Author: dawi

“For a marriage to be valid there are two elements that must exist:

(a)     “formal validity” relating to the procedure and rules in the place where the parties were married; and,

(b)     “essential validity” relating to the capacity of the parties as determined by the laws where they were domiciled before marriage. 

The latter element is related to the “good faith” provision of s. 31 of the Marriage Act which can save the formal validity of a marriage if the following four elements apply:

(a)     The marriage must have been solemnized in good faith;

(b)     The marriage must have been intended to be in compliance with the Marriage Act;

(c)     Neither party was under a legal disqualification to contract marriage; and,

(d)     The parties must have lived together and cohabited as a married couple after solemnization.”

Anthony v. Anthony, 2019 ONSC 650 (CanLII) at 15-16

“There is a qualitative difference between child support and spousal support which is reflected in the authorities, especially when dealing with retroactive support.  The former is the right of the child, and unreasonable delay in enforcing that obligation is merely a factor to consider in the exercise of the court’s discretion: D.B.S. v S.R.G, 2006 SCC 37 (CanLII), at para. 104.  There is no automatic entitlement to the latter.  Retroactive spousal support claims require a more principled assessment of the evidence in light of the differences underpinning child and spousal support principles and objectives: Kerr v. Baranow, 2011 SCC 10 (CanLII), at para. 207.” 

Lawrence v. Lawrence, 2017 ONSC 431 (CanLII) at 82

“The definition of “child of the marriage”, under s. 2(1)(b) of the [Divorce] Act, includes a child who “… is the age of majority or over and under their [her parents’] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

Victoria was 23½ years old at the time that this Application was commenced.  Accordingly, the onus is on Heidi to establish that Victoria was under parents’ charge and unable to withdraw from their charge or to obtain the necessaries of life: Ethier v. Skrudland, 2011 SKCA 17, paras. 17-18. 

Residency is usually associated with a child being under a parent’s charge.  In Tapson v. Tapson, 1969 CanLII 541 (ON CA), [1970] 1 O.R. 521 (C.A.) Laskin, J.A., as he then was, stated that an adult child is under her parents’ charge if a parent has assumed the care and maintenance of the child in the parent’s premises.  He stated, at paras. 5 and 6, that:

… I am prepared to read the phrase, ‘under their charge’ broadly as meaning simply that the parent has assumed the care and maintenance of the child in the parent’s premises.

… An order for maintenance or interim maintenance based on a child 16 years of age or over being in the charge of a parent assumes, of course, that the child is living with the parent in the parent’s care and to that extent, within the parent’s responsibility for maintenance.  If it should prove to be the case that a child, having reached the age of 16, withdraws from a parental home and goes out to live by himself or by herself, other considerations will have intruded to make this provision probably no longer applicable.”  [Emphasis added]

Economic dependence is the essential feature of whether a child is under a parent’s charge: See Hon. Justice David L. Corbett, Claudia Schmeing, 2011 30 CFLQ 165, Child Support for Estranged Adult Children — “Parent as Wallet” or “Can’t Buy Me Love”.  Thus, a child that has left home because of conflict within the home nevertheless remains under his parents’ charge: Pound v. Pound [1987] B.C.J. No. 109 (C.A.).”

Hess v. Hamilton, 2018 ONSC 661 (CanLII) at 60-63

“Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 2001 CarswellOnt 537 remains the leading case on grandparent access in Ontario. In Chapman, the Ontario Court of Appeal held that in cases such as these, the question is not what is good for the grandparent, but what is in the best interests of the child. Further, the question is not what is theoretically in children’s best interests, but what is in the best interests of the particular child in the case at hand. Justice Abella cited Justice McLachlin in Gordon v. Goertz, 1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.) at 60, in which Justice McLachlin stated, “each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.”

In Chapman, the Ontario Court of Appeal held that where parents are “demonstrably attentive” to the needs of their children, it is parents, not grandparents, who have the right to decide the “extent and nature of the contact” with grandparents. See para. 22. In that case, where the court found that the disruption and stress of the grandmother’s insistent attempts to get access on her own terms was not in the children’s best interests, her application for access was denied.

The court stated that a child’s relationship with a grandparent “can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of extended family can be important for children.” The court held that when those relationships are imperilled arbitrarily, “the court may intervene to protect the continuation of the benefit of the family relationship.” See para. 19.

In Nichols v. Nichols, 2015 CarswellOnt 9262, Justice Stevenson summarized the impact of Chapman as follows: “…In the absence of any evidence that [the parents] are behaving in a way which demonstrated an inability to act in accordance with the best interests of [the child], their right to make decisions and judgments on [the child’s] behalf should be respected.” See para. 66.”

