Siegel's Family Court Calendar

“In my view, it flows from the observations and principles set out in Miglin that a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances.  The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain.  It also helps protect the possibility of finality in agreements.  An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties.  It is, as a result, an agreement that courts are more likely to respect.  Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.

Whether a court will, in fact, intervene will clearly depend on the circumstances of each case, including the extent of the defective disclosure and the degree to which it is found to have been deliberately generated.  It will also depend on the extent to which the resulting negotiated terms are at variance from the goals of the relevant legislation.  As Miglin confirmed, the more an agreement complies with the statutory objectives, the less the risk that it will be interfered with.  Imposing a duty on separating spouses to provide full and honest disclosure of all assets, therefore, helps ensure that each spouse is able to assess the extent to which his or her bargain is consistent with the equitable goals in modern matrimonial legislation, as well as the extent to which he or she may be genuinely prepared to deviate from them.

In other words, the best way to protect the finality of any negotiated agreement in family law is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme.”

Rick v. Brandsema, [2009] 1 SCR, 2009 SCC 10 (CanLII) at 47-50

“The appellant argues that the combined operation of ss. 10.1(3) and (5) precludes a lump-sum division when a pension is in pay. Some cases support this interpretation (see, for example, Jovanovic v. Jovanovic, 2013 ONSC 7132 (CanLII), [2014] W.D.F.L. 461, at para. 40). However, I would not read these provisions so restrictively, especially without clear statutory language that prohibits a lump-sum transfer when a pension is in pay.

Subsection 10.1(3) creates a general power to order an immediate lump-sum division. The availability of this permissive option is guided by the non-exhaustive criteria in s. (4). Subsection (5) addresses pensions in pay. In these circumstances, a judge may make an order for the division of pension payments, “but not for any other division of the spouse’s interest in the plan” (emphasis added). I do not read this section as prohibiting a lump-sum transfer for a pension in pay. Instead, s. 10.1(5) simply provides courts with another option – division of payments. However, just like s. 10.1(3), s. 10.1(5) only allows a judge to order one form of division – lump-sum or pension payments – not both, and not any other form of division of the interest.

The combined operation of ss. 10.1(3) and (5) leads to the following options. Before a pension is in pay, only a lump-sum division is available. This makes sense because there is no monthly payment stream to divide. Once a pension is in pay, a judge may choose between the two options, depending on all of the circumstances of the case. Whether or not a pension is in pay, the factors set out in s. 10.1(4) provide guidance.

The appellant’s restrictive interpretation of s. 10.1 potentially compromises an important goal of the FLA – to achieve a division of assets that is fair to both parties. In Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 S.C.R. 868, Major J. said, at para. 109: “The choice of a method for settlement of the equalization obligation is highly contextual and fact-based.  A payment method that is preferable in one case might be grossly unjust in another.” The interpretation favoured by the appellant would undermine this approach by precluding resort to an option (a lump-sum payment) that may be critical in achievi15ng a fair and just division of property.”

Fawcett v. Fawcett, 2018 ONCA 150 (CanLII) at 30-33

“The Family Law Rules include a number of provisions aimed at addressing situations such as the one which has developed in this case, where one of the parties chooses not to comply with court orders and/or not to participate responsibly in the court process. The relevant Rules for the purposes of this hearing are as follows:

1. Rule 1(8) gives the court a broad discretion to craft a remedy in response to a party’s failure to follow the Rules, or their failure to obey an order in the case or a related case. It stipulates that in those circumstances, the court may make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate,” including an order for costs, and an order dismissing a claim made by the party who has “wilfully failed to follow the rules or obey the order.”

2. Rule 13(17) provides that if a party does not comply with an order requiring them to provide financial information, the court may make any appropriate order, including an order dismissing the party’s case and striking out any document filed by the party and a contempt order.

3. Rule 14(23) provides that a party who does not obey an order made on motion is not entitled to any further order from the court unless the court orders that this Rule does not apply. The Rule further stipulates that in addition to any other remedy permitted under the Rules, the court may make any order that is appropriate including an order dismissing the party’s case, striking out the party’s answer or any other document filed by the party, or an order for costs.

