“Grants and bursaries constitute income for the purposes of the child support, whereas student loans do not: see Mwenda v. Madituka, 2018 ONCJ 502, at para. 69. See also Regaudie v. Thomas (2002), 2002 CanLII 49531 (ON SC), 29 R.F.L. (5th) 153 (Ont. S.C.), at para. 10 and Hergert v. Hergert, 2022 ONSC 723 (Ont. Div. Ct.), at paras. 7, 32. And see Gallagher v. Gallagher, 2012 ONSC 6321, at paras. 31-33 and G.S. v. S.S., 2017 ONCJ 384, at paras. 211-212.”
Month: October 2025
October 16, 2025 – Parental Alienation Defined
“Parental alienation has been described as “a child’s strong insistence or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship”. Parental alienation is also “the notion that the child’s decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason.” Ciarlariello v. Luele-Ciarlariello, 2014 ONSC 5097, at para. 3; and K.F.M. v K.G.T., 2023 BCSC 1347, at para. 259.
In A.M. v. C.H., 2019 ONCA 764, the Court of Appeal confirmed that parental alienation is a legal concept as opposed to a mental health diagnosis and, as such, the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.
McKinnon, J., in Fielding v. Fielding, 2013 ONSC 5102, at paras. 134-137, accepted the expert evidence that parental alienation was established if the following four criteria were present: 1) there was a prior positive relationship with the targeted parent; 2) there is an absence of abuse by the targeting parent; 3) the alienating parent uses many of the alienating strategies; and 4) the child exhibits most of the alienated child behaviours.
In paragraphs 108-109, in A.M. v. C.H., 2018 ONSC 6472, supra, Nicholson, J. set out the list of factors developed by experts to aid the court in identifying parental alienation. These factors, also known as indicators of alienation, have been cited in many cases,: L.(A.G.) v. D.(K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042 (CanLII), at para. 134 [G.(J.M.)]; Maharaj, at para. 140.”
October 15, 2025 – Is the Passage of Time a Material Change in Circumstances?
“W.G. has urged me to find that the passage of time amounts to a change of circumstances. Several appeal-level decisions have held that the mere passage of time cannot amount to a change in circumstances. (For a recent example and a good discussion on this issue, see: Townsend v. Townsend, 2023 SKCA 91.) However, this issue is nuanced and not without controversy.”
October 14, 2025 – Unconscionability & Domestic Contracts
“In Tadayon v. Mohtashami, 2015 ONCA 777, paras. 28-29, the Ontario Court of Appeal stated that unconscionability in the context of the execution of domestic contracts involves:
… circumstances of oppression, pressure, or other vulnerabilities and evidence of one party’s exploitation of such vulnerabilities during the negotiation process, with the result that the domestic contract deviates substantially from the legislation, the contract need not be enforced.
October 10, 2025 – Requests to Adjourn
“I am also mindful that the primary question on a request for adjournment is what is in the interests of justice. I note factors outlined in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752:
a. the evidence and strength of the reason for the adjournment request;
b. the history of the matter including deliberate delay or misuse of the court process; and
c. the prejudice to the party resisting the adjournment and the consequences to the requesting party.”
October 9, 2025 – Setting Aside Administrative Orders Dismissing Appeals
“The test to set aside an order administratively dismissing an appeal is set out in Sickinger v. Sickinger, 2017 ONCA 760, at paras. 13-14. The overriding consideration is the justice of the case, which entails a consideration of the merits of the appeal. Further, the court considers factors analogous to those typically considered on a motion to extend time to appeal: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the respondent.”
October 8, 2025 – Setting Aside A Court Order
“As set out by the Court of Appeal, in Zia v. Ahmad, 2021 ONCA 495, at paragraph 4, the following factors must be considered in determining whether to set aside the Order:
a) whether the moving party moved promptly, after learning of the order, to have it set aside;
b) whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;
c) whether the moving party has established an arguable case on the merits;
d) whether the moving party is acting in good faith and with “clean hands”;
e) the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and
f) whether, in the final analysis, the interests of justice favour setting aside the judgment.”
October 7, 2025 – Unsigned Agreements: Validity & Enforceability
“Based on all this jurisprudence, Sarahat argues that the statutory requirement that the separation agreement need be signed should be relaxed given that the agreement was otherwise freely negotiated between the parties’ lawyers. In her submission, the Court of Appeal, in Gallacher, has already extended Geropoulos to pre-litigation negotiations. Or I should follow Pastoor as a matter of judicial comity. See R v Sullivan, 2022 SCC 19, at para 75.
Syed responds that there’s no binding jurisprudence that extends Geropoulos to unsigned agreements made before litigation starts, and only conflicting cases from this court. The formal requirements for domestic contracts “impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements.” See Anderson v Anderson, 2023 SCC 13, at para 42. See also El Rassi-Wight, at para 19.
Justice Breithaupt Smith distinguished Pastoor in Greve v Shaw, 2022 ONSC 2598. She identified several reasons not to follow Pastoor:
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- neither section 55(1) or section 56(4) (setting aside domestic contract) mention legal advice as a prerequisite
- litigation counsel and negotiation counsel have different duties
- relaxing the formalities under section 55(1) creates uncertainty—it requires an in-depth analysis of the scope of the parties’ legal advice
- without court oversight, there may be confusion about the specific requirements of the settlement, leading to uncertainty (at para 23)
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See also Weber v Weber, 2007 CanLII 38583, at para 21 (Ont Sup Ct); Lynch v Lynch, [1994] OJ no 2065 (Prov Div) (QL); Davis v Gregory, 1990 CanLII 12280 (Ont Sup Ct); and Tanaszczuk v Tanaszczuk, 1988 CanLII 8639 (Ont Sup Ct).
