COURT FILE NO.: FS-08-00007251-0001

DATE: 20220630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNA MARIA FIORITO

Applicant

– and –

JEFFERSON ROSS JOHN WIGGINS

Respondent

Luigi DiPierdomenico, for the applicant

Brian Ludmer, for the respondent

HEARD (by videoconference): November 12, 2020, January 15, 2021, and March 16, 2021, and April 13, 2022

REASONS FOR JUDGMENT

HOWARD J.

Overview

[1] The parties here are no strangers to litigation. Far from it.

[2] Indeed, the parties here are very experienced litigants.

[3] The parties here been involved in, inter alia, protracted custody and access litigation for over a decade. They have had at least four trials or trial-type proceedings.

[4] As well, they have been to the Court of Appeal for Ontario twice, at least so far.

[5] And their issues have made their way to the Supreme Court of Canada at least once.

[6] In particular, the parties conducted a lengthy trial in 2010, over custody of their three children, which spanned 22 days of hearing, culminating in the reasons for judgment of Harper J. released June 27, 2011.[^1]

[7] Then, in 2013, Harper J. presided over a 23-day review of his custody and access order of June 27, 2011, resulting in his decision of June 28, 2013.[^2]

[8] That was followed by a costs decision in which Harper J. ordered the applicant mother to pay $400,000 in costs to the respondent father.[^3]

[9] The 2013 review by Harper J. and the related orders were appealed by the applicant mother to the Court of Appeal for Ontario, which appeal, in effect, sought to appeal both the 2011 and 2013 decisions. At the outset of the Court of Appeal’s decision on the matter, released October 30, 2015, the Court of Appeal paused to make the following comments, which are worth repeating here:

Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.[^4] [Emphasis supplied.]

[10] Further to the direction of the Court of Appeal, an access review was conducted by Hebner J. in February 2016, with reasons released June 14, 2016.[^5]

[11] Madam Justice Hebner then also heard contempt and related enforcement motions later in the summer of 2016, resulting in her decision of September 23, 2016.[^6]

[12] The decision of Hebner J. of September 23, 2016, was appealed to the Court of Appeal by the applicant mother, and the Court of Appeal dismissed the applicant mother’s appeal by decision released October 4, 2017, with costs payable by the applicant mother to the respondent husband in the amount of $25,000.[^7]

[13] The applicant mother then sought leave to appeal the 2017 decision of the Court of Appeal to the Supreme Court of Canada. On August 9, 2018, the Supreme Court refused leave to appeal without reasons and dismissed the applicant mother’s application.[^8]

[14] A comprehensive review of the extensive litigation history between these two parties is detailed in the 2016 access review decision of Hebner J., released June 14, 2016.[^9] And I have not even touched on the multitude of interlocutory motions brought by the parties.

[15] In sum, these folks have pretty much availed themselves of every judicial resource available to them. And then some. They have had their day in court. And then some.

[16] Following the two custody and access trials before Harper J. in 2011 and 2013, the parties engaged in a process of financial disclosure from the fall of 2013 through to September 2014. Subsequently, on October 6 and 7, 2014, the parties and their respective legal counsel and financial advisors attended a two-day settlement conference before Bondy J. and resolved, on a final basis, the issues of retroactive child support debits and credits, equalization, and all other property and financial issues. In accordance with the two sets of minutes of settlement that were signed over those two days, a final order dated October 7, 2014, was issued.

[17] And so, in the next iteration of the parties’ ongoing litigation saga, the applicant mother now brings this motion to change the final order of Bondy J. dated October 7, 2014 (the “Bondy Order”).

[18] The applicant mother seeks to have certain provisions of the Bondy Order set aside and varied. She challenges the child support quantum. The applicant mother also requests expungement of all arrears of child support prior to 2018 and reduction of her child support obligation as of January 1, 2018.

[19] As such, the central issue here is whether the applicant mother has satisfied her onus of establishing that the child support and related provisions of the Bondy Order should be set aside and varied on the basis that the order contains a mistake or fails to deal with a matter that ought to have been determined, that she did not understand the nature or consequences of the minutes of settlement that she executed, or that the executed minutes or the Bondy Order are otherwise unenforceable on the contractual grounds of duress, undue influence, unjust enrichment, or unconscionability.

[20] For the reasons that follow, I find that Ms. Fiorito has failed to meet her onus, and I dismiss her claims that the child support provisions of the Bondy Order should be set aside, changed, or varied in any way.

Factual Background

[21] I do not propose to summarize the evidence of the affiants whose evidence was tendered before me at the hearing. The affidavits were voluminous, to say the least. There is no need to repeat all of that detail here. While the parties should know that I have considered all of the evidence presented, this written decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in dispute or provide sufficient context for an appreciation of the determination of those issues.

[22] For the most part, to the extent that it is necessary to review the evidence on point and make findings of fact, I shall do that below under the heading of each individual issue.

[23] By way of brief factual background, I note that the applicant mother, Anna Maria Fiorito, was born on April 27, 1966, was 48 years of age at the time of the settlement conference resulting in the Bondy Order, and is 56 years of age at present (“Ms. Fiorito” or the “applicant mother”).

[24] The respondent husband, Jefferson Ross John Wiggins, was born on April 18, 1972, was 42 years of age at the time the Bondy Order was made, and is currently 50 years of age (“Mr. Wiggins” or the “respondent father”).

[25] The parties married on May 23, 1998, and separated on February 8, 2008. As such, their marriage did not last ten years. They were divorced by the order of Gates J. dated June 5, 2009.

[26] There are three children of the marriage, as follows:

a. Juliana Wiggins, born August 27, 2001. Juliana was 13 years of age at the time of the Bondy Order and is currently 20 years of age.

b. Angelina Wiggins, born October 3, 2002. Angelina was 12 years of age at the time of the Bondy Order and is currently 19 years of age.

c. Catarina Wiggins, born October 2, 2003. Catarina was 11 years of age at the time of the Bondy Order and is currently 18 years of age.

[27] Following the parties’ divorce in 2009, Mr. Wiggins remarried. He married Ms. Sarah Renee Wiggins on March 4, 2011. They have children together. They have since relocated and currently reside in the State of Michigan.

[28] After June 28, 2013, Mr. Wiggins was the sole custodial and residential parent of the children. Those arrangements were modified following the release of the Court of Appeal’s decision in 2015 and subsequent decisions.

[29] Both Ms. Fiorito and Mr. Wiggins carry on business in the practice of physiotherapy.

[30] The evidence indicates that Mr. Wiggins has primarily conducted a practice of home healthcare in Michigan. He undertakes contracts for large American Health Maintenance Organizations (HMO’s) to provide such homecare, adding massage therapy and related health services in later years.

[31] The physiotherapy practice of Ms. Fiorito provides service to patients in the County of Essex. In this regard, the evidence indicates that, during the marriage, the parties purchased a small physiotherapy clinic, and that business grew (Mr. Wiggins would say, not unfairly, with his assistance) to the point where, when the parties separated in 2008, it was a large thriving practice, with some full and part-time physiotherapist employees, massage therapists, and other healthcare providers.

[32] Ms. Fiorito made an assignment in bankruptcy on or about February 22, 2016.

[33] By motion to change issued November 16, 2017, Ms. Fiorito commenced the instant proceeding (bearing court file no. FS-08-00007251-0001), in which she seeks to, in essence, set aside and “re-write” certain provisions of the Bondy Order.

[34] Since February 21, 2019, the children have been residing with Ms. Fiorito for at least the same amount of time as they have with the respondent father.

[35] By a further motion to change issued September 10, 2019, Ms. Fiorito commenced another proceeding (bearing court file no. FS-08-00007251-0002) (the “-02 Proceeding”), in which she seeks to stop the ongoing enforcement and collection of child support against her under the Bondy Order for the period following February 21, 2019, and seeks to change the final order of Hebner J. dated June 14, 2016, regarding the parenting arrangements for the children. The -02 Proceeding is ongoing and has not yet proceeded to a hearing.

[36] The Bondy Order was never appealed.

Issues

[37] Madam Justice Pomerance, the Local Administrative Judge for Windsor, conducted several case management conferences with the parties’ legal counsel over the course of the instant proceeding. The scope of the present adjudication was framed by counsel and Pomerance J. and is focussed on the amount of table child support payable under the Federal Child Support Guidelines[^10] and the amount of special or extraordinary expenses payable under s. 7 of the Guidelines payable by the applicant mother to the respondent father for the period from October 1, 2014, to December 31, 2018.

[38] During the hearing before me, I ruled that the scope of the instant proceeding is limited to the 2014-2018 timeframe and, thus, does not include 2019 financial issues.

[39] Accordingly, I find that, consistent with the adjudicative scope as framed by Pomerance J., the following issues are to be addressed in this proceeding:

a. Should the parties’ fixed child support settlement of October 2014, resulting in the Bondy Order, be upheld for the period from October 1, 2014, to December 31, 2016?

b. If the parties’ settlement is not upheld, what was the income of Ms. Fiorito for child support purposes for the period from October 1, 2014, to December 31, 2016?

c. What was the income of Ms. Fiorito for child support purposes for 2017 and 2018?

d. What amount is payable by Ms. Fiorito for special or extraordinary expenses under s. 7 of the Guidelines for the period from 2016 to 2018?

