Category: Family Law

In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence.

This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia,[1] decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society:

Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.[2]

Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence.

Facts

The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005.

In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation.

The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner.

The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage.  

The Trial Decision

Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders.[3] She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”[4]

The Creation of the Tort of Family Violence

As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that:

1. is intentionally violent or threatening; or
2. constitutes a pattern of coercive and controlling behaviour; or
3. causes the plaintiff to fear for their own safety or the safety of another.[5]

Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient.

Damages

Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages.

Issues on Appeal

The husband appealed Justice Mandhane’s decision. There were three main issues on appeal:

• Did the trial judge err in creating a new tort of family violence?
• Should the court recognize the narrower tort of coercive control?
• Did the trial judge err in assessing damages?

The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature.

In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control.

(1) Did the Trial Judge Err in Creating the Tort of Family Violence?

Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence.

The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement.[6] Moreover, novel torts will not be recognized in any of the following circumstances:

• where there are adequate alternative remedies;
• where the tort does not reflect and address a wrong visited on one person by another; or
• where the change to the legal system from the new tort would be indeterminate or substantial.[7]

The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence:

…existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.[8]

Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence.

(2) Should the Courts Recognize a Tort of Coercive Control?

If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.”[9] The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.[10]

Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control.

(3) Did the Trial Judge Err in Assessing Damages?

While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages.

Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient.[11] Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct.

Conclusions

While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them.

If you have questions about your family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] 2022 ONSC 1303 [Ahluwalia, ONSC].

[2] 2023 ONCA 476 at para 1 [Ahluwalia, ONCA].

[3] Divorce Act, RSC 1985, c 3, s 15.2(5).

[4] Ahluwalia, ONSC, supra note 1 at para 46.

[5] Ibid at para 52.

[6] Merrifield v Canada (Attorney General), 2019 ONCA 205 at paras 20-21.

[7] Neysun Resources Ltd v Araya, 2020 SCC 5 at para 237.

[8] Ahluwalia, ONSC, supra note 1 at para 54.

[9] Ahluwalia, ONCA, supra note 2 at para 103.

[10] Ibid at para 104.

[11] Whiten v Pilot Insurance, 2002 SCC 18 at para 94.

According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples.

With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments.

However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more?

Reproductive Material as Property

Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of “sperm straws” following the divorce of a lesbian couple.[1] During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.[2] Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.[3] KLW v Genesis Fertility Centre also found that the reproductive material of the applicant’s deceased husband was property under provincial legislation governing personal property passed through intestacy.[4]

Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner’s death or loss of capacity.

Transition to a Consent-Based Regime

The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.[5]  The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties’ son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated.

The trial judge held that the dispute should be governed by the law of contracts.[6] The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple’s separation. As such, the respondent was free to use the embryo however she wanted.

The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic’s contractual terms.

Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of “consent”, including:

• A “donor” refers to:
  • individual(s) for whose reproductive use an in vitro embryo is created; or
  • a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to.
• Written consent is required from the donor before the embryo is used.
• Donors can consent for the embryos to be used for one or more of the following purposes:
  • the donor’s own reproductive use;
  • a third party’s reproductive use;
  • improving assisted reproduction procedures; and
  • providing instruction in assisted reproduction procedures, or a specific research project.
• If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent.
  • If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time.

In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant’s reproductive material was not used.

It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH.

Implications

Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other’s consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant’s request to harvest her late husband’s sperm.[7] Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor’s body posthumously without their written consent, which the donor did not provide.

These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations.

Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made.

What Couples Should Understand Before Creating Embryos

As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged.

Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the “donor” in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren).

This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies.

Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father’s consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child.

We would be pleased to answer any questions you may have about fertility law matters, please visit our website or contact Marc Kemerer from Devry Smith Frank LLP at 416-446-3329 or marc.kemerer@devrylaw.ca.

This blog was co-authored by Law Student, Leslie Haddock.

 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] 2012 BCSC 584.

[2] Ibid at paras 75 and 96.

[3] 2015 BCCA 2.

[4] 2016 BCSC 1621 at paras 97-100.

[5] 2019 ONCA 454.

[6] 2018 ONSC 4506.

[7] 2020 BCCA 328.

