COURT FILE NO.: FC-18-1678

DATE: 2022/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marina MacLeod

Applicant

– and –

Allen Wayne MacLeod

Respondent

Jeffrey Langevin, for the Applicant

Erin Lepine and Ira Marcovitch, for the Respondent

HEARD: January 24, 25, 26, 28, 31, February 1, 2, 3, 4 and 14, 2022

REASONS FOR judgment

Shelston, J.

[1] In 2003, the applicant (“Marina”) lived in Volgograd, Russia and the respondent (“Allen”) lived in Ottawa, Ontario. They met initially online in 2003. The relationship progressed and in December 2005, Marina gave birth to the parties’ child, B. The parties married on July 7, 2007. In the days leading up to the wedding, the parties signed a marriage contract pursuant to the laws of Ontario. The parties separated on February 1, 2018, in Ottawa, Ontario.

[2] The issues for this trial are:

(a) Parenting including decision-making and a parenting schedule.

(b) Child support

(c) Validity of the marriage contract.

(d) Spousal support.

(e) Equalization of the net family property.

(f) Costs.

Factual background

[3] At the date of the trial, Marina was 53 years of age. She was born, educated and worked in Russia. She was previously married on two occasions and had one child, S. born in 1994. Marina obtained a degree in teaching and then completed a program in international tourism and management. From 1993 to 1997, Marina worked as an image consultant in Moscow. From 2002 to 2005, Marina was the executive director of a travel agency in Moscow. She left that employment in 2005 pregnant with the parties’ child and moved to Volgograd to live with her parents.

[4] At the date of the trial, Allen was 69 years of age. He was previously married and has two children, Christopher and Melanie. Allen has been a bankruptcy trustee since 1982.

[5] After meeting in 2003, the parties met in Spain in early 2004. As the relationship became more serious, in May 2004, Allen travelled to Russia and in July 2004, Marina travelled to Ottawa for a visit. Allen invited Marina to spend a winter in Canada and arranged for her to receive a student visa with her attending Willis Business College in administration. Marina arrived in Ottawa to live with Allen on December 16, 2004 with an expectation to return to Volgograd in 2005.

[6] In April 2005, Marina became pregnant. Allen was not happy with the news and Marina returned to Russia at the end of May 2005. The parties did not leave on good terms and did not communicate until September 2005 when they started to reconnect. The parties’ child, B. was born in December 2005. In 2006, the parties reconciled their relationship resulting in Allen proposing marriage to Marina. The parties agreed to marry on July 7, 2007, in Volgograd.

[7] In May 2007, Allen retained a lawyer to draft the marriage contract. On June 25, 2007, Allen emailed Marina a draft of the marriage contract. Marina signed the contract on July 2, 2007. Allen signed the marriage contract on July 6, 2007. The parties married the next day. Allen returned to Canada at the end of July 2007. Marina and her two sons, B. and S., emigrated to Canada on August 28, 2008. Marina’s son, S., returned to Russia in September 2011, returned to Canada in August 2014 and left Ottawa for the last time in November 2019. He currently resides in Russia with his girlfriend.

[8] The parties separated on February 1, 2018, but continued to reside in the matrimonial home together with their son B. Both parties retained lawyers and on May 28, 2018, the parties executed an Interim Separation Agreement. Despite the agreement being entitled an Interim Separation Agreement, the parties agreed to a final agreement on the issues of custody as follows:

1.5 They agree to be bound by this Agreement which settles, on a final basis, the issues of custody and parenting time. This Agreement confirms the parties’ interim agreement for B. to travel with both parents to Turkey in May 2018, and for B. to travel with Marina to Russia in June and July 2018, to return to Ottawa, Ontario, Canada on July 22, 2018.

2.1 Allen and Marina will have joint custody of B.

2.2 B. will reside with Allen and Marina equally. B. will reside with each parent on alternate weeks, with the exchanges taking place on Fridays after school, or Friday at 5 PM if B. is not in school.

2.3 Neither party will move B.’s permanent residence from Ottawa, Ontario, Canada without the others written consent or court order.

2.4 Allen and Marina agree that B. will travel with both parties to Turkey for 2 weeks, departing from Ottawa, Ontario, Canada on Monday, May 21, 2018. After this 2-week period, B. will travel with Marina to Russia for the purpose of the family visit in June and July 2018, after which B. and Marina will return to Ottawa, Ontario, Canada on July 22, 2018.

2.5 Allen and Marina expressly agreed that B.’s habitual residence is in Ottawa, Ontario, Canada, and that B’s habitual residence will remain in Ottawa, Ontario, Canada.

2.6 Upon their return, Allen and Marina will negotiate a Final Separation Agreement to resolve all remaining issues arising from their separation.

[9] On August 29, 2018, Marina commenced proceedings seeking various claims for relief including joint custody of the child, retroactive and prospective child and spousal support, equalization of the net family property and setting aside the marriage contract. On October 30, 2018, Allen signed his answer and claim seeking various claim for relief including joint custody of the child, a declaration that the marriage contract was valid and binding and an order that he would pay spousal support in accordance with the marriage contract.

[10] The parties remained in the matrimonial home in separate bedrooms until November 14, 2018, when Marina phoned the police to attend at the matrimonial home and told the police that Allen had assaulted her. The police attended, Marina was taken to a hospital and Allen was not charged and remained in the matrimonial home. A few days after being released from the hospital, Marina picked up B., who had stayed at a friend’s home and eventually they moved into a rental unit.

[11] On November 23, 2018, the parties attended a previously scheduled case conference where, with the consent of the parties, the court ordered Marina to deposit B.’s Russian and Canadian passports with the clerk of the Superior Court by November 26, 2018. Marina did not comply with that order.

[12] On November 27, 2018, the parties entered into an interim-interim without prejudice agreement whereby Allen would have parenting time with B. on four separate occasions unsupervised for short periods of time pending a motion. On December 6, 2018, at a motion, Justice Doyle made the following temporary order which contained, inter alia, the following relief:

(a) Marina to deliver B.’s birth certificate with the clerk of the Superior Court by December 11, 2018.

(b) Allen to have exclusive possession of the matrimonial home and its contents.

(c) Marina to provide a list of personal household contents within 14 days. The parties to arrange a time for Marina to pick up the agreed-upon list of personal household contents and the mother may be accompanied by Don Byrne, a lawyer.

(d) The parties shall have joint custody of the child B.

(e) An assessment will be conducted by Janet Claridge pursuant to section 30 of the Children’s Law Reform Act.

(f) Commencing Friday, December 7, 2018, the parties will have equal week-on/week-off parenting time with B.

(g) The father will commence his time with the child for the first week on Friday, December 7, 2018, after school and the mother will have her first week with the child commencing Friday, December 14, 2018, after school.

[13] Marina did not comply with the order to deliver the birth certificate to the clerk of the court by December 11, 2018.

[14] B. was to return to Allen’s care on January 4, 2019. Marina did not allow B. to go to his father’s home based on her son S. contacting the police to allege that Allen had sexually molested him years before.

[15] On January 21, 2019, Allen served an urgent motion returnable January 22, 2019, to address the unilateral termination of access by Marina. That same day, Allen was contacted by the police about allegations made by Marina and her son S. On January 23, 2019, Allen was arrested with one charge of sexual assault and a second charge of touching the body of a child under 16 years of age based on S.’s allegations. He was charged with uttering a death threat to Marina and a second charge of assault regarding Marina.

[16] On February 26, 2019, the parties appeared before Justice Doyle where Marina sought the appointment the Office of the Children’s Lawyer (“OCL”) for the child. Justice Doyle adjourned the motion to March 26, 2019. On consent, the court ordered that Allen would have access to B. on Saturday, March 2, 2019, from 11 AM to 4 PM supervised by Allen’s daughter Melanie. The access did not take place because B. attended the exchange point but refused to go to Allen’s house for access.

[17] On April 2, 2019, the parties appeared before Justice Audet where Allen sought interim sole custody of B., no access to Marina and a finding of contempt of court by Marina’s failure to deposit the child’s Russian birth certificate as ordered by Justice Doyle. Marina sought an order that she had primary care of the child, supervised access for the father, child support, spousal support and the appointment of the OCL.

[18] On April 5, 2019, Justice Audet found that Marina had engaged in parent alienation and consequently ordered, inter alia, the following on a temporary basis:

(a) Allen shall have sole custody of the child.

(b) Marina shall have no access to the child until further order of the court.

(c) Allen was granted the right to retain the services of Janet Claridge to provide reunification counselling with him and the child without the mother’s consent.

(d) Allen to be solely responsible to the payment of any cost related to therapeutic or counselling treatment for the child on a without prejudice basis.

(e) Marina not to communicate directly or indirectly with B. in any way until further order of the court.

