Month: April 2020

“Professors Rogerson and Thompson, writing in the SSAG, tie the claim to postseparation increases in income to “some rough notion of causation”. They write at para. 14.3:

Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).

In the [Revised Users Guide] Professors Rogerson and Thompson make clear that “some rough notion of causation” is not to be taken as requiring a clear line of causation between the relationship and the income increase. They state:

It would be better to describe it as a “link” or “connection”, between the marriage and the increase after separation. That has certainly been the approach of most courts, especially those in B.C. and Ontario.

Professors Rogerson and Thompson add that, strictly speaking, a finding of compensatory entitlement is not a prerequisite to a spouse sharing in post-separation income increases, particularly in long-term marriages. They say:

The basis of entitlement has a significant impact upon the degree of sharing of increases, with compensatory claims more likely to result in sharing than non-compensatory claims, but not exclusively so. There can be sharing—partial, or even full—in non-compensatory cases too, especially after long marriages.

The authors add that practically speaking, cases regarding post-separation income increases are “complex … involving a mix of facts and legal factors, with a strong discretionary element to the final judgment.”

Cameron v. Cameron, 2018 ONSC 2456 (CanLII) at 66-69

“In DMello v. Law Society of Upper Canada, 2013 ONSC 6857, Himel J. reviewed the general principles governing an extension of time, as well as the Byers decision that holds that the time to appeal runs from the date of judgment not the date costs are awarded, as follows:

[12]           The Byers decision sets out a detailed analysis of the effect of a costs judgment rendered after the rendering or release of the judgment on its merits.   Justice Borins noted that the two decisions are separate determinations and concluded at para. 16 that “…a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case.”  He disagreed with counsel’s position that the release of the trial judge’s costs decision in effect extended the time for serving the appellant’s notice of appeal from the merits judgment to thirty days following that date.  Following a historical review of the jurisprudence, he determined that a judgment on the merits is final and appealable when it finally disposes of the proceeding, that the time for appealing runs from the date that the judgment is pronounced and that the awarding of costs does not have the effect of extending the time for filing an appeal.”

         Siddiqui v. Franchetto, 2016 ONSC 2499 (CanLII) at 4

“Irrespective of whether the proposed support is periodic or lump sum, it is incumbent upon counsel to provide the judge deciding the matter with submissions concerning the basis for awarding and the method of calculating the proposed support, together with a range of possible outcomes. Further, it is highly desirable that a judge making a lump sum award provide a clear explanation of both the basis for exercising the discretion to award lump sum support and the rationale for arriving at a particular figure. Clear presentations by counsel and explanations by trial judges will make such an award more transparent and enhance the appearance of justice. Over time, this approach will undoubtedly foster greater consistency and predictability in the result.

As part of this approach, where an award of lump sum spousal support is made as a substitute for an award of periodic support, it is preferable that, with the benefit of submissions from counsel, the judge consider whether the amount awarded is [in keeping with the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (the “Guidelines”). If it is not, some reasons should be provided for why the Guidelines do not provide an appropriate result: Fisher v. Fisher (2008), 2008 ONCA 11 CanLII, 88 O.R. (3d) 241, [2008] O.J. No. 38 (C.A.), at para. 103.”

Davis v. Crawford, 2011 ONCA 294 (CanLII) at 75-76

“In Van v. Palombi, [2017] O.J. No. 2288, 2017 ONSC 2492 (Ont. S.C. Div.) (CanLII), the Divisional Court held that the case law well establishes that the legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows:

(1)   Is there a triggering event justifying the striking of pleadings?

(2)   Is it appropriate to strike the pleadings in the circumstances of the case?

(3)   Are there other remedies in lieu of striking pleadings that might suffice?

However, the case law is clear that striking a party’s pleadings is a remedy of last resort. In a number of decisions, the Ontario Court of Appeal has made it clear that the power to strike out a party’s pleadings should be used sparingly and only in exceptional cases. See Roberts v. Roberts, 2015 ONCA 450 (CanLII), [2015] O.J. No. 3236, 2015 Cars­well­Ont 9247 (Ont. C.A.); Manchanda v. Thethi, 2016 ONCA 909 (CanLII).

