Court of Appeal for Ontario
Date: 2017-02-13 Docket: C60839
Judges: Weiler, Benotto and Roberts JJ.A.
Between
Dawn Hillman Applicant (Appellant)
and
Ian Letchford Respondent (Respondent in Appeal)
Counsel:
- Dawn Hillman, in person
- Ian Letchford, in person
Heard: January 24, 2017
On appeal from the judgment of Justice C.D. Braid of the Superior Court of Justice, dated June 30, 2015.
Endorsement
Introduction
[1] Ms. Hillman appeals the dismissal of her application to set aside minutes of settlement in her matrimonial proceedings.
Background
[2] The parties were in a common-law relationship from 1985 to 1999. They have two adult children. They moved from Canada to England in 1991 and then to Ireland in 1997. The appellant worked at various jobs while the parties lived in Canada. After they left Canada, she did not work outside the home. The respondent worked as a Managing Director at CIBC. He was terminated from CIBC in 2002 and later began receiving pension pay, as well as income from a new job.
[3] When the parties separated, Irish law did not recognize common-law relationships. The appellant was not entitled to spousal support and was only entitled to the share of the jointly held property for which she had made a direct financial contribution. On August 25, 1999, the parties entered into a consent agreement that included terms for custody and access, temporary child support (until an action could be brought in Canada), a share in the property and money. The agreement was incorporated into a consent order.
[4] The appellant then moved to Canada and issued a statement of claim seeking custody, child support, spousal support and interests in the respondent's property based on unjust enrichment, implied trust and constructive trust. The respondent paid child support in the interim. In 2002, a judge ruled that the property claims had been settled in the Irish consent order; this ruling was overturned on appeal and the litigation continued.
[5] In 2006, the appellant sought and obtained an order allowing her to question a CIBC representative regarding the respondent's remuneration. Despite obtaining the order, the appellant did not conduct the questioning.
[6] The matter was scheduled for trial in 2007. On February 6, 2006, the parties entered into final Minutes of Settlement which provided that the respondent would pay the appellant $201,814 as a lump sum child support for the children who were then 17 and almost 15. In addition, the respondent would pay the appellant $200,000 in settlement of all other claims, including the property claims.
[7] Both parties were represented by counsel throughout the proceedings, up until and including the 2006 agreement and order. The total sum paid by the respondent to the appellant in the two proceedings was approximately $1.14 million Canadian.
[8] On December 19, 2011, nearly six years later, the appellant brought an application to set aside the 2006 agreement and resulting consent order. She sought a new trial on the statement of claim that would have gone to trial in 2007.
The Application
[9] The application resulted in a 13-day trial. Both parties represented themselves. The trial judge found that:
The respondent had concealed the fact that he owned a property in Spain and failed to disclose some of his stock options and shares.
Neither party was under duress or unconscionable circumstances at the time of the minutes of settlement.
The appellant neglected to pursue disclosure from the CIBC although she obtained an order permitting her to do so.
The application was brought almost six years after the agreement and there was a lack of reasonable diligence on the part of the appellant.
The appellant received substantial benefits under the agreement.
The respondent fulfilled his obligations under the agreement.
The non-disclosure was not a material inducement to entering the agreement and the non-disclosure would not have materially affected the negotiations.
Issues
[10] The appellant submits that the trial judge's conclusions on points 2 (duress), 3 (CIBC questioning), 4 (reasonable diligence) and 7 (materially affecting settlement) were in error. She further submits generally that the trial judge erred in her determination of the fairness of the agreement.
Analysis
[11] The Family Law Act, R.S.O. 1990, c. F.3, s. 56(4)(a) provides as follows:
Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[12] The procedure to be followed in applying s. 56(4) was set out by this court in LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1. There, a two-stage analysis was described. The first stage involves a consideration of whether the provisions of s. 56(4) have been engaged. At the second stage, the court considers whether it is appropriate to exercise discretion in favour of setting aside the agreement.
[13] In the present case, the trial judge concluded at stage one that the respondent had failed to disclose assets. However, at the second stage, she concluded that the agreement was fair and that the failure to disclose was immaterial to the appellant's decision to accept the settlement.
[14] The appellant submits that the trial judge erred in concluding that she was not under duress at the time of the agreement. She relies on the theory that women are generally at a disadvantage when they are at a bargaining table in part due to economic disparity. Further, she submits that, having lived in Ireland for part of the time, she was unclear on the law with respect to common law spouses.
[15] We reject this submission. The appellant was represented by counsel and had been provided with a report from PricewaterhouseCoopers which outlined the financial affairs of the respondent. There was no evidence that she was under duress and the trial judge's conclusions in this regard are entitled to deference.
[16] The appellant submits that she did not follow up with the CIBC for several reasons: she did not expect the bank to give accurate information; she was concerned about collusion between the bank and the respondent; and she had no obligation to establish the respondent's financial circumstances, rather he had to prove the value of his assets. While it is correct that the respondent must prove the value of his assets, the appellant did apply for an order to question a representative of the CIBC and then failed to follow through with it. This factor was correctly taken into account by the trial judge. We note, in any event that the trial judge acknowledged that "[t]his factor carries less weight than the others".
[17] The appellant objects to the finding that there was a lack of reasonable diligence. There was no explanation on the record as to why she did not seek to inquire into the respondent's assets and bring the application earlier. There was no basis to find collusion. It was therefore open to the trial judge to find a lack of reasonable diligence.
[18] The appellant submits that non-disclosure of the Spanish property and the stock options entitles her to a new trial. The trial judge, however determined that the Spanish property was irrelevant because it was purchased after separation. The respondent's interest in the property could only be relevant to his income for child and spousal support purposes. However, there was no evidence that the respondent ever received any rental income from the property, so it could not have impacted the settlement. Similarly, the trial judge was not satisfied that the appellant would not have settled had the stock options been disclosed. Her conclusion that – notwithstanding the non-disclosure – the agreement was fair to the appellant was based on a combination of twenty articulated factors. They included the benefits of pre-paid child support, the risks of proceeding in the face of cross-jurisdictional issues, the fact that it was not clear that stock options would be treated as income for support purposes and the overall benefits received by the appellant. The detailed and thorough analysis of the fairness of the agreement by the trial judge reflects no error.
[19] In summary, the appellant's grounds of appeal consist of attacks on the factual findings of the trial judge. These findings are detailed, reasonable and grounded in the evidence. They are entitled to deference. We do not see any palpable and overriding error of fact.
Disposition
[20] The appeal is dismissed with no costs payable to the respondent.
"K.M. Weiler J.A."
"M.L. Benotto J.A."
"L.B. Roberts J.A."