To many of us, pets are more than just animals; they provide companionship, unconditional love and affection, and become part of the family. In 2022, 60% of Canadian households owned at least one dog or cat. This number grew following the COVID-19 pandemic; one-third of pet owners have brought a pet into their home since the beginning of the pandemic. As the number of pet owners increases, so does the number of ‘pet custody’ disputes. These disputes have extended beyond the realm of dogs to include cats, reptiles, horses, and even pigs. People have even reported staying in a relationship solely to maintain access to a shared pet.

These disputes leave many asking: who gets custody of your pets when your pets outlast your relationship? As many of us consider our pets to be as important as our children, we might assume that the answer lies in our pet’s best interests. The rightful owner should be the one with the bigger yard, who has the most time to spend with your pet, and who your pet is most attached to. Unfortunately, this is generally not the case in Ontario – however, recent decisions and legislative amendments hint that this could be changing. 

The Traditional Approach to Pet Custody

The traditional approach to pet custody is that there is no pet “custody”. Animals have historically been considered chattel, or personal property, in the eyes of the law. The relevant legal test to determine ownership was who owned the animal and the adjudicator did not examine what was, or was not, in the animal’s best interests.[1] We’ve addressed this issue in two of our previous blogs on the topic of pet custody from 2017 and 2019.

Courts have explicitly discounted the possibility of joint custody orders for pets as a waste of judicial resources and a source of additional stress, heartache, and wasted time and money for parties.[2] While this approach is straightforward and relatively easy for the courts to apply, it inevitably leaves one party vindicated, one heartbroken, and the best interests of the animal wholly unconsidered.

But again, change may be coming.

A ‘Contemporary’ Approach?

Coates v Dickson, a recent Ontario Superior Court decision, adopted a ‘contemporary’ approach to dog ownership which examines the relationship between the dog and the parties claiming ownership. It states that the court must consider the following factors, including:

1. whether the animal was owned by one of the parties prior to the relationship;
2. an express or implied agreement in relation to ownership, either before or after the animal was acquired;
3. the nature of the relationship between the parties when the animal was acquired;
4. who purchased and/or raised the animal;
5. who exercised care and control over the animal;
6. who cared for the animal the majority of the time;
7. who paid for the animal’s basic needs;
8. whether the animal was a gift to one of the parties;
9. what happened to the animal after the relationship between the parties ended; and
10. any other indications of ownership or evidence of agreements relating to ownership.[3]

This ‘contemporary approach’ incorporates elements of the traditional property-based approach, including evidence of ownership and who initially paid for the animal. However, in holding that “[o]wnership of a dog is an investment that goes beyond the mere purchase price,”[4] the court included non-property based factors, including who raised the animal, exercised care and control over them, and who was their primary caregiver. In this case, the court held that the two dogs in question were jointly owned by the former spouses and gave one to each spouse.[5] While this is far from a shared parenting time agreement, unless we’re operating under the law from The Parent Trap, it is a step towards a legal conception of pets as more than chattel.

Legislative Changes in British Columbia

In March 2023, amendments were proposed to British Columbia’s Family Law Act in an attempt to clarify the law on pets following the breakdown of relationships. If accepted, these changes would require the courts to consider each person’s ability and willingness to care for the animal, the relationship any children of the relationship have with the animal, and any risk of family violence or cruelty posed to the animal. Proponents of these amendments point to changing values in society surrounding pet ownership towards considering pets as family members and not property. There are currently no similar provisions in Ontario’s Family Law Act; however, if these amendments come into force in British Columbia, similar changes to family legislation throughout Canada could follow.

In the Meantime, What Can I Do to Maintain Custody of My Pet?

Under the current legislative regime, what can you do to ensure that you maintain custody of your pet if your relationship ends? Here are several things that can help:

• Keep detailed records of:
  • who paid for your pet or their adoption fees;
  • any unofficial agreement as to the ownership of your pet in case of a break-up;
  • who pays for your pet on a daily basis, including food, veterinarian visits, grooming, and other basic needs;
  • who is the primary caregiver of your pet;
  • whether you brought your pet into the relationship or acquired them during the relationship with your partner; and
  • whether your pet was a gift from one partner to the other.
• Make sure that you are listed on official paperwork as an owner of your pet, such as veterinarian records, adoption applications, and pet insurance policies.
• If you have or plan to get a cohabitation agreement or marriage contract, you can include a provision about who gets to keep your pet if the relationship ends.
• Refer to our previous blog on the legal avenues you can take to pursue custody of your pet, including commencing court proceedings or participating in arbitration.

