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Family (2) | Fresh Evidence on Appeal

. D.M. v. The Children’s Aid Society of Ottawa

In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court noted changes to the terms 'custody' and 'access' as they are used in the Divorce Act:
[16] Pursuant to amendments to the Divorce Act, which came into effect on March 1, 2021, “custody” and “access” terminology has been replaced by terms such as “decision-making responsibility” and “parenting time. Section 35.4 of the Divorce Act deems a person who had custody of a child by virtue of a custody order to have parenting time and decision-making responsibility and a spouse or former spouse who had access by virtue of a custody order to be a person to whom parenting time has been allocated. The events in the immediate case occurred before the amendments to the Divorce Act came into effect. For the purpose of these Reasons for Decision, I shall, with a few exceptions, use the historical terminology.
. Alajajian v. Alajajian

In Alajajian v. Alajajian (Ont CA, 2021) the Court of Appeal states the clear attitude of the appellate courts to family law fact disputes:
[4] The trial judge’s factual findings and credibility assessments are entitled to substantial deference. This is especially so in family law cases. This court can interfere "only where the fact-related aspects of the judge's decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong": Johanson v. Hinde, 2016 ONCA 430, at para. 1. This standard of review is firmly established: see Rados v Rados, 2019 ONCA 627, at para. 23, Jonas v. Pacitto, 2020 ONCA 727, at para. 42 and Levin v. Levin, 2020 ONCA 604, at para. 12.
. Krebs v. Cote

In Krebs v. Cote (Ont CA, 2021) the Court of Appeal considered when a separation agreement is still valid, despite the reconciliation of the parties:
[14] It is well-established that, at common law, a separation agreement becomes void upon reconciliation of the parties, subject to any clause in the separation agreement overriding the common law rule or which would imply that the intent of the parties was that terms of the separation agreement would be carried out notwithstanding any subsequent reconciliation: see Ernikos v. Ernikos, 2017 ONCA 347, at para. 11; Sydor v. Sydor (2003), 2003 CanLII 17626 (ON CA), 178 O.A.C. 155 (C.A.), para. 22; Bailey v. Bailey (1982), 1982 CanLII 1760 (ON CA), 37 O.R. (2d) 117 (C.A); Bebenek v. Bebenek (1979), 1979 CanLII 1861 (ON CA), 24 O.R. (2d) 385 (C.A.).

[15] I would not extend the common law rule to cohabitation agreements.

[16] The common law rule is ancient. In Nicol v. Nicol (1885), 30 Ch. D. 143, at p. 145, North J. of the Chancery Division explained the rationale for the common law rule that reconciliation brings a separation agreement to an end:
I think it clearly established by numerous authorities (no case in any way conflicting with them), that where a separation arrangement is made pure and simple, that arrangement is for the term of the separation, and for no longer. It comes to an end when the separation ends, not because the fact of reconciliation or recohabitation makes it void, but it dies a natural death. The agreement was to provide for a state of things which has come to an end, the state of things being that the parties were living separate although married. When they live together again as man and wife the state of things is totally different, and the arrangement comes to an end.
[17] The rule was not absolute and depended on an interpretation of the parties’ intentions, as evinced by the whole of the agreement. For example, where a separation agreement had separation for one of its objects but also other matters within its purview, such as settlement of property issues, those aspects of the agreement may continue despite a return to cohabitation. As described by Montague Lush and Walter Hussey Griffith in Law of Husband and Wife within the Jurisdiction of the King’s Bench & Chancery Divisions, 3rd ed. (London: Stevens and Sons, Limited, 1910), at pp. 461-463:
[I]t is a well-established principle of law that a separation deed properly so called—i.e., a separation deed whose only object is to provide for the parties living apart from one another—is ipso facto put an end to for all future purposes if the parties subsequently become reconciled and return to cohabitation.

This principle is too well known and too plain to require observation. For the very nature and object of the instrument is to provide for a state of circumstances which comes to an end on a cesser of the separation.

But a separation deed the primary object of which is to provide for the parties living apart may have also a secondary object—viz., that of effecting a permanent settlement of property to continue not only during the separation but in any event.

The question whether a deed is a separation deed which will be avoided upon a return to cohabitation or a post-nuptial settlement which will continue valid notwithstanding a return to cohabitation turns upon the intention of the parties to be gathered from the terms of the deed. [Emphasis added. Internal citations omitted.]
[18] The common law rule dates from a time when views about marriage, cohabitation, separation, and divorce were very different. At one time, separation agreements were considered “contrary to public policy.” To cohabit without the benefit of marriage was “to live in sin.” The courts of equity would not enforce an executory separation agreement, i.e. one entered before the separation, though in contemplation of a future separation. Cohabitation for even a short time after execution of the agreement rendered the deed of separation void: see Law of Husband and Wife, at p. 457.

