Hyatt v. Ralph, 2015 ONSC 580

COURT FILE NO.: F557/12

DATE: February 5, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: TANYA LYNN HYATT, applicant

AND:

GREGORY DAVID RALPH and JEFF JOHN ORVILLE MCCAFFERTY, respondents

BEFORE: VOGELSANG J.

COUNSEL: Tanya Lynn Hyatt in person

Malcolm B. Scott for Gregory David Ralph

Jeff John Orville McCafferty not appearing

HEARD: January 14, 15 and 19, 2015

ENDORSEMENT

[1] Ms. Hyatt brings a motion under s. 37 of the Family Law Act, R.S.O. 1990, c. F.3 to increase the quantum of child support to be paid pursuant to a separation agreement dated November 29, 2011 made between her and Mr. Ralph. The agreement provided for support to be paid starting January 1, 2012 in the amount of $120. It was for Ms. Hyatt’s son Zachary, who was then nine years of age.

[2] Jeff McCafferty, Zack’s father, was added as a party respondent by virtue of a 2008 order requiring him to pay $166 monthly for support. Interestingly, Mr. Ralph testified that, throughout his relatively brief time with Ms. Hyatt, there was little said about McCafferty. He had never been shown the court order and the infrequent times there was mention of Zack’s father, it was to show he was untrustworthy and inconsistent and paid very little support. Mr. Ralph was quite surprised when he learned in Ms. Hyatt’s cross-examination at this trial that the efforts of the Family Responsibility Office in threatening a licence suspension resulted in Ms. Hyatt receiving consistent payments of the child support from McCafferty for the last two years. I should add that Mr. McCafferty delivered no Answer and took no part in this proceeding.

[3] In her motion brought only four months after signing the agreement, Ms. Hyatt seeks to increase the child support payable to a table amount of $331, based on Mr. Ralph’s income of $54,900 – and recognizing the $166 contribution of Mr. McCafferty. No claim is advanced for special or extraordinary expenses under s. 7 of the provincial Child Support Guidelines, O. Reg. 391/97 [as amended] although reference is made in the Change Information Form to other childcare and future orthodontic expense.

DID MR. RALPH EVER SATISFY THE “PARENT-CHILD” SUPPORT TEST?

[4] The relevant portions of the Family Law Act follow:

Obligation of parent to support child

31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

Definitions

1(1) In this Act,

“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

(emphasis added)

[5] Ms. Hyatt and Mr. Ralph met through mutual friends when the latter lived in Ottawa, after which he would occasionally visit her in London. Mr. Ralph moved to London in early October, 2007. For two months, Mr. Ralph had his son, Eric, with him every weekend at his townhouse in London as Eric’s mother, who had moved to Brampton from Ottawa, was ill and in hospital. By early 2008, problems developed, both in Mr. Ralph’s neighbourhood and having to do with his residence itself. As a result, he began spending more time at Ms. Hyatt’s rented townhouse.

[6] By mid-2008, Ms. Hyatt and Mr. Ralph tired of paying the expenses for two homes and decided they would move to a residence on Fleet Street, which they did in September. Mr. Ralph established a room for Eric and the boy’s clothes for his alternate weekend visits. By April, 2010 Ms. Hyatt and Mr. Ralph managed to buy a home at 43 Bedford Road in London and moved in.

[7] Both of the parties testified about the extraordinary efforts they both made to keep their finances quite separate. There was never any joint bank account. To Ms. Hyatt, it was a matter of separating herself from Mr. Ralph’s accumulation of past debt and financial obligations. He testified that he was “very paycheque to paycheque” and had agreed with Ms. Hyatt that he would pay half of all the mortgage, utility, taxes and other house costs and contribute $50 weekly towards groceries. That was his fixed contribution. While Mr. Ralph admitted that he, Eric, Ms. Hyatt and Zack had gone on infrequent vacations, he insisted that she would pay all the expenses for herself and Zack and he would do the same for himself and Eric. That, he testified, was “our dynamic … me and my kid; you and yours.” He was not cross-examined on the point.

