Siegel's Family Court Calendar

“The applicant must show more than a mere display of common courtesy or hospitality. The facts of family life should be established, and the court will assess the relationships that have developed within the family unit. Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled”, in my opinion, denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention — or the brevity of the relationship in issue — is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced. Once a settled intention has been demonstrated, a subsequent change in that intention does not remove the obligation of support: Barlow v. Barlow; Dokuchie v. Dokuchie, and Riopelle v. Daniel. There is, indeed, no reason to suggest that the statutory intention is an ambulatory concept, the legal effects of which a respondent can cast aside at will to the detriment of the child. It seems unlikely that the legislature intended to place the financial well-being of a child in so vulnerable a position.

The view has been expressed that, while “settled intention” is to be inferred from the respondent’s conduct, the inference may be rebutted by evidence of actual intent: Bair v. Bair and Hines v. Davy. I agree that the respondent’s actual state of mind may form part of the totality of evidence. However, I share the view of Nasmith Prov. Ct. J. in Barlow v. Barlow, that the intention contemplated by the Act is intention objectively determined. I say this for three reasons. First, the legislative purpose of the definition is to enact a relationship between a respondent and a child that, as a matter of public policy, is considered appropriate to ground the support obligation. The right to support, if established, is the right of a child. Assume that a respondent’s intention, inferred from his conduct, is such as to satisfy the statutory test. As it is this intention, and this intention alone, that has been communicated to family members, and, indeed, to the outside world, it seems to me curiously inapposite to permit the respondent to escape the support obligation by asserting an actual intention at variance with the facts of family life knowingly created. So extravagant a construction does not seem consistent with the public policy base of the Act. Secondly, not only must there be a settled intention, but, further, the intention must be demonstrated; that is, translated into behaviour towards the child. I do not find it easy to understand how a party can “demonstrate” an actual intention, where this intention is different from the intention that is to be inferred from conduct. Finally, the statutory language breaks new ground, and there seems no reason to read into the Act unnecessary refinements and complexities. In my view, therefore, settled intention is to be objectively determined from a respondent’s conduct. I believe, also, that it is necessary to distinguish this intention from the motive or reason that prompted its formation. Motive, as a rule, is immaterial, save in so far as it may indicate intention.”

Spring v. Spring, 1987 CanLII 4379 (ON SC)

“In the final paragraph of her factum, the respondent “respectfully requests that this Honourable Court review her Offer to Settle this Motion for Leave to Appeal prior to awarding costs.”

It is not open to parties to disregard case management directions, even “respectfully”.  If a party wishes a variation in a case management direction, that variation must be sought prospectively.  Our case management system facilitates timely and efficient disposition of motions for leave to appeal, both for the parties and for the court.  It is not efficient for leave panels to reconstitute themselves a second time to consider costs issues.  This practice is in keeping with the practice as to costs of motions for leave to appeal in the Ontario Court of Appeal and the Supreme Court of Canada.

Where parties fail to provide their costs materials to the court as directed, the court will usually exercise its discretion to award no costs or to award a standard amount of costs that, in the opinion of the court, is appropriate for the matter at hand, generally $2,500 or $5,000, depending on the nature of the case.  It will be only in exceptional circumstances that the court will direct or permit further materials on costs after the decision has been rendered on the merits of the leave motion.”

            Rego v. Pearsall, 2021 ONSC 6624 (CanLII) at 4-6

“In Pintea v. Johns, 2017 SCC 23, at para. 4, the Supreme Court of Canada unanimously endorsed the Principles on Self-Represented Litigants and Accused Persons (“the Principles”) published by the Canadian Judicial Council in 2006. See: Canadian Judicial Council, archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf).

The Principles ensure that self-represented litigants are provided with fair and equal treatment in the courts.  They require:

• • • • Fair access to justice – This requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. (The Principles, page 2)
      • Some leniency for minor deficiencies – Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. (The Principles, page 4)
      • Judges have a responsibility to inquire – Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications before the self-represented person makes critical choices. (The Principles, page 7)
      • Rules should not be used to hinder – Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. (The Principles, page 7)

In Girao v. Cunningham, 2020 ONCA 260, at para. 149, the Court of Appeal for Ontario reminded us that the Principles, as endorsed and outlined in Pintea, need to be followed throughout the entire proceeding. They affect how the self-represented litigant should be treated in the courtroom and require that the court be flexible (while ensuring impartiality) in terms of procedures and the admissibility of evidence when one party is self-represented.

