Author: dawi

“I also find that the Father’s access should be expanded to include regular overnight access. The AFCC-O Parenting Plan Guide (pages 18–19) provides helpful considerations for parents, mediators, lawyers and judges when they are developing parenting time schedules.   

Schedules for pre-schoolers, aged 3 to 5 years: Preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered. Transitional objects, such as a favorite toy, stuffed animal or blanket, moving between the two homes can help a preschooler manage sadness and anxiety.

If one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight. As a child becomes more comfortable moving between the two homes, one or two overnights a week might be added.

In this case the Father is an actively involved parent. Although he attributes blame to the Mother for the absence of regular overnight access to date, the current reality is that the child’s overnight routine is derived solely from her experiences sleeping at the Mother’s home. She needs time to transition to an overnight alternate weekend schedule. Since the three 8-hour blocks per week have proved successful, it is in the child’s best interests to move to overnight access.

In consideration of the animosity between the parties, transitioning to a schedule that provides for pick ups and drop offs at school is one way to protect K.N. from further conflict. The benefits are explained in the AFCC-Ontario Parenting Plan Guide (page 19).

If the parents have difficulty in communicating in person, it may be preferable to have as many exchanges of care as possible done by having one parent drop the child at day care and the other pick up the child at the end of the day. This would require shifting the schedule so that it starts on Monday; apart from holidays, transitions take place through daycare.”

J.N. v. A.S., 2020 ONSC 5292 (CanLII) at 69-71

“The mother and father put considerable emphasis on the Criminal Code. They argue it allows them to use reasonable force as parents to discipline their children.  They defend their behavior, say it is not against the law and reject the Society’s zero tolerance policy for corporal punishment.

In Durham Children’s Aid Society v. J.L.B. (M), 2016 ONSC 6405 at paragraphs 11 and 12, Justice Nicholson reviews the decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76 where the Supreme Court of Canada analyzes the scope of physical discipline that is permissible for children under s. 43 of the Criminal Code before it becomes the crime of assault. From there, he extrapolates six principles applicable to child protection proceedings:

1. 1. 1. 1. Parents or persons who have assumed all the obligations of parents may use corporal punishment;
         2. The punishment must be intended for educative or corrective purposes. In Canadian Foundation for Children, Youth and the Law the court states, “Only sober, reasoned uses of force that address the actual behavior of the child and are designed to restrain, control or express some symbolic disapproval of his or her behavior” are permissible, Supra, see note 6. Here the parents argue that their punishments were intended to be remedial.  I am not persuaded. I find the discipline they imposed on the children was reactive and motivated by anger and frustration when rules and expectations were not met.  Force under those circumstances cannot be seen as reasoned or sober and should not be tolerated;
         3. The child must be capable of benefiting from the correction. This means that the capacity to learn must exist alongside the possibility of successful correction. Here, the parents point to M. and D.’s learning and behavioural issues when explaining their challenges as parents to raise them. Considering the evidence of the boys’ potential mental health diagnoses and the other challenges they face, I find it inconsistent for the parents to expect their sons to have the capacity to make positive and corrective changes from the use of force. M.’s recent evidence indicates that with age, he is better able to control his behavior and follow the rules. He says that he no longer gets hit as muchand it no longer hurts as much [Emphasis added].  For D., the situation is different.  He is younger and still struggles to follow the rules and complete his chores properly. I am confident that the benefit and correction contemplated in the case law does not include fear-based learning motivated by self-protection;
         4. Children under two years of age are not capable of understanding why they have been hit. Therefore, force against children of this age cannot be corrective;
         5. Corporal punishment of teenagers is considered harmful because it can induce aggressive or antisocial behavior. Here, M. is 15 and a teenager. D. is 12 and soon to be a teenager.  Their punishment should not be physical;
         6. Physical punishment must be “reasonable under the circumstances”. To determine reasonableness, the court must look at whether the application of force caused harm or created the prospect of bodily harm. If it did, it was not reasonable. Here, the boys expressed their fear of being hit and harmed by their parents. D. said he believed if hit, he could die. Both boys reported continued pain on at least one occasion: M. in 2014 after receiving the belt; and, D. in 2018 after being hit by his father.  The court must also determine whether objects, such as rulers or belts were used to deliver the punishment. If so, it was not reasonable.  In this case, the parents did not deny their use of the belt in 2014. They have not used it since then but the children report that they continue to be struck with objects such as the toaster oven tray, cereal boxes, slippers and toys.  These factors and others including objective appraisals based on current learning and consensus will assist the caregiver and the court to determine whether the force used is reasonable and reduce the danger of subjective decision-making. Outdated notions of what constitutes reasonable force are not to be given undue authority.”: Ibid, at para. 12.

