“To avoid trial or to narrow the issues, Ms. Burley did nothing. She made no Offer to Settle, formally or informally. Intransigence as such comes at a price. As aptly stated by Wilson J. in Hussain v. Alam, 2013 ONSC 2250:
“Parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs.”
“The parties cannot confer jurisdiction on a court through consent: “The common law unanimously supports the general proposition that parties cannot empower a court with the authority to make a determination where it otherwise has no authority to do so or it its authority is limited by statute: Rothgiesser v. Rothgiesser [2000 CarswellOnt 50 (Ont. C.A.)], 2020 CanLII 1153 at para. 19. Jurisdiction is not optional: it “cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered”: N. (J.) v. Durham Regional Police Service, 2012 ONCA 428 (Ont. C.A.) at para. 25.”
“In Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at para. 16, Pazaratz J. reviewed the applicable legal principles to be considered in a motion of this kind:
The applicable legal principles include the following:
a. Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (Ont. S.C.J.).
b. A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant. Kaphalakos v. Dayal, 2016 ONSC 3559 (Ont. Div. Ct.); Marchese v. Marchese, 2017 ONSC 6815 (Ont. S.C.J.); Jama v. Basdeo, 2020 ONSC 2922 (Ont. S.C.J.); Davis v. Davis, 1953 CanLII 148; Brienza v. Brienza, 2014 ONSC 6942 (Ont. S.C.J.).
c. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Jama v. Basdeo; Steele v. Doucet, 2020 ONSC 3386 (Ont. S.C.J.).
d. The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v. Doucet.
e. The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. Afolabi v. Fala, 2014 ONSC 1713 (Ont. S.C.J.).
f. Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale. Silva v. Silva(1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.); Jama v. Basdeo; Steele v. Doucet.
g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis(1953), 1953 CanLII 148 (ON CA), [1954] O.R. 23 (Ont. C.A.); Steele v. Doucet.
h. In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined. Maskewycz v. Maskewycz(1973), 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (Ont. C.A.).
i. The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC 703 (Ont. S.C.J.); Latcham v. Latcham(2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.); Dulku v. Dulku, 2016 CarswellOnt 16066 (Ont. S.C.J.).
j. In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).
k. More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later — in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.
l. The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte, 2019 ONSC 6954 (Ont. S.C.J.); Kaing v. Shaw, 2017 ONSC 3050 (Ont. S.C.J.). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated — even on a temporary basis — to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.
m. Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v. Darrigo, 2018 ONSC 1039 (Ont. Div. Ct.). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.
n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).
o. On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.
p. The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.
q. But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.
r. A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin1992 CanLII 7402 (ON CA), [1992 CarswellOnt 226 (Ont. C.A.)], 1992 CanLII 7402. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola[1990 CarswellOnt 574 (Ont. C.A.)], 1990 CanLII 6888. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).
s. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?
“The test for attribution of income from Drygala is usefully reviewed in Kinsella, at paras. 50-54. The first part of the test asks whether a party is intentionally unemployed or underemployed, that is, earning less than the party is capable of earning. The second part looks to determine whether that unemployment is caused by reasonable health or educational needs or the needs of a child of the marriage. In the last part of the test income can be attributed having regard to the capacity to earn an income, in light of the party’s employment history, age, education, skills, health, available employment opportunities and the standard of living in the parties’ relationship.
Speculation is not permitted for the attribution of income. The determination must be evidence-based: Drygala, at para. 44.”
“Courts act with care in determining when it is appropriate to exercise their discretion in favour of setting aside an agreement. This is in large part due to the weight which is placed on private citizens being able to negotiate and make their own arrangements with respect to an agreement, especially when independent legal advice was obtained: Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228 (Ont. C.A.) at para. 50, per curiam [“Butty”]. The Applicant is essentially asking the court to accommodate her change of mind.
In LeVan v. LeVan (2008), 90 O.R. (3d) 1, [2008] O.J. No. 1905, 2008 ONCA 388, at para. 51, the Court of Appeal held that s. 56(4) comprises a two-stage analysis:
a) Can the party seeking to set aside the agreement demonstrate that one or more of the s. 56(4) circumstances isengaged?
b) If so, is it appropriate for the court to exercise its discretion to set aside the agreement?