Even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Given the exceptional nature of the remedy, the court should examine other remedies that might be appropriate in lieu of striking pleadings, which is the third step of the three-pronged test. See Van v. Palombi, supra, at paragraph 36.

In Chiaramonte v. Chiaramonte, the Ontario Court of Appeal held that in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice, following its earlier decision in Purcaru v. Purcaru. The Court of Appeal went on to say as follows at paragraph 32 of that decision:

“Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way.  For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.”

Where custody and access interests are involved, the court should avoid the sanction of striking pleadings or use utmost caution because trial courts need the participation of both parties and information that each can provide about best interests. A full evidentiary record, which involves the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486 (CanLII), [2009] O.J. No. 2466, (Ont. C.A.), cited with approval in D.D. v. H.D., [2015] O.J. No. 2959 (Ont. C.A.), and Haunert-Faga v. Faga, 2005 CANLII 39324 (Ont. C.A.), (2005), 20 R.F.L. (6th) 293 (Ont. C.A.).

Further, in Kovachis v. Kovachis, 2013 ONCA 663 (CanLII), the court held that on a motion to strike a party’s pleadings in the family law case because of non-compliance with court orders, the court must consider whether the default is willful and whether striking the pleadings is the only appropriate remedy.

The Court of Appeal has also stated that in exercising the discretion to strike pleadings, a court has the jurisdiction to order the reinstatement of pleadings on conditions. In Costabile v. Costabile, 2005 CarswellOnt. 6909 (Ont. C.A.), the court upheld the lower court’s decision to strike the appellant’s pleadings as the judge contemplated that the appellant would have the right to move to set aside the default and to try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. The Court of Appeal opined that this was “a sensible resolution of the matter” and given the broad discretion under the Family Law Rules, the Court also held that a family court judge had jurisdiction to make such an order.

Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman (2002), 2002 CanLII 44930 (ON CA), 28 R.F.L. (5^th) 447 (Ont. C.A.).

Finally, before striking a pleading for failure to pay support, the court must consider a payor’s financial circumstances and his or her ability to pay support. See Higgins v. Higgins, 2006 CanLII 33303 (ON CA), [2006] O.J. No. 3913 (Ont. C.A.). Courts have also given a party the opportunity to restore the pleading if arrears of support are paid. See Stein v. Stein, [2003] O.J. No. 2288 (Ont. C.A.); Roberts v. Roberts, 2015 ONCA 450 (CanLII).”

Rose v. Baylis, 2018 ONCJ 230 (CanLII) at 43-51

“Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.  As the Court of Appeal pointed out in Fisher v. Fisher, self-sufficiency, with its connotation of economic independence, is a relative concept.  It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation and could reasonably anticipate afterward.  It requires consideration of:

•   The parties’ present and potential incomes;

•   Their standard of living during cohabitation;

•   The efficacy of any suggested steps to increase a party’s means;

•   The parties’ likely post-separation circumstances (including the impact of equalization of their property);

•   The duration of their cohabitation; and

•   any other relevant factors.

The Court of Appeal stated in Linton:

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations.  In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent.  In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained.

L’Heureux-Dubé J. stated in Moge: “The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”

Although the doctrine of spousal support, which focuses on equitable sharing, does not guarantee to either party the standard of living enjoyed during the marriage, this standard is still relevant to support entitlement.   Furthermore, great disparities that would result in the spouses’ respective standards of living in the absence of support are often a revealing indication of the economic disadvantages inherent in the role that one of the parties assumed during the marriage.”

McConnell v. McConnell, 2015 ONSC 2243 (CanLII) at 65-68

“Justice D.C. Shaw set out an excellent and thorough review of the law in McKay v. Langstaff, 2015 ONSC 5223 commencing at paragraph 46:

(i)           The Law of Unjust Enrichment

[46]      The law on unjust enrichment arising out of the relationship between unmarried spouses has been comprehensively addressed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 S.C.C. 10. In Elkaim v. Markina 2011 ONSC 2586 (CanLII), at para. 9, Sachs J. summarized the framework set out in Kerr to assess property claims in common law relationships:

The law surrounding the resolution of property claims in common law relationships has recently been clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10.  In that case the Court found that the “common intention” approach to resulting trust has no “useful role to play” in the resolution of property claims by domestic partners on the breakdown of their relationships: at para. 29. The Court also found that the role of the parties’ reasonable or legitimate expectations in the unjust enrichment analysis was a limited one. Rather, the framework to be used can be summarized as follows:

(a)  First, the court must determine if there has been an unjust enrichment.

