Court File and Parties

Court File No.: FS-20-16338 Date: 2023-10-25 Superior Court of Justice - Ontario

Re: Jessica Bortoleti De Oliveira, Applicant And: Kurt Ashley Ritchie, Respondent

Before: W.D. Black J.

Counsel: Both parties representing themselves

Heard: October 3, 2023 – October 17, 2023

Endorsement

OVERVIEW

[1] After separating in April of 2018, and negotiating terms of their separation over several months between February of 2018 and December of 2018, the parties signed a separation agreement dated December 21, 2018.

[2] The central issue in the trial before me, in which both parties represented themselves, is the applicant’s request that the separation agreement be set aside. If the agreement is set aside, then the applicant Ms. Bortoleti de Oliveira (Ms. Bortoleti) asserts that fairness requires the separation agreement to be effectively re-written to improve the outcome for her.

[3] The respondent Mr. Ritchie, for his part, seeks to uphold the separation agreement, or in the alternative to re-write the terms of separation to give him a more advantageous result.

[4] Determining these issues requires a consideration and application of the provisions of sections 54 – 56 of the Family Law Act (R.S. O. 1990, c. F.3), and in particular s. 56(4), to assess whether or not the evidence shows that one party or the other has failed to make significant disclosure, if a party “did not understand the nature or consequences of the domestic contract”, or if otherwise the agreement should be set aside in whole or in part in accordance with the law of contract.

[5] I am also required to consider the evidence as a whole to determine, in the event that the separation agreement or part of it is set aside, what is the appropriate outcome on the various issues subsumed in the separation agreement in respect of which, notwithstanding the separation agreement, there has been ongoing dispute.

OVERALL CONCLUSIONS

[6] In the result, I find that the best interests of the parties’ two sons is achieved by upholding the terms of the separation agreement, with some additional directions and with the firm admonition that the parties are to set aside their personal grievances, stop their personal attacks on one another, and from now on act in a way that puts their children’s well-being and interests first and foremost.

ADDITIONAL PRELIMINARY OBSERVATIONS

[7] The separation agreement confirms that it was intended to settle all issues between the parties, that the parties sought “freedom” from one another, that the parties would be bound by the terms of the agreement, which replaced any pre-existing agreements between the parties.

[8] Perhaps predictably, given the extremely tumultuous and toxic history of the relationship between the parties, and despite their stated intention of being free of one another, the parties almost immediately devolved, after signing the agreement, into a continuation and sometimes an escalation of various aspects of their ongoing dispute.

[9] I observe that various aspects of the conduct of both parties has been and continues to be objectively disappointing, and that both parties exhibit a troubling continued willingness to put their personal agendas and grudges ahead of the best interests of their children.

[10] The parties both focused considerable attention and led considerable evidence about who was most to blame for the acrimonious fallout from their separation, and who was most to blame for the undeniable impact on their children. This meant that there was considerable attention to events in 2018 – 2020 in particular. While there is no gainsaying the extent of marital and familial strife during that time period in particular, the focus on that timeframe tends to deflect from the critical importance of what is in the children’s best interests currently (which is the most important factor leading to this decision).

[11] This court will take a very dim view of any “self-help” conduct of the parties from this date forward, or any breaches or attempts to circumvent the terms of the separation agreement or the Order flowing from this decision.

BACKGROUND

A. Initial Meeting of the Parties, Their Marriage, and the Births of Their Sons

[12] The parties met in 2009, when Ms. Bortoleti was 19 years old and the respondent, Kurt Ashley Ritchie was 37 years old.

[13] Ms. Bortoleti had moved to Canada from her native Brazil in August of 2008 when she was 18 years old.

[14] The parties moved in together in 2010. Their elder son Lucca was born in Brazil in December of 2010. As of the date of Lucca’s birth, Ms. Bortoleti had not only left Toronto, but had seemingly left the relationship with Mr. Ritchie. There is a dispute between the parties about the reasons for Ms. Bortoleti’s departure at that time: Ms. Bortoleti alleges that she left as a result of ongoing abuse by Mr. Ritchie; Mr. Ritchie maintains that Ms. Bortoleti was obliged to leave Canada owing to her immigration status.

[15] Whatever the reason for Ms. Bortoleti’s return to Brazil, it is agreed that, after Mr. Ritchie attended in Brazil in December of 2010 for the birth of their child, Ms. Bortoleti returned to Canada and married Mr. Ritchie in June of 2011.

[16] The parties also disagree about their respective intentions relative to the relationship between them at that time. Mr. Ritchie in particular maintains that he had never intended to end up in a long-term relationship with Ms. Bortoleti, let alone a marriage, but that he decided, in the best interests of their son, to attempt to make a go of it.

[17] The parties lived together in Toronto, with some interruptions, for a few years following their eldest son’s birth.

[18] In April of 2016 their second son, Ashton was born. There is again a dispute about the backdrop to Ashton’s birth; Mr. Ritchie says that the parties never discussed having a second child, and that Ms. Bortoleti’s pregnancy with Ashton, like the previous one with Lucca, was a surprise to him.

B. Volatility of the Relationship

[19] In the meantime, it appears that the relationship continued to be volatile.