[8] Ms. Hyatt gave evidence that Mr. Ralph adopted a parental role with Zack with respect to discipline but gave no real examples. Mr. Ralph strongly denied that assertion. He testified that he might say “stop fighting” to the two boys if he was left alone with them but otherwise he and Ms. Hyatt had agreed that each of them would discipline his or her own child. I definitely preferred his evidence, particularly when he described a night when the two boys “trashed” Eric’s room and both Ms. Hyatt and Mr. Ralph took care of correcting only their own child.

[9] Similarly, Ms. Hyatt gave evidence about what she said was a close family relationship among her extended family, Mr. Ralph and his parents, aunt and uncle. That was not confirmed in the rest of the evidence. It turned out that Zack has an extremely close relationship with Ms. Hyatt’s father, actively fostered and encouraged by her after she left Mr. McCafferty. Far from her suggestion that he frequently looked after Zack when Ms. Hyatt was out at activities, Mr. Ralph would be sent to deliver the boy to his grandfather, who had stepped in as a “role model.” He admitted that he would take two minutes to drive Zack to Cubs if Ms. Hyatt was in the shower or otherwise unavailable. Otherwise, he was disengaged.

[10] Mr. Ralph testified that he introduced Zack in public as “my girlfriend’s son.” While Ms. Hyatt had introduced a short video of Zack’s seventh birthday celebration in evidence and, at one point, Zack had received a toy as a gift from Mr. Ralph and ran to him and said “Thanks, daddy,” Mr. Ralph seemed uncomfortable in the film and testified that the boy habitually called him “Greg.” He gave evidence, and was not cross-examined, that Zack gave his Father’s Day card to his grandfather. It was interesting, during the short film, that Zack seemed not to know Mr. Ralph’s parents’ names or who had sent him a card.

[11] Evidence which Ms. Hyatt gave with the intent of showing a substantial involvement by Mr. Ralph with Zack was disputed by him or quite inconsistent with other evidence and even her own words in the many e-mails which were put before me. In those communications, Ms. Hyatt complains frequently about Mr. Ralph not having been a member of the family and not participating with Zack as he did with Eric. Mr. Ralph testified that Ms. Hyatt often displayed considerable jealousy whenever he would engage with Eric or provide his son with something special, and described how bitterly she would reprove him for treating Zack differently. Her very attitude and demeanour in the witness box corroborated his evidence. I find that Mr. Ralph was constantly assailed for his non-involvement with Zack and blamed for “favouritism.” In his own words he described his relationship with Zack as “oil and water.”

[12] I find that Mr. Ralph was never asked to and took no part in Zack’s school meetings or functions. He was not included in any part of any remediation of the boy’s problematic behavioural excesses of hyperactivity, yelling and swearing. He included Zack, Ms. Hyatt and Eric (when his probation ended at his new work) as beneficiaries of his now available extended health coverage. They were eligible as they were living at the household and there was no extra cost to him.

[13] The parties denied that they ever discussed or even wanted to marry. Nobody ever talked about Mr. Ralph adopting Zack; indeed, during Ms. Hyatt’s short time with Mr. Ralph, she took the necessary steps to change the boy’s name from McCafferty – but to Hyatt.

[14] “Settled intention” has been discussed in a number of cases. Some of the older decisions are illustrative of some types of circumstances that have relevance.

[15] Gravely U.F.C.J. said, in Bair v. Bair (1982), 1982 1709 (ON SC), 27 R.F.L. (2d) 309, at paras. 17-18:

17 The actual, as well as apparent, intention of the respondent must then be established. That intent may be inferred from the respondent's acts and that evidence may be so strong that a court may choose to disbelieve a respondent's denial of actual intent. Inferred intent, however, is a very different concept from that of irrebutable presumption which is perhaps suggested by the words "objective test".

