Court File and Parties
Newmarket Court File No.: FC-15-048668-01 Date: 2016-04-15 Ontario Superior Court of Justice
Between: A.P. (formerly A.D.) Applicant – and – F.D. (aka F.D.) Respondent
Counsel: M. Capotosto, for the Applicant A. Abramian, for the Respondent
Heard: March 22, 2016
Ruling on Motion
Douglas J.
Overview
1The Respondent moves for summary judgment regarding the relief sought in the Applicant’s expansive Motion to Change commenced July 2, 2015. Specifically, the Respondent seeks dismissal of the claims set out in paras. 1 – 22 of the Motion to Change (excluding para. 18 relating to the Applicant’s claims for damages arising from alleged assaults, mental abuse and cruelty).
2In essence, the relief being pursued by the Applicant in respect of which the Respondent seeks dismissal relates to the Applicant’s request that the decree nisi of Justice Ferguson dated April 9, 1985 (hereinafter “the decree nisi”) and the Separation Agreement dated October 3, 1984 (hereinafter “the Agreement”) be set aside such that the Applicant would be entitled to pursue issues of property division under the Family Law Act (hereinafter the “FLA”) and spousal support.
3Broadly stated it is the position of the Respondent that there is no reason to doubt the validity of the Agreement and thus no basis on which either the Agreement or the decree nisi, which incorporated terms of the Agreement, might be set aside. It is further submitted that there is no reasonable explanation for the delay in initiating this Motion to Change and that the Respondent would suffer prejudice were the Applicant’s claims allowed to proceed. For these reasons it is submitted by the Respondent that there is no genuine issue for trial and the claims enumerated above ought to be dismissed.
4The Applicant submits that she was the victim of an extremely abusive relationship and as a consequence of that abuse she has suffered damages. As a further consequence of the abuse she was unable to pursue the relief sought in her Motion to Change until the time that it was initiated. It is further alleged that the Agreement was negotiated in circumstances leading to the conclusion that the Applicant was subject to undue influence, coercion and duress further the terms of the Agreement are unconscionable in any event. Further, it is submitted, she did not receive independent legal advice and did not appreciate the nature or consequences of the Agreement when she signed it. In short she submits that there are genuine issues for trial and that it would be inappropriate to dismiss her claims at this early stage.
5In her factum the Applicant indicated that she no longer wished to pursue the constructive trust claim on the Respondent’s home in Pickering and accordingly the relief sought in paras. 8 and 9 of the Applicant’s Motion to Change shall be treated as having been withdrawn by the Applicant.
Order
6For the reasons below I would order as follows:
(a) The Respondent’s motion for summary judgment is granted regarding the Applicant’s claims for equalization of net family properties and division of property. (b) The Applicant’s claim for a declaration of a constructive trust interest in the Respondent’s real property is withdrawn at the request of the Applicant. (c) The balance of the Respondent’s motion is dismissed. (d) If unable to agree on costs the parties may provide to my assistant at Barrie written submissions restricted to 3 pages, plus bills of costs and offers to settle, within 30 days.
Factual Context
7According to the Applicant the parties commenced their relationship when she was thirteen years of age and the Respondent was about nineteen. This is not denied by the Respondent.
8After securing the Applicant’s mother’s consent, the parties married on October 11, 1969 when the Applicant was fifteen years of age and the Respondent was twenty-one years of age.
9The Applicant completed high school in 1972.
10The Respondent maintains that the parties separated in 1976 and continued to live separate and apart under one roof until October 6, 1984. The Applicant maintains that the parties separated October 6, 1984, three days following execution of the Agreement.
11There are no children of the marriage.
12The date of separation in the Agreement is stated as the summer of 1976.
13The Agreement addressed, among other things, division of family property and spousal support.
14Pursuant to para. 6 of the Agreement the Respondent released claims for an interest in the matrimonial home in consideration of the release by the Applicant of her claims to an interest in any RRSP, other pension or savings account in the Respondent’s name. Additionally, the Applicant was to pay to the Respondent the sum of $40,000 if she remarried.
15The Agreement also included the following release regarding spousal support:
Financial support
The wife and husband each acknowledge that neither requires support for themselves and that they have fully and carefully considered their present situations, future prospects and the risks in life both financial and otherwise and they agree neither will claim support or maintenance from the other regardless of the circumstances and if such claim is made this agreement shall be a complete defence thereto.