            Ramnarine v. Dindyal, 2022 ONSC 5713 (CanLII) at 47-49

“The following excerpts from Steps to Justice: Your Guide to Law in Ontario provides a useful overview of the Parenting Coordination process:

Parenting coordination is an alternative dispute resolution, also called family dispute resolution process. Parents can meet with a parenting coordinator for help with following the parts of their court order, family arbitration award, or separation agreement that are about parenting.

     …

A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders.

A parenting coordinator doesn’t decide major things like decision-making responsibility or parenting time. These used to be called custody and access. But a parenting coordinator can decide minor issues like:

• • • • • • • small changes to a parenting access plan such as vacations and holidays
            • scheduling activities and arranging for pick up and drop off to activities like ballet, hockey, or tutoring
            • children’s travel and passport arrangements
            • how your children’s clothing and school items are moved between your and your partner’s homes

A parenting coordinator helps you speak with each other to try and agree on your parenting issues. If you can’t agree, they can decide for you. Their decision is based on information they get from the parents, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.

The process is similar to mediation-arbitration. But the parenting coordinator cannot make major decisions. Their job is to help you follow the parts of your court order, family arbitration award, or separation agreement that are about parenting.

Parenting coordinators are trained to:

• • • • • • •    understand the needs of children
            •    help each parent discuss their parenting issues
            •    help parents to manage and keep children out of conflicts

…

Some of the reasons to use parenting coordination are:

• • • • • • • You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children’s needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
            • It can be faster than going to court once you have agreed on all of the process details and signed a parenting coordination agreement.
            • It can be cheaper than going to court to resolve minor parenting issues.

Community Legal Education Ontario, “What is Parenting Coordination?” (1 March, 2021),

online: https://stepstojustice.ca/questions/family-law/what-parenting-coordination/?gclid=.”

S-L.T. v. M.L., 2023 ONSC 5551 (CanLII) at 15

“Rule 2.1 of the Rules of Civil Procedure empowers a court, on its own initiative, or on motion by any party to a proceeding, to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

A proceeding includes an appeal. As this court noted in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8^th) 280, at para. 43, “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.”

…

To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson , at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.”

Bell v. Fishka, 2022 ONCA 683 (CanLII) at 1-2, 13

“To avoid trial or to narrow the issues, Ms. Burley did nothing.  She made no Offer to Settle, formally or informally.  Intransigence as such comes at a price.  As aptly stated by Wilson J. in Hussain v. Alam, 2013 ONSC 2250:

“Parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs.”

Burley v. Bradley, 2019 ONCJ 737 (CanLII) at 4

“The parties cannot confer jurisdiction on a court through consent: “The common law unanimously supports the general proposition that parties cannot empower a court with the authority to make a determination where it otherwise has no authority to do so or it its authority is limited by statute: Rothgiesser v. Rothgiesser [2000 CarswellOnt 50 (Ont. C.A.)], 2020 CanLII 1153 at para. 19. Jurisdiction is not optional: it “cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered”: N. (J.) v. Durham Regional Police Service, 2012 ONCA 428 (Ont. C.A.) at para. 25.”

          Simons v. Crow, 2020 ONSC 5940 (CanLII) at 37

“In Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at para. 16, Pazaratz J. reviewed the applicable legal principles to be considered in a motion of this kind:

The applicable legal principles include the following:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil, 2020 ONSC 1225 (Ont. S.C.J.).

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant. Kaphalakos v. Dayal, 2016 ONSC 3559 (Ont. Div. Ct.); Marchese v. Marchese, 2017 ONSC 6815 (Ont. S.C.J.); Jama v. Basdeo, 2020 ONSC 2922 (Ont. S.C.J.); Davis v. Davis, 1953 CanLII 148; Brienza v. Brienza, 2014 ONSC 6942 (Ont. S.C.J.).

