Siegel's Family Court Calendar

“The applicant submits that the Agreement itself is unconscionable. He contends that the agreement is completely one-sided and provides absolutely nothing to the applicant after 16 years of marriage.

In the recent decision of Toscano v. Toscano, 2015 ONSC 487 (CanLII), 57 R.F.L. (7^th) 234, Blishen J. provides a comprehensive summary of the issue of unconscionability at paras. 63-66 and 68 of her decision:

[63] Although in her Application Ms. Toscano argued that the consequences of the marriage contract were unconscionable, in general the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. It is the circumstances at the time of the drafting and signing of the contract which must be examined, not the results, under this criterion. There is an exception for a spousal support waiver which can be set aside if it results in unconscionable circumstances, pursuant to s. 33(4) of the FLA.

[64] 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).

[65] 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]).

[66]  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”.

[…]

[68]  In Miglin at para. 83 the Supreme Court of Canada notes that the emotional stress from separation or divorce does not give rise to the presumption that a party is incapable of assenting to a binding agreement…”

Freire v. Freire, 2017 ONSC 1188 (CanLII) at 38-39

“This motion is brought under Rule 60.11 of the Rules of Civil Procedure R.R.O. 1990, Reg 194. The test for civil contempt was set out in Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 (“Carey”):

a.  The order alleged to have been breached states clearly and unequivocally what should and should not have been done;

b.  The party alleged to have breached the order had actual knowledge of it; and,

c.  The party allegedly in breach intentionally failed to do the act the order compels.

The standard of proof to establish civil contempt is “beyond a reasonable doubt,” (Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007) 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27).

Contempt proceedings are bifurcated so that if a finding of contempt is made, a second sentencing stage for the party in contempt will be appropriate (Carey, at para. 18).

In Carey, Cromwell J. described a court’s contempt power in civil litigation settings (at para. 36),

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders …As this Court has affirmed, contempt of court cannot be reduced to a mere means of enforcing judgments” … Rather, it should be used “cautiously and with great restraint”: … It is an enforcement power of last rather than first resort.

Cromwell J. confirmed that a mental element or intent is not relevant to the initial determination of whether a party is in contempt, though it may play a role in the second stage of a contempt proceeding, dealing with the sentencing of a party in contempt.

Cromwell J. also confirmed that contempt remains available as a remedy to address non-compliance with a court order even where a party is no longer able to purge the contempt, either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order,  However, in Carey, the Court considered a context where the party’s own actions made compliance with the court order impossible (in that case, having expended funds that were to be held in trust pursuant to a Mareva order).”

Chaitas v. Greasley, 2019 ONSC 1158 (CanLII) at 7-12

“After completing his review of the law of the appointment and role of amicus, the trial judge set out his own summary of the features of amicus curiae in paragraph 43 of his decision, a summary he describes as extracted primarily from the Supreme Court of Canada and Provincial and Federal appellate courts:

(a)    The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b)    Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c)    It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d)    There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no “one size fits all” standard.

(e)   The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f)     The judge decides the terms and conditions of the role, which may vary widely.

(g)    Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h)    There is no solicitor-client privilege between an amicus and a party.

(i)     Only the judge can dismiss an amicus, not the party.

(j)     An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k)   Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.”

Morwald-Benevides v. Benevides, 2019 ONSC 1136 (CanLII) at 20

“In my view, restricting the money remedy to a fee-for-services calculation is inappropriate for four reasons.  First, it fails to reflect the reality of the lives of many domestic partners.  Second, it is inconsistent with the inherent flexibility of unjust enrichment.  Third, it ignores the historical basis of quantum meruit claims.  Finally, it is not mandated by the Court’s judgment in Peter (v. Beblow). For those reasons, this remedial dichotomy should be rejected. The discussion which follows is concerned only with the quantification of a monetary remedy for unjust enrichment; the law relating to when a proprietary remedy should be granted is well established and remains unchanged.

The remedial dichotomy would be appropriate if, in fact, the bases of all domestic unjust enrichment claims fit into only two categories — those where the enrichment consists of the provision of unpaid services, and those where it consists of an unrecognized contribution to the acquisition, improvement, maintenance or preservation of specific property.  To be sure, those two bases for unjust enrichment claims exist.  However, all unjust enrichment cases cannot be neatly divided into these two categories.

At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts.  The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy.  However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the “value received” and the “value surviving”, as McLachlin J. put it in Peter, at pp. 1000-1001. Thus, where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.

There is nothing new about the notion of a joint family venture in which both parties contribute to their overall accumulation of wealth.  It was recognition of this reality that contributed to comprehensive matrimonial property legislative reform in the late 1970s and early 1980s.  As the Court put it in Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] 2 S.C.R. 795, at p. 807 (in relation to Nova Scotia’s Matrimonial Property Act), “. . . the Act supports the equality of both parties to a marriage and recognizes the joint contribution of the spouses, be it financial or otherwise, to that enterprise. . . . The Act is accordingly remedial in nature.  It was designed to alleviate the inequities of the past when the contribution made by women to the economic survival and growth of the family was not recognized” (emphasis added).

Unlike much matrimonial property legislation, the law of unjust enrichment does not mandate a presumption of equal sharing.  However, the law of unjust enrichment can and should respond to the social reality identified by the legislature that many domestic relationships are more realistically viewed as a joint venture to which the parties jointly contribute.”

