Siegel's Family Court Calendar

“If a person fails to obey an order in a case, rule 1(8) of the FLRs provides the court with the discretion to make any order it considers necessary to arrive at a just determination, including,

(a)        an order for costs;

(b)        an order dismissing a claim;

(c)        an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d)      an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e)        if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f)        an order postponing the trial or any other step in the case; and

(g)        on motion, a contempt order.

I further note r. 1(8.1) that allows for the same relief, with the exception of an order for contempt, as set out above should a party fail to follow the FLRs.

The consequence of striking a party’s pleadings in a case, unless the court orders otherwise, are set out in r. 1(8.4), as follows:

1. 1. 1. 1. 1.    The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
            2.    The party is not entitled to participate in the case in any way.
            3.    The court may deal with the case in the party’s absence.
            4.    A date may be set for an uncontested trial.

In family matters, the case law directs that the court’s authority to strike pleadings and deny trial participation should be used sparingly and only in exceptional circumstances. An order eliminating a party from participating in a case is a drastic remedy, one of last resort when no other will suffice. See Purcaru v. Purcaru, 2010 ONCA 92, at para. 47, and Chiaramonte v. Chiaramonte, 2013 ONCA 641, 36 R.F.L. (7th) 11, at paras. 31 and 32.

In Kovachis v. Kovachis, 2013 ONCA 663, paras. 27-36, the court set aside the lower court’s order striking pleadings saying the judge failed to consider the substantive disclosure already made, the lack of evidence that the responding party willfully disobeyed the disclosure order, the principle of proportionality fundamental to all civil proceedings in Ontario, and further failed to identify the disclosure still outstanding and the importance of it.

In Roberts v. Roberts, 2015 ONCA 450 (CanLII), at paras. 11, 12 and 13, our Court of Appeal had this to say about a party’s obligation to make financial disclosure:

[11]      The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12]      Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.

[13]      Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.

In 2016, the Court of Appeal in Manchanda v. Theti, 2016 ONCA 909 (CanLII), leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.), upheld the motion judge’s decision and stated:

[13]     … after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

See also Sparr v. Downing,, 2020 ONCA 793, at para. 4; Peerenboom v. Peerenboom, 2020 ONCA 240;  and  Martin v. Watts, 2020 ONCA 406.

In Mullin v. Sherlock, 2018 ONCA 1063 (CanLII) the court established the following framework for decisions under rule 1(8):

[44]      First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45]      Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• • • • • • •       the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
            •       the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
            •       the extensiveness of existing disclosure;
            •       the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
            •       any other relevant factors.”

            Elbadawy v. Moustafa, 2023 ONSC 6024 (CanLII) at 22-29

“The parties appeared before me for a seven-day trial. The Father was represented by senior counsel, while the Mother represented herself. Both parents testified, along with two school principals, the Father’s new partner, the Mother’s family friend, and a social worker and clinical investigator with the Office of the Children’s Lawyer (“OCL”), Eva Casino. Ms. Casino testified that the Child, was able to articulate his views and preferences clearly and that his views were independent, balanced, and insightful. I rely on both her testimony and the OCL Report. The parties did not oppose the Court taking judicial notice of information contained in the Association of Family and Conciliation Courts (Ontario) 2021 Parenting Plan Guide (“Parenting Plan Guide”), which succinctly outlines the developmental needs of children of separated parents who are around the same age of the Child, and also provides guidance on developing appropriate parenting plans in the face of family violence.”

            A.C. v. K.C., 2023 ONSC 6017 (CanLII) at 3

“In respect of the first issue, we find that the trial judge made no reversible error in ordering the occupation rent. The appellant argued before this court that the trial judge erred in law because he did not apply the requirement that such an order be exceptional. We disagree. While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397. The appellant was unable to refer us to any Ontario authority in support of the argument to the contrary.”

            Non Chhom v. Green, 2023 ONCA 692 (CanLII) at 8

“Section 56(4) differs from s. 33(4) Family Law Act in that s. 33(4) operates even when there is a valid and subsisting domestic contract but the provision respecting support results in unconscionable circumstances: Scheel v. Henkelman, [2001] O.J. No. 55 (Ont. C.A.).

