Month: March 2021

“Section 15 of the Family Law Act, supra, provides as follows:

15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residenceor, if there is no place where the spouses had a common habitual residence, by the law of Ontario. (Emphasis added).

The Applicant submits that Ontario is the place where both spouses had their last common habitual residence, and the Respondent contends that the spouses’ last common habitual residence was in Lebanon, where they married and had spent the previous seven months.

In the case of Pershadsingh v. Pershadsingh, 1987 CanLII 4361, this is was squarely dealt with by Walsh J. of the High Court of Justice of Ontario, as it was then known. At page 3, Walsh J. stated:

The key words of s. 15 are “last common habitual residence”. I interpret these words to mean the place where the spouses most recently lived together as a husband and wife and participated together in everyday family life.

Further on the same page, Justice Walsh accepted the description of “habitual residence from Dicey and Morris, The Conflict of Laws, 10^th ed., and he from that treatise as follows:

It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time,” it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.

It has been said that an element of intention to reside is required, though not determinative…The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.”

         Zakhour v. Nayel, 2017 ONSC 1735 (CanLII) at 14-17

“Settlement agreements among parties should be enforced unless the court is satisfied that, in all the circumstances, there is a real risk of clear injustice: L-Jalco Holdings Inc. v. Lawrynowicz & Associates, 2018 ONSC 4002, 294 A.C.W.S. (3d) 274, at para. 34; or there is prejudice, mistake or any other “good reason not to enforce”: Sentry Metrics Inc. v. Erenwein 2013 ONSC 959, [2013] O.J. No. 685, at para. 16.

A judge has discretion to refuse to enforce an agreement where: a) a material fact relevant and significant to the resolution has not been disclosed; and b) the existence of the material fact was or could reasonably have been within the knowledge of the party seeking to rely on the settlement agreement: Saballoy Inc. v. Techno Genia S.A., [1993] A.J. No 276 (Alta QB), at paras. 22-24.

Where parties are engaged in litigation and have properly retained solicitors who enter into settlements on their behalf, these settlements ought to be binding upon the parties and the court should so order: Marcel Equipment Ltd. v. Equipements Benoit D’Armours et Fils Inc., [1995] O.J. No. 673 (Gen. Div.), at para. 78.

The settlement agreement is an enforceable contract and the rules of contractual interpretation apply: L-Jalco Holdings Inc., at para. 34.

…

The authority of a solicitor to enter into settlement discussions and compromise a client’s position is well-settled. In Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.), Evans J.A., writing for the majority, at paras. 10 and 11, stated as follows:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. … A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court.

…

Where a settlement is negotiated between duly appointed counsel with no limitation of authority, the settlement ought to be binding on the parties. I find that the settlement agreement as evidenced in the correspondence between the lawyers for the parties demonstrates a mutual intention to create a legally binding relationship and there was agreement on all essential terms of the settlement.

A failure to enforce settlement agreements duly entered into by lawyers would be contrary to both the court and public policy of encouraging settlement and would result in chaos in the settlement process: Marcel, at paras. 77-78.”

         Gelber v. Gelber, 2020 ONSC 1570 (CanLII) at 19-22, 24, 26-27

“The new approach to fact finding under the Family Law Rules has been to make disclosure a given. Fact-finding is not to be a battleground. There ought to be an orderly, prompt request for disclosure with an organized speedy reply. The process is not to go on forever and the case is to move on because the facts point to a resolution or to the necessity of a trial. Obtaining the factual evidence is no longer a game of hide and seek.

The rules provide a number of tools to create this approach. Rules 19 and 20 set up the process. Sanctions for failure to comply with a disclosure order are found in Rules 1(8), 13(7), 14(23) and 19(10). These sanctions are severe. A litigant may find his or her pleadings struck and the case proceeding without his or her participation. The severity of the sanctions serves to emphasize the importance of disclosing the necessary information in a file quickly.

The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case?  Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness.”

        Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC) at 6-8

“What part do the SSAG play in spousal support variation proceedings?  Initially, when the SSAG were introduced, it was thought that they did not apply to spousal support variation proceedings:  see Fisher v. Fisher, 2008 ONCA 11 at para. 96.  However, since then the SSAG have often been used in determining spousal support in variation proceedings; this was sanctioned by Lauers J.A. in Gray v. Gray, 2014 ONCA 659 where the SSAG were applied on variation proceedings, and Lauers J.A. specifically distinguished Fisher from variation proceedings.  See also Slongo v. Slongo, [2017] O.J. No. 4564 (C.A.) at para. 105, a variation case where Janet Simmons J.A. states that the SSAG, “while not binding, should not be lightly departed from.”

