Month: April 2023

“The jurisprudence is clear in confirming that retained counsel may bind their clients to the settlement of litigation by means of exchanged correspondence: Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA) at pp 768 – 769 (hereinafter Geropoulos).  There are clear public policy reasons why a strict application of s. 55(1) of the Family Law Act is unwarranted in such matters: Geropoulos, quoted in this endorsement at paragraph 21 below.

In contrast, pre-litigation agreements are domestic contracts governed by s. 55(1) of the Family Law Act, which provides:

A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

Numerous cases have found that the strict requirements of s. 55(1) may be relaxed, but not disregarded completely, for example where:

a.    two educated and sophisticated parties, who had received independent legal advice, signed a domestic contract but only one signature was witnessed: Gallacherv. Friesen, 2014 ONCA 399 (CanLII);

b.    a witness was not present at signing but gave uncontradicted evidence that the signatory had confirmed signing the agreement: Gamblev Longpre, 2016 ONSC 3499 (CanLII);

c.    a domestic contract was drawn up and signed by one of the parties who accepted its benefit and then sought to overturn it; Virc v. Blair, 2014 ONCA 392 (CanLII);

d.    a domestic contract was drawn up by one party, who then resiled from it and refused to sign it after the other party and his witness had done so: Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), hereinafter Pastoor.”

         Greve v. Shaw, 2022 ONSC 2598 (CanLII) at 16-18

“Conversion of an offer to settle into a court order is a discretionary remedy: see Milos v. Zagas (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.), at para. 15; Magnotta v. Yu, 2021 ONCA 185, at paras. 26-27.

This court has jurisdiction to hear an appeal of a discretionary order refusing to enforce a final settlement pursuant to r. 18(13)(a) motion under the Rules: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b). This is because a decision refusing to enforce a settlement agreement is final: Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, 87 O.R. (3d) 443, at para. 17.

Exercise of this discretion attracts deference. Where the relevant factors disclosed by the evidence are considered, “an appellate court will not generally interfere with the motion judge’s decision to grant, or not grant, judgment in accordance with an accepted offer,” Milos, at para. 19. In the family law context, this court has recognized that significant deference is owed, particularly in matters relating to support orders: Ballanger v. Ballanger, 2020 ONCA 626, at para. 22.”

         Dowdall v. Dowdall, 2021 ONCA 260 (CanLII) at 19-21

“Family violence has always been relevant in the assessment of a child’s best interests: see for example Freitas v. Christopher, 2021 ONSC 2340 ¶ 43 and 44.   See also ¶ 30 of McLellan v. Birbilis.   Since March 1, 2021, family violence is defined in section 18(1) of the Children’s Law Reform Act.  It means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.   At ¶ 237 of Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201, Sherr J. wrote that, “…family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. It is an issue that this court takes very seriously when assessing a child’s best interests”.

Section 18(2) makes it clear that the conduct need not constitute a criminal offence to be family violence.  The section includes a non-exhaustive list of nine kinds of behaviour that constitute family violence.  Physical abuse, psychological abuse, threats and harassment, all of which are in issue in this case, are amongst that list in section 18(2).  As Tellier J. found, the Court is not precluded from finding that other conduct fits within its meaning, too:  see ¶ 27 of McLellan v. Birbilis.

Section 24(3)(j) of the Children’s Law Reform Act provides that family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons to cooperate on issues affecting the child, are factors related to the child’s circumstances in the best interests analysis.  If a finding of family violence is made, section 24(4) directs the Court, when considering the impact of family violence under section 24(3)(j), to consider a further list of factors.  Those include the nature, seriousness and frequency of the violence and when it occurred, patterns of behaviour, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.”

         W.A.C. v. C.V.F., 2022 ONSC 2539 (CanLII) at 391-393

“Where a child has been placed in extended society care, pursuant to section 115(4) of the Act, a parent of the child may apply for a status review. However, this application is not as of right. Section 115(5) of the Act requires leave of the court if immediately prior to the application, the child has received continuous care for at least two years from the same foster parent or from the same person under a custody order. By the time this matter was argued before me in January 2022, the child had received continuous care from the current foster parents for approximately 38 months.

