Siegel's Family Court Calendar

“The parties drew my attention to a number of cases which have interpreted the meaning of ordinary occupation [of the matrimonial home].  In Ledrew v. Ledrew, [1993] O.J. No. 596 (C.J.), Smith, J. explained that,

[t]he ordinary occupation which is required of a home in order to qualify as a matrimonial home is that it be occupied by the parties as a family residence.  This requires that a significant part of the spouses’ time together be spent in and around the home and that the occupation of the home is not merely occasional or casual.

Based on this interpretation, Smith, J. found that the property in dispute, a cottage inherited by the wife during the marriage, did not constitute a matrimonial home due to lack of ordinary occupation.  At the time of separation, only the wife and children used the cottage, with the husband attending one family function and performing some maintenance work.  In the five years preceding and at the time of the separation, the parties spent no time together at the cottage whatsoever.

This interpretation has generally been followed in the case law.  It was applied recently in Gauthier v. Gauthier, [2011] O.J. No. 3764 (S.C.) at paras. 188-189.  In that case Bellegham, J. quoted directly from Ledrew in finding that there was no ordinary occupation of the cottage property in dispute because the parties did not treat it like a family residence nor did they spend a significant part of their time together there at the time of separation.  The husband only attended the cottage three or four times a year and performed minor work on it.

However, the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation: see LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141 (S.C) at para. 78.  In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 16, Perkins, J. noted that “to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre.”  In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon, J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.

Where usage is minimal or sporadic, the courts have focused on the intent of the parties.  In LeCouteur, H.A. Vogelsang, J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family’s “clear intent and purpose was to live there as a family.”  In Durakovic v. Durakovic, [2008] O.J. No. 3537 (S.C.) at paras. 123-127, the parties owned several homes around the world and led a nomadic lifestyle, staying at the property in dispute sometimes together and sometimes individually.  In finding certain property to be a matrimonial home, M.A.C. Scott, J. examined the express intention of the parties.  In addition, Scott, J. considered how property was maintained.

It should be noted, however, that future intent does not factor into the analysis: see Da Costa v. Da Costa (1990), 1990 CanLII 8096 (ON SC), 29 R.F.L. (3d) 422 (H.C.) at para. 49; Baudanza v. Nicoletti, [2011] O.J. No. 457 (S.C.) at para. 19.  Section 18(1) requires a determination of ordinary occupation at the time of separation; usage and intention post-separation is irrelevant.”

Oliver v. Oliver, 2012 ONSC 718 (CanLII) at 45-49

“The general principle is that an order granting a stay is final, but an order refusing one is interlocutory.”

McClintock v. Karam, 2017 ONCA 277 (CanLII) at 1

“As already mentioned, the [Spousal Support Advisory] Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support. In my view, the motion judge erred in departing from the Guidelines for the reasons he did: namely, the good luck associated with the husband’s early pension pay-out opportunity (at para. 140) and his finding that the wife was “mismanaging her affairs” (at para.150).

In the face of a very strong compensatory basis for entitlement to support, as well as an income increase arising from the very same job that the husband occupied throughout the 23-year-long traditional marriage, there was simply no reason to conclude that “the underlying assumptions of the SSAGs [were now] less helpful” (para.151).”

Slongo v. Slongo, 2017 ONCA 272 (CanLII) at 105-106

“In my view, it is equally appropriate to take [notional disposition] such costs into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as deduction of a liability: the result is the same. While these costs are not liabilities in the balance sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves.”

Sengmuller v. Sengmuller, 1994 CanLII 8711 (ON CA) per McKinlay J.A.

“Civil contempt of court is a quasi-criminal proceeding. The following elements must be proven beyond a reasonable doubt:

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

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

3)   The breach of the order must be proven beyond a reasonable doubt.

See Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at paras. 26-27.”

