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“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

“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.”

          McPherson v. McPherson, 2023 ONSC 5643 (CanLII) at 28-34

“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.”

          Sundberg v. Sundberg, 2023 ONSC 5518 (CanLII) at 4(g)

“I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22).  The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)).  Family violence is broadly defined in s. 2(1) of the Divorce Act as 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.  In the case of a child, family violence includes the direct or indirect exposure to such conduct.

Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse.  Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence.  For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

a) Making numerous unsubstantiated allegations against the other party;

b) Unilaterally changing court-ordered parenting time terms without justification; and,

c) Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (A.B. v. M.G.C., 2022 ONSC 7207, at para. 184).

Assessing the credibility of family violence allegations presents significant challenges.  Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179      The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3795 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180      Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage.

These challenges are multiplied when the court is required to assess the veracity of family violence allegations in the context of interim motions based on untested written evidence in the form of affidavits, the content of which – let’s be frank – is often extensively reviewed and tailored by counsel to meet the needs of the case.

          Piaskoski v. Piaskoski, 2024 ONSC 5474 (CanLII) at 23-26

“As a matter of law, the mother’s consent is not necessary for the children to be vaccinated if they so choose.

Section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (HCCA) does not provide any minimum age for capacity to make medical treatment decisions. It provides:

Capacity

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

Toronto Public Health, citing the HCCA, takes the position that youth age 12-17 do not require their parent or legal guardian’s consent to receive the COVID-19 vaccine if the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine, why it is being recommended and what will happen if they accept of refuse the vaccine.

This is consistent with the position taken by the Ontario Ministry of Health. The Ministry of Health’s COVID-19 Vaccine Youth (Age 12-17) Consent Form does not require a parent or legal guardian’s signature or consent (although this option is provided). The Ontario Ministry of Health website states:

COVID-19 vaccines are only provided if informed consent is received from the person to be vaccinated, including those aged 12 to 17, and as long as you have the capacity to make this decision. … Even if you are able to provide informed consent, it would be a good idea to talk about this decision with your parent/guardian or an adult you trust such as your principal or a teacher.

The Court does not, of course, simply defer to the government’s interpretation of the HCCA.

That said, I agree with this interpretation. While medical decision making is an incident of parental custody, if the minor is a “mature minor” and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health are provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine.

In Gegus v. Bilodeau, 2020 ONSC 2242, Fowler Byrne J. considered the impact of the HCCA on the parents’ custodial right to consent to medical treatment. She stated, at paras. 48 – 51:

The HCCA requires the consent of a patient to any treatment. There are no age restrictions set forth in the Act. The sole determining factor is whether the party receiving the treatment consents to it…

Accordingly, if the health practitioner believes the child has the capacity to consent to his treatment, they will abide by the child’s wishes. If, on the other hand, the health practitioner determines the child is not capable of consenting, s. 20 [of the HCCA] outlines who may give consent on behalf of the child…

Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children’s Law Reform Act.

This view of a “mature minor’s” capacity to consent to medical treatment is also consistent with the common law in this area. In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, Abella J.’s majority decision explained the common law “mature minor” doctrine, at para. 47:

The latitude accorded to adults at common law to decide their own medical treatment had historically narrowed dramatically when applied to children.  However the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law “mature minor” doctrine… The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment.  It provides instead that the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

While the Ontario legislation does not use the words “mature minor”, s. 4 of the HCCA effectively incorporates certain aspects of this doctrine into the scheme of the Act. The Supreme Court’s decision in A.C. contains a thorough discussion of this doctrine, and the complexity of its application in particular cases.”

            A.C. v. L.L., 2021 ONSC 6530 (CanLII) at 34-42

“An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment:  Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.J. No. 36, 44 R.F.L. (3d) 329 (S.C.C.).

The common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships.  The remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing will not be presumed. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief: Kerr v. Baranow, [2011] S.C.J. No. 10, 2011 SCC 10.

In Martin v. Sansome, 2014 ONCA 14, the Court of Appeal for Ontario summarized the Supreme Court of Canada’s decision in Kerr v. Baranow as follows:

1. 1. 1. 1. 1.    The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-service approach.
            2.    Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
            3.    To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
            4.    Whether there was a joint family venture is a question of fact and may be assessed by having regard to all the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

In this way, the framework established in Kerr requires the court to ask the following questions:

i)              Have the elements of unjust enrichment-enrichment and a corresponding deprivation in the absence of a juristic reason-been made out?

ii)            If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?

iii)         If the answer to this second question is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis? and,

iv)      If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

A spousal relationship is not a legal prerequisite to finding a joint family venture: Derakhshan v. Narula, 2019 ONCA 742.