[20] Ms. Bortoleti alleges that Mr. Ritchie’s abusive behaviour resumed, and that, among other problems, he became addicted to pornography. She alleges that Mr. Ritchie exerted financial and other coercion over her, and was controlling and dictatorial. Mr. Ritchie alleges that Ms. Bortoleti constantly yelled at him, was irrationally jealous, and attempted to control his every activity.

[21] The continuing problems peaked in March of 2018 when police were called to the parties’ matrimonial home (on the Esplanade in downtown Toronto), in circumstances in which Mr. Ritchie was alleged to have physically assaulted Mr. Bortoleti, allegedly scratching, pushing and slapping her. The police laid a number of charges. Mr. Ritchie was released pending trial on certain conditions including conditions limiting his contact with Ms. Bortoleti. He ultimately pleaded guilty – in February of 2019 - to one count of uttering a threat of bodily harm. He received a conditional discharge, one of the conditions of which was that he would have no contact with Ms. Bortoleti except as required by this court in connection with arrangements for the children. He was also ordered not to come within 50 meters of Ms. Bortoleti, again except as ordered in the family court proceedings or with prior written consent.

C. Date of Separation

[22] The parties separated on April 5, 2018, a few days following the incident leading to the criminal charges against Mr. Ritchie. Mr. Ritchie maintains that at around this time he discovered that Ms. Bortoleti had been having an affair with a Brazilian lawyer called Marco Ferreira, including during Ms. Bortoleti’s trip to Brazil earlier in 2018 with the two children (she made frequent trips to Brazil to visit her extended family there).

[23] Ms. Bortoleti acknowledges that she met Mr. Ferreira during her trip to Brazil in early 2018, but denies that she commenced an affair with him at that time. While the timing of the relationship preoccupied the parties at trial, and while it is clearly a flashpoint for them even up to today, the matter is of no moment to my determination.

D. Ms. Bortoleti’s Subsequent Marriage to Mr. Ferreira

[24] It is clear and uncontested that at some point Ms. Bortoleti did have a relationship with Mr. Ferreira. He moved to Toronto in April of 2019, with his then 14‑year old son from another relationship, and they moved in with Ms. Bortoleti. Ms. Bortoleti maintains that it was only then that she and Mr. Ferreira began an intimate relationship. They were married in August of 2019, shortly after the divorce between the parties was finalized on July 4, 2019.

[25] The marriage between Ms. Bortoleti and Mr. Ferreira was somewhat short‑lived. They separated in October of 2022 and Mr. Ferreira returned to live in Brazil in December of 2022. It seems that Mr. Ferreira, despite being a lawyer in Brazil, was unable to find work in Canada other than a series of transient labour jobs. In any event, Mr. Ferreira’s sojourn in Canada, and his marriage to Ms. Bortoleti, did not last.

E. Ongoing Texts Between the Parties Post‑Separation

[26] In keeping with the turgid nature of the relationship between Ms. Bortoleti and Mr. Ritchie, in parallel with: the alleged assault in March of 2018; with Mr. Ritchie’s suspicions about Ms. Bortoleti’s relationship with Mr. Ferreira; with the parties’ separation; and with the negotiation of the separation agreement, the parties continued to exchange texts. They discussed resuming their relationship, or at least the sexual component of their relationship, and it seems clear that on one or more occasions, they did so.

[27] The texts in which the parties discuss potential sexual encounters are interspersed among texts in which Mr. Ritchie accuses Ms. Bortoleti of having an affair (or affairs), texts accusing one another of poor parenting, and texts discussing the status of the separation agreement which, at various points, one or the other party seemed anxious to complete. At other points one or the other party seemed in less of a hurry to complete the separation agreement. The fact that the texts are riddled with accusations back and forth about various misconduct alleged by the parties against one another alongside texts in which they discuss past and potential sexual encounters illustrates the volatile nature of their relationship.

[28] As noted, the parties seemed intent on characterizing one another as bad parents and bad people. Each accused the other of making false accusations. Each accused the other of mistreating the children.

F. Involvement and Evidence of CAS and OCL

[29] At various points each party made allegations to police, to the Toronto CAS, and to the OCL decrying the conduct of the other parent, and alleging that such conduct rose to the level of abuse or neglect.

[30] During the trial I heard from witnesses from the CAS and OCL respectively. Mr. Ritchie objected to the introduction of certain evidence from these sources, and I conducted a voir dire concerning the admissibility or otherwise of this evidence.

[31] The basis for Mr. Ritchie’s objections was that the evidence was now outdated, having been assembled in the 2018 – 2020 period, and that the CAS and OCL did not appreciate or give effect to his positions alleging Ms. Bortoleti’s shortcomings as a parent, and in fact found evidence that he had been involved in a campaign of alienation against her. Mr. Ritchie also took particular exception to the CAS and OCL’s conclusions that he had “coached” one of his sons to say certain things in interviews within the investigation(s). The CAS was ultimately persuaded, in response to Mr. Ritchie’s formal complaints, to modify the language from coaching to say instead that “Mr. Ritchie wanted Lucca to ensure his son would remember all the things that he (Lucca) was worried about in order to tell the case worker during her visit.”