It is doubtful that a change in spousal support alone under the SSAG would be a “change in circumstances” within the meaning of s. 17.   However, Fisher and Slongo both confirm that, where the SSAG are applicable, they are presumptive and the court must explain why it is departing from the SSAG where it determines that it is going to do so.  This is a “guidelines driven” age in the determination of support in family law matters and for good reason; to remove uncertainties from the determination of support gives parties consistency and permits the settlement of support issues without resort to the courts.”

         Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 22-23

“Court orders are not proposals, recommendations or suggestions.  They are commands.  Parties are required to comply with them.  See:  Chapel v. Hillock, 2015 ONSC 4168.  A parent has an obligation to do what is necessary and to actively require the children to comply with the terms of the court order by explanation, exhortation, inducement, entitlement and the threat of discipline.  See:  Purcaru v. Purcaru, 2010 ONSC 4031.  The explanations offered by A.M.T. for her failure to comply, including delay in preparing the children to return, are neither reasonable nor satisfactory.”

         A.C.V.P. v. A.M.T, 2019 ONSC 1559 (CanLII) at 275

“The concept of parallel parenting initially emerged in the social work realm rather than on the legal landscape.  In that context, it was used to describe arrangements where there was either a sole or joint custody order in effect, but the parties were granted the right to make daily decisions and establish their own routines for the children during their residential time (Peter G. Jaffe et. al., “Custody Disputes Involving Allegations of Domestic Violence:  Toward a Differentiated Approach to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500 at 516-17, cited in Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).  On the legal front, the concept of parallel parenting has morphed into a phrase that describes regimes respecting major decision-making.  There are four main types of arrangements that have been described as “parallel parenting” regimes in the case-law, as follows:

1. 1. 1. 1.   First, in some cases, the phrase has been used to describe an order that grants joint custody to the parents in all traditional major areas of decision-making such as medical, educational, religion and extracurricular activities, but which specifically states that each parent has the right to make daily decisions and to establish parenting styles and routines independently of each other.  This arrangement is often referred to as “joint custody in the parallel parenting mode.”  The phrase was used in this fashion in Mol v. Mol, 1997 CarswellOnt 3693 (S.C.J.), L.(A.) v. M. (C.), 2010 CarswellNB 58 (Q.B.)and by the trial judge in Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.).  While the term “parallel parenting” was used in these cases, the type of arrangement under consideration in these decisions was essentially a traditional joint custody arrangement, but which specified that the parties could make day-to-day decisions and establish their own routines during their residential time.   In practice, a traditional joint custody order has been presumed to include these rights to make daily decisions and establish household routines.  The real distinction between a traditional joint custody order and the orders made in this line of decisions is that the orders in these cases also included numerous detailed terms about day-to-day parenting issues to assist the parties in managing areas that have been problematic.  In order to avoid confusion in terminology, it is helpful to refer to this type of order as a “multi-directional joint custody order.”
         2.   A second line of cases has used the phrase “parallel parenting” to describe a regime which divides up the major areas of decision-making between the parties, such that each party has sole, final decision-making authority in specified areas (Moyer v. Douglas, 2006 CarswellOnt (S.C.J.);  Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.);  V.K. v. T.S., 2011 ONSC 4305(S.C.J.);  Suchanek v. Lavoie, 20140 CarswellOnt 1236 (O.C.J.);  Baetans v. Arthurs, 2013 CarswellOnt 5112 (Div. Ct.)).  In the case of V.K., I described this type of arrangement as a “divided parallel parenting regime.”  As in the first line of cases, these types of orders typically also give each parent the right to make general day-to-day decisions and establish daily routines during their residential time, and set out specific and very detailed terms regarding the management of problematic issues.  Some cases have also referred to this type of arrangement as “joint custody in the parallel parenting mode.”  Again, this causes confusion, since this type of order does not require the parties to make major decisions together. The descriptor “divided parallel parenting” is helpful for this type of arrangement, since it reflects that the major areas of decision-making are divided up between the parties.
         3.  A third manner in which the courts have used the phrase “parallel parenting” is to describe an arrangement that essentially grants each parent the right to make major decisions respecting the child in all important areas of parental authority during their residential time, without the consent or involvement of the other parent (see Mol v. Mol, 1997 CarswellOnt 3693 (Gen. Div.); Ursic).  As I indicated in V.K. the phrase “full parallel parenting” is helpful to describe this type of custodial arrangement, since the parents are essentially exercising full decision-making in all areas during their time with the child, but independently of each other.  These types of orders typically require the parties to confer with each other before making a major decision.  In Ursic, the Ontario Court of Appeal upheld such an order on appeal.
         4.   A fourth line of cases that have used the phrases “parallel parenting” or “joint custody in the parallel parenting mode” are those where the parties are granted joint custody, the order sets out specific steps they must take to resolve any differences about major decisions, and the order goes further to state that if they still cannot agree, each party has final say in specified areas of decision-making (see for example  Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.),  aff’d 2007 ONCA 898 (CanLII), 2007 CarswellOnt 8271 (C.A.);  Desjardins v. Desjardins, 2013 CarswellOnt 4496 (S.C.J.);  Plugers v. Krasnay, 2014 ONSC 7078(S.C.J.), aff’d 2016 ONCA 279 (C.A.)).  For the sake of clarity in terminology, I find it useful to refer to this type of arrangement as “joint custody with a divided parallel parenting fallback.”
         5.  Finally, “parallel parenting” has been used to describe hybrid-type custodial arrangements, where the order requires the parties to make some major decisions together, but then divides up other areas of decision-making between the parties (see for example Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.),  reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Grindley v. Grindley, 2012 O.J. No. 3717 (S.C.J), where the court ordered joint custody respecting the children’s activities, but divided parallel parenting in regard to all other areas of decision-making).   In some cases, the orders add an additional layer of complexity by ordering a joint custody with a divided parallel parenting fallback plan in certain areas of decision-making.  Again, in order to avoid confusion respecting terminology, I refer to this type of arrangement as a as a “hybrid” custody regime.”