In addition to these Rules, the court has an inherent jurisdiction to make any order which it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is in breach of an order.¹

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

The Rules referred to above are the main tools which a judge presiding over Family Law matters has in their toolbox to prevent a party from embarking upon the game of litigation abuse. The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner. Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

Levely v. Levely, 2013 ONSC 1026 (CanLII) at 10-13

“The motion judge recognized that there are no statutory provisions governing Ontario’s jurisdiction to hear the claims advanced by Ms. Knowles. He turned to the real and substantial connection test as explained in the leading case Club Resorts Ltd. v. Van Breda, 2012 SCC 717, [2012] 1 S.C.R. 572.  The motion judge concluded, at para. 46:

In summary, for the reasons discussed above, I find that Ontario has jurisdiction over this case because there is a real and substantial connection between the parties, issues and transactions in question in this case and Ontario. The presumptive factors establishing jurisdiction are that the case involves a claim to ownership of Ontario land, a claim for damage (the allegation of detriment incurred by the applicant in enriching the respondent) suffered in Ontario and a claim for support by a party who is ordinarily resident in Ontario.  Further, the parties were both ordinarily resident in Ontario (as well as Florida) until their separation. Although their primary residence was in Florida, their customary pattern of life included residence for a substantial period each year in their Ontario home from 2007 through 2011 which made Ontario a “real home”.  From the date of separation, the applicant was ordinarily resident in Ontario and not elsewhere.

The parties agree that the Van Breda analysis applies to the jurisdictional inquiry.  As explained in Van Breda, at para. 99, that inquiry focuses on the connection between the forum and the subject matter of the litigation and the defendant.  The inquiry looks to the claim as a whole:

The purpose of the conflicts rule is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

While the ultimate determination of jurisdiction looks to the “factual and legal situation” as a whole, it is helpful when applying Van Breda to examine each claim individually. The nature of each claim may affect which facts will be viewed as presumptive connecting factors for the purposes of the Van Breda inquiry.

…

I agree with the motion judge that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time.  With respect, the contrary holding in Derksen v. Insurance Corp. of British Columbia, [1995] B.C.J. No. 2709, at paras. 20-21 (S.C.) misreads Thomson.  I also find nothing in the judgments in Thomson that would justify limiting the court’s analysis to the taxation statute in issue. The definition of “ordinary residence” arrived at by the majority in Thomson is consistent with the plain meaning of the phrase and reflects the reality of the lifestyle that some people lead.  The motion judge was satisfied that Ms. Knowles and Mr. Lindstrom had that kind of lifestyle.  The record fully supports that finding.

The Family Law Act is silent on the question of jurisdiction over Ms. Knowles’ support claim. The motion judge held that in the absence of legislative direction to the contrary, that he was not limited to the concept of primary or principal residence, when considering the significance of residence to the jurisdictional question. I agree. In my view, if there is no controlling statutory provision, the concept of ordinary residence as defined in Thomson is appropriate when considering whether the parties’ physical connection to a jurisdiction is sufficient to constitute a presumptive connecting factor for the purposes of the Van Breda analysis.”

Knowles v. Lindstrom, 2014 ONCA 116 at 16-18, 32-33

“A party seeking an ownership interest by way of constructive trust must plead and then prove facts establishing entitlement to it. The fact that a claimant must prove enrichment of the other party and a corresponding deprivation of the claimant, with no juristic reason for the enrichment in order to establish a constructive trust, and must also show that damages alone are insufficient and only a proprietary remedy is adequate, does not alter the fact that the claimant has asked the court from the beginning to award an interest in land. To me, all this means is that the claimant has to plead and prove those key elements, usually called “material facts” in litigation, to justify the order sought. It should not matter how many material facts there are or whether the entitlement to land requires a two-step analysis, so long as the application makes a claim of entitlement to ownership of land.”

McConnell v. Huxtable, 2013 ONSC 948 (CanLII) at 77

“Although this motion involves a request for leave to extend the time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal:  see Monteith v. Monteith, [2010] O.J. No. 346, at para. 11.  They are:

(1)    whether the appellant formed an intention to appeal within the relevant period;

(2)     the length of the delay and explanation for the delay;

(3)      any prejudice to the respondent;

(4)      the merits of the appeal; and

(5)      whether the “justice of the case” requires it.

See Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2011 (Markham:  Lexis Nexis Canada Inc., 2010), at p.580; Rizzi v. Mavros (2007), 2007 ONCA 350 (CanLII), 85 O.R. (3d) 401 (C.A.), at para. 16; and Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14.”

Issai v. Rosenzweig, 2011 ONCA 112 at 4

“First, the process to settle an order has a narrow purpose: “to ensure that the formal order accurately sets out the intention of the court as reflected in the endorsement or reasons for decision”: Paul Perell and John Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order is not an opportunity for either party to re-argue issues already decided in an effort to change the result set out in the judge’s reasons.”

Chitsabesan v. Yuhendran, 2016 ONCA 105 at 11

“In my opinion, a court may take into account a post-separation date change in the value of a spouse’s assets, and the circumstances surrounding such a change, for purposes of determining under s. 5(6) of the Family Law Act whether equalizing net family properties would be unconscionable. An order for an unequal division of net family properties is exceptional, however, and may only be made on such a basis (i) where the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)), and (ii) where equalizing the net family property would be unconscionable, having regard to those circumstances (taken alone or in conjunction with other factors mentioned in s. 5(6)).