In doing so, the questions are:

•   Has the defendant been enriched?

•   Has the plaintiff suffered a deprivation?

• Is there “no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff?”: at para. 40.

It is in the consideration of the third stage, “if the case falls outside the existing categories” of juristic reasons for the retention of the benefit, then the court may consider looking to “the reasonable expectation of the parties and public policy considerations to assess…whether particular enrichments are unjust”: at paras. 43-44.

(b)  If the court finds that there is a basis for the unjust enrichment claim the court must then turn its mind to the question of what remedy is appropriate to “reverse the unjustified enrichment.” This may include either a “monetary or proprietary remedy”: at para. 46.

(c)  On the question of remedy, the first remedy to consider is “always a monetary award. In most cases it will be sufficient to remedy the unjust enrichment”: para. 47.

(d)  A proprietary award may be required if:

(i) the plaintiff has demonstrated a sufficiently substantial and direct link between his or her contributions and the property, in which case “a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”: at para 50; and,

(ii) the plaintiff has established that a monetary award would be insufficient in the circumstances. This involves considering the probability of recovery of such an award and considering whether “there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights”: at para. 52.

(e) If a monetary award is appropriate, the question then becomes how to quantify that award.

•  To do so, the court must first characterize the nature of the unjust enrichment claim. Is the basis of the “unjust enrichment…the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the plaintiff’s contributions to the joint venture and the accumulation of wealth”: at para. 81.

•  If so, “a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions”: at para. 87.

(f)          To determine whether a joint family venture exists, the court should have regard to the following factors as set out in Kerr v. Baranow at paras. 87-99:

(i) Mutual Effort: Did the parties pool their efforts and work together towards common goals?

(ii) Economic Integration: This involves considering how extensively the parties’ finances were integrated.

(iii) Actual Intent: What did the parties actually intend? Did they intend to have their lives economically intertwined or did they make the choice not to? This intent may be expressed or inferred from conduct.

(iv) Priority of the Family: This factor asks the court to consider to what extent the parties gave priority to the family in their decision making. “A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family.”

If the monetary award should not be quantified on a “joint family venture” basis, then the court should consider a “fee for service” or quantum meruit calculation. It is generally at this stage that the court will consider whether the claim should be discounted because of a mutual conferral of benefits.

[47]      At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit that justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at para. 788.

[48]      The Court has taken a straightforward economic approach to the first two elements – enrichment and corresponding deprivation: Kerr, para. 37.

38.     For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money.  Moreover, the benefit must be tangible.  It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (citations omitted).

39.     Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90).  That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (citations omitted).

[49]      The provision of domestic services can support a claim for unjust enrichment: Kerr para. 42.

[50]      During both the benefit analysis and the deprivation analysis, the court must resist the temptation to evaluate the reciprocal exchange of benefits. “Attempting to set-off or account for reciprocal benefits to show that the plaintiff has not suffered any detriment and is, in fact, better off than before is not appropriate” Wilson v. Fotsch, 2010 BCCA 5 (CanLII), [2010] B.C.J. No. 8 (B.C.C.A.), at para. 19. “The receipt of benefits by a plaintiff does not mean ipso facto that the defendant has not been unjustly enriched”: Wilson, para. 31.

[51]       Although mutual conferral of benefits should not be addressed at the benefit/detriment stage of the analysis, that is not to say that mutual benefits are to be ignored. Rather, as stated by Cromwell J. in Kerr, at para. 109:

109.  As I noted earlier, my view is that mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment.  Otherwise, the mutual exchange of benefits should be taken into account at the defence and/or remedy stage.  It is important to note that this can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.

