Category: Uncategorized

“Courts have long recognized that agreements reached between spouses, particularly where they have both had independent legal advice, should be respected: Hartshorne v. Hartshorne, 2004 SCC 22, 1 S.C.R. 550 at para. 9. There are circumstances, however, where the court will set aside such agreements.

The statutory framework to set aside domestic contracts is found in s. 56(4) of the FLA, which states as follows:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

The onus is on the party seeking to set aside the agreement to prove that it should be set aside: Dougherty v. Dougherty, 2008 ONCA 302 at para. 11.

Grounds that would justify setting aside a domestic contract include the following contractual concepts: unconscionability, undue influence, duress, uncertainty, mistake, misrepresentation, fraud, and repudiation of a term of the contract: Ward v. Ward, 2011 ONCA 178 at para. 21.

In LeVan v. LeVan, 2008 ONCA 388 (Ont. C.A.) at para. 51, the court found that there was a two-part test to consider in an application to set aside an agreement pursuant to s. 56(4) of the FLA as follows:

a) The court must determine if the party seeking to set aside the agreement can demonstrate that one or more of the circumstances in subsections (a) to (c) have been engaged; and

b) If the moving party has fulfilled the first part, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement.

In Turk v. Turk, 2015 ONSC 5845, at para. 55, Kiteley J. summarized the factors the court must consider in exercising its discretion to determine if an agreement should be set aside as follows:

(a) whether there had been concealment of the asset or material misrepresentation;

(b) whether there had been duress, or unconscionable circumstances;

(c) whether the petitioning party neglected to pursue full legal disclosure;

(d) whether he/she moved expeditiously to have the agreement set aside;

(e) whether he/she received substantial benefits under the agreement;

(f) whether the other party had fulfilled his/her obligations under the agreement.

In J.L.S. v. D.B.S., 2016 ONSC 1704, Skarica J. set out a summary of the law regarding setting aside domestic contracts at para. 29 as follows:

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, [2014 ONSC 359] supra,

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan. 2008 ONCA 388 (CanLII), 2008 CarswellOnt 2738, ONCA.

          Malaviyar v. Dhir, 2023 ONSC 1993 (CanLII) at 75-81

“A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all the circumstances (see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 28).

The principles which the court should consider, among others, when considering a spouse’s capacity to earn income were very usefully summarized by Shelston, J. in the case of Verhey v. Verhey, 2017 ONSC 2216, at para. 35 as follows:

(a)  There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2013 ONSC 5500 (Ont. S.C.J.), at para. 99);

(b)    A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133 (B.C. C.A.), at para. 37);

(c)   A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866 (Ont. S.C.J.), at para. 48);

(d)    A spouse cannot avoid support obligations by a self-imposed reduction in income (L. (N.) v. P. (B.) (2000), 2000 CanLII 22516 (ON SC), 7 R.F.L. (5th) 335 (Ont. S.C.J.), at para. 27);

(e)    Where a spouse experiences an involuntary loss of employment, courts will grant a “grace period” to allow the spouse to seek out replacement work. However, the absence of a reasonable job search will leave the court with no choice but to find that the spouse is intentionally under-employed or unemployed (Filippetto v. Timpano, 2008 CarswellOnt 544, 2008 CanLII 3962).

The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (see Homsi v. Zaya, 2009 ONCA 322, at para. 28).”

            Lorimer v. Lorimer, 2020 ONSC 1923 (CanLII) at 66-68

“Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party as it considers appropriate.

The jurisprudence for imputation of income sets out the following:

a)         Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).

b)        The Ontario Court of Appeal in Drygala v. Pauliset out the following three questions which should be answered by a court in considering a request to impute income:

i)           Is the party intentionally under-employed or unemployed?

ii)         If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?

iii)      If not, what income is appropriately imputed?

c)         The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).

d)        Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima faciecase, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere,2016 ONSC 4719.

e)         As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (CanLII); DePace v. Michienzi,2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

f)         The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship.  The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson,2006 CanLII 26573 (ONCA).

g)        The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills,2020 ONSC 4785; Sobiegraj v. Sobiegraj, 2014 ONSC 2030 (S.C.J.); Lu v. Zhao,2012 ONSC 5354 (S.C.J.), at para. 26, aff’d 2014 ONCA 12 (C.A.), at para. 5).

h)        The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.).

i)         A person’s lifestyle can provide the basis for imputing income.  See: Aitken v. Aitken[2003] O.J. No. 2780 (SCJ); Jonas v. Jonas[2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 (CanLII).”