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made. Jama v. Basdeo; Steele v. Doucet, 2020 ONSC 3386 (Ont. S.C.J.).

d.   The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy. Steele v. Doucet.

e.   The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. Afolabi v. Fala, 2014 ONSC 1713 (Ont. S.C.J.).

f.   Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issue in order to avoid the sale. Silva v. Silva(1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.); Jama v. Basdeo; Steele v. Doucet.

g.   Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v. Davis(1953), 1953 CanLII 148 (ON CA), [1954] O.R. 23 (Ont. C.A.); Steele v. Doucet.

h.   In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined. Maskewycz v. Maskewycz(1973), 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (Ont. C.A.).

i.   The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC 703 (Ont. S.C.J.); Latcham v. Latcham(2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.); Dulku v. Dulku, 2016 CarswellOnt 16066 (Ont. S.C.J.).

j.   In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — both positive and negative — in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale. Zargar v. Zarrabian, 2016 ONSC 2900 (Ont. S.C.J.); Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.); Keyes v. Keyes, 2015 ONSC 1660 (Ont. S.C.J.).

k.   More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currently unsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family. Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households. Sometimes harsh new realities need to be faced sooner as opposed to later — in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.   The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing. Delongte v. Delongte, 2019 ONSC 6954 (Ont. S.C.J.); Kaing v. Shaw, 2017 ONSC 3050 (Ont. S.C.J.). The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need to be co-ordinated — even on a temporary basis — to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v. Darrigo, 2018 ONSC 1039 (Ont. Div. Ct.). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. Kereluk v. Kereluk2004 CanLII 34595 (ON SC), [2004 CarswellOnt 4332 (Ont. S.C.J.)], 2004 CanLII 34595.

n.   Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718 (Ont. S.C.J.).

o.   On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.   The stage of a child’s academic progress might also be relevant. Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school. On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.   But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale. A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient. The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.   A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Martin v. Martin1992 CanLII 7402 (ON CA), [1992 CarswellOnt 226 (Ont. C.A.)], 1992 CanLII 7402. Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola[1990 CarswellOnt 574 (Ont. C.A.)], 1990 CanLII 6888. But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry, 2012 ONSC 2149 (Ont. S.C.J.).

s.   The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

            Culloden v. Card, 2022 ONSC 5573 (CanLII) at 13

“The test for attribution of income from Drygala is usefully reviewed in Kinsella, at paras. 50-54. The first part of the test asks whether a party is intentionally unemployed or underemployed, that is, earning less than the party is capable of earning. The second part looks to determine whether that unemployment is caused by reasonable health or educational needs or the needs of a child of the marriage. In the last part of the test income can be attributed having regard to the capacity to earn an income, in light of the party’s employment history, age, education, skills, health, available employment opportunities and the standard of living in the parties’ relationship.

Speculation is not permitted for the attribution of income. The determination must be evidence-based: Drygala, at para. 44.”

McChesney v. McChesney, 2023 ONSC 5388 (CanLII) at 184-185

“Courts act with care in determining when it is appropriate to exercise their discretion in favour of setting aside an agreement. This is in large part due to the weight which is placed on private citizens being able to negotiate and make their own arrangements with respect to an agreement, especially when independent legal advice was obtained: Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228 (Ont. C.A.) at para. 50, per curiam [“Butty”]. The Applicant is essentially asking the court to accommodate her change of mind.

In LeVan v. LeVan (2008), 90 O.R. (3d) 1, [2008] O.J. No. 1905, 2008 ONCA 388, at para. 51, the Court of Appeal held that s. 56(4) comprises a two-stage analysis:

a)     Can the party seeking to set aside the agreement demonstrate that one or more of the s. 56(4) circumstances isengaged?

b)     If so, is it appropriate for the court to exercise its discretion to set aside the agreement?

The Court of Appeal, in Virc v. Blair, 2014 ONCA 392 (CanLII), 119 O.R. (3d) 721 [“Virc”], set out the approach to be taken by the Court on a motion for summary judgment to dismiss a spouse’s application to set aside a separation agreement. In Virc, the applicant sought to set aside the separation agreement she had entered into with her former husband. She argued that her husband had deliberately and materially misrepresented the value of his interest in a company, with the result that she had received an equalization payment that was substantially less than what she was entitled to. The respondent/husband moved for summary judgment dismissing her claim.

This Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 7104, granted the husband’s motion. The motions judge concluded that, even if the values provided by the husband were false, there was no genuine issue for trial because the wife had information that should have caused her to question the husband’s disclosure before she signed the separation agreement. The wife appealed. The Court of Appeal allowed the appeal and ordered that the wife’s application proceed to trial.

The wife in Virc argued that, besides the non-disclosure, the parties’ inequality of bargaining power resulted in undue influence, that the husband’s eagerness to resolve matters created duress, that the terms regarding child support and the matrimonial home were unconscionable, and that the terms of the agreement should be altered to provide for spousal support.

The Court of Appeal held that assessing whether the agreement complied with the objectives of the Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.) respecting spousal support was a genuine issue requiring a trial, and that given the unresolved issues, the allegations of undue influence, duress and unconscionability also should have been determined by a trial judge on a full factual record: Virc, para. 76.

