The following case deals with the issue of the validity of a Memorandum of Agreement determining the division of property, equalization payment, support (both child and spousal) etc. stemming from the breakdown of the marriage of the parties. Mr. Ward contends that the agreement is valid and enforceable whereas Ms. Ward states that it is not and consequently cannot be binding.

The parties married on October 22, 1988 and entered into a marriage contract on the same day. This contract did not account for a number of assets held by Mr. Ward. The parties had two children and when they separated in 2005 the children continued to reside with Ms. Ward.

In order to arrive at an amicable resolution of all issues the parties chose to engage in Collaborative Family Law and both Mr. and Ms. Ward retained counsel to facilitate the process. They participated in 8 meetings, the result of which was a Memorandum of Agreement signed on November 30th, 2005.

Justice Matheson of the Ontario Superior Court of Justice was called upon to determine therefore whether or not the Memorandum could be held to be a valid and enforceable contract or whether, in the alternative, it could be held to be an agreement in principle and that other information is necessary to make it enforceable.

There are numerous interesting facts in this case that should be noted and which put the validity of the Memorandum into question. The first is that Ms. Ward claims that full financial disclosure was not made, and secondly the individual, Sandy Weststein, who was obtained to act as a mediator for both parties was Mr. Ward’s accountant. He was the individual responsible for providing both sides with all relevant financial information and advising them on the courses of action to take. Ms. Ward contends that he withheld information from her regarding certain properties and the financial affairs of Mr. Ward’s medical practice. Lastly, she states that she did not voluntarily sign the Memorandum rather she was pressured into doing so as a result of Mr. Ward’s threats to withhold $250,000 from her, which she needed to purchase a home for herself and her sons.

Mr. Ward only offered full and complete financial disclosure once the motion to set aside the Memorandum of Agreement was initiated.

Justice Matheson identifies the test to be applied when considering a claim to set aside a domestic contract for non-disclosure. It stems from the case of Quinn v. Epstein Cole LLP and involves a two-stage analysis:

(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 …

Based on all the aforementioned, Justice Matheson ruled in favor of Ms. Ward. He concluded that the Memorandum of Agreement was simply an outline to arrive at a binding separation agreement. In order to be valid and enforceable the parties required much more financial information; including that which was excluded from the marriage contract signed in 1988.

The following case deals with the issue of child support and possible variations thereto based on changes in a Payor-father’s income.

Briefly, the couple were married in March of 1986, separated in 1995 and officially divorced in 1997 after a lengthy and litigious trial for the purposes of determining spousal and child support. Initially, the amount that Mr. Walsh was required to pay was set at $2,021.00 per month in child support and $2,800 per month in spousal support.

As the years progressed, Ms. Walsh applied to the court to vary the child support payable in 2002, 2004 and 2005 with the amount increasing to $5,560.00 per month. Further to this in 2006, after an income assessment was carried out, Mr. Walsh voluntarily increased the child support by paying an additional $2,791.19 due to a rise in his annual income. It should be noted that Ms. Walsh, during this lengthy process which included frequent trips to court, had been ordered to pay costs to her former husband but failed to do so.

This decision, delivered by Justice Corbett from the Ontario Superior Court of Justice, involves yet another application by Ms. Walsh for an increase in child support. Moreover, Justice Corbett rendered judgment on two other corollary issues, namely whether the costs award previously mentioned should be set-off against the child support payable and lastly, what type of order should be made to prevent additional trips to court for the Walshes.

The law states that a variation in a support order will be granted if it can be shown that there has been a material change in circumstances of either the Payor or the Recipient. Justice Corbett identified the following facts as constituting material changes in the circumstances of the Payor:

• His employment was terminated
• His income drastically increased due to the severance package he was given reaching a sum of $1,201,976.00 in 2006 and $1,000,000.00 in 2007, and
• That his income would subsequently decrease as a result of the termination and inability to retain comparable employment due to his age and other personal circumstances.

Mr. Walsh was contrary to paying child support based on the full amount of his 2006 and 2007 incomes because according to him the increases in income in those years were “non-recurring, one-time payments that ought not to be included.” Ms. Walsh however contended that support should continue to be determined as per usual which is on the basis of the prior year’s income therefore allowing the increases in income to be taken into account. Justice Corbett agreed with Ms. Walsh and while referring to ss. 16-20 of the Child Support Guidelines he deduced that termination payments form part of an actual income earned and consequently child support should be paid therefrom. This type of income and support determination forms the settled routine used by the parties which is consistent with the Guidelines and should therefore not be deviated from.