          J.W. v. C.W., 2024 ONCJ 159 (CanLII) at 49-50

“Justice Shore argues that persons exercising judicial functions, whether in court proceedings or otherwise in the course of their judicial function, are exempt from all civil liability for anything done or said by them in their judicial capacity.  This immunity is such that even if a judge’s acts or words complained of are alleged to have been spoken in bad faith, maliciously, corruptly, or without reasonable or probable cause, they are not actionable.

The content of what was written by Justice Shore is not pleaded, and thus not before the court for the purposes of this motion.  The statement of claim simply alleges that Justice Shore sent an email to all Superior Court judges in Toronto, making what the plaintiff says were defamatory remarks against him, and then reproduced those comments in a Case History Report in connection with a family proceeding which was before the court.

A requirement of the rules of pleading, as they pertain to defamation proceedings, is that particulars of the allegedly defamatory words must be pleaded: Catalyst Capital Group Inc. v. Veritas Investment Research Corp. (2017), 136 O.R. (3d) 23, 2017 ONCA 85, at para. 23.  The Statement of Claim does not set out either the contents of the January 2021 email or the Case History Report.  Mr. McIntosh alleges that the impugned remarks “cannot be repeated as it would risk undermining the impartiality [of] the adjudication of this matter.”  Unsurprisingly, the statement of claim also does not plead, as it should, the allegation that the words used were defamatory of Mr. McIntosh in their plain or ordinary meaning, or by innuendo.   Corthorn J. was forgiving of these shortcomings, writing, at para. 61 of her endorsement:

Mr. McIntosh is a self-represented litigant attempting to navigate the complexities of a claim based in defamation.  Even in the absence of the particulars of the wording of the January 2021 email, the context within which the email was sent, and the manner in which the email was presented, Mr. McIntosh is to be given the benefit of the doubt.

I will follow Justice Corthorn’s lead, and set to one side the pleading’s deficiencies for the purposes of considering this motion.

Turning to the substantive issue of judicial immunity, in Morier and Boily v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, the Supreme Court of Canada addressed a claim that members of the Commission de police du Québec, who were entitled to the judicial immunity of Superior Court judges, could not invoke that immunity when they acted without jurisdiction and contravened the rules of natural justice by failing to comply with the provisions of the governing legislation and the Charter of Rights and Freedoms.

At para. 90 of the decision in Morier, Chouinard J., writing for the majority of the Supreme Court of Canada, cited, with apparent approval, the following excerpts from Halsbury’s Laws of England, 4th ed., vol. 1, 1973, at pp. 197 et seq.:

1. 1. 1. 1. 206. Persons protected. Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process.

1. 1. 1. 1. 210. Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra‑judicial or alien to the judicial duty of the defendant; and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected.

The protection extends to all judges, juries, advocates, parties and witnesses, for words spoken or written in the course of a judicial inquiry and having any reference thereto, however remote.

At paras. 95 and 96 of Morier, reference was made to the judgment of Lord Denning M.R. in Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.), a decision of the England & Wales Court of Appeal, at p. 136, said to have been frequently cited as the correct statement of the contemporary rule of immunity:

Every judge of the courts of this land ‑‑ from the highest to the lowest ‑‑ should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction ‑‑ in fact or in law ‑‑ but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill‑will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

At the conclusion of an extensive discussion of the development of judicial immunity in England, the Court in Morier concluded, at para. 110, that the possibility that the members of the Commission had:

a.    Exceeded their jurisdiction by doing or failing to do the actions mentioned in the statement of claim;

b.   Contravened the rules of natural justice in that they had not informed the respondent of the facts alleged against him, or had not given him an opportunity to be heard; or,

c.   Contravened the Charter,

were not allegations which may be used as the basis for an action in damages against a judge.

Mr. McIntosh raises similar complaints to those raised by the claimant in Morier.  He says that he did not know about the comments made by Justice Shore at the time that she made them and, thus, was not provided an opportunity to respond to the comments, infringing his right to a fair proceeding.