[52]      At para. 124 of Kerr, Cromwell J. summarized the role of the parties’ reasonable expectations in the domestic context:

                        124.     To summarize:

1. The parties’ reasonable or legitimate expectations have little role to play in deciding whether the services were provided for a juristic reason within the existing categories.

2. In some cases, the fact that mutual benefits were conferred or that the benefits were provided pursuant to the parties’ reasonable expectations may be relevant evidence of whether one of the existing categories of juristic reasons is present. An example might be whether there was a contract for the provision of the benefits. However, generally the existence of mutual benefits flowing from the defendant to the claimant will not be considered at the juristic reason stage of the analysis.

3. The parties’ reasonable or legitimate expectations have a role to play at the second step of the juristic reason analysis, that is, where the defendant bears the burden of establishing that there is a juristic reason for retaining the benefit which does not fall within the existing categories.  It is the mutual or legitimate expectations of both parties that must be considered, and not simply the expectations of either the claimant or the defendant.  The question is whether the parties’ expectations show that retention of the benefits is just.

[53]      The concept of a “joint family venture” comes into play at the remedy stage, after it has been determined that there has been an unjust enrichment

         [55]      At para. 80, Cromwell J. held:

Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of what McLachlin J. referred to in Peter (at p. 1001) as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact.

        [56]      At para. 81, Cromwell J. described the appropriate remedy:

In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth.  Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life” (McCamus, at p. 366).  The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure.  Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”.  In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.”

            Peters v. Swayze, 2017 ONSC 1779 (CanLII) at 22

“The law on costs claimed by a self-represented litigant is set out in detail in Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814. In it, Justice Pazaratz followed Price J.’s decisions in Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, [2010] O.J. No. 3307, and Cassidy v. Cassidy, 2011 ONSC 791, [2011] O.J. No. 1053.

The following principles are taken from these aforementioned cases:

•   The Court of Appeal [in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 O.J. 4600 (Ont. C.A.)] confirmed a self-represented litigant’s entitlement to costs.

•   Self-represented litigants are not entitled to costs calculated on the same basis as litigants who retain counsel.

•   The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

•   Costs should only be awarded to those lay litigants who can demonstrate they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.

•   A party with counsel, opposite an unrepresented litigant, should not perceive that they are immune from a costs award merely because such opposite party is unrepresented. They should be discouraged from presuming they will face only nominal costs.

•    The right of a self-represented litigant to recover costs is not automatic. Quantification of those costs may be difficult. But without the option of awarding meaningful costs to self-represented litigants, the court’s ability to encourage settlements and discourage inappropriate behaviour will be greatly diminished.

•   Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 of the [FLR] apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.

•   If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award of costs.

•   To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable, and disabled; and deprive courts of a tool required re administration of justice.

•    Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value.  The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult—but not impossible—to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.

•   An “applicable hourly rate” should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.

•    In considering the appropriate hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.

•    Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant’s lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party’s efforts to settle because that party is a self-represented litigant.

•   The hourly rate of the lawyer representing the unsuccessful party is only one of several factors to be considered. It does not necessarily entitle the successful self-represented party to claim the same rate for time spent.

•   As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the [FLR’s] Rule 18 and 24 considerations.

•   There are no automatic calculations. We should not simply use the hourly rate for the opposing lawyer, or the hourly rate the self-represented litigant earns outside of court.

•   The quality of the self-represented litigant’s work and documentation must be considered, and its impact on hearing time and trial results. The emphasis must be on the value of the work done. This encompasses both the value of the work to the Court and the value of the time spent to the litigant who performed the work, or who hired a lawyer to perform it.

•   Calculating the amount of time the self-represented litigant should be compensated for can be a complex endeavour. All litigants suffer a loss of time through their involvement in the legal process. A self-represented litigant should not recover costs for the time and effort any litigant would have to devote to the case, including attendances in court where the party would ordinarily attend.

•   But if the self-represented litigant demonstrates he/she did the work ordinarily done by a lawyer, then they will have justified receiving an award of costs—including time spent on communications, drafting documents and correspondence, preparation and compensation for time spent arguing their case.

