

d.   As a corollary, the opinionof a participant expert is not formed for the purpose of the litigation. The opinion is formed in the ordinary exercise of the professional’s duties.

e.   There is a distinction between “treatment opinions”, which involve making a diagnosis, formulating a treatment plan and making a prognosis, and opinions for the purpose of assisting the court at trial, and “litigation opinions”, which are based on consideration of information from a variety of sources for the purpose of assisting the court at trial. Westerhof, at 72.

f.   Where participant experts are permitted to testify, typically the opinions sought to be introduced are found in the clinician’s notes and records or in reports prepared for the purpose of consultation. Imeson, at 61. This does not mean that the proposed participant expert may testify about anythingin his or her reports. Imeson at 75. Particular caution must be exercised regarding opinion evidence going to the question of causation. Imeson at 90, 100; Westerhof at 115.

g.   While there is no longer a general rule barring opinion evidence on the “ultimate issue”, the court must apply the criteria of necessity and cost-benefit in relation to evidence dealing with the ultimate issue. Hoangat 62.

h.   Once admitted, the scope of the evidence of a participant expert is limited to his or her observation of or participation in the subject matter in issue in the litigation, and his or her roles and involvement. He or she may also testify to the opinions that went to the exercise of his or her judgment. This is because the opinions are formed while participating in events and as part of the ordinary exercise of expertise.  Roher v The Queen, 2017 TCC 55 at 33 and 42 citing Westerhofat 67-70. See also Davies v The Corporation of the Municipality of Clarington, 2016 ONSC 1079 at 36 and 37.

i.   Because a participant expert’s opinion is restricted to his or her “observation of or participation in the events at issue”, broader evidence about others “as a group”, will go beyond the scope of the permissible evidence, as it is not based on that observation of participation in or treatment of the individual(s) in question (Imeson, at 74). In Imeson, for example, the mental health clinician was found to have strayed outside the permissible scope as a participant expert he testified as to the “problems typical of survivors of childhood sexual abuse” as opposed to about Mr. Imeson, specifically. See para. 74. In that event, a participant expert’s exemption from the requirements of Rule 20.2(2) is lost. The court must take great care to ensure that opinion evidence exceeding that scope is not elicited by counsel or accepted by the court (Imeson 7,at 58);

j.   The evidence of treating physicians, pediatricians, and therapists is often found to be admissible as participant expertise. See for example: CCAS of Toronto v. T.T.L. and S.S., 2019 ONCJ 530 at 285, 286 (mother’s psychotherapist permitted to testify as participant expert, as to observations, mother’s diagnosis, prognosis, mother’s mental health and ability to parent); J.K.L.D. v.  W.J.A. 2020 ONCJ 335 at 91(report of mother’s physician admitted as that of a participant expert); CAS of Toronto v S.M.T., 2018 ONCJ 540 (children’s pediatrician found to be a participant expert, not being a “puppet” or hired gun of the Society.” See para 91). See also Marchand v. The Public General Hospital Society of Chatham(2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 as quoted in Westerhof). Such evidence is often admitted without challenge “because these witnesses are essentially ‘witnesses of fact’ to the extent that they testify to the facts of their involvement, as well as ‘opinions that went into the exercise of their judgment’.” Roher at 29, 30.

k.   It is notthe case that any physician or therapist retained or engaged by a children’s aid Society can be qualified only as a litigation expert. Where the evidence of such proffered witnesses is relevant and reliable and within his or her expertise, and where the individual was not retained for the purpose of litigation but rather to provide treatment or services to the child (or, I would add, to a parent), that person may be qualified as a participant expert. See Jewish Child and Family Service v K.S., 2015 ONCJ 246 at 154, 155.  That parents participate in assessments provided by Society-retained physicians or psychologists to provide background information may also be relevant (see para 157).

Gatekeeping under White Burgess

l.   The court retains its gatekeeper function in relation to opinion evidence of participant experts. Therefore, even where a person meets the definition of a participant expert under the Family Law Rules, the court could exclude all or part of the opinion of a participant expert or rule that all or part of such evidence is not admissible. (Westerhof, at 64)

m.   White Burgess Langille Inman v Abbott and Haliburton Co,2015 SCC 23 [“White Burgess”] establishes a two-part framework for the admissibility of expert evidence. That framework applies both in the context of litigation experts as well as participant experts. See Westerhof (para 64), Imeson at 64; Hoang at 31; Girao at 39.

n.   In summary, the White Burgessframework can be set out as follows:

i.   First Stage, Determination of threshold admissibility: a consideration of whether the evidence is:

1. 1. 1. 1. 1. 1. 1. 1. 1. 1. Logically relevant
                           2. Necessary to assist the trier of fact
                           3. Not subject to any other exclusionary rule
                           4. The expert must be properly qualified, including the requirement that he or she be willing and able to provide evidence that is impartial, independent, and unbiased;
                           5. In the case of novel or contested science, the underlying science must be reliable.

ii.    Second Stage: The judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. At this stage the judge considers:

1. 1. 1. 1. 1. 1. 1. 1. 1. 1.       Legal relevance
                           2.       Necessity
                           3.       Reliability
                           4.       Absence of bias
                           5.       Consumption of time and cost.

