Siegel's Family Court Calendar

“Persons who are married or intend to marry may agree regarding their rights and obligations during and after the marriage in a marriage contract, which is one form of domestic contract: Family Law Act, s. 52.

A domestic contract prevails over the Act unless the Act provides otherwise: s. 2(10). A number of provisions of the Family Law Act permit a court to set aside all or part of a marriage contract, two of which are relevant to this appeal.

First, in the context of an application for spousal support, s. 33(4) gives the court the power to set aside a provision in a marriage contract that waives or reduces the right to support in three enumerated situations, including where the provision results in unconscionable circumstances.

Second, s. 56(4) allows a court to set aside an entire marriage contract or any provision in it, on application. That provision states:

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a)   if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b)   if a party did not understand the nature or consequences of the domestic contract; or

(c)   otherwise in accordance with the law of contract.

There is no limitation period provided in the Family Law Act for setting aside all or part of a domestic contract under s. 56(4), although that section specifically contemplates a court application for such relief. There is also no limitation provided for setting aside a spousal support provision of a marriage contract under s. 33(4), but that determination is made as part of a spousal support application for which there is no limitation period, as provided in s. 16(1)(c) of the Limitations Act.

Because the Family Law Act is silent as to the limitation period that applies to an application to set aside a marriage contract or a provision in it, one must look to the Limitations Act to determine which provisions of that Act, if any, apply. In this respect, I do not share my colleague’s view that the provision establishing the limitation period for seeking equalization should be read to also apply to an application to set aside a marriage contract under s. 56(4) of the Family Law Act. The fact that the Family Law Act does not provide a limitation period for an application to set aside a marriage contract under s. 56(4) is, in my view, a clear legislative signal that the Limitations Act is to apply.

…

I conclude that a proceeding under s. 56(4) of the Family Law Act comes within s. 16(1)(a) of the Limitations Act. There is no limitation period for bringing the proceeding for a declaration setting aside a marriage contract, whether as a stand-alone matter or if the proceeding also claims other family law relief. The other relief remains subject to the applicable limitation periods, including the residual discretion of a family court to grant extensions of time under s. 2(8) of the Family Law Act. In this case, those limitation periods are six years for the husband’s equalization claim, and there is no limitation period for his spousal support claim.

This result also works seamlessly within the limitation structure of the Family Law Act, because it does not add a new, shorter limitation period of two years, which would disrupt the longer time spouses have been given to resolve their affairs. It does not interfere with the philosophy of the Act, which is to give more generous time periods for separating spouses to resolve their claims for equalization and spousal support.”

         Kyle v. Atwill, 2020 ONCA 476 (CanLII) at 33-38 & 57-58

“Section 5(6) of the Family Law Act (“the Act”) permits the court to adjust a presumptive equalization of spouses’ net family properties in exceptional circumstances.

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Only sections 5(6) (e) and (h) are relevant to this matter.

Cohabitation less than five years (s. 5(6)(e))

Three findings are needed before the court may exercise its discretion under this provision:

(a)  That the parties cohabited for less than five years;

(b) That the presumptive amount to be paid is disproportionately large in    relation to the period of cohabitation;

(c)  That equalizing the net family property would be unconscionable.

There is no factual dispute that the parties cohabited for less than five years and slightly more than three years: there was no evidence that they cohabited before marriage.

As for whether an equalization payment is disproportionately large, there is no formulaic consensus in the case law. Typically, proportionality under this provision is co-related to the nature of the property giving rise to the equalization payment as in the case of a matrimonial home brought by one party to the marriage and for which no deduction is allowed if owned on the valuation date (Gomez v. McHale): 2016 ONCA 318 CanLII and, more broadly, financial contributions to the marriage by each party. Spousal misconduct should not be relevant.

…

In Serra the court held that once the “unconscionability” threshold is crossed, a court should exercise its discretion fairly and equitably according to the circumstances of the case: 2009 ONCA 105 at 71. Where s. 5(6)(e) has been found to apply, a mathematical formula, such as prorating the presumptive equalization payment to the period of cohabitation less than five years “may be helpful in some cases” but should not displace a broader consideration of the factors linking the parties’ marital contributions to the property giving rise to the equalization payment: Gomez v. McHale, at 12.”

