Month: May 2019

“On the proper test for unconscionability I refer to the words of Schroeder J.A. in Mundinger v. Mundinger, 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 at pp. 609-10, 3 D.L.R. (3d) 338 (C.A.):

The governing principle applicable here was laid down by this Court in the oft-cited case of Vanzant v. Coates (1917), 1917 CanLII 573 (ON CA), 40 O.L.R. 556, 39 D.L.R. 485. It was there held that the equitable rule is that if the donor is in a situation in which he is not a free agent and is not equal to protecting himself, a Court of Equity will protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position. In that case the circumstances were the advanced age of the donor, her infirmity, her dependence on the donee; the position of influence occupied by the donee, her acts in procuring the drawing and execution of the deed; and the consequent complete change of a well-understood and defined purpose in reference to the disposition of the donor’s property. It was held that in those circumstances the onus was on the plaintiff to prove by satisfactory evidence that the gift was a voluntary and deliberate act by a person mentally competent to know, and who did know, the nature and effect of the deed, and that it was not the result of undue influence. That onus had not been discharged; and it was therefore held to be unnecessary for the defendant to prove affirmatively that the influence possessed by the plaintiff had been unduly exercised.

The principle enunciated in Vanzant v. Coates, supra, has been consistently followed and applied by the Courts of this Province and the other common law Provinces of Canada. The effect of the relevant decisions was neatly stated by Professor Bradley E. Crawford in a commentary written by him and appearing in 44 Can. Bar Rev. 142 (1966) at p. 143, from which I quote the following extract:

If the bargain is fair the fact that the parties were not equally vigilant of their interest is immaterial. Likewise if one was not preyed upon by the other, an improvident or even grossly inadequate consideration is no ground upon which to set aside a contract freely entered into. It is the combination of inequality and improvidence which alone may invoke this jurisdiction. Then the onus is placed upon the party seeking to uphold the contract to show that his conduct throughout was scrupulously considerate of the other’s interests.

This is slightly different from the test set forth by the trial judge in the case at bar. It is, however, the basis of our modern law of unconscionability and I would unhesitatingly follow it. The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon the husband of acting with scrupulous care for the welfare and interests of the wife. I think not.

We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability. I can find nothing in the reasons for judgment quoted above to denote that advantage taken.”

Rosen v. Rosen, 1994 CanLII 2769 (ON CA) at 12-13

“The appellant submits that the order is final because it implicitly disposes of the substantive issue in the action: his rights under the separation agreement not to disclose his financial position. He submits the underlying order “finally and irrevocably determines the enforceability of the non-disclosure term”.

We do not agree.

This court in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678 provided that an interlocutory order is one:

…which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

The order in question on this appeal does not finally determine or decide the subject matter of the litigation between the parties, namely, the enforceability of the separation agreement. The motion judge’s analysis makes it clear that he did not determine the validity of the separation agreement. Instead the motion judge made a procedural order for disclosure – the most basic requirement under the Family Law Rules. It remains open to the trial judge to accept the husband’s position on the validity of the agreement.”

Wachsberg v. Wachsberg, 2018 ONCA 508 (CanLII) at 4-7

“As E.G. falls within the requirements of subsection 31(1) of the Family Law Act, child support is presumed to be payable by her parents.

The onus is on the parents to prove that E.G. meets the criteria of subsection 31(2).  They must establish that E.G. has withdrawn from their parental control for her to be disentitled to child support.

In the event that I find E.G. has withdrawn from parental control, the onus then shifts on E.G. to establish on a balance of probabilities the withdrawal was not voluntary.

The decision of Ball v. Broger, 2010 ONCJ 557 (CanLII), [2010] O.J. No. 5824 by Justice S. B. Sherr provided an excellent overview on this issue as follows.  He noted at page 8 of his decision:

A child is entitled to support, unless he or she voluntarily withdraws from parental authority.  The defence of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control.  See Edwards v. Edwards, [1998] O.J. No. 492, 1998 CarswellOnt 555 (Ont. Prov. Div); and Haskell v. Haskell and Letourneau (1979), 1979 CanLII 1963 (ON SC), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329, 1 F.L.R.A.C. 306, [1979] O.J. No. 4278, 1979 CarswellOnt 101 (Ont. Co. Ct.).

Once it has been established that a child has withdrawn from parental control, the onus shifts on the child to establish that the withdrawal was not voluntary; that he or she had little choice in the matter.  See Belanger v. Belanger and Capin, 2005 CanLII 25110 (ON SC), 2005 CanLII 25110, 17 R.F.L. (6^th) 325, [2005] O.J. No. 3033, 2005 CarswellOnt 3076 (Ont. Fam. Ct.); and Fitzpatrick v. Karlein, supra.