The absence of a juristic reason for the enrichment in question is a necessary prerequisite to any finding of unjust enrichment:  Chechui v. Nieman, 2017 ONCA 669.”

Washington v. Cesarini, 2022 ONSC 5574 (CanLII) at 18-22

“While more readily identified in criminal proceeding, the rule in Browne v. Dunn is equally applicable to family law trials.  Some examples of its application can be found in Liu v. Huang, 2020 ONCA 450 at para. 13-25 and Alajalian v. Alajajian, 2019 ONSC 4678 at para. 17.

The rule can be summarized as follows.  If a party intends to impeach a witness called by the opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence:  Browne v. Dunn, 1893 CanLII 65, at pp. 70-71; R. v. Quansah, 2014 ONCA 237 at para. 75.

The rule in Browne v. Dunn is a rule that ensures trial fairness. It ensures fairness to the witness whose credibility is attacked, fairness to the party whose witness is impeached, and fairness to the trier of fact. With respect to the last principle, it ensures that the trier of fact will not be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict:  Quansah, para. 77.

As stated in Evidence in Family Law, by Harold Niman, at para. 7:15

If you intend to challenge the credibility of a witness you must put the disputed facts or documents to them in cross examination or run the risk of the ancient but still applied rule in Browne v. Dunne.

This is based upon the principle of fairness, so that every relevant witness shall have an opportunity to address important facts or documents. You are not permitted to “blindside” the other side of a case by remaining silent about an important and relevant fact or document which you intend to introduce in your part of the trial and thus rely upon as part of your own case. This is obvious if the “hidden” fact or document relates to credibility, but just as applicable to any other relevant portion of the case.

In this case, a number of violations have been admitted.  In these cases, I have the discretion to decide the remedy to be afforded for the breach.   The remedy should depend on a number of factors and the circumstances of the case.  These factors include the seriousness of the breach, the context of the breach, the timing of the objection, the position of the offending party, any request to recall a witness, and the availability of that witness for recall: Quansah, at para. 117.

In a family law proceeding, two remedies are available.  First, I could consider the breach of the rule when assessing a witness’ credibility and deciding the weight to attach to that witnesses’ evidence. Alternatively, I could allow counsel to recall the witness whose evidence was impeached without notice and allow them to give evidence on these narrow issues:  Curley v. Taafe, 2019 ONCA 368 at para. 31.”

            De Longte v. De Longte, 2023 ONSC 5512 (CanLII) at 9-14

“Ms. Shalaby submits that she was under undue influence and duress when she signed the Agreement, as well as that its terms were unconscionable.

In Berdette v. Berdette, 1991 CanLII 7061 (ON CA), 1991 CarswellOnt 280 (Ont. C.A.), Galligan J.A. set out the test for undue influence:

I adopt the definition of undue influence found in the judgment of Henry J. in Brooks v. Alker (1975), 1975 CanLII 423 (ON SC), 22 R.F.L. 260, 9 O.R. (2d) 409, 60 D.L.R. (3d) 577 (H.C.), at p. 416 [O.R., p. 266 R.F.L.]. There undue influence was defined as the “unconscientious use by one person of power possessed by him over another in order to induce the other to” do something.

[Emphasis added]

Finlayson J.A., speaking for the majority of this Court in Stott v. Merit Investment Corp. (1988), 1998 CanLII 192 (ON CA), 19 C.C.E.L. 68 said that in order for pressure to amount to duress it must be “‘a coercion of the will’, or it must place the party to whom the pressure is directed in such a position as to have ‘no realistic alternative'” but to submit to it.

[Emphasis added]

In Turk, Kitely J., at para. 93, accepted the Newfoundland and Labrador Supreme Court’s definition of duress from Keough v. Keough [2005] N.J. No. 327:

Duress is said to occur where there is such pressure placed on one of the parties that any consent by that party is not sufficient to uphold the agreement. There exists an absence of choice which in effect vitiates any ability to lawfully consent. However, duress sufficient to void an agreement does not arise based only upon a lack of will to proceed but rather it must be based upon a resolution on the part of the submitting party that there is no other practical choice but to perform the act in question. Duress can be established based upon actual or threatened violence or upon economic consideration.”

Shalaby v. Nafei, 2022 ONSC 5615 (CanLII) at 64-67

“Disparity between two spouses’ incomes, in and of itself, does not create an entitlement to spousal support (Lee v. Lee, 2014 BCCA 383; Berger v. Berger, 2016 ONCA 884).”

          Malone v. Cappon, 2023 ONSC 5365 (CanLII) at 21

“In my view, a marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was non-deliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married.”

            Lalonde v. Agha, 2021 ONCA 651 (CanLII) at 44