Author: dawi

“The motion judge reasoned that summary judgment was available to dismiss the appellant’s claims largely because the limitation period for equalization claims set in the FLA had long expired.

Section 2(8) of the FLA provides:

The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

Each of the requirements must be met as a pre-condition to granting the relief: Vivier v. Vivier, 1987 CanLII 8339 (ON SC), 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The “relief” is not the extension of time but the relief claimed under the FLA such as equalization: Scherer v. Scherer (2002), 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (Ont. C.A.), at para. 16. In determining whether “apparent grounds for relief” exist, the court may make a limited inquiry into the merits of the proposed claim. The question to be answered is “[b]ut for the limitation period that acts as a bar, are there apparent grounds to support the claim?”: see Werth v. Werth, 2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay that has been incurred in good faith. The “good faith” requirement requires the applicant for an extension to show that they acted “honestly and with no ulterior motive”: Hart v. Hart (1990), 1990 CanLII 12268 (ON SC), 27 R.F.L. (3d) 419 (Ont. U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer substantial prejudice by reason of the delay. The mere showing of prejudice is not sufficient; rather, it must be demonstrated that the prejudice will be substantial. Generally, the length of time occasioned by the delay is a factor, along with the extent to which the responding party has rearranged their financial affairs: see e.g., Douthwaite v. Douthwaite (1997), 1997 CanLII 24487 (ON SC), 32 R.F.L. (4th) 90 (Ont. Gen. Div.).”

          Hevey v. Hevey, 2021 ONCA 740 (CanLII) at 38-40

“Rule 37.2 of the Family Law Rules applies to international child abduction cases. This rule came into force in October 2022.

Rule 37.2(2) states:

For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.

Subrule 2(2)-2(4) of the Family Law Rules addresses the primary objectives of the Rules, lists ways to deal with cases justly, and sets out the Court’s duty to promote the primary objectives.

Rule 37.2(3) requires international child abduction cases to be disposed of promptly, and if Article 11 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”) applies, no later than six weeks after the case is commenced.

The Court noted in O.M. v. S.K., 2020 ONSC 3611, at paras. 12-13:

The granting or refusing of an adjournment is a discretionary act.  As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC) at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors.  These factors include:

• • • • • • •     the overall objective of a determination of the matter on its substantive merits;
            •    the principles of natural justice;
            •    the need for justice not only to be done but appear to be done;
            •      the circumstances of the request for an adjournment and the reasons and justification for the request;
            •         the practical consequences of an adjournment on both substantive and procedural justice;
            •        the competing interests of the parties in advancing or delaying the progress of the litigation;
            •         any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
            •         whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
            •         the need of the administration of justice to process proceedings in an orderly fashion; and
            •         the need of the administration of justice to effectively enforce court orders.

When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.

In Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, (2009) 96 O.R. (3d) 138, at para. 37, the Court of Appeal for Ontario provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:

         …

A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.

In a case involving the Hague Convention, Leigh v. Rubio, 2022 ONCA 582, the Court of Appeal addressed the requirement to act expeditiously in the conduct of an application and hearing, stating at para. 20:

Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues.”

          Aldahleh v. Zayed, 2023 ONSC 5920 (CanLII) at 11-18

“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. (5^th) 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.”

          Jankowski v. Santos, 2023 ONSC 5730 (CanLII) at 110

“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.”

            Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII) at 31-34

“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.”

          W.G. v. K.G., 2024 ONSC 5716 (CanLII) at 31

“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.

Gorman v. Sadja, 2020 ONSC 6192 (CanLII) at 48

“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.”

Gomes v. Gomes, 2024 ONSC 5729 (CanLII) at 24

“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.”

            Hoffelner v. Whiteley, 2024 ONCA 753 (CanLII) at 10

“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.”

Carino v. Mazzaferro, 2024 ONSC 5609 (CanLII) at 16

“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:

• • • • •                  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)

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.”

          Zunnurain v. Chowdhury, 2024 ONSC 5552 (CanLII) at 48-55