C.A.S. v. A.W., 2018 ONSC 5262 (CanLII) at 48-50

“The Ontario Court of Appeal set out the test to be met in determining contempt in G.(N.) et al v. Prescott-Russell Services for Children and Adults, 2006 CanLII 21037; 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (C.A.) at paragraph 27:

1. 1. 1. 1.  The order that was breached must state clearly and unequivocally what should and should not be done.

1. 1. 1. 2.  The party who disobeys the order must do so deliberately and wilfully.

1. 1. 1. 3.   The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

In the context of family proceedings, the legal principles applicable have been set out in Janowski v. Zebrowski, 2019 ONSC 4046 to include that the purpose of a contempt order is to force compliance by the defaulting parent, disobedience of court orders must have consequences, civil contempt is a remedy of last resort imposed sparingly and cautiously in family proceedings, the “wilfulness” to disobey must be purposeful and not accidental, the absence of “contumacious intent” for the breach is a mitigating but not exculpatory factor, a parent is not entitled to ignore an order and a parent must take all reasonable steps to ensure compliance with the order: Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24, subparagraphs a, b, d, h, i, j and o. Significantly, at paragraph 24, subparagraph k. of Janowski, Justice Trimble stated:

k. There must be clear and compelling reasons to legally justify violation of an order. In order to this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent [sic] harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence. (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 and 61). (emphasis added)

The Ontario Court of Appeal has additionally recently held in Chong v. Donnelly, 2019 ONCA 799 (CanLII) that even when the three elements as set out in G.(N.), supra are made out, the court should consider whether it should exercise its discretion to decline to make a finding of contempt.”

Halawa v. Brady, 2020 ONSC 5284 (CanLII) at 20-22

“The test for variation of temporary orders was summarized by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, (2012) ONSC 6689:

18  The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 of the Divorce Act sets out a framework for the variation of support and custody orders, however that section only applies to variation of final spousal support orders made pursuant to section 15.2(1) of the Act.

19  Despite the lack of specific provisions in the Divorce Act regarding variation of temporary orders, the court does have the authority to make changes to temporary spousal support orders in response to developments in the parties’ situations and the availability of more fulsome evidence relevant to the spousal support analysis. The power to vary temporary spousal support orders made under the Act derives from the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is critical to ensuring fairness and justice as between the parties, given that temporary orders are often imperfect solutions based on very limited and usually untested information. As Sachs, J. stated in Chaitas v. Christopoulos, temporary corollary relief orders are intended to provide “a reasonably acceptable solution to a difficult problem until trial.”

20  The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.

There is a heavy onus on the party seeking to vary a temporary support order, in that the change of circumstances must be substantial since the previous order was made.  A substantial change must also be material, meaning that “had it existed at the time…would likely have resulted in a different order (see Colivas v. Colivas, 2016 ONSC 715).

“A party cannot rely on his own failure to provide adequate disclosure to argue that the decision based on inadequate disclosure should be given less deference.” (see Colivas v. Colivas, at par. 29).”

            Mancini v. Mancini, 2020 ONSC 5259 (CanLII) at 26-28

“The fair comment defence is admirably summarized in R. Brown, The Law of Defamation in Canada 2d ed. (Toronto:  Thomson Professional Publishing, 1999) at 15.1:

Everyone is entitled to comment fairly on matters of public interest.  Such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest.  A comment is the subjective expression of opinion in the form of deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.  In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts [footnotes omitted].”