The Court of Appeal, in Virc v. Blair, 2014 ONCA 392 (CanLII), 119 O.R. (3d) 721 [“Virc”], set out the approach to be taken by the Court on a motion for summary judgment to dismiss a spouse’s application to set aside a separation agreement. In Virc, the applicant sought to set aside the separation agreement she had entered into with her former husband. She argued that her husband had deliberately and materially misrepresented the value of his interest in a company, with the result that she had received an equalization payment that was substantially less than what she was entitled to. The respondent/husband moved for summary judgment dismissing her claim.
This Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 7104, granted the husband’s motion. The motions judge concluded that, even if the values provided by the husband were false, there was no genuine issue for trial because the wife had information that should have caused her to question the husband’s disclosure before she signed the separation agreement. The wife appealed. The Court of Appeal allowed the appeal and ordered that the wife’s application proceed to trial.
The wife in Virc argued that, besides the non-disclosure, the parties’ inequality of bargaining power resulted in undue influence, that the husband’s eagerness to resolve matters created duress, that the terms regarding child support and the matrimonial home were unconscionable, and that the terms of the agreement should be altered to provide for spousal support.
The Court of Appeal held that assessing whether the agreement complied with the objectives of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) respecting spousal support was a genuine issue requiring a trial, and that given the unresolved issues, the allegations of undue influence, duress and unconscionability also should have been determined by a trial judge on a full factual record: Virc, para. 76.
In Virc, the motion judge held, at para. 55, that the fact that the appellant “had information that should have caused her to question” the veracity of the husband’s disclosure precluded any chance of successfully setting aside the agreement, even if the respondent had, in fact, deliberately made false disclosure. In other words, the motion judge determined that the appellant ought to have known that the value her husband attributed to his date of marriage interest in his company was overstated. In making this determination, the motion judge relied on an excerpt from Cheshire & Fifoot. She wrote, at para. 83 of her reasons:
Further, where the recipient spouse has a reason to question the information provided, but does not, no misrepresentation or omission could result in the contract being avoided. I refer to Cheshire and Fifoot, The Law of Contract, 10th ed., at p. 244, and quoted in Farquar, at para. 35:
Knowledge of the untruth of a representation is a complete bar to relief, since the plaintiff cannot assert that he has been misled by the statement, even if the misstatement was made fraudulently. In such a case, “the misrepresentation and concealment go for just absolutely nothing . . .”.
The Court of Appeal noted that the motion judge had failed to mention that the authors of Cheshire & Fifoot went on to write:
It must be carefully noticed, however, that relief will not be withheld on his ground except upon clear proof that the plaintiff possessed actual and complete knowledge of the true fact – actual not constructive, complete, not fragmentary. The onus is on the defendant to prove that the plaintiff had unequivocal notice of the truth. In particular, the mere fact that a party has been afforded an opportunity to investigate and verify a representation does not deprive him of his right to resist specific performance or to sue for rescission. As Lord Dunedin once said:
No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction. [page 736]
. . . . .
[I]t is no answer to a suit for relief to say that inspection of the contracts or of the lease or of the bills of costs was expressly invited but was not accepted.
The Court of Appeal in Virc concluded:
[58] Once the motion judge assumed that there had been deliberate material misrepresentations, she erred in shifting the onus to the appellant to inquire as to the veracity of the respondent’s financial disclosure. In the face of a deliberate material misrepresentation, the onus is not appropriately placed on the recipient spouse. Rather, the burden is on the party disclosing to establish actual knowledge of the falsehood by the recipient. The respondent could point to no authority for the proposition that the suggested duty of a spouse receiving financial disclosure in a matrimonial case, to investigate or test the veracity of the information provided, overtakes deliberate material non-disclosure by the other spouse.
The effect of non-disclosure on the integrity of a Separation Agreement is not limited to instances of deliberate misrepresentation. It applies equally to circumstances involving deliberate and material non-disclosure. The Court of Appeal in Virc stated, in part:
[62] In Butty v. Butty, (2009), 99 O.R. (3d) 228, [2009] O.J. No. 5176, 2009 ONCA 852 this court overturned the trial judge’s determination that the marriage contract should be set aside pursuant to s. 56(4)(a) because the husband had failed to disclose significant assets or debts when the contract was made. … in the case under appeal, the finding of actual knowledge on the part of the appellant is lacking.