In general, the doctrine of unconscionability with respect to domestic contracts under s. 56(4)(c) Family Law Act focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. Under s. 33(4), the focus is on the results of the waiver of support: does that waiver result in unconscionable circumstances when the agreement is triggered by separation: Toscano v. Toscano, 2015 ONSC 487 (Ont. S.C.J.).”

          Golton v. Golton, 2018 ONSC 6245 (CanLII) at 181-182

“As stated by the court in Rebiere v Rebiere 2015 ONSC 1324, at para 14: It is not always necessary to call expert evidence to prove values for minor assets: see Da Costa v Da Costa [1972] O.R. No. 384 (Ont. C.A.) at para 37. Where there is a failure to produce proof of the value of assets, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value: see also: Earle v Earle, [1997] O.J. 1308 (Gen Div – Fam. Ct.).”

            Siddiqui v. Siddiqui, 2022 ONSC 5784 (CanLII) at 87

“The calculation of spousal support must be based on established principles, which requires that I determine entitlement to support, duration and quantum, and decide whether a lump sum payment is appropriate as opposed to periodic payments.

Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of an order for spousal support, which, according to s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), are to:

a.   recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;

b.   apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c.   relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d.   in so far as practicable, promote economic self-sufficiency of each spouse within a reasonable period of time.

These principles are consistent with the concept of marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 20.

The threshold issue to be determined is entitlement. The Applicant did not argue this issue. Nevertheless, it is critical for the court to determine all grounds for entitlement because the basis for entitlement may significantly impact quantum and duration of spousal support: see Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81, at para. 64. A strong compensatory claim will be a factor for a higher range in the Spousal Support Advisory Guidelines (SSAG): see s. 9.1 of the SSAG; see also Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84, at para 54.”

            Graczyk v. Ivach, 2023 ONSC 5880 (CanLII) at 21-24

“Courts have a broad discretion to award costs, and the court may determine by whom and to what extent costs shall be paid:  Courts of Justice Act, RSO 1990, c. C. 43, s. 131 (1). In the family law context, there is a presumption that a successful party is entitled to the costs of a proceeding and, in fixing the quantum of costs, the court shall consider the reasonableness and proportionality of each party’s behaviour: Family Law Rules, O. Reg. 114/99, r. 24 (1) & (12).

These determinations presuppose the existence of objective benchmarks against which relative success, reasonableness and proportionality can be measured. Those objective benchmarks are present when a court makes findings of fact and law and issues an order. It is for this reason, as Middleton J. succinctly observed over a century ago, that costs are generally regarded as “incident to a determination of the rights of the parties, and ought not to be made themselves the subject matter of the litigation.”: McClellan v. Powassan Lumber Co., [1914] O.J. No. 381 (Ont. H.C.), at para. 8 (emphasis added) (“McClellan”). The same point was made more recently by Myers J. in Muskala v. Sitarksi, 2017 ONSC 2842, at para. 8.

These objective benchmarks are absent when parties resolve disputed issues on consent: Dhillon v. Dhillon, [2009] O.J. No. 4459 (S.C.J.), at para. 10; Witherspoon v. Witherspoon, 2015 ONSC 6378 (“Witherspoon”), at para. 42. There are a myriad of reasons why parties may decide to compromise or settle their claims without necessarily conceding that positions previously held were wrong. Thus, to attempt to use a negotiated compromise solution as the proper benchmark against which to assess relative success, or the reasonableness of either party’s behaviour, is questionable as a matter of principle: Witherspoon, at para. 42. See also Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304, at paras. 24-39; Talbot v. Talbot, 2016 ONSC 1351, at paras. 44-60.

It therefore follows that, where parties compromise their claims and settle litigation, the award of costs is very much the exception rather than the rule. Another way of expressing this principle is that “when parties reach a settlement as between themselves, the court should be very slow to make an award of costs against one of them.”: Mark M. Orkin & Robert G. Schipper, Orkin on The Law of Costs, 2nd ed., (Toronto: Thomson Reuters Canada Ltd., 2022), at § 2:35.