If uncertain, you can always consult with a family lawyer to discuss your options.

If you have more questions about your family law matter, please visit our website or contact Katelyn Bell from Devry Smith Frank LLP at 416-446-5837 or katelyn.bell@devrylaw.ca.

This blog was co-authored by Law Student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] Baker v Harmina, 2018 NLCA 15 at para 12.

[2] Ibid at paras 23-26.

[3] Coates v Dickson, 2021 ONSC 992 at para 8. This approach has been adopted in subsequent Ontario decisions. For an example, see Duboff v Simpson, 2021 ONSC 4970 at paras 18-19.

[4] Ibid at para 17.

[5] Ibid at paras 19-20.

Marriage evokes thoughts of fairy tale romance, soulmates, and lifelong commitment and devotion to your partner. So, it can be awkward when you have to ask the love of your life to sign an agreement anticipating the end of your relationship. A marriage contract is a legal document signed by both spouses which defines how your family property will be divided and what support will be provided to you, your spouse, and your children following divorce or the death of a spouse.

Although marriage contracts are criticized as being unromantic and uncomfortable, they are far from impractical. Even when the court system was paralyzed by COVID-19 in 2020, there were over 42,000 divorces granted in Canada. As with our previous discussion about the benefits of cohabitation agreements for common-law partners, there are many benefits to having a marriage contract. Marriage contracts provide for increased certainty, flexibility, and customization within the current legislative regime; for the protection of your assets; and helps to prevent lengthy, bitter, and expensive court battles. However, there are several limitations and restrictions when it comes to enforcing these contracts. This leaves many people wondering at the end of their relationship: is my marriage contract actually enforceable? Here are five things to consider:

1. When Do I Have to Sign a Marriage Contract?

Although the name implies that you must be married, you do not have to wait until marriage to sign a marriage contract. Marriage contracts are available to married couples and couples who intend to marry; however, for the latter, the contract does not come into effect until the date of marriage. Likewise, you are free to sign a marriage contract even years after marriage. If you are in a common law relationship and already have a cohabitation agreement, then that agreement will be deemed to be a marriage contract if you marry your common law partner.

2. What are the Requirements for a Marriage Contract?

There are strict procedural guidelines that must be followed for a marriage contract to be enforceable. The document must be in writing, signed by the couple, and witnessed. This means that oral marriage contracts are not valid in Ontario.

3. What Can Be Included in my Marriage Contract?

Marriage contracts can include terms related to the ownership in or division of property, support obligations, the education and moral training of the your children, and any other matter related to the settlement of the yours and your partner’s affairs. However, as a previous blog of ours discussed, several matters cannot be included in a marriage contract, including:

• decision-making responsibility and parenting time for children; and
• provisions which limit your rights regarding possession of the matrimonial home.

4. Can my Marriage Contract Be Set Aside by the Courts?

In Canada, courts tend to favour the validity of marriage contracts and strive to “respect private arrangements that spouses make for the division of their property on the breakdown of their relationship.”[1] However, even if a marriage contract is in proper form and contains no prima facie invalid terms as discussed in the previous section, courts may exercise their discretion to set it aside.

Courts can set aside any provisions which they consider to not be in the best interests of any of your children or which are unreasonable in regards to the Child Support Guidelines or otherwise in relation to the support of a child.

Section 56(4) of the Family Law Act also lays out specific circumstances in which courts can set aside a marriage contract or a provision within it:

1. if a party to the contract failed to make full and accurate financial disclosure in regard to significant assets, or debts and other liabilities;
2. if a party to the contract did not understand the nature or consequences of the contract; and
3. if there are any other grounds present to justify setting aside a contract under general contract law, including unconscionability, duress, undue influence, fraud, or misrepresentation.