Jackson v. Jackson, 2017 ONSC 1566 (CanLII) at 68

“With respect, the trial judge erred in his interpretation and application of the separation agreement by failing to give effect to the reconciliation clause that voids the agreement upon reconciliation for more than 90 days.

As this court stated in Sydor, at common law, the effect of reconciliation of separated spouses is to void the separation agreement subject to (a) a clause in the agreement that provides to the contrary or (b) a clause that indicates the intent of the parties that transactions carried out under the agreement will remain in place: at para. 22.

In this case, unlike in Sydor, the separation agreement provides for what will occur if the parties reconcile. By preserving the agreement if the reconciliation is very short-lived, it encourages the parties to attempt to reconcile without fear of the effect of the common law undoing the separation agreement. However, where the reconciliation is successful and lasts for more than 90 days, it essentially confirms the common law result. That is, in the event of a successful reconciliation, the separation agreement is void, except that payments, conveyances or acts that have been completed to carry out the agreement will not be invalidated.

Here, the reconciliation lasted for almost nine years. Therefore, the separation agreement is void, except that “any payment, conveyance or act” completed under the agreement will not be invalidated.”

Miaskowski v. MacIntyre, 2020 ONCA 178 (CanLII) at 18-21

“Marriage contracts result in a world of second thoughts.  Often signed with marriage pending, they speak to business at a time when those types of thoughts are foreign to the parties.  Because of this, the negotiation of an agreement is often hasty and ill thought out.  Notwithstanding this, marriage contracts are often of long-lasting effect, both during the marriage and after.  The terms, which might have seemed fair at the time, may also result in seemingly inequitable situations resultant from waivers of spousal support or property claims after a long-term relationship, leaving one party in apparent poverty and without recourse to remedies that he or she might otherwise have on marriage breakdown.”

         Ord v. Ord, 2019 ONSC 1563 (CanLII) at 1

“Shirley wants Galo to produce “full financial disclosure” from his wife because she believes that Galo’s wife is secretly holding Galo’s assets and is colluding with Galo who is attempting to evade paying spousal support. Shirley also wants all of Galo’s income tax returns and Notice of Assessment from 2004 to date so that she can calculate the annual spousal support increases that were not paid.

The request for extensive disclosure and a valuation is denied. My reasons follow.

The request for this disclosure is premised on mere speculation and is unreasonable.

In his sworn financial statement, Galo disclosed his wife’s income and their equal sharing of expenses. This level of disclosure from a new partner is typically sufficient (as in this case), to address the financial circumstances of a payor or payee, who has a new partner. There is no right to disclosure beyond these essential facts.

A former spouse is not entitled to the “full financial picture” of a spouse’s new partner by right. Such disclosure would be extensive and intrusive. As Justice Kristjanson stated in Politis v. Politis, 2018 ONSC 323 at para. 17:

Compelling the production of personal income, asset and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding, and any production order carefully scrutinized.”

                  Angulo v. Angulo, 2019 ONSC 1456 (CanLII) at 53-57

“However, the court has no jurisdiction to make a refraining order where Mr. Sherwood has received a Final Notice, as opposed to a First Notice.  Under section 35 of the Family Responsibility and Support Arrears Enforcement Act, S.O., 1996, c. 31, as amended, a payor may make a motion for a refraining order when served with a First Notice. Under section 35(10), a court may make a refraining order only before the 30-day period if the First Notice expires. There is no provision for the court making a refraining order after that 30-day period.”

         Young v. Sherwood, 2020 ONSC 2038 (CanLII) at 10