Cynthia Lauer

The applicant father brought an urgent motion seeking custody of the parties' two children and an order preventing their removal from Ontario.

The parties separated after the respondent mother and children moved to a women's shelter due to domestic violence concerns.

The court declined to make a custody order or alter the current residency arrangements on an emergency basis, noting the mother had surrendered the children's passports to her counsel.

The court ordered that the children primarily reside with the mother on a without prejudice basis, varied a previous non-removal order to include the Greater Toronto Area, and granted the father daily telephone or Skype access with conditions.

The applicant sought to set aside a separation agreement that included a spousal support waiver, claiming duress, lack of disclosure, and lack of independent legal advice under s. 56(4) of the Family Law Act, as well as unconscionability under s. 33(4).

The respondent moved for summary judgment to dismiss these claims.

The court granted partial summary judgment, dismissing the s. 56(4) claims as there was no genuine issue for trial regarding the negotiation of the agreement.

However, the court found genuine issues for trial regarding whether the agreement was voided by a subsequent reconciliation and whether the spousal support waiver resulted in unconscionable circumstances, given the applicant was now living in a shelter and receiving public assistance.

The court ordered temporary spousal support of $1,800 per month pending trial.