Analysis

Should the parties’ fixed child support settlement of October 2014, resulting in the Bondy Order, be upheld for the period from October 1, 2014, to December 31, 2016?

The comprehensive settlement reached in October 2014

[40] I would say something at the outset about the use of judicial resources in this case, quite apart from the extensive litigation history the parties engaged in over the parenting arrangements, as sketched out above.

[41] As I have said, the parties attended a two-day settlement conference before Mr. Justice Christopher M. Bondy on October 6 and 7, 2014.

[42] I would just note that settlement conferences in family proceedings in Windsor are typically scheduled for 60 minutes. Having said that, our Trial Coordination Office certainly makes every reasonable effort to accommodate any request for a settlement conference of longer duration and, as such, from time to time, on the joint request of counsel or by order of the court, a settlement conference of two hours or a half-day may be scheduled in a case.

[43] A settlement conference for one full day is sometimes requested, but it is not a common occurrence.

[44] A settlement conference of two full days is even less common.

[45] I would also note that Justice Bondy is an experienced jurist, a seasoned mediator, and has an enviable reputation and track record for being able to resolve difficult disputes.

[46] My point is that significant judicial resources were afforded to these parties when they attended for their two-day settlement conference before Bondy J. in October 2014.

[47] As I have said, both parties were represented by legal counsel at the settlement conference. Counsel for the applicant before me here, Mr. DiPierdomenico, did not act for Ms. Fiorito at the time. Rather, Ms. Fiorito was then represented by Ms. Donna Wowk, senior counsel from Toronto, experienced in family law issues. Also accompanying Ms. Fiorito at the settlement conference was her financial advisor, Ms. Joanne King (chartered accountant and chartered business evaluator).

[48] For his part, Mr. Wiggins was accompanied by his counsel, Mr. Ludmer, as well as his own financial expert and certified business valuator, Mr. Jim Tracey.

[49] I consider also the context of the settlement conference in October 2014. The parties had spent the better part of the previous five or six years embroiled in protracted litigation over the parenting arrangements for the three children. Turning their attention to the financial issues, they both agreed to attend a two-day settlement conference.

[50] By the end of the first day, with the assistance of Bondy J., the parties had come to a resolution and “agreed to settle, on a final basis,” all financial issues in the proceeding, including child support, contribution towards s. 7 expenses, spousal support, equitable financial claims, claims as to property, and net family property equalization – with the exception of the valuation of Ms. Fiorito’s business, being Anna Maria Fiorito Physiotherapy Professional Corporation.

[51] The parties then executed minutes of settlement, entitled “Partial Minutes of Settlement – Financial Matters” dated October 6, 2014. Paragraphs 3, 4, and 9 of the partial minutes addressed the issue of the table support payable by Ms. Fiorito to Mr. Wiggins from October 1, 2014, to December 31, 2016, as the three children were residing with Mr. Wiggins at that point, pursuant to the 2011 and 2013 orders of Harper J.

[52] In respect of the attendance on October 6, 2014, Bondy J. hand-wrote a simple endorsement in the endorsement record: “[o]rder to go in accordance with minutes of settlement filed.”

[53] Returning to the bargaining table the next day, and with the assistance of Bondy J., the parties then came to a final resolution of the remaining financial and property issues in dispute in the proceeding, being the valuation of Ms. Fiorito’s business interests in her professional corporation and its resultant impact on the equalization payment.

[54] Again, the parties executed a separate document, also entitled “Partial Minutes of Settlement – Financial Matters” dated October 7, 2014. And Bondy J. wrote his endorsement in the endorsement record: “[f]inal order to go in accordance with minutes of settlement filed.”

[55] The two sets of partial minutes of settlement were then incorporated into one, comprehensive consent order dated October 7, 2014, being the Bondy Order, which was issued and entered in the normal course on November 3, 2014.

[56] Consistent with para. 1 of the partial minutes dated October 6, 2014, and para. 1 of the partial minutes dated October 7, 2014, para. 1 of the Bondy Order required Ms. Fiorito to pay the sum of $171,491.05 to Mr. Wiggins in full and final satisfaction of all claims for equalization.

[57] Consistent with para. 2 of the partial minutes dated October 6, 2014, para. 2 of the Bondy Order provided that there shall be no arrears of table child support or contribution to s. 7 expenses incurred to October 1, 2014, owing by either party to the other.

[58] Consistent with para. 3 of the partial minutes dated October 6, 2014, para. 3 of the Bondy Order required that Ms. Fiorito pay the sum of $1,845 to Mr. Wiggins for table support for the roughly three-week period from October 1, 2014, to October 24, 2014.

[59] Consistent with para. 4 of the partial minutes dated October 6, 2014, para. 4 of the Bondy Order provided that:

Subject to paragraph 9, commencing October 25, 2014, the Applicant shall pay to the Respondent, to be received by the 25th of each month, table child support for the three children of the marriage in the amount of $2,388.00. …

[60] Consistent with para. 9 of the partial minutes dated October 6, 2014, para. 9 of the Bondy Order provided that:

Child support (both table support and equal sharing of Section 7 expenses) shall be fixed and non-variable to December 31, 2016, after which support shall be reviewed prospectively and not retroactively to apply January 1, 2017 (provided however, that in the event that there is a material change of circumstances resulting from the Applicant’s appeal of the final Order of the Honourable Justice Harper dated June 28, 2013, support shall be adjusted accordingly).

[61] I will address below certain provisions of the Bondy Order regarding payment of s. 7 expenses. But, generally speaking, the Bondy Order went on to provide, inter alia, that all other financial claims of the parties, as well as all property-related and equitable financial claims, were effectively dismissed, and the respondent father’s claim for spousal support was also dismissed.

[62] On the basis of the plain language of the partial minutes of settlement dated October 6, 2014, the partial minutes of settlement dated October 7, 2014, the terms of the Bondy Order, and the totality of evidence before me, I find that the intention of the parties in coming to a final resolution of the table child support payable by Ms. Fiorito to Mr. Wiggins, as reflected in paras. 3, 4, and 9 of the Bondy Order, and as part of the overall comprehensive settlement reached at the settlement conference, was to provide the parties and, in particular, Ms. Fiorito, with a fixed-price, non-variable deal on child support.

[63] And what did this fixed-price, non-variable child support deal do for the parties? It bought them peace for the 27-month period from October 1, 2014, to December 31, 2016. It bought them certainty. It bought them finality. And after years of protracted – and very expensive – litigation over the custody and access issues, the finality that the fixed-price, non-variable deal provided the parties for those 27 months would have been, no doubt, a very welcome and valuable consideration.

Ms. Fiorito’s motion to change

[64] More than three years after the parties reached their comprehensive resolution of the financial issues at the settlement conference in October 2014, and more than three years after the making of the Bondy Order, Ms. Fiorito commenced her motion to change, the instant proceeding, in which she seeks to vary and re-write certain provisions – and only certain provisions – of the Bondy Order.

[65] Specifically, by her motion to change, issued November 16, 2017, Ms. Fiorito seeks to set aside and vary the table child support provisions of the Bondy Order, as set out in paras. 3, 4, and 9 thereof, as follows:

a. Ms. Fiorito seeks to fix child support arrears to zero as of December 31, 2017, or, in other words, to expunge any liability on her part to pay any table child support at all from October 1, 2014, to December 31, 2017 – whereas, for example, paras. 4 and 9 of the Bondy Order required Ms. Fiorito to pay $2,388 per month from October 25, 2014, until December 31, 2016, and

b. Ms. Fiorito seeks an order that, commencing January 1, 2018, she would pay table child support to Mr. Wiggins in the amount of $1,046 based on an alleged annual income of $54,510.70.

[66] In her motion to change, Ms. Fiorito also seeks an order setting aside and varying her obligation to contribute towards the children’s s. 7 expenses and, in particular, that she should pay only 18 percent of the special expenses commencing January 1, 2018, and on a go-forward basis. I return to the issue of the s. 7 expenses below.

Setting aside the child support provisions of the Bondy Order

[67] In her claim to set aside the child support provisions of the Bondy Order, Ms. Fiorito relies, in part, on rule 25(19) of the Family Law Rules,[^11] which provides that:

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[68] Ms. Fiorito submits that the Bondy Order contains a mistake and/or that it fails to deal with a matter that was before the court that it did not decide. In particular, Ms. Fiorito submits that the Bondy Order contains a mistake, in that, the child support provisions did not expressly state the income of Ms. Fiorito and/or that the Bondy Order failed to deal with the issue of Ms. Fiorito’s income, which was an issue before the court but that it did not decide.