See White Burgess at 24.

o.   “Properly qualified” in the context of a proposed participant expert, does notrequire the execution of a certificate of expert’s duty as would be required of a litigation expert. Westerhof at 81.

p.   In considering whether there is an absence of bias, the issue is the nature and extent of the proposed expert’s connection with the litigation. The question is whether the relationship results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan, objective assistance. White Burgess at 48, 50.

q.   It will be “quite rare” for the court to exclude evidence at the first stage of White Burgessdue to lack of impartiality based on professional relationship between the proposed expert and the party. Anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not lead to its exclusion but would instead go to weight. White Burgess at 49.

r.   The court’s role as a gatekeeper does not end with granting permission to the proposed expert to testify. The gatekeeping role continues throughout the testimony of the proffered expert, and the court must be vigilant at all times to consider the importance of guarding against the dangers of inappropriate opinion evidence.”

Children’s Aid Society of the Niagara Region, 2021 ONSC 8582 (CanLII) at 26

“The motion judge concluded that there was no evidence of a trust of any sort (express, resulting, or constructive) with respect to either property. In any event, he also concluded that Rosetta lacked standing to pursue the trust claims against Lisa. He dismissed Rosetta’s claims against Lisa.

The motion judge adopted the reasoning in Morris v. Nicolaidis, 2021 ONSC 2957, at para. 38, where McGee J. states:

A claim that a third person holds property in trust for a non-titled spouse, or that a non-titled spouse has a beneficial interest in property, or a monetary claim arising from the acquisition, maintenance or use of that property can only arise from the personal, direct deprivation of the non-titled spouse. An equalization claim is, at best, an indirect legal interest. It is therefore insufficient to confer standing to a person to make a trust claim on behalf of a non-titled spouse or former spouse.

…

In my view, Morris accurately sets out the law. A person does not have standing to advance a trust claim on behalf of a former spouse for equalization purposes. In so concluding, I adopt the reasoning of McGee J. in Morris, at paras. 32-33 and 36-40:

At the heart of this motion is an interesting question. Can a person advance a trust claim on behalf of a former spouse in order to increase that spouse’s net family property and consequently, benefit the person’s claim for, or defense to an equalization payment?

A claim for a constructive trust is a claim in equity that is privately held. It is not a public interest claim. The common law principle relating to private interest standing states that “one cannot sue upon an interest that one does not have.” (Watson, McKay & McGowan, Ontario Civil Procedure, at §11 Standing to Sue).

…

Can an equalization claim create a direct personal legal interest that confers standing to make a trust claim on behalf of a spouse or a former spouse?

I find that it cannot. An equalization payment cannot change the titled or beneficial ownership of property between spouses. The equalization scheme in Ontario is not based upon a division of property, but rather, it recognizes a spouse’s non-financial contributions to a marriage by equalizing the increase in value in each party’s net family property between the date of marriage and the date of separation, subject to variation per section 5(6) of the Family Law Act.

A claim that a third person holds property in trust for a non-titled spouse, or that a non-titled spouse has a beneficial interest in property, or a monetary claim arising from the acquisition, maintenance or use of that property can only arise from the personal, direct deprivation of the non-titled spouse. An equalization claim is, at best, an indirect legal interest. It is therefore insufficient to confer standing to a person to make a trust claim on behalf of a non-titled spouse or former spouse.

Even trust claims between married persons are exceptional because “[i]n the vast majority of cases any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act,” see Martin v. Sansome, [2014 ONCA 14, 118 O.R. (3d) 522, at para. 64.] Writing for a unanimous court, Justice Hoy envisions in Martin, supra, that it will be a rare case in which monetary damages for unjust enrichment cannot be adequately addressed by an equalization payment; and in those cases, a variation of share per section 5(6) of the Family Law Act, should be invoked before consideration of a trust claim.

Although not in evidence here, there may be a situation in which a meritorious trust claim is not advanced by a non-titled spouse. In such a case, the other spouse cannot step into the non-titled spouse’s shoes and advance the claim himself because he has no direct personal legal interest in the trust claim; but he could seek to vary the equalization between he and the non-titled spouse if the resulting payment is found to be unconscionable per section 5(6) of the Family Law Act.

In summary, a non-titled spouse cannot assert a trust claim against a third party on behalf of a spouse for equalization purposes.”

          Karatzoglou v. Commisso, 2023 ONCA 738 (CanLII) at 9-10, 24-25

“Within Ms. Cobbina’s helpful summary of the relevant law applying to s. 56(4) and attempts to set aside domestic agreements (virtually all of which is apt and most of which I will not repeat here), she cites McGee J.’s insightful and helpful summary of the principles guiding the analysis in Harnett v. Harnett, 2014 ONSC 359 (at paras 87-94).

Citing various authorities, Her Honour notes:

(a)   As a general rule, courts will uphold the terms of a valid enforceable domestic contract;

(b)   It is desirable that parties settle their own affairs…and courts are generally loathe to set aside domestic contracts;

(c)   Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure;

(d)   A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement;

(e)   The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger… says that the court will step in to “protect him, not against his own folly or carelessness, but against being taken advantage of by those in a position to do so because of their position”;

(f)   The court must not look at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability;

(g)   The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties;

(h)   The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the courts discretion in favour of setting aside the contract. It is a discretionary exercise.”

Singh v. Khalill, 2023 ONSC 6324 (CanLII) at 57-58