Siegel's Family Court Calendar

“The leading case under s. 9 [of the Child Support Guidelines] is the seminal decision of the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII). The following principles emerge from that decision:

1. 1. 1. The first step is to determine whether the evidence establishes that the 40% threshold has been met;
      2. If it has, then the court must determine the appropriate amount of support based on a budget;
      3. The discretion to be exercised by the court requires consideration of the conditions and means of the parents and the needs of the children;
      4. The weight to be accorded each factor will vary according to the facts of each case;
      5. A pro-rated set-off of the amount each parent is required to pay according to the applicable Table is a starting point for analysis of the means and conditions of the parents;
      6. Further adjustments may be warranted to account for fixed and variable costs that each parent bears as part of his or her spending patterns;
      7. The court should consider the budgets and actual child care expenses of each parent as they relate to increased costs, if any, that arise under the shared care arrangements; and
      8. There is a broad discretion under s. 9(c) to conduct an analysis of the resources and needs of both parents and children. That analysis is necessarily contextualized to the particular facts of the case. Helpful factors include the actual spending patterns of the parents, the ability of each parent to bear the increased costs of shared care, and the standard of living of the children in each household.”

  Willert v. Willert, 2019 ONSC 614 (CanLII) at 108

“Financial disclosure is important in marriage contracts. Prior to entering into a contract, the parties need to fully understand their rights and obligations as if no contract existed (LeVan, para. 52). In addition to understanding their rights and what they are being asked to give up, the parties also need to understand each spouse’s asset base (ibid, para. 53).

If a party enters into a marriage contract aware of any disclosure shortcomings, the party cannot then rely on those shortcomings as a basis for setting aside the contract. See Butty v. Butty, 2009 ONCA 852 (CanLII), 99 O.R. (3d) 228, at para. 54. Similarly, a party cannot resile from the consequences of failing to compel further disclosure unless that party can demonstrate that the financial disclosure provided was inaccurate, misleading or false (see Quinn v. Keiper (2007), 2007 CanLII 45714 (ON SC), 87 O.R. (3d) 184 (Ont. S.C.) [Quinn]).

In Quinn, the trial judge sets out at, para. 47, a two-stage analysis for considering whether a domestic contract should be set aside for non-disclosure:

(i)    First, the party seeking to set aside the agreement must demonstrate that the other party failed to discharge its duty to disclose significant assets. The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets, and the failure to disclose changes in income. The significance of an asset is assessed by measuring the value of the asset against a party’s disclosed net assets. To conclude that a party has failed to disclose a significant asset, there must be some evidence to verify the value or extent of the party’s assets either at the date of marriage or the date of the agreement;

(ii)   If a court finds that a party has failed to disclose a significant asset, the court must determine, in light of the facts of each case, whether it should exercise its discretion to rescind the domestic contract. The burden of proof lies on the party seeking to set aside the contract to persuade the court to exercise its discretion in its favour. The court will take into account a variety of factors in exercising its discretion:

i.     whether the party who did not make full disclosure was asked or refused to do so; whether that party misrepresented or concealed financial facts; whether the other party had full financial information in any event; and, whether the other party would have signed the contract even if the disclosure had occurred;

ii.   whether the party relied on the non-disclosure or misrepresentations in entering into the separation agreement in the sense that the party would not have entered the agreement had she known the true value of the assets;

iii.    whether a party consented to incomplete disclosure, or was otherwise aware of the asset and had the means to ascertain its value;

iv.    whether one party took benefits under the contract and then moved to set it aside; and,

v.   whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosure; whether she moved expeditiously to have the agreement set aside; and whether the other party had fulfilled his obligations under the agreement.”

         Toscano v. Toscano, 2015 ONSC 487 (CanLII) at 46-48

“Disclosure is not a fishing expedition. Disclosure cannot be used to cause delay, deliberately burden an opponent with unnecessary costs or to reap tactical advantage: Chernyakhovsky v. Chernyakhovsky  2005 CarswellOnt 942.  It cannot be used to confuse, mislead or distract the trier of fact’s attention from the main issues – even if done inadvertently”: Boyd v. Fields  2006 CarswellOnt 8675.”

Milgrom v. Levy, 2019 ONSC 564 (CanLII) at 28

“When the parties argued the summary judgment motion in February, 2016, the Limitations Act, 2002 contained two limitation period regimes for sexual assault claims, the application of which turned upon the nature of the relationship between the plaintiff and the defendant. First, under s. 16(1)(h), no limitation period applied to a sexual assault claim against a person in a position of trust or authority over the complainant or on whom the complainant was dependent. Second, for all other sexual assault claims, the ordinary two-year limitation period applied. However, pursuant to s. 10(1), time did not run while the complainant was incapable of commencing a proceeding because of her physical, psychological or mental condition; s. 10(3) presumed the person was incapable of commencing the proceeding earlier than the date it was commenced, unless the contrary was proved.

Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act significantly changed the provisions of the Limitations Act, 2002 concerning sexual assault claims. Section 16(1)(h) of the Act was amended to provide there is no limitation period in respect of “a proceeding arising from a sexual assault.” Section 10 of the Act dealing with a plaintiff’s capacity was repealed.

The new ss. 16(1.1) and (1.2) gave retroactive effect to the removal of any limitation period for “a proceeding arising from a sexual assault”:

16. (1.1) Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2).

(1.2) Subsection (1.1) applies to a proceeding that was commenced before the day subsection 4 (2) of Schedule 2 to the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force, unless the proceeding,

(a) was dismissed by a court and no further appeal is available; or

(b) was settled by the parties and the settlement is legally binding.”

Cook v. Joyce, 2017 ONCA 49 (CanLII) at 18-20

“I have already found that there is no triable issue concerning the negotiation of this agreement.  However, in Scheel v. Henkelman (2001) 2001 CanLII 24133 (ON CA), 52 O.R. (3d) 1 (C.A.), Borins J.A. pointed out that the test for the setting aside of a domestic contract under s. 56(4) of the FLA is more stringent than that for setting aside a waiver of spousal support because of unconscionability under s. 33(4)(a) of the FLA.  He states that s. 33(4)(a) is directed towards the unconscionable results of a spousal support waiver as distinguished from an unconscionable agreement:

The use of the phrase “results in” in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application: Mance v. Mance (1981), 22 R.F.L. (2d) 445 (Ont. Co. Ct.); aff’d. (December 18, 1981), Cory, Jessup, Wilson JJ.A. (Ont. C.A.); Newby v. Newby (1986), 1986 CanLII 2616 (ON SC), 56 O.R. (2d) 483 (Ont. H.C.). As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision “results in unconscionable circumstances”. In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.

As set out in Scheel, unconscionability has been defined in a number of ways.  It can be seen as being “shocking to the conscience of the court”, “harsh and unjust” or “improvident or unfortunate”:  see para. 19 and 21 of Scheel.  Borins J.A. suggested at para. 20 that the court consider three factors in determining whether the present circumstances are unconscionable:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b)  the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c)  the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their life-style.”

Milne v. Milne, 2019 ONSC 459 (CanLII) at 72-73

“The main issue before me on this motion is whether I should make an order directing the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act, 1992.

The court has jurisdiction under s. 105 of the Courts of Justice Act to make an order for a capacity assessment. The parties agree that the husband bears the burden of establishing that the order should be made. Section 105(2) provides that:

Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Where, as here, the request for a capacity assessment comes from another party, s. 105(3) applies. It provides:

Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

In 626381 Ontario ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114 (CanLII), Stinson J. made clear that a mental examination should not be the norm on a motion to appoint or remove a litigation guardian. Rather, an order under s. 105 is exceptional. He wrote, at para. 40:

A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

Stinson J. went on to find that a contextual analysis must be employed to determine whether an order should issue under s. 105 in a civil proceeding. He held that the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable, the interests of the other parties and the court, as well as the societal interest in a fair, efficient and effective dispute resolution process: para. 58. He noted that the court cannot make a determination whether a party requires the assistance and protection of a litigation guardian without adequate evidence. Where it is not available, it may be necessary to require a mental examination under s. 105: para. 59.

Although Kagan, Shastri was a decision made in a civil context, the principles enunciated therein with respect to litigation guardians apply equally in the family law context: Costantino v. Costantino, 2016 ONSC 7279 (CanLII) at paras. 36-37. In a family law case, in my view, when considering the possible appointment of a litigation guardian, the court is not concerned only with the litigant, the other parties, itself, and society’s interest; it must also be concerned with the interests of the children who may be affected.”

Sadhu v. Kaul, 2019 ONSC 140 (CanLII) at 10, 12-16

“As noted, under the Family Law Act, the spouse with the greater net family property is required to pay the spouse with the lesser net family property one-half of the difference. However, the court has discretion to award an equalization payment that is an amount other than the difference between the two numbers. Section 5(6) of the Family Law Act provides that 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 number of factors, including that the amount of the equalization payment is disproportionately large in relation to a cohabitation period that is less than five years: see section 5(6)(e).

Ms. Erkurt submits that she should not be required to pay Mr. Kara an equalization amount based on one-half of the difference between the net family property amounts. Her submission is based on the fact that the marriage lasted less than five years, their period of cohabitation was a brief 17 months, and that her marriage to Mr. Kara was not a real marriage because Mr. Kara did not marry her with the intention of staying married to her but, rather, with the intention of gaining permanent residence status in Canada.