[69] Much of Ms. Fiorito’s submissions, in my view, ignore the fact that the Bondy Order was made on consent as a result of the final resolution that the parties agreed upon at a settlement conference. Much of her submissions seem to ignore the fact that the Bondy Order was not the product of an adjudication after a trial or hearing and a judicial determination of the issues on their merits. For example, in her submissions in paras. 76, 98, 108, and 109 of her factum, Ms. Fiorito speaks to the alleged failure of the judge to record his reasons for making the order. Again, this was not an adjudication on the merits; this was a settlement.

Mistake

[70] Ms. Fiorito’s submissions emphasize that neither the Bondy Order nor the minutes of settlement on which the consent was based expressly state the amount of income that Ms. Fiorito was making or was deemed or agreed to be making in order to generate the monthly award of $2,388.

[71] I certainly agree that s. 13(b) of the Child Support Guidelines provides that a child support order must include “the income of any spouse whose income is used to determine the amount of the child support order.”

[72] However, I do not agree that the failure to expressly state Ms. Fiorito’s income in the Bondy Order means that the order is thereby rendered void and of no effect. In the circumstances here, where the order was the product of the parties’ agreement following negotiations at a settlement conference, I regard the omission as an irregularity. There is appellate authority for the proposition that failure to include in the form of the order the information required by s. 13 of the Guidelines does not render the order a nullity.[^12]

[73] Moreover, it appears that these particular parties have not always insisted on strict compliance with s. 13 of the Guidelines. In this regard, I note the order of Campbell J. made April 28, 2014,[^13] para. 2 of which dealt with child support on an interim basis and provided that:

Commencing May 1, 2014, the Applicant shall pay to the Respondent the sum of $1,029 for child support. This is on a without prejudice basis to the Respondent seeking a higher quantum and an earlier date of commencement.

[74] Paragraph 2 of the order of April 28, 2014, also does not comply with the requirements of s. 13 of the Guidelines in terms of expressly setting out the income of the support payor. However, there is nothing before me to suggest that the parties treated that 2014 order as being void and of no effect. There is nothing before me to suggest that Ms. Fiorito ever raised the same objection to the form of the 2014 order that she now raises before me.

[75] I do not accept that the failure of the Bondy Order to expressly state the income of Ms. Fiorito was a mistake or was a product of some failure “to deal with a matter that was before the court but that it did not decide” that justifies varying or setting aside the Bondy Order. I do not accept that Ms. Fiorito did not know the income level that was being attributed to her for the purposes of fixing the agreed-upon child support amount of $2,388 in the Bondy Order.

[76] On the contrary, I am satisfied that Ms. Fiorito well knew that the fixed-price, non-variable child support amount of $2,388 in the Bondy Order was based on the amount of $135,000 being attributed to her as self-employment income. I note that, using the tables that were applicable in October 2014 under the Child Support Guidelines, a payor earning an income of $135,000, paying for three children, would be required to pay $2,388 per month.

[77] The $135,000 income figure was not something that was arbitrarily picked out of thin air. It was not some figure that Bondy J. conjured up on his own. On the contrary, the $135,000 income figure came from Ms. Fiorito’s own documents. The evidence of Mr. Wiggins was that, in the course of the litigation, he had requested disclosure of all loan applications made by Ms. Fiorito and the supporting documentation. It appears that in February 2014, Ms. Fiorito qualified for a mortgage (or “Homeline Plan”) on her residence in Amherstburg. The mortgage was held by the Royal Bank of Canada (RBC). It was registered against her home in March 2014. It appears that in qualifying for the mortgage, Ms. Fiorito provided RBC with her income tax returns for the taxation years 2011 and 2012. Included in her disclosure briefs that were provided to Mr. Wiggins was a letter dated April 15, 2014, from Mr. Chad Holmes, Branch Manager of the Amherstburg branch of the RBC, in which Mr. Holmes states that, “I can confirm that the following information was used to qualify for your Homeline Plan dated February 15, 2014 … Total Income of $134,145 – Income verified with 2011 and 2012 tax returns.”

[78] The evidence of Mr. Wiggins is that the RBC letter from the branch manager dated April 15, 2014, was used in the negotiations process at the settlement conference in October 2014. The evidence of Mr. Wiggins is that:

This document was used in the negotiations process to state that her income should be no less than $135,000 for child-support purposes. As part of the negotiation process, I compromised at this lower amount and her child-support was based on that number.

Even though the value of $135,000 isn’t listed in the settlement, all the numbers are based off of that amount. This is also true of the pro-rated amount for October 2014 which was calculated and is part of the Order as well.

[79] I accept the evidence of Mr. Wiggins on this point. It provides a common-sense explanation of where the $135,000 income figure came from. It is perfectly consistent with the objective facts, i.e., the RBC letter. It is consistent with the calculations of table support under the Child Support Guidelines. I do not accept the evidence of Ms. Fiorito on this point.

[80] I also note the evidence before this court as to the amounts recorded as Ms. Fiorito’s total income, as set out on her notices of assessment (or notices of re-assessment) for the following taxation years:

a. 2010: $127,338

b. 2011: $105,157

c. 2012: $163,131

d. 2013: $66,017

e. 2014: $25,073

f. 2015: $96,929

g. 2016: $37,462

h. 2017: $75,062

i. 2018: $48,815

j. 2019: $412,575.

[81] I note that the average of Ms. Fiorito’s total income in the taxation years 2012 and 2013 is $114,574 and the average of her total income in the taxation years 2011 and 2012 is $134,144.

[82] For these reasons, I dismiss Ms. Fiorito’s claim that the Bondy Order should be changed, pursuant to rule 25(19), on the basis that it contains a mistake or fails to deal with a matter that was before the court that it did not decide.

Duress, undue influence, unjust enrichment, and unconscionability

[83] In her claim to set aside the child support provisions of the Bondy Order, Ms. Fiorito also relies, in part, on s. 56(4) of the Family Law Act,[^14] which provides that:

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

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

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

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

[84] As I understand it, the implicit assumptions underlying the argument of Ms. Fiorito is that the minutes of settlement upon which the Bondy Order was based constitute a “domestic contract” within the meaning of s. 51 of the Family Law Act – presumably, a “separation agreement” within the meaning of s. 54 given that the minutes of settlement address issues of division of property and support obligations – and that to the extent that s. 56(4) is available to set aside a provision of a separation agreement, resort may also be had to s. 56(4) for the purpose of setting aside the Bondy Order given that it was made on consent and based on minutes of settlement, that is, a separation agreement.

[85] While I have some reservations about accepting the implicit proposition that the same considerations that apply to the setting aside of a domestic contract are the very same considerations that apply to the setting aside of a court order, I overlook those concerns for present purposes. I note that no such objection is raised in the factum of Mr. Wiggins and, indeed, his factum addresses and responds to the applicant’s arguments based on s. 56(4). Moreover, as I am not persuaded by any such arguments by Ms. Fiorito here, I would address them in any event for the sake of completeness.

[86] As set out above, clause 56(4)(c) of the Family Law Act provides that a domestic contract may be set aside “in accordance with the law of contract.” The law of contract includes concepts of duress, unjust enrichment, unconscionability, undue influence, non est factum and the like. The argument on behalf of the applicant mother touches on many of these notions (although the doctrinal basis of her argument is not as clear as one might hope, in that, it does not specifically address the essential elements of any of these contractual doctrines, nor specifically explain how the facts of the instant case establish those essential elements).

[87] However, in contrast, the Court of Appeal for Ontario has been quite clear when it comes to attempts to set aside agreements entered into between parties and the considerable deference that is owed to such agreements. In my view, para. 117 of the respondent father’s factum provides a fair summary of the law on point, where he says:

The Ontario Court of Appeal has repeatedly set out the principles that a court will respect agreements entered into between parties and that such agreements are subject to considerable deference. It is desirable for the parties to settle their own affairs if possible. As a general rule, courts will also uphold agreements because it is desirable for the parties to settle their own affairs if possible, as they are more likely to accept their own solution to their problem than one imposed on them. Another reason that courts grant considerable deference to agreements is because it is important for parties to an agreement to be able to rely upon it as final and binding. Courts are generally loath to set aside domestic contracts as the parties to an agreement need to be able to rely on it as final in the planning and arranging of their own future affairs.

[88] Consistent with the respondent father’s summary, I note the observation made by the Court of Appeal in Butty v. Butty, where, in ruling that the trial judge had erred in setting aside the parties’ marriage contract, the court said:

… it is important to keep in mind that courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship, particularly where the agreement in question was negotiated with independent legal advice: see Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550 (S.C.C.) at para. 9.[^15]

[89] In Smith v. Smith, the motion judge summarized many of the principles that apply where a party seeks to set aside a domestic contract and concluded that the cohabitation agreement in question should be upheld. The decision of the motion judge was upheld on appeal by our Court of Appeal. The motion judge summarized the applicable principles as follows:

The burden of proof for setting aside a domestic contract is on the person alleging that the domestic contract is invalid. The party seeking to escape the effect of the agreement has the onus to show that there are grounds for setting it aside (see Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (Ont. C.A.), at para. 11, Loy v. Loy, [2007] O.J. No. 4274 (Ont. S.C.J.), at para. 161), Shair v. Shair, [2015] O.J. No. 4883 (Ont. S.C.J.) at para. 44).