With regards to Mr. Walsh request to set-off the costs award against child support, Justice Corbett quickly dismissed this issue since generally child support is inviolate and takes priority over all other financial issues between parties.

The last thing he set out to do was carefully craft a detailed order which would take into account the changes in circumstances of Mr. Walsh and vary support accordingly in order to eliminate the possibility of future, costly litigation.

The following case involves a husband’s attempt to vary, terminate or reduce his spousal support obligation as a result of his former wife’s cohabitation with another man and subsequent remarriage.

Mr. and Ms. Slater were married in 1970, separated in 1993 and officially divorced in 1999. The same year that the divorce was granted Ms. Slater began cohabiting with Mr. Nathanson, whom she later married. Mr. and Ms. Slater decided to resolve all financial issues stemming from their marriage breakdown via arbitration and incorporated the decisions into an Arbitration Award. One such decision regarded spousal support where Mr. Slater agreed to pay a fixed amount of $10,000.00 a month that could only be varied by reason of a catastrophic and unforeseen change of circumstances of either party.

Pursuant to this provision Mr. Slater brought a motion to vary the amount payable, including Mr. Nathanson as a party on the basis that the cohabitation between him and Ms. Slater constituted a change in circumstances. Mr. Slater further requested an order for contribution or indemnity by Mr. Nathanson claiming that since he and Ms. Slater qualify as spouses under the Family Law Act he also has an obligation to support her.

Mr. Nathanson, on the other hand, brought a motion to be removed as a party or a summary judgment dismissing all claims against him.

Justice Czutrin of the Ontario Superior Court of Justice dismissed all claims against Mr. Nathanson and stated that despite the living arrangements between Mr. Nathanson and Ms. Slater, and the potential financial benefit she may accrue from said arrangement, Mr. Slater had no viable claim against him.

When the agreement was entered into between the two former spouses Ms. Slater and Mr. Nathanson were already living together and Mr. Slater was well aware of their relationship and the possibility that they would marry. Moreover, Ms. Slater and Mr. Nathanson had entered into a cohabitation agreement stating that she would not seek support from him and this arrangement was known by all three individuals when Mr. and Ms. Slater settled. Therefore, he did not satisfy the court that the living arrangement constituted a “catastrophic, foreseen or unforeseen, change in circumstances” as contemplated by the Arbitration Award.

Justice Czutrin also took the opportunity to discuss the potential dangers that would result if, to terminate a spousal support obligation, it would become commonplace to add new spouses as parties. He stated that:

“family litigation will be more adversarial and more costly; it will incur greater delays; and, it will potentially interfere with, and potentially jeopardize, intact relationships. It is one thing to seek disclosure from new partners and investigate the financial relationship between new partners and spouses, it is far different and significant to then seek the relief that is sought here, that is, to transfer all or part of a support obligation from a former spouse to a new spouse by a court declaring that the new spouse has all of part of the obligation.”

In this case Justice Lauwers of the Ontario Superior Court presided over an appeal brought by the Respondent-husband regarding the amount of spousal and child support he was ordered to pay. The initial order imputed income to him in the amount of $60,000.00 and required that he pay $902.00 per month per child as well as $1,798.00 to his spouse, the cumulative amount being $2,700.00.

The Respondent did not dispute the amount of income that was imputed to him, however, he did dispute the orders for support stating that, at trial, Justice Mulligan erroneously relied on a previous “without prejudice” order as opposed to determining the amount independently of said order. The consequence of this reliance was that the amounts ordered far exceeded the guideline amounts for both child and spousal support. Counsel for the Respondent-husband submitted that the whole purpose of the guidelines is to ensure predictability and certainty of the law. By allowing the initial order to stand Justice Lauwers would be setting a dangerous precedent whereby he would be threatening to undermine the policy goals attempting to be achieved.

Justice Lauwers agreed with this submission and as a result granted leave to appeal pursuant to Rule 62.02(4)(b) of the Family Law Rules. Moreover, he varied the support payments, requiring instead that $883.00 be paid in child support and $1,000.00 for spousal.

This decision of Justice Spies from the Ontario Superior Court of Justice involves a motion by the Respondent-wife for an order to strike the pleadings of her Applicant-husband due to his failure to answer his undertakings. She also requests an order for the sale and partition of their vacation property and matrimonial home, spousal support, continued medical coverage and an interest in his life insurance policy.

The parties to this motion were married in 1990, separated in 2007 and officially divorced in 2009. The Applicant-husband was a successful business owner whose extra-marital affair, and subsequent fathering of a child, ultimately led to the breakdown of the marriage. The Respondent-wife had minimal education and job experience and due to various medical and psychological conditions, either caused or aggravated by the separation and divorce, was essentially unemployable.