[63] In Quinn [Quinn v Epstein Cole LLP, (2008), 92 O.R. (3d) 1, 2008 ONCA 662], this court noted, at para. 4, that a spouse could not resile from the consequences of failing to pursue further disclosure “unless she demonstrated that [the husband’s] financial disclosure was inaccurate, misleading or false.” In Quinn, unlike the case under appeal, the appellant had no evidence of non-disclosure but maintained that more such evidence might be forthcoming as a result of examinations for discovery.
….
[64] Next, the motion judge erred in granting summary judgment when relevant factors that required a determination were left unresolved.
[65] In Rick v. Brandsema, [2009] 1 S.C.R. 295, [2009] S.C.J. No. 10, 2009 SCC 10, the Supreme Court of Canada considered the implications of the deliberate failure of a spouse to provide all the relevant financial information in negotiations for the division of assets….
[66] The Supreme Court held that the deliberate failure to make full and honest disclosure of all relevant financial information may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation….
[67] The motion judge erred by making a determination in the absence of a resolution of these key factors….
[Emphasis added, citations added]
This Court followed the Virc approach in Turk v. Turk, 2015 ONSC 5845 [“Turk”], where an order for summary judgment was not granted as the court was not confident that it could make findings of the necessary facts and apply the relevant legal principles so as to resolve the issue of setting aside a separation agreement.”
“The threshold requirements for expert evidence admissibility are set out in R. v. Mohan, 1994 CanLII 80 (SCC) (relevance, necessity, absence of an exclusionary Rule and a properly qualified expert). Only the last requirement is disputed in this case. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the admissibility test evolved to require a two-step analysis; first, the court must apply the Mohan criteria then, second, the court must exercise a discretionary function, balancing the potential risks and benefits of admitting the evidence. At this second, or “gatekeeping”, stage relevance, necessity, reliability, and absence of bias are helpful factors “in weighing the overall competing considerations in admitting the evidence.”: White Burgess, at para. 54.
In Aldush v. Alani, 2021 ONSC 6410, a parenting case in which the court needed assistance in the understanding of Sharia law, Smith J. outlined the expectations of a proposed expert and the non-exhaustive factors going to the issue of qualifications (citations omitted).
[24] A properly qualified expert must be able to provide fair, objective and non-partisan assistance to the Court. The expert’s opinion must be impartial, independent, and absent of any bias. In terms of independence, the expert’s opinion must be the product of independent and uninfluenced judgment: White Burgess Langille Inman.
[25] To be found as a properly qualified expert, the Court must be satisfied that the expert has “acquired special or particular knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: R. v. Mohan.
[26] The words “properly qualified” does not only mean “judicially qualified” but also refers to academic and experiential credentials, as well as registration with a governing body regarding the expertise: Children’s Aid Society of Algoma v. F.M.
[27] Factors that can assist the Court in determining if the tendered witness is qualified includes the expert’s formal education, professional qualifications, membership and participation in professional associations, attendance at courses or seminars in the subject matter, experience, teaching and writing in the proposed area, and previous qualification to give opinion evidence: R. v. Pham.
As pointed out in Dulong v. Merrill Lynch Canada Inc., (2006), 80 O.R. 3d 378, it does not matter how the witness acquired the “special” or “peculiar” knowledge about the matter on which they have undertaken to testify so long as they can demonstrate they have acquired that knowledge. As Ducharme J. noted,
[21] When assessing the qualifications of a proposed expert, trial judges regularly consider factors such as the proposed witness’s professional qualifications, her actual experience, her participation or membership in professional associations, the nature and extent of her publications, her involvement in teaching, her involvement in courses or conferences in the field and her efforts to keep current with the literature in the field and whether or not the witness has previously been qualified to testify as an expert in the area.”
“As a general rule, a payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse. However, the applicable legislation makes clear that the granting or denial of prejudgment interest is discretionary: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 130. There are exceptions to the general rule. Exceptions arise “where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial”: Burgess v. Burgess (1995), 1995 CanLII 8950 (ON CA), 24 O.R. (3d) 547 (C.A.), at p. 552; Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 43.”