[32] This correction was clearly important to Mr. Ritchie, and he spent considerable time at trial emphasizing it. In my view the correction does not obviate the underlying finding that Mr. Ritchie was involved in preparing his son’s response to an investigator’s questions, nor the more troubling conclusion that Mr. Ritchie drew his son into the dispute within the context of which the interview was taking place. The OCL found, and Mr. Ritchie admitted during the course of their interviews with him, that he had told their eldest son that the applicant is “a liar, a bad person, and that she cheated on him.” The OCL investigator also found evidence that Lucca looked to Mr. Ritchie for “approval regarding the negative things that [Lucca] shared about his mom,” and that when the investigator confronted Mr. Ritchie with this concern Mr. Ritchie responded “of course he wants my approval, I am his dad.”

[33] Having conducted the voir dire, I determined that the evidence from the CAS and OCL was admissible. The CAS and OCL reports, and the testimony given by representatives of those organizations, reflect a thorough and measured assessment of the family, with particular emphasis on the safety and well-being of the children.

[34] The investigations yielding these reports were undertaken within the last five years, and, although dated in part, are instructive in illustrating the family dynamics, the conduct of the parties, and the circumstances of the children.

[35] As with the other evidence before me, this evidence reflects poorly, to varying degrees, on both parties.

[36] It confirms that Mr. Ritchie was directly involved in influencing or even scripting the answers that he wanted his sons to give to independent investigators, effectively telling his sons to speak highly of him and poorly of his mother. He told his older son on more than one occasion that Ms. Bortoleti was a liar and a bad person.

[37] While it also concludes that Mr. Ritchie’s allegations about Ms. Bortoleti’s abuse and neglect of the children were not borne out, it nonetheless reflects poorly on her in certain instances, for example expressing a concern about Ms. Bortoleti’s new husband Mr. Ferreira inappropriately disciplining the parties’ children, and about aspects of her own interactions with the children.

[38] It confirms that she tended to yell at the children when disciplining them, and that she often chose not to take the children to programs or classes in which they were enrolled (by Mr. Ritchie) when it was her parenting time, viewing these activities as an intrusion on her time with them.

[39] Consistent with their overall positions before me, the parties were at pains in their communications with the CAS and OCL, including in their respective cross-examinations of the representatives of these agencies at this trial, to show that the opposite party’s allegations were fabricated, and that any adverse conclusions about the particular party asking the questions were unfounded.

[40] For example, as noted above, when the CAS expressed a concern about Mr. Ritchie “coaching” his son(s) for purposes of the CAS interviews with them, Mr. Ritchie contacted supervisors, wrote complaining correspondence, and ultimately persuaded the CAS to change the language of the criticism from “coaching” to a concern about influencing the children’s involvement in the process.

G. Impact of the Dispute on the Children

[41] Overall, it is clear that the agencies’ greatest concern, quite appropriately, was that the children were being drawn into the fray, and that it was having significant emotional impact on them.

[42] In particular, the eldest son experienced and exhibited emotional turmoil, to the point of expressing suicidal ideation.

[43] Again, the response of the parties to that revelation, both at the time and to a large extent at trial, was to blame one another for their son’s emotional difficulties, rather than to focus on their son’s needs and their own potential roles in his distress.

[44] The rather obvious conclusion, endorsed by both the CAS and OCL, was that the child’s emotional difficulties were fundamentally a by-product of the ongoing dispute between his parents, and a result of him being pushed into the middle of that dispute.

[45] Again, the failure of the parents to understand the impact on their son of their ongoing hostilities and unending recriminations is reflective of the way they have approached this litigation all along; to differing degrees on various issues they are each more concerned with “winning” than with the well-being of their children.

[46] Mr. Ritchie’s efforts to influence the children in his favour and against their mother appear to have continued post-separation. He continued to send texts to Ms. Bortoleti peppered at times with lurid and inexcusable language and accusations. During his closing argument, Mr. Ritchie acknowledged that he is not proud of the language he employed in some of these texts.

[47] It is also clear from the testimony of certain witnesses he called at trial, including his close friend Grace Perreira, certain neighbors from his building, and his mother, that he continued to emphasize a narrative in which Ms. Bortoleti was the irrational aggressor, and he was the innocent victim. For the most part I find that these witnesses were doing their best to be fair and objective in their testimony (understandably his mother strayed from objectivity on occasion). However, it was clear that Mr. Ritchie had omitted or only partially informed the witnesses about his own role in the ongoing hostilities, and as such their evidence was somewhat slanted by these omission(s).

[48] This is not to suggest that Ms. Bortoleti’s post-separation conduct was unassailable. For example, among other questionable steps she took, on an occasion post-separation when Mr. Ritchie had kept the children for longer than his allotted time (allegedly in response to Ms. Bortoleti having done so), Ms. Bortoleti posted a document on a Facebook page frequented by various families living in the building in which Mr. Ritchie lives accusing him of kidnapping and of being a convicted criminal. Again this reflects inexcusable conduct, whatever Ms. Bortoleti’s emotional distress when she made the post.

[49] It is not unusual, in my experience, for parties to see their disputes in such simplistic and uniform ways, viewing their own conduct as above reproach, and blaming all problems on the party opposite. Here, as is usually the case, the evidence does not support such a dogmatic conclusion on either side.

[50] For the most part, other than taking it onboard as illustrating the sometimes woeful conduct of the parties, I put little weight on the parties’ respective blame of one another for everything that has gone wrong. It seems to me that there is ample blame to go around, and that the time has come for the parties to lay down their weapons and think about their children.