18 In summary then, in my view:

1. Actual intent must be established.

2. The intent must be "settled".

3. The intent must be "demonstrated".

4. The intent may be inferred from the conduct of the respondent.

5. The inference may be rebutted by evidence of the actual intent.

[16] Regard must be had, in the evidence, to a description of as much of the daily life of the respondent and the child as can be portrayed. In King v. Ward (1984), 1984 4922 (ON CJ), 41 R.F.L. (2d) 98, Karswick Prov. J. observed at para. 8:

8 I have been referred to a number of cases which generally substantiate the principle that the Court must review all of the circumstances surrounding the familial relationships between the child and the adult to determine whether there was a demonstration of a settled intention to treat the child as a member of the family unit. The daily exchanges of words, the general behavioral responses of one to the other, the daily routines, the disciplining practices, the financial contributions, must all be considered and weighed when determining whether the adult and child intended to function as a family unit.

[17] As far as money is concerned, here, of course, Mr. Ralph’s monetary contribution to family life was circumscribed and Ms. Hyatt plainly did not want to become involved at all with his past financial troubles. In any event, it is wrong to ascribe too great an importance to the provision of financial assistance or material things: see Gower v. Gower (1987), 1986 6334 (ON SC), 4 R.F.L. (3d) 275 (Ont. Dist. Ct.). In MacDonald v. MacDonald (1979), 1979 2072 (ON SC), 24 O.R. (2d) 84, Winter Co. Ct. J. stated at p. 86:

The provision of financial support is a common but not conclusive test. In this appeal what money there was for support was provided by the respondent as he was the only one gainfully employed. There was no evidence of any other relationships with the child, whether any interest was in fact taken in the child's well-being. On the contrary, there was evidence that the respondent did not act as a father. To hold the child was a dependant of the respondent would require evidence that he was fulfilling other parental duties and responsibilities as well as financial support.

[18] The evidence indicated to me that the relationship between Mr. Ralph and Zack was superficial, stilted and strained. Even had it been proved to be much deeper and more affectionate, that in itself would not be determinative, as great care should be taken in inference from warm and affectionate relationships with children. As Fanjoy D.C.J. said in Hines v. Davy (1985), 1985 5091 (ON SC), 45 R.F.L. (2d) 132 at para. 14:

14 This [showing of affection] is the only evidence of actual intent as opposed to evidence of Hines' conduct from which intent could be inferred. I do not find this explanation to be "imaginative". In my view a warm, caring man who loved children, entering into a close relationship with the children's mother, when the children had no present father, could well treat them as a father without having "a settled intention" to treat the children as children of his family. …

[19] In this case, little more than three years passed from the time cohabitation commenced until the breakdown although, admittedly, the authorities place less emphasis on the duration of the relationship between the child and the alleged parent than upon the nature of the relationship. In Re Spring and Spring (1988), 1987 4379 (ON SC), 61 O.R. (2d) 743, Mendes da Costa U.F.C.J. said at p. 749:

When intention is in dispute, each case will be decided on its own attendant circumstances. The applicant must show more than a mere display of common courtesy or hospitality. The facts of family life should be established, and the court will assess the relationships that have developed within the family unit. Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child's welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word "settled", in my opinion, denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention - or the brevity of the relationship in issue - is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced. …

[20] Some more recent cases provide further definition of relevant principles in “settled intention” determinations. In Watts v. Watts, 2011 ONCJ 104, [2011] O.J. No. 1087, 99 R.F.L. (6th) 225 (Ont. C.J.), Spence J. said, commencing at para. 19:

19 I have concluded, on a balance of probabilities, that the evidence does not support the finding that Malcolm had demonstrated a settled intention as defined in the Act.

20 The leading case on settled intention is Chartier v. Chartier, 1999 707 (SCC), [1999] 1 S.C.R. 242. At paragraph 39 of that case, the court set out the test, as follows:

[39] Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. ... The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. ...

(emphasis added and some citations omitted)

21 In Spring v. Spring (1987), 1987 4379 (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 CarswellOnt 1022 (Ont. U.F.C.), the court had to decide whether the relationship between the husband and the stepdaughters constituted a settled intention. The court ultimately decided in favour of the wife's position, namely that settled intention had been established. The court did so, having regard to a number of factors including (at paragraph 20):

1. the parties had pooled their incomes into a joint account;

2. all expenses including those of the children were paid out of this account;

3. the children called the husband "daddy";

4. the parties gave the children gifts and cards, in which they wrote "from mommy and daddy";

5. the parties shared the task of disciplining the children; and

6. the father provided flowers for one of the children on her birthday, stating that it was the father's duty to provide his daughter with her first flowers.