(f) The motion was to return before her in two months for the purpose of providing the court with an update as to the child’s overall well-being and progress. At that time, the issue of Marina’s access to the child and the need for an OCL to be reviewed.

[19] On April 8, 2019, Justice Audet adjourned the contempt motion to be brought back in two months, ordered Allen to pay Marina $3,192 per month as spousal support less $192 payable by Marina to Allen for child support resulting in a net payment of $3,000 per month commencing April 1, 2019. Further, the court ordered that if the marriage contract is set aside at trial, Allen’s spousal support obligations can be adjusted by the trial judge retroactively. If the parties’ marriage contract is upheld at the trial, any overpayment made by Allen can be set off from the $150,000 lump sum owing by him to Marina as per the terms of the contract.

[20] On May 23, 2019, Justice Audet ordered that the original and notarized copies of the child’s Russian birth certificate along with the child’s Canadian passport and original certificate of citizenship be retained by the Clerk of the Superior Court where they remain. On May 30, 2019, Justice Audet ordered Marina to pay to Allen costs for the contested motion of $32,055.

[21] On July 5, 2019, Justice Audet made a temporary order that included, inter alia, the following:

(a) Marina’s request for the appointment of the OCL was adjourned sine die.

(b) Allen shall continue to have interim sole custody and primary care of the child B. until further order of the court.

(c) Commencing as soon as Ms. Janet Claridge is available, Marina shall have therapeutic access with B., with the cost to be shared on a proportional basis with Marina paying 20% and Allen paying 80% of said costs.

(d) After four sessions of therapeutic access has been completed, Janet Claridge shall provide an update to the parties as to the progress of the access. If the parties are unable to resolve Marina’s ongoing access to B., either party may bring a motion to determine the issue on 14 days notice.

[22] On August 30, 2019, Justice Audet issued the following temporary order:

(a) With the consent of the parties, the parties were ordered to communicate with one another in writing through Our Family Wizard to discuss matters related to B.

(b) Marina was granted access to the child every Tuesday after school until 8 PM and every Saturday from 10 AM to 5 PM.

(c) The parties and B. were to continue to attend ongoing counselling sessions with Ms. Claridge until further order of the court.

(d) The parties were to refrain from seeking information from B. about what happens at the other parent’s house and shall encourage B. to discuss any concerns he may have about one parent with that parent directly, or with Ms. Claridge.

(e) A review of Marina’s access shall take place upon her completing Parenting through High Conflict Separation and Divorce program through Family Services Ottawa.

[23] At the request of the Crown, the criminal charges against Allen regarding Marina were stayed in October 2020 and the charges regarding S. were stayed on July 23, 2021.

Divorce Order

[24] I find that the parties separated on February 1, 2018. I find that there is no chance of reconciliation and consequently I grant a divorce order.

Parenting

Marina’s position

[25] Marina’s evidence is that Allen did not spend a lot of time with B., that without Marina, there was little connection between Allen and his son and that when he was removed from her care in April 2019, the child was not happy. She states that Allen and B. still do not have a close and loving connection. She would prefer if they had a good relationship and indicates that she talks to the child about the good times. She encourages B. To send messages to his father.

[26] Marina states that she has not interfered with the relationship between father and son. She found the professional counselling with Ms. Claridge to be unhelpful and little progress was being made. She found that Ms. Claridge missed the core problem being that Allen did not have a close relationship with his son since birth. Marina states that she proposed three other counsellors who had Russian heritage, but Allen refused. She admits that the last time that Allen saw B. was September 2021 before Allen’s birthday.

[27] Marina’s position is that the parties should commence reintegration of B. into the care of his father on a schedule determined by this court with the goal of working towards joint decision-making in accordance with paragraph 2.1 of the parties’ Interim Separation Agreement dated May 18, 2018. She proposes that the parties resume reunification counselling with a new counsellor, other than Ms. Claridge and preferably a counsellor who is of Russian heritage. She proposes that if a reunification counsellor of Russian heritage cannot be located, then each party would propose two counsellors and they would agree on a counsellor and neither party will withdraw from the process without prior agreement of the parties or court order. Finally, she proposes that the parties pay for this cost on a proportional basis with Allen paying 70% and Marina 30%.

[28] She requests that B.’s Canadian passport, citizenship card and Russian birth certificate be released to her and that she retains sole possession of these documents.

[29] Further, she proposes that both parties be granted the right to make inquiries and be given information about B.’s from his teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the child. Finally, neither party would remove the child from Canada without the prior written consent of the other parent or with a court order permitting same.

[30] Marina submits that B. is 16 years of age, is doing well in school, has been in her exclusive care since October 2020 and there is no reason to change that status quo. She submits that she has attempted to encourage her relationship between the child and his father but that the child is closer with his mother than his father.

Allen’s position

[31] Allen’s evidence is that he always had a positive relationship with his son, was actively involved in his son’s life, that his son had a close relationship with his stepsiblings and their families. For example, at Allen’s 65th birthday party in September 2017, B., age 12 at the time, told the party of friends and family that Allen was the best father. The boy was very emotional and started to cry. At Christmas 2017, B. Signed a Christmas card he gave his father with the words “Merry Christmas Dad”.

[32] Allen’s position is that the parties should have joint decision-making in regard to B. in accordance with paragraph 2.1 of the parties’ Interim Separation Agreement, dated May 18, 2018. Allen proposes that the parties resume counselling with Janet Claridge (or, if she is no longer willing or able to act, another professional of her designation) for reunification counselling between Allen and his son. Both parties shall attend all sessions and ensure that the child attend all sessions as requested by Ms. Claridge. However, for each visit that Marina does not attend or bring the child as requested by Ms. Claridge, Marina shall pay the amount of $500 to Allen which shall be enforceable as child support. Neither party shall withdraw from the process without prior agreement of the parties or court order in the goal of the therapy shall be, to the extent possible, to work towards the shared parenting schedule as outlined in paragraph 2.2 of the parties’ Interim Separation Agreement, dated May 18, 2018. He proposes that the costs of the reunification counselling be shared on an equal basis.

[33] With respect to communication by Our Family Wizard, he proposes the cost be shared on an equal basis. He proposes that he receive the child’s Canadian passport, citizenship card and Russian birth certificate which is to be released to the child on his 18th birthday.

[34] Allen alleges that Marina embarked on a course of action to deliberately interfere with his relationship with his son, that this interference amounted to parent alienation and that the parties and child need to attend counselling. Allen is aware that by December 2023, his son will be 18 years of age and beyond the jurisdiction of this court. Despite that reality, he is adamant that the parties engage in reunification counselling to try to repair the damage done to Allen and B’s relationship.

Legislative and jurisprudential framework

[35] Section 16 of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) which provides as follows:

16(1) Best interests of child

The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration

When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered

In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence

In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

16(5) Past conduct

In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[36] Parental alienation is a legal concept as opposed to a mental health diagnosis. Malhortra v Henhoeffer 2018 ONSC 647

[37] In Fielding v. Fielding 2013 ONSC 5102, the court, relying on expert evidence, found that parent alienation has the following characteristics:

• there was a positive relationship with the targeted parent.

• There is an absence of abuse by the targeted parent.

• There is use of many alienating strategies by the alienating parent.

• The child exhibits most of the alienated behaviours.

[38] In Fielding, the court identified 17 different behaviours that are strategies employed by alienating parents including but not limited to badmouthing, limiting contact, creating the impression that the targeted parent is dangerous, confiding in the child personal adult and litigation information and withholding medical, social and academic information from the targeted parent.

[39] Courts have made findings of parental alienation without expert evidence. (Cantave v. Cantave 2014 ONSC 5207, Ottewell v. Ottewell 2012 ONSC 5201, Hazelton v. Forchuk 2017 ONSC 2282, M.P.M. v. A.L.M., 2020 ONSC 1862; Malhortra,supra)

[40] Even if the court determines that alienation is either the complete or partial cause of the rejection by children of one of their parents, the court is still left with the complicated balance of considerations that keep the best interests of the children as the sole focus in any order that is made. Fiorita v. Wiggins, 2011 ONSC 1868 para.159.

Analysis

[41] I find that Allen had a positive and strong relationship with his child prior to November 14, 2018. I find that Allen cared for his child, provided all of the child’s needs, played sports with the child and that Allen’s children, Chris and Melanie readily accepted B. as part of their family. Allen and B. loved each other. They did activities together such as attending Ottawa Red Black’s football games and Ottawa Senators hockey games. B. enjoyed being with his father and his stepsiblings. Pictures provided during the trial prior to separation show the child smiling and enjoying himself with his father and his step siblings. I find that when Allen, Marina and B. went on a trip to Turkey in June 2018, that the relationship was still strong and positive and that the pictures provided during the trial, indicate that B. was enjoying himself and smiling with his father. Further, the positive relationship was corroborated by the testimony of Christopher and Melanie.

