“In order to find duress, “there must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement”: Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, at para. 53. Duress involves coercing the will of, or directing pressure to, a party so that “they have no realistic alternative but to submit”: Ludmer, at para. 53. It can include “coercion, intimidation or the application of illegitimate pressure”: Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72.”
Author: dawi
March 17, 2025 – NFP Statements
“While the parties’ NFP statements must be considered by the trial judge, as with any evidence presented to the court, the trier of fact can accept none, some, or all of it: Sagl v. Sagl, 1997 CanLII 12248 (ON SC), 31 R.F.L. (4th) 405 (Ont. S.C.), at para. 30; Qaraan v. Qaraan, 2012 ONSC 6017, at para. 35. In this case, there were numerous NFP statements prepared before, during and after the trial, along with oral and documentary evidence from both parties. As the evidence was adduced during the trial, updated NFP statements were produced. This is not unusual, and indeed, may helpfully respond to the court’s resolution of certain key factual disputes, such as the separation date, and so assist the parties and the court in focussing on the outstanding issues.
In this case, the parties did not follow the trial judge’s directions, rending their updated NFP statements unhelpful. The trial judge issued reasons for decision after the trial, asking the parties to prepare new NFP statements reflecting his determinations of various asset values. This is a common and sensible approach, which reflects the fact that it is not the responsibility of the court to prepare such statements. It is up to the parties to prepare and submit their NFP statements: Cong v. Cong, 2007 CanLII 7994 (Ont. S.C.), at para. 38. However, where, as here, the parties fail to accept the trial judge’s determinations, the revised NFPs do not assist.”
March 14, 2025 – Essential Elements To Prove “Gift”
“Indeed, Marta acknowledges that Greg’s promise in the October 18 email would not have been legally enforceable without the delivery of the subject matter of the promise. The law is clear that regardless of intention, a promise to give a future gift does not create an effective gift at law. An effective gift requires delivery of the subject matter of the trust: Rubner v. Bistricer, at para. 46; Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641 at paras. 38, 40-44.”
March 13, 2025 – Definition of “Matrimonial Home”
“Section 18 of the FLA provides as follows:
Every property in which a person has an interest and that is or, if the parties have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
The definition of matrimonial home in s. 18 of the FLA indicates that four conditions must exist for a property to qualify as a matrimonial home:
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- One of the spouses must have an interest in the property;
- The property was ordinarily occupied by both spouses;
- The joint occupation existed at the time of separation; and
- The property was occupied as a family residence.
Section 18 of the FLA clearly contemplates that spouses can have more than one matrimonial home at the same time. Deciding whether a property qualifies as a matrimonial home within the definition of s. 18 of the FLA is a fact specific analysis focused on determining whether the parties ordinarily occupied the property as a family residence at the time of separation.
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To determine if a property is “ordinarily occupied”, the court in Farnsworth v. Chang, 2014 ONSC 1871, noted the following:
[55] In Oliver Estate v. Oliver, 2012 ONSC 718, at paras. 47-49, the court recognized the flexible and even minimal occupation requirement of the designation of a matrimonial home:
…the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation…In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 46, Perkins J. noted that “to occupy something does not require constant or continual occupancy, nor does it require occupancy of every square metre”. In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.
Where usage is minimal or sporadic, the courts have focused on the intent of the parties. In LeCouter, H.A. Vogelsang J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family’s “clear intent and purpose was to live there as a family”.
I find that the preponderance of evidence in this case establishes that the Colonization Rd. home is a matrimonial home within the meaning of s. 18 of the FLA. The word “ordinarily” is synonymous with “normally”, “commonly” and “regularly”. In my view, this residence was “regularly” occupied by the parties between 2012 and 2018 and was “regularly” occupied by them at the time of separation.”
Peters v. Peters, 2024 ONSC 1526 (CanLII) at 108-110, 121-122
March 12, 2025 – Temporary Changes to Final Orders
“For some time, cases suggested that there was limited jurisdiction under s. 17 [of the Divorce Act] to make temporary changes to a final order for support: see for example Andries v. Andries, 1998 CanLII 14093 (MB CA), [1998] M.J. No. 196 (C.A.) and Vipond v. Vipond, [1990] O.J. No. 3292 (S.C.J.). There have been cases since then which suggest that there is jurisdiction to change support orders on a temporary basis. In Hayes v. Hayes, 2010 ONSC 3650 for example, Spies J. suggested that a support order could be temporarily varied on the same basis for which a stay could be granted (prima facie case; urgency; hardship) and in Berta v. Berta, 2019 ONSC 505, Kurz J. suggested further refined the test for an interim variation to add a further requirement for the moving party to have clean hands. Therefore, the cases now state that, for there to be a temporary change in support, the moving party must address four issues:
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- Is there a good prima faciecase for a variation of support;
- Would continuation of support result in a hardship to the payor?
- Is the matter sufficiently urgent to vary support on a temporary basis; and
- Does the moving party come to court with clean hands?”
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Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 7
March 11, 2025 – Suing The Other Lawyer: That’s a Thing?