None of these are [sic] reflected in the facts of the case before me.

22 The case of Widdis v. Widdis, 2000 SKQB 441, [2000] S.J. No. 614, 2000 CarswellSask 594 (Sask. Q.B.), contains excerpts from a paper by Professor Carol J. Rogerson, which examines the case law post-Chartier v. Chartier. The court cited that paper with approval, beginning at paragraph [16]. I find it helpful to set out those excerpts as follows (my emphasis):

[23] An affirmative finding attaches a financial obligation for support paid by the step-parent -- an obligation that can represent significant quantities of money over many years and one which is ordinarily associated with having brought the child into the world or having legally adopted him or her. Financial responsibility to support other persons arises generally out of the formation of a dependency relationship. It follows in my view that parental status should not be assigned automatically or from the mere willingness of the step-parent to share with children and to assist with their financial, emotional and physical needs. There must be a relatively clear assumption of responsibility shown by or inferred from the step-parent's actions over a sufficient period of time for that relationship to constitute a commitment. On the other hand, a child who has been made to be dependent upon a step-parent by actions of the adults in the definition of their relationship with each other and with the child should not be deprived of that support in appropriate circumstances.

[26] In marriages or relationships involving children of a previous relationship, the adults and children will necessarily shown signs of family life together. There will be a division of labour between the adults and, inevitably the step-parent will perform certain aspects of the role previously performed by the natural parent. This should be encouraged. Re-marriage or other forms of second families should be encouraged; it is good for children that their custodial parent find happiness in a new relationship. There must be a balance between addressing the needs of children that arise out of legitimate dependency relationships with a step-parent and a requirement that the step-parent must behave in unnaturally cold or parsimonious ways toward the children in order to avoid the inference being drawn. In finding parental status, a court must take care not to penalize a step-parent for behaving kindly or offering emotional, physical and financial assistance to the natural parent who would otherwise be raising the children alone or with some assistance from the non-custodial natural parent.

[28] Should she or he be burdened with the obligation for long-term child support after having so involved herself or himself in the children's lives in pursuit of a new and happy relationship? The answer will often be in the affirmative. However, in my opinion, the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent's role.

Professor Rogerson goes on to say at p. 9-28:

... The list of factors in Chartier has become a standard reference point in the cases and has arguably given new emphasis to certain factors -- such as discipline and representations of parental status to be community, but courts often continue to draw on many of the same factors they did in the past. The check list includes whether the children call the step-parent Dad; whether there has been a change of surname; whether there has been discussion of adoption; whether the step-parent engages in activities with the children; the degree of affection between the child and step-parent; whether the step-parent gives the child gifts; whether the step-parent engages in decisions about education and attends parent-teacher meetings; whether he carries the children's pictures in his wallet; and the degree of involvement of the natural father. Determinations of parental status remain highly discretionary and are often influenced by unarticulated policy choices that determine whether the court understands the Chartier tests as establishing a relatively high or low threshold. It is not clear whether courts understand the test as requiring evidence of a serious commitment to the child beyond the ordinary facts of residence together, or whether mere conformity to a picture of ordinary family life in which a step-father appears to be acting like a father is sufficient.

[17] She also identifies various factors which her review of the case law found can operate to move a case outside of the standard step-parent circumstance, including,

1. Poor relationship between the step-parent and the child prior to separation.

2. An older child.

3. An involved biological parent.

4. Short length of relationship.

23 Referring to the above four factors, numbers 2, 3 and 4 weigh in favour of a finding of no settled intention in this case. As to factor number 1, the relationship between Malcolm and Lisa can more accurately characterized as cordial, or pleasant.

24 As to the "length of the relationship" referred to above, I refer first to Hines v. Davy (1985), 1985 5091 (ON SC), 45 R.F.L. (2d) 132, [1985] O.J. No. 894, 1985 CarswellOnt 253 (Ont. Dist. Ct.), where District Court Judge Edward O. Fanjoy stated, beginning at paragraph [15] (my emphasis):

[15] The crucial word in my view is "settled". What is the meaning of "settled" in this context? The word has many meanings, the determination of which requires an examination of the context. The verb "settle" is defined in the Concise Oxford Dictionary as "to establish or become established in more or less permanent abode or place as way of life." Webster's New Twentieth Century Dictionary defines it "to make stable or permanent." The adjective "settled" would have, in this context a meaning with a connotation of permanency.