In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233, [1992] O.J. No. 2201 (Gen. Div.), affd (1996), 1996 CanLII 642 (ON CA), 30 O.R. (3d) 575, [1996] O.J. No. 4080 (C.A.); Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789, [2002] O.J. No. 4939 (C.A.); McDonald v. McDonald, [1988] O.J. No. 518, 11 R.F.L. (3d) 321 (H.C.J.); and LeVan (S.C.J.).”

Serra v. Serra, 2009 ONCA 105 (CanLII) at 46-47

“I begin with the observation that s. 133(a) of the Courts of Justice Act does not specify grounds for granting leave to appeal a consent order.

A review of the limited jurisprudence respecting leave to appeal consent orders, in Ontario and elsewhere in Canada, reveals that no clear test has emerged for granting leave in consent matters. However, what is clear is the resistance to allowing a review of issues that the parties have represented to the court as having been resolved. The expression of this resistance dates back to 1876, in the English case of Holt v. Jesse, 3 Ch.D. 177, at p. 184:

That is tantamount to giving a ‘general license to parties to come to this Court and deliberately to give their consent, and afterwards at their will and pleasure come and undo what they did inside the court, because on a future day they find they do not like it.’

See also Nguyen v. Nguyen, 1999 CarswellOnt 2668 (S.C.); Fott v. Fott, 2001 ABQB 327 (CanLII), at paras. 4, 22, and 33.

Some assistance in determining when leave to appeal a consent order should be granted can be found in Donald Brown’s Civil Appeals, looseleaf (Toronto: Canvasback Publishing, 2009) at p. 4-60:

In all jurisdictions, leave to appeal is required from an order made on consent, in some instances to be given by the judge or court making the consent judgment.  The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings.  Accordingly, apart from orders dealing with the custody of child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance. [Citations omitted.]

In this passage, the author makes two points that are relevant to this case.

First, he observes that consent orders have their foundation in contract. It follows that they may be appealed on the basis that the circumstances surrounding the consent were such that there was no enforceable agreement. This engages standard contract principles: see Rick v. Brandsema, 2009 SCC 10 (CanLII), 1 S.C.R. 295, at para. 64; McCowan v. McCowan (1995), 24 O.R. No. 2245, at p. 712.

It follows that in cases where the issue relates to the validity of consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent.  Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence.

The second point Brown makes is that matters involving children fall into a special category.

The distinction is clearly based on the court’s obligation to give priority to the best interests of the child: see Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 19 and 24; Family Law Act, R.S.O. 1990, c. F.3, s. 56; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8); see also M.A. v. C.P., 2010 ONSC 5481 (CanLII), 98 R.F.L. (6th) 434.

This priority is reflected in the general statutory provisions listed above. In addition, s. 21(2) of the Children’s Law Reform Act requires a judge, before granting a consent order involving custody or access, to receive a parenting affidavit that includes the party’s proposed plan for the child’s care and upbringing, information respecting the person’s involvement in other family proceedings or any criminal proceedings, and “any other information known to the person that is relevant to the factors to be considered by the court under subsection 24 (2), (3) and (4) in determining the best interests of the child”. Further, s. 67.(1) of the Children’s Law Reform Act requires the court to bear in mind the best interests of the child in making an order on consent.  And both s. 37 of the Family Law Act and s. 15.1(7) of the Divorce Act provide that in the face of the parties’ consent, a court may only award an amount for child support that departs from the child support guidelines if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. A judge who is satisfied of the applicable requirements is entitled to endorse the parties’ consent through formal court order.

Before articulating the test that applies for granting leave to appeal that, in my view, applies to consent orders involving children, I make the following three observations.

First, while consent orders are not ordinarily accompanied by reasons, in cases involving children, the statutory requirements I have referred to above demonstrate that the judge’s determination should attract deference.

Second, finality itself has been recognized as being in the best interests of the child, as was emphasized by the Supreme Court in Van de Perre v. Edwards, 2001 SCC 60 (CanLII), 2 S.C.R. 1014, at para. 13:

[F]inality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision.

Third, family law practice and procedure encourages parties to come to an agreement on as many issues as possible. As a consequence, consent orders are regularly granted.  Routinely allowing such orders to be appealed simply because they deal with issues pertaining to children would have the wholly undesirable effect of providing yet another route to prolonged litigation in family law matters.

Accordingly, while cases in which leave to appeal consent orders involving children must be treated differently, the threshold for obtaining leave is still high.

In my view, leave to appeal consent orders in family law cases involving children should not be granted unless, bearing in mind the deference I have identified, the record demonstrates an arguable case that the order, at the time it was made, was not in the child(ren)’s best interests.”

Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 (CanLII) at 58-73

“The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.  On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.  There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.  No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.  In this case there was no evidence of effective communication.  The evidence was to the contrary.”

Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA) at 11