“A lawyer owes no duty of care to clients of opposing counsel in court proceedings. Lawyers owe a duty of care to their own clients. Suing opposing counsel because of the manner in which they litigate is generally an abuse of process: Ahsan v. Minden Gross LLP, 2024 ONSC 1307 at paras 5 and 6. If a lawyer owed a duty to both their own client and to the opposing party, the lawyer would be in a conflict of interest: Robins v. 2758729 Ontario Inc. et al, 2023 ONSC 4367, at para. 25.
To allow a claim against an opposing party’s counsel would be against public policy. Such a claim would interfere with the loyalty between a solicitor and their client and encourage re-litigation and collateral attacks on decisions reached in the disputes between litigants. It would fundamentally alter the adversarial legal system for a lawyer for one party in a legal proceeding to be accountable to the other party to conduct the proceeding in good faith: Crown Crest Financial Corp. v. Sabbah, 2019 ONSC 7114, 61 C.C.L.T. (4th) 292, at paras. 26-28; Chuvalo v. Worsoff, 2022 ONSC 4079, 75 R.F.L. (8th) 94.
In Chuvalo, at paras. 32-33, Chown J. noted the following:
In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.
Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” [Footnotes omitted.]”
Spasiw v. Law Society of Ontario, 2024 ONSC 1486 (CanLII) at 47-49
March 10, 2025 – Gifts From Relatives as Income (Part 1)
“The respondent agreed that he is often the recipient of cash from his mother. During the years 2016 – 2020, he received between $2,000 to $5,350 per year in cash from her. In addition, the respondent has received money from his mother to assist with his legal fees in this proceeding.
The applicant says that these payments are gifts that should be included in the respondent’s income for the purposes of child support. She relies on the judgment of the Court of Appeal in Bak v. Dobell, supra, where Lang J.A. wrote as follows:
[74] Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.
[75] In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors. Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor’s entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts [emphasis added].
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As Lang J.A. said in Bak v. Dobell, supra, gifts are not typically included in income, but may be added where given in unusual circumstances which suggest they are appropriately considered income.
March 7, 2025 – DNA Testing & Paternity
“The court raised the admissibility issue of the respondent’s DNA test report at the outset of the hearing of the motion. That issue had not been discussed in the affidavit material; nor was it mentioned in the respondent’s factum.
The CLRA deals with paternity testing including blood and DNA tests, and admitting the test results into evidence. Section 17.2 provides:
Blood, DNA tests
17.2 (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence.
Conditions
(2) The court may impose conditions, as it thinks proper, on an order under subsection (1).
Consent to procedure
(3) The Health Care Consent Act, 1996 applies to the test as if it were treatment under that Act.
Inference from refusal
(4) If a person named in an order under subsection (1) refuses to submit to the test, the court may draw such inferences as it thinks appropriate.
Exception
(5) Subsection (4) does not apply if the refusal is the decision of a substitute decision-maker as defined in section 9 of the Health Care Consent Act, 1996.
Section 17.2(1) authorizes the court not only to grant a party leave to obtain a paternity test, but also “to submit the results in evidence.”
In the present case, there was no evidence indicating that any orders were made pursuant to s.17.2(1). The two DNA test reports were introduced into the record by appending them as exhibits to the parties’ affidavits.
Where parties are cooperating, it may be appropriate for parties to agree to obtain a DNA test without an order and to agree that the test can be submitted into evidence. The parties then can advise the court of their agreement which also should include agreement and verification as to the qualification of the expert who signed the report.
However, in the present case, while the applicant cooperated in the DNA testing regarding the respondent, her evidence, and her position, is that she is not consenting to the admissibility of that report.
If the respondent seeks to rely on his DNA test report, it is incumbent on the respondent to ensure that the test report is evidence that is properly before the court. By way of analogy, there are other statutory provisions where reports are admissible as evidence: for example, medical or other reports signed by a practitioner (Section 52(2), Evidence Act, R.S.O. 1990, c. E.23), parenting capacity assessments in protection cases (Section 98(12), Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, reports of the Children’s Lawyer (Section 112(6), Courts of Justice Act, R.S.O. 1990, c. C.43) and assessments in parenting cases (Section 30(9), CLRA.”
March 6, 2025 – Costs: General (and useful) Principles
“Entitlement and quantum of costs is in the discretion of the judge: Section 13(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am.; Mattina v Mattina, 2018 ONCA 867 at para 9.
In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina at para 10.
The starting point is that the successful party is presumptively entitled to costs: r. 24(1).
In assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8) FLR.
Similarly, in assessing quantum, judges are to consider as per r. 24(12) FLR: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses; and any other relevant matter: r. 24(12) FLR.”
March 5, 2025 – Competing For Home on Open Market: No Right of First Refusal
“Counsel for Mr. Rastkar relies on the decision in Martin v Martin (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.) to argue that once a court makes an order that a jointly owned matrimonial home is to be sold, the court cannot grant either owner a right of first refusal without the consent of the other. This applies equally to a matrimonial home. Once the home is ordered to be sold, each spouse is entitled to receive a fair market value for his or her interest in it.
In other words, if either Mr. Rastkar or Ms. Soltani wish to purchase the matrimonial home from the other, each must compete with other interested purchasers and do so without any inside information as to the other offers made. The caselaw makes clear that the owner must participate in the bidding process and comply with all the formalities of that process as would any other third party bidder and the home should be sold to whoever makes the highest offer within that fair process: Howard v Howard, 2022 ONSC 6915 at para 50.”