[16] The length of the relationship would therefore be a factor in determining whether an intention is settled. Indeed, in the reported cases which were cited this is recognized. In Bair the period was approximately 2 1/2 years and the court found that there was no settled intention. ...

See also Oxley v. Oxley, 2003 64327, 1 R.F.L. (6th) 354, [2003] O.J. No. 5275, [2003] O.T.C. 1117, 2003 CarswellOnt 5226 (Ont. S.C.).

25 Although there are a great many cases that have dealt with the law of settled intention over the years, I consider the foregoing to be a reasonable synthesis of the modern-day law which may be helpfully examined in deciding whether or not to find the existence of a settled intention.

[21] Spence J. completed his analysis of the facts and the case law by saying at para. 34:

34 I agree with the court in Widdis v. Widdis, supra, and the paper by Professor Rogerson, that "the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent's role". (emphasis in original and some citations omitted)

On the facts before me, Ms. Hyatt falls far short of meeting the threshold. Mr. Ralph does not fall within the statutory language expanding the definition of “parent” and imposing a liability to pay support.

SHOULD THE AGREEMENT BE SET ASIDE?

[22] Mr. Ralph claims that the separation agreement must be set aside as being unconscionable and the product of duress. He says that Ms. Hyatt preyed upon him in exercising an unequal bargaining power as a practising law clerk well experienced with family law matters. In addition, he complains that he was specifically denied the opportunity to obtain independent legal advice. Ms. Hyatt, for her part, dismissed out of hand any attack on the fundamental validity of the contract, but a review of the unusual relationship between these parties and their conduct supports Mr. Ralph’s position, not hers.

[23] Mr. Ralph testified that his relationship with Ms. Hyatt started out well when they were together only a couple of nights a week. There were only “occasional fights.” By the time they moved in together, he said the fighting was “pretty constant.” By August, 2010 he almost, he testified, “stopped the relationship.” His parents had come from Newfoundland to visit for a week but abruptly left after two or three days to go to a motel because of the constant fighting. He described her as manifesting a “temper problem” centred, to some extent, on his perceived favouritism towards his son Eric, her jealousy and complaints about Eric being “ignorant” and Mr. Ralph refusing to “do things” with Zack when Eric was not there.

[24] In general, I think trial judges should try to avoid drawing any firm conclusions from the demeanour and attitude of a witness in the box, particularly where credibility is very important to a case. Here, however, Ms. Hyatt’s testimony was quite consistent with the pages and pages of e-mails which were produced by both sides. They demonstrated her launching on a trajectory of anger as the relationship soured and separation became inevitable. Even before that, Mr. Ralph testified that he only stayed at the house because they had just recently moved in. He said Ms. Hyatt levelled verbal threats, saying that she was a law clerk and that she would make trouble were he to try to leave. He admitted that he “did not know what she was capable of.”

[25] By the Fall of 2011, the relationship was ending, but in substantial acrimony. Ms. Hyatt was shrill, combative and dominating. Mr. Ralph was, as usual, avoidant, passive and defensive. In late November, it was over and Mr. Ralph was packing his things in the basement. When Ms. Hyatt said she was not going to Michigan for “Black Friday” shopping and Mr. Ralph announced that he had to go to purchase the small appliances he was not allowed to take from the home, in his words she “became irate.” She swore and called him names, threw a CD player and swept his belongings to the floor. She screamed through his explanations and threatened to “take him for the $444” (the child support number with which he said she always threatened him). She struck him on the ear and threatened to change the locks on the house if he went to Brampton to pick Eric up. Mr. Ralph implored Ms. Hyatt to guarantee that the locks would not be changed, or he would have to call the police. She refused and called her sister to come over because she was afraid she would go to jail because she struck him. She then threatened Mr. Ralph by telling him she would tell the police that he “beat” her. The police finally arrived and calmed Ms. Hyatt down, extracting a promise that she would not change the locks on the house. Apparently Mr. Ralph did not complain to them about being hit, as Ms. Hyatt was not charged with an assault.