[42] On May 18, 2018, the parties signed the Interim Separation Agreement. The impetus for the agreement was Allen. He testified that since he was aware that Russia was not a signatory of the Hague Convention, Allen wanted protection to ensure that B. returned to Canada after the trip to Volgograd in June and July 2018. I accept Allen’s evidence that when B. returned from Russia at the end of July 2018, his demeanour had changed in that he was not as open with Allen and uncharacteristically refused to go on a trip with him.

[43] While both parties agree that the date of separation is February 1, 2018, the parties actually moved to separate bedrooms in December 2017. B. always had his own separate bedroom. The situation between the parents was not good and they communicated almost exclusively by text messaging. On November 2, 2018, Allen returned from a business trip to discover that Marina had moved B.’s bed into her bedroom. Allen was never consulted or agreed to this unilateral action. Allen was concerned that on four recent occasions, B. had slept in his mother’s bed. Allen asked Marina to move the bed back and she refused. Allen then called his lawyer and on the same day, his lawyer wrote to Marina’s lawyer requesting that the bed be put back in B.’s room. Marina testified that she never saw the letter but that same day, Marina sent an email to Allen’s lawyer that she had fired her lawyer and was in the process of hiring a new lawyer. The bed was never returned to B.’s room.

[44] On November 14, 2018, an incident occurred at the matrimonial home. Marina had been out at a business dinner. Allen was at home and had gone to bed. The evidence of the parties’ conflicts on what exactly happened. I find that when Marina returned home, Allen texted asking where B. was. Marina lied to Allen and said that he was in the house. I accept that Marina lied to avoid an argument with Allen. In fact, B. had participated in a karate class and Marina accepted the invitation of another participant’s mother that B. would sleep overnight at his friend’s house as Marina would be coming home late from the dinner. In any event, Marina alleges that Allen pushed her, and she fell down three stairs in the foyer. Allen denies that this event occurred. Both parties agree that at one point Allen banged on Marina’s door looking for B. Marina admits that she panicked and called 911. The police and EMS attended at the home. No charges were laid at that time. Marina felt pain in her tailbone and was taken to the hospital for examination. She was released the next day.

[45] As a result of the incident on November 14, 2018, the Children’s Aid Society (“CAS”) became involved. On November 26, 2018, the child protection worker, Mr. Yasuda, advised Allen that the CAS had not taken a stance on access as they were of the understanding that the parents were in Family Court to resolve this matter. At the hearing on November 23, 2018, Marina advised that the CAS had instructed her not to permit access until the situation was clarified. However, Marina’s statement is contradicted by the evidence of Mr. Yasuda.

[46] On November 29, 2019, Mr. Yasuda advised Marina that the CAS were not taking a stance on access as the matter was in Family Court. However, in Marina’s affidavit dated November 30, 2018, at paragraph 11, she stated that access should not be determined as both the police and the CAS were still involved. Marina’s statement is contradicted by the evidence of Mr. Yashuda.

[47] On November 29, 2018, B. told Mr. Yasuda that his mother told him about the incident and at that his father had pushed his mother down some stairs. On December 10, 2018, B. was again interviewed by Mr. Yasuda where B. indicated that he loved Allen, but that Allen does not do much for him. He indicated Allen financially supported him but when upset, he threatens to take things away such as the Internet. Further, B. told the worker that his father did not let them speak Russian in the home when they emigrated from Russia in 2008 and that his father did not buy a car for his mother until three years after she came to Canada. I find that B.’s statements to the child protection worker confirm that Marina has discussed the litigation with the child, has badmouthed Allen and had criticized Allen to the son.

[48] Allen was to have the child return to his care on Friday, December 21, 2018, which was B.’s birthday. On the afternoon of December 21, 2018, the child emailed his father to advise that his mother had scheduled a birthday party for him and so that he wanted to stay and that later on he would go sleep over at a friend’s house. Allen reluctantly agreed and planned to see his son at 10 AM the next morning at the exchange location. I find that Marina deliberately scheduled the birthday party to interfere with Allen celebrating B.’s birthday.

[49] On December 22, 2018, Marina did not bring B. to the exchange point being a local restaurant at 10 AM as per the court order. Allen attended at the location and when Marina did not arrive, he texted her. Marina responded that she and the child were at the matrimonial home. Allen was upset and returned to the matrimonial home where Marina, B., an Ottawa Police vehicle, and a variety of other individuals were present. Marina was there to remove her personal contents. Allen was not aware that she intended to attend with their son. I find that Marina intentionally brought her son to observe her removing her contents and that she required the protection of the police from Allen. This should never have happened. Marina should have ensured that if she was going to attend to remove her contents and if she wanted the police to be present, her son should never have been present. I find that Marina did so intentionally to show to B. that Allen was dangerous requiring police protection and that he was forcing Marina to remove her contents.

[50] Despite this very unfortunate incident, Allen had B. from December 22 to December 28, 2018, for the Christmas holidays. I accept the evidence of Allen, Christopher and Melanie that during the Christmas family celebrations, that B. did not want to take any pictures or smile while in their presence. They tried to encourage the boy to enjoy himself, but he refused to smile. All three witnesses were very concerned that this was a significant change in the child’s previous demeanour.

[51] Allen was scheduled to have his son in his care as of January 4, 2019. On January 2, 2019, Allen’s counsel wrote to Marina’s counsel requesting that she comply with the existing court orders to deposit the Russian and Canadian passports and the child’s birth certificates with the clerk of the court failing which they would seek judicial intervention. On January 4, 2019, B. texted Allen asking to stay an extra day with his mother until 10 AM on Saturday. Allen refused and B. replied, “I am not taking Joey to a toxic place. See you at 5.” However, the same day S. made the allegations that Allen had sexually abused him between 2008 and 2011. Marina refused to allow Allen to see B. Allen did not see B. until April 5, 2019, when he was granted interim custody of B.

[52] During the trial, Marina testified that she was unaware of S.’s allegations against Allen. I do not find that answer to be credible because in Marina’s Form 35.1 affidavit signed on August 24, 2018, she disclosed that there was a investigation in December 2017 by the CAS and the Ottawa Police regarding allegations of molestation by Allen towards S. I find that Marina was aware of the allegations and despite these allegations, she signed an Interim Separation Agreement dated May 18, 2018 where she agreed that she and Allen would share the decision-making regarding B. and that the child would alternate residences weekly. Marina’s evidence on this point is simply not credible.

[53] In February 2019, Marina had B. vaccinated at the request of the school but never told Allen. She registered B. for in high school without notifying Allen. Marina had no right to have the child vaccinated and registered without Allen’s knowledge and consent.

[54] Marina stated that the CAS had advised her not to permit contact between Allen and his son until the investigation was complete. That evidence is false. The Society’s recommendation was that Allen have supervised access by either Chris or Melanie, Allen’s adult children as none of the allegations related to B.

[55] On February 19, 2019, Marina brought a motion seeking the appointment of the OCL. In that motion, Marina tendered two letters written by B. The first letter was written directly to the court and the second letter was written to Allen. I find that Marina’s decision to allow and encourage her son to write these two letters to be highly improper and indicate a significant lack of judgement regarding her child’s best interests. Marina, as the parent, should never have involved her 13-year-old son in the litigation by writing these letters. This action by Marina was simply wrong.

[56] As agreed before Justice Doyle on February 19, 2019, the father was to have a supervised parenting time on March 2, 2019, by his daughter Melanie. At 11 AM that morning, Melanie arrived at the restaurant for the exchange. She observed B. leaving the car without a knapsack or any belongings. At that time, B. told Melanie that he had to show up at the exchange and did not want to see his father. The visit never took place. I accept Melanie’s evidence that she was shocked as there was a significant change in the child’s demeanour from all previous contacts with him.

[57] By the time the parties appeared before Justice Audet on April 2, 2019, B. had not seen his father since December 28, 2018. On April 5, 2019, Justice Audet found that Marina had engaged parent alienation resulting in the child being placed in the temporary sole custody of Allen with Marina having no access and ordering the parties to attend reunification counsellor with Ms. Janet Claridge.

[58] Ms. Claridge provided one report dated June 28, 2019. She testified trial that when she initially met B. on April 22, 2019, B. said that his father was selfish, his father would ignore him, and his father was like a ruler in his home. He stated his father was a liar and that only his mother tells the truth. At the second interview on May 8, 2019, B. stated that he was depressed but Ms. Claridge found that he showed no signs of depression. He indicated that he now wanted to report to the CAS that his father had molested him, and he did not feel safe in his father’s care. Ms. Claridge did not believe the allegation and found that the allegation was being raised because of the child’s desire to live with his mother and telling someone who, he thought, would do something about it.