H. Faieta J.’s Admonition to the Parties

[51] I note that this is not a new message to the parties. In dealing with a motion in this matter in November of 2020 covering some of the same ground on which we travelled at trial, Faieta J. said:

“In this case, based on the evidence provided, I have real concerns about the judgment of both parents. The suicidal ideations expressed by Lucca concern me even more. It should have caused the parents to look introspectively as to whether and how they contributed to Lucca’s feelings and how they could behave differently for their children’s sake. None of that is reflected in the evidence. Instead, the parties appear self-absorbed with their own grievances and needs.”

[52] As usual His Honour captured the essence of the parties’ motives and behaviour, and the evidence at trial showed that the parties have not taken to heart Faieta J.’s direct and sage advice delivered almost three years ago. As noted, they continued at trial to see their own conduct and that of their adversary in black and white terms – each seemingly persuaded that he or she was entirely in the right and their ex-spouse entirely in the wrong.

[53] I have no doubt that the reaction of each party will be that I, like Faieta J., am missing the obvious merits of their position and missing the reprehensible behaviour of the party opposite. I encourage the parties, as Faieta J. did, to stand back and appreciate how their respective ongoing preoccupations with their various grudges and grievances have impacted and will continue to impact their children.

NO BASIS TO SET ASIDE SEPARATION AGREEMENT

[54] While I am persuaded that both parties have engaged at various points in unacceptable self‑help, and that their conduct has been in many respects reprehensible, I am not persuaded that the separation agreement needs to be set aside, or that its provisions are unfair to either party.

[55] The recommendations of the OCL, taking into account the CAS input, and noting the shortcomings of both parents, nonetheless supported equal parenting time and an arrangement largely in keeping with what the separation agreement contemplated.

A. The Agreement Serves the Children’s Best Interests

[56] Moreover the evidence at trial, including for the most part by the parties, is that, happily, the children appear at this time to be doing very well. In particular, the relationship of both children with each parent appears to be close and productive, and allowing the children now to thrive.

[57] I find that the separation agreement is in fact in the best interests of all concerned, including in particular the children, and that the problem here has largely been the parties’ unwillingness, clouded by their animosity towards one another, to abide consistently by the terms of the separation agreement.

B. The Test for Setting Aside a Separation Agreement

[58] The Family Law Act (R.S.O. 1990, c. F.3) deals with separation agreements and the circumstances in which a separation agreement may be set aside, in sections 54-56.

[59] Section 56(4) provides that the court may set aside a domestic contract (which includes a separation agreement) in whole or in part if one party or the other has failed to make significant disclosure, if a party “did not understand the nature or consequences of the domestic contract” or otherwise in accordance with the law of contract.

[60] Ms. Bortoleti’s position is effectively a combination of assertions that Mr. Ritchie failed to make certain disclosure, and that she was rushed or bullied into the agreement without fully appreciating its consequences.

C. Extensive Exchange and Negotiation of Draft Separation Agreement

[61] A form of separation agreement was first prepared and exchanged between the parties near the time of their separation in the early part of 2018. It is noteworthy that Ms. Bortoleti prepared that first draft.

[62] Ms. Bortoleti engaged Ms. Kerry Gearin to advise her on the separation agreement in April of 2018. Mr. Ritchie formally engaged counsel to advise him in that regard a couple of months later (there was a version of the agreement prepared by counsel on behalf of Mr. Ritchie sent to Ms. Bortoleti’s counsel dated August 1, 2018).

[63] It appears, however, that the main elements of the agreement had been discussed by the parties, without yet involving counsel, as early as February or March of 2018, and that in fact those terms remained largely intact throughout the negotiation, including once counsel were involved.

[64] While Ms. Bortoleti was initially vying for a scenario in which she and the children would relocate to Brazil, by the time the parties were exchanging substantive draft separation agreements that was no longer the case; Ms. Bortoleti had determined to live in Toronto.

D. Final Version of the Agreement

[65] The final version of the separation agreement initially confirms background information about the marriage, the matrimonial home, and the children. The parties acknowledge the truth of these background facts, and confirm their intention to be bound by the separation agreement, which they acknowledge is intended to settle all issues between them.

[66] After setting out certain definitions, the agreement then confirms the intention of the parties to be free from one another, and to limit their contact to that necessary to parent the children.

[67] The agreement then provides that the parties are to have joint custody of the children, are to have joint decision-making, and sets out a schedule reflecting equal parenting time, including with respect to holidays and summer vacation.

[68] The agreement confirms that the parties are to be flexible, and are to put their children’s best interests as the primary objective and concern where any issues arise.

[69] On the issue of travel arrangements, which has at times been contentious between the parties, the separation agreement strikes a reasonable balance with respect to passports and travel plans and, among other things, requires that either party only travel outside of Canada with the consent of the other party. I note that at trial Mr. Ritchie specifically confirmed that in general he now has no concerns about Ms. Bortoleti travelling to Brazil with the children; his concern is only to ensure that Ms. Bortoleti does so during her prescribed time with the children, and not during his time.

[70] Support payments pursuant to the separation agreement were premised on Mr. Ritchie’s annual income of $51,726.00 (about which there is now disagreement). Using that figure, it was agreed that Mr. Ritchie would pay child support in the amount of $1,200.00 per month, and would pay 100% of specified s. 7 expenses. Going forward, it was agreed that commencing on July 1, 2021, Mr. Ritchie would pay child support based on his 2020 income and that Ms. Bortoleti would likewise pay child support based on her 2020 income.