The Supreme Court’s decision in Morier was considered by the Federal Court of Appeal in Taylor v. Canada (Attorney General), [2000] 3 F.C. 298, 2000 CanLII 17120 (FCA).  At para. 41 of Taylor, the Court concluded that it could not be said that the Supreme Court of Canada in Morier had definitively decided whether a bad faith exception to judicial immunity is good law in Canada.  However, the Federal Court of Appeal was inclined to accept the proposition that judicial immunity does not apply where it is shown that a judge knowingly acts beyond her jurisdiction. [Emphasis added.]  The Federal Court of Appeal went on to conclude that if there is an exception to absolute immunity, it is a narrow one – stating, at para. 60: “It will be the rare case indeed where a plaintiff can show that a judge acted with the knowledge that he or she had no jurisdiction”.”

McIntosh v. Shore, 2024 ONSC 1767 (CanLII) at 34-43

“With respect to the third D.B.S. factor – the circumstances of the child – Michel v. Graydon included the following:

a.   If a child previously experienced hardship – or if the child needs support at the time of the hearing — this weighs in favour not only of an award, but also of extending the temporal reach of the award.

b.   But there need not be any determination of hardship as a pre-requisite to making a retroactive award.

c.   A payor’s previous support obligation does not disappear when the child no longer requires support.  Payors should not perceive an incentive to pay inadequate support, in the hope that retroactivity will hinge on the recipient’s ability to prove hardship.

d.   Quite commonly the recipient parent caring for the child will personally absorb the hardship created by inadequate support.  A primary care parent who prioritizes their child’s well-being should not receive less support as a result of choices that protect the child.

e.   The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope.

f.   The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support.

Michel v. Graydon stated the following in relation to hardship:

a.   While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the childand the recipient parent from not ordering the payment of sums owing but unpaid.

b.   If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship.

c.   The court must remember that the payor had the benefit of the unpaid child support for the full period of time that it was unpaid. Those monies may have funded a preferred lifestyle or the acquisition of property.  In contrast, if inappropriate support was being paid, the recipient parent may have been deprived of lifestyle or property opportunities, because they were forced to spend their money (and perhaps incur indebtedness) for the benefit of the child.

 d.   In all cases, hardship may be addressed by the form of payment.”

Abumatar v. Hamda, 2021 ONSC 2165 (CanLII) at 57-58

“The starting point for determining a parent’s annual income is the total income in the party’s Income Tax Return (s. 16 Guidelines). However, that is not the end of the inquiry. Section 19 of the Guidelines lists non-exhaustive circumstances in which the court may impute income to a payor as it considers appropriate. The applicant relies specifically on ss. 19(1)(d) and (f) of the Guidelines, which permit imputation where it appears that income has been diverted which would affect the level of child support to be determined, or where the parent or spouse has failed to provide income information when under a legal obligation to do so. As the Court of Appeal for Ontario held in Bak v. Dobell 2007 ONCA 304, 86 O.R. (3d) 196 at para. 36: “When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

The exercise of imputing income is to be done in order to come to a fair and reasonable assessment of income, not to punish the payor. Cormier v. Vienneau, 2022 NSSC 98 at para. 26. It is a fact-specific and discretionary exercise. Of course, there has to be some evidence grounding the imputation figure. The court cannot select an arbitrary figure (Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 at para. 44) The onus is on the party requesting that income be imputed to establish an evidentiary basis for the finding: Homsi v. Zaya, 2009 ONCA 322 at para 28.

Gifts are not included in income imputation as a matter of course, but may be included in certain circumstances. Factors to consider when determining whether to include the receipt of unusual gifts in income were set out by the Court of Appeal in Bak v. Dobell at para. 75 as follows:

… 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.

Housing benefits may fall into the class of gifts constituting income Malkov v. Stovichek-Malkov, 2017 ONSC 6822 paras. 69-72, appeal dismissed 2018 ONCA 620, 15 R.F.L. (8th) 255.”

