Court File and Parties

Ontario Court of Justice

Date: November 19, 2020

Court File No.: Brantford F 66/20

Between:

Blake Edward Miller Applicant

— AND —

Danielle Germaine Miller Respondent

Before: Justice A.D. Hilliard

Heard on: October 27, 2020

Reasons for Judgment released on: November 19, 2020

Counsel:

• Nadarajah, J. — counsel for the applicant
• Van Looyen, E. — counsel for the respondent

Judgment

Hilliard J.:

Overview

[1] The two issues for me to determine on this focus hearing are as follows:

(1) Should the Temporary Separation Agreement executed by the parties be set aside?

(2) What is the proper jurisdiction for these proceedings?

[2] The parties agreed through their respective counsel that these preliminary issues would be dealt with based on affidavit evidence only with legal submissions being made by counsel at a virtual hearing.

Background

[3] The parties were married on June 25, 2011. They separated on a final basis on August 1, 2018.

[4] There are two (2) children of the marriage: Sydney Sharon Miller, born […], 2012, and Hope Eileen Miller, born […], 2014. Since the date of separation, the children have resided primarily with the Respondent mother, Ms. Miller. The Applicant father, Mr. Miller, has had regular access with the girls since separation.

[5] During the marriage the parties resided together with the children in the City of Brantford. After separation, Ms. Miller and the children continued to reside in Brantford until June 2020. Mr. Miller moved to Cambridge after the parties separated in 2018 and resided temporarily with his sister until September 2019 when he moved back to Brantford where he resides at present.

[6] Ms. Miller drafted a separation agreement without the assistance of a lawyer and presented it to Mr. Miller for signature on or about September 19, 2019. The agreement was ultimately signed by both parties, after handwritten amendments were made, on or about September 27, 2019. Both parties had witnesses attest to their signatures. Neither party obtained independent legal advice prior to signing the agreement. One of the handwritten changes made by Mr. Miller, acceded to by Ms. Miller, was to include the word "Temporary" to the title of the agreement.

[7] The agreement had a specific clause outlining the intended move of Ms. Miller with the children to Wasaga Beach (the mobility clause) on or about June 26, 2020. Given the distance between Brantford and Wasaga Beach, changes were made to Mr. Miller's access with the girls. Handwritten amendments were made by Mr. Miller to the page of the agreement that contains the mobility clause regarding his time with the children during March Break.

[8] Other handwritten changes were made to the separation agreement by Mr. Miller, including a reduction in the child support amount he was to pay to Ms. Miller, as well as changes in the property section of the agreement. All handwritten changes were initialled by both parties.

[9] Mr. Miller provided notice to Ms. Miller by way of a letter sent by his lawyer dated May 14, 2020 that he was seeking to set aside the agreement and was opposing her move with the children to Wasaga Beach. On June 23, 2020, Mr. Miller brought an urgent motion requesting an order prohibiting Ms. Miller from moving to Wasaga Beach with the children.

[10] In an in-chambers endorsement dated June 29, 2020, I dismissed Mr. Miller's motion in part for written reasons, which included the following:

The larger issue here is the determination as to whether this matter is urgent taking into consideration the partial shut down of the courts during the pandemic. As the Applicant rightly points out, since the middle of March, no new applications were permitted to be issued unless deemed urgent by a judge. However, the Applicant acknowledges having retained counsel about the issue of the Respondent moving with the children in February. At that time, although the move was arguably not imminent, it was certainly foreseeable, as it is clearly set out in the Temporary Separation Agreement. Negotiations between counsel took place, which was appropriate and a factor in the determination as to the issue of urgency. What is less clear is why the Applicant waited until days before the anticipated move to instruct his counsel to bring the matter before the Court.

