Instructions Specific to This Exam

1. This examination contains one question worth a total of 100 marks.

2. You will be assessed primarily on your knowledge of the Divorce Act, the Family Law Act, the Federal Child Support Guidelines, the relevant cases and other assigned materials identified in the Family Law syllabus, together with your ability to recognize the legal issues raised by the facts and analyze the competing arguments available to the parties.

3. No marks are awarded for merely reproducing or summarizing the facts. Your answer should identify the relevant legal issues, state the governing statutory and common-law principles and apply those principles closely to the facts.

4. Do not provide a general essay on family law or work mechanically through every possible claim arising on marriage breakdown. Address the issues reasonably raised by the facts and the relief realistically available to the parties.

5. Full case citations are not required for authorities contained in the assigned materials. Where relevant, identify the applicable statute, statutory provision, Guidelines provision or assigned case with sufficient precision to demonstrate knowledge of the governing law.

6. You are asked to prepare a memorandum of law. You do not need to spend examination time constructing formal memorandum headings such as “To,” “From,” “Date” or “Re.” Marks are awarded for substantive analysis.

7. For purposes of the provincial issues, apply Ontario law.

8. In addressing the marriage contract, distinguish carefully between:

   • compliance with the formal requirements for a domestic contract;

   • whether all or part of the agreement may be set aside;

   • the effect of inadequate financial disclosure;

   • the significance of independent legal advice and actual understanding;

   • provisions dealing with property and spousal support;

   • provisions purporting to determine parenting arrangements; and

   • provisions purporting to restrict statutory rights relating to the matrimonial home.

9. In addressing property, distinguish between:

   • legal ownership;

   • inclusion in net family property;

   • property owned on the date of marriage;

   • excluded property;

   • tracing;

   • the special treatment of a matrimonial home; and

   • the effect of a valid domestic contract.

10. In addressing parenting, the governing consideration is the best interests of the children. Do not presume that either equal parenting time or sole parenting is preferred. Address family violence only to the extent relevant under the governing statutory framework.

11. In addressing support, distinguish between entitlement, income, amount and duration. The Spousal Support Advisory Guidelines are advisory rather than binding legislation.

12. Where child support is considered, address the proper determination of income under the Federal Child Support Guidelines and the special analysis applicable where each parent exercises at least 40% of parenting time.

13. Assume that the Ontario court has jurisdiction over the divorce and corollary relief proceedings and that the statutory ground for divorce has been established. Do not address interjurisdictional orders, child protection, taxation consequences or pension valuation.

14. You are not required to calculate exact Child Support Guideline table amounts or an exact Spousal Support Advisory Guidelines range. You should, however, identify the correct income and legal framework from which those amounts would be determined.

15. Write a clear and organized answer in complete sentences.

QUESTION

FACTS

Naomi Fairburn and Kieran Solis began living together in Toronto in September 2010.

At the time, Naomi was 27 and worked in marketing for a national consumer-products company. Her employment income was approximately $92,000 per year and she was regarded within the company as a strong candidate for management.

Kieran was 29.

He had recently created a data-analytics company called Palisade Metrics Inc. (“Palisade”).

Palisade initially had three employees and little revenue.

Naomi was not formally employed by the company, but during the first several years of the relationship she regularly assisted Kieran without payment.

She prepared presentations, edited investor materials, attended trade conferences and introduced Palisade to several contacts through her own employment.

Kieran describes those contributions as:

“what partners do when one of them is starting a business.”

Naomi estimates that she performed approximately 500 to 700 hours of unpaid work between 2011 and 2014.

Their first child, Mara, was born in 2012.

Naomi took 12 months of maternity leave.

After returning to work, she reduced her schedule to four days per week.

Kieran continued working long hours at Palisade and travelled frequently.

By 2014, Palisade had become profitable.

Naomi and Kieran became engaged that year and planned to marry in June 2015.

Kieran owned a house at 28 Alderbank Crescent in Toronto.

He had purchased it in 2008.

At the time of the marriage, the house was worth approximately $1 million, subject to a mortgage of approximately $550,000.

Naomi and Kieran had lived there together since 2010.

It remained their principal family residence throughout the marriage.

Approximately two months before the wedding, Kieran told Naomi that he wanted a marriage contract.

He said:

“Palisade existed before the marriage and I need to know the company is protected. Investors will never tolerate uncertainty over the shares.”

Naomi agreed in principle that Kieran should retain ownership of Palisade.

She says she understood that the company was his business but did not appreciate how much of its future value the proposed agreement would remove from the ordinary family-property regime.

Kieran retained counsel to prepare a marriage contract.

A first draft was delivered to Naomi approximately five weeks before the wedding.