However, this section is not a “get-out-jail-free” card for people trying to invalidate their marriage contract. This section does not apply if you signed the agreement while knowing your partner’s financial disclosure was inadequate. Courts will generally also refuse to set aside contracts if you simply failed to seek legal advice and if you failed to use due diligence in seeking disclosure.

The Ontario Court of Appeal set out a two-stage test to determine whether part or all of a marriage contract can be set aside in Le Van v Le Van. The applicant must meet the following conditions:

1. Have any of the circumstances set out in section 56(4) of the Family Law Act (as set out above) been engaged?
2. Is it appropriate for the court to exercise discretion to set aside some or all of the agreement?[2]

If this test is met, then the court can intervene to declare some, or all, of your marriage contract unenforceable. As these applications come down to the discretion of the courts, it can be difficult to predict how challenges will play out. To make your marriage contract as strong as possible, it is best to avoid engaging the above circumstances altogether. For your part, you and your partner should be honest when disclosing your financial situation and seek independent legal advice before signing.

5. What Happens if my Marriage Contract is Unenforceable?

If you and your partner divorce or if one of you dies and you do not have a valid and enforceable marriage contract, then the default rules under the Family Law Act apply.

If you are uncertain about whether your marriage contract is enforceable or want to ensure that your marriage contract is enforceable, it is always good practice to consult with a family lawyer.

If you have more questions about your family law matter, please visit our website or contact John P. Schuman from Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca.

This blog was co-authored by Law Student, Leslie Haddock.

 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] Hartshorne v Hartshorne, 2004 SCC 22 at para 9.

[2] Le Van v Le Van, 2008 ONCA 338 (CanLII) at para 51.

Recently, the Ontario Court of Appeal ordered a spouse to pay his spouse over a million dollars, but not in relation to property division nor child support, nor spousal support.  The husband had to pay those amounts in addition to over a million dollars that the Court ordered him to pay to his ex-wife to cover her legal fees.  Yes, courts can order one spouse to pay all the costs for the divorce and surrounding litigation.   Doing the right things after separation, and in Family Court can create big savings for a separated spouse, while denying a “big win” for his or her ex.

There can be a lot of anger and other emotions in separation and divorce.  Some separated spouses head to a lawyer’s office, or to Family Court, in the hope that they can force their ex to live in a box under a bridge.  Some even expect that if they spend exorbitantly on legal fees for an aggressive lawyer, they can force their spouses and children into homelessness.  However, if a judge believes that is a spouse’s goal, the efforts can have the opposite of the intended result.

The recent Ontario Court of Appeal decision in Lakhtakia v. Mehra is not the first time that the Court has ordered one spouse to pay the other spouse’s legal and accountant fees totalling several hundred thousand dollars, even when doing so would cause financial hardship. Ontario Judges, especially Family Court Judges, will make a spouse whom a judge believes has acted unreasonably to pay all of their ex’s expenses in relation to the divorce, child custody or support proceedings.  Rule 24(4) of the Family Law Rules authorizes such Orders.  The rationale for this rule is, in part, to discourage separated spouses from acting vindictively towards each other, or to reward a spouse from acting appropriately when his or her spouse is not.  It is also because these types of behaviours result in more court appearances, both conferences and motions, which not only increase the party’s legal fees and delay the matter, but clog up the court system. Judges feel that parties who do so should provide compensation for wasting everyone’s time.

Spouses who want to make things difficult for their exes often believe that their strategies are innovative and undetectable by the Court.  However, judges, all of whom are former lawyers, sit in court everyday, often hearing multiple matters every day, and possibly thousands of matters every year.  They have seen many, many attempts to create unnecessary difficulties, and the negative consequences for all involved.

In Lakhtakia v. Mehra and Knight v. Knight, the Court of Appeal set out many of the more common tactics that Family Court Litigants try use to gain advantage over their exes, but they frequently backfire:

• refusing or trying to hide necessary financial disclosure
• misleading the court, especially in relation to financial matters where objective evidence may disprove the representations.
• refusing to negotiate or making unreasonable offers to settle
• either bringing needless motions, or forcing the other party to bring motions to get compliance with existing obligations under the Family Law Rules
• withholding the children or otherwise using the children to get leverage in negotiations
• refusing to pay appropriate child support immediately, even on admitted income – judges see this as an attempt to improperly get leverage by causing financial distress
• otherwise running up the opposing party’s fees and expenses unnecessarily
• refusing to follow court orders
• trying to intimidate the other party through threats of embarrassment, financial difficulties or physical force

Judges who see a separated spouse or parent using these types of tactics will not hesitate to order them to pay all the legal fees and expenses that the other party incurred to rectify the situation.