Although there is no specific evidence on this point, it would appear from the materials filed that it is likely that at the time of the writing of this endorsement the Respondent has already moved with the children from Brantford to the Wasaga Beach area. The Temporary Separation Agreement includes a provision for the Respondent to be responsible for bringing the children to a specified halfway point between Wasaga Beach and Brantford, including being responsible for any additional travel required if she is to move farther than Wasaga Beach. The agreement also provides for a change to the Applicant father's access after the Respondent's move with the children, including extended periods of time during the summer school holiday. The Respondent could not realistically be expected to put the move on hold pending a determination of this court in light of the existing agreement and the extremely late date at which the Applicant's motion was brought.

[11] I did, however, find that there was sufficient urgency to allow Mr. Miller's Application to be issued and a case conference date set. A case conference was then conducted on August 12, 2020 at which it was agreed that prior to addressing the balance of the issues raised in Mr. Miller's Application, the court must first rule on the validity of the separation agreement and the proper jurisdiction for these proceedings. Consequently, the focus hearing was ordered to proceed on the terms set out in my August 12, 2020 endorsement.

Validity of the Separation Agreement

[12] A court may set aside a separation agreement if the provisions of s. 56(4) of the Family Law Act are met:

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.

[13] Neither party is alleging that there was a failure to disclose assets or liabilities in this case. Mr. Miller's argument is based upon his position that he did not understand the nature and consequences of entering into the agreement. It was conceded during argument that the issue of duress raised by Mr. Miller in his affidavit evidence goes to the issue of his ability to understand the consequences of entering into the domestic contract and does not constitute a separate argument under s. 56(4)(c).

[14] It is not sufficient for Mr. Miller to simply depose in an affidavit that he did not understand the nature and consequences of the agreement he signed. I must be satisfied that all of the evidence before me supports a factual finding that Mr. Miller did not understand the consequences at the time of signing the agreement. The timing aspect is important to note here, as the analysis is not whether the evidence is that Mr. Miller now does not understand the consequences of the agreement, but whether at the time of signing, he had sufficient knowledge and understanding of the terms of the agreement.

[15] It is well established that the setting aside of a domestic contract by a court is done in only exceptional circumstances. It would undermine the entire process of domestic contracts if they were to be routinely set aside by courts upon application by one of the parties, and such action by the courts would erode confidence in the certainty that comes with the execution of a domestic contract.

[16] Courts must also be careful not to set aside a domestic contract simply on the basis that one party has changed their mind about some or all of the terms after the fact. Domestic contracts are acted and relied upon by the parties after execution and the certainty that creates must not be undermined by the courts. A court application is not an opportunity for a party who has had a change of heart after having executed a domestic contract, to seek a de novo hearing on the issues.

[17] I find that on all the evidence before me, I am not satisfied that Mr. Miller failed to understand the nature and consequences of the agreement he signed in September 2019. Mr. Miller is employed as a store manager at a large retail chain and had the financial means and intellectual capability to obtain independent legal advice prior to signing the agreement. Mr. Miller's evidence is that he had an appointment scheduled with a lawyer, albeit after the agreement was signed.

[18] I am also not persuaded by Mr. Miller's argument that he felt pressured by Ms. Miller to sign the agreement, under threat that he would not be allowed to see their children until he did so. The evidence is clear that Mr. Miller in fact had parenting time with the girls between being initially given the draft agreement by Ms. Miller and the date on which the agreement was ultimately signed by the parties. I find that there was no duress or undue influence exerted by Ms. Miller on Mr. Miller to sign the agreement.

[19] I find that Mr. Miller was cognizant of the nature and consequences of the agreement as evidenced by the handwritten changes he made to the agreement, the majority of which favoured Mr. Miller. A concession was requested and acceded to for a reduction in child support. I find that this clearly demonstrates that Mr. Miller contemplated the impact of Ms. Miller moving with the children to Wasaga Beach, particularly in regards to the cost he would have to incur to exercise his parenting time with the girls.