[26] I recount all this rather sordid, sad episode only to give an indication of the toxic relationship of the parties and the extent of Ms. Hyatt’s anger and warnings leading up to the signing of the agreement. In Mr. Ralph’s words, “Ms. Hyatt as a family law clerk instructed me that we had to have [the agreement] done.” He thought it unnecessary because they were not married, but she pointed to the joint mortgage debt and the fact that he had incurred charges at Home Depot as the secondary holder of her charge card and insisted that their finances be separated. In cross-examination, he did not dispute that the mortgage holder had requested that title to the real property be transferred to Ms. Hyatt and that no land transfer tax would be payable if title passed pursuant to the terms of an agreement.

[27] At first, Mr. Ralph testified, Ms. Hyatt did not want child support for Zack and said he was not Mr. Ralph’s son and not his responsibility. As time went on, the parties continued to fight. Ms. Hyatt was honest in the witness box about how angry and vindictive she could become and testified about “screaming in each other’s face.” The remarkable level of her anger and the extent of the vituperation she can summon up is patently clear from the long e-mail tirades she directed at Mr. Ralph in the period both preceding and after the contract was made.

[28] I accept Mr. Ralph’s testimony that, as the fighting worsened, Ms. Hyatt began to insist that “her boss” had determined that a payment of $120 monthly would reflect their individual responsibilities for their own children and their incomes; however, as soon as a fight occurred, Mr. Ralph said Ms. Hyatt would threaten to “take him to court for $444.” Mr. Ralph said he had “no finances to consult an attorney,” and that he was threatened by Ms. Hyatt that, if he did, “all communication between [them] would cease and it all would go through lawyers and court.” When particularly agitated, she would raise the spectre of a possible spousal support claim.

[29] Ms. Hyatt also insisted that Zack and Eric continue their relationship and that Mr. Ralph take Zack for two hours after school once a week. Mr. Ralph testified:

I was just looking to get out of the house with my belongings in one piece and the threats started to come about court and the $444, so I ultimately agreed.

[30] The agreement was signed November 29, 2011.

[31] Not surprisingly, Ms. Hyatt immediately became unhappy with the agreed arrangements about contact between Zack and Eric and Zack and Mr. Ralph. Mr. Ralph was told that every time he had Eric for the weekend, he had to take one day and take his son to spend time with Zack. He said Ms. Hyatt had no tolerance for Eric’s wishes or alternate activities or plans. Worse, Mr. Ralph was to be present at Ms. Hyatt’s residence while the two boys played. Predictably, a fight would occur and Mr. Ralph and Eric would have to leave.

[32] Similar problems cropped up in the after-school weekly contact between Mr. Ralph and Zack for two hours which Ms. Hyatt had wanted. After only the second visit, she was angered by Zack’s complaints. Mr. Ralph was accused of not doing enough with the boy at his apartment, just texting or watching television. The visits ceased after January, 2012.

[33] Ms. Hyatt berated Mr. Ralph about the failures concerning access and the arguing and fighting continued, together with threats that, unless she was satisfied, she would go to court, get “stiffer access” and claim increased child support from him.

[34] At that juncture, Mr. Ralph arranged a line of credit and retained counsel.

[35] Mr. Scott corresponded with Ms. Hyatt in March, 2012. He expressed the view that access with Zack should not be forced. Unfortunately, Mr. Ralph texted Ms. Hyatt on March 21, giving her notice that he was unable to bring Eric to a Boys and Girls Club event on Saturday to meet with Zack and postponing the meeting until the following day. Ms. Hyatt did not receive the text message and Mr. Ralph received a telephone call from a person “just screaming … not understandable … just profanities” on the Saturday. A later e-mail threatened Mr. Ralph. Zack, she said, was upset and, in her words, she would “hurt you in the only place you care about … your wallet.” Because Mr. Ralph had “hurt Zack and retained an attorney,” she was “going to court to enforce the access and increase child support.” There followed 27 constant telephone calls that went unanswered. Five days later, Mr. Ralph was served with Ms. Hyatt’s motion to change the agreement and increase child support.