As a general rule, courts will uphold the terms of a valid enforceable domestic contract. It is desirable that the parties should settle their own affairs if possible, as they are more likely to accept their own solution to their problem than one imposed on them (Farquar v. Farquar, 1983 CanLII 1946 (ON CA), [1983] O.J. No. 3185 (Ont. C.A.), at paras. 19-20, Harnett v. Harnett, 2014 ONSC 359, [2014] O.J. No. 237 (Ont. S.C.J.), at paras. 87-88)).

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, supra,

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.

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

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

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

The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan, 2008 ONCA 388, 2008 CarswellOnt 2738, ONCA.[^16]

[90] In the instant case, the argument of the applicant mother speaks to the “pressure” that Ms. Fiorito alleges she was feeling at the time of the settlement conference in October 2014. In this regard, para. 54 of her factum submits that:

Fiorito was cognitively impaired at the time of the settlement conference and Support Order [Bondy Order]. She was suffering from the financial pressures of the costs of the trial with Wiggins and the costs to finance her appeal. She was also suffering from the emotional consequences of the access ban [i.e., the 2013 review decision of Harper J.].

[91] In the same vein, in para. 84 of her factum, Ms. Fiorito submits that:

It is contended, to suggest that Fiorito was under “financial pressure” arising from the costs of the trial with Wiggins, the appeal under way and “emotional pressure” because of the access ban, is an understatement. All of the above was known at the time of the support settlement and the Support Order. Indeed, the support settlement and the Support Order both state “the Applicant’s appeal of the final order of the Honourable Justice Harper dated June 28, 2013”. [Emphasis in original.]

[92] So too is the submission of Ms. Fiorito in para. 143 of her factum that:

The facts of this Fiorito case match the type of unconscionability or undue influence required by the Court to enable a remedy for Fiorito. The combination of the access ban with the financial pressures of the costs of a trial with Wiggins, in addition to the costs of the appeal to change the access ban, in addition to the physiotherapy business experiencing financial revenue downturns, all conflating together was, to use the common vernacular, the “perfect storm”. [Emphasis in original.]

[93] I do not dispute that Ms. Fiorito may have felt certain pressure in those circumstances. I should think that many, if not most, litigants feel some pressure when they attend at a courthouse for litigation purposes. Litigation brings its own particular stresses. As our Court of Appeal has repeatedly noted, understatedly, litigation is not a tea party.[^17]

[94] But merely feeling financial pressures or emotional pressures does not, on the evidence before me, discharge Ms. Fiorito’s onus to establish that the minutes of settlement and Bondy Order must be set aside on that basis. The evidence of Ms. Fiorito that she was feeling certain pressures, even assuming I accept that evidence, does not establish that she did not understand the nature or consequences of the minutes of settlement that she signed.

[95] On the contrary, having read the entirety of Ms. Fiorito’s affidavit sworn July 20, 2016 (delivered before the instant motion to change proceeding was commenced) and the entirety of her affidavit sworn November 16, 2017 (being the initial affidavit sworn in support of her motion to change), I note the evidence set out in paras. 88-91 of her 2016 affidavit. In those paragraphs, Ms. Fiorito describes, at least in part, her decision-making process that led her to signing the minutes of settlement at the October 2014 settlement conference. When one reads those paragraphs, one cannot conclude that she did not understand the nature or consequences of the minutes of settlement that she signed.

[96] It is only in para. 25 of her subsequent affidavit of November 16, 2017 – filed after her motion to change was filed – that Ms. Fiorito states, for the first time, that “I did not truly appreciate or understand what I was signing when [the minutes of settlement] were executed because of my cognitive distress.” But that statement stands in stark contrast to – and is belied by – paras. 88-91 of her 2016 affidavit, which, again, clearly establish that she certainly did appreciate and understand the nature or consequences of the documents she was signing.

[97] I also note the following exchange between Ms. Fiorito and counsel for the respondent father at her questioning, held on July 31, 2018:

Q. … did you ever between October 6th and mid February 2016 have a discussion with Donna Wowk that you didn’t understand the settlement you entered into on October 6th?

A. To say that I don’t understand, I am a professional, that would almost be insulting my intelligence in a sense. Was it a mistake, yes? I understood what was going on. I understood exactly what was going on in the settlement conference. But a mistake had been made based on my true income. [Emphasis added.][^18]

[98] In the same vein, I further note the following exchange at the questioning:

Q. But ultimately, did you understand what you signed?

A. Ultimately I understood what had to be done.[^19]

[99] To the extent that Ms. Fiorito is now trying to say that she did not understand the nature or consequences of the minutes of settlement that she signed, I do not accept her evidence. I do not believe her. I do not find her evidence to be credible.[^20] And I do not find her positions on this issue to be credible.

[100] And in rejecting the evidence of Ms. Fiorito on the basis of credibility, I would note the following considerations, which I have taken into account:

a. There is no evidence before me that, leading up to the October 2014 settlement conference, Ms. Fiorito ever said to her lawyer or anyone else that she felt she was not in a position to attend the settlement conference because she was under such financial or emotional pressures such that she felt she could not make a binding decision.

b. There is no evidence before me that, at any time during the two-day settlement conference, Ms. Fiorito said to her lawyer or Ms. King or Bondy J. or anyone else that she was under such financial or emotional pressures such that she felt she could not make a binding decision.

c. There is no evidence from Ms. Wowk, Ms. Fiorito’s lawyer at the time, that Ms. Wowk believed her client to be compromised by any such financial or emotional pressures or any other cognitive impairment.

d. There is no evidence from Ms. King, Ms. Fiorito’s financial advisor, that Ms. King believed her client to be compromised by any such financial or emotional pressures or any other cognitive impairment. In this regard, I note that Ms. King actually delivered an affidavit in this proceeding, sworn July 22, 2016, almost two years after the 2014 settlement conference (and before the instant motion to change was commenced in November 2017), and there is absolutely nothing in that affidavit that speaks to any observations made by Ms. King that Ms. Fiorito was experiencing any debilitating circumstances or impairments or exhibited any unusual comment or behaviour during the October 2014 settlement conference.

e. The allegations by Ms. Fiorito that she was experiencing any debilitating circumstances or impairments during the October 2014 settlement conference were not raised in a timely manner. There was no telephone call made by Ms. Fiorito to her lawyer or the court the following week after the settlement conference to say, in effect, that she was not herself on October 6 and 7, 2014. There was nothing said at all – for the balance of 2014, all of 2015, all of 2016, or most of 2017. It was only in November 2017, when Ms. Fiorito commenced the instant motion to change, that, for the first time, she raised the question of the providence of the October 2014 minutes of settlement.[^21] And that was raised only after she retained her new legal counsel, who, by my count, is at least the fifth lawyer that Ms. Fiorito has retained or consulted since the parties’ separation.

f. Apart from the evidence of Ms. Fiorito herself, there is no other evidence, whether testimonial or documentary, that confirms or corroborates the claims of Ms. Fiorito.

g. In the hearing before Hebner J. in January 2016, concerning s. 7 expenses, Ms. Fiorito did not contest the validity of the October 2014 settlement or the Bondy Order, and the adjudication proceeded on the basis that the 2014 settlement and the Bondy Order was valid, and it therefore focussed on what were the eligible s. 7 expenses and what was the outstanding amount payable by the applicant mother.

h. There is also the disturbing matter of Ms. Fiorito’s bankruptcy and the repeated representations she made to the courts. In her affidavit sworn January 19, 2016, Ms. Fiorito indicated that she had every intention of paying the $200,000 outstanding costs award owing to Mr. Wiggins as a result of the 2015 Court of Appeal decision.[^22] Further, in her affidavit sworn January 21, 2016, she denied any intention of filing for bankruptcy after the February 2016 access review hearing was completed to thwart Mr. Wiggins’s claim. As the Court of Appeal subsequently observed, “the court and the father relied on the mother’s representations in her affidavits that she intended to pay the costs and that she did not intend to thwart that payment by making an assignment into bankruptcy.”[^23] However, despite those representations and assurances, Ms. Fiorito made an assignment in bankruptcy on February 22, 2016, during the course of the access review hearing before Hebner J. In the course of determining the respondent father’s subsequent motion, heard August 5, 2016, for the purpose of obtaining or ensuring payment of the $200,000 costs award, Hebner J. made a finding of fact that “the mother thwarted the enforcement of the costs award by reneging on assurances she made to the court about her intent to pay the costs and not use bankruptcy to thwart that payment.” That finding was upheld on appeal.[^24] However, it was subsequently discovered in 2018 that Ms. Fiorito had been referred to the trustee in bankruptcy on January 27, 2016,[^25] had met with the trustee in bankruptcy on February 8, 2016, and had given instructions to the trustee on February 9, 2016, to prepare documentation for her to file an assignment in bankruptcy.[^26] That was more than two weeks before the review hearing before Hebner J. concluded.[^27] A fraudulent misrepresentation is made where the person making the misrepresentation knows that it is false at the time it is made. And so, I am mindful of Ms. Fiorito’s “reneging on assurances she made to the court” when I consider the assessment of her credibility and the evidence she has tendered before this court.