The CYFSA does not outline the specific factors a court must consider in exercising its discretion to grant leave in these circumstances. For this criteria, we must turn to the common law: C. v. Children’s Aid Society of Ottawa Carleton, 2000 CanLII 22539 (ON SC), [2000] O.J. No. 2063 (S.C.J.) at paras. 32-34.

A description of the test for leave to bring a status review application in these circumstances was summarized by Justice C. Lafreniere in the Superior Court decision of K.C. v. Children’s Aid Society of Hamilton, 2017 ONSC 565. This 5-part test was considered as recent as May 2021 by Justice S.S. Bondy in Family and Children’s Services of Wellington County v. C.R., 2021 ONCJ 346 at para. 35:

“5       The parties agree the test for leave is set out in the decision of Justice Bean in Catholic Children’s Aid of Metro Toronto v. B.A.F. [1988] O.J. No. 295 (“B.A.F.”). The five part test is as follows:

A.     The judge must be satisfied that the status review application for which leave is sought is being brought bona fide, and not for some ulterior motive for attempting to review the child’s status and upset the child’s present living situation.

B.     Leave ought not to be granted if the relief sought can be obtained practically otherwise than by reviewing the whole order itself.

C.     There has to be some unusual circumstances to justify the review in spite of the child’s permanent status as a Crown ward and despite living continuously with the same foster parents for two years.

D.     The application must establish and the judge must be satisfied that a status review application at this time, after the lapse of two years, would likely accomplish the purposes of the Act as set forth in section 1.

E.     The applicant must establish a prima facie case, that if leave were granted and the status review application proceeded to hearing, the result of the hearing would probably be the result sought by the applicant.”

6        In Durham Children’s Aid Society v. J.S. 2009 CanLII 80106 (ON SC), [2009] O.J. No. 5901 at paragraph 97, Justice Timms considered the five criteria established by Justice Bean and stated:

…sufficient to say that any party making an application for a review of a Crown wardship order, which does not lie of right, must satisfy the court, on a balance of probabilities, that such a review would meet the “paramount” and “other purposes” definitions found in section 1 of the CFSA. Best interests are included therein.

7         The paramount purpose of the CFSA is to promote the best interests, protection and well-being of children, which takes precedence over all other considerations.”

All five parts of the test must be met by the party seeking leave to bring a status review application: K.C. v. Children’s Aid Society of Hamilton, at para. 9; Children’s Aid Society of Toronto v. M.S., [2016] O.J. No. 2701 (C.A.) at para. 19.” 

Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.M.L., 2022 ONCJ 195 (CanLII) at 12-14

“Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce:  As stated in Bullock v Bullock 2004 CanLII 16949 at para 13: “A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations”.

This is not to say that voluntary retirement can never constitute a material change in circumstances.  Every case must be determined on its own facts, with consideration of all relevant factors, including the language of settlement documents.  In this case, the minutes of settlement were silent on the issue of retirement.  It would be beneficial for parties to turn their minds to this eventuality when crafting terms of resolution.  We adopt the comments in Bullock v. Bullock at para 1:

Does withdrawal from the workforce at age 62 qualify as a “material change of circumstances” justifying variation of spousal support?  While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living.  Otherwise, our regime of spousal support will tend to leave payee spouses in positions of financial need, often dire need, at a time in their lives when they cannot take meaningful steps to ameliorate their own condition.”

Cossette v. Cossette, 2015 ONSC 2678 (CanLII) at 13-14

“As this trial was pursuant to the Hague Convection, the convention also has rules with respect to costs.

Article 26 of the Hague Convention provides that the court can order the person who removed or retained the child “to pay necessary expenses incurred by or on behalf of the applicant [move away parent] including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant [left behind parent], and those of returning the child”.