Courts have noted that family dynamics are complex and have often been cautions in finding that a child has voluntarily withdrawn from parental control.  See Jamieson v. Bolton and Bolton, 1994 CanLII 9211 (AB QB), 1994 CanLII 9211, 52 A.C.W.S. (3d) 845, [1995] W.D.F.L. 097, [1995] W.D.F.L. 745, [1994] O.J. No. 3228, 1994 CarswellOnt 2081 (Ont. Prov. Ct.) which sets out at paragraph [19] a line of cases taking this approach.

Justice Sherr went on to review at page 9 of his decision portions of Fitzpatrick v. Karlein, supra which stated the following at paragraph [12]:

[12] This distraction from the business of sorting out financial obligations is a digression into conduct that the legislature has, at times, tried to separate from support obligations.  To minimize that distraction, we should recognize “normal” difficulties between parent and youth, especially if they are struggling with a reconstituted family.  We should look to see whether a child has withdrawn from the control of a relevant parent and, if so, whether this was the youth’s free choice.  Unless the youth was evicted by a custodial parent (not a free choice) or was subjected to unbearable conditions when viewed objectively (also not a free choice), the more subtle and subjective questions about parent-and-youth relationships should be left for a question more pressing than who, as between the youth and the parent and the state is going to pay the youth’s bills.  In other words, routine comparisons of fault as between parent and child should be discouraged and only obvious cases should prevail.

Justice Sherr went on to further state at page 9 of his decision:

Courts have noted that the exception is even narrower when the child suffers from emotional difficulties.  See Jamieson v. Bolton and Bolton, supra, at paragraph [35], citing L.G. v. F.G. and V.G., 1989 CanLII 3487 (ON CJ), 1989 CanLII 3487, 20 R.F.L. (3d) 157, [1989] O.J. No. 818, 1989 CarswellOnt 241 (Ont. Prov Ct., Family Division).

This does not mean that parents are not entitled to exercise reasonable controls over a child who chooses to remain at home.  See Distefano v. Haroutnunian and Haroutunian, 1984 CANLII 1705, 41 R.F.L. (2d) 201, [1984] O.J. No. 2312, 1984 CarswellOnt 272 (Ont. Prov. Ct., Fam. Div.0; and Figueiredo v. Figueiredo, 1991 CanLII 4204 (ON SC), 1991 CanLII 4204, 33 R.F.L. (3d) 72, [1991] O.J. No. 953, 1991 CarswellOnt 278 (Ont. Gen. Div.).

The issue of whether a child has voluntarily withdrawn from parental control has been reviewed by the courts.  In reviewing Jamieson v. Bolton and Bolton, supra, Justice Sherr noted at paragraph [36] of his decision the following:

Courts should examine a young person’s behaviour after leaving the home when assessing whether the young person left the home voluntarily or rather, whether she was just seeking independence.  Did the young person move to a life of independence or did she move into another parent-child relationship?  Upon leaving the home, did she abandon school?  Has the young person experienced conflict in relation with other adults or other persons in authority?  Or on the other hand, has the young person appeared to comply with reasonable expectations?  How has the young person ordered their life after separation?”

McGonegal v. BJG, 2013 ONCJ 529 (CanLII) at 294-300

“In my view, the test to apply to the applicant’s request for an extension of time should be the same as the test on a motion to set aside a Registrar’s order dismissing an appeal for delay, since such an order was at the root of the motion before Doherty J.A. That test was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21 (CanLII), [2010] O.J. No.123, at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.”

D.G. v. A.F., 2014 ONCA 436 (CanLII) at 11.

“In giving the majority judgment of the Supreme Court of Canada in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, 23 R.F.L. (3d) 337, Cory J. set out certain principles which seem to me vital in defining the approach a court must take when determining the rights of separating spouses pursuant to Part I of the FLA. He said, at pp. 93-94 S.C.R., p. 366 R.F.L.:

Under the Act a court is, as a first step, required to determine the ownership interests of the spouses. It is at that stage that the court must deal with and determine the constructive trust claims. The second step that must be taken is to perform the equalization calculations. Once this is done, a court must assess whether, given the facts of the particular case, equalization is unconscionable. The s. 5(6) analysis, even if it could be considered, would be a third step — a last avenue of judicial discretion which might be used in order to bring a measure of flexibility to the equalization process. This step in the process, if it could be used, would have to be kept distinct from the preliminary determinations of ownership.

In light of this statement and the definition of “net family property” contained in s. 4(1), the court must take the following steps in determining spouses’ rights under Part I of the FLA:

1. The court must establish the net family property of each spouse. It is only when that function has been performed that the court is in a position to apply s. 5(1) of the FLA, which is the next step. This first step must be undertaken in light of the provisions of s. 4. This means that the court must:

(a) determine what “property” each spouse owned on valuation day, and

(b) value that property after making deductions and allowing exemptions as provided in s. 4.

2. The court must determine whether one spouse’s net family property is less than that of the other. If so, s. 5(1) provides for equalization, which is effected by ordering a payment of one-half of the difference between them. However, before making that order, the court must proceed to the third step.