Vigneault v. Massey, 2014 ONCA 2144 (CanLII) at 11

“Under s. 178(1) of the BIA (Bankruptcy Insolvency Act), an order of discharge does not release the bankrupt from any debt or liability under an agreement for maintenance and support of a spouse or former spouse. The word “support” in the BIA does not include a division of matrimonial property. However, “support” is not defined in the BIA. Whether a particular amount claimed pursuant to a separation agreement is “support” within the meaning of the BIA is a question of fact to be determined with regard to the words of the agreement and the circumstances under which it was entered into. A particular disposition of property which is intended to be maintenance or a substitute for it can fall within s. 178 of the BIA and yet not qualify as support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).”

Shea v. Fraser, 2007 ONCA 224 (CanLII)(headnote)

“The law will not lightly set aside contracts reached by parties having contractual capacity: John D. McCamus, The Law of Contracts, 2d ed. (Toronto: Irwin Law, 2012), at p. 378. Duress is one basis upon which an otherwise valid contract can be rendered unenforceable.

This court set out the test in Hill v. Forbes, 2007 ONCA 443 (CanLII), 225 O.A.C. 74, at para. 12, citing the earlier case of Stott v. Merit Investment Corp (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545, 1988 CarswellOnt 887 (C.A.), at para. 48 (WL Can):

But not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to “a coercion of the will”, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no “realistic alternative” but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract (2nd ed., 1984), at p. 376 et seq.). Duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of duress.

Another formulation of the test applicable to economic duress, taken from the Pao On v. Lau Yiu, [1979] 3 All E.R. 65 (P.C.), and cited in Stott, at para. 49 (WL Can), is: “the victim must have entered the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure”.

Where duress is alleged, the contractual obligations often demonstrate some element of unusual advantage favouring the party with the dominant power.”

S.A. v. A.A., 2017 ONCA 243 (CanLII) at 26-29

“Once an agreement has been reached, albeit a marriage agreement, the parties thereto are expected to fulfill the obligations that they have undertaken.  A party cannot simply later state that he or she did not intend to live up to his or her end of the bargain.  It is true that, in some cases, agreements that appear to be fair at the time of execution may become unfair at the time of the triggering event, depending on how the lives of the parties have unfolded.  It is also clear that the [British Columbia’s Family Relations Act] FRA permits a court, upon application, to find that an agreement or the statutory regime is unfair and to reapportion the assets.  However, in a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess their initiative and arrangement, particularly where independent legal advice has been obtained.  They should not conclude that unfairness is proven simply by demonstrating that the marriage agreement deviates from the statutory matrimonial property regime.  Fairness must first take into account what was within the realistic contemplation of the parties, what attention they gave to changes in circumstances or unrealized implications, then what are their true circumstances, and whether the discrepancy is such, given the s. 65 factors, that a different apportionment should be made.”

Hartshorne v. Hartshorne, [2004] 1 SCR 550, 2004 SCC 22 (CanLII) at 67

“The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.  These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.  Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults.  Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.  This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada.  Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.  I observe, however, that the damage of which I speak is not from the laying of the charge — this will happen in any event, regardless of the manner in which the defendant is brought before the court.  The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.  Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children.  The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family.  Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation.  Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.  Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.”

Shaw v. Shaw, 2008 ONCJ 130 (CanLII) at 5

“Where a spousal support recipient has had ample time to become self-sufficient and has taken no steps to do so, spousal support may be terminated.  If support is continued, it may be appropriate to order time-limited support, as a way to emphasize the positive duty each spouse has under s. 17(7)(d) of the Divorce Act.  Alternatively, the court may order a “step-down” in spousal support, often with a termination date at some point in future.

The “step-down” approach is based, in law, on imputing income to the recipient spouse.  This, in turn, is based on s. 19(a) of the Federal Child Support Guidelines which provides:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: a. the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.

The test is substantially the same under the Spousal Support Advisory Guidelines, and is applied consistently for both child and spousal support claims.

To be “intentionally” under-employed does not require that the reason for the under-employment is to avoid support obligations.  “There is no need to find a specific intent to evade child support obligations before income can be imputed”.  ‘Intentional’ means a voluntary act and “makes it clear that the section does not apply to situations in which, through no fault of their own, spouses are laid off, terminated or given reduced work hours”.

Moon v. Moon, 2011 ONSC 1834 (CanLII) at 31-33