The court has a broad discretion pursuant to Article 26. It allows the court to order costs for the following:

• • • • •    to pay necessary expenses incurred by or on behalf of the applicant;
        •    to pay travel expenses,
        •   to pay any costs incurred or payments made for locating the child;
        •    to pay the costs of legal representation of the applicant; and,
        •    to pay those of returning the child.

Article 26 of the Hague Convention has three objectives:

a)   to compensate the left behind parent for costs incurred in locating and recovering the abducted child;

b)   to punish an abducting parent; and

c)   to deter other parents from attempting to abduct their children.

See Beatty v. Schatz, 2009 CarswellBC 1555, 2009 BCSC 769 (CanLII), [2009]  (B.S.C.), para 16.

The Hague Convention anticipates that all necessary expenses incurred to secure the child’s return will be shifted to the abductor, both to restore the father to the financial position he would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place. See Dalmasso v. Dalmasso, 9 P.3d 551 (U.S. Kan. S.C. 2000);  Beatty v. Schatz, 2009, B.C.S.C., supra, para 17; Solem v. Solem, 2013 ONSC at para. 10.

Article 26 gives the Court authority to order legal costs beyond those ordinarily provided for in family law cases by the rules of court. The legal costs provided for in the rules are generally only a portion of the actual legal costs incurred: Beatty v. Schatz, 2009, B.C.S.C., supra, para 20.”

            Kommineni v. Guggilam, 2022 ONCJ 191 (CanLII) at 27-32

“Heather’s counsel argues that this termination (even if bona fide) is irrelevant because Jay has significant sources of unexplained income outside of his employment.  She seeks to impute income to Jay based upon section 19(1) of the Federal Child Support Guidelines, SOR/97-175.

The imputation of income requires a rational and solid evidentiary foundation grounded in fairness and reasonableness: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, at para. 44.

Where there are significant discrepancies in the payor’s evidence, the onus is on the payor to provide an explanation: see Abbas v. Albohamra, 2020 ONSC 591 where the court stated, at para. 52:

In reviewing the evidence, I agree with the trial judge there was a significant discrepancy between Mr. Abbas’ declared income, his lifestyle and his expenditures. When such a discrepancy is present, the onus is on the individual purporting their income to be a certain amount to explain that difference.

Heather says that Jay’s main source of income is cash from undisclosed sources. She says that he would give her stacks of cash to pay her expenses. She describes a lavish lifestyle which included expensive trips where they flew business class and stayed in 5 star hotels.

Heather has done a comprehensive lifestyle analysis of Jay’s spending which shows that Jay’s average net spending is $346,860. When this is grossed up this equates to gross income of $663,000.

Heather relies upon the following cases where courts have held that it is appropriate to gross up net spending when calculating income for the purposes of spousal support: Adams v. Campbell, 2003 CarswellOnt 3276 at 79; Gonabady-Namadon at paras 22-25 and 40-44; Hayward v. Hayward, 2015 ONCJ 212, at para. 27; and Li v. Wong at paras 3-7.

This lifestyle analysis was based upon: a) Jay’s average monthly spending on his American Express, BMO Mastercard and TD Visa in 2020 which totaled $177,900; b) actual expenses for the Portland Condo according to his budget; c) his claimed monthly costs not included in his credit card spending; d) his Lamborghini and Audi down payment and lease payments; and e) cash which Heather says he gave her after separation for a Range Rover lease payments and a nanny.

Heather says this analysis is conservative because it does not include any other spending reflected in his bank account debits and many cash expenses which she did not have receipts for, payments for the condo where he currently resides, and unexplained large deposits in his account.

Counsel for Jay argued that Heather’s lifestyle analysis was inadequate because it was based upon charts prepared from disclosure which Jay provided, but the actual credit card statements are not before me. If Jay had wished to challenge these charts as not being accurate calculations based upon the disclosure which he provided, he could have done so with his own analysis and charts.

Having declined to address Heather’s lifestyle analysis with his own evidence on these calculations, or his own analysis, I am not persuaded by Jay’s argument as to the sufficiency of Heather’s evidence on these issues.”