[101] I appreciate that there is some evidence that Ms. Fiorito was speaking with a counsellor over the years. However, lots of people – thousands – millions – consult with counsellors to seek therapeutic or psychological counselling services. But that in itself does not establish that those persons lack the capacity to enter into binding contracts or somehow are unable to appreciate and understand the nature or consequences of the contracts that they sign. Otherwise, we would see any number of contracts voided and set aside simply because one attended a weekly counselling session. That is not the law.

[102] In particular, I note the records of Dr. Jowan Perry and, in particular, Dr. Perry’s letter to Mr. DiPierdomenico dated February 13, 2018, in which the doctor acknowledges receipt of counsel’s letter dated December 18, 2017. I note that Dr. Perry confirmed that Ms. Fiorito has been a patient of his since 2005. I note also that it appears Ms. Fiorito never saw Dr. Perry in 2014. And I also note the comment in Dr. Perry’s letter of February 13, 2018, that:

I want to express my sincerity, as I was not aware of the details that you had provided to me, in the letter of December 18, 2017, as this information was never disclosed by Ms. Fiorito, hence why I had Ms. Fiorito come in for an appointment to discuss the details of the letter. [Emphasis added.]

[103] In the same vein, I note the clinical note from Dr. Perry’s records for the consultation with Ms. Fiorito on January 24, 2018, which states, in pertinent part, that:

pt was called in to review her letter from the Dipierdomico law office. …

we reviewed the form

as we indicated to Anna that we were surprised on the amount of info in the letter we got in which we had NO idea about as she has not at any time before this informed us about it !!! [Emphasis in uppercase in original. Emphasis in italics added.]

[104] I also appreciate that, in para. 54 of her factum, Ms. Fiorito goes so far as to allege that she was “cognitively impaired” at the time of the settlement conference and the making of the Bondy Order. Presumably, that submission is based on certain statements of Ms. Fiorito that she gave in her affidavit sworn July 20, 2016, such as, “I was suffering from some serious cognitive problems” (para. 133), and her affidavit sworn November 16, 2017, which speaks of “my cognitive circumstances” (para. 21), and “I suffered horrible cognitive distress” (para. 25).

[105] I can appreciate the perceived power of the word “cognitive” and its strategic use in litigation. It is often quite fairly and correctly used. For example, a person with an acquired brain injury may suffer from some cognitive impairment. A person born with certain developmental disabilities may suffer from some cognitive impairment.

[106] But for this court to accept that, by reason of the financial pressures or emotional pressures or other circumstances that, she says, she was experiencing, Ms. Fiorito suffered from some cognitive impairment at the time of the settlement conference in October 2014 that impaired her capacity or judgment or ability to appreciate the nature and consequences of the documents that she executed, I would require convincing expert evidence or other confirmatory or corroborative evidence as to her cognitive abilities as of October 2014. There is absolutely no such evidence before me. I would require some independent evidence, apart from Ms. Fiorito’s vague, self-serving statements, that she suffered from any such cognitive impairments as of October 2014. Here, there is no such evidence. Accordingly, I give no effect to her claims of any cognitive impairment. I simply do not believe her evidence.

[107] As to the various related claims suggested in the applicant mother’s argument as to the contractual doctrines of duress, unjust enrichment, unconscionability, and undue influence, I would dismiss all such claims on the basis of the following points.

[108] First, I accept that the legal requirements or essential elements of each such contractual doctrine are correctly or fairly set out in the factum of the respondent father at paras. 96-177. I do not understand the applicant mother to say that the legal requirements or essential elements of those legal doctrines or concepts have been misstated by the respondent father in his factum. As I see it, there is no disagreement between the parties as to the applicable law.

[109] Second, all of those contractual challenges to the parties’ minutes of settlement and the consequent Bondy Order depend, in the end, on the evidence tendered in support of those challenges. The only such evidence tendered in support of those challenges is that of the applicant mother, and I have already stated why I do not find her to be a credible witness and do not accept her evidence. Simply put, I do not believe Ms. Fiorito.

[110] Third, given that I do not accept the evidence of Ms. Fiorito, considering the totality of evidence before the court, I am unable to conclude that Ms. Fiorito has satisfied her onus of establishing the essential elements of any of the legal doctrines that would justify setting aside the parties’ minutes of settlement of October 2014 or the Bondy Order.

[111] Fourth, it is important to note that the claims of the applicant mother seek to set aside only specific portions of the Bondy Order – that is, only the specific provisions concerning her child support obligation, including her s. 7 expenses obligation. Ms. Fiorito does not seek to set aside the entire agreement of the parties, as reflected in all of the terms of the Bondy Order. She seeks to vary the agreement’s terms regarding child support only.

[112] It strikes me that, even assuming Ms. Fiorito’s claims were valid, and I find they are not, one of the problems with her argument is that they prove too much, if you will. That is, to the extent that the parties’ agreement concerning child support was, say, tainted by undue influence, then surely that undue influence would infect and invalidate the entire agreement, and not just the child support provisions. Similarly, if the child support provisions are vulnerable to the claim that they result in some unjust enrichment, surely that is something that must be assessed looking at the agreement as a whole, and the same conclusion must apply to the whole of the agreement. The same argument applies, in my view, to the claim of unconscionability. One cannot assess a claim for unconscionability looking at just one provision in isolation from the entire agreement. As I understand such contractual doctrines, they do not permit the type of “cherry-picking” exercise that Ms. Fiorito seeks to have this court undertake.

[113] Moreover, Ms. Fiorito has failed to provide this court with any judicial authority for the proposition that these contractual claims may be used to set aside only certain provisions of a settlement agreement on the basis that they are unconscionable or otherwise improvident, without resulting in the entire agreement being set aside or not enforced. In my view, that was part of her onus to establish these claims. And she has failed to do so.

[114] In my view, the instant case provides a good example of the public policy reasons underlying the court’s general rule that it is desirable that the parties should settle their own affairs if possible. The parties and their legal advisors will be in the best position to know and decide for themselves, on the one hand, what interests and objectives should command greatest priority, and, on the other hand, what interests or objectives can be compromised. It is inevitable that a settlement agreement of any complexity is going to represent a balance of compromised interests. It strikes me here that both parties made numerous compromises and negotiated multiple aspects of their global financial settlement over the two-day settlement conference before Bondy J. The evidence of Mr. Wiggins is that he made a significant compromise in his asserted valuation of Ms. Fiorito’s physiotherapy business as at the date of separation (early 2008). He says also that he compromised on what he felt had been his overpayment of support between 2008 and 2013. He says there were further compromises related to various individual line items on the net family property worksheet the parties were using, over and above the major line item pertaining to Ms. Fiorito’s professional corporation. No doubt there were compromises on Ms. Fiorito’s part as well. In these circumstances, it is not appropriate for the court, with its imperfect knowledge of the parties’ respective interests, objectives, and priorities, to attempt to go back, seven or eight years after the fact, and re-write the parties’ settlement agreement for them.

[115] I therefore conclude that Ms. Fiorito has failed to satisfy her onus that there are grounds under s. 56(4) of the Family Law Act or otherwise for setting aside the parties’ settlement or the Bondy Order. I would not exercise my discretion to set either aside. In my view, there is no merit to any of Ms. Fiorito’s claims whatsoever.

[116] Rather, at the end of the day, I return to the language of the Bondy Order and the parties’ underlying minutes of settlement. The parties themselves agreed in their minutes of settlement that the child support provisions were to be treated as “non-variable.” That agreement is reflected in para. 9 of the Bondy Order. For the foregoing reasons, I would uphold the parties’ agreement and para. 9 of the Bondy Order and dismiss all such claims that the support provisions should be varied, changed, or set aside.

If the parties’ settlement is not upheld, what was the income of Ms. Fiorito for child support purposes for the period from October 1, 2014, to December 31, 2016?

[117] Given my conclusion on the first issue, this second issue does not arise for determination.

What was the income of Ms. Fiorito for child support purposes for 2017 and 2018?

[118] The three children of the marriage were residing with Mr. Wiggins for the years 2017 and 2018. However, the parties have been unable to agree on the amount of Ms. Fiorito’s child support obligations for those years, as para. 9 of the Bondy Order provided that the $2,388 monthly amount was fixed and non-variable to December 31, 2016 only.

[119] In particular, the parties cannot agree on what the appropriate income amount is for Ms. Fiorito for the purposes of calculating child support for 2017 and 2018.

[120] As reflected in paras. 61 and 62 of her factum, Ms. Fiorito submits that her total income in calendar year 2017, as derived from her physiotherapy business, was $75,063.34, and her total income in 2018 was $48,816.62. Mr. Wiggins submits that the court should impute the same amount of income upon which the Bondy Order was based, i.e., $135,000.