The order requesting that Justice Spies strike out the pleadings was brought due to the Applicant’s complete and utter failure to comply with proper procedure, namely Rules 13 and 19 of the Family Law Rules. Not only had he failed to provide adequate and up-to-date financial information but he also failed to make an affidavit listing all relevant documents. However, notwithstanding his lack of compliance it was concluded that “striking his pleadings is too drastic a remedy at this time.” Rather, Justice Spies ordered that an additional 21 days be granted to the Applicant to answer his undertaking. Failure to do so within the specified time could then potentially result in an order striking his pleadings. Justice Spies further reasoned that since this is the first motion brought to compel the Applicant to answer his undertaking it would be out of the ordinary to instantly strike the pleadings. This recourse is usually taken after various motions have been brought as is evinced by the case of Shamli v. Shamli where an order striking pleadings was made, but only after a prior order for disclosure had been made.

Justice Spies also ordered that the matrimonial home and vacations properties be sold pursuant to s. 3(1) of the Partition Act and the net proceeds were to be divided between the parties. However, a further order was made requiring that $500.00 a month be paid to the Respondent, from the Applicant’s half, to account for the arrears stemming from an order dated January 19, 2009.

Thirdly, and based on the aforementioned inability of the Respondent to earn an income and consequently become self-sufficient, the Applicant was ordered to pay interim spousal support in the amount of $5,000.00 a month. Moreover, continued coverage under the Applicant’s life insurance policy and medical plans was granted to the Respondent.

The following decision deals with the issues of child support and the enforcement of an extra-provincial order. When the parties separated in 2002 they were residing in Florida with their two children, Justin and Kassandra. That same year the mother obtained orders for custody and support of the children and relocated with them to Ontario. The next year the mother, who was at this point residing in Ontario with the children, brought a motion in a Florida court to increase the child support order which was consented to by the father.

In 2004, the father ceased making support payments which resulted in the mother bringing yet another motion in Florida to deal with the enforcement of said order. At this proceeding the mother agreed to link support and access issues such that if she denied the father of his right to access he could refrain from making payments. The aforementioned occurred and despite her initial consent, the mother brought a final motion in Florida to enforce the support order.

The General Magistrate there recommended that due to her significant history of denying access to the father, child support payments should cease as agreed to. That recommendation was incorporated into a decision and support was effectively terminated.The mother did not attempt to appeal or vary the final decision in Florida, rather she applied to an Ontario court and sought an order for support.

The history of the proceedings is crucial in this case because it is illustrative of the implied acceptance, on the part of the mother, of the jurisdiction of the Florida courts with regards to the support and custody/access issues. It is only when a decision was reached that was unfavorable to her situation that she opposed the jurisdiction of the Florida courts and applied within Ontario. Otherwise known as “jurisdiction shopping” this is generally not tolerated by judges as is evinced by the reasons of Justice Ricchetti in this judgment whereby he recognized and enforced the extra-provincial order.

He identified that there are three provisions of the Children’s Law Reform Act which provide the applicable tests, ss. 19, 41(1), and 42(1)-(2). Briefly, s. 19 states that the purposes of the act are to recognize and enforce orders for custody granted by a foreign jurisdiction unless there exist exceptional circumstances which warrant the setting aside of said extra-provincial order. Section 41(1) provides a list of circumstances that if satisfied will result in the setting aside of an extra-provincial order. Lastly, s.42(1) and (2) allow a court to supersede an extra-provincial order if it is satisfied that there has been a material change in circumstances that affects or is likely to affect the child.

Justice Ricchetti briefly explained and applied the facts of the case to each provision. He affirmed that the mother had failed to satisfy each test. He also considered the obligation imposed by s. 31 of the Family Law Act. This section states that every parent has an obligation to financially support his or her unmarried child. Generally this obligation cannot be bargained away by parents nor is it common in Ontario for access and support to be linked. However, there do exist exceptional circumstances which will allow for it, such as:

• where the custodial parent has sufficient assets and income and the children will not be deprived of appropriate support,
• when the children are older, and
• where the parents have consented to conditional support.

Lastly, he emphasized the fact that the order from Florida linking support and access, and to which the mother consented, stipulated that any disputes arising therefrom would be dealt with in a Florida court. This further reinforced his reluctance to interfere and so he refused to exercise his discretion or set aside the extra provincial order. Instead, Justice Ricchetti dismissed the application and did not award any costs.