Jayawickrema v. Jayawickrema, 2020 ONSC 4444 (CanLII) at 8-12 & 19

“In Noriega v. Litke, 2020 ONSC 2970, Justice Price emphasized both the subjective and objective elements of the test for a restraining order and adopted the reasoning of Dunn J. in Khara v. McManus, [2007] O.J. No. 1868, (O.C.J.) who described the test for a restraining order at paragraph 33 as follows:

…it is not necessary for a respondent to actually have committed an act, gesture, or words of harassment, to justify a restraining order.  It is enough if an applicant has a legitimate fear of such acts being committed … However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant.  A restraining order cannot be issued to forestall every fear of insult or possible harm, without compelling facts.  There can be fears of a personal or subjective nature, but they must be related to the respondent’s action or words. A court must be able to connect or associate a respondent’s actions or words with the applicant’s fears.  [emphasis added]

…

In Yenovkinav v. Gulian, 2019 CarswellOnt 21614 (S.C.J.), Justice Kristjanson considered the type of evidence required for an applicant to establish subjective reasonable grounds to fear as follows:

A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible impulsive behaviour with the objective of harassing or distressing a party.  There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement.  See: Purewal v. Purewal, 2004 ONCJ 1195.”

         Smith v. Reynolds, 2020 ONSC 4459 (CanLII) at 109 & 111

“Domestic violence will often give rise to concurrent proceedings in criminal and family court. The family court may be concerned with child protection litigation or issues of custody and access in matrimonial disputes. Criminal and family proceedings are defined by different objectives and governed by different rules. Yet, there are important points of convergence. Where family violence is alleged, or established, the courts must consider the risk of harm posed by the offender to others. Whether it be criminal, child protection or matrimonial litigation, questions of contact and association are often in issue. The assessment of risk is a complicated and imperfect calculus. The more information that can be made available to a court, the better the decision will reflect the realities of the family unit. Of course, at a criminal trial, there are restrictions on admissibility of evidence that may not apply in Family Court. However, when the issue is one of bail, or sentence, or variation of a probation order, the law accommodates a more flexible approach to the receipt of information.

If criminal and family courts are dealing with the same factual issues, affecting the same family, one might expect there to be a mechanism for the sharing of information between the two sectors. Yet, there tends to be little interaction between these systems. The criminal and family courts seem to operate as separate silos, through which cases move vertically, but not horizontally, toward completion. The silo approach or “two solitudes” model does a disservice to the administration of justice. It can lead to conflicting rulings and incomplete records. Important information and evidence can fall through the cracks. In the worst case scenario, the lack of coordination might result in the recurrence of serious violence. As noted in Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems, Vol. 1, the Report of the Federal-Provincial-Territorial (FPT) Ad Hoc Working Group on Family Violence (Ottawa: Dept. of Justice Canada, November 2013) [“FTP Report”]:

Because the system is fragmented and there is a lack of communication, sometimes, no one actor has a full appreciation of the nature of risk to victims.

. . .

Numerous domestic violence death reviews, inquiries and coroners reports have cited the lack of coordination between officials operating in these systems as a contributing factor in tragic family homicides.

The lack of coordination between criminal and family courts has been the subject of academic commentary: see e.g. Dr. Linda C. Neilson, Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Ottawa: Dept. of Justice Canada, 2013) [“Enhancing Safety“]; Joseph Di Luca, Erin Dann & Breese Davies, Best Practices where there is Family Violence: Criminal Law Perspective (Ottawa: Dept. of Justice Canada, 2013) [Di Luca, Dann & Davies]; Nicholas Bala & Kate Kehoe, Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective (Ottawa: Dept. of Justice Canada, 2015). It has also been the subject of study by the Department of Justice, as evidenced by the report cited above. It is beyond the scope of this ruling to engage in a comprehensive discussion of the issue. Suffice to say that this case is one in which the silos are firmly in place. There is no clear mechanism to allow me access to the evidence heard at the child protection proceedings.”

R. v. S.S.M., 2018 ONSC 4465 (CanLII) at 51-53

“There is no definition of “habitual residence” in the Hague Convention. It is a question of fact to be determined by the court.

The approach to be taken by courts in determining habitual residence was recently restated by the Supreme Court of Canada in Balev.  The court considered the two approaches being used by courts in Ontario to determine habitual residence: the dominant “parental intention approach” and the “child-centered approach”, which focused on the child’s connections with the state. The Supreme Court of Canada concluded that “habitual residence” should be determined by using a “hybrid approach” and stated at para. 43:

On the hybrid approach to determining habitual residence, the application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention. 

The judge considers all relevant links and circumstances-the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.

Under the hybrid approach, instead of focusing primarily on either parental intention or the child’s actual acclimatization, the judge determining habitual residence must look at all relevant considerations arising from the facts of the case.

Considerations include but, are not limited to, the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis, rather the application judge should consider the entirety of the circumstances: Balev at para. 44. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev at para. 47. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.

Although the hybrid approach requires the court to consider all the circumstances, the court emphasizes that it is the habitual residence of the child at the time immediately prior to the wrongful removal or retention that is relevant.