In the March 2021 changes to the Family Law Legislation, the Federal and Ontario Governments created specific laws to stop separated parties, and especially parents, from engaging in activities that are only designed to harm a former spouse or co-parent.  Under section 7.2 of the Divorce Act and section 33.1(2) of the Children’s Law Reform Act,  parents have a specific legal duty to protect their children from any conflict related to the separation. Those new laws also require separated spouses and parents to try to resolve matters through negotiation or alternative dispute resolution and avoid Family Court wherever possible.  Judges really do expect people to treat each other civilly and try to resolve matters on a reasonable basis after they separate.  Serious consequences, including hefty orders for the payment of costs to the other party, are the result when someone choses to be vindictive, or even unreasonable.

Separated spouses and parents who want to get the best of their former partner in Family Court need to find an excellent Family Law Lawyer, and listen to that lawyer’s advice.  The road to success does not involve underhanded, coercive, or dishonest tactics.  Judges are likely to pick up on those and punish he guilty party.  The best strategy to see an ex beaten down, if not destroyed, in Family Court, is to be seen as the reasonable, cooperative, caring party while allowing the other party to seem mean or vindictive.  This does not mean rolling over and giving away everything – judges don’t think that is reasonable either.   But it does mean getting some advice from a lawyer about how to appear reasonable while working towards the best possible outcome.   That can be a difficult tightrope walk, especially in the winds of emotion that come after separation.  The best lawyers will tell you what the realistic outcomes are, and how best to achieve them, which may involve avoiding Family Court all together, rather than going on an aggressive attack that is doomed not only to failure but to result in serious repercussions, maybe even an easily avoidable costs award of thousands, or millions of dollars, to help a former partner.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

Often when spouses separate, one spouse leaves with much greater access to money than the other.  Then that spouse wants to hold on to his or her money after separation, so doesn’t want to be cooperative, knowing that his or her ex does not have the money to go very far in Family Court, and so will just have to take what is offered and give up what he or she is entitled to receive.

There are a lot of good reasons to avoid going to Family Court.  The cost of going through the process is a big one.  Family Court costs exponentially more than mediation, arbitration or collaborative practice.  But, where one spouse has all the money, he or she may not see any reason to choose a less expensive alternative when his or her ex cannot afford to go to court.  Going to Family Court to enforce your rights usually means hiring a lawyer (you have to live in poverty to get Legal Aid, and Legal Aid only covers limited legal issues) and if one spouse cannot afford that, then that spouse may not even be able to make it in front of a judge to get what is fair.

Although, often all it takes is getting in front of a judge who is concerned that only one spouse has money for the other spouse to want to negotiate, go to mediation or otherwise stay out of court.  When one spouse has found the money to start court proceedings, his or her ex may worry that there is the money to continue them. Starting court proceedings involves a lot of steps, which can make it expensive.  So, an uncooperative spouse may choose to be cooperative to avoid spending more on a court case that he or she may lose, and uncooperative spouses may find that they lose a lot.

Fortunately, there are some options for people with limited funds to get the legal help they need to go to court:

1. Ask for money from friends and family. This is the most common way people get money for their divorce or to go to Family Court.  Often, this money will be a gift, or if it is a loan, then the repayment terms are very favourable.
2. Hire a lawyer on a limited scope retainer. There is a lot more information at the link, but essentially this means hiring a lawyer to give advice only or do one specific task, rather than dealing with every part of the file.  The spouse with limited funds then can chose what he or she is going to have the lawyer do and keep control over how much it will cost.
3. Ask a judge for an advance on monies owed. In many cases, particularly when it comes to property division in a divorce,  it will be evident right from the beginning that one spouse will owe the other some money in the end.  Where the spouse who needs money is the spouse who will be receiving the money, then it is possible to ask for the spouse with the money to pay at least some of it immediately.  If the spouse with the money won’t agree to do this, Judges can order the payment on a motion where it is clear that one spouse will owe money.  However, this is a motion for “partial summary judgment”, which makes it a little technical, so it is best to speak to a lawyer.
4. Ask a judge for “interim costs and disbursements.” Rule 24(18) of the Family Law Rules says that a judge can order that a party to a Family Court case pay an amount to another party to cover some or all of the expenses for carrying on the case.   Judges may do this where it is necessary to “level the playing field” or where one party’s behaviour is so unreasonable it is clear that party will end up paying costs in the end anyway.
5. Get a “Divorce Loan” or a Litigation Loan. These can be expensive loans, but they may be worth it to a spouse who needs to go to court to get anything from their ex.