[71] The parties agreed to exchange income information on an annual basis, and to adjust the child support payable, including both the Table Amounts and the proportionate sharing of s. 7 expenses.

[72] It was agreed that Ms. Bortoleti would receive the Canada Child Benefit credit, the refundable GST/HST credits, and the federal non-refundable tax credit, and the Ontario Child Benefit for both boys, and that these benefits/credits would not affect the Table child support calculation.

[73] With respect to equalization, it was agreed that Mr. Ritchie would pay to Ms. Bortoleti the total amount of $85,000.00, and he did so, in two instalments. It is noteworthy that Ms. Bortoleti’s original demand was for a $100,000.00 equalization payment, and that the $85,000.00 was the product of the ongoing negotiation. The parties specifically acknowledged that the value of the matrimonial home, at which Mr. Ritchie would continue to live, was factored into the agreed equalization payment.

[74] It was also agreed that Mr. Ritchie would pay to Ms. Bortoleti spousal support in the amount of $300.00 per month for a 16‑month period commencing on March 1, 2019, and that at the end of the 16‑month period, Mr. Ritchie’s obligation to pay spousal support would end. The agreement noted that the spousal support arrangement was tethered to Ms. Bortoleti’s plans to attend an educational program ending on June 30, 2021 (following which it was anticipated that she would begin to earn a more substantial and predictable income). In conjunction with the agreement, the parties released one another from any and all claims.

[75] On the issue of financial disclosure, the agreement confirmed that Mr. Ritchie had provided various disclosure with respect to his income, assets and liabilities. It appears from correspondence in evidence that Mr. Ritchie in fact sent at least three rounds of disclosure and expressed a willingness to provide anything else that Ms. Bortoleti sought. The agreement provided that there had been no such disclosure from Ms. Bortoleti.

[76] It also recited that Ms. Bortoleti had investigated Mr. Ritchie’s financial circumstances and was satisfied with the disclosure and her investigation. The agreement went further to provide that the parties agreed that an alleged lack of financial disclosure would not constitute a ground for avoiding the provisions of the agreement. The parties specifically acknowledged and set out in part the provisions of section 56(4) (a) of the Family Law Act.

E. Legal Advice Received by Ms. Bortoleti

[77] On the topic of independent legal advice the agreement noted that Mr. Ritchie had received independent legal advice from Dana Lue. It also noted that Ms. Bortoleti had received independent legal advice from Ms. Gearin, but had decided to sign the agreement “without her lawyer”.

[78] Ms. Gearin testified that although she had provided advice along the way, she believed that her input did not qualify as independent legal advice for purposes of the agreement. That may be fair, but equally it is clear that Ms. Gearin provided advice concerning various iterations of the agreement, and re-drafted various clauses during the months of negotiations in which she was involved.

[79] Both parties represent, in the agreement, that they understand their respective rights and obligations thereunder. They acknowledge that the agreement is “fair and reasonable”, that neither was under “any undue influence or duress” relative to the agreement, and that they are each signing the agreement voluntarily.

[80] Ms. Bortoleti’s Waiver of Independent Legal Advice is attached to the agreement. In that waiver, she confirms that she is aware of and understands each and every term of the agreement and understands her rights and obligations therein.

[81] She also confirms that Mr. Ritchie’s solicitor (Dana Lue) was advising Mr. Ritchie alone, and not Ms. Bortoleti, relative to the agreement.

[82] She confirms Dana Lue’s recommendation that she obtain independent legal advice, and that she has had the opportunity to obtain such advice. She also confirms that she did receive legal advice from Ms. Gearin, that she wished to enter into the agreement notwithstanding Ms. Gearin’s advice (that she obtain additional disclosure), that the agreement correctly set out her “wishes and intentions” and that she would not seek to challenge the agreement at a later date on the basis that she signed it without her lawyer Ms. Gearin or that she did not understand its terms.

[83] Finally, Ms. Bortoleti specifically acknowledged that she was executing the agreement of her own volition and without “fear, threats, compulsions or influence” by Dana Lue or any other person.

[84] These various representations are not definitive to my determination under s. 56(4) of the Family Law Act, but I must take them into account as part of my assessment.

THE SEPARATION AGREEMENT IS BINDING

[85] I find that the separation agreement is binding on the parties, and should remain in effect.

[86] I do so because, first, I find that Ms. Bortoleti is intelligent and sophisticated, and well able to understand, albeit as a lay person, the meaning and implications of the terms of the agreement that she signed.

[87] It is true that at the time of executing the agreement, Ms. Bortoleti did not have a solicitor advising her, nor final independent legal advice from Ms. Gearin (or any other solicitor).

[88] However, it is also true that up to the 11^th hour, and during the months-long exchange of multiple drafts of the separation agreement, Ms. Bortoleti did have the benefit of Ms. Gearin’s advice, and in fact the benefit of Ms. Gearin’s input on and drafting of various of the terms of the agreement.

[89] Ms. Gearin’s stated concern to Ms. Bortoleti, as the reason why Ms. Bortoleti should not yet sign the agreement, was that there was outstanding disclosure owed from Mr. Ritchie on financial matters.

THERE WAS CONSIDERABLE FINANCIAL DISCLOSURE

[90] That may well have been the case, but equally Mr. Ritchie had provided, initially on his own behalf and then through counsel, rounds of financial information requested on Ms. Bortoleti’s behalf. The financial disclosure may have been incomplete as Ms. Gearin cautioned, but it was not insubstantial.