In Virc, the motion judge held, at para. 55, that the fact that the appellant “had information that should have caused her to question” the veracity of the husband’s disclosure precluded any chance of successfully setting aside the agreement, even if the respondent had, in fact, deliberately made false disclosure. In other words, the motion judge determined that the appellant ought to have known that the value her husband attributed to his date of marriage interest in his company was overstated. In making this determination, the motion judge relied on an excerpt from Cheshire & Fifoot.  She wrote, at para. 83 of her reasons:

               Further, where the recipient spouse has a reason to question the information provided, but does not, no misrepresentation or omission could result in the contract being avoided. I refer to Cheshire and Fifoot, The Law of Contract, 10th ed., at p. 244, and quoted in Farquar, at para. 35:

Knowledge of the untruth of a representation is a complete bar to relief, since the plaintiff cannot assert that he has been misled by the statement, even if the misstatement was made fraudulently. In such a case, “the misrepresentation and concealment go for just absolutely nothing . . .”.

The Court of Appeal noted that the motion judge had failed to mention that the authors of Cheshire & Fifoot went on to write:

               It must be carefully noticed, however, that relief will not be withheld on his ground except upon clear proof that the plaintiff possessed actual and complete knowledge of the true fact – actual not constructive, complete, not fragmentary. The onus is on the defendant to prove that the plaintiff had unequivocal notice of the truth. In particular, the mere fact that a party has been afforded an opportunity to investigate and verify a representation does not deprive him of his right to resist specific performance or to sue for rescission. As Lord Dunedin once said:

No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction. [page  736]

. . . . .

               [I]t is no answer to a suit for relief to say that inspection of the contracts or of the lease or of the bills of costs was expressly invited but was not accepted.

The Court of Appeal in Virc concluded:

               [58] Once the motion judge assumed that there had been deliberate material misrepresentations, she erred in shifting the onus to the appellant to inquire as to the veracity of the respondent’s financial disclosure. In the face of a deliberate material misrepresentation, the onus is not appropriately placed on the recipient spouse. Rather, the burden is on the party disclosing to establish actual knowledge of the falsehood by the recipient. The respondent could point to no authority for the proposition that the suggested duty of a spouse receiving financial disclosure in a matrimonial case, to investigate or test the veracity of the information provided, overtakes deliberate material non-disclosure by the other spouse.

The effect of non-disclosure on the integrity of a Separation Agreement is not limited to instances of deliberate misrepresentation.  It applies equally to circumstances involving deliberate and material non-disclosure.  The Court of Appeal in Virc stated, in part:

[62]     In Butty v. Butty, (2009), 99 O.R. (3d) 228, [2009] O.J. No. 5176, 2009 ONCA 852 this court overturned the trial judge’s determination that the marriage contract should be set aside pursuant to s. 56(4)(a) because the husband had failed to disclose significant assets or debts when the contract was made. … in the case under appeal, the finding of actual knowledge on the part of the appellant is lacking.

[63]     In Quinn [Quinn v Epstein Cole LLP, (2008), 92 O.R. (3d) 1, 2008 ONCA 662], this court noted, at para. 4, that a spouse could not resile from the consequences of failing to pursue further disclosure “unless she demonstrated that [the husband’s] financial disclosure was inaccurate, misleading or false.”  In Quinn, unlike the case under appeal, the appellant had no evidence of non-disclosure but maintained that more such evidence might be forthcoming as a result of examinations for discovery.

….

[64]     Next, the motion judge erred in granting summary judgment when relevant factors  that required a determination were left unresolved.

[65]     In Rick v. Brandsema, [2009] 1 S.C.R. 295, [2009] S.C.J. No. 10, 2009 SCC 10, the Supreme Court of Canada considered the implications of the deliberate failure of a spouse to provide all the relevant financial information in negotiations for the division of assets….

[66]     The Supreme Court held that the deliberate failure to make full and honest disclosure of all relevant financial information 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….

[67]     The motion judge erred by making a determination in the absence of a resolution of these key factors….

[Emphasis added, citations added]

This Court followed the Virc approach in Turk v. Turk, 2015 ONSC 5845 [“Turk”], where an order for summary judgment was not granted as the court was not confident that it could make findings of the necessary facts and apply the relevant legal principles so as to resolve the issue of setting aside a separation agreement.”

            Shalaby v. Nafei, 2022 ONSC 5615 (CanLII) at 50-60