[121] It is an understatement to say that the question of determining Ms. Fiorito’s income in those years is a complicated question. It was the topic of much argument and considerable documentary evidence at the hearing before me.

[122] The question is further complicated by, inter alia, Ms. Fiorito’s accounting practices in running her business.

[123] That said, the parties agree on certain items. It is common ground that, as I have said, historically, Ms. Fiorito ran her physiotherapy business through her personal professional corporation. It is common ground that she made an assignment in bankruptcy on February 22, 2016. As a result, she lost her ability to operate her practice through her professional corporation. The parties are also agreed that, following the bankruptcy, Ms. Fiorito has carried on the business of her physiotherapy practice as a sole proprietorship. In other words, she is self-employed.

[124] It appears that the parties are also agreed that it had always been the practice of Ms. Fiorito to expense a volume of her personal expenses through her business. As the applicant mother says in para. 69 of her factum: “Fiorito operates her physiotherapy sole proprietorship by not taking any specific weekly income draw. Fiorito operates such proprietorship by running all her expenses, whether business or personal, through such business’ general ledger.”

[125] In a similar vein, Mr. Wiggins submits in para. 63 of his factum that: “[i]t had always been Ms. Fiorito’s practice to expense personal expenses through the business, however, this matter accelerated after separation. In 2011, 2012 and 2013 Ms. Fiorito put through $290,000 of personal expenses through her business which included thousands of dollars for clothing, travel, her family law legal fees and meals.”

[126] Mr. Wiggins submits, as Ms. Fiorito admits, that she has continued this practice with her sole proprietorship business following her bankruptcy. The position of Mr. Wiggins is set out in para. 69 of his factum, where he submits:

Ms. Fiorito’s practice of putting through personal expenses through her business has continued. There appears to be no advantage for Ms. Fiorito to continue running this business, if she is only generating $40,000-$50,000 per year in income. Someone of her experience could easily be an employee at another clinic and generate $100,000-$120,000 per annum. This is particularly the case since Ms. Fiorito has a portable “book of business” to bring to another clinic or medical practice. The only advantage for Ms. Fiorito to have her own business is to run personal expenses through, as she has done for years, and therefore show less of an income to pay taxes on and for child-support calculations.

[127] In order to better determine Ms. Fiorito’s income available for support purposes in 2017 and 2018, and in assessing the reasonableness of asserted business expenses for the self-employed support payor, it would have been of assistance to the court to have an appreciation of the historical practices of Ms. Fiorito over the years leading up to those in question. Unfortunately, a full appreciation of the historical practices is not possible because, following her assignment in bankruptcy, Ms. Fiorito destroyed a great number of financial records.

[128] By letter dated May 9, 2018, from the office of counsel for Ms. Fiorito to Mr. Wiggins, counsel produced a written statement, signed by Ms. Fiorito, in which she stated:

Shortly after declaring bankruptcy, it became apparent that I would no longer be a director of Anna Maria Fiorito Physiotherapy Professional Corporation. I began shredding all financials pertaining to the Corporation that were in my possession. These documents were for the years 2013, 2014, 2015 and the month of January 2016. I used an electric shredder that I have at my home and disposed of its contents via recycle that comes bi-weekly to my home.

With respect to 2016 tax return and NOA, no tax return was filed for 2016 and Canada Revenue did not require or request the filing of my bankrupt corporation. Once CRA determined that no tax return was needed, I shredded all 2016 documents.

To my knowledge I have never had a hard copy of any of my financial information and to my knowledge, this method was never used as a form of storage.

[129] What is clear to me, however, is that Ms. Fiorito has not been working full-time hours in the course of her sole proprietorship business. The evidence before me, based in part on her practice management computer software reports, is that she generates only some 20 to 21 billed hours for professional services per week. In my view, at best, that is no more than three days’ full-time work. I do not accept her evidence that she spends the balance of the workweek essentially doing paperwork.

[130] I appreciate her evidence concerning the downturn in her business because, for example, she lost the contract for the nursing home in Amherstburg and, as well, the insured benefits plan of a large employer in Amherstburg was revised so as to exclude physiotherapy services from coverage. However, the evidence indicates that she has made little or no effort to replace that work. I do not accept her evidence that the ongoing litigation with Mr. Wiggins has left her with essentially no time to pursue such endeavours.

[131] Moreover, when asked whether Ms. Fiorito ever applied to other businesses for supplemental work or part-time hours to supplement her part-time hours at her own clinic,[^28] her response was: “I have not applied to any other business or PT positions and have no intention on making any applications to any such businesses or positions. I am very content with my present position.”[^29] I do not think it is open to a support payor parent, who has a responsibility to maximize her income for the benefit of her three children, to say that she is “very content” working no more than three days a week. I regard that as clear evidence of intentional under-employment.

[132] The court has authority to impute income to the applicant mother on the basis of, apart from any other grounds, s. 19(1)(a) of the Child Support Guidelines, which provides that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[133] In Drygala v. Pauli, our Court of Appeal held that, in applying the provisions of s. 19(1)(a), the court is required to consider the following three questions:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?[^30]

[134] The Divisional Court, in its decision in Mercer v. Mercer, explained the three-part analysis under Drygala in the following terms:

In Drygala v. Pauli …, the Court of Appeal indicated that imputation of income in such situations should be approached in a three-stage analysis, with the first two stages addressing whether income should be imputed, and the third stage addressing, if necessary, appropriate quantification of imputed income:

i. First, the court should determine whether or not the spouse in question is intentionally under-employed or unemployed. In this context, “intentionally” means a voluntary act; i.e., where the parent chooses not to work, or to earn less than he or she is capable of earning. Existence of such an intention does not require a finding of bad faith, or a specific intent to evade or secure child support. A parent is intentionally under-employed within the meaning of s.19(1)(a) of the Guidelines if he or she earns less than he or she is capable of earning, having regard to all the circumstances. He or she is intentionally unemployed, within the meaning of s.19(1)(a) of the Guidelines, when he or she chooses not to work when capable of earning an income.

ii. Second, if the court finds intentional under-employment or unemployment, in the sense required, the court must then determine whether that was and/or is required by virtue of the parent’s reasonable educational needs, the needs of a child, or reasonable health needs.

iii. Third, if the answer to the first stage question is “yes”, and the answer to the second stage question is “no”, the court normally moves on to determination of the income that should be imputed in the circumstances.[^31]

[135] For the reasons set out above, I am satisfied that Ms. Fiorito was intentionally under-employed during the 2017 and 2018 calendar years. On the evidence before me, I am also satisfied that Ms. Fiorito’s intentional under-employment was not a function of the parent’s reasonable educational needs, the needs of a child, or reasonable health needs. I would emphasize that during the 2017-2018 period, it was Mr. Wiggins who was the custodial and residential parent of the parties’ three children, and so one cannot say that Ms. Fiorito’s time was consumed with childcare demands.

[136] In determining what amount of income to impute to Ms. Fiorito for the 2017 and 2018 years, I have considered all of the evidence presented at the hearing and counsel’s submissions. Among other factors, I note the following:

a. Again, Ms. Fiorito’s notices of assessment indicate that she reported total income of $75,062 in 2017 and $48,815 in 2018.

b. On the evidence before me, I find that those income levels were earned when Ms. Fiorito was “very content” to work essentially just part-time hours.

c. Both parties are agreed that, following her bankruptcy and throughout her business as a sole proprietorship, Ms. Fiorito continued her historical practice of booking personal expenses through her business. That practice had the net effect of reducing her personal total income.

d. The evidence of Mr. Tracey, the professional accountant and chartered business valuator retained by the respondent father, was that while he prepared an expert’s report for the purposes of the aborted trial on financial issues in 2011, and while he attended in person at the settlement conference before Bondy J. on both October 6 and 7, 2014, he did not produce an expert’s report on the question of the applicant mother’s income subsequent to the 2011 aborted trial. That said, Mr. Tracey’s evidence, consistent with that of both parties, is that he was “well aware that there was a practice of putting personal expenses through the business. The appropriate method for adjusting income for child support purposes would be, in my experience, and in my professional opinion, adding those back to the asserted business income and grossing those up for tax savings and HST credits thereon.”[^32]

e. The evidence of Ms. Fiorito was that her physiotherapy business was “starting to come around” in calendar year 2017.[^33]

f. The evidence of Ms. Fiorito, conducting her own research over the internet, was that, as of July 2018, on average, a physiotherapist in Ontario may earn something in the range of $50,000 to $94,000 per annum.[^34]

g. The evidence of Mr. Wiggins, conducting his own research over the internet (and, in particular, the Job Bank website), was that, as of July 2018, a physiotherapist’s median pay when working for others is $37 per hour. On a full-time basis, that would equate to a salary of approximately $76,960 per annum (exclusive of benefits)[^35] – and I would emphasize that is an estimate of a physiotherapist’s median salary.

[137] In all of the circumstances, and considering the totality of the evidence before me, I find that the fair and reasonable amount of income that is appropriately imputed to Ms. Fiorito is $90,000 per annum in each of the calendar years 2017 and 2018.