            Rogacki v. Belz, 2004 CanLII 21439 (ON CA) at 25

“Counsel for the Applicant took the position that the court does not have jurisdiction to make an order for a Voice of the Child Report unless the parties have consented.

 In Svirsky v. Svirsky 2013 ONSC 5564 (CanLII), I observed in paragraph 21 that there was no statutory authority to appoint a person to prepare a Voice of the Child Report.  In that case, the jurisdiction to do so was not argued because the parties had agreed and the only issue was the selection of the expert.  I am satisfied that there is regulatory authority, namely that rule 20.1(3) gives the court the authority to appoint an expert to inquire into and report on a question of fact relevant to an issue in the case, namely whether either or both children have any views or preferences as to increasing the time that they see their father.”

         Canepa v. Canepa, 2018 ONSC 5154 (CanLII) at 17-18

“If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions as follows:

1)  The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2)  There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3)  The child of sufficient age and maturity objects to being returned (Article 13(2));

4)  The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

5)  The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

Because the arguments in this case touched on the third and fifth exceptions, namely the child’s objections and the “settled in” exception, I will provide further comment on these two exceptions.

(i)         The “Settled In” Exception

First, Article 12 provides the “settled in” exception. As the Supreme Court held in Balev, at para. 66, its function is to provide a “limited exception” to the court’s obligation to return wrongfully removed or retained children to their habitual residences. The court’s discretion to refuse return under the “settled in” exception under Article 12 becomes available if the following two conditions are met:

1) The applicant has commenced return proceedings one year or more following the date of the wrongful removal or retention; and,

2) It is demonstrated that the child is now settled in its new environment.

Under the “settled in” exception, the court must assess the children’s connection to the country they are in at the time of the hearing of the application, not immediately before the date of wrongful removal or retention: Balev, at para. 67. This difference in timing can be significant. The “settled in” exception thus accounts for the possibility that a child will develop closer ties to the jurisdiction in which the child has been wrongfully removed or retained in the period of time that follows the date of the wrongful removal or retention: Balev, at para. 67. As the Supreme Court stated in Balev, at para. 66, “It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling-in indicate that the child should not be uprooted and returned to his or her place of habitual residence.””

         Ludwig v. Ludwig, 2019 ONCA 680 (CanLII) at 34-37

“That said, I will address the other arguments raised by the father. On this motion, the father claims that the mother’s decision to enrol the daughter in a Hebrew school is a material change in circumstances. This position essentially argues that the mother’s exercise of the decision-making authority granted to her by the court amounts to a material change in circumstances. That cannot be.

Parents in Ontario have an abundance of educational options for their children. There are four public school boards in each geographic region of the province (English Public, English Catholic, French Public and French Catholic). Many of those boards offer specialized programs such as French immersion and arts-based schools. Many school boards have an optional attendance policy that permits students to attend schools outside of the school designated to serve their area of residence. Parents can also choose among a plethora of private schools, which may focus on religion, culture, language, athletics, or specific educational programs, philosophies or approaches.

The debate over the relative merits of secular versus religious school, or public versus private school, predates Confederation in this province, and continues to this day: see for example: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 and Adler v. Ontario, [1996] 3 SCR 609, 1996 CanLII 148 (SCC).These are issues on which experts and reasonable people disagree.

A parent’s choice of school may be influenced by a myriad of legitimate factors, including location, the parent’s general or pedagogical philosophy or approach to education, financial resources, availability of extra-curricular activities, and perceived or real academic standing or program distinctions among schools. As a child ages, the views and interests of the child may become a relevant consideration. If there is more than one child, an effort is often made to send siblings to the same school. No one factor is overriding or paramount.

