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“As this court has frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the clarity, or common sense, of their narrative but be unreliable because the objective facts are inconsistent with that narrative. Or a witness may be so interested in the outcome of the case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party or harmful to them. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. In Al-Sajee v. Tawfic, 2019 ONSC 3857 by Chappel J. observed that,

…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attachdifferent weight to different parts of a witness’s evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).”

         Drakes v. Lee-Drakes, 2022 ONSC 4102 (CanLII) at 27

“Whether or not Ontario has jurisdiction must be decided first; the doctrine of forum non conveniens only applies where Ontario has jurisdiction. The burden is on the party claiming jurisdiction simpliciter to establish jurisdiction. In this case, the court may assume jurisdiction if (1) the respondent attorns to the court’s jurisdiction, (2) the respondent is present and served in the jurisdiction, or (3) there is a real and substantial connection between the forum and the parties or the subject matter of the dispute.”

         Doersam v. Doersam, 2022 ONSC 4095 (CanLII) at 10

“Lawyers owe duties of care and duties of loyalty to their clients. They owe no such duties to adverse parties. Despite this, lawyers sometimes get sued by the parties they act against. For good reason, such claims are treated with scrutiny by the courts. Our adversarial system depends on the ability of lawyers to fearlessly advance their clients’ positions.

In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.

Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” : Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), at para. 16 to 18, motion to set aside administrative order dismissing appeal dismissed, [1996] O.J. No. 4812 (C.A.), leave ref’d [1996] S.C.C.A. No. 326 (husband sued lawyer who acted for his wife in divorce proceedings).

The rule against suing an adverse lawyer is authoritatively stated in The Law of Civil Procedure in Ontario:

The lawyer of record has no duty of care or liability to the opposing party for advising his client to sue or to defend the proceedings, and solicitor-and-client privilege not only protects the communications between lawyer and client, it also protects the lawyer from being sued by the opposing party under the guise of any cause of action for his or her conduct of a case.

This statement is supported by numerous authorities. A sample of reported cases is found in Appendix A. As these cases show, claims against adverse lawyers are frequently dismissed at the pleadings stage or in summary judgment motions.

There is no single settled doctrinal approach to these cases. Sometimes courts rule that they do not disclose a reasonable cause of action and sometimes that they are an abuse of process.”

         Chuvalo v. Worsoff, 2022 ONSC 4079 (CanLII) at 31-36

“In the Supreme Court of Canada judgment in The Queen v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32 (CanLII), 269 N.R. 149, 146 O.A.C. 236, 199 D.L.R. (4th) 193, 82 C.R.R. (2d) 247, 154 C.C.C. (3d) 97, 42 C.R. (5th) 1, [2001] S.C.J. No. 34, 2001 Cars­well­Ont 1702, the test for judicial notice is strict and a court may properly take judicial notice of­ facts:

	1.	so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
	2.	capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

And in The Queen v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71 (CanLII), 342 N.R. 126, 206 O.A.C. 150, 135 C.R.R. (2d) 318, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, [2005] S.C.J. No. 74, 2005 Cars­well­Ont 6824, also a Supreme Court of Canada decision, the permissible scope of judicial notice should vary according to the nature of the issue under consideration.  More stringent proof of facts that are close to the centre of the controversy is necessary.  This is distinguished from background facts at or near the periphery.  In all cases of judicial notice, the stringent test is always the starting point.  If the stringent test is not satisfied and the fact is adjudicative, it will not be judicially recognized.  If the fact is social or legislative, there are levels of notoriety and indisputability.  Outside adjudicative facts, the limits of judicial notice are somewhat elastic.”

Catholic Children’s Aid Society of Toronto v. H.(L.D.), 2008 ONCJ 783 (CanLII) at 157

“One party should not be able to prevent the other party from accessing the capital tied up in the property. Here, Mr. Haaksma should not be able to unilaterally decide that Ms. Taylor must rent while her capital is tied up in the matrimonial home.

“There is nothing in the Family Law Act to suggest that, absent consent, one spouse should have a special right to purchase the matrimonial home”: Martin v. Martin (1992), 8 O.R. (3d) 41, 1992 CanLII 7402 (C.A.). That is not to say that orders for the sale of a matrimonial home are made as a matter of course:

[A]n order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment), should not be made as a matter of course.

In this regard I find Justice McGee’s decision in Goldman v. Kudeyla, supra, instructive, at para. 18-20:

To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act.  If not, then the right to sale prevails.  If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as  Arlow v. Arlow (1990) 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811  and more recently, Kereluk v. Kereluk  2004 CanLII 34595 Ontario S.C.J.  In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.

Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course.  One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible.  At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”

         Haaksma v. Taylor, 2021 ONSC 4831 (CanLII) at 25-27

“In determining Sharon’s entitlement to interim spousal support, this Court must first consider whether the Marriage Contract is a bar to the relief sought?

The Court of Appeal has made it clear that courts should strive to uphold domestic contracts. Courts should treat the parties’ reasonable best efforts to deal with their affairs as reflected in an agreement as presumptively dispositive. This is particularly so where the agreement at issue was negotiated with independent legal advice (see Dougherty v. Dougherty, 2008 ONCA 302, paras 9-10; Butty v. Butty, 2009 ONCA 852 at para 50).

Notwithstanding the direction of the Court of Appeal, Justice Fryer notes in Balsmeier v Balsmeier that

.. there are still too many cases brought before the court wherein one party attempts to set aside an otherwise valid contract in the hopes of shaking loose a more favourable resolution from the wealthier party (2016 ONSC 3485, at para 37).

Having said that, as noted by Justice Monahan in her recent 2021 decision in Gordon v. Zuckerman,

Interim support pursuant to the Divorce Act is not necessarily barred by the waiver of spousal support in an agreement if, on the evidence filed on the motion for temporary support, there is a triable issue as to the enforceability of the waiver. This is particularly the case in circumstances where, if the enforceability of the contract were to be upheld at trial there are assets in the recipient’s name that can be used to compensate the payor for any overpayment of support (2021 ONSC 4576 at para. 19).

In their argument both counsel for Sharon and James agree that in order for Sharon to be awarded temporary spousal support in the face of the Marriage Contract, she must address the two-stage analysis stipulated by the Supreme Court of Canada in Miglin v Miglin, 2003 SCC 24 (CanLII), [2003] 1 SCR 303.

In Gordon, Justice Monahan succinctly describes the two stage Miglin analysis as follows:

Stage one requires a consideration of the circumstances in which the agreement was negotiated and executed, in order to determine whether there is any reason to discount it on that basis. This first stage also considers the substance of the agreement to determine whether its terms are in substantial compliance with the objectives of the Divorce Act.

Assuming the contract satisfies the analysis at stage one, stage two of the Miglin test considers the current circumstances of the parties to determine whether the agreement still reflects their original intentions, as well as the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act (at para. 21).

Where counsel for Sharon and James disagree, however, is the appropriate burden that Sharon must meet before an award of interim spousal support is to be granted.

Counsel for Sharon submits that she need only demonstrate on this interim motion that there is triable issue respecting:

a)  the circumstances in which the agreement was negotiated and executed;

b)  whether the Marriage Contract is in substantial compliance with the DivorceAct; or

c)  whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the DivorceAct.

In support of his submission, counsel relies on the decisions of this Court including Chaitas v. Christopoulos, 2004 CanLII 66352, LaFrance v. Charbonneau, 2011 ONSC 6462, Pate v. Pate, 2015 ONSC 2024, Schulman v. Ganz, 2015 ONSC 3254 and Gordon v. Zuckerman. In all of these decisions the Court found that the contract between the parties did not constitute a bar to an order for temporary spousal support pending trial on the basis of a triable issue as to the enforceability of the limitation on spousal support.

On the other hand, James’ counsel argues that if the two-stage analysis as set out in Miglin is to have any meaning and the direction of this province’s Court of Appeal regarding the presumptively dispositive nature of agreements is to be respected, Sharon’s burden must be significantly greater than the establishment of a triable issue.

Counsel relies on the 2005 decision of this Court in Jones v. Murray in which Justice Wood found that interim relief should be granted in the face of a separation agreement only where the moving party can successfully demonstrate:

a)  a substantial likelihood of success at trail with respect to one or more of the factors stipulated in the Miglintwo stage analysis;

b)  that the failure to grant interim relief will cause irreparable harm to the party seeking the relief; and

c)  that granting the relief will not cause harm to the other party which cannot be compensated (2005 CanLII 23318 at paras 9-10).

Counsel for James did not, however, direct me to any subsequent decision that imposed the “substantial likelihood of success” test where interim spousal or child support (as in the case of Jones) was sought in the face of a contract limiting support.

For this reason, I am not prepared to require that Sharon demonstrate a substantial likelihood that she can meet the Miglin test at trial. I prefer to follow the “triable issue” test imposed in Chaitas and consistently followed since 2004 and as recently as last year by Justice Monahan in Gordon.

Having said that, I do note that in each of the above referenced decisions where the Court applied the “triable issue” test, the Court found there was a triable issue of some significance. In both Chaitas and Gordon, for example, Justices Sachs and Monahan specifically found that there was a “serious issue” as to whether the limitation on spousal support should be set aside on the basis of the Miglin analysis (see Chaitas at para 25 and Gordon at para 30). Therefore, I am of the view that not any triable issue will open the door for interim relief to be granted in the face of an agreement limiting support but rather interim relief is to be granted in those circumstances only where there is a significant or serious issue as to whether the agreement would pass the Miglin test.”