Ninkovic v. Utjesinovic, 2019 ONSC 558 (CanLII) at 57-60

“Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context (Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295, at para. 43 [Brandsema]). The question to be asked is whether there were “any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation” (ibid, at para. 44).

Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of the mind, economically weaker or situationally weaker. Vulnerability may also arise due to a special relationship of trust and confidence (see Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at para. 33). However, the “mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties” (Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para. 82, [Miglin]).

In Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 at para. 12 (Ont. C.A.), the Ontario Court of Appeal states the question to be answered in determining unconscionability is whether there was inequality between the parties, or a preying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of the vulnerable. At para. 13 the Court notes it is: “not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability”.”

Toscano v. Toscano, 2015 ONSC 487 (CanLII) at 64-66

“Judges benefit from a presumption of integrity, which acknowledges that they are bound by their judicial oaths and will carry out their duties in accordance with their legal responsibilities: R. v. Teskey, 2007 SCC 25 (CanLII), [2007] 2 S.C.R. 267, at para. 29. In R. v. Arnaout, 2015 ONCA 655 (CanLII), at para. 18, this court described these responsibilities: “A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.”

Although judges enjoy the benefit of the presumption of integrity, the presumption can be rebutted by a judge’s comments or conduct: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 S.C.R. 282, at para. 27.”

Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 (CanLII) at 45-46

“A settlement agreement is subject to the general law of contract. For a settlement agreement to exist, the court must find the parties (i) had a mutual intention to create a legally binding contract and (ii) reached agreement on all of the essential terms of the settlement: Olivieri v. Sherman (2007), 2007 ONCA 491 (CanLII), 86 O.R. (3d) 778 (C.A.), at para. 41. Whether the parties have manifested mutual assent to specific terms usually is determined from their overt acts: Bogue v. Bogue (1999), 1999 CanLII 3284 (ON CA), 46 O.R. (3d) 1 (C.A.), at para. 17. Or, as described by this court in McLean v. McLean, 2013 ONCA 788, 118 O.R. (3d) 216, at para. 10, a court must employ an objective approach to the evidence, determining “what a reasonable observer would have believed the parties intended, taking into consideration the evidence of all the parties as well as the surrounding documentary evidence.”

Where the parties reduce their bargain to writing, a court determines the parties’ intentions in accordance with the language used in the written document, having regard to the objective evidence of the factual matrix: Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, 268 O.A.C. 276, at para. 16.

Oral contracts, such as the one at issue in the present case, present different challenges regarding the issues of formation and interpretation. As put by Angela Swan and Jakub Adamski in Canadian Contract Law, 3rd ed. (Markham, ON: LexisNexis, 2012), at §2.27:

There is no general rule against the enforcement of oral promises, but the fact that a promise is oral suggests that its making may not have been accompanied by anything that sufficiently brought home to the parties the significance of what they were doing and, of course, the terms of an oral promise are no more certain than the parties’ recollections of them.”

Cook v. Joyce, 2017 ONCA 49 (CanLII) at 65-67

“Communications made in an attempt to effect a compromise or resolve issues are subject to litigation privilege. This is a long-standing principle and is reflected in the words of Cameron C.J. of the Ontario Court of Appeal in Pirie v. Wyld (1886), 11 O.R. 422 (C.A.), at p. 427:

… letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements.

As the Divisional Court stated at para. 11 of Inter-Leasing, Inc. v. Ontario (Finance), 2009 CanLII 63595 (ON SCDC):

A party seeking to introduce in evidence material subject to settlement privilege must show that the communication is relevant and the disclosure is necessary, either to show the agreement of the parties or to address a compelling or overriding interest of justice. (Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4 (CanLII), [2005] B.C.J. No. 5 (B.C.C.A.) at para 20).

This statement was submitted to and accepted by Fragomeni J. at paras. 16 and 23 of Rodriguez v. Guignard 2012 ONSC 2444 (CanLII), 20 R.F.L. (7^th) 146.

At para. 17, Fragomeni J. went on to quote Alan W. Bryant, Sidney N. Lederman, & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009), at p. 1030:

s. 14.313 It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

s. 14.315 In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.

As the court said in William Allan Real Estate Co. v. Robichaud (1987), 17 C.P.C. (2d) 138 (Ont. H.C.), at p. 141, “What sensible man would attempt settlement if it could be used against him at trial?”