In this case, the Ontario Court of Appeal affirmed the decisions reached at the Ontario Superior Court stemming from the dispute between the parties, C.S. and M.S., who were married in 1986 and separated in 2002.

At trial, Justice Perkins made the following orders:

• That the mother be granted full and sole custody of their youngest daughter, M, with no access to the father or the other three children of the marriage.
• That a restraining order be placed on the father forbidding him from making contact directly or indirectly with either his daughter or his wife, and
• That an award of costs be given to the mother in the amount of $320,198.85.

The Court of Appeal looked to the best interests of the child test in order to determine whether an order forbidding access to a father was justified. An overwhelming amount of evidence indicated that it was decidedly so. It was shown how the father, through his behavior, had been successful in alienating three children from their mother. The Court of Appeal was certain that if given the opportunity he would probably do the same with his youngest child. Therefore, it was stated that the extent of contact between father and daughter that would be in her best interests was “no contact”. However, it was mentioned, in paragraph 7 of this judgment, that the order for no access could be varied subject to a material change in circumstances.

As was previously noted the order regarding access to M was extended to cover the three older children as well. The father, through his persistent and aggressive conduct, had alienated the three older children from their mother to such an extent that allowing contact between all children could potentially expose M to negative influences and consequent estrangement from her mother. The three older children, together with their father, were seen as belonging to a “single camp” the goal of which was to do the bidding of their father and effectively remove the mother from their lives.

Beyond affirming the orders and awards made at trial, and dismissing the appeal in its entirety, the Court of Appeal also awarded costs of the appeal to the mother in the sum of $10,000.

The parties in this case were married in 1987 and separated in 2009. There were two children of the marriage, Brigitte (aged 16) and Martin (aged 12), the temporary custody of whom forms the basis of this dispute. It was adduced in court that at the time of separation there was a shared custody arrangement agreed to whereby the children would reside with each parent on a week-by-week basis. However, with the passage of time what occurred is that Martin remained in the matrimonial home with the Respondent-husband and Brigitte continued to alternate between residences and spent time with both parents. The parties, unfortunately, were not amicable and allegations were hurled at one another regarding improperly influencing the children. The parties did attempt to resolve the issue of custody by bringing an initial motion for temporary custody, however, that motion did not proceed and consequently the arrangement was never concluded.

Since the Applicant-wife was determined to fundamentally alter the de facto custody arrangement that was in place she began behaving in such a manner that was condemned by the court and which ultimately resulted in the court ruling in her Respondent’s favor.

She contacted the Children’s Aid Society (hereinafter referred to as the CAS) and arranged for a meeting with a CAS Social Worker as well as contacted the local police making various false allegations against her Respondent. Moreover, when the Respondent left the couple’s motor, boat, and trailer in the Applicant’s parking spot, so that she could sell the items for a profit, she called the police. This resulted in the arrest and detention of the Respondent who was charged with mischief.

While the Respondent was in court awaiting his bail hearing the Applicant took it upon herself to change the custody arrangements. She had Martin delivered to her where she kept him out of school for a brief period of time and then enrolled him in a school nearer to her residence. Justice Cornell from the Ontario Superior Court did not look favorably on the applicant’s actions. He stated that her behavior ran contrary to s. 20(4) of the Children’s Law Reform Act which provides that:

Where the parents of a child live separate and apart and the child lives with one of them with a consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidence of custody, but not the entitlement to access, is suspended until a separation agreement or court order provides otherwise.

He emphasized that the proper procedure to follow to rectify her dissatisfaction with the custody arrangements would have been to apply for a temporary order for custody. Her unilateral actions of changing Martin’s school and his residence were unacceptable and as a result would not be tolerated by the court.

Justice Cornell awarded temporary custody to the Respondent and determined that pursuant to s.24(1) of the Children’s Law Reform Act this would be in the children’s best interests as Martin would be able to return to the matrimonial home and re-enroll in his previous school. Once again he would be reunited with all his friends and the surroundings with which he was most familiar. He also granted reasonable access to the Applicant and stated that each party was to abide by the “Rules for Separated Parents” which were attached to the reasons.

Justice Cornell’s main motivation in coming to this decision was to ensure that the Applicant was not rewarded for her outrageous conduct. Rather, she should have been patient, followed proper procedure, brought a motion for custody and presented the court with the best possible evidence. Had she behaved accordingly perhaps the outcome would have been different.

In this case Justice McGee of the Ontario Superior Court was asked to decide on numerous issues relating to the custody and access of the parties’ daughter, Maya.