Kerr v. Baranow, [2011] 1 SCR 269, 2011 SCC 10 (CanLII) at 58-62

“In Elisabeth’s evidence there was minimal recognition of the importance of Freya having a relationship with her father, Josiah.

Because of the timing of this motion, being brought immediately after the issuance of the application, there was no opportunity for Josiah to call evidence from an expert on child development and attachment, or to obtain a s. 30 assessment under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, to assess Freya’s needs and the ability and willingness of Elisabeth and Josiah to satisfy those needs.

The courts however have recognized that children of Freya’s age [1 year, 9 months old] are at the attachment phase of development and that this is when children begin to form attachments to parents and caregivers. Children who are separated from one parent for extended periods of time at this age may not be capable of sustaining a meaningful relationship with that parent thereafter in addition to sustaining other adverse impacts.  Young children, such as Freya, need frequent and meaningful contact with both parents to develop meaningful relationships with both: Prasad v. Lee (2008), 2008 CanLII 24545 (ON SC), 53 R.F.L. (6th) 194 (Ont. S.C.) at paras. 48-49.”

            Panduro v. Davis, 2019 ONSC 1117 (CanLII) at 27-29

“The material filed and the submissions of counsel raise these broad issues:

a)  Can money collected under section 19 of the Family Responsibility and Support Arrears Act (the Act) be applied towards costs?

…

Section 19 of the Act is clear and unambiguous.  Money collected under Section 19 of the Act shall be applied only towards child and/or spousal support arrears.  Costs can be collected as support under Section 19 of the Act only in circumstances where a Court Order authorizes the collection of the costs as support as defined in subsection 1(1) of the Act.  See G. (W.) v G. (K.) [2015] W.D.F.L. 5811; de Somer v Martin 2012 ONCA 908 (CanLII), 22 R.F.L. (7th) 297.

Ont. Reg. 454/07, s4 of the Act recommends the following standard term in circumstances where a Court intends a Cost order to be collected as support:

“Costs are fixed in the amount of $[insert amount], of which [insert amount] is related to support and is enforceable as support by the Director, Family Responsibility Office.”

         Henderson v. Henderson, 2017 ONSC 1340 (CanLII) at 6-8

“The Divorce Act s. 3(1) provides: “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 proceedings.”

The Divorce Act does not define “ordinarily resident”. In Thomson v. M.N.R., (1946) CanLII 1 (S.C.C.) the Supreme Court of Canada defined “ordinarily resident” for purposes of an income tax matter as follows: “one is ordinarily resident in the place where in the settled routine of his life, he regularly, normally, customarily lives.”

In MacPherson v. MacPherson, (1977), 1976 CanLII 854 (ON CA), 13 O.R. (2d) 233 (C.A.), the Ontario Court of Appeal stated that in determining whether a party was “ordinarily resident” the court must consider “where the Petitioner regularly, normally or customarily lived in that year.”

It is clear that the Respondent did not live only in Toronto in the year immediately preceding April 17, 2018. The regular season schedule for the Raptors shows that in most months between October 2017 and April 2018, the team played home and away games about equally. The Applicant states he played 40 games in Toronto in that season. He states that he was based in Toronto and travelled for his employment. The fact that a person travels for their employment does not mean that they are not “ordinarily resident” in the place they return to when their work travel is completed.

…

In Knowles v. Lindstrom, 2014 ONCA 116 (CanLII), 118 O.R. (3d) 763, Doherty J.A. held that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time. The parties in Knowles lived in Florida, but spent significant time in Muskoka and Toronto. Doherty J.A. agreed with the motion judge below that “the parties had set up a pattern that included residence in Ontario… on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence.’”

In Roberts v. Bedard, 2015 ONSC 7918 (CanLII), the court considered the ordinary residence of a former professional baseball player and coach who owned property in Ontario and lived there in the off-season. He had lived and worked in various U.S. cities over the years. Mackinnon, J. stated that “Where the settled routine involves customary residence in more than one home, the court may find that the party is ordinarily resident in more than one jurisdiction. Simply owning or maintaining property in a jurisdiction does not make one ordinarily resident there. It must be shown that residence at the property was part of the regular routine. The court may also consider the intentions of the party when determining where the party is ordinarily resident. This is not determinative, but can help clarify whether a stay at a given property was meant as a sojourn or as a long-term relocation, such as to establish ordinary residence”.”

         Nogueira v. Kuczynski, 2019 ONSC 1032 (CanLII) at 24-26 & 29-30

“The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 (CanLII)…

It is the recusal order that forms the subject matter of the appeal to this court. The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue; thus the appeal lies to this court: Courts of Justice Act, s. 6(1)(b).

One of the leading cases on the difference between final and interlocutory orders is Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said, at p. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications?, but it is interlocutory if the merits of the case remain to be determined.

…

None of this changes the fact that the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before the court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.”

Brunning v. Fontaine, 2019 ONCA 98 (CanLII) at 4-6 & 11

“Parental alienation has all the features that make a great story: a heartbroken parent, an evil ex, and a victimized child. If real life were like Hollywood, the story would eventually end with the evil ex being punished (or seeing the light and repenting) and the   formerly heartbroken parent re-united with their now loving and devoted child. Unfortunately, real life is not Hollywood, and such picture-perfect endings rarely occur.”: initial paragraph of LL.M. thesis by Michelle McKelvey (1981-2014).

Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 (CanLII) at 1

“I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment [under section 30 of the CLRA]:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?”

 Glick v. Cale, 2013 ONSC 893 (CanLII) at 48