16There were no certificates of independent legal advice appended to the Agreement although the Agreement did include the following clause:
Independent Legal Advice and Disclosure
The wife and the husband each acknowledge that:
(a) Each has made full disclosure to the other of her or his financial and capital means and circumstances;
(b) Each believes this agreement is reasonable and fair and its provisions are entirely adequate to discharge the present and future responsibilities of the parties and will not result in circumstances unconscionable to either party;
(c) Each has had independent legal advice;
(d) Each understands her or his respective rights and obligations under this agreement; and
(e) Each is signing this agreement voluntarily.
17The Respondent’s signature was witnessed by his counsel Donald Citron.
18The Applicant’s signature is witnessed by lawyer Moira Bartram.
19There is no evidence that any financial disclosure was sought or provided.
20On October 6, 1984, three days after the execution of the Agreement, the Respondent moved out of the matrimonial home, leaving the Applicant in sole possession. At this time the Applicant was employed on a full-time basis earning about $22,700.00 per year as a Junior Law Clerk. The Respondent was employed on a full time basis by Ontario Hydro. His income at the time has not been revealed in any of the evidence before me.
21On November 23, 1984 the Respondent filed a petition for divorce seeking a divorce only. The Applicant was served with the petition for divorce through her counsel at the time, Moira Bartram.
22On April 9, 1985 Justice Ferguson issued the decree nisi. The decree absolute was issued on July 16, 1985.
23The decree nisi incorporated paras. 5, 6 and 8 of the Agreement (including verbatim the provisions of the Agreement with respect to the matrimonial home and property division outlined above and the spousal support release).
24The Applicant married her second husband on June 9, 1990.
25In October 1990 the Applicant paid to the Respondent the sum of $40,000 in accordance with para. 6(3) of the Agreement.
26In January 1999 the Applicant separated from her second husband.
27On June 26, 2000, following trial on corollary issues arising from the second marriage, Justice Quinn awarded the Applicant spousal support from her second husband in the amount of $1,000 per month commencing July 1, 2000. On October 29, 2004 this support entitlement was terminated on a contested basis. The Applicant appealed the order terminating support and the appeal was dimissed on July 5, 2005. The Applicant was denied leave to appeal to the Supreme Court of Canada on December 15, 2005.
28Following separation from her second husband in 1999, until 2009 the Applicant consulted with various psychiatrists and psychologists. Parts of these reports are summarized as follows:
(a) Report of Dr. Finkelstein dated March 17, 1999:
The Applicant described to Dr. Finkelstein “both long standing depressive patterns and more acute symptomatology brought about by the most recent “desertion” of her husband” (the seventh such incident during their nine-year long marriage)….. The Applicant “has suffered from dysfunctional attachments throughout her life. Her parents’ marriage was filled with violence, threats, and intimidation and the children were often beaten with a belt and thrown down the stairs”…
Much anguish was expressed with regard to her first marriage at age fifteen which led to a decade and a half of violence, short-lived protection during the first part of the marriage under the auspices of the Children’s Aid Society due to her young age, police involvement, and finally, annulment. Mrs. A.P. felt considerable pride in being able to knit her life back together and function independently until she met her current partner, with whom she has had steady torment, grief, intrusion from his interfering parents and physical wear and tear…”
(b) Dr. Finkelstein’s report of May 10, 1999:
Under the heading “The Impact of the Marital Separation on the Patient”: “Mrs. A.P.’s depressive reaction is pervasive and severe. She is tormented, anguished and preoccupied with all the minute details of the marital relationship and the accumulating emotional hurt and rejection which she believes she has suffered in a repetitive and relentless fashion. Although she recognizes that she played a role in the failure of the relationship by “putting up walls and shooting defensive arrows”, she believes that this coping pattern was inevitable in light of the perceived failure of attachment, commitment, loyalty and affection on her husband’s part.”