[36] Section 56(4) of the Family Law Act is formulated in the following terms:

Setting aside domestic contract

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[37] In her spirited submissions with respect to the “settled intention” issue, Ms. Hyatt put to me that Mr. Ralph recognized his legal liability for the future support of Zack when he executed the separation agreement and now could not resile from his acceptance of that responsibility. I said that might be a strong point in her favour, perhaps even a determinative one, if the agreement was not a product of duress and a dramatic inequality of bargaining power between the parties. In my view, however, it was exactly that.

[38] Kent J. placed the burden of proof on the party seeking to set aside an agreement in James v. James, [2010] O.J. No. 2869 (Ont. Sup. Ct.):

11 A party seeking to set aside a domestic contract bears the burden of proof. This burden is particularly heavy when the parties have received independent legal advice. See Dougherty v. Dougherty, (2008), 2008 ONCA 302, 89 O.R. (3d) 760 (C.A.), at paragraph 11. As a general rule, the court should enforce an agreement arrived at between parties. See Farquar v. Farquar, 1983 1946 (ON CA), [1983] O.J. No. 3185 (C.A.), at paragraph 20-21.

[39] In that case the respondent had counsel but still complained of a lack of independent legal advice. Kent J. continued:

15 This is not a case where one party can be said to have preyed upon the other or taken advantage of her/his ability to make a better bargain or was in a demonstrably stronger position. While counsel for the respondent characterizes the respondent's situation as not having received independent legal advice from his own lawyer, it is clear from the respondent's testimony that he assumed that his lawyer was looking after his (the respondent's) interests. It is hard to imagine this being anything other than a correct assumption. It must also be observed that even the absence of independent legal advice, so long as a party is competent and reasonably intelligent, is not necessarily a basis for setting aside a domestic agreement on grounds of unconscionability. See Loy v. Loy, [2007] O.J. No. 4274 at paragraph 211.

[40] The question of a failure to obtain independent legal advice was discussed further in Harnett v. Harnett, 2014 ONSC 359, [2014] O.J. No. 237, 43 R.F.L. (7th) 464 (Sup. Ct.) where McGee J. said:

79 Providing independent legal advice means more than being satisfied that a party understands the nature and the contents of the agreement and consents to its terms. Gurney v. Gurney, 2000 BCSC 6, [2000] B.C.J. No. 13, 2000 CarswellBC 90 (B.C. S.C.) The lawyer should make inquiries of the party so as to be fully apprised of the circumstances surrounding the agreement. The party should be advised of her legal rights and obligations. Simply stated, a client must understand the legislative scheme out of which she is opting.

80 It is the lawyer who should offer his or her opinion on whether it is appropriate for the party to sign the agreement, and not leave that question to the party.

81 It is only with comprehensive advice that a party can make an informed decision about the advisability of entering into an agreement as opposed to pursuing some other course. Only with comprehensive advice can a party appreciate the future risks and obligations of the agreement, and how best to organize one's affairs accordingly.

(emphasis added)

[41] In this case, Mr. Ralph had no benefit of independent legal advice. In fact, the only suggestions he received about the law came from Ms. Hyatt, who he recognized as someone with significant experience in family law, backed up by frequent references to “her boss” and what “her boss” had approved or considered reasonable. Had Mr. Ralph been presented independently with the legislative scheme which was being used to fix him with an ongoing liability to pay support for Zack, I am quite satisfied he would not have agreed. Worse, on the one occasion when he “tested [the idea of obtaining legal advice] out,” Ms. Hyatt balked and issued her usual threat about having a court decide on much higher support.

[42] McGee J. went on in Harnett to set out some of the other aspects of unconscionability, beginning at para. 87:

87 As a general rule, courts will uphold the terms of a valid enforceable domestic contract: Hartshorne v Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, 2004 CarswellBC 603 (SCC.)