The facts of this case are simple. The parties were married for just under six years and had one child (Maya). Their marriage was a difficult one and they were anything but amicable, dragging their case through court and engaging in incessant litigation on every possible issue.

One such issue related to the appointment of a parenting coordinator with the authority to make final awards. Prior to appointing a parenting coordinator from a list of pre-selected and approved candidates, Justice McGee requested that counsel for both parties confirm their instructions to ensure that there was mutual consent. However, despite previous dealings and apparent consent, counsel for the father revealed that he no longer consented to the appointment.

What is useful about this case is that it clearly outlines the law relating to the jurisdiction of the court when it comes to appointments of parenting coordinators and affirms that both parents must consent. A judge cannot unilaterally, or on the consent of one party, appoint a parenting coordinator. At paragraph 5, Justice McGee states:

“It is a decision increasingly being made by separated parents, and it is their decision alone. It is outside the jurisdiction of the court to delegate the court’s authority to a parenting coordinator, or to dispense with the consent of a parent to an Agreement for Mediation/Arbitration, or an Agreement for Parenting Coordination Services and Arbitrations in accordance with the Arbitration Act, S.O. 1991, c. 17 and the Family Statute Law Amendment Act, 2006, S.O. 2001 c.1.”

By not agreeing to the appointment of a parenting coordinator, Justice McGee was obligated to reluctantly make a decision regarding the custody of and access to Maya. At paragraph 22 he states “In the motion before me, I am left to consider the optimal schedule for Maya at this time based on the evidence as it stands today, and without the prospect of parenting coordinator.”

She stated the utility of resolving disputes through a parenting coordinator and his words should be kept in mind if and when you are ever faced with a similar dilemma.

“Fully authorized and funded parenting coordinators act as fail safes for co-parenting plans that seek to balance time and decisions making between parents. Without such a safety mechanism, conflict can increase between parents.”

In this decision delivered by Justice Ricchetti, from the Ontario Superior Court, the issue of interim interim (or temporary temporary) orders for support was discussed. The court optimally presented and applied the law to the facts of the case, thus providing a viable precedent for lawyers and judges considering said issue.

The facts offered are few and elusive. From what may be gathered the parties cohabited for 2 years prior to marrying in 1996. There were three children born of the marriage and the year of separation was slated as being 2007. Moreover, the respondent-Haefele was a high-income earner. It should be noted that there were some inconsistencies in determining the exact income amount. More specifically, the applicant-Moorthy claimed he received approximately $6.5 million a year from various interests in German business whereas the respondent countered that his income was $500,000 plus whatever amount he needed to pay taxes.

In addition to an order for interim spousal and child support, the wife sought retroactive support, an order for non-dissipation as well as the full disclosure of further documentation. The husband also brought a cross-motion for the adjournment of the wife’s motion for the purposes of questioning her on her materials.

The adjournment was granted to the husband as it was decided that there was no urgency to the wife’s motion since all her expenses (i.e. mortgage, children’s tuition, etc.) were being paid for by the respondent and would be until the motion was heard. However, Justice Ricchetti noted that the sole source of support available to the wife was access to a joint line of credit which could be easily controlled or reduced by her husband. As a result, and recognizing that the wife would be in need of some form of support, the judge decided to address the issue of support and imposed an order for interim interim support without prejudice to either party.

Justice Ricchetti looked to two previously decided cases from the Ontario Court of Appeal in order to ascertain the current state of the law. The first case Sugar v. Sugar stands for the proposition that in order to be granted interim interim support:

• an applicant must show a prima facie case of need,
• the respondent must have the ability to pay, and
• the adjournment may result in a delay making the provision of support reasonable given the circumstances.

The second case relied on, Elliston v. Elliston, divulges the purpose of an order for interim interim support which is to prevent hardship to a spouse until the necessary material upon which the court can act can be procured. It is not a procedure which is to be invoked as a matter of course. Therefore, it is not readily or easily granted.

Justice Ricchetti reviewed all the evidence put forward and dismissed the amounts and proposed budgets adduced by the wife. Rather, he favored a proposal presented by the husband’s counsel and ordered a lump sum payment of approximately $200,000 for a period of 6 months. The husband was also required to continue to pay for all other expenses relating to the children and the matrimonial home.

Justice Ricchetti was satisfied that the amount ordered would avoid any hardship for the wife and children as it represented more than two times the wife’s monthly expenses in her financial statement or approximately the amount of her proposed budget or more than the amount of the minimum child support.

The issue of support would be re-visited 6 months later when the wife’s motion was scheduled to be heard.