[91] I do not wish to be taken to be saying that substantial financial disclosure is sufficient to meet a party’s obligations under the Family Law Rules (or otherwise). A party is obliged to make full and complete financial disclosure of all relevant items.

[92] However, in determining whether or not to set aside the separation agreement pursuant to s. 56(4), I must determine whether Mr. Ritchie has failed to disclose to Ms. Bortoleti, for the purposes of the agreement, “significant assets, or significant debts of other liabilities existing when the domestic contract was made.”

[93] There is no evidence, and really not even an allegation, that Mr. Ritchie had significant undisclosed assets, debts or liabilities.

[94] The potentially contentious issue related to financial disclosure, according to the testimony I heard, was the question of the income attributed to Mr. Ritchie for purposes of support calculations.

[95] The evidence presented at trial was insufficient to allow me to make an informed determination about whether or not the income attributed to Mr. Ritchie for purposes of the separation agreement was a fair reflection of his ongoing earnings.

[96] However, by and large, it does not matter.

SPECIFIC MECHANISM IN THE AGREEMENT TO UPDATE INCOME

AND ADJUST PAYMENTS

[97] That is, the separation agreement specifically provides that the question of Mr. Ritchie’s income is to be revisited after the initial period covered by the agreement, and sets out a mechanism for that purpose.

[98] Section 6.5 of the agreement provides that commencing on July 1, 2021 the child support payable by Mr. Ritchie to Ms. Bortoleti would be based on his 2020 income. Section 6.11 confirms that based on ongoing annual exchanges of income information on or before May 1, the parties may adjust both the table child support payable and the proportionate sharing of the children’s special or extraordinary expenses, with such changes taking effect on July 1.

[99] The agreement contemplates that neither party would file it with the Family Responsibility Office for enforcement unless Mr. Ritchie defaulted on payments due.

NO BASIS TO CONCLUDE THAT MS. BORTOLETI DID NOT UNDERSTAND

OR WAS PRESSURED INTO THE AGREEMENT

[100] I heard evidence that Mr. Ritchie at a certain point unilaterally reduced the amount of child support payments, he said because his income had been reduced he could not afford the agreed amount. It appears that FRO then became involved and, by the time of trial, Mr. Ritchie had paid off outstanding arrears.

[101] I was also told that Mr. Ritchie is currently paying $790.00 per month in child support payments, which is or may be based on an income that Mr. Ritchie earned in one recent year in the amount of just in excess of $103,000.00. On its face, that monthly child support payment is low. Ms. Bortoleti points out that the table amount for child support based on Mr. Ritchie’s income of $103,000.00 (and hers, until this year, of zero or close to zero) would be over $1,500.00 per month.

[102] I note that the evidentiary record is lacking on these details. On the bright side, clearly there is a mechanism within the agreement to assess incomes and adjust child support payments annually. It appears that the parties’ adherence to this regimen, as with other provisions of the agreement, has been spotty.

[103] On the issue under section 56(4) (b) of the Family Law Act, as to whether Ms. Bortoleti “did not understand the nature or consequences of the [separation agreement]” I find that she has not demonstrated on a balance of probabilities that this was the case.

[104] As noted above, she is intelligent and sophisticated.

[105] She had legal advice throughout much of the period of negotiation, and it appears that most of the provisions of the separation agreement were in keeping with her stated wishes.

[106] She says now that she was pressured into concluding the agreement, and that in particular the imbalance of financial power between the parties left her with no option but to capitulate. This allegation gave me the most pause, given that financial coercion can be a powerful impetus, and given that Mr. Ritchie has clearly out-earned Ms. Bortoleti throughout their relationship, and that she, more than Mr. Ritchie, has parked her educational and employment pursuits in favour of parenting their children.

[107] However, I do not find that it was Mr. Ritchie’s financial or other control over Ms. Bortoleti that caused her to sign the agreement.

[108] Her own evidence was that she very much wanted to be free from their relationship, and the contemporaneous record confirms that she, more than Mr. Ritchie, was pushing to finalize the agreement.

[109] I appreciate that Ms. Bortoleti’s evident wish to complete the agreement expeditiously can be seen as consistent with someone seeking to get out from under coercive control. However, on balance, I do not find that that was the case here. Rather, it seems clear to me that Ms. Bortoleti was anxious to get on with other aspects of her life.

[110] Importantly, as specifically contemplated by the separation agreement, Ms. Bortoleti’s plan was to resume her education and enter the workforce on a full-time basis, and, while there is room to debate the appropriateness or sufficiency of the amounts that Mr. Ritchie agreed to pay for child and spousal support, and equalization, it is apparent that those payments were intended to facilitate Ms. Bortoleti’s educational and employment goals.

[111] In addition, though, it is also very clear that Ms. Bortoleti’s wish to extricate herself from the marriage with Mr. Ritchie was also driven in part by her wish and expectation to formalize her budding relationship, at that time, with Mr. Ferreira.

[112] Within a few weeks of the execution of the separation agreement, Ms. Bortoleti and Mr. Ferreira embarked on a trip together to various destinations in Europe.

[113] Within a few months thereafter, they were married, and Mr. Ferreira had moved with his son to Canada.