88 It is desirable that parties settle their own affairs: Farquar v. Farquar (1983), 1983 1946 (ON CA), 35 R.F.L. (2d) 287 (Ont. C.A.) and courts are generally loathe to set aside domestic contracts. See page 297:

"the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts ... as a general rule ... courts should enforce the agreement arrived at between the parties ... The parties to the agreement need to be able to rely on [them] as final in the planning and arranging of their own future affairs"

89 Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure: Clayton v. Clayton, 1998 14840 (ON SC), [1998] O.J. No. 2028, 1998 CarswellOnt 2088.

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other, or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), 1968 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to "protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position."

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 1994 2769 (ON CA), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), 1968 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 1994 2769 (ON CA), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court's discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan, 2008 ONCA 388, 2008 CarswellOnt 2738, ONCA.

95 A finding that a party violated a provision of s. 56(4) of the FLA does not automatically render the contract a nullity. Rather, a trial judge must determine whether it is appropriate, in the circumstances, to order that the contract be set aside. It is a discretionary exercise: LeVan paragraph 33.

96 The lack of independent legal advice is not by itself determinative. It is only one factor: Dougherty v. Dougherty, 2008 ONCA 302, 2008 CarswellOnt 2203 ONCA; Raaymakers v. Green, [2004] O.J. No. 2791, 2004 CarswellOnt 2712.

[43] Guidance in resolving the issue of claimed duress comes from Ricchetti J. in Aly v. Nader Halal Meat Inc., 2013 CarswellOnt 3241 (Ont. Sup. Ct.) at p. 60:

367 The definition of "duress" was described in Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513 (C.A.):

Finlayson J.A., speaking for the majority of this court in Stott v. Merit Investment Corp. (1988), 1988 192 (ON CA), 63 O.R. (2d) 545, 48 D.L.R. (4th) 288 [leave to appeal to S.C.C. refused (1988), [1988] S.C.C.A. No. 185, 63 O.R. (2d) x, 49 D.L.R. (4th) viii], at pp. 561-62 O.R., p. 305 D.L.R., said that in order for pressure to amount to duress it must be "a coercion of the will", or it must place the party to whom the pressure is directed in such a position as to have no "realistic alternative" but to submit to it.

368 Duress need not be actual or threatened violence, but merely the deliberate actions by one party sufficient to pressure the will of the other party to such an extent as to leave no "realistic" ability to freely decide.

(emphasis added)

[44] I believe there is special significance in this case in the great disparity between the parties’ personalities and attitudes. Mackinnon J. faced a similar fact situation in Cuffe v. Desjardins, 2013 ONSC 4044, [2013] O.J. No. 2706, 37 R.F.L. (7th) 219 (Sup. Ct.), where she said:

38 ... I accept her description of Mr. Cuffe as being controlling and having a dominating personality. This was amply demonstrated during his cross-examination. At numerous times, he was abrasive and challenging. On occasion, he lectured counsel. On other occasions, he was very argumentative. I formed the opinion that he was a person who liked to get the last word in. By comparison, Ms. Desjardins did appear quite meek and timid, consistent with her family practitioner's description.

[45] In that case, there were representations made, as here, that a failure to agree would open the way for larger and different claims. Mackinnon J. continued:

40 I find that Ms. Desjardins was influenced by her husband telling her that now that he had lost his job, he was in a position to seek child and spousal support from her. I believe that this, in combination with the existence of the marriage contract, were both operating on Ms. Desjardins' mind when she signed the separation agreement.

[46] I am quite satisfied that the defects apparent in the evidence in this case properly lead to the conclusion that the separation agreement executed November 29, 2011 is fatally flawed. It is improvident as being inconsistent with the statutory language of the Family Law Act concerning “settled intention.” It is the product of Ms. Hyatt preying upon a weaker Mr. Ralph. It is tainted by Mr. Ralph’s lack of independent legal advice and his being warned against seeking it. It is the result of duress and improper influence practised on Mr. Ralph by Ms. Hyatt. It is unconscionable and is set aside.

[47] Mr. Scott and Ms. Hyatt may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator. Mr. Scott’s submissions should be sent to me and Ms. Hyatt within 30 days, after which Ms. Hyatt will have a further 45 days to send her submissions to Mr. Scott and to me. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief and may be in point form.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: February 5, 2015