Under the heading “Diagnosis and Prognosis”: “The diagnosis is of a major depressive reaction associated with long-standing marital dysfunction, further complicated by the inevitable stresses of a separation process. There are also depressive character traits which lead to a propensity for suffering and lack of fulfilment in her most intimate relationships. The prognosis indicates that there will probably be a prolonged period of impaired functioning with intense feelings of pessimism, anger, depletion, shame and paralysis of will…”
(c) Dr. Finkelstein’s Report of June 17, 2002:
“A.P.'s disabling psychological symptoms continue to leave her unemployable and barely able to function in the social world. She remains largely housebound and avoidant. Preoccupied with the apparent refusal of her former spouse to comply with court orders and despondent as she watches her financial resources dwindle….The ongoing impasse of the contested issues is contributing to and perpetuating her medical disability….The prognosis for improvement in her depressive condition is bleak until closure is brought to these outstanding claims.”
(d) Psychological Assessment of Dr. Heather Wheeler, psychologist, dated February 18, 2005:
“…Mrs. A.P. described herself as being a relatively happy person before 1997. She grew up in what she called a “normal” and happy home, although she reported her family was “very poor”. She married young, at fifteen years old, to the eight years older “boy next door”….she divorced her first husband after many years of non-intimacy….Mrs. A.P. reports feeling chronically depressed since approximately February 1999 prior to which she said that she was managing as best she could…she believes that the onset of the symptoms was in February 1999 when her husband left her….she denied having any past depressive episodes… taken together the above symptoms are consistent with a diagnosis of major depressive disorder (severe without psychosis, chronic with anxiety features).”
(e) Attending Physician Supplementary Statement dated November 11, 2009:
Confirms diagnosis of “Major Depressive Disorder”.
This is the most recent medical evidence presented to me on this motion.
29Except as noted above, there do not appear to be any references to the Respondent or his alleged misconduct in any of the reports provided by the Applicant.
30The Applicant points to the report of March 17, 1999, and the reference therein to her first marriage, by way of reply to the Respondent’s allegation of recent fabrication. Clearly the Applicant’s comments to a third party cannot have any corroborative influence on my assessment of the evidence of this motion.
31During questioning prior to argument of this motion the Applicant admitted that at no time during the ten years of therapy from 1999 to 2009 did she advise any of her treating health care professionals that she was sexually assaulted by the Respondent.
32In 2006 the Applicant called the Respondent and told him that her marriage to her second husband had failed.
33Either in 2003 (according to the Applicant) or 2006 (according to the Respondent), the Applicant sent a letter to the Respondent requesting the return of the $40,000 she paid to him pursuant to the Agreement. In that letter she indicated:
(a) “The agreement that we made did not take into any account my future should a remarriage fail or if I never remarried at all. Without understanding, I had also given up 15 years of pension and spousal support. I am pleading from you only for the return of the $40,000 that belongs to me from the equity of [the matrimonial home] which was solely in my name as sole ownership. I know understand that no court would have ever awarded that money under the circumstances….”
(b) Referring to her second marriage: “The marriage was extremely rocky if you recall… I had a breakdown and I am still under a doctor’s care because of the legal issues that resulted in several court appearances and the abandonment.”
(c) “I am asking for nothing from you other than what belongs to me. I pray that you will remember that you transferred joint ownership of [matrimonial home] to me solely on one of my birthdays as I had made the down payment on the house and paid off the entire mortgage….our agreement was unfair to me and I did not understand the consequences of making such an agreement at the time. I am very, very sorry to be making this request. I have no choice and it has taken a couple of years to contact you because of my failure”.
(d) “Of course you have the option of just completely ignoring this letter but please help me.”
(e) “Whatever the decision, I sincerely hope that you are well and have found happiness and a fulfilling life. I have always wished you happiness….”
34In 2014 the Applicant initiated a criminal complaint against the Respondent for sexual assault. The charges were later withdrawn by the Crown on the basis of no reasonable prospect of conviction.
Legal Framework
Summary Judgment
35This is a motion for summary judgment. In Hryniak v. Mauldin, [2014] S.C.C. 7 the Supreme Court of Canada set out a two part test for such motions:
First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial: and
Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at his discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided by using these new tools to come to a fair and just result.
36Rule 16(6) of the Family Law Rules provides: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly”.
37Rule 16(6.1) of the Family Law Rules provides:
In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and a court may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers to be exercised only at a trial:
(1) Weighing the evidence;
(2) Evaluating the credibility of a deponent;
(3) Drawing any reasonable inference from the evidence.