[138] For the 2018 year, the child support obligation of Ms. Fiorito is straight-forward. On an imputed annual income of $90,000, her obligation as support payor for three children amounts to, on my calculations, $1,764 per month.

[139] However, the child support obligation for 2017 is a little more complicated. I understand that the tables under the Child Support Guidelines were changed effective November 22, 2017. As a result, the precise calculation of Ms. Fiorito’s child support obligation for the 2017 calendar year must accord with the change in the applicable tables.

[140] As such, the court would be assisted by confirmation from counsel of the relevant calculations of Ms. Fiorito’s child support obligation before finalizing the precise amount payable in any formal order. Counsel are kindly requested to file (ideally, on a joint basis), within 30 days, their own calculations of the amount of child support payable for the 2017 and 2018 calendar years in accordance with the findings I have made above.

What amount is payable by Ms. Fiorito for special or extraordinary expenses under s. 7 of the Guidelines for the period from 2016 to 2018?

[141] The respondent father claims payment from Ms. Fiorito for outstanding contributions to s. 7 expenses for the children for the years 2016 through 2018.

[142] The evidence is that, historically, since the parties’ separation in February 2008, the parties agreed to share the s. 7 expenses on an ad hoc and 50-50 basis.[^36]

[143] Ms. Fiorito did not pay anything towards s. 7 expenses from 2016 through 2018. A majority of these expenses were for the children’s dental needs.

[144] As referenced above, a motion concerning s. 7 expenses was heard by Hebner J. on January 22, 2016, which resulted in an order that the applicant mother pay the respondent father the sum of $996 towards her share of certain s. 7 expenses incurred in 2016.[^37] I am advised that amount remains unpaid by Ms. Fiorito.

[145] In their minutes of settlement executed at the October 2014 settlement conference, the parties agreed that, like the table child support obligation, the obligation to share s. 7 expenses was to be fixed and non-variable to December 31, 2016. Again, para. 9 of the Bondy Order provides that: “[c]hild support (both table support and equal sharing of Section 7 expenses) shall be fixed and non-variable to December 31, 2016, after which support shall be reviewed prospectively and not retroactively to apply January 1, 2017 …”

[146] Paragraph 8 of the Bondy Order provides that:

The Applicant shall pay 50% towards medical/dental and similar Section 7 expenses regardless of whether or how the Respondent finances his share (including through insurance).

The motion of the respondent father to adduce further evidence

[147] Following the conclusion of the argument before me in the main on March 16, 2021, and while my decision was under reserve, the respondent father filed a Form 14B motion form dated December 20, 2021, seeking an order to reopen the adjudication to allow for the introduction of additional receipts and proof of delivery for claimed s. 7 expenses that were missing from the exhibits, but which were previously sent to the applicant mother through the Our Family Wizard communication platform. The motion was directed to me for consideration in writing on January 5, 2022.

[148] At the time of the delivery of the motion, counsel for the applicant mother was out of the country. Through a series of endorsements in January 2022, I ruled that while the motion was not appropriately determined by way of a Form 14B motion, the respondent should be given an opportunity to argue his request. Accordingly, I requested that counsel contact the Trial Coordination Office for the purposes of scheduling a hearing of the respondent’s motion back before me, to be heard before the end of January 2022, or as soon thereafter as counsel’s schedules permit.

[149] For a variety of reasons involving counsel and the litigants, which were beyond their control, the hearing of the respondent father’s motion was scheduled for April 13, 2022. The motion was heard at a one-hour special appointment. Counsel also had the opportunity to make submissions on the merits of the evidence proffered, and both availed themselves of that opportunity.

[150] The various factors that should inform the exercise of the court’s discretion to permit the introduction of new evidence before a decision is rendered were extensively canvassed by Nakatsuru J. in Brasseur v. York.[^38]

[151] While I am conscious of the need for finality in litigation, apart from the fact that these litigants have other litigation outstanding, in the instant case the motion was brought before the decision was released. In such circumstances, the authorities have indicated that the balance may tilt more towards fairness and truth-seeking rather than finality. The proffered evidence here is relevant and cogent, and it is directed to a very narrow, limited, and finite point. I am satisfied that its admission will not cause any prejudice to the applicant mother. Counsel for the applicant made detailed submissions to me on why the amounts in question should not be allowed. There is no evidence before me to suggest that any of the countervailing factors are significant. In my view, the truth-seeking interest here is significant.

[152] In these circumstances, I exercise my discretion to admit the new evidence, as I find it is in the interests of justice to do so.

The s. 7 expenses payable

[153] Attached as a schedule to the factum of the respondent father and referenced in para. 61 of his factum is a chart itemizing the unpaid s. 7 expenses in question. As reflected in the chart, Mr. Wiggins claims that the total amount owing by Ms. Fiorito for her 50 percent contribution to the s. 7 expenses is $12,469.03.

[154] However, during the course of the hearing, that claim was modified to render it consistent with my ruling that the scope of the instant adjudication excludes 2019 financial claims. The respondent father’s chart includes nine expense items that were incurred in 2019; those are to be excluded for present purposes.

[155] For 2016, the total amount incurred by Mr. Wiggins for s. 7 expenses for the three children totals $6,396, and Mr. Wiggins claims that Ms. Fiorito should pay her 50 percent of that amount, being $3,198. (It is to be noted that the $3,198 amount includes the $996 sum that Hebner J. has already found is owing by Ms. Fiorito.)

[156] For 2017, the total amount incurred for s. 7 expenses was $4,352.53, and Mr. Wiggins claims that Ms. Fiorito should pay her 50 percent of that amount, being $2,176.27.

[157] For 2018, the total amount incurred for s. 7 expenses was $5,373.12, and Mr. Wiggins claims that Ms. Fiorito should pay her 50 percent of that amount, being $2,686.56.

[158] Thus, the total amount claimed by Mr. Wiggins is $8,060.82, representing Ms. Fiorito’s 50 percent share of all s. 7 expenses incurred in the years 2016, 2017, and 2018 (again, inclusive of the $996 amount already determined by Hebner J. to be owing).

[159] In addition to the evidence presented at the hearing on the main, I have also considered the affidavit of the respondent father sworn December 8, 2021, the responding affidavit of the applicant mother sworn April 1, 2022, and the reply affidavit of the respondent father sworn April 8, 2022. I have reviewed the s. 7 expenses in question, and I am satisfied that they are reasonable and proper s. 7 expenses. I am also satisfied that the respondent father took reasonable and sufficient steps to place the applicant mother on notice of these expenses. The evidence indicates that, in this case, that occurred through the respondent father posting the expenses on the Our Family Wizard communication platform. If, as the applicant mother suggests, she did not regularly check Our Family Wizard, that is for her account. I find that notice of the expenses was properly given and received.

[160] Counsel for the applicant mother argues that many of the tendered documents are not actual “receipts” for the services provided. That is true; some of the expenses incurred by Mr. Wiggins are evidenced by invoices and statements. However, I am satisfied that, whether evidenced by receipt, invoice, statement or the like, the expenses in question (a) are evidenced and (b) were incurred and paid by Mr. Wiggins, and I accept his evidence to that effect. They are proper s. 7 expenses incurred for services provided to the parties’ three children, and both parties should share in their payment.

[161] Counsel for the applicant mother also argued that, in certain instances, there may have been insurance coverage available for some of the expenses in question and, therefore, the applicant mother should not be required to contribute to same. I reject that argument on the basis of, firstly, the express language of para. 8 of the Bondy Order, which provides that Ms. Fiorito is responsible for the s. 7 expenses “regardless of whether or how the Respondent finances his share (including through insurance)” [emphasis supplied] and, secondly, the explanation provided by the evidence set out in the reply affidavit of Mr. Wiggins sworn April 8, 2022, which evidence I accept in its totality.

[162] In view of the evidence of the parties’ historical agreement to share the s. 7 expenses on an equal, 50 percent basis, I would not alter their proportionate contributions. Consistent with their historical practice and the provisions of para. 8 of the Bondy Order, I conclude that Ms. Fiorito should be obliged to contribute 50 percent of the amounts incurred for s. 7 expenses for the years 2016 through 2018.

[163] Accordingly, there shall be an order that Ms. Fiorito shall pay Mr. Wiggins the sum of $8,060.82, representing her 50 percent share of the s. 7 expenses incurred over the years 2016, 2017, and 2018.

Conclusion

[164] For the reasons set out above, Ms. Fiorito’s motion to change the Bondy Order is dismissed.

[165] All terms of the order of the Honourable Mr. Justice Bondy, dated October 7, 2014, remain in full force and effect.

[166] The applicant, Anna Maria Fiorito, shall pay child support to the respondent, Jefferson Ross John Wiggins, for the three children of the marriage, being Juliana Wiggins, born August 27, 2001, Angelina Wiggins, born October 3, 2002, and Catarina Wiggins, born October 2, 2003, in a monthly amount(s) to be confirmed by counsel within 30 days, in accordance with the tables under the Child Support Guidelines based on the applicant’s imputed annual income of $90,000, commencing January 1, 2017, and continuing on the first day of each month that follows until December 31, 2018.