The Supreme Court of Canada concluded that the hybrid approach fulfils the goals of prompt return by:

a.  deterring parents from abducting the child in an attempt to establish links with a country that may award them custody;

b.  encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence; and

c.  protecting the child from harmful effects of wrongful removal or retention. (para. 59)

In Balev, the parties married in Ontario and moved to Germany, where their two children were born. The children were struggling at school, so the father consented to the children moving to Canada with their mother for the school year. After the consent period lapsed (i.e. the school year was over), the children remained in Ontario with their mother and the father requested their return under the Hague Convention. The court had to determine if the children were habitually resident in Germany or Canada at the time of the wrongful retention.  The question before the Court in Balev was whether a child’s habitual residence can change while he or she is staying with one parent in another country under the time-limited consent of the other.  Using the hybrid approach, a judge may consider that the intention of the parents was that the move would be temporary and the reasons for that agreement but should also considers all other evidence relevant to the children’s habitual residence. In Balev, the consideration was that the children had lived in Ontario, with their father’s consent, for the school year, which may have changed their habitual place of residence from Germany.  The facts in Balev are quite distinguishable from the case before this Court.

The Mother in the case before me relied heavily on Balev for the proposition that I must consider the children’s close ties to Ontario and find that their place of habitual residence was Ontario. Balev does not stand for the proposition that the children’s circumstances following the improper retention must be considered.  Balev stands for the proposition that if the children had time-limited consent to move to country B, the court can consider their circumstances in country B.  It does not stand for the proposition that the court must also consider the circumstances after the alleged wrongful removal or retention (which is expressly addressed in the Hague Convention itself).”

            Knight v. Gottesman, 2019 ONSC 4341 (CanLII) at 26-33

“In Serra v Serra, 2009 ONCA 105 (CanLII), 2009 CarswellOnt 513 (Ont. C.A.), the Court of Appeal for Ontario noted that the threshold of “unconscionability” under s. 5(6) is exceptionally high and that, to cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court.” In Medeiros v Medeiros, [2009] O.J. No. 4309 (Ont. C.A.), the Court of Appeal noted that the factors set out in s. 5(6) must be considered in light of all the relevant circumstances.

In Kucera v Kucera, [2005] O.J. No. 1514 (Sup. Ct.), Heeney J. considered the situation where a spouse brought the matrimonial home into a short marriage. The court explained the policy rationale underlying s. 5(6)(e) at paras. 18-19:

Marriage is a form of partnership, and it is inherently fair that wealth accumulated during the life of that partnership should be shared equally.

Where the [Family Law] Act potentially becomes unfair is where the special provisions discussed above come into play. This is because the equalization process does not only share wealth accumulated during the marriage, but also shares the value of one specific asset, the matrimonial home, that was accumulated prior to the marriage. In very short marriages, this represents an unjustifiable windfall to the non-titled spouse. So long as the marriage is of a duration of less than give years, s. 5(6) is available to redress that unfairness.

The court went on to consider the following factors in terms of determining whether s. 5(6)(e) was engaged:

• Whether the home was purchased before the marriage, and the contributions of the non-titled spouse;
• Whether the home was improved during the marriage in any way;
• Whether the titled spouse covered maintenance costs, as well as other living expenses for both parties;
• Whether the bulk of the presumptive equalization payment is a result of the value of the matrimonial home;
• Whether the non-titled spouse improved their financial position even without the presumptive equalization payment, including repayment of debts brought into the marriage; and
• Whether there were children.

Applying these factors, the court found that it would be unconscionable to award the wife an equalization payment generated almost entirely from a matrimonial home that the husband had brought into the marriage where: the marriage was short, the husband had acquired the home well before the marriage, and the wife had made no substantial contributions towards the home’s maintenance. The court allowed the husband to exclude the value of the home as of the date of marriage to determine equalization, and further reduced the award by 1/6^th on account of the length of the marriage.

Latchman v Sullivan, 2013 ONSC 2536, involved an uncontested trial where the main issue was division of family property. The parties cohabited for 10 years but were only married for 17 months. The wife purchased the home before the marriage but during the cohabitation period, with title solely in her name. The husband did not contribute any money towards the purchase of the home and made minimum contributions to its maintenance. The wife incurred debts for the benefit of the husband during the marriage which the husband never repaid. Based on these facts, the court allowed the wife to deduct the home’s value as of the date of marriage, and credited ½ of the mortgage payments, second mortgage, and truck loan balance made since separation such that the husband owed an equalization payment to the wife.

In Li v Zhao, 2012 ONSC 2121, the matter also proceeded by way of uncontested trial and, like the matter before this court, the husband did not provide any financial information. The court was satisfied that the husband had assets he had not disclosed that were equal to or greater than the mother’s assets. Accordingly, it assumed that their net family property was equal. However, the judge went on to note that, even if he was wrong, he would have not ordered the wife to pay equalization because she incurred a disproportionately larger amount of debt in support of the family.”

