“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.”
Category: Uncategorized
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.”
October 2, 2025 – Family Violence: Considerations & Challenges
“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.
October 1, 2025 – Consent & Vaccinations
“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.”