The conflict between the protection of settlement communications by litigation privilege and the production of all evidence relevant to the best interest of a child was discussed in Hutton v. Hutton, [1990] O.J. No. 1081 (Dist. Ct.), where Taliano D.C.J. stated:

I am not unmindful of the fact that the court should not lightly displace a privilege that has been entrenched in the law for so long, but in this case, it is necessary to give pre-eminence to a policy objective that is superior to it. Although both policy objectives are important and deserve to be fostered, the policy interest that promotes and protects the best interests of the child is paramount and the privilege attached to settlement discussions must therefore yield to it…

This can be considered alongside Georgareas v. Georgareas, 2006 CanLII 44274 (ON SC), where Herman J. made the following observation at para. 7:

However, while the substance of the proposals is privileged, evidence that attempts have been made to resolve access and those attempts have not been successful is, in my opinion, permitted evidence. The ability of the parents to come to agreements regarding their children, including agreements regarding access, is relevant to a determination of custody and access and what is in the children’s best interests.

The substance of the discussions should therefore be deleted from the affidavit and exhibits but evidence in support of the party’s allegation that there is a pattern of frustrating access I otherwise permitted.”

Lemieux v. Lemieux, 2017 ONSC 313 (CanLII) at 42-48

“We do not agree with the submission that there is any ambiguity in the words “mediation/arbitration” or that those words mean “mediation or arbitration.”  Mediation/ arbitration is a well recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration.”

Marchese v. Marchese, 2007 ONCA 34 (CanLII) at 4

“Section 3 of the Divorce Act states: “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.” (emphasis added)

At the time the applicant filed her application she had been living in Canada for 9 months.  The respondent has not lived in Canada.

In Haroon v. Haroon 2019 ONSC 77 the court found there was no jurisdiction to hear a divorce application under the Divorce Act as the applicant was not ordinarily resident in Ontario for one year prior to the application being commenced.

The court in Robar v Robar 2010 NBQB 8 declined jurisdiction under the Divorce Act where the wife had moved to NB eight (8) months before signing her petition for divorce. The court emphasized that section 3 of the Divorce Act was the “sole basis for jurisdiction for divorce.” (at para. 12).  Further, the court noted that “these statutory requirements are substantive, and failure to establish residency is fatal to the proceeding.” (at para. 14).  The court did, however, find that it had jurisdiction to grant the divorce under the Divorce Act by virtue of the counter-petition filed by the husband, who had been ordinarily resident in NB for over 12 months at the time he signed his counter-petition.

In Gazo v Gazo 2005 CarswellOnt 534 the court discussed the residency requirement under section 3 of the Divorce Act and stated: 

Sections 3 to 6 of the Divorce Act define the jurisdictional competence of a court to grant a divorce and any corollary relief by way of spousal or child support or custody of or access to the children. A divorce petition can be presented by either or both spouses to the court of the province wherein either spouse has been ordinarily resident for not less than one year immediately preceding the filing of the petition. The first issue then is whether Maria Gazo has been ordinarily resident in Ontario for not less than one year immediately preceding the filing of the divorce petition. In this case, there is no doubt that she has not been resident in Ontario for the requisite time period. …. she may have intended to maintain her residency here. However, she did not do so. As was held in MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), intention alone cannot determine ordinary residence. Mr. and Mrs. Gazo left Ontario in 2001 and moved to the Slovak Republic. They made the Slovak Republic their home until Maria Gazo returned to Ontario in March 2003. When she commenced her divorce proceeding on December 4, 2003, she had been resident in Ontario since March 31, 2003. Maria Gazo was not ordinarily resident in Ontario for one year immediately preceding the filing of the petition. This Court had no jurisdiction to entertain the petition for divorce.

The court in Jung v Jung 2016 ONSC 3020 addressed the residency requirement of section 3 of the Divorce Act and stated: 

In general, courts have strictly interpreted s. 3(1). The prevailing view is that “there is no naturally existing right to a divorce, but rather a right, based in statute, to present a petition for a divorce”: Garchinski v. Garchinski, 2002 SKQB 323 (Sask. Q.B.), at para. 25. The leading case for this proposition is Winmill v. Winmill (1974), 1974 CanLII 1228 (FCA), 47 D.L.R. (3d) 597 (Fed. C.A.). In Winmill, the applicant argued that the Federal Court should exercise jurisdiction to hear her divorce under s. 25 of the Federal Court Act, which provision allows the Federal Court to hear claims for relief where no other courts in Canada have jurisdiction. The applicant did not meet the residency requirement in any individual Canadian province. The Federal Court of Appeal rejected her argument, holding that the Divorce Act does not grant a right to divorce, but a limited right to apply for divorce subject to the conditions of the Act.

As neither the applicant nor the respondent were ordinarily resident in Canada for one year prior immediately preceding the commencement of an application under the Divorce Act, the court has no jurisdiction to consider the request.”

Nawab v. Abid, 2019 ONSC 7590 (CanLII) at 23-29