[114] Ultimately the relationship with Mr. Ferreira did not work out in the way that Ms. Bortoleti had hoped. Of course, the fact of the relationship and the marriage with Mr. Ferreira is not definitive proof that Ms. Bortoleti was not oppressed and pressured during her relationship with Mr. Ritchie, or in the context of negotiating the separation agreement. However, taking it into account together with the evidence that Ms. Bortoleti was advised by a solicitor during most of the negotiation of the separation agreement, and the evidence that the terms of the agreement largely aligned with Ms. Bortoleti’s stated wish list, I find that Ms. Bortoleti has not met the burden of proving that she did not understand the nature or consequences of the agreement.

DISCUSSION AND CONCLUSIONS DECISION‑MAKING AND PARENTING TIME

(AND RELATED ITEMS)

[115] The parties are at odds on the question of decision-making, and partially at odds regarding parenting time.

[116] On decision-making, the separation agreement provides for joint decision-making with respect to “important decisions”, including education, major health care, major recreational activities, and religious activities, but does not set out the details of what collaboration is required, nor a mechanism for breaking an impasse.

[117] Ms. Bortoleti in particular alleges that, although the parties have notionally operated by way of joint decision-making, in practice Mr. Ritchie has largely decided about the boys’ schools and recreational activities based on his own geographic convenience, and that she has had little choice but to go along.

[118] I note that when Ms. Bortoleti moved to the Finch and Yonge area with her (then) new husband Mr. Ferreira, she unilaterally signed the boys up for schools in that area, but that this Court has not countenanced that maneuver. In an endorsement dated October 7, 2020, Justice Kiteley noted “considerable conflict between the parents as to whether the older child should attend the school he was expected to attend (in downtown Toronto) or the school in the catchment area where the Applicant now resides (in the north end in the vicinity of Finch).

[119] Her Honour noted that “The Applicant has moved from the geographical area contemplated by the separation agreement. Indeed, she has moved to the far end of Toronto from the downtown area.” Kiteley J. wrote “I do not condone the Applicant moving out of the agreed upon geographical area” and that “I do not consider it to be in the best interests of the older child to spend 45 to 60 minutes morning and evening in a vehicle to attend in person at the Island School for the period between now and the decision on the motions.”

[120] That issue, among others, then came on before Faieta J. in October and November of 2020. His Honour paved the way for the elder child to be enrolled for online learning at the Island Park School (downtown, near Mr. Ritchie’s residence) and concluded that it was “premature to determine whether it is in Lucca’s best interests to change schools” pending a potential report from the OCL.

[121] While the OCL report was entered into evidence following the voir dire, and while it deals with a host of issues, it does not discuss the issue in late 2020 concerning the choice of schools. It may be that Ms. Bortoleti had moved closer to downtown by then (she moved at some point to St. Clair Avenue) or had determined to do so. In any event, the choice of schools issue seems to have gone to some extent to the wayside.

[122] The OCL report did suggest that, given the parties demonstrated inability to give up their grievances and co-parent effectively, it would make sense for Ms. Bortoleti to have ultimate decision-making authority.

[123] I observe from today’s vantage point that there may have been some wisdom in that suggestion. The parties have, as the OCL predicted, continued their preoccupation with anger‑driven positions, and their conduct has impacted their children negatively.

[124] That said, the separation agreement confirmed shared decision-making and, albeit with significant bumps on the road, especially in the early post-separation period, hostilities have to some extent diminished in recent years and the parties’ expressions of mutual distrust and dislike have also reduced in number and intensity.

[125] The parties agree that choices about the boys’ schools and activities have been dominated by Mr. Ritchie’s wishes (and his continued involvement in registering the boys at schools and in activities for which, he purports, they have expressed a preference).

[126] Ms. Bortoleti’s evidence is that while she is not satisfied with many of the choices, she has decided to take a “go along to get along” stance pending this trial.

[127] I believe that the joint decision-making dictated by the separation agreement can work, albeit that some additional structure is required. My determination on this score is informed in part by the parties’ agreement that there are fewer choices looming on the current horizon than when the children were younger. The eldest child will go to high school next year and is already expressing a preference to attend a school that is not in either parent’s neighborhood (and is in fact somewhat closer to Ms. Bortoleti’s current home than to that of Mr. Ritchie).

[128] In a few years there will be a choice to be made about the younger son’s middle school (he is currently in second grade). I believe that with some additional parameters the separation agreement can provide a basis for the parties to reach an agreement about that decision when the time comes.

[129] It is of particular importance to my decision here that by all accounts the parties’ two sons seem now to be thriving. They are both ensconced in school and various extra-curricular activities, and both are said to be able to make friends easily, and to have a number of friends.

[130] It is also apparent that, notwithstanding the earlier turbulence, both boys are happy and comfortable in the company of both parents.

[131] It would be naïve to assume that the boys carry no emotional scars from their parents’ pitched battles, particularly in the early post-separation period. Both boys may well need additional therapy at some point, and the parties are encouraged to keep a close eye on their sons for signs of latent or emerging emotional distress.

[132] However, and a testament to the remarkable resilience of children, the boys seem to have adjusted well to the current circumstances, and both seem to benefit from and enjoy the time they spend with each parent. I note that there was repeated evidence to the effect that the boys enjoy the company of Ms. Bortoleti’s current boyfriend; that evidence was in contrast to their relationship with Ms. Bortoleti’s second husband Mr. Ferreira, whose inappropriate style of disciplining the boys – apparently including physically – attracted specific condemnation from at least one of my colleagues who dealt with this matter along the way.