While a shorter marriage may be grounds for an unequal division in some cases, the section only applies if the “unconscionability” threshold is met and one spouse would receive a “disproportionately large” equalization amount in relation to the cohabitation period. In this case, Mr. Kara is entitled to an equalization payment of $3,660.57. I do not find this amount to be disproportionately large in relation to the cohabitation period, notwithstanding that each of the parties is of fairly modest means.

Further, in order for the court to exercise its discretion in this regard, an equal division of the net family property in the circumstances must be “unconscionable”. As set out in MacDonald v. MacDonald (1997), 1997 CanLII 14515 (ON CA), 33 R.F.L. (4^th) 75 (Ont. C.A.), the equalization must “shock the conscience of the court”. This is indeed a high threshold. I accept that Ms. Erkurt is very disappointed that the marriage failed. I also accept her evidence that Mr. Kara told her that he did not wish to be married to her and only used her as a means to immigrate to Canada. However, I do not find that this evidence in and of itself meets the threshold. As Feldman J.A. stated in Ward v. Ward, 2012 ONCA 462 (CanLII), 111 O.R. (3d) 81, at para. 25, referring to the trial judge’s reasons, “the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases.”

Kara v. Erkurt, 2019 ONSC 31 (CanLII) at 51-54

“As observed by Minnema J. in Rebiere v. Rebiere, 2015 ONSC 1324 (CanLII), 59 R.F.L. (7^th) 414 at para. 14, “[i]t is not always necessary to call expert evidence to prove values for minor assets”; a court can even “ballpark” the value of household contents in the absence of evidence of value: Alaouf v. Sumar, 2017 ONSC 3043 (CanLII), [2017] W.D.F.L. 3566 at para. 73.  But to arbitrarily pick a value in circumstances where there is no evidence even minimally identifying the contents, their cost, their date of purchase, or their condition on the valuation date, or at some later point in time, is to simply engage in guesswork.  I am not prepared to guess.  No value shall be attributed to the wife for the household contents which she retained or of which she disposed.”

Testani v. Haughton, 2019 ONSC 174 (CanLII) at 38

“Contingent rights are included in the definition of property for the purposes of determining net family property and shareholder loans are a common contingent asset. The Ontario family law legislation does not place a direct limit on this type of property, unlike in Manitoba, where section 9(1) of the Family Property Act, C.C.S.M. c. F25, provides that in regard to rights that are present, future, or contingent, “… the Act does not apply where there is in fact ascertained, as at the closing and valuation date, that there is no reasonable possibility of the rights ever being realized.”  Justice Stefanson interpreting this more restrictive legislation in regards to shareholder loans stated that:

The mere fact that corporate liabilities exceed assets by an amount greater than a shareholder’s loan does not, by itself, result in the exclusion of shareholder’s loans from the Marital Property Act accountings. (Curtis v. Curtis (1999), 1999 CanLII 14189 (MB QB), 137 Man.R. (2d) 302 (Man. Q.B.) at para 14.)

Justice Karakatsanis made a similar interpretation of the Ontario property definition in Fantin v. Gillingham-Corkun Fantin (2003), 37 RFL (5th) 327, 2003 CanLII 2114 (ON SC), 2003 CanLII 2114 (ONSC), at para 41:

The definition of ‘property’ contained in section 4(1) of the Family Law Act is extremely broad and covers future and contingent interests. This is a right to future payments that is not too remote and does not require the future personal effort of the individual.

Justice Mesbur considered a shareholder loan in dispute in Bursey v. Base (2007), 156 A.C.W.S. (3d) 405 (ONSC).  The husband took the position that it should not be included in his income because on the valuation date the business was not able to repay the amount and had no likelihood of being able to in the future.  Justice Mesbur found stated at para 55:

The corporate assets around valuation day were just sufficient to repay the bank liability. There was no additional ability to repay the shareholder’s loan. For that reason, I would value the shareholder’s advance at “nil”, since there was no reasonable likelihood the debt would be repaid.

The case law suggests that, while a shareholder loan contingent on a company being able to pay in the future is technically property, if there is no likelihood of recovering the loan in the future, it should not be included. This would be in situations where there is no reasonable likelihood of recovery or where the chance of recovery is too remote or would require personal effort of the party.  Conversely, if it does seem likely the loan could be repaid in the future then it should be included as it is a form of contingent equity pursuant to section 4(1) of the Family Law Act.”

Baiu v. Baiu, 2014 ONSC 216 (CanLII) at 116-119

“Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization [See Note 13 below] of their property), the duration of their cohabitation and any other relevant factors.

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower- income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower- income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self- sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.”

Fisher v. Fisher, 2008 ONCA 11 (CanLII) at 53-55