            Cheung v. Lim, 2020 ONSC 4387 (CanLII) at 15-20

“Evidence is admissible if it is relevant, material and not otherwise the proper subject of an exclusionary rule.

“Relevance” is a matter of every day experience and common sense.  Evidence that is not logically probative of the fact requiring proof (a fact in issue) is generally inadmissible.  To be probative, the evidence must increase or decrease the probability of the truth of the asserted fact to which it is said to relate:  see Ontario v. Rothmans Inc., 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 110.  Indeed, in order for evidence to be “relevant” it must have some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence:  see R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47.

“Materiality” is a legal concept that directs an inquiry into whether the fact that the party seeks to prove bears any relation to the issues in the proceeding as determined by both: the applicable substantive and procedural law; and the issues raised by the pleadings.

An affidavit ought not to contain argument, speculation and irrelevant information.  Legal arguments belong in a factum, not in affidavit form.  Generally, legal submissions contained in an affidavit should be struck pursuant to r. 25.11 of the Rules, as scandalous, frivolous, or vexations:  see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (Ont. S.C.).  Assertions in an affidavit that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations may be struck out as scandalous:  see George v. Harris, 2000 CarswellOnt 1714 (S.C.) at paras. 19-20.”

Enns v. Goertzen, 2019 ONSC 4233 (CanLII) at 65-68

“Assessments, while not binding on the judge deciding a matter, can be useful, even persuasive, in assisting the court to determine whether a proposed custodial arrangement would be beneficial to a child. They combine professional training with investigative powers to produce first-hand, independent information and insights not otherwise available. For various reasons, however, not the least of which is their cost and the time necessary to prepare, they are not routinely ordered. A judge must be satisfied the cost/benefit considerations clearly favour the ordering of an assessment. The importance of a cautious approach to ordering assessments was explained by Blishen J. in Glance v. Glance (2000) CarswellOnt 3169 at para 12:

Assessments by their very nature are intrusive.  They are also expensive and time consuming.  There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment.  The paramount concern must be the best interests of the child. The order for an assessment must have a proper evidentiary basis and it must be in the best interests of the child to order such an assessment.

In addition, they should not be used to find evidence to make a case or to enlist the assessor to provide support for the parent’s factual narrative (see Jonkman v. Murphy, 2011 ONSC 3917).”

         Donaldson (McGuire) v. Hill, 2020 ONSC 4330 (CanLII) at 16-17

“There is no dispute that courts generally have the power to award retroactive child and spousal support where warranted. Although the two claims are distinct, the considerations and criteria underlying both awards, and the arguments relating to them, overlap. That said, there remain differences in the approaches to them. Relying on the analysis of Bastarache J. in D.B.S. v. S.G.R., 2006 SCC 37, [2006] 2 S.C.R. 231, (a retroactive child support case), Cromwell J. summarized this in Kerr v. Baranow, 2011 SCC 10, [2010] 1 S.C.R. 369, (a retroactive spousal support case), at paras. 206-7 in the following way:

… I prefer to follow the example of Bastarache J. in [D.B.S.] and consider the relevant factors that come into play where support is sought in relation to a period predating the order.

While [D.B.S] was concerned with child as opposed to spousal support, I agree … that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reasons for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.  I will mention some of those differences briefly, although certainly not exhaustively.

The primary difference highlighted by Cromwell J. relates to the different legal foundations upon which child and spousal support are based. Child support is automatic; spousal support is not. Cromwell J. articulated this at para. 208:

Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth.  In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see [D.B.S.], at paras. 36-39 ,47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interest.  Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. [Emphasis added.]

In the context of dealing with both retroactive spousal and retroactive child support claims, Kerr and D.B.S. both emphasize, in the end, “the need for flexibility and a holistic view of each matter on its own merits”: Kerr, at para. 212; D.B.S., at para. 99.”

Rosenberg v. Gold, 2016 ONCA 565 (CanLII) at 41-43

“I am also not prepared to impute to the father an income on account of the monetary gifts he and his family have received from his parents.  In Bak v. Dobell, 2007 ONCA 304, 86 O.R. 3(d) 196, the Ontario Court of Appeal stated at para. 74:

Although it seems that legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

In considering whether it would be appropriate to do so, the Court of Appeal stated that a court had to consider the following factors:

–    The regularity of the gifts;

–    The duration of their receipt;

–    Whether the gifts were parent of the family’s income during cohabitation that entrenched a particular lifestyle;

–    The circumstances of the gifts that earmark them as exceptional;

–    Whether the gifts do more than provide a basic standard of living;

–    The income generated by the gifts in proportion to the payor’s entire income;

–    Whether they are paid to support an adult child through a crisis or period of   disability;

–      Whether the gifts are likely to continue;

–      And the true nature and purpose of the gifts.”

K.A.F. v. J.L.F., 2017 ONSC 4279 (CanLII) at 20-21