[59] When Ms. Claridge met Allen and B. together on May 28, 2019, the child was happy, voiced no concerns about his father, that he and his father discussed house rules and routines and cleared up any misunderstandings. However, when the issue of the court order came up, the child’s demeanour changed and he became upset and that he wanted to make decisions where he would live, that he wanted to live with his mother and that he wanted to decide when he would see his father.

[60] Marina attended her first interview with Ms. Claridge with a Russian interpreter alleging that she only understood half of what was said in English and that she was unable to express herself in English. At her second interview, Marina attended alone. Ms. Claridge found that Marina was able to articulate herself clearly in English and had full comprehension of the discussion. Throughout the two interviews Marina stated that she was the primary caregiver of B. throughout the marriage and that she would agree to a 50-50 custody agreement although she was concerned about Allen’s busy work life and travel requirements. Ms. Claridge also interviewed both of Allen’s older children, the principal and teacher at B.’s school and the family therapist.

[61] Ms. Claridge concluded that although the decision to remove B. full-time from the mother’s care was an initial shock for all concerned, there was evidence to suggest that the child had adjusted. Allen reported that B. had emotional swings from being affectionate and cooperative to defiant of house rules. She reported that the child did not ask to live with his mother unless asked by the CAS or Ms. Claridge herself. School reports that the child’s demeanour showed no signs of depression. She discounted the allegations of inappropriate sexual touching as an attempt to find a way to go live with his mother. She found that over the course of the two interviews with the mother, her position changed from complaining about Allen to be willing to agree that Allen have more time with the child.

[62] Ms. Claridge had four sessions of therapeutic access between the mother and the child on July 19, July 25, July 30, and August 12, 2019. She also saw each parent individually and the child individually from August 1, 2020, to January 27, 2020. She did have a joint meeting with the parents on October 6, 2020, where Marina repeated that there were significant cultural differences between the parents because she was Russian, and Allen was Canadian. Both parties indicated that they would work cooperatively and would attempt to have Allen’s relationship with B. rectified. However, Ms. Claridge testified that she was concerned that the mother wanted to give B. the right to decide when he would see his father and that whatever B. decides, it is out of her control. She never had any contact with the parties after the meeting on October 6, 2020.

[63] Ms. Claridge testified that she was reluctant to restart the counselling because of the significant passage of time. She had last seen B. on January 27, 2020, and the parents on October 6, 2020. She stated that it would be very difficult because of the passage of time as she has no idea what the current circumstances are with respect to the parties and child. She indicated that initially she would meet with the parents and the child to ascertain their willingness to engage. She indicated that throughout her involvement, B. has been reluctant to engage with her in the counselling.

Conclusion

[64] I find that Marina has badmouthed Allen to his son, limited contact between Allen and his son, interfered with their communications, involved the child in the litigation, encouraged a negative view of Allen by their son, made unilateral decisions regarding the child’s education and medical care and has actively interfered with a previously positive relationship to the point that reunification counselling may not repair the current significant rift in the relationship. I find that Marina’s efforts started when she returned to Russia in the summer 2018 because of the change in the child’s behaviour when he returned at the end of July 2018. Over time, Marina sought to align herself with her son against Allen. This continued prior to November 14, 2018, and reached a point that Justice Audet, on a motion, found that Marina had conducted parent alienation by interfering with the father-child relationship requiring her to change the child’s primary caregiver.

[65] I find that when B. was removed from his mother’s care on April 5, 2019, his relationship with his father changed and became more positive. Even so, the evidence of Chris and Melanie indicate that in the summer of 2019, the child was reserved with Allen, Chris, Melanie and their families which was a dramatic change from their relationship prior to separation. During this period of time, the mother did not have any access with the child, and it took until the end of August 2019 for a regular schedule to be implemented. Unfortunately, I find that the more contact that Marina had with B., the more his negative view of Allen slowly returned and continued to the point that in October 2020, B. biked over to his mother’s home for good. Since that time, B. has seen his father on two occasions with the last being September 2021.

[66] While I accept that B. does not want to see his father, I give a little or no weight to his views and preferences as I find it is a vicarious expression of the sentiment of his mother. During the trial, Marina provided evidence that she tried to involve Allen in coming to her home for Thanksgiving. These offers were few and far between and did not reach anywhere near the level needed to repair the strained relationship between the father and his son.

[67] Allen has not helped his relationship with his child by not paying table child support to Marina for B. in October 2020. Allen testified that he would pay retroactive child support but, in my view, this decision only worsened the relationship with B. because I find that the child is aware that his father was not paying child support to his mother. This only aggravated an already difficult situation.

[68] I reject Marina’s request to have a counsellor appointed with a Russian background. The time for such a presentation would have been at the trial. I have decided to reappoint Ms. Claridge as she has had previous experience with the parties. However, the counsellor must be able to develop a rapport with Marina, Allen, and B. For that reason, I will remain seized of this litigation to be able to address any problems that occur with respect to the reunification counselling. If Ms. Claridge is unwilling or unable to act, she is to advise the parties within 30 days of the date of these reasons for judgement. If that occurs, the parties are to attempt to retain and appoint a new reunification counsellor. If the parties cannot agree within 30 days of Ms. Claridge advising as to her unwillingness or inability to become involved, the parties may contact the trial coordinator to schedule a case conference before me.

[69] I order that Marina reimburse Allen for 50% of Ms. Claridge’s costs since she was appointed by Justice Audet in her April 5, 2019, order up to and including the trial. On a go forward basis, I order that the parties will each pay 50% of the reunification counsellor’s fees.

[70] On the parenting issue, I order as follows:

(a) The parties shall share joint decision-making with regards to the child of the marriage, B.

(b) The parent with whom B. is residing at the relevant time shall make the daily decisions affecting his welfare.

(c) Both parties may make inquiries and be given information by B.’s teachers, school officials doctors, dentists, health care providers, summer camp counsellors or others involved with the child. If, for whatever reason, this clause is not sufficient, the parties shall cooperate and execute any required authorization or direction necessary to enforce the intent of this order.

(d) The applicant shall not remove B. from the city of Ottawa without the prior written consent of the respondent or a court order permitting the same.

(e) The parties shall resume their attendance with Janet Claridge (if she is no longer willing or able to act, another professional of her designation) for reunification counselling between B. and Allen. Both parties shall attend all sessions as requested by Ms. Claridge and ensure that B. attends all sessions as requested by Ms. Claridge. Neither party shall withdraw from the process without prior agreement of the parties or court order. The goal of said therapy shall be, to the extent possible, to work towards the shared parenting schedule.

(f) The counsellor appointed shall provide a written report addressed to this court to be provided within four months of the date of the commencement of the reunification counselling. Said report is to provide information as to the status of the reunification counselling.

(g) The parties shall share the cost of the reunification counselling on an equal basis.

(h) The parties shall continue to communicate through Our Family Wizard, the cost of which shall be shared on a pro rata to income basis.

(i) Neither party shall change B.’s name without the other party’s written consent or court order.

(j) B.’s Canadian passport, citizenship card and Russian birth certificate shall be retained by the clerk of the Superior Court to be released either with written consent of both parties or by order of this court.

Child Support

[71] In determining child support, the court must make findings as to the residential arrangements for the child and determine the parties’ respective incomes. I make the following findings of fact with respect to Allen’s income:

(i) 2018, the sum of $226,925.28

(ii) 2019, the sum of $171,232.66

(iii) 2020 the sum of $178,158.

(iv) 2021, the sum of $177,803(subject to confirmation based on disclosure of Allen’s 2021 income tax return and notice of assessment)

(v) 2022, anticipated income of $211,013.

[72] I make the following findings of fact with respect to Marina’s income excluding spousal support:

(i) 2018, the sum of net business income $-2275.

(ii) 2019, the sum of net business income of $-2583, net professional income of $11,860 and social assistance of $3187 for a total net income of $12,464.

(iii) 2020, the sum of net business income of $-1286 and social benefits of $3356.99 for a total of $2070.99.

(iv) 2021, unknown

(v) 2022, Marina agrees to an imputed income of $25,000 as of July 2022.

[73] Marina claims child support retroactive to February 1, 2018. For the year 2018, I reject that submission as the child resided with both parents until November 14, 2018, and Allen assumed all of the expenses. From November 14, 2018 to December 6, 2018, the child resided primarily with Marina and from December 6, 2018 to December 28, 2018, the child lived in a shared custody arrangement.

[74] For the year 2019, the child lived with Marina from January 1 to April 5, 2019, in breach of a valid order. The rest of the year the child lived with Allen. As of April 2019, Marina was obligated to pay child support of $192 per month. I decline to make any order for the year 2019.

[75] In 2020, the child lived primarily with Allen until sometime in October 2020 when he moved to live exclusively with Marina. Allen agrees to pay child support starting October 2020. Based on his income of $178,158, I order Allen to pay to Marina table child support of $1502 per month for each of the months of October, November and December 2020.