3. The court must decide whether, because of the considerations contained in s. 5(6), it would be unconscionable to equalize the net family properties. If so, the court may make an award that is more or less than half the difference between the net family properties. If not, the net family properties are equalized as set out in step 2.”

Berdette v. Berdette, 1991 CanLII 7061 (ON CA) per Galligan J.A.

“The application judge found that Mr. Jackson had acquiesced to Jailen’s remaining in Ontario…

The standard for finding acquiescence is high. “Clear and cogent” evidence of “unequivocal acquiescence” is required. See Katsigiannis, supra, at para. 49. Ordinarily the test for acquiescence is subjective, but as Lord Brown-Wilkinson said in Re H. and Others (Minors) (Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225 (H.L.) at p. 90 A.C.:

Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Jackson v. Graczyk, 2007 ONCA 388 (CanLII) at 49-50

“…the fact that the parties agreed not to terminate the support does not prevent a party from returning to court where there is a change in circumstances such as to warrant a variation including the possibility of ending support altogether. As explained by the Supreme Court of Canada in L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, a consent order is always open to variation in the event that a material change in circumstances so warrants. The majority of the Court in L.M.P. stated, at para. 41:

But even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted …. A provision indicating that the order is final merely states the obvious: the order of the court is final subject to s. 17 of the Divorce Act. Courts will always apply the Willick [v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670] inquiry to determine if a material change of circumstances exists. [Citations omitted; emphasis in original.]

In L.M.P., the majority of the Court characterized the “Willick inquiry” as follows, at para. 32:

That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) [v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370] confirmed that this threshold also applies to spousal support variations.”

Pustai v. Pustai, 2014 ONCA 422 at 18-19

“I agree with the appellant’s submission that D.B.S., supra, has made some changes to the legal regime that was in effect in Ontario at the time of the trial decision. In light of D.B.S., it is now clear that the trial judge erred in concluding the respondent had not engaged in blameworthy conduct. In D.B.S., Bastarache J. indicated that any conduct that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support should be characterized as blameworthy conduct. While there is a presumption that the payor parent is acting reasonably by complying with the terms of a previous court order or agreement, this presumption may be rebutted where the change in circumstances is sufficiently pronounced. In determining the reasonability of the payor parent’s belief that his or her obligations were being met, the court should compare the amount the parent actually paid with how much he or she should have paid.

Applying this approach to this case, the respondent’s failure to report the increase in his income must be seen as blameworthy conduct given the magnitude of that increase.

The respondent’s blameworthy conduct in failing to report the increase in his income militates in favour of a retroactive award, but it is not determinative. It is only one of four factors Bastarache J. identified, at paras. 100-16, to be considered:

1. Reasonable excuse for why support was not sought earlier

2. Conduct of the payor parent

3. Circumstances of the child

4. Hardship occasioned by a retroactive award[.]

Importantly, Bastarache J. stressed at para. 99 of D.B.S., supra, “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.”

Baldwin v. Funston, 2007 ONCA 381 (CanLII) at 18-21

“Our view on this principal issue may be summarized as follows. Section 15(1) of the Charter is infringed by the definition of “spouse” in s. 29 of the FLA.  This definition, which only applies to Part III of the FLA, draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex relationships of a specific degree of duration. We emphasize that the definition of “spouse” found in s. 1(1) of the FLA, and which applies to other parts of the FLA, includes only married persons and is not at issue in this appeal.  Essentially, the definition of “spouse” in s. 29 of the FLA extends the obligation to provide spousal support, found in Part III of the FLA,  beyond married persons to include individuals in conjugal opposite-sex relationships of some permanence. Same-sex relationships are capable of being both conjugal and lengthy, but individuals in such relationships are nonetheless denied access to the court-enforced system of support provided by the FLA. This differential treatment is on the basis of a personal characteristic, namely sexual orientation, that, in previous jurisprudence, has been found to be analogous to those characteristics specifically enumerated in s.15(1).

The crux of the issue is that this differential treatment discriminates in a substantive sense by violating the human dignity of individuals in same-sex relationships.  As Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, established, the inquiry into substantive discrimination is to be undertaken in a purposive and contextual manner. In the present appeal, several factors are important to consider. First, individuals in same-sex relationships face significant pre-existing disadvantage and vulnerability, which is exacerbated by the impugned legislation. Second, the legislation at issue fails to take into account the claimant’s actual situation. Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge of discrimination in this case. Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence. The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances. Taking these factors into account, it is clear that the human dignity of individuals in same-sex relationships is violated by the definition of “spouse” in s. 29 of the FLA.”

M. v. H., [1999] 2 SCR 3, 1999 CanLII 686 (SCC) per Cory & Iacobucci JJ at 2-3

“Whether make up time is appropriate in any given case, and in what amount, must be based on a determination of the best interests of the children that takes into account all of the relevant circumstances. The relevant circumstances will invariably include the magnitude of the make up time sought and can, in the appropriate case, include considerations such as the wishes of the children and concerns about alienation of one of the parents.”

Balice v. Serkeyn, 2016 ONCA 372 at 17