            Amid v. Jones, 2023 ONSC 1855 (CanLII) at 8-11

“In R. v. Cunningham, 2010 SCC 10 (CanLII), the Supreme Court of Canada outlined a set of principles on which a lawyer may be permitted to withdraw from acting for a client in criminal matter. The Court also commented that refusing to allow counsel to withdraw should be a remedy of last resort (for obvious reasons). The principles were confirmed as applicable to civil and family law matters by Faieta J., in Froom v. Lafontaine, 2020 ONSC 5650 (CanLII) at paras 20-21).”

            Altman v. Altman, 2024 ONSC 1793 (CanLII) at 3

“The contractual basis for spousal support is based on the undertaking that the Applicant signed when he sponsored the Respondent as a permanent resident to Canada.  That undertaking says:

I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self-supporting. I promise to provide food, clothing shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care. eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.

I promise that the sponsored person and his or her family members will not need to apply for social assistance.

I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canada as permanent residents. understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me as sponsor] and that they do not need to have the financial means to become established in Canada.

I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada if that person enters Canada with a temporary resident permit or, If already in Canada, on the day on which the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which the sponsored person becomes a permanent resident The length of the undertaking will wary according to the relationship of the sponsored person and his or her family members to me las sponsor and their age and it ends:

if the sponsored person is my spouse, common law partner, or conjugal partner, on the last day of the period of 3 years following the day on which they become a permanent resident;

The undertaking goes on to say that it continues to be binding even if the circumstances change and the parties separate and divorce.  The law has accepted that these undertakings are “very much relevant” to the determination of spousal support.  As a result, Courts have found them to be agreements that can be considered under section 15.2(4)(c) of the Divorce Act.  Segal v. Qu 2001 CanLII 28201 (ONSC).

In this case, the agreement was signed on August 24^th, 2018.  The matter was previously the subject of a motion before Trimble J.  His Honour issued an endorsement on February 8^th, 2021 in respect of dental and other benefit coverage.

Trimble J. determined that the undertaking required the Applicant to maintain benefits coverage for the Respondent until August 24^th, 2021, three years after the agreement was signed.  I understand that this was done.  Certainly, the Respondent has not provided any evidence to show that she is out of pocket for any benefits expenses in this time period.

As a result, the undertaking applies until August 24^th, 2021.  The question is what does this undertaking require of the Applicant?  A number of cases were relied upon by the parties in respect of what the legal effect of this clause is.  I have considered all of these cases.

One of the earliest cases, Samy v. Samy 2000 BCSC 1211.  In that decision, the Court stated (at para. 13):

[13]      There is no doubt that the sponsorship agreement is a contractual arrangement between the husband and the Government of Canada.  It imposes an obligation on the husband to provide for and maintain his wife for a maximum period of ten years.  The husband has agreed by way of an undertaking to provide for the “essential needs … including shelter, food, clothing and other goods or services necessary for day to day living” for his wife.  I have no doubt that the wife relied on that agreement in that she left Fiji for Canada knowing that her husband would provide for her.  In determining entitlement, the undertaking cannot be ignored.  To do so would render it meaningless.  Moreover, it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so.  Obviously, the Government of Canada in requiring such stringent undertakings from prospective sponsors has taken into consideration the inherent difficulties that some persons experience in making the necessary adjustments in coming to a new country and becoming self-sufficient.  It should also be noted that the agreement specifically states that separation or divorce from a sponsored spouse does not cancel sponsorship obligations.  Therefore, the agreement is very much relevant in determining entitlement.  However, the agreement that would otherwise bind the husband for ten years cannot supersede the specific laws that deal with maintenance.  In other words, sponsorship agreements cannot impose obligations greater than those imposed by the family law.  The sponsorship agreement must be considered together with the general principles applicable to spousal maintenance.  In the circumstances the provisions of both the Divorce Act and the Family Relations Act are nevertheless applicable.

There are two points that emerge from this passage.  First, the immigration undertaking can trigger contractual obligations for support.  Second, that the undertaking is not intended to go beyond statutory entitlements.”

            Nijher v. Dhaliwal, 2024 ONSC 1591 (CanLII) at 27-33

“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. (7^th) 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.”

            Albaum v. Albaum, 2024 ONSC 1595 (CanLII) at 76

“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.”

            Cronier v. Cusack, 2023 ONCA 178 (CanLII) at 20-21