Also, it is often possible to get support orders, especially child support orders, early on in the case.  These are for temporary support and are meant to last until there is a trial or settlement.  They may not get the support amount exactly right, but they can provide some necessary cash flow to help with Family Court.   With the court making automatic orders for disclosure right at the start of the case, the parties are required to provide at least basic financial disclosure within 30 days of the start of the court proceeding.  That allows for at least an estimate of what support will be payable.  Only unreasonable Family Court litigants will not settle some or all of the support issues.   Judges may punish a party for being unreasonable by having that party pay the legal fees for the other party.

All of the above options that require a court order can be a little tricky and technical.  It is best to at least book a consult with a respected family law lawyer to understand what option is best for you and how to pursue it.

Still, there is no denying that court is very expensive.  It is the only dispute resolution process that one separated spouse can force the other into.  For that reason, and others, some judges struggled between allowing each party the full opportunity to present his or her case the way he or she sees fit, and dealing with matters quickly and potentially leaving the impression that the court was not listening or did not care.  Parties with more money can ask for more opportunities to pursue more steps, bring more motions, present more arguments, and generally litigate more aggressively than parties who are trying to do their case on a tight budget.  In addition, where judges believe a settlement may be possible, there may be repeated settlement conferences, which one party can use to financially exhaust the other – looking ready to settle but just really trying to multiply the number of court appearances.

Many Family Court cases are wars of economic attrition.    The party that can stay in the fight the longest can take advantage of the other party’s need to “get out” to leverage a favourable settlement.  Or, the party with money can force on a trial, which will be extremely expensive, knowing the other party cannot afford to have a lawyer assist and so the party with less money either has to settle for a reduced amount, or face the prospect of losing at trial because he or she does not know how to conduct a trial, or the laws and rules that apply.

Of course, none of this matters when spouses want to work toward a fair arrangement after separation.  But parties who want that should not be in Family Court in the first place.  When things are nasty enough to go to court, each spouse really should speak to a lawyer about the financial situation on both sides and what that means for what strategy will work best for that spouse.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

Just because you were married elsewhere or have a foreign divorce in Canada, it does not necessarily mean that Canadian courts will not hear your matter.

Take, for example, a recent case in 2017, where the Court of Appeal[1] handled a case involving international divorce in Canada. A Canadian citizen (husband) was married to a person residing in China (wife). The wife had never come to Canada; however, the couple had one child born to the marriage while the husband lived in China briefly.

The wife sought a divorce in Ontario, Canada, including spousal support, child support, and custody of the child pursuant to the Divorce Act. She also requested equalization of net family property under the Family Law Act.

In response, the husband filed for divorce in China, seeking a divorce, custody and equalization or property.

In response, the wife brought a motion in an Ontario court requesting temporary child support which was granted.

The husband then requested that his application should be heard in China. The Ontario court agreed and allowed the application to move forward in China. The underlying reasons were that the application involved custody, access and support; therefore, the hearing should be pursued in the jurisdiction of the matrimonial proceeding.

Custody and a divorce were granted by the court in China to the wife. However, the issue of support and equalization were left to be brought forward in the Ontario courts as the husband did not disclose his proper financial information and all his financial holdings were in Ontario/Canada.

Legal Recognition of Foreign Divorce in Canada

The Court of Appeal of Ontario was required to determine two questions:

• Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?
• Does an Ontario court have jurisdiction under the Family Law Act to determine child support after a foreign court has issued a divorce?

The Court of Appeal held that Ontario Superior Court has jurisdiction to determine the issues of child support and equalization of net family property pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). However, there is no jurisdiction under that legislation, or otherwise, for the Superior Court to order spousal support.