This is not to deny that there may be exceptional cases in which a costs order is appropriate even following a negotiated resolution. For example, where there has been a vast disparity in the relative costs that have been incurred by the parties, thereby precluding a negotiated settlement without an award of costs, and where the court is in a position to determine relative success based on the record before it, it may well be appropriate for the court to make an award of costs: Kearney v. Hill, 2017 ONSC 6306.  But as a matter of principle, an award of costs following a negotiated resolution will generally be inappropriate.

          Goetschel v. Goetschel, 2022 ONSC 5860 (CanLII) at 12-16

“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion.

The starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726 (CanLII). Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

1. 1. 1. 1. 48. Todetermine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
            49. The first step: There must be a material changein circumstances since the last order was made.

 a.    There must be a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b.    The changemust materially affect the child.

c.     It must be a changewhich was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.  The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S. [2011] SCC 64.

d.    The finding of a material changein circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e.    If there is no material changein circumstances, the inquiry ends.  The court would be without jurisdiction to vary the order.  Litman v. Sherman,  2008 ONCA 485 (Ont. C.A.).

f.     If there is a material change, the court must move tothe second stage and consider the best interests of the child and whether to vary the original order.

50. The second step:

a.    If a material changein circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.

b.    In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie.   There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c.    The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except tothe extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

d.    The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).

e.    Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining tothe child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.

….

1. 1. 1. 1. 52. The added complication: the father seeks a temporaryvariation of a finalparenting order.  This requires that the court conduct an even more stringent analysis:

a.     In all instances, courts must exercise caution before changingan existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order.  The starting point is that court orders are presumed tobe correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.      And the level of required caution is further heightened if the court is being asked tochange a final parenting order on a temporary basis.  If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority togrant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.      But the evidentiary basis togrant such a temporary variation must be compelling.

f.      The court must start with the aforementioned two-part material changein circumstances analysis.

g.    But for a temporary variation, the court must also assess whether the changedcircumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.    The onus on the party seeking a temporary variation is onerous.  They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being.  They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely tocontinue or exacerbate actual or potential physical and/or emotional harm for the child.

i.      The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.       The court must be satisfied that the existing order has come tobe demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.    Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair tothe child to delay implementation.

l.      And given the qualitative difference between untested affidavit materials on a motioncompared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.   On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril.  After that, priority switches torescuing and protecting the child.  And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (CanLII), Kurz, J. set out that the proper text for an interim variation of a final parenting order requires:

a.   A strong prima facieproof that there is a material change in circumstances regarding a parenting issue;

b.   The parenting issue must be an important one;

c.   The circumstances arising since the final order must be urgent or pressing; and

d.   The moving party must then prove that the remedy sought is in the child’s best interests.”

            Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII) at 21-25

“Significant amendments to the Divorce Act came into force on March 1, 2021. These amendments modernized the language in the Act by removing any reference to the terms “custody” or “access” and replacing them with terminology that focuses on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”.   Similar changes were also made to provincial statutes such as the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (which also came into force on March 1, 2020).

In my view, these changes are very welcome to the Family Courts and it is my hope they will do exactly what they were intended to do, which is to help reduce conflict, which is ultimately in the best interests of children.

…

The amendments to the Act relevant to this matter is that the Court may now make an order directing the parties to attend a family dispute resolution process pursuant to s.16.1(6). The definition for “family dispute resolution process” is set out in s. 2(1) of the Act, as follows:

Family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law; (mécanisme de règlement des différends familiaux)

Here, the husband deposes that the parties had discussions and, prior to separation, agreed that JAL would attend public school and be enrolled in Jewish religious school on Sundays. The wife denies that agreement. Instead, she deposes that she recalls one discussion where the husband expressed his desire for JAL to attend public school and, at that time, she said “sure”. The wife submits that there were no ongoing discussions between the parties about JAL’s school placement but, rather, this was a one-time discussion. Again, JAL was six months old when the parties separated.

These parties have a demonstrated history of being able to reach agreement in relation to matters concerning JAL. They were able to reach a parenting agreement in mediation with Philip Epstein on May 19, 2019. The parenting schedule agreed to in mediation was to be in place for one year and to be reviewed in September 2020 and, failing agreement, the parties were to determine the dispute resolution process. After the husband commenced this application, even though he sought a s.30 custody and access assessment and raised concerns about the wife’s mental health and parenting abilities, the parties were still able to agree on an equal-time shared parenting residential schedule at a case conference, such that JAL resides with the parties, pursuant on a 2-2-3 schedule.