Faced with these multiple options and a complex range of variables, there is no “right” or “wrong” school choice. All of the choices listed above fall within a range of reasonable alternatives. All of the choices listed above meet the compulsory attendance requirements of s. 21 of the Education Act, R.S.O. 1990, c. E.2. Any one of these choices could be defended as being in the best interests of the child. Parents in Ontario have the legal right to make that choice for their minor children, and, where one parent is given decision-making authority by the court, that parent has the legal right to make that choice.

Judicial micro-management of parental choices that fall within a range of reasonable alternatives will only serve to exacerbate parental conflict and invite the very kind of unnecessary litigation the trial judge was seeking to avoid when he granted decision-making authority to the mother.

Given the complex range of variables that go into parental school choice, a court is in no better position than a parent to make the “right” or “best” decision for any child. As such, a court should not interfere with the choice of a parent with decision-making authority over education unless the impugned decision will significantly disrupt the other parent’s access, or there is expert evidence that the impugned decision does not fall within the range of reasonable alternatives. No such evidence was presented on this motion.”

         Brown v. Kagan (Brown), 2019 ONSC 5033 (CanLII) at 76-82

“Caution should be exercised when making a temporary Order dealing with custody where the untested evidence about children’s best interests is conflicting. In McPhail v. McPhail, 2018 ONSC 735, 2018 CarswellOnt 1013, at para. 21, Lacelle J. observed,

The case law has also sounded a note of caution about making determinations about custody and access on an interim basis when the evidentiary record consists of competing, contradictory and untested affidavit evidence. There is a general recognition that in these circumstances trial judges will be in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what regime is in a child’s best interests: see for instance Davies v. Davies, 2017 ONSC 3667 (Ont. S.C.J.) at para. 14; Rifai v. Green at para. 16; Cosentino v. Cosentino, 2016 ONSC 5621 (Ont. S.C.J.) at para. 15; Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); and Collins v. Collins, [2011] O.J. No. 2085 (Ont. S.C.J.).

The caution is warranted because a temporary Order may not infrequently form the basis of a final Order, especially after a significant passage of time: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.), at para. 17. In Batsinda v. Batsinda, 2013 ONSC 7869 (CanLII) at para. 22, Chappel J. commented that:

…[o]ften, the courts will conclude that a temporary custody order dealing with all of the incidents of custody is not necessary at the interim stage, and will simply address primary residence, timesharing and some of the most critical incidents of custody such as school issues and routine and emergency medical care.”

Young v. Young, 2020 ONSC 5107 (CanLII) at 21-22

“The factors which should guide the court in assessing whether there were disclosure defects during the negotiation of a domestic contract that undermined the legitimacy of the bargaining process will depend on the circumstances of each case (Rick, at para. 49; Boechler v. Boechler, 2019 SKCA 120 (Sask. C.A.), at para. 34). It is clear from the court’s reasoning in Rick that not every shortcoming in disclosure will bring the integrity of an agreement into question. Rather, the court must assess the significance of any identified disclosure deficits, and must carefully consider any factors or circumstances that may be relevant to the weight, if any, that should be accorded to them. In my view, the case-law respecting section 56(4)(a) of the Family Law Act, which permits the court to set aside a domestic contract based on a failure to disclose significant debts or liabilities existing when the agreement was made, provides valuable guidance for addressing the implications of disclosure shortcomings in the context of unconscionability claims and claims to override domestic contracts pursuant to section 15.2 of the Divorce Act. In this regard, I note that the Ontario Court of Appeal has confirmed that section 56(4)(a) encompasses failure to disclose income and income changes, since a stream of income is an asset (Horner v. Horner, 2004 CarswellOnt 4246 (Ont. C.A.), at para. 77; Tadayon; see also Levan). The two-stage analysis required by section 56(4)(a) involves: a) a determination of whether there was a failure to disclose significant assets, debts or liabilities, and if so; b) a discretionary assessment as to whether it is appropriate to set aside the agreement based on the disclosure deficits. A review of the case-law respecting section 56(4)(a) and the general duty of disclosure in the context of domestic contract negotiations highlights the following non-exhaustive guiding principles and considerations for determining whether there have been relevant disclosure deficits, and if so, whether it is appropriate to exercise discretion in favour of either setting aside or overriding the agreement on the basis of the deficits:

1. The duty to make full and honest disclosure before executing a domestic contract exists to protect the integrity of the bargaining process, to prevent informational and psychological exploitation by either party, and to enable the parties to determine the extent if any to which they are willing to assert or give up their rights under the law (Rick;Boechler, at para. 33). It is a positive obligation on both parties and should not be construed narrowly (Levan;Quinn).
2. Although incomplete disclosure attracts a risk that an agreement may be set aside or disregarded, it does not necessarily attract this consequence in every situation. The court must in each case take a holistic approach in determining whether there has been a failure to make disclosure, and if so, whether any identified disclosure defects justify setting aside, discounting or overriding the agreement. This involves a careful balancing of all relevant circumstances and an analysis of the intentions underlying the parties’ conduct (Virc, at para. 74; Turk v. Turk, 2017 ONSC 6889(Ont. S.C.J.), at para. 192, aff’d 2018 ONCA 993 (Ont. C.A.), at para. 9; Boechler, at para. 34). The general objective of the court in carrying out this analysis should be to determine whether the disclosure provided was incomplete, inadequate or misleading to such an extent that the party seeking to avoid the agreement did not have the ability to determine what would constitute an acceptable bargain (Rick, at para. 49; Boechler, at para. 33).
3. The obligation to disclose will vary according to the type of contract involved. In the case of a separation agreement involving married spouses and touching upon property issues, the duty includes disclosure of assets, debts and other liabilities as of the marriage and valuation dates (Virc, at para 92).
4. The magnitude, extent and significance of the defective disclosure are important considerations (Rick, at para. 49; Virc, at para. 66; Faiello, at para. 28; Shinder, at para. 57). In this regard, the court should consider both the significance of any income, assets and liabilities that were not disclosed, inaccurately disclosed or misrepresented as well as the overall significance of any such defective disclosure for the aggrieved party based on all of the surrounding circumstances, since the two considerations are inextricably intertwined (Bruni v. Bruni, 2010 ONSC 6568(Ont. S.C.J.), at para. 102; Turk, at para. 11; Reid, at paras. 63 and 68).
5. The significance of any non-disclosed assets and liabilities cannot be viewed in a vacuum. Rather, it must be assessed by measuring the value of any assets, debts or liabilities against the party’s disclosed net worth and in the context of the entire relationship between the parties (Quinn, trial decision, at para. 49; Virc 2017, trial decision, at para. 92; Turk, trial decision, at para. 192).
6. Disclosure of assets and liabilities involves providing fair information about their values (Demchuk, at para. 55; Levan, trial decision at para. 55; Virc 2017, trial decision, at paras. 89 and 92; Virc 2017, at para. 59). However, it does not necessarily require that the parties exchange formal valuations of assets, particularly where the aggrieved spouse did not request such valuations during the course of the negotiations (Ramdial, at paras. 1-2).
7. Failure to disclose relevant financial information includes making a material misrepresentation about the true value of an asset or liability (Quinn, trial decision, at para. 49; Butty;Virc 2017, trial decision, at para. 92).
8. Evidence of deliberate concealment or misrepresentation of relevant financial information, or that a party refused to disclose information after being requested to do so, will be important considerations and may make the agreement vulnerable to judicial intervention (Rick, at para. 9; Levan, trial decision, at para. 200; Virc, at paras. 65, 73; Virc 2017, at para. 59; Turk, trial decision, at para. 195, Court of Appeal decision at para. 15). It is no answer for a party who is guilty of this type of misconduct to state that the other spouse could have independently tested the veracity of their representations or taken further steps to ferret out the truth (Virc, at paras. 56-59; Butty).
9. The fact that the party challenging the contract knew of financial misrepresentations by the other party when they executed the agreement may be a bar to a subsequent claim to avoid the agreement based on defective financial disclosure founded upon those misrepresentations (Virc 2017, at para. 62). However, in Virc, the Ontario Court of Appeal indicated that this will only be a bar to relief if the court is satisfied that the spouse seeking to avoid the contract had actual and complete knowledge of the misrepresentations. Constructive or fragmentary knowledge will not suffice to meet this burden, nor will evidence that the aggrieved spouse had a suspicion of misrepresentation. As the Court of Appeal stated in Virc, at para. 69, “a mere suspicion of lack of veracity does not absolve a fraudster of responsibility.”
10. Formal disclosure by way of sworn Financial Statements prior to the execution of an agreement is not necessarily required to satisfy the obligation to disclose (Quinn, trial decision, at para. 48; Butler v. Butler, 2015 ONSC 6796(Ont. S.C.J.), at para. 48). Furthermore, the fact that the party seeking to enforce the agreement neglected to include an item in a Financial Statement is not determinative of whether they failed to disclose it and its value. The court should consider whether the parties exchanged relevant financial information through other avenues, including the exchange of documentation, the provision of information through correspondence or discussions about relevant financial matters (Ward; Shinder, at para. 54; Faiello, at para. 27).
