COURT OF APPEAL FOR ONTARIO
van Rensburg, Pardu and Huscroft JJ.A.
BETWEEN
Ron Samuel Dembo
Applicant (Respondent)
and
Alyson Marie Hannas
Respondent (Appellant)
Paul J. Pape and Brodie Noga, for the appellant
Linda R. Rothstein and Michael Zalev, for the respondent
Heard: September 3, 2020 by video conference
On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated November 29, 2019, with reasons at 2019 ONSC 6938.
REASONS FOR DECISION
1This is an appeal from the order of the motion judge declaring that the agreement signed by the parties on September 28, 2015 constitutes a binding Separation Agreement pursuant to ss. 54 and 55 of the Family Law Act, R.S.O. 1990, c. F.3.
2The appeal is dismissed for the reasons that follow.
Background
3The parties married in 1996. They had one child – a daughter, E, who was born in 1996. She has developmental delays, cognitive impairments, and learning disabilities, and the parties agree that she will be their dependant for life.
4The parties separated in 2003.
5Following several years of litigation, the parties signed an agreement in 2008 resolving all issues including child support. That agreement contemplated a review of the child support arrangements in 2013, but this review did not proceed and in 2014 the respondent commenced an application seeking a reduction in the support payable. In 2015, prior to trial, the parties signed an agreement that governed all issues and barred them from making further claims against each other for E’s support (“the Settlement Agreement”). Counsel for the appellant informed the court that “the parties have settled all issues in this case” and that a trial was no longer necessary.
6The Settlement Agreement was not made into a final order. However, the parties complied with its terms and governed their relationship in accordance with it over the next several years. Paragraph 22 of the Settlement Agreement required expert review of the provisions made to take care of E:
The parties will jointly retain an expert to review the terms set out in this Order at paragraphs 1-15 to ensure that they do not compromise [E’s] ability to receive ODSP [Ontario Disability Support Program] or other government funding and either party’s ability to set up a Henson Trust.
7In accordance with this provision, the parties jointly retained an expert in disability law. She provided several opinions from 2015-2017 as to how the parties could address the risk that E’s ability to receive ODSP benefits would be compromised and made a number of specific recommendations for amendments to the Settlement Agreement to address this issue. The parties negotiated but ultimately did not reach agreement on amendments. Instead, in May 2018 the appellant took the position that the Settlement Agreement was not binding.
The motion judge’s decision
8The respondent brought a motion for judgment declaring that the Settlement Agreement constituted a binding separation agreement. The appellant opposed that motion and sought an order declaring that the application had not been settled and fixing a date for a trial management conference.
9The motion judge declared that the Settlement Agreement constitutes a binding separation agreement. She found that there was a meeting of the minds on the essential terms of the agreement and that the agreement was intended to settle all issues outstanding between the parties. She found, further, that there was no common mistake that rendered the agreement voidable or void. Nor did para. 22 specify that the validity of the Settlement Agreement was conditional on the outcome of the review it prescribes. The appellant took a risk that the terms of the agreement would compromise E’s entitlement to ODSP benefits, but any mistake was hers alone and did not change the subject matter of the contract to something essentially different from what the parties believed it to be.
Discussion
10The appellant concedes that there was no common mistake, that para. 22 is not a true condition precedent, and that the Settlement Agreement was binding at the time that it was made. She challenges the agreement on two bases. First, the appellant argues that the motion judge erred in failing to interpret para. 22 as a “simple” condition that created an implied right to terminate the agreement if E’s continued ODSP eligibility were to be found to be at risk. Second, the appellant says that the motion judge erred in failing to exercise her discretion to refuse to enforce the Settlement Agreement, given the appellant’s mistake concerning E’s eligibility for ODSP and the prejudice to E caused by the risk to her ODSP eligibility.
11These arguments reflect a novel theory of the case. Neither argument was made before the motion judge.
12Both arguments must be rejected.
13In general, appellants are not permitted to raise new issues on appeal: see e.g., Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Petersoo v. Petersoo, 2019 ONCA 624, 29 R.F.L. (8th) 309, at para. 48, leave to appeal to S.C.C. refused, 38843 (January 16, 2020). We are not satisfied that it is in the interests of justice to allow the appellant to do so in this case.
14First, the argument made before the motion judge – that there was a condition precedent to the agreement – is very different from the argument that para. 22 of the Settlement Agreement includes an implied term permitting the appellant to terminate it. A right to terminate the agreement would not lightly be implied from para. 22, especially to address a speculative risk, and even if there were a right to terminate the agreement there was no evidence that the appellant purported to exercise it in any event. The matter was not raised before the motion judge and as a result no relevant findings were made.
15It is clear, however, that the 2015 Settlement Agreement, made with the advice of counsel, resulted in significant funds being set aside for E’s future care, and that the agreement was honoured by the parties for several years. Throughout, the appellant has acted as though the agreement was in effect. It should not be undermined in this court on the basis of an argument not made before the motion judge.
16Second, the motion judge cannot be said to have erred in failing to exercise a discretion that the appellant did not ask her to exercise. Although the respondent raised the court’s discretion in his factum before the motion judge, he did so in the context of a submission that emphasized the limited nature of the discretion, and that the appellant should not be permitted to resile from the agreement. Thus, it was not necessary for the motion judge to make findings on the exercise of the discretion and no findings were made.
17The court’s discretion not to enforce a settlement is a limited one given the importance of certainty in the resolution of family disputes: see Van Delst v. Hronowsky, 2020 ONCA 329, 318 A.C.W.S. (3d) 504, at para. 1. There is no basis to exercise it in this case. In the absence of a factual record there is no basis for this court to find that the agreement is not in E’s best interests, or that it would be in her best interests to set aside the agreement and to litigate the issues because there was a risk to her continued eligibility to receive ODSP benefits. The appellant offered no reason to suppose that any better result would be achieved to provide for E’s support if the Settlement Agreement were set aside and the matter proceeded to trial.
18The appeal is dismissed.
19The respondent is entitled to costs in the agreed amount of $15,000, inclusive of taxes and disbursements.
“K. van Rensburg J.A.”
“G. Pardu J.A.”
“Grant Huscroft J.A.”