Will a Foreign Divorce Be Recognized in Canada?

The Canadian courts have stated that divorces obtained in other countries will be held valid if the laws of the parties’ domicile (at the time of their divorce) would have recognized a foreign divorce.[2]

In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce.

In looking for a divorce, that is also a requirement. At least one of the parties has to be considered a “resident”. For more information on what that may look like, contact our Family Law Department at Devry Smith Frank LLP.

Remarriage After Foreign Divorce in Canada

To obtain authorization to remarry in Canada, a legal opinion from a lawyer is required. The lawyer must provide reasons why the foreign divorce should be recognized in Ontario.

If you need help with a foreign divorce being recognized in Ontario, it is worthwhile to discuss your case with a family lawyer in our office.

For more questions related to family law, visit our website or contact Katelyn Bell at Devry Smith Frank LLP to discuss your specific family law situation and options. She can be reached at 416-446-5837 or Katelyn.bell@devrylaw.ca.

This blog was co-authored by Law Student, Kathleen Judd.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations `and needs.”

[1] Cheng v. Liu, 2017 ONCA 104

[2] Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53

When a couple divorces, it is common for extended family to provide support for their loved ones. Some families get involved and assist with finances while others provide emotional support for the separated spouse. While most families are invested in the outcome of a couple’s divorce, some families take extreme measures to ensure that the separated spouse reduces his or her financial obligations for support or property. In the past, when a spouse hides income or assets with the assistance of extended family, the court’s sanctions have largely been limited to an order of costs against the offending spouse or a finding of contempt. While claims against extended family members have been made in the past, these claims were uncommon and were largely unsuccessful.

In recent years, the Ontario Court of Appeal changed the landscape on conspiracy in permitting a conspiracy claim against a spouse’s family for assisting him to divert income payable for child support. In Leitch v Novac 2020 ONCA 257, the wife sued her husband, her husband’s parents, a family corporation, and several trusts and trustees, alleging that her husband’s family and  entities conspired to defeat her family law claim and conceal her husband’s assets and income. After the couple separated, the husband’s father incorporated a company to provide management services to a casino operation. The father and husband agreed orally that the husband would receive 40 percent of the management fees over the life of the contract. Before the contract ended, the casino owner bought out the contract for nearly $6 million and the lump sum was paid to the father’s corporation. Instead of providing the husband’s 40 percent share for spousal and child support, the husband’s father kept all the income from the buyout.

The father, the corporations, and the trusts brought a motion for partial summary judgment to have the claims of conspiracy dismissed before trial. The motion judge awarded partial summary judgment, concluding that there was no unlawful conspiracy and that the wife did not establish damages but that the wife could still pursue a claim to impute additional income for the purpose of determining support. The wife appealed the summary judgment order, the costs award and the order for security for costs and preservation of assets to the Ontario Court of Appeal.

The Court of Appeal was asked to consider whether the motion judge erred in law in awarding partial summary judgment and in her analysis of the tort of conspiracy.

Ontario Court of Appeal Allows Appeal Against Extended Family For Conspiracy

In order to claim conspiracy against the extended family and the related entities, the wife had to prove whether or not the means used by the father and the husband were lawful or unlawful, whether the predominant purpose of their conduct was to cause her injury, or if the conduct was unlawful, whether the father and the husband should have known that injury to the wife was likely to result.

The Ontario Court of Appeal allowed the wife’s appeal and emphasized the importance of the tort of conspiracy in family law where a third party assists a payor in hiding income or disclosure. Justice William Hourigan asserted that if the tort of conspiracy was not available, co-conspirators would be able to facilitate non-disclosure and are willing to “break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.”[1] If the Court of Appeal accepted the motion judge’s analysis, co-conspirators who engage in conspiracy could do so with impunity. The Court of Appeal noted that the tort of conspiracy would allow judgment against a co-conspirator which is often the only means by which a recipient will be able to satisfy a judgment.

Further, the Court of Appeal addressed the denial of justice that may occur in family law cases where third parties assist litigants, referring to these third parties as “invisible litigants”. Beyond providing emotional support, invisible litigants become active participants in litigation to achieve their desired result which includes facilitating nondisclosure and deliberating hiding assets and income. Using the tort of conspiracy would be necessary in certain situations to ensure fairness and justice in family law cases.