[20] I find that the addition of the word "temporary" to the title of the agreement does not indicate that Mr. Miller had not understood that the mobility clause would result in Ms. Miller moving with the children in June 2020. Rather, I find that the addition of that word supports an inference that Mr. Miller contemplated and considered what the impact would be of the children's primary residence moving such a distance away and that he wished to secure the ability to revisit financial issues and his parenting time after the move was completed.

[21] In making these findings, I have also considered Mr. Miller's own words as set out in text messages between the parties attached to the affidavits filed for this hearing. On September 26, 2019, Mr. Miller sent a text message to Ms. Miller that reads in part, "Firstly, we both know it's my legal right to have a legal document reviewed before I sign anything. It wouldn't make me very smart to just sign off on something that I don't agree with." Mr. Miller then sends another text message on September 27, 2019 at 12:07 p.m. indicating, "Okay. So I have reviewed what you have proposed for when you move and it looks fair. as ( sic ) stated in an earlier message I am okay with you moving. I would like for our current visitation agreement with the girls to remain the same as it has been."

[22] I have considered whether or not there is any basis for the argument put forth by Ms. Miller that Mr. Miller's actions can be considered acquiescence or ratification of the agreement in regards to Ms. Miller's move to Wasaga Beach with the children. In my view, the issue of ratification is not relevant on the facts before me. I find that the evidence is clear that Mr. Miller initially agreed to Ms. Miller moving with the children to Wasaga Beach and on that basis the agreement was signed. It was only months later that Mr. Miller reconsidered his position and commenced this litigation.

[23] I am not satisfied that on the evidence before me, the test for the setting aside of the separation agreement signed by the parties has been met. I find that the separation agreement is valid and will not be set aside as requested by Mr. Miller.

Proper Jurisdiction

[24] Although the children are now residing in Wasaga Beach, they resided in Brantford from birth until June 2020. The move by Ms. Miller with the children to Wasaga Beach occurred just after the commencement of this application.

[25] I am satisfied that the proper jurisdiction for these proceedings remains Brantford. Although Ms. Miller and the children have been living in Wasaga Beach since June 2020, I am not satisfied that the length of time that they have spent living in that jurisdiction is sufficient to find that the children are habitually resident in Wasaga Beach. In making this determination I have considered section 22(2)(b) of the Children's Law Reform Act:

A child is habitually resident in the place where he or she resided,

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.

[26] Although I have now found the Temporary Separation Agreement executed by the parties to be valid and binding, and declined to set it aside, I did make findings of fact regarding Mr. Miller specifically and deliberately making a change to ensure that the agreement clearly indicated it was temporary and not final. The jurisdiction for court proceedings involving disputes about the children or support are issues not contemplated in the agreement.

[27] I am also concerned that there could be a considerable delay in this matter should the application be transferred to Barrie, Ontario as requested by Ms. Miller. Both parties would undoubtedly need to retain new counsel in that jurisdiction. The file would need to be transferred and assigned to a new case management judge. I have no evidence before me that allows me to be able to assess how quickly the parties would be able to obtain a new court date in Barrie.

[28] In making the determination that the matter should remain in Brantford, I have considered that Ms. Miller did not strenuously argue the jurisdiction issue at the hearing. Ms. Miller's counsel conceded that in determining which is the proper jurisdiction for this matter to be heard, I must consider Rule 2(3) of the Family Law Rules which directs that cases are to be dealt with justly in a manner that ensures that the procedure is fair to all parties and saves expense and time.

Conclusion

[29] The Applicant's request to have the Temporary Separation Agreement set aside is denied. The Respondent's request to have the matter transferred to Barrie is denied.

[30] Given the divided success in this matter, I find that this is not an appropriate case for costs to be awarded.

[31] A final order shall therefore issue as follows:

(1) The Temporary Separation Agreement executed by the parties on September 27, 2019 is confirmed as valid and binding.

(2) The proper jurisdiction for these proceedings is Brantford, Ontario.

(3) There shall be no order as to costs for all matters up to and including the date of the hearing.

Released: November 19, 2020

Signed: Justice A.D. Hilliard