            Hutton v. Hutton, 2022 ONSC 3918 (CanLII) at 45-58

“Rule 16 of the Family Law Rules governs summary judgment in cases other than divorce. In Hryniak v. Mauldin, 2014 SCC 77 (CanLII), [2014] 1 S.C.R. 87, the Supreme Court of Canada said the following about summary judgment:

(a) undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.  See ¶ 24; and

(b) the Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. See ¶ 43.

Pursuant to rules 16(1) and 16(4), to obtain summary judgment, the moving party must set out specific facts showing that there is no genuine issue requiring a trial.  Pursuant to rule 16(4.1), the responding party may not rest on mere allegations or denials.  He or she must set out in his or her evidence specific facts showing that there is a genuine issue for trial.  In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that have to be tried.  See Karlovic v. Karlovic, 2018 ONSC 4233 at 39.

But even if the responding party’s evidence does not establish a genuine issue for trial, the Court must still be satisfied on the evidence before it that the moving party filed has established that there is no genuine issue requiring a trial. See Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at 80.

Pursuant to rule 16(6), if the Court finds that there is no genuine issue requiring a trial of a claim or defence, then the Court shall make a final order accordingly.  There are additional fact-finding powers set out in rules 16(6.1) and 16(6.2) to which the Court may have resort under appropriate circumstances, to determine whether there is a genuine issue requiring a trial.

There is a two-step process for determining whether summary judgment should be granted.  First, the judge must determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16(6.1).   If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.  See ¶ 49 of Hryniak v. Mauldin.  As the Supreme Court said in Hryniak v. Mauldin, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute.  See ¶ 50 of Hryniak v. Mauldin.

If there appears to be a genuine issue requiring a trial, based on the record before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, and drawing inferences.  The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.  See ¶ 66 of Hryniak v. Mauldin.

If there are concerns about credibility or clarification of the evidence, then those issues can also be addressed by calling oral evidence on the motion itself. See ¶ 51 of Hryniak v. Mauldin.  This is the mini-trial procedure set out in rule 16 (6.2). This power should be employed when it allows the Court to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure.  See ¶ 63 of Hryniak v. Mauldin.”

         Lindsay v. Lindsay, 2021 ONSC 4674 (CanLII) at 25-32

“The parties agree that the general law of contracts applies in the family law context such that settlement agreements are generally enforceable where there is a meeting of the minds: Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.) (CanLII) at paras. 32-42; see also Gorman v. Gorman, 2021 ONSC 2577 (CanLII) at paras. 64-69.

Here, the Mr. Humphrey says that the Agreement should not be enforced because Mr. Williams repudiated the Agreement thereby depriving Ms. Williams of its benefit, and that Ms. Williams accepted Mr. Williams’ termination. Mr. Humphrey points to the emails as evidence that Mr. Williams repudiated the Agreement after retaining Mr. Cohen because Mr. Cohen refused to confirm the Agreement prior to the offer’s expiry on September 17th, and because a Settlement Agreement was not signed in a timely manner.

The law of repudiation is summarized by the Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 at paras. 29-32:

Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 2000 SCC 25 (CanLII), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]”

Williams v. Williams, 2022 ONSC 3867 (CanLII) at 16-18

“As explained by Justice Aston in Osmar at para 5, there is a large body of case law on the interpretation of s. 19 of the Guidelines, not all of which his consistent. Hence, judicial discretion makes the determination of income in this area more of an art than a science. This was further explained by Justice Chappel in Kinsella v. Mills, 2020 ONSC 4785, 2020 CarswellOnt 12428 at para 167:

…The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete (Valley, at para. 10). In Korman, at para 51, the Ontario Court of Appeal held that the court may impute income to a spouse in excess of their presumptive section 16 income where the imputed amount is supported by the evidence, and is consistent with the Guidelines objectives of establishing fair support based on the financial means of the parties “in an objective manner that reduces conflict, ensures consistency and encourages resolution.” The overall goal is to determine a figure that fairly reflects the parties financial circumstances….”

            Leal v. Leal, 2022 ONSC 3813 (CanLII) at 40

“The appellant also seeks to appeal the decision to make the entirety of the costs award enforceable as support by the Family Responsibility Office, as opposed to only that part of the costs award attributable to the issue of support.

As set out in s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a discretionary order of costs may not be appealed without leave. Leave to appeal a costs order will not be granted save where there are strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion: Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21. An appellate court should set aside a costs order only if the trial judge has made an error in principle or if the costs award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27.”

Knight v. Knight, 2019 ONCA 538 (CanLII) at 14-15