38As summarized by Justice Sherr in A.E.A. v. F.A.H., [2015] O.J. No. 3291 the following additional points emerge from Hryniak:
(a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
(b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes.
(c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial.
(d) The Ontario amendments to Rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a “genuine issue requiring a trial”. The new rule, with its enhanced fact finding powers, demonstrates that a trial is the not the default procedure.
(e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost effective.
(f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute.
(g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding.
(h) The inquiry into the interests of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judges to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve comparison of, among other things, the cost and speed of both procedures, it may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial.
39The court’s function on motions for summary judgment is not to resolve an issue, but to determine whether a genuine issue for trial exists, that there are no chances of success and that it is plain and obvious that the action cannot succeed. It is only appropriate to grant summary judgment when the outcome is a foregone conclusion (Julott v. Julott, [2004] O.J. No. 1392 at paras. 28, 29).
Setting Aside a Separation Agreement
40Regarding setting aside a separation agreement, section 56(4) of the FLA provides:
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.
41In LeVan v. LeVan, [2008] ONCA 388 the Ontario Court of Appeal set out a two stage analysis for setting aside a Separation Agreement or a provision in it:
(1) Whether a party can demonstrate that one or more of the circumstances set out in s. 56(4) of the Family Law Act have been engaged.
(2) Whether it is appropriate for the court to exercise discretion in favour of setting aside the agreement.
42In considering a Separation Agreement signed by both parties the court should apply a two stage test. At stage one the court should first look at the circumstances in which the agreement was negotiated and executed in order to determine whether there is any reason to discount it. Where the court is satisfied that the conditions under which the agreement was negotiated are satisfactory, it must then turn its attention to the substance of the agreement. A court must determine the extent to which the agreement takes into account the factors and objectives listed in the Act, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the legal objectives of the Act will warrant the court’s intervention (see Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303 at paras. 80-84).
43The test under s. 56(4) of the FLA is different than the test to set aside a release under the Divorce Act, although it may often be the case that the same facts are relevant to both (see Murray v. Murray, [2003] O.J. No. 3350 at para. 12).
Unconscionability, Duress and Undue Influence
44An unconscionable transaction arises where there is an overwhelming imbalance in the power relationship between the contracting parties. The elements to this are:
(1) Proof of inequality in the positions of the parties.
(2) Ignorance, need or distress of the weaker party leaving that person in the power of the stronger party.
(3) Proof of substantial unfairness of the bargain obtained by the stronger.
45Proof of these circumstances creates a presumption of fraud which the stronger must disprove by proving a just and reasonable bargain (see Norberg v. Wynrib, [1992] 2 SCR 226 at para. 30).
46The threshold of unconscionability is lower in the family context as compared to the commercial context. However, the court should not presume a balance of power in the relationship, nor presume that the apparently stronger party took advantage of the weaker. Rather there must be evidence to warrant the court’s finding that the agreement should not stand on the basis of a fundamental flaw in the negotiation process (see Miglin, supra at para. 82).
47Unconscionability in the family context is produced by the stronger party taking advantage of an ability to prey upon the weaker party. The court is to look for evidence of certain characteristics in one party, such as stress, intimidation, disability, abuse, alcohol or drug problems or a nervous breakdown (see Rosen v. Rosen, [1994] O.J. No. 1160 (O.C.A) and Clayton v. Clayton, [1998] O.J. No. 2028 Ontario Court General Division).
48In determining whether to set aside a contract it is not necessary that the person deriving the benefit deliberately committed a wrongful or fraudulent act, providing there are circumstances where the stronger party took advantage of the weaker (see S.M.B. v. K.R.B., [1997] O.J. No. 3199 Ontario Court General Division).
49The test for undue influence is extremely similar to that of unconscionability and requires the court to inquire into: (1) whether the agreement was an improvident bargain and, if so, (2) was there an inequality in bargaining power (see Hyldtoft v. Hyldtoft, [1991] O.J. No. 1123).
50Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. To prove duress there must be evidence of an attempt by one party to dominate the will of another at the time of the execution of the contract. The Applicant must show that she was compelled to enter into the agreement out of fear or actual or threatened harm of some kind, which is more than the stress associated with the potential breakdown of familial relations (see Ludmore v. Ludmore, 2013 ONSC 784, [2013] O.J. No. 699, varied on other grounds in 2014 ONCA 827).