“The leading case on the issue of the appointment of amicus curaie in the context of a family law proceeding is Morwald–Benevides v. Benevides, 2019 ONCA 1023. In it, the Ontario Court of Appeal has found that the following principles apply for the appointment of amicas curiae:
[27] First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case: CLA, at para. 47. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.
[28] Second, a party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice: see, e.g., R. v. Imona-Russel (2019), 145 O.R. (3d) 197, [2019] O.J. No. 1607, 2019 ONCA 252; Zomparelli v. Conforti, [2018] O.J. No. 543, 2018 ONSC 610 (S.C.J.).
[29] Third, relatedly, while amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus: Imona-RusseI, at para. 67
[30] Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances: CLA, at para. 47. And see O. (C.C.) v. V. (J.J.), [2019] A.J. No. 992, 2019 ABCA 292, 91 Alta. L.R. (6th) 237, at para. 50. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine, as CLA noted at paras. 27-31, 83.
[33] Fifth, the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively as it would be by counsel: Imona-Russel, at para. 69.
[38] Sixth, it will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus’s duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona Russel, at para. 89.
[39] Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.”
“In the decision of Beardsley v. Horvath, 2022 ONSC 3430 (Ont. S.C.), Summers J. sets out a comprehensive analysis of the law regarding costs of settled cases. She notes the following in paras. 10-12:
(i) The caselaw has developed since the decision in Blank v. Micallef (2009), 75 R.F.L. (6th) 308, 2009 CanLII 60668 (Ont. S.C.), where the court held that costs of a settled case should not be awarded absent compelling circumstances.
(ii) Citing the cases of Scipione v. Scipione, 2015 ONSC 5982, 68 R.F.L. (7th) 66 (Ont. S.C.), Ball v. Ball, 2014 ONSC 5754, 52 R.F.L. (7th) 244 (Ont. S.C.), and A.C. v. G.K., 2015 ONCJ 399, 64 R.F.L. (7th) 496, Summers J. identifies some general principles that have emerged:
i. It is not uncommon for the court to receive last minute settlements which resolve all issues other than costs.
ii. Parties are always encouraged to settle; even at the last moments of a motion or trial – if signing minutes of settlement will jeopardize a litigant’s ability to seek costs, it will create a disincentive for settlement.
iii. There is a presumption that a successful party is entitled to costs pursuant to r. 24(10)); a party’s behaviour may be a relevant factor. If a court can assess success and reasonableness, costs may be awarded even when there has been a settlement. This is often the case where there is an extensive record with supporting documentation.
iv. If a party brings a motion asking to change almost everything, and, at the last minute, signs a consent which changes almost nothing, it may not be difficult for a judge to determine success.
v. “Success” is assessed by comparing the terms of the order made against the relief requested in the pleadings and, where applicable, against the terms of an offer to settle.
vi. When a case is determined by a settlement rather than a judicial decision, a court often does not have the information and evidence required to assess who was “successful” or the degree of that success. Sometimes the issues are so numerous and the results so different from either party’s offer that “success”cannot be measured. For example, in Page v. Desabrais, 2012 ONSC 6875 (Ont. S.C.) at para. 42, a multi-issue case, the court compared the offers of the parties throughout the proceeding and found it “simply impossible…to declare one party more successful than the other.”
vii. Sometimes, however, a court is able to assess what represents “success” after a settlement is reached. In Kearley v. Renfro, 2012 ONSC 5391 (Ont. S.C.), the only issue before the court on a motion was the residency of three children; the mother agreed on the day scheduled for the motion and settlement conference that the children would go into their father’s care immediately. The court found that the father was substantially successful, and awarded him costs.”
“The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.
The test for when the Hague Convention applies is set out in Article 3. It provides that the removal or retention of a child is considered wrongful where it breaches the custodial rights of the left behind parent in the State where the child was habitually resident immediately before the wrongful removal or wrongful retention. Said custodial rights can include joint custodial rights, and can arise from law, a decision, or an agreement that has legal effect: Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 21. And Balev, at para. 28.”