[19] Today, marriage contracts, cohabitation agreements, and separation agreements are all part of the legislative landscape: Family Law Act, R.S.O. 1990, c. F.3, ss. 52-54. Parties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.

[20] Notwithstanding the sea change in family law over the past century, the common law reconciliation rule remains a part of Canadian common law and continues to make some sense. Where the raison d’être of the agreement is separation and parties reconcile, the foundation for the separation agreement dissolves. I see no basis to extend this logic so as to void a cohabitation agreement following reconciliation of the parties. Under such circumstances, the reconciled parties have returned to the very state contemplated by the cohabitation agreement.

[21] In Langdon v. Langdon, 2015 MBQB 153, 321 Man. R. (2d) 52, Little J. remarked, in obiter, that he was “far from certain” that reconciliation should affect a cohabitation agreement in the same manner as a separation agreement. He explained, at paras. 138-140:
I do not think it a proper inference or presumption to say that a resumption of cohabitation nullifies [a cohabitation agreement] concerning a property and support regime. Renewed cohabitation in that context is more reflective of an intention to return to a relationship where one's rights were formerly delineated by the agreement. It does not seem to me to be at all reflective of an intention to enhance one party's rights or to impose greater obligations on the other, something that will inevitably result when the cohabitation agreement no longer exists.

It seems to me that if there is to be an inference or a presumption at all it ought to be (barring other evidence of intention) that the resumption of cohabitation returns you to the position you held in the relationship to which you have now chosen to return. Presuming the termination of the cohabitation agreement on resumption of cohabitation could lead to strategic separations and reconciliations designed to nullify cohabitation agreements. It also results in a policy requiring redocumentation on resumption of cohabitation.

I do not regard the first as good policy; the second is impracticable and is not in keeping with the way people typically lead their lives.
[22] I agree with the views expressed in these passages, although I would not go so far as to say there is a presumption in favour of the cohabitation agreement’s continued validity following reconciliation. The applicability of a cohabitation agreement to the circumstances of the parties will depend on the interpretation of that agreement and the light it sheds on the intentions of the parties.


[34] The motion judge relied on Sandrelli v. Sandrelli, 2015 ONSC 7913, 72 R.F.L. (7th) 135, observing that case held, at para. 32, that “[d]ischarge of a contract by performance describes the situation where the contract comes to an end when both parties perform their contractual obligations in the manner prescribed by the contract”. The motion judge noted that case suggested “if the parties intend the agreement to continue after they reconcile the agreement needs to state that,” citing Sandrelli, at para. 41.

[35] Sandrelli was a case about a cohabitation agreement that explicitly contained a clause providing for disposition of property upon the happening of certain “triggering events” including “where the parties ceased to cohabit for a period of greater than 90 days.” Again, the motion judge in that case approached the matter from the stance that the common law rule applicable to separation agreements applied. She noted that the cohabitation agreement did not provide for reinstatement upon reconciliation following a triggering event and that there was no presumption in law that a reconciliation revives a cohabitation agreement.

[36] The respondent relies on Sandrelli to argue that the payment by the appellant to the respondent of $5,000 was a similar triggering event which brought the agreement to an end. Counsel for the respondent analogizes this to an employment contract calling for payment to an employee on termination. Once the payment is made, the terms are fulfilled and there is no scope for further operation of the contract. If the employee returns to work, in this analogy, the parties cannot rely on the old contract; they must enter a new agreement.

[37] I would respond that the question of the scope of the contract and its application depends on the language of the contract and the interpretation given to that language. Adopting the respondent’s analogy, if the same employment contract called for releases, there is no doubt that those releases would be enforced despite payment as envisaged by the contract. If there was a non-competition promise contained in the agreement, that too would likely be enforceable. In some sense, the approach advocated by the respondent is tautological. The agreement comes to an end when there is nothing left to bind the parties, i.e., when it comes to an end. In any event, the analogy is not perfectly apt, as employment is a contractual relationship, while cohabitation is not necessarily so.

[38] For the same reasons as expressed earlier, I would conclude that the broad language of the cohabitation agreement evinces an objective intention to have the agreement apply in general to cohabitation, including that which follows a separation and reconciliation. One could reasonably conclude that the $5,000 payment was intended to assist the respondent with a move to her own accommodation.

[39] As noted in Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 67, courts should respect private arrangements that spouses make for the division of their property on the breakdown on their relationship particularly where the agreement was negotiated with independent legal advice.