[76] In 2021, based on Allen’s income of $177,803, I order Allen to pay table child support to Marina on the first day of each month table child support of $1499 per month. This amount may be reviewed upon the disclosure of Allen’s 2021 income tax return and notice of assessment.

[77] In 2022, Allen anticipates that his income will increase to $211,013. Based on that assumption, I order Allen to pay table child support to Marina in the amount of $1738 per month commencing on January 1, 2022, and on the first day of each month thereafter. This amount will similarly be reviewed once the disclosure of Allen’s 2022 income tax return and notice of assessment are produced.

Validity of the Marriage Contract

[78] Marina seeks to set aside the marriage contract on the ground that she did not understand the nature or consequences of the domestic contract and that she signed the agreement under duress. She seeks spousal support and equalization of the net family property.

Legislative and jurisprudential framework

[79] Section 52 of the Family Law Act, R.S.O. 1990, c. F.3, provides that two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the amendment or dissolution of the marriage or on death, including;

(a) Ownership in or division of property;

(b) Support obligations;

(c) The right to direct the education and moral training of their children but not the right to custody of or access to their children; and

(d) Any other matter in the settlement of their affairs.

[80] Section 56(4) of the Family Law Act, provides 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.

[81] It is a two-part process to set aside a marriage contract under s.56(4) of the Family Law Act. The first stage requires the court to consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. If such a finding is made, the court moves to the second stage to consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. Levan v. Levan, 2008 ONCA 388.Virc v. Blair 2014 ONCA 392.

[82] The burden of proof is on the party seeking to set aside the domestic agreement. Dougherty v. Dougherty 2008 ONSC 302 para. 11.

[83] When one party to a domestic contract is self-represented, although independent legal advice is not a prerequisite to a valid domestic contract, the absence of such advice may result in that person not appreciating the nature and effect of an agreement. In those circumstances, the court should take a long hard look at such agreements to confirm that the self-represented party knew what he was doing and did so voluntarily. Stewart v. Foreman, 2005 ONCJ 193.

[84] To determine if a party did not understand the nature or consequences of an agreement, the court must examine the circumstances at the time of the execution of the agreement to conclude whether or not the applicant understood the fundamental nature of the agreement and the effect or impact of the terms of the agreement. Faiello v Faiello 2019 ONCA 710.

[85] 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. Harnett v Harnett 2014 ONSC 359.

The marriage contract

[86] The agreement provided that upon a separation there would be no division of property, but Allen would pay both periodic and a lump sum amount of support depending how long the parties cohabitated. In paragraph 2 of the marriage contract, the parties agreed, inter alia, that, upon separation, their intent was to keep their financial affairs separate. Marina acknowledged that she was not interrupting any career plans by moving to Canada and had no current plans to pursue a course of education. Allen agreed to offer any assistance to Marina in the event that she wished to engage in any educational pursuits during their marriage provided it was for the purpose of securing part or full-time employment.

[87] The marriage contract contained the following relevant paragraphs:

2. BACKGROUND

The following items set out some of the background information to this Contract.

2.1 Allan currently resides in the City of Ottawa, in the Province of Ontario.

2.2 Marina currently resides in Volgograd, Russia.

2.3 Allen is employed as a Trustee in Bankruptcy. He has an ownership interest in D. &. A. MacLeod Company Ltd. as set out in the financial disclosure that has been exchanged prior to the execution of this Agreement. Allen draws an annual salary from D&A MacLeod Co. Ltd. which is reflected in his personal income tax returns. He estimates that his current income from salary is One Hundred Thousand ($100,000.00) Dollars per annum, and further estimates retained earnings in the corporation to be approximately Fifty Thousand ($50,000.00) Dollars per annum.

2.4 Marina has operated a travel business in Russia. She recently disposed of her travel business in Moscow and has moved to Volgograd. She is not currently employed, and lives with her family in Russia.

2.5 Marina has a child of a previous marriage, namely S.XXX, born XXX 1994.

2.6 Allen and Marina are parents of a child, namely B.XXX born on XXX 2005.

2.7 Allen and Marina intend to have Marina immigrate to Canada following their marriage. Allen intends on sponsoring Marina in an attempt to assist her in obtaining permanent residence status.

2.8 Allen and Marina have discussed how they wish to arrange their financial affairs in light of their upcoming marriage. Both have decided that, upon separation, they intend to keep their financial affairs separate. They intend to govern their affairs together based on the knowledge and understanding that in the event of a separation, assets will be divided by title only. They intend that their Wills govern the division of property in the event of their deaths. They intend, by this Agreement, to ensure that the Ontario legislation or the legislation of any other jurisdiction will not have a role to play in determining their respective rights and obligations vis a vis division of property.

2.9 It is acknowledged by both parties that Allen and Marina first discussed the possibility of marriage in 2004. Allen and Marina have discussed signing a Marriage Contract providing for a separation of financial affairs on several occasions over the last two and a half years.

2.10 It is acknowledged that Marina has engaged the services of a professional translator to assist her in understanding the terms of this Agreement.

2.11 Marina acknowledges that she is not interrupting any career plans by moving to Canada. She has no current plans to pursue a course of education.

2.12 Allen will offer his assistance to support Marina in the event that she wishes to engage in any educational pursuits during their marriage provided it for the purpose of securing part or full time employment.

2.13 Subject to the provisions of this Contract, the parties intend that upon a separation, each will be deemed to be financially independent and will not claim spousal support against one another.

2.14 In contemplation of their having a family together, the parties have considered their rights and obligation to support children under the Federal Child Support Guidelines of Ontario (“the Guidelines”). Both parties commit to supporting the children in accordance with the terms of the Guidelines in the event of a separation. Having regard to Allen’s income, the table amount set out in the Guidelines has been specifically contemplated by the parties in arriving at their decision to separate financial affaires and, subject to the terms in this Contract, to waive spousal support from one another.

6. FINANCIAL PROVISION IN THE EVENT OF SEPARATION

6.1 If a breakdown of the marriage occurs during the primary period, then Allen shall pay Marina periodic spousal support of One Thousand, Two Hundred, and Fifty ($1,250.00) Dollars per month, for a period of five (5) years. Allen will, in addition, provide Marina a lump sum payment of Twenty Thousand ($20,000.00) Dollars.

6.2 If a breakdown of the marriage occurs during the secondary period, then Allen shall pay Marina a lump sum spousal support payment of One Hundred Thousand ($100,000.00) Dollars. He will, in addition, provide Marina periodic support of One Thousand, five Hundred ($1,500.00) Dollars per month for a period of six (6) years.

6.3 If a breakdown of the marriage occurs during the tertiary period, then Allen shall pay Marina a lump sum spousal support payment of One Hundred and Fifty Thousand ($150,000.00) Dollars. He will, in addition, pay her sufficient periodic spousal support so that her combined Total Income will be Thirty-six Thousand ($36,000.00) Dollars per year (inclusive of spousal support, interest income and employment income). This support will be provided for a period of seven (7) years.

6.4 The parties agree that if the payments set out in paragraph 6.1 to 6.3 of this Agreement would cause Allen financial hardship due to, for example, financial reversal, or any other matters currently unforeseen, Allen alone reserves the right, to seek to have paragraph 6 and 7 of this Agreement declared null and void, and of no legal effect. In the event that the parties are unable to agree as to whether Allen has suffered a financial hardship, that question shall be referred to a court of competent jurisdiction (or another arbitrator if the parties agree) for determination. The court or arbitrator’s sole function will be to rule on whether Allen has suffered hardship in nature to allow him to escape provisions of paragraph 6.1 to 6.3 above. In determining this question the court or arbitrator shall have regard to the following factors:

(a) Allen’s ability to pay;

(b) Marina’s needs;

(c) Any rights Marina has released by virtue of the execution of this Agreement;

(d) What entitlement Marina would have had to spousal support under the Divorce Act, had the Agreement not been signed.

6.5 The parties agree that in the event the court/arbitrator rules that Allen has a suffered financial hardship or, alternatively, the parties mutually agree that Allen has suffered financial hardship, then paragraph 6 and 7 of this Agreement will be deemed null and void. It is agreed that any such determination will not affect any of the other provisions of this Agreement and the other provisions in this Agreement shall continue in full force and effect. Upon a determination that Allen is unable to comply with the terms of paragraph 6 due to financial hardship, Marina’s right to spousal support will be governed by the provisions of the Divorce Act.

7. SPOUSAL SUPPORT RELEASE

7.1 Subject to compliance with paragraph 6 above, each party waves and releases any claim they may have or may later acquiree under the Family Law Act, the Divorce Act or any other legislation to claim permanent or interim spousal support against one another. Allen and Marina know that their financial circumstances, health, employment or the cost of living may change. They may be unable to work for various reasons or earn less than they expect. These changes may be catastrophic, unanticipated or beyond imagining. Nevertheless, no change will ever entitle Allen or Marina to spousal support form the other.