[133] I am encouraged to hear that the boys appear to be doing so well, and I see no benefit to them in substantially rewriting their parents’ arrangement, and potentially uprooting the boys and disrupting their current routines.

[134] I am however prepared to add some additional structure and safeguards to the agreement with a view to ensuring that the boys’ best interests continue to be the goal.

SPECIFIC CONCLUSIONS ON THE SEPARATION AGREEMENT

AND RELATED ISSUES

[135] As such, I conclude that:

(a) the separation agreement between the parties dated December 21, 2018 is to remain in place, subject to the modifications set out in the following paragraphs;

(b) the parties will continue to exercise joint decision-making as set out in paragraph 4 of the separation agreement with the additional proviso that, in order to make significant decisions, one parent shall propose to the other a suggested outcome, providing the rationale for the proposed outcome in a respectful and factual way. For example, if the outcome relates to the school at which their younger son should attend for middle school, the proposing parent would identify a school, and then provide factual information concerning relevant considerations, such as the ranking of the school, the implications of its geographic location, its benefits for the child on a number of parameters including quality of education, extra-curricular opportunities, continued contacts with the child’s friend group, and the like. The responding parent shall then, also in a respectful and factual way, provide comments on the proposed choice, including any disagreements or reservations that the responding parent may have. If the parties are ultimately unable to agree on the outcome, they may then seek the assistance of the court, but should do so with a record that is factual and does not reflect personal grievances or ad hominem commentary;

(c) the parties are to maintain the current 2-2-3 arrangement for parenting time and for parenting time during holidays set out in section 5 of the separation agreement. If one party wishes to extend the time that the children will spend with that parent, for example for purposes of a trip, that parent must ask the other party for their consent. The expectation is that any such extensions of time will be modest, and that the responding parent will attempt to accommodate the requested extension, with the proviso that he or she will then be entitled to commensurate additional time with the children (and again the expectation is that the parties will act reasonably in requesting and responding to such accommodations);

(d) the parties are to obtain and to use for all communications going forward a parenting app such as the “Our Parenting Wizard” app;

(e) regardless of the mode of communication the parties are to limit themselves to only that communication that is necessary to address the item at hand. The parties are NOT to disparage or criticize one another, or to discuss any issue or issues not directly related to the particular item, relative to parenting, being addressed. For greater clarity, any party making unnecessary or ad hominem or critical remarks should understand and expect that such commentary, on any medium, will attract significant repercussions from this court, in terms of costs or even substantive sanctions;

(f) with respect to vacations, passports and consent for travel, Mr. Ritchie has specifically agreed in court during this trial that he will sign such document or documents as are necessary to allow Ms. Bortoleti to obtain Brazilian passports for the children (they currently have Canadian passports but when those passports must be renewed the parties are likewise to cooperate with one another in signing any documentation or otherwise). The parties have agreed that they will consent to one another travelling with the children, including internationally, and both parents confirm that they will not overstay on any such trips, and that they have no intention of removing the children to live in any other jurisdiction;

(g) relative to child support, the provisions of section 6 of the separation agreement shall remain in effect, except that Mr. Ritchie’s income for purposes of calculating table child support shall be $103,000.000, and the monthly amount payable for child support shall be reinstated at $1,200.00 per month, retroactive to January 1, 2022 (such that in months in which Mr. Ritchie has paid $790.00 per month the retroactive amount will be the difference between $1,200.00 per month and $790.00 per month, being $410.00 per month);

(h) the retroactive amount, thus calculated, shall be set off against the costs Order of Faieta J. against Ms. Bortoleti in the amount of $12,000.00, with the remaining balance being a debt owing from Ms. Bortoleti to Mr. Ritchie, payable in monthly instalments of $400.00, which can be deducted from Mr. Ritchie’s child support payments until such time as the debt is retired, at which time the regular payments of $1,200.00 per month will resume;

(i) commencing on May 1, 2023 the procedure for calculating child support set out in sections 6.11 and 6.5 of the separation agreement will resume (taking into account the updated incomes of each party on an annual basis going forward), save and except that the Order flowing from this decision will be filed with the Family Responsibility Office for enforcement if and when required;

(j) with respect to available benefits as set out in s. 6.12 of the separation agreement, the parties are to resume the arrangement contemplated in sections 6.12 and 6.13 of the separation agreement;

(k) in all other respects, the provisions of the separation agreement shall remain in force and effect.

FINAL OBSERVATIONS AND NO ORDER AS TO COSTS

[136] Ms. Bortoleti has been unsuccessful in her claim to set aside the separation agreement. On the other hand, her position has been upheld to some extent, for example on the issue of the appropriate amount of child support payable. Moreover, as will be evident from these reasons, neither party’s conduct has been exemplary or above reproach, both in the conduct of these proceedings and in their ongoing feud with one another (to the detriment of their children). It is my hope and more particularly my expectation that the parties conduct going forward will be reasonable and appropriate, and that that conduct will reflect a firm commitment to the best interests of the children. Any further transgressions, on either side, will be met with significant consequences.

[137] In the circumstances, I make no Order as to costs.

W.D Black J.

Date: October 25, 2023