[40] As I stated earlier, there is no presumption that reconciliation brings an end to cohabitation agreements. Each particular cohabitation agreement must be interpreted in accordance with contractual principles to ascertain the objective intentions of the parties. Unquestionably, it would have been better if the cohabitation agreement had contained specific provisos dealing with the possibility of separation and reconciliation, making unnecessary this interpretive process.
. Pond v. Taylor

In Pond v. Taylor (Div Ct, 2020) the Divisional Court considered a Small Claims appeal (dismissed) of a successful action by a common law spouse for tort and unpaid loans. I find the case is interesting for it's toleration of common law claims and remedies outside of the family law statute system, of which there was no mention:
[1] The Appellant, Rio Lancey Pond, appeals the June 30, 2017 decision of Small Claims Court Deputy Judge Twohig granting judgment to the Respondent, Melinda Taylor, in the amount of $25,000 with costs of $3,750 and disbursements of $175. The Appellant submits that Deputy Judge Twohig erred by failing to take into consideration evidence that he repaid part of the money he owed to the Respondent.


[2] The Respondent sued the Appellant to recover monies she claimed the Appellant owed her while they lived together from March 2011 to July 7, 2012. She claimed the following: $8,000 for general, special, and punitive damages based on the tort of assault and battery; $22,082.92 for money she loaned the Appellant’s business; a further $10,536.73 she loaned him for his personal expenses; and, $3,005 for belongings left at his residence. She waived the excess over $25,000 to bring her claim within the jurisdiction of the court: Reasons for Judgment, dated June 30, 2017. The Appellant brought a claim against the Respondent to recover $25,000 which he claimed she owed him for living expenses, for money she took from him and for money he gave her.
. J.S.-R. v. Children’s Aid Society of Ottawa

In J.S.-R. v. Children’s Aid Society of Ottawa (Div Ct, 2020) the Divisional Court stated the deferential approach that appeal courts have to family matters:
[14] In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 and Van de Perre v. Edwards, 2001 SCC 60, the Supreme Court held that because of the fact-based and discretionary nature of family matters, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. An appeal court must only intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, and it is not entitled to overturn an order simply because it would have made a different decision or balanced the factors differently.
. Ballanger v. Ballanger

In Ballanger v. Ballanger (Ont CA, 2020) the Court of Appeal confirms that support orders are subject to high deference on appeal:
[22] The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

[23] An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.

[24] In making a spousal support order, the Court may impute such income to a spouse as it considers appropriate in the circumstances, including where it appears that income has been diverted that would affect the level of child support, where the spouse has failed to provide income information when under a legal obligation to do so, and/or where the spouse unreasonably deducts expenses from income: Spousal Support Advisory Guidelines, Section 19(1) (d), (f), (g).

[25] In so doing, the amount selected must be grounded in the evidence. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), Tab 5, paras 44 and 45.[26] The Supreme Court confirmed that the court retains jurisdiction to retroactively vary a child support order after the child no longer qualifies as a “child of the marriage”: Michel v. Graydon, 2020 SCC 24.
. Vanleer v. Young

In Vanleer v. Young (Ont CA, 2020) the Court of Appeal pleads with the Ontario legislature to address problems the courts are having with family law appeals:
[54] For these reasons, the appeal is dismissed. I would make no order as to costs of the appeal or the attendance before the Divisional Court. I would, however, add my voice to so many others of this court in imploring the legislature to clarify family law appeal routes: see Mattina v. Mattina, 2018 ONCA 867, Marchildon v. Beitz, 2012 ONCA 668, 23 R.F.L. (7th) 316; Priest v. Reilly, 2018 ONCA 389, Christodoulou v. Christodoulou, 2010 ONCA 93, 75 R.F.L. (6th) 93.
. Children's Aid Society of Toronto v. J.G.

In Children's Aid Society of Toronto v. J.G. (Ont CA, 2020) the Court of Appeal extensively reviewed changes to children's aid society law brought about by the passage of the Child, Youth and Family Services Act (CYFSA), replacing the Child and Family Services Act (CFSA) [paras 15-66].

. Office of the Children’s Lawyer v. Balev

In Office of the Children’s Lawyer v. Balev (SCC, 2018) the Supreme Court of Canada canvasses the nature and function of the Hague Convention [the 'Convention on the Civil Aspects of International Child Abduction']:
A. The Hague Convention

[22] The Hague Convention was concluded on October 25, 1980. With more than 90 contracting parties, it ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law. Canada has been a party from the beginning. The Hague Convention is implemented by legislation in every province and territory.

[23] The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

[24] The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence: see Article 1; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.

[25] Prompt return serves three related purposes. First, it protects against the harmful effects of wrongful removal or retention: see R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 96; E. Gallagher, “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463, at p. 465; Thomson, at p. 559; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249 (E.W.C.A.), at p. 260.

[26] Second, it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody: see E. Pérez-Vera, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction (1981),[2] at p. 429; see also W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, at para. 36; Gallagher, at p. 465; A. M. Greene, “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105, at pp. 111-12.

[27] Finally, prompt return is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: see Schuz, at p. 96; Gallagher, at p. 465.

[28] The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is not defined in the treaty.

[29] If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:
(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

(3) The child of sufficient age and maturity objects to being returned (Article 13(2));

(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

(5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
[30] Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And only the third exception remains relevant — the children’s alleged objection to being returned to Germany.


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