7.2 Allen and Marina do not want any court to order a change in which deviates from or overrides the terms of this Agreement, especially this release. Marina and Allen want the court to uphold this Agreement in its entirety because they are basing their future lives upon this release.

7.3 Each of the parties has obtained independent legal advice specifically with respect to the issue of spousal support and is satisfied that this release be binding upon them notwithstanding any circumstances that may happen during the course of their marriage and upon their separation.

Ground #1-Did Marina understand the nature or consequences of the domestic contract?

Marina’s evidence

[88] Marina’s evidence is that Allen did not raise the issue of the marriage contract until May or June 2007. Marina’s evidence is that when she received the email from Allen on June 25, 2007, she remembers receiving the email but did not take the marriage contract seriously. She questioned why Allen needed such a contract. She said she was in love, that the contract was important to Allen, but she did not think it was important.

[89] Marina acknowledges receiving the Schedule A indicating the value of Allen’s assets and liabilities in Canadian dollars and Russian rubles. She found that Allen was simply trying to impress her by setting out the schedule of his assets to show that he was rich. She indicates she did not recognize or understand many terms including “snowblower”, “miscellaneous”, “capital gains” and a “T-1” included in Schedule A. She acknowledges she understood certain parts but did not understand any of the legal references to the Family Law Act. She looked through the contract but did not examine it in detail. She did recognize that her son S.’s birthday was incorrectly stated and mentioned it to Allen. She testified the marriage contract was never translated into Russian and she received no help from any third person to translate contents of the contract to her. She was not advised to seek or obtain independent legal advice. She testified that Allen told her that she did not need to worry about the contract.

[90] She said she signed the marriage contract on July 2, 2007, witnessed by her father and faxed to Allen. Marina admitted that her mother advised her not to sign the marriage contract, but she testified she was in love and wanted to marry the man she loved and the father of her child, B.

[91] Finally, she testified that Allen told her on the phone that if she did not sign the marriage contract, the wedding would be cancelled. She does remember the exact date he told her that, but it was before he flew to Volgograd on July 5, 2007. Marina admitted that Allen told her that they could reschedule the marriage, but she did not want to delay the marriage because she wanted to get married on July 7, 2007, or 07/07/07. That sequence of numbers was very important to Marina.

Allen’s evidence

[92] When Allen met Marina in 2004, he had separated after a long marriage to his first wife. He advised Marina that he wanted to protect his assets, he knew that she had no assets and that he was aware that he was at risk if there was a separation. Allen had inherited a substantial sum of money from his parents and wanted to ensure that those assets not be jeopardized including his own assets.

[93] I accept Allen’s evidence that from the early parts of their relationship, Allen advised Marina that he would not marry unless there was a marriage contract to protect his assets. Allen testified that they both agreed that there would be no more children and that Marina would take courses to work and that she would eventually become employed. Allen agreed to pay spousal support and provide a lump sum in addition, based on the length of cohabitation. Allen indicated that there would be no division of property. Allen was aware that Marina was coming to Canada without any employment and that, at least for the short term, she would be totally reliant upon him for her income and expenses.

[94] Allen had the domestic contract prepared by an Ottawa family law lawyer, in May 2007. Allen testified that he thought that the lawyer would arrange for Marina to obtain independent legal advice on Ontario family law at the Gowlings Moscow office. This never happened because of a breakdown in the communication between Allen and his lawyer. Allen testified that once he found out, he had the domestic contract translated into Russian in Ottawa. Allen could not produce the Russian version of the marriage contract but was able to recall that the contract was translated by Fox Translations in Ottawa. He testified he approached the company and was advised that they had no records going back to 2007.

[95] On June 25, 2007, Allen sent an email to Marina at 7:56 PM, Ottawa time, attaching Schedule A which included a list of his assets, liabilities, and income for the last three years. He indicated that he was sending the information to her, as discussed, so that she would know his financial status before executing the marriage contract. He proposed to send the marriage contract next. At 8:06 PM, the same day, Allen forwarded the marriage contract.

[96] On June 27, 2007, at 9 PM, Allen sent Marina an email where he indicated that he attended at the Russian Embassy to have signed and sealed his certificate of divorce, a notarized copy by his lawyer of his passport and a declaration with his birthdate in the agreement as the marriage office requested. Further, the email contained the following:

Marina, I was glad we took the time this morning to review the marriage contract and discuss its contents. I want us both to be absolutely certain that the marriage contract is what we both agree to and that you have no reservations or concerns with the it. It was very important to me after we discussed the marriage contract to have you tell me this morning you agree with the content; the division of property and support which I would pay the event of marriage breakdown.

I know discussion of the marriage breakdown seems so negative and therefore it difficult to address especially since we both believe (and I would not have asked you to marry me otherwise and I know you would not have accepted) we will be together forever. As we talked this morning, and we talked, we discussed about when we first thought about the possibility of getting married over two and one half years ago and telling you then I was at a stage in my life or having gone through a marriage breakdown once, I could not jeopardize my assets at this stage of my life and planning for my retirement and old-age for either myself and my children, even if it meant I had to be alone.

That this was the reason I told you I needed a marriage contract as there would be too much financial jeopardy otherwise. I asked Rima back then to also explain my reasons to you in Russian, so that you understood I would not marry anyone without having a marriage contract. I did not want, in any way, to mislead you by not telling you about my need for a marriage contract and surprise you later with this condition if we were to marry.

It will be nice to put this business part of our marriage behind us.

[97] On June 28, 2007, Marina sent an email to Allen that stated the following:

Hello my dear Allen

I just finished to read our marriage contract in Russian. Now I understand very clearly all the clauses of this document. As we talked about our marriage earlier in 2004. You and I have discussed signing a Marriage Contract providing for a separation of financial affairs on several occasions over the last two and one half years. I promise you that I don’t lay claim to your house and I waives all rights and entitlement and releases and discharges you and your estate from any claims. I don’t want any the shares or value of Allen’s interest in his companies.

I agree with clause 9.1 and 9.2 that “the family residence is owned by Allen in his name alone and that the family residence will remain the property of Allen in the event of a separation and shall be specifically excluded from the calculation of his net family property” if we’ll have breakdown of our marriage

I’m appreciate your wish to give me financial support in the event of separation.

Also I’m very glad that S, my elder son will live with us together in Canada and you will treat him with the utmost respect. You wish to develop a relationship with him over time.

But I’d like to ask one question about S. If something will happen with me after we’ll lived together and I’ll get death. Who will support S until his 21 years old. Does he need come back to Volgograd to his grandparents or he’ll live with you and family?

Allen I think you understand my worries about S because he’s not adult and I’d like to know about his future. I need to be sure he’ll be in good hands even without me.

At the end I’d like to tell you I agree with this document and acknowledge that the terms of this contract are fair and reasonable. I wish signing it voluntarily.

Love you with all my heart,

Yours Marina

[98] Marina denies writing this email.

[99] On June 28, 2007, at 4:12 PM, Allen sent an email to Marina that he would care for S. and look after him until he became an adult or finished his education. Further, he stated that “I am sorry Marina I did not consider this, and I will amend the agreement”. On July 1, 2007, at 3:12 PM, Allen emailed Marina the final version of the marriage contract that corrected a few grammatical errors including the birthdate.

[100] On July 2, 2007, at 2:29 PM, Marina sent Allen an email that said:

Hi my Lovie

I just wish to say you “I’m waiting for you herewith big excitement when I’ll hold you and kiss you again, my Allen.

Send you a contract page with my signature.

Kisses… hugs…

love, your woman,

Marina

[101] On July 5, 2007, Allen, Christopher, and Melanie flew to Volgograd, Russia. On July 6, 2007, Allen signed the domestic contract at Marina’s home. The parties attended the wedding ceremony on July 7, 2007. Allen, Christopher, Melanie, Marina, and her family as well as her two children went on a vacation. After approximately a week to 10 days, Christopher and Melanie returned to Canada. Allen returned at the end of July 2007.

[102] Allen then undertook the process of having Marina, B, and S. emigrate to Canada which occurred in August 2008.

Analysis

[103] I find that Allen raised the issue of having a marriage contract early in the relationship and that he always maintained that he told Marina that if they married, he would need a marriage contract. I find that the parties discussed the terms of the marriage contract when Marina lived with Allen from December 2004 to May 2005. I accept the evidence of Rima Aristocrat who testified she discussed with Allen’s need for a marriage contract when she studied at the Willis Business College in 2005. I accept the evidence of Ms. Aristocrat that on November 14, 2018, Marina approached her at the business dinner and asked her not to disclose their discussion about the marriage contract in 2005. I find that when the parties reconciled in late 2005, both parties were aware of the terms. However, the marriage contract was not as a result of any negotiation of the terms between the parties. The terms were set by Allen.