Conclusion

The Court of Appeal’s decision in Leitch expands the tort of conspiracy in family law within Ontario. This case should be regarded as a reminder that non-disclosure and deliberate concealment of assets and income would not be tolerated. Family members who act as invisible litigants are not immune from liability and should be cautious in interfering with family law disputes.

If you have any questions about your family law matter, please contact the Family lawyers at Devry Smith Frank LLP at (416)-449-1400 or info@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Abby Leung

[1] 2020 ONCA 257, para 45.

The court (again) explores – What constitutes a material change in the recent Court of Appeal decision, Licata[1]. In order to bring a motion to change before the court, to change a final order, there must be a “change in circumstances”, since the last order (dealing with support) was made.[2] The change in circumstances can be from “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”.[3]

It is important to know that if you file a motion to change support, you MUST demonstrate that a material change of circumstances was not contemplated by the parties when the existing final order was made. Furthermore, you must show that if such a change had been known, at the time the final order was made, it “would likely have resulted in different terms”.[4]

In Licata,[5] the father wanted to stop paying child support for his children, who had reached the age of majority and were enrolled in a post-secondary education program.

The Order in existence had addressed the issue of the child being over the age of majority and determined that the child was still a “child of the marriage” as the child could not withdraw from parental control since he was attending university.

Who is a “Child of the Marriage”?

Some think that a child of the marriage is a child that is under 18. This is not true. A child of the marriage can be a child who reaches the age of majority.

According to the Divorce Act definition, a child remains a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”[6]. One way of meeting this onus of remaining under parental control is when a child is enrolled in a higher education.[7]

What is a Material Change?

The Supreme Court of Canada has set out the test for determining “material change”:

• a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs;
• the change must materially affect the child; and
• the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.[8]

In Licata[9], the Court of Appeal restated that the starting point for a motion to change the support for the child would be a material change in circumstances that were not anticipated by the parties when the Order in existence was made. The onus of demonstrating a “material change” is on the party bringing the motion to change.

In this case, the motion judge started from a position of there being a material change based on – the child reaching the age of majority. The Court of Appeal found that this was an error in principle because the final Order had already determined that the child was over the age of majority when the Order was made. As such, the child reaching the age of majority was not a material change that had occurred after the final Order (and therefore does not create a material change justifying a variation).

What is a material change that would qualify for a variation in child support?

The courts have determined that they will only consider a material change that is “significant and long-lasting”. A court will exercise caution before changing an existing support order.

In Licata[10], this was not a case of initially proving a child remained a “child of the marriage”. This case was a motion to change that would require a change in circumstances in order to justify a new order. As such, the only relevant question for the Court of Appeal to consider was proving a material change in circumstances since the last order and more specifically, whether it was beyond the parties’ contemplation that a child of the marriage would take an extended period of time to complete university studies.

Ultimately, the Court of Appeal found that the trial judge had erred in terminating child support stating that “child support should not be terminated until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the previous Order and that the child is able to withdraw from parental control.”

This demonstrates that the first hurdle of a moving party applying for a variation order is whether there is a material change in circumstances.

The Court of Appeal further stated that: “A motion to change must be based on the proper evidentiary foundation and an analysis of whether there is a material change in circumstances…”

Filing a motion to change without a material change in circumstances will result in not only a case being dismissed but could result in a significant cost award against the moving party.

If you are contemplating returning to court to vary/change an existing Order, it is worthwhile to discuss your case with a family lawyer prior to filing a motion to change.

If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP (‘DSF’) to discuss any questions regarding your specific family law situation and your options at 249-888-6641 or kenna.bromley@devrylaw.ca.

This blog was co-authored by Summer Law Student, Kathleen Judd.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1] Licata v. Shure, 2022 ONCA 270

[2] Divorce Act, s. 17(4)

[3] Federal Child Support Guidelines, SOR/97-175, s. 14(b)

[4] L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688

[5] Supra note 1

[6] Divorce Act, s.15.1(1)

[7] W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18

[8] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13.

[9] Supra, note 1

[10] Ibid