At bottom, there’s no binding authority on me. Geropoulos applies to separation agreements negotiated during litigation, not before. Gallacher and El Rassi-Wight deal with witnesses. Also, both decisions expressly tie the “formality” of domestic contracts to their “execution” and proof of signing. Lindsay (Div Ct) didn’t fully consider the issue. Pastoor and Greve (and the cases referred to in those decisions and that follow them) are in conflict.
Sarahat’s argument, from a policy perspective, has much appeal. If parties retain lawyers, instruct them to settle their case, and then enter hard-fought negotiations that produce a draft agreement, it seems unfair and unwise to allow one of the parties to resile from the agreement by not signing it. To exclude pre-litigation separation agreements from the Court of Appeal’s flexible interpretation of section 55(1) in Geropoulos seems to encourage parties to sue each other, if only to have the protection of Geropoulos if they should ever settle the case.
Alternatively, maybe such a policy shouldn’t be followed in family law cases. In effect, section 55(1) operates as a “cooling-off period”. Our law often provides for parties to have “buyer’s remorse”. See e.g., Consumer Protection Act, 2002, SO 2002, c 30, Sched A, ss 28, 35, 43, 51, Condominium Act, 1998, SO 1998, c 19, s 73, and Payday Loans Act, 2008, SO 2008, c 9, s 30. The situation here is no different: parties to a domestic contract, even one intended to settle the disputes arising from their separation, can resile from the agreement until it’s signed. That may be frustrating and expensive for the counter-party. But such a rule removes any ambiguity about what the parties agreed to and reduces litigation over unsigned agreements.
In the end, there are good reasons to adopt one or the other approach. But courts must give effect to the legislature’s intention, “regardless of any reservations they might have concerning its wisdom.” Validly enacted legislation is “paramount over the common law.” See Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis 2022), at 530; Kosicki v Toronto (City), 2023 ONCA 450, at para 185.
Section 55 is unambiguous: an enforceable separation agreement, like the one the parties negotiated here, must be signed by the parties. This agreement wasn’t signed. As a result, it’s unenforceable.”
October 6, 2025 – Setting Aside a Domestic Contract: General Principles
“When a married or formerly married spouse seeks spousal support where a separation agreement provides otherwise, two (2) statutes may be implicated. The Family Law Act addresses domestic contracts as a provincial property and civil rights matter; and the Divorce Act confers authority on the court to award support as corollary relief to a divorce: Faiello v. Faiello, 2019 ONCA 710 at para 14.
A spouse seeking to set aside provisions in a separation agreement has the onus to show that the court should exercise its discretion to set aside the agreement under ss. 56(4) of the Family Law Act, which provides:
Setting aside domestic contract
(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
A material non-disclosure of financial assets, debts, or income may implicate ss. 56(4) of the Family Law Act: Carvalho v. Couto, 2023 ONSC 4975 at para 19; Virc v. Blair, 2014 ONCA 393 at para 52, LeVan v. LeVan, 2008 ONCA 505 at paras 51 and 183; Dochuk v. Dochuk, 1999 CanLII 14971 (ONSC) at para 17. However, even where a ground to set aside under ss. 56(4) is shown, the court must still decide whether it would be appropriate to do so: Faiello v. Faiello, 2019 ONCA 710 at paras 45-47.
The Divorce Act does not confer the authority to set aside an agreement per se, but a valid separation agreement is a factor for the court to consider in deciding whether to exercise its authority under s. 15.2 of the Divorce Act to award corollary spousal support:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[…]
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
The analysis in Miglin v. Miglin, 2003 SCC 24 articulates a two-stage inquiry in the face of a claim for spousal support that is inconsistent with a pre-existing agreement by the parties.
At the first stage, the court considers when the agreement was made and the circumstances in which it was negotiated and signed in determining whether there is any reason to discount it: Miglin at para 80. Where there is no reason to discount an agreement due to the conditions in which it was made, the court then considers whether the agreement substantially complies with the overall objectives of the Divorce Act by considering the agreement as a whole, bearing in mind that all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin at para 84. Where the circumstances under which the agreement was negotiated were satisfactory and the agreement when made substantially complied with the general objectives of the Divorce Act, the court is to defer to the parties’ wishes and give the agreement great weight: Miglin at para 87; Faiello at paras 45-46.
At the second stage, the court may be persuaded to give the agreement little weight if, and only if, the circumstances at the time of the application raise a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Divorce Act: Miglin at para 91; Faiello at para 47.”
October 3, 2025 – Obligation of Asset-Owner and Income-Earner
“In any family law proceeding, the owner of property and the earner of income bears the burden of establishing the value of his or her assets and the quantum of his or her income. In some cases, this obligation extends to the creation and production of a formal written expert report, including an income analysis. Tonogai v. Tonogai, 2021 ONSC 2366 at 22-25, Michi v. Michi, 2008 CarswellOnt 118 at 55, Meeser v. Meeser, 2011 ONSC 6517 at 62.”