[104] I find that Marina sent the email to Allen on June 28, 2007, where she indicated that she had reviewed the marriage contract that was translated into Russian and made suggestions regarding changes. I find that most of the language in that email is consistent with Marina’s other emails and that the reference to paragraph 9.1 and 9.2 of the agreement is simply a re-copying of the paragraphs. Further, it makes no sense that Allen would dictate to Marina the contents of the email where Marina raised the concern about support for her older child, S. if she were to die.

[105] I find that Allen was aware that independent legal advice was an important factor and for that reason he had the marriage contract translated into Russian. The marriage contract provided a certificate of independent legal advice which was completed by Allen but not by Marina. Further, the marriage contract had specific provisions regarding independent legal advice with respect to the spousal support provisions of the marriage contract. Specifically, paragraph 7.3 of the marriage contract provided:

7.3 Each of the parties has obtained independent legal advice specifically with respect to the issue of spousal support and is satisfied that this release be binding upon them notwithstanding any circumstance that may happen during the course of their marriage and upon their separation.

[106] I accept that Allen was prepared to delay the wedding so that Marina could review the marriage contract. When Marina signed the marriage contract, Allen went ahead with the wedding. While Marina had operated a travel agency for three years, she had no legal background and had studied English in high school and attended a course at the Willis Business College. Despite the marriage contract being completed in May 2007, Marina only received it two weeks before the wedding. Allen never advised Marina that she needed independent legal advice and never arranged for her to have such advice.

[107] Independent legal advice is not an essential requirement to have a valid domestic contract. The purpose of independent legal advice is to advise a party of their rights and obligations in relation to a proposed domestic contract. It is only after a party receives that information can a party make an informed decision about the advisability of entering into the domestic contract. When a person does not receive independent legal advice, the issue of a person’s understanding of the nature or consequences of a domestic contract must be very carefully scrutinized by a trial court.

[108] I find that Marina read the agreement, translated into Russian, and that she understood the terms in a general sense regarding support and property, but she had no understanding of any reference to the Divorce Act, the Family Law Act, equalization of the net family property or any technical terms set out in the contract. The agreement was structured that Marina would receive independent legal advice for the entire agreement and specific independent legal advice regarding the spousal support provision. In paragraph 2.10 of the marriage contract, it states “it is acknowledged that Marina engaged the services of a professional translator to assist her in understanding the terms of this agreement”. Marina never engaged a professional translator but rather Allen had the marriage contract translated into Russian.

[109] I find that:

(a) Marina did not have any idea as to her rights and obligation to support children under the Federal Child Support Guidelines of Ontario as set out in paragraph 2.14 of the marriage contract. As such, she signed the agreement not knowing what that law provided.

(b) Marina did not have any idea as to her rights were with respect to the division of property under the Ontario law.

(c) Marina did not have any idea as to her rights to spousal support upon separation and signed the agreement not having general independent legal advice nor the specific independent legal advice required in paragraph 7.3 regarding spousal support.

[110] I find that Marina did not understand the nature or consequences of the marriage contract that she signed. I find that Marina has met her burden of proving that she did not understand the nature or consequences of the agreement pursuant to section 56 (4)(b) of the Family Law Act.

Ground # 2 - Did Marina sign the domestic contract under duress?

[111] At common law, a domestic contract, like other contracts, can be set aside for: unconscionability, undue influence, mistake, repudiation, duress and misrepresentation. Toscano v. Toscano, 2015 ONSC 487, para. 62.

[112] Duress is the coercion of a person’s will through illegitimate pressure, with one party dominating the will of another at the time that a contract is executed. Ramdial v. Davis 2015 ONCA 728 para.42.

[113] I find that it was Marina who insisted on marrying on 07/07/07, which she found to be a very special day because of the significance of the three number sevens. I find that Allen told Marina from early in their relationship that if they married, he would insist on a marriage contract to protect his assets. I find that Allen did not put any pressure on Marina to sign the marriage contract otherwise he would not marry her. He did say that if she wanted more time, the wedding on July 7, 2007, could be delayed and he would pay the cost to any out-of-pocket expenses. I do not find that there is any evidence that Allen applied pressure, coerced, or left Marina with no practical choice but to sign the contract. To the contrary, he was quite clear that if she needed more time, he would delay the wedding. I find that it was Marina who insisted on proceeding and she cannot now submit that she was under duress to sign the marriage contract. I find that Marina willingly signed the marriage contract.

Should the court exercise it’s discretion to set aside the Marriage Contract?

[114] As I have found that Marina did not understand the nature or consequences of the marriage contract, the contract is not automatically a nullity. I must exercise my discretion to determine whether it is appropriate, in the circumstances, to order that the contract be set aside.

[115] I find that the marriage contract must be set aside. By signing the marriage contract, Allen and Marina were opting out of the spousal support provisions of the Divorce Act and the equalization provisions of the Family Law Act. While Allen had the opportunity to have the agreement drafted by his lawyer and that his lawyer explained the terms to Allen, Marina did not have independent legal advice, was unaware of her rights and obligations to both spousal support and an equalization of the net family property and, in my view, clearly did not understand the nature or consequences of this contract.

Equalization of the Net Family Property

[116] At the beginning of the trial, I granted Marina leave to amend her application to seek an unequal division of the net family property. In closing submissions, Marina submitted that she would receive $22,500 as an equalization payment. Allen’s initial position was that the equalization payment payable by Allen to Marina was $230,244.65. However, that figure was based on Allen including deductions for notional costs of disposition without any expert evidence to support the calculations. During Allen’s submissions, Marina’s counsel advised that he was withdrawing his submission with respect to the equalization payment because he had made an error in the calculation of the net family property. I permitted Marina to withdraw that submission.

[117] Upon the resumption of the trial on February 14, 2022, Allen filed a revised net family property calculation and submitted that the new amount was $289,170.15 as an equalization payment. The change in the figures was based on Allen deciding not to pursue a claim for notional costs of disposition. Marina accepted that figure.

[118] While the parties agree on the equalization payment of $289,170.15, Allen submits that pursuant to Rule 1(8)(b) of the Family Law Rules, the court should dismiss Marina’s claim for an equalization payment because she blatantly disregarded the order of Justice Doyle to have all her jewelry appraised. Marina acknowledged that she did not comply with that order. I agree with Allen that court orders are not suggestions and that the court should not condone Marina’s failure to have her jewelry appraised. However, I do not find that dismissing Marina’s entitlement to an equalization payment is the proper approach. I find that despite Marina testifying she only had approximately $5000 worth of jewelry, by accepting Allen’s equalization payment calculation, she acknowledged that she retained $117,900.74 for jewelry and not $5000. This acknowledgement reduced the equalization payment owing by Allen to Marina by $58,950.37. Secondly, dismissing Marina’s entitlement to an equalization payment is disproportionate to the breach. I find it excessive to dismiss Marina’s entitlement to an equalization payment of $289,170.15 because she failed to appraise her jewelry when, in the end, she accepted Allen’s value. Finally, the issue of Marina’s failure to comply with valid court orders is a factor that a court may consider in any cost award.

[119] I order Allen to pay to Marina an equalization payment of $289,170.15 less the three cost awards totalling $40,575.51 plus interest. I order the parties to calculate such interest. I order that Marina shall reimburse Allen for 50% of the fees incurred by Janet Claridge services up to and including the conclusion of this trial. Said some to be deducted from her equalization payment.

Spousal Support

[120] In Marina’s application, she sought an order that Allen pay spousal support pursuant to the Spousal Support Advisory Guidelines (“SSAG”), including retroactive support from the date of separation, an order requiring Allen to maintain life insurance in an amount to be determined by the court with Marina designated as the sole the irrevocable beneficiary as security with respect to his child support and spousal support obligations and that the spousal support be indexed.

[121] At this trial, Marina no longer sought retroactive or prospective spousal support but rather sought a lump sum payment of spousal support in the amount of $450,000 less unpaid costs towards as follows:

(a) $4,000 as per the order of Justice Doyle dated January 31, 2019, plus post-judgment interest at the rate of 3% from the date of the order.

(b) $32,055.51 as per the order of Justice Audet dated May 30, 2019, plus post-judgment interest at the rate of 3% from the date of the order.

(c) $4,520 on account of unpaid costs arising out of the applicant’s motion for leave to appeal to the Divisional Court.

[122] Allen’s position, in the event the marriage contract was set aside, is that Allen should pay periodic support for seven years from April 1, 2019, to March 31, 2026, at the low end of the SSAG’s. Allen submits that Marina should be imputed an income of $40,000 starting in 2022.

Legislative framework

[123] The Divorce Act provides that in making an order for spousal support, the court shall consider the following:

15.2 Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited.

(b) the functions performed by each spouse during cohabitation.

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage.