51Evidence of threats or abuse at the critical period when the agreement is being negotiated and finalized may form the basis of a successful duress claim (see Ernyes v. Rachlin, [2002] O.J. No. 2278, affirmed 2003 O.J. No. 4229 O.C.A.).
52While the presence of legal advice might compensate for some vulnerabilities, the emotional or mental condition of a party may leave the party unable to make use of this professional advice. This is especially significant when those vulnerabilities are known to the other party (see Rick v. Brandsema, 2009 SCC 10, S.C.J. No. 10, 2009 S.C.C. 10).
53In Studerus v. Studerus, [2009] O.J. No. 5498 (ONSC) the court set aside an agreement based on duress where one party placed undue pressure on the other. That pressure arose from living in isolation, financial control by the opposite party and an overwhelming desire to remove herself from the unbearable living situation in which she found herself. A similar situation occurred in Reinhardt v. Reinhardt, [2004] O.J. No. 3318.
Understanding of the Nature or Consequences of the Agreement
54In order to truly understand the consequences of an agreement, the party must first have his or her family law legislation explained to him or her. In Best v. Best, [1990] No. 2167 (Ont. Gen. Div.) the court said:
I am satisfied that Mrs. Best was aware of the “nature” of the contract in the sense that she fully understood she was entering into an agreement intended to be binding upon the parties to it, including herself. The “consequences” of the contract were also understood by her in this sense of what it was that the contract was intended to do, namely, to preserve the rights each of the intended spouses had to the property that they then owned. However, she did not understand the “consequences” in the sense that she was setting up a regime for distribution of property which differed from the provisions of the Family Law Reform Act (and now of the Family Law Act, 1986). To have understood those consequences, she would have to have had her rights under the Family Law Reform Act explained to her. I am of the view that this is sufficient to enable Mrs. Best to seek relief under the statute. A generous and broad interpretation of s. 56(4) is not inconsistent with its language. A restrictive interpretation would not be a meaningful departure from common principles as already contemplated by O’Leary J. in Re Gabriel.
Lack of Financial Disclosure
55A duty to make full and honest financial disclosure of all relevant information is required to protect the integrity of the result of negotiations, and a deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a settlement substantially at variance from the objectives of the governing legislation (see Rick, supra).
Equalization
56During argument I suggested to the parties that as the FLA had not yet been enacted when the issue of property division was being addressed in the Agreement in October of 1984, the Family Law Reform Act, (hereinafter “the FLRA”) being the immediate predecessor to the FLA, may govern the issues pertaining to division of family assets as between the parties. However, s. 70(1) of the FLA confirms, for reasons set out in more detail under the Analysis section of these Reasons, that the FLA would govern any property division issues, assuming the Agreement is found invalid and is set aside.
57There is no limitation under the FLRA with respect to applications for a division of family assets. Section 7(3) of the FLA provides that a claim for equalization after the earliest of:
(a) 2 years after divorce
(b) 6 years after separation and there is no reasonable prospect they will resume cohabitation
(c) 6 months after the first spouse’s death.
58The Applicant refers, in response to the Respondent’s submission of laches, to s. 2(8) of the FLA by way of analogy. Section 2(8) of the FLA provides:
The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay.
59Evidence of intimidating and controlling behaviour on behalf of one party can explain why the other did not commence an application earlier. In Pourier v. Alie, [2007] O.J. No. 3798 (ONSC) the court found that the Respondent’s intimidating and controlling behaviour influenced the Applicant’s decision not to pursue an equalization of net family property. Given this control and intimidation, the court found that the Respondent acted in good faith and without ulterior motive.
60A victim of abuse may not be aware of her claims against her abuser until such time as the claimant is both aware of the essential facts of the case and also their relevance to her pursuing a claim. The claimant must possess a sufficient degree of self-confidence and security to initiate such a proceeding (see L.N. v. Kozens, [2002] ABQB 1995 and R.v. L.W.K., [1991] 1 S.C.R. 1091).
Spousal Support
61Where material change is the appropriate test, the onus is on the Applicant to show that there has been a material change in circumstances and to provide a satisfactory explanation as to the reason for the delay in proceeding with a request for spousal support. The following are the