•   Self-represented litigants may be held to the standards of civility expected of lawyers and a proper reprimand for failure to do so is an award of costs on a substantial indemnity basis. Where either a litigant or his/her lawyer acts unreasonably, by incivility or otherwise, it is a factor that may result in discounting the costs that should otherwise be awarded. This discounting is a necessary part of quantifying costs and is consistent with the overall purpose of costs awards in improving the efficiency of the administration of justice.”

         Browne v. Cerasa, 2018 ONSC 2242 (CanLII) at 30-31

“As for the wife’s expenses, before turning to his analysis of the unequalized portion of the pension issue, the motion judge cited Boston v. Boston for the proposition that “where a pension is equalized by way of a lump sum payment, the payee is under an obligation to use those assets in an income-producing way … to create an ‘pension’ to provide for her future.”

However, Boston does not require the payee spouse to immediately invest the equalization assets. Instead, she must use them to generate income by the time the pension-holding spouse retires: see Boston at para. 54.”

Slongo v. Slongo, 2017 ONCA 272 (CanLII) at 108-109

“On a summary judgment motion, the judge must first determine if there is a genuine issue requiring a trial based only on the written evidence before her.  If the answer to this question is no, the court must grant summary judgment.  If it appears that there is a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new fact-finding powers. Those powers may be used at the court’s discretion provided that doing so is not contrary to the interest of justice. Their use will not be contrary to the interest 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 Hryniak v. Mauldin, 2014 SCC 7.”

CAS v. K.M. & A.T., 2019 ONSC 2089 (CanLII) at 28

“The Family Law Act, s. 55 (1), requires that domestic contracts be made in writing, signed by the parties and witnessed.  However, in Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524, the Court of Appeal confirmed that the court has jurisdiction to enforce settlements.

The Ontario Court of Appeal in Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.), stands for the proposition that if litigation is commenced, compliance with section 55(1) of the Family Law Act is not required. A settlement may be enforced in accordance with the principles set out in this Scherer case.

Justice Perell in Pastoor v. Pastoor (2007), 2007 CanLII 28331 (ON SC), 48 R.F.L. (6th) 94 (Ont. S.C.), confirmed that settlements of existing matrimonial litigation do not need to comply with section 55 of the Family Law Act.  At paragraph 7, he quotes from Geropoulos at pp. 768-769:

The court’s jurisdiction to enforce settlement or refuse to do so, notwithstanding any agreement between solicitor or counsel, is well-established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court’s overriding jurisdiction with respect to domestic contracts.

In Harris v. Harris (1996), 7 O.T.C. 265 (Gen. Div.), Justice Laforme stated that Geropolous has been interpreted as holding that the courts should encourage settlement and retain the discretion to determine whether a settlement is enforceable.

Although the agreement does not have to conform with the Family Law Act section 55, Justice Laforme indicated in Harris at paragraph 10, that there were certain factors that the court should consider when determining whether a settlement is enforceable:

1.  Was either of the parties represented by legal counsel or the beneficiary of legal advice?

2.  Was either party otherwise disadvantaged at any time during the course of the negotiations?

3.  Can the written material the parties prepared, or the oral presentations, that are being relied upon support a prima facie conclusion that either constitutes a settlement agreement?

4.  Does the evidence demonstrate that the parties intended that the written or oral representations or negotiations are to be binding on them?

5.  Was there an intention that some final act or determination be made before the settlement was to be final and binding?

6.  Does the enforcement or non-enforcement of the negotiated resolution result in an injustice to either of the parties?

7.  Does enforcement encourage negotiated settlement and discourage litigation and does it support the overall purpose and intent of the principles of the Family Law Act?

At common law, the acceptance must match the offer. An acceptance that indicates different terms cannot accept the offer. Did the father reasonably understand that the mother’s communication constituted an acceptance?  See: UBS Securities Canada Inc. v. Sands Brothers Canada, Ltd., 2007 ONCA 405, 224 O.A.C. 315.

In determining whether a contract was formed and hence should be enforced, the court must apply the objective test of contract formation. The Court of Appeal quotes from Waddams on the Law of Contracts (5ed) at page 103:

But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an inquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee.

It is a basic principle of contract law that an offer which is responded to with an acceptance including an added condition is a counter-offer.”

J.S.G. v. E.M.G., 2016 ONSC 2233 (CanLII) at 34-41