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[124] The trial judge is required to consider the facts relevant to making a spousal support award on the facts of each case and exercise his or her discretion to determine whether a lump sum award is appropriate and the appropriate quantum of such an award. Davis v. Crawford 2011 ONCA 294.

Analysis

[125] At the date of marriage, Marina was 38 years of age and Allen was 54 years of age. Allen agreed to sponsor Marina to come to Canada with her two sons S. and B. It was Allen’s understanding that Marina would come to Canada and eventually start working. Marina came to Canada in August 2008. She studied English as a second language and then completed a diploma in fashion design studies at the Richard Robinson Fashion Design Academy from 2011 to 2013. In 2013, she opened Marina MacLeod Fashion which operated from October 2013 until November 2017. This business is still open but is effectively dormant. For that reason, she has studied in 2021 to become a style coach with a potential income stream between £30,000 and £50,000 per year based on the testimony of her London, England style coach.

[126] When Marina emigrated to Canada in August 2008, Allen was a successful trustee in bankruptcy. Marina worked in Allen’s business for a very short period of time. Marina had no involvement in Allen’s business. Marina never earned significant income with Marina MacLeod Fashion before separation. Marina, Allen’s and B.’s, expenses were all funded by Allen’s income.

[127] While it may have been the parties understanding that Marina would attempt to be self-employed, her efforts did not produce that result and she was reliant upon Allen for her income and expenses. Allen supported Marina in her education firstly in learning English as a second language then at the Richard Robinson program and in her opening her own business. However, Marina never earned much income once she became self-employed. Allen’s income provided the family with a very good lifestyle which included trips, cruises, fine restaurants and the purchase of expensive jewelry for Marina.

[128] Allen’s career and business were all in existence prior to the marriage and the situation continued until separation. However, I find that Marina has an entitlement to some compensatory support because when she came to Canada in August 2008, B. was not yet three years of age. While she took courses, she was responsible to care for the child as Allen worked long hours. I find that Marina also has a needs-based entitlement to spousal support because she cannot maintain the same standard of living to which she was accustomed while living with Allen.

[129] Marina seeks a lump sum payment of $450,000 based on the lifestyle of the parties, that the child resides with her, that Allen has substantial assets, that Allen is not in good health and that Allen has no succession plan. Marina did not provide any expert evidence on the calculation of the sum of $450,000. However, Marina did provide a Divorcemate Spousal Support Lump Sum calculation which indicates that based on Allen earning $211,013, Marina having an imputed income of $25,000, 10.5 years of cohabitation with the recipient age 49 at the date of separation, and the support having a duration of 7 years, the SSAG recommend a range of spousal support would be from $3,805 (low), $4,432 (mid) and $5,042(high) for an indefinite (unspecified) duration, subject to variation and possible review, with a minimum duration of 5.25 years and a maximum duration of 10.5 years from the date of separation. Based on those amounts, the DivorceMate spousal support lump sum calculation provides that the range of lump sum payments would vary as follows:

Low Mid High

Allen’s after-tax cost $184,869 $215,538 $246,870

Marina’s after-tax benefit $256,241 $296,850 $337,459

Midpoint $220,555 $256,194 $292,164

[130] I reject Marina’s submission that a lump sum payment of $450,000 is appropriate. Firstly, there is no evidence that Allen will not honour an order for periodic support. He has been paying such an order since April 2019. Secondly, there is no evidence that Allen’s financial situation is precarious. Thirdly, I do not find that Marina is entitled to retroactive support prior to April 2019. Fourthly, there is no evidence that Marina requires capital. According to her financial statement dated March 8, 2022, she has total debts of $13,472.79 and has completed her retraining. Fifthly, Marina indicates she will be living in Canada as B, wishes to remain in Canada. A periodic amount will provide her with a steady source of income to make address her needs. Finally, even if I was going to consider a lump sum payment, there is no evidence to support the claim of $450,000. Marina’s own DivorceMate calculation do not support that amount.

[131] I find that there is no reason why Marina could not have obtained some type of employment since the parties decided to separate on February 1, 2018. While I understand that the parties were negotiating with lawyers after February 1, 2018, in August 2018, Marina commenced these proceedings seeking spousal support. Despite that request, other than limited work at the end of 2019 and the online course taken in 2021, she has not looked for work. There is no evidence that Marina suffers from any medical issue that prevents her from work. I find that she speaks English quite well and is an intelligent woman. Marina had an obligation after separation especially after the commencement of proceedings to actively seek employment. She has not done anything to attempt to become self-sufficient. I find it is appropriate to impute an income to Marina.

[132] In determining an amount to impute, the court must have some evidentiary basis. Allen’s position was that Marina should be imputed an income of $40,000 and that she should receive the low end of the SSAG based on her age, lack of employment and her post separation conduct. Marina submits that she should have an imputed income of $25,000 but starting in July 2022.

[133] I reject Allen’s submission that Marina should have an imputed income of $40,000 because she has never earned that level of income since coming to Canada in 2008. I accept that Marina anticipates earning income in her new career as a style coach however, she just completed her course and will need time to create a client base to produce income. I reject Marina’s submission that she should have imputed income of $25,000 as of July 2022 because she should have been working by the year 2020. I impute an income of $30,000 to Marina commencing January 1, 2022, being the minimum wage in the province of Ontario.

[134] While Marina provided calculations for child support commencing February 2018 to date, Marina did not provide any DivorceMate calculations or provide any submissions regarding the quantum of spousal support retroactive to February 2018. Since April 2019, Allen has been paying spousal support to Marina. There was no evidence provided that this sum was insufficient for her to meet her needs. Marina made no submissions for periodic retroactive support other than the lump sum claim which I have rejected.

[135] As I have imputed income of $30,000 to Marina, I have prepared DivorceMate calculations attached as Schedule A to these reasons for judgement, that indicate that the range of monthly spousal support is $3,636 (low), $4,253 (mid) and $4,885 (high). Allen submits that Marina’s spousal support should be at the low-end of the SSAG because of Marina’s age, 53, her lack of employment efforts and her post-separation conduct by alienating B.

[136] On the issue of spousal misconduct, in Racco v. Racco 2014 ONCA 330, Benotto J.A. stated at paragraph 29:

29. …Section 15.2 (5) of the Divorce Act requires that the court not take into consideration “any misconduct of a spouse in relation to the marriage.” The misconduct referred to in this section is specified as misconduct in relation to the marriage. It does not preclude a court from considering relevant misconduct outside the marriage. Consequently, I see no error in the trial judge considering the appellant’s criminal conduct which led to economic hardship for the respondent. By referring to the appellant’s conduct, the trial judge did not contravene section 15.2(5)

[137] In Cantave v Cantave 2014 ONSC 5207, Smith J., found that the father had alienated the children from their mother, that the father’s conduct was inappropriate conduct after the marriage and that was a factor in awarding the father the low-end of the SSAG. In my view, Marina’s alienation started in 2018 after the parties decided to separate. She continued to interfere with Allen’s relationship until the child moved to live with her full time in October 2020. I have found that this conduct amounted to alienation. I find that this was inappropriate and that it is conduct that I will consider in determining the range of spousal support.

[138] The SSAG indicate that the maximum duration of spousal support is 10.5 years from the date of separation. Marina’s lump sum calculation was based on Marina receiving spousal support for seven years. Allen’s submission was that Marina should receive support for seven years. Marina has been receiving spousal support since April 2019. She anticipates that she will be successful as a style coach and that she will be able to earn anywhere between £30,000 and £50,000 per year. I find it fair and appropriate that Marina should receive spousal support for a period of seven years ending on March 1, 2026.

[139] I have reviewed Marina’s financial statement sworn March 8, 2022, which indicates that her total monthly expenses are $6,664.91. I find that an imputed monthly income of $2,500 per month, a payment of $3,636 per month as spousal support plus child support of $1,738 per month will provide Marina with the net disposable income of approximately $7,000 a month which will surpass her current monthly expenses.

[140] Consequently, commencing on January 1, 2022, and on the first day of each month thereafter up to and including March 1, 2026, I order Allen to pay to Marina spousal support in the amount of $3,636 per month subject to variation in the event of a material change in circumstance. Costs

[141] On the issue of costs, I request the parties attempt to settle the issue by May 6, 2022. If they are unable to do so, I request that Marina provide her cost submissions by May 13, 2022, with said submissions limited to four pages plus a detailed bill of costs and any offers to settle. I order Allen to provide his costs submissions by May 27, 2022, with said submissions limited to four pages plus a detailed bill of costs and any offers to settle. Marina may file reply submissions limited to two pages by June 3, 2022.

Mr. Justice Mark Shelston

Released: April 22, 2022

COURT FILE NO.: FC-18-1678

DATE: 2022/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marina MacLeod

Applicant

– and –

Allen Wayne MacLeod

Respondent

REASONS FOR judgment

Shelston J.

Released: April 22, 2022