         McArthur v. Le, 2022 ONSC 2110 (CanLII) at 13-22

“For a constructive trust remedy to be imposed, Ms. Yao is required to show unjust enrichment.  In Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4^th) 621 (S.C.C.) the Supreme Court of Canada determined that there are three elements that must be proven on a balance of probabilities in order for a party to succeed in an unjust enrichment claim:  (a) an enrichment; (b) a corresponding deprivation; and (c) the absence of juristic reason for the enrichment (at. Page 630).

The leading case by the Supreme Court dealing with unjust enrichment and joint family venture is Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.  The Supreme Court stated, at para. 88, that “[a] joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.”  At paragraph 100, Justice Cromwell sets out the court’s analysis of the remedies for unjust enrichment:

a.    The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b.    Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.

c.    To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

d.     Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

In order for unjust enrichment to be established, the plaintiff must “demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property” (Kerr, para. 50).  The plaintiff must show a “’sufficiently substantial and direct’ link, a ‘causal connection’ or a ‘nexus’ between the plaintiff’s contributions and the property which is the subject matter of the trust” (Kerr, at para. 51).  Further, in Kerr, at para. 51, the Supreme Court noted that indirect monetary contributions and direct labour contributions may be sufficient, “provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property.””

         Auciello v. Yao, 2022 ONSC 2374 (CanLII) at 41-43

“Rule 24(1) of the Family Law Rules sets out the basic assumption that a successful party is entitled to costs.  Success can be most easily measured by comparing the result obtained (final order) with the result sought (pleadings) and the offer to settle.”

Benoit v. Kerr, 2014 ONSC 5401 (CanLII) at 18

“In Johanson v. Hinde, 2016 ONCA 430 (CanLII), at para. 1, this court recently emphasized the deferential standard of review owed to factual findings of trial judges in family litigation:

The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges’ appreciation of the facts. If anything, this is more accentuated in family litigation.

Deference was also emphasized in Hersey v. Hersey, 2016 ONCA 494 (CanLII), at para. 12:

Absent an error in principle, a material misapprehension of evidence or an award that is clearly wrong, this court must not overturn a support order because it might have reached a different result or balanced factors differently.

…

The appellant argues that the remedy ordered – termination of support – is unnecessarily harsh. There were other, more appropriate, alternatives open to the motion judge, such as imputing to the appellant the income that she ought to have earned had she returned to the workforce, and reducing ongoing support accordingly. It would have been more appropriate, she argues, to impute income because there is no evidence that she could have become self-sufficient (in the sense that she could have achieved the standard of living enjoyed by the parties at the date of separation) even if she had made reasonable efforts to do so.

The appellant concedes that where there is a lack of effort to achieve self-sufficiency, it can be appropriate to reduce support to incentivize a recipient to make appropriate efforts towards self-sufficiency: Juvatopolos v. Juvatopolos (2004), 2004 CanLII 34843 (ON SC), 9 R.F.L. (6th) 147 (Ont. S.C.), at para. 27, aff’d (2005), 2005 CanLII 35677 (ON CA), 19 R.F.L. (6th) 76 (Ont. C.A.). But she argues that it is too late in the day for her. She is not now capable of supporting herself at the standard of living the family enjoyed during the marriage, no matter what the incentive.

The respondent argues that the motion judge found that to the extent the appellant may suffer financial hardship as a result of termination of support, this is not the result of the marriage or its breakdown, but of her own improvident choices.

The motion judge considered that the appellant is not without significant resources, notwithstanding that the respondent has amassed considerably more. But the motion judge found that the mere fact that there is a disparity between the resources of the appellant and the resources of the respondent does not, in the circumstances of these parties, supply a juristic reason to continue support. I agree that the result appears harsh, given the resources available to the respondent. But the motion judge was entitled to make the order that he did, and there is no basis on which we should interfere with it.”

         Choquette v. Choquette, 2019 ONCA 306 (CanLII) at 15 & 26-29