[167] The applicant, Anna Maria Fiorito, shall pay the amount of $8,060.82, to the respondent, Jefferson Ross John Wiggins, representing her 50 percent contribution to the special or extraordinary expenses under section 7 of the Child Support Guidelines incurred for the three children of the marriage, being Juliana Wiggins, born August 27, 2001, Angelina Wiggins, born October 3, 2002, and Catarina Wiggins, born October 2, 2003, over the period commencing January 1, 2016, and concluding December 31, 2018.

Costs

[168] Costs should normally follow the event. Subrule 24(1) of the Family Law Rules provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

[169] My presumptive view is that the respondent father was the more successful party on the motion before me and is entitled to his costs.

[170] That said, counsel should have an opportunity to address the court on these issues, if necessary. I emphasize “if necessary,” as I have been fortunate to have very experienced and senior counsel on the matter before me, and the court expects that such senior counsel will and should be able to resolve the issue of costs themselves.

[171] However, if the parties are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the formatting standards of rule 4.01 of the Rules of Civil Procedure[^39] and the following schedule:

a. The respondent father shall deliver his submissions within thirty (30) days following the release of these reasons;

b. The applicant mother shall deliver her submissions within twenty (20) days following service of the respondent’s submissions;

c. The respondent father shall deliver his reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the applicant’s submissions; and

d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Released: June 30, 2022

COURT FILE NO.: FS-08-00007251-0001

DATE: 20220630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNA MARIA FIORITO

Applicant

– and –

JEFFERSON ROSS JOHN WIGGINS

Respondent

REASONS FOR judgment

Howard J.

Released: June 30, 2022

[^1]: F.(A.M.) v. W.(J.R.), 2011 ONSC 1868, [2011] O.J. No. 2953, 6 R.F.L. (7th) 282 (S.C.J.).

[^2]: F.(A.) v. W.(J.), 2013 ONSC 4272, [2013] O.J. No. 3153 (S.C.J.).

[^3]: F.(A.) v. W.(J.), 2013 ONSC 7770 (S.C.J.).

[^4]: Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5 [Fiorito, 2015 OCA], at para. 10.

[^5]: A.F. v. J.W., 2016 ONSC 3678 (S.C.J.) [unreported].

[^6]: Fiorito v. Wiggins, 2016 ONSC 5822 (S.C.J.).

[^7]: Fiorito v. Wiggins, 2017 ONCA 765, 1 R.F.L. (8th) 61, 415 D.L.R. (4th) 562, 52 C.B.R. (6th) 173 [Fiorito, 2017 OCA]. And this does not include the decision of the Court of Appeal, in chambers, in Fiorito v. Wiggins, 2014 ONCA 603.

[^8]: Anna Maria Fiorito v. Jefferson Ross Wiggins, [2017] S.C.C.A. No. 466, 65 C.B.R. (6th) 12, 2017 CarswellOnt 20592, SCC Case No. 37876, refusing leave to appeal from 2017 ONCA 765.

[^9]: A.F. v. J.W., 2016 ONSC 3678 (S.C.J.) [unreported], at paras. 2-25.

[^10]: Federal Child Support Guidelines, SOR/97-175 [the “Child Support Guidelines” or “Guidelines”].

[^11]: Family Law Rules, O. Reg. 114/99.

[^12]: See Lee v. Lee (1998), 1998 CanLII 18000 (NL CA), 43 R.F.L. (4th) 339, 165 D.L.R. (4th) 619, 167 Nfld. & P.E.I.R. 176 (Nfld. C.A.), at para. 14. The decision has been followed by the Court of Appeal for Ontario, in Contino v. Leonelli-Contino, 2003 CanLII 30327 (ON CA), 67 O.R. (3d) 703, 42 R.F.L. (5th) 295 (C.A.), at para. 27, rev’d on other grounds, 2005 SCC 63, [2005] 3 S.C.R. 217.

[^13]: Our Court of Appeal has held that a motion judge is entitled to take judicial notice of what is in the court file: Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18.

[^14]: Family Law Act, R.S.O. 1990, c. F.3.

[^15]: Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228, 75 R.F.L. (6th) 16, at para. 50.

[^16]: S. (J.) v. S. (D.B.), 2016 ONSC 1704, 79 R.F.L. (7th) 409 (S.C.J.), at paras. 27-29, aff’d sub nom. Smith v. Smith, 2017 ONCA 759, 3 R.F.L. (8th) 399, 418 D.L.R. (4th) 454.

[^17]: Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 17; Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481, 229 D.L.R. (4th) 609 (C.A.), at para. 126; Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767, 265 D.L.R. (4th) 426 (C.A.), at para. 96; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, 344 C.C.C. (3d) 281, at para. 105; and R. v. Gager, 2020 ONCA 274, [2020] O.J. No. 1886, at para. 152.

[^18]: Transcript of the Questioning of Anna Maria Fiorito held July 31, 2018, at p. 43, ll. 1-7.

[^19]: Ibid., at p. 245, ll. 3-4.

[^20]: I would note that this is not the first time a court has expressed some concern for the credibility of Ms. Fiorito. See, for example, the conclusions of Harper J. in F.(A.M.) v. W.(J.R.), 2011 ONSC 1868 (S.C.J.), at paras. 35, 37, 50, 51, 53-54, 57, and 62-96; F.(A.) v. W.(J.), 2013 ONSC 4272 at paras. 32, 33-36, 56, 89, 109, 133, and 137; and F.(A.) v. W.(J.), 2013 ONSC 7770 (S.C.J.), at paras. 7, 18b, 18c, 22, and 27.

[^21]: That said, in fairness, I note the submission in para. 176(b) of the respondent father’s factum that: “[n]one of the asserted bases were advanced until Ms. Fiorito retained her current counsel in April 2016.” I have been unable to locate any documentation in April 2016 in which applicant’s counsel advised respondent’s counsel that these contractual grounds would be raised. However, I stand to be corrected on that point. It was not something that was pursued in oral argument. But, even if such documentation does exist, it would have come some one-and-a-half years after the fact. And so, whether the delay was a year-and-a-half or whether it was some three years after the fact, the point remains: these very serious allegations were certainly not raised in any timely manner.

[^22]: The Court of Appeal reduced the costs award of $400,000 made by Harper J. to $200,000. See Fiorito, 2015 OCA, at paras. 35-36.

[^23]: Fiorito, 2017 OCA, at para. 15; see also para. 9. And see Fiorito v. Wiggins, 2016 ONSC 5822 (S.C.J.), at para. 31(3).

[^24]: Fiorito, 2017 OCA, at para. 32.

[^25]: See letter from Mr. Henry Van Bavel, Harrison Pensa (legal counsel for the trustee in bankruptcy) to Messrs. DiPierdomenico and Ludmer dated September 5, 2018, p. 2: “The Trustee’s file indicates that a telephone message received in the early afternoon of January 26, 2016 noting a phone call from Mr. DiPierdomenico to the Trustee stating that he would be referring a client, Ms. Fiorito.”

[^26]: The trustee in bankruptcy was Ms. Heather Ann Bishop. See Affidavit of Heather Ann Bishop sworn July 25, 2018, at paras. 3 and 6.

[^27]: The review hearing before Hebner J. was held on February 1, 2, 3, 4, 22, 23, 24, and 25, 2016.

[^28]: See, for example, the affidavit of Jefferson Ross John Wiggins sworn July 23, 2018, at para. 57 and Exhibit “G” thereto, indicating that, as of that date, a “quick search” of the internet and, in particular, the Indeed website, showed eight postings for full or part-time positions for physiotherapists in the County of Essex.

[^29]: See attachment to letter dated May 9, 2018, from the office of counsel for Ms. Fiorito to Mr. Wiggins.

[^30]: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, [2002] O.J. No. 3731 (C.A.), at para. 23.

[^31]: Mercer v. Mercer, 2017 ONSC 977 (Div. Ct.), at para. 31.

[^32]: Affidavit of Jim Tracey sworn July 19, 2018, at paras. 3, 4, 8, and 11.

[^33]: Affidavit of Anna Maria Fiorito sworn November 16, 2017, at para.72.

[^34]: Affidavit of Anna Maria Fiorito sworn July 27, 2018, at paras. 105-106.

[^35]: Affidavit of Jefferson Ross John Wiggins sworn July 23, 2018, at paras. 56-57 and Exhibit “G” thereto.

[^36]: Affidavit of Jefferson Ross John Wiggins sworn July 23, 2018, at para. 39.

[^37]: See the order of the Hon. Madam Justice Hebner dated January 22, 2016.

[^38]: Brasseur v. York, 2019 ONSC 4043 (S.C.J.), at paras. 37-49. See also Paftali v. Paftali, 2020 ONSC 5325, 46 R.F.L. (8th) 1 (S.C.J.), at paras. 180-181.

[^39]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.