Naomi retained her own lawyer, Priyanka Leduc, approximately three weeks later.

The proposed contract included schedules of assets and liabilities.

Kieran's disclosure schedule identified:

“Shares of Palisade Metrics Inc. — estimated present value $650,000.”

It also listed Alderbank Crescent and several investment accounts.

The schedule did not disclose Kieran's 30% interest in Cedar Vale Investment Partnership, a private investment partnership.

At the time, his interest in the partnership was worth approximately $520,000.

Kieran says he omitted it accidentally because:

“It was passive and my accountant handled it. I barely thought about it.”

Six weeks before the wedding, Palisade had also received a non-binding investment proposal from a venture-capital fund.

The fund proposed investing $1.2 million in exchange for a 20% interest in Palisade, subject to due diligence and several financing conditions.

The transaction never ultimately closed.

Kieran did not provide the proposal to Naomi or her lawyer.

He says it was speculative and did not establish Palisade's value.

Experts retained after separation now agree that the fair market value of Kieran's Palisade shares on the date of marriage was approximately $1.8 million, although they disagree about the significance of the proposed investment.

Priyanka met with Naomi twice.

She told Naomi that the agreement was:

“very favourable to Kieran.”

She specifically advised Naomi that the agreement could significantly reduce any future equalization claim and contained a broad waiver of spousal support.

Priyanka recommended delaying execution until more complete financial information and a formal business valuation could be obtained.

Naomi did not follow that advice.

She says approximately 140 guests had booked travel for the wedding, deposits had been paid and Kieran told her:

“I am not getting married without this resolved.”

Kieran denies threatening to cancel the wedding.

He says:

“I told her the contract mattered to me. She had her own lawyer and knew exactly what she was signing.”

Four days before the wedding, Naomi signed the agreement.

Kieran signed the same day.

Each signature was witnessed.

The agreement contained the following provisions.

First:

“All shares and interests presently or subsequently held by Kieran in Palisade Metrics Inc., together with all increases in value, substitutions, proceeds and property traceable therefrom, shall remain Kieran's separate property and shall not be included in his net family property.”

Second:

“The property municipally known as 28 Alderbank Crescent, together with all increases in value thereof, shall remain Kieran's separate property and shall not be included in his net family property. Naomi releases any claim to ownership, equalization or possession in respect of that property.”

Third:

“Any gift or inheritance received by either spouse from a third party, together with any income, appreciation, substituted property or property acquired using such gift or inheritance, shall remain excluded from the recipient spouse's net family property.”

Fourth:

“Each party waives any present or future claim for spousal support against the other, regardless of the length of the marriage, the functions performed by either spouse during the marriage, or any disparity in income existing at separation.”

There was one exception.

If a spouse was the primary caregiver of a child under five at separation, that spouse could receive $2,000 per month for a maximum of 12 months.

Finally, the contract stated:

“Any children of the marriage shall spend equal time with both parents following separation, and the parties shall exercise all major parenting decisions jointly.”

Naomi and Kieran married on June 20, 2015.

Their second child, Eliot, was born in 2016.

After Eliot's birth, Naomi did not return to her former full-time position.

For approximately four years she worked part-time, earning between $55,000 and $70,000 annually.

She says she and Kieran jointly decided that she would assume more responsibility for the children because Palisade was expanding rapidly.

Kieran agrees that Naomi performed more day-to-day child care but says:

“It was her choice to step back. I never told her she could not work.”

Naomi continued handling most weekday medical appointments, school communications and extracurricular scheduling.

Kieran remained significantly involved.

He coached Mara's soccer team for three seasons, usually prepared dinner two evenings each week, attended most parent-teacher meetings and regularly spent weekends alone with the children when Naomi travelled.

Palisade grew considerably during the marriage.

By April 2026, Kieran's shares had an agreed value of approximately $7 million.

The Cedar Vale partnership interest was sold in 2018.

Kieran invested most of the proceeds into Palisade.

By the valuation date, no separate Cedar Vale asset remained.

Alderbank Crescent also increased substantially in value.

As of April 2026, it was worth approximately $2.4 million and was subject to a mortgage of approximately $300,000.

Naomi had owned an RRSP worth approximately $120,000 when the parties married.

It was worth approximately $420,000 at separation.

In 2020, Naomi's mother died.

Her will left Naomi $600,000 and stated:

“This gift and any income arising from it are for Naomi alone and are not intended to form part of family property shared with any spouse.”

Naomi kept $240,000 in a separate investment account in her own name.

No other money was deposited into that account.

Reinvested distributions and increases in the value of the investments brought the account to approximately $310,000 by April 2026.