While court is unquestionably a dispute resolution process, I find that a court application was not a dispute resolution process of first resort envisioned by the parties when they signed their agreement at mediation. Had court been the first option, they could easily have said so.

There is no urgency to the Court making a determination about JAL’s school placement for September 2022. There is, in my view, an opportunity here for the parties to attempt a less divisive solution – to enter into a family dispute resolution process where, with creativity and compromise, they can try to negotiate an agreement about how they will share the decision-making responsibility for JAL and one where they can try and design a comprehensive parenting plan to establish principles and rules to guide how they will share responsibilities and time with JAL, including addressing such matters as: how information is to be shared and communicated between them; how other related issues are to be addressed, such as the involvement of a new partner with the child; how future disagreements about the child are to be resolved; whether or not a parent should have a right of “first refusal” is the scheduled parent is unable to personally be with the child; how the parents are to manage attendance at child-related events; which parent is to hold the child’s government-issued documents; how travel with the child can take place; how the children’s personal items are to managed – and what school the child will attend. Again, with creativity, compromise and third-party assistance, the parties have the chance to find a less divisive solution that will ultimately benefit their child.

It is well-established that children of parents who separate do significantly better if their parents co-operate and communicate with each other and conflict is minimized. If communication and co-operation with the other parent is difficult, then a good parenting plan can provide the details of parenting arrangements so that parents are not required to negotiate every decision that needs to be made and so that parents do not turn to the Court to make decisions for them that they themselves may be able to make with some assistance.

Section s.16.1(6) of the Act is a new tool that can be used by the Court to assist parties who cannot agree about a major decision that impacts their child(ren) prior to making such a determination, in circumstances where such a decision is not time-sensitive. Having parents arrive a decision together, with the assistance of a skilled professional, is far better for children than having the Court impose a decision on a family where parents cannot reach a resolution about an important matter affecting children. If parents, even those who have tremendous difficulty, can be part of the design of a parenting plan, they will no doubt be far more likely to follow the terms of the plan since they were invested in making up the terms and plan. The Act requires parents to act in the best interests of children, to the best of their abilities, and to protect their children from conflict that may arise as a result of separation or divorce. It also includes an expectation that parents will support the child’s relationship with the other parent, unless it would be inappropriate to do so, for example, if there are concerns surrounding family violence. The amendments to the Act which enable the Court to order the parties to attend a family dispute resolution process, in my view, are a reflection of the growing body of research about the effects of separation and divorce on children which can be reduced if parents are able to develop parenting plans that meet the needs of children and promote children’s healthy development.”

            Leinwand v. Brown, 2021 ONSC 6866 (CanLII) at 15-16, 19-25

“I begin my analysis by confirming that child support is the right of the child, and no contract or agreement can operate to oust the jurisdiction of the court to order interim child support: Deiter v. Sampson, 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904, at para. 4.

When there is a dispute surrounding a separation agreement, the central issue to be determined is the validity of the agreement.  Only after that is determined can any secondary issues be addressed, including, for example, support: Chee-A-Tow v. Chee-A-Tow, 2021 ONSC 2080, at paras. 36-38.

However, in Salzmann v. Salzmann, 2004 CanLII 5009 (ON SC), [2004] O.J. No. 166, the court held (at para. 19) that interim spousal support may be granted, in spite of a waiver of spousal support, where there is a triable issue as to the enforceability of a contract.

On motions for interim spousal support, courts should apply the two-stage approach as set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2023] 1 S.C.R. 303, when assessing whether spousal support should be ordered despite it having been waived in an agreement.

As the court held in Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907, at para. 20:

In my view, the court, on an application for interim support, is required to conduct the Miglin analysis.  If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application.  This is particularly the case in circumstance where, as here, if the contract is upheld at trial, there are assets in the applicant’s name that can be used to compensate the respondent for any support that should not have been paid.  Interim orders are not final orders.  As noted by Granger J. in Cafik, they are meant to provide “a reasonably acceptable solution to a difficult problem until trial.””

            Huang v. Guo, 2023 ONSC 5717 (CanLII) at 25-29