11. Evidence that the party seeking to avoid the agreement had a general awareness of the other party’s assets and liabilities and their values and did not pursue further disclosure may be sufficient to avoid setting aside or overriding an agreement, particularly where there is no evidence of deliberate misrepresentation or concealment by the other party (Ward, at paras. 32-36; Quinn, trial decision, at para. 48; Dougherty, at para. 28; S. (J.) v. S. (D.B.), 2016 ONSC 1704(Ont. S.C.J.), at para. 48, aff’d [Smith v. Smith] 2017 ONCA 759 (Ont. C.A.), at para. 11; Turk, trial decision, at para. 195; Faiello, at para. 27; Verkaik, at para. 4).
12. In considering whether a party had knowledge of the other party’s assets, liabilities and income, the court must also consider the extent of their lawyer’s knowledge of these matters. It is a general principle of the law of agency that in the ordinary case, the knowledge of an agent is imputed to their principal. This tenet is based on the presumption that an agent will communicate their knowledge to the principal since it is their duty to do so (Durbin v. Monserat Investments Ltd. (1978), 87 D.L.R. (3d) 593(Ont. C.A.), at p. 595; Vescio v. Peterman, (1999) 45 O.R. (3d) 613(Ont. C.A.), at para. 2; Shinder, at para. 50). This principle extends to the relationship between legal counsel and their client (Vescio, at para. 2; Acharya Holdings Ltd. v. Standard Trust Co., 2014 NLCA 13, 346 Nfld. & P.E.I.R. 348 (N.L. C.A.), at para. 15, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 187 (S.C.C.); Shinder, at para. 50).
13. Another important consideration is whether the party challenging the contract was aware of shortcomings respecting disclosure but decided nonetheless to complete the agreement without pursuing full disclosure. Parties may decide to execute a domestic contract without obtaining full and robust disclosure and valuations, and doing so will not necessarily jeopardize the integrity and enforceability of the agreement (Ramdial, at paras. 1-2; Petruzziello v. Albert, 2014 ONCA 393(Ont. C.A.), at para. 23; Tozer v. Tassone, 2019 ONCA 285(Ont. C.A.), at para. 8). There may be various legitimate reasons for parties to proceed without full disclosure, including cost/benefit and proportionality considerations associated with valuations and exhaustive documentary disclosure. Where there is no evidence of deliberate concealment, misrepresentation or inaccurate disclosure by the party seeking to uphold the agreement, and the other party freely and voluntarily decided to forego disclosure of financial information, the court may decline a subsequent request by that party to set the agreement aside or override it based on failure to disclose that information (Butty, at para. 53; Virc, at para. 63; Turk, trial decision, at para. 195, Court of Appeal decision at para. 15). This principle applies even if there was an order in effect requiring the other party to disclose the information, or if the other party did not fully respond to all requests for disclosure. Exhausting pretrial disclosure remedies is not a precondition to a valid domestic contract (Petruzziello, at para. 23; Quinn, trial decision, at paras. 55-56, Court of Appeal decision, at para. 3). In these types of situations, the court must consider all relevant circumstances surrounding the execution of the agreement to determine whether the aggrieved spouse’s decision to proceed without full disclosure was influenced by any concerning conduct by the other party or other circumstances, and whether the defects in disclosure were such as to undermine the integrity and enforceability of the agreement. Whether the aggrieved party had independent legal representation in deciding to proceed without complete disclosure will also be a relevant consideration in these types of circumstances (Butty, at para. 53; Quinn, Court of Appeal decision, at para. 3).
14. A party who executes a domestic contract despite legal advice to pursue further disclosure, or after discharging counsel who was in the midst of pursuing additional disclosure, will face great difficulty challenging the contract at a later date on the basis of failure to produce the information in question (Butty, at para. 54).
15. There is an important distinction between deliberate misrepresentation regarding income and the value of assets and liabilities on the one hand and uncertainty respecting same on the other. Evidence that there were income or valuation uncertainties when the parties executed the contract, or uncertainties about the potential future value of assets, will not necessarily support a claim to avoid the agreement, particularly where there is no evidence that the party seeking to enforce the agreement was guilty of deliberate concealment, misrepresentation or inaccurate reporting of financial information (Murray v. Murray, 2005 CarswellOnt 3900 (Ont. C.A.), at paras, 24-25; Ward, at paras. 37-39; Butty;Virc;Reid, at paras. 66-68). This is particularly so with respect to income where both parties were clearly aware that the income of the party seeking to uphold the agreement fluctuated or was likely to be in a state of flux (Ward).
16. If problems respecting disclosure are identified, the court should also consider whether the defective disclosure would have changed the outcome for the aggrieved spouse. In considering this issue, the court must consider all aspects of the agreement globally, taking into consideration concessions made by the parties to address their unique concerns and circumstances (Butty, at para. 53; Shinder, at para. 58; Turk, Court of Appeal decision, at paras. 7, 12-14; Hillman v. Letchford, 2015 ONSC 3670(Ont. S.C.J.), aff’d 2017 ONCA 117(Ont. C.A.)).
17. Other factors which the courts have considered in the analysis are:

a) Whether the problematic disclosure was coupled with duress or unconscionable circumstances;

b) Whether the moving party moved expeditiously to have the agreement set aside;

c) Whether the moving party received substantial benefits under the agreement;

d) Whether the party seeking to uphold the contract has fulfilled their obligations under the agreement; and

e) Whether the defective disclosure was a material inducement to the aggrieved party entering into the agreement; in other words, how important would the non-disclosed information have been to the negotiations?

(Turk, Court of Appeal decision, at para. 15; Smith, Court of Appeal decision, at para. 11; Quinn, at para. 47; Levan; Demchuk, at paras. 58-69; Dochuk, at para. 17)).

The Supreme Court of Canada emphasized in both Miglin and Rick that concerns regarding the circumstances in which a domestic contract was negotiated and executed, whether they are in the nature of vulnerabilities, defective disclosure or otherwise, may be compensated for by effective legal representation or other professional assistance during the negotiation process (Miglin, at para. 83; Rick, at para. 61). However, the court cannot simplistically view such assistance in and of itself as a panacea for concerns surrounding the bargaining process. As the court stressed in Rick, whether professional assistance effectively mitigated such concerns is a matter of fact to be decided in each case (Rick, at para. 61; see also Downer, at paras. 51-52). In addressing this question, the court should consider all relevant circumstances, including the nature, extent and quality of the advice received, and whether there were concerns regarding the party’s ability to comprehend and appreciate the advice (Downer, at para. 51). For example, in Rick, the court upheld the trial judge’s decision that the concerns relating to the circumstances of execution were not in fact compensated for by the fact that the wife had received legal advice and professional assistance from mediators, since the wife was unable to make effective use of that help due to her serious emotional and mental instability (at para. 62).”

         Kinsella v. Mills, 2020 ONSC 4785 (CanLII) at 415-416