Naomi used the remaining $360,000 of the inheritance toward the purchase of a cottage in Muskoka.

Title to the cottage was registered solely in Naomi's name.

The purchase price was $620,000.

The balance was financed through a mortgage that the parties paid from family income.

The family spent most summer weekends, approximately five weeks each summer and several winter holidays at the cottage.

Both children kept clothing and sporting equipment there.

The cottage remained available for family use immediately before separation.

Its value in April 2026 was approximately $800,000, subject to a mortgage of approximately $170,000.

The marriage began deteriorating seriously in 2024.

Naomi says Kieran became increasingly controlling as Palisade became more successful.

She alleges that he:

• required her to send him screenshots of large household purchases;

• monitored the location-sharing function on her telephone and repeatedly questioned her about unexpected stops;

• threatened on several occasions to cancel supplementary credit cards if she “kept spending like she was single”;

• installed cameras in the common areas of Alderbank Crescent without discussing them with her;

• demanded passwords to several of her personal accounts; and

• sometimes sent dozens of messages in succession when she did not answer him immediately.

Kieran accepts that he monitored household spending and used location sharing.

He says the family had significant financial obligations and that location sharing had originally been mutual.

He denies that his conduct was abusive.

In December 2025, during an argument about Naomi attending an office holiday party, Kieran stood in the doorway of their bedroom while Naomi attempted to leave.

Naomi says he refused to move for approximately two minutes.

Kieran says he was trying to finish the conversation and moved when Naomi told him she felt trapped.

During another argument in February 2026, Kieran threw Naomi's mobile telephone onto the kitchen floor, breaking the screen.

Mara, then 13, was in the adjoining room and heard the argument.

Eliot was upstairs.

Kieran immediately purchased Naomi a replacement telephone.

He says:

“I lost my temper. I should not have done it. I have never hit Naomi or either child.”

There are no allegations that Kieran physically assaulted the children.

Naomi and Kieran separated on April 6, 2026, with no reasonable prospect of reconciliation.

That date is accepted as the valuation date.

Immediately after separation, both remained temporarily at Alderbank Crescent.

The atmosphere was tense.

One week later, while Naomi and the children were staying overnight with Naomi's sister, Kieran changed the electronic entry code to the house.

When Naomi returned, she could not enter.

Kieran texted:

“This house was mine before you. Your lawyer can deal with the contract.”

Naomi contacted counsel and a locksmith.

She regained access later that day.

Kieran now accepts that she is entitled to enter unless a court orders otherwise, but says they cannot continue living under the same roof.

Naomi seeks temporary and final exclusive possession of Alderbank Crescent.

She says the children attend school within walking distance and that forcing them to move would unnecessarily destabilize them.

Kieran says he owns the house and the marriage contract confirms that it is his separate property.

He also says Naomi can afford to rent elsewhere.

Kieran owns no other residence personally, but Palisade leases a furnished condominium approximately 20 minutes away for visiting executives.

The company has permitted Kieran to stay there occasionally.

Kieran says the condominium is a business asset and:

“not a real home for two children.”

Naomi's current employment income is approximately $88,000.

She works four days each week as a marketing consultant.

Her employer has offered her a full-time position expected to pay approximately $120,000.

Naomi has not accepted.

She says the four-day schedule allows her to handle school pickups, appointments and the children's extracurricular activities.

Kieran says the children are now old enough that Naomi is choosing to remain underemployed.

He intends to seek income imputation to her at $120,000 for support purposes.

Kieran reports employment income from Palisade of $185,000 per year.

He owns 70% of the voting shares and is Palisade's chief executive.

Palisade's most recent financial statements show approximately $1.1 million in pre-tax corporate income after payment of Kieran's salary.

Kieran says none of that income should be treated as his personal income.

He maintains that Palisade is a technology company that requires significant retained earnings for research, staffing and lender requirements.

Palisade's chief financial officer estimates that approximately $420,000 of the current retained earnings is reasonably required during the next year for existing commitments, bank covenants and a planned software release.

The remaining funds are not committed to any specific expenditure.

Palisade also pays Kieran's sister $110,000 per year under a consulting arrangement.

She assists with corporate events, recruitment and some investor communications.

An independent compensation consultant retained after separation estimates that the fair market value of the services she actually performs is between $30,000 and $45,000 per year.

Kieran says the higher payment reflects her historical contribution to the company and should not be treated as his income.

Naomi says Kieran deliberately suppresses his personal salary while retaining money in a corporation he controls.

She seeks child and spousal support based on an income materially above $185,000.

Kieran relies on the marriage contract and says Naomi waived spousal support.

He also says she will receive substantial property in her own name and is capable of earning at least $120,000 annually.

Naomi responds that the economic structure of the marriage changed fundamentally after the contract was signed.

She says she:

• reduced her career for the children;

• supported Kieran's business during its formative years;

• assumed greater domestic responsibilities while Palisade expanded; and

• has permanently lost seniority and career progression she would otherwise have accumulated.

A vocational consultant says Naomi could probably return to an income of approximately $120,000 immediately and might reach $150,000 to $170,000 after several years of full-time employment.

The consultant cannot say where Naomi's career would have been had she remained continuously employed full-time since 2012.

Kieran argues that any support claim is therefore speculative.

Following separation, Naomi and Kieran implemented a temporary parenting schedule without a court order.

For approximately ten weeks, the children have spent alternating weeks with each parent.

During Kieran's weeks, the children stay mainly at Alderbank Crescent.

During Naomi's weeks, they have also remained at Alderbank Crescent when the parties are able to avoid each other, although Naomi sometimes takes them to her sister's home.

Both parties agree that the present housing arrangement is unsustainable.

Mara has told a family therapist that she wants:

“one main home with Mom, but lots of time with Dad.”

She says she dislikes switching houses every seven days and becomes anxious when her parents communicate directly because:

“Dad gets intense and Mom shuts down.”

Mara also says she loves her father, enjoys attending soccer matches with him and does not want him to think she is choosing sides.

Eliot, now nine, says he likes spending equal time with both parents.

His teacher reports that he is doing well academically but has twice arrived at school without homework and sporting equipment after transition days.

Kieran wants the alternating-week schedule to continue permanently.

He seeks joint decision-making responsibility for all major issues.

He relies in part on the marriage contract's equal-parenting provision.

He says he has always been a loving and involved father and that Naomi is attempting to convert marital disagreements into parenting allegations.

Since separation, Kieran has enrolled in a parenting-after-separation program.

On his lawyer's advice, he now communicates with Naomi through a parenting application except in emergencies.

He says he has stopped checking Naomi's location and no longer has access to any of her accounts.

Naomi seeks primary residence of the children with her, with parenting time to Kieran on alternate weekends, one overnight each week and substantial holiday time.

She seeks sole decision-making responsibility concerning education and health.

She says joint decision-making would require continuing direct negotiation with a person who has historically used financial and psychological pressure to get his way.

She does not seek to restrict ordinary contact between Kieran and the children.

Kieran responds that Naomi's proposed schedule would substantially reduce his established relationship with them.

He also points out that Naomi withheld one scheduled weekend shortly after separation following a disagreement about whether Mara could attend an out-of-town soccer tournament.

Naomi says she did so because Mara was distressed and refused to go.

She acknowledges that she did not first obtain Kieran's agreement.

The parties also disagree about child support.

Kieran says that if equal parenting continues, each parent should simply pay his or her own household expenses for the children and the difference between their respective table amounts should be set off.

The marriage contract contains a clause stating:

“Where the children spend substantially equal time with each parent, neither parent shall owe child support to the other except by mutual agreement.”

Naomi says the clause cannot deprive the children of support.

She also argues that a mechanical table set-off would be inappropriate given the significant income disparity between the households.

The family historically spent approximately $28,000 annually on the children's camps, sports, tutoring and other extracurricular activities.

Some of those expenses may constitute special or extraordinary expenses, but the parties have not yet attempted to categorize them.

For purposes of this examination, you are not required to determine the treatment of each individual extracurricular expense.

Naomi has commenced an application for divorce and corollary relief.

She seeks advice concerning:

• the marriage contract;

• equalization of net family property;

• the treatment of Alderbank Crescent, the Palisade shares and her inheritance;

• exclusive possession of the matrimonial home;

• spousal support;

• child support; and

• parenting arrangements.

Kieran intends to oppose most of the relief sought.

For purposes of the examination, assume that all values stated above are accurate unless the facts expressly indicate a valuation dispute, and assume that any assets or liabilities not mentioned would not materially affect the analysis.

QUESTION

The senior partner at your firm asks you to prepare a brief but comprehensive memorandum advising Naomi on the significant Canadian and Ontario family-law issues arising from the breakdown of her marriage to Kieran.

Your memorandum should address the enforceability and effect of the marriage contract, the property and equalization consequences of separation, Naomi's rights relating to the matrimonial home, spousal and child support, and the appropriate parenting arrangements for Mara and Eliot.

Where the marriage contract affects a particular issue, distinguish between provisions that may validly govern the parties' rights and provisions that cannot displace the applicable statutory framework.

Assess the strongest arguments available to both Naomi and Kieran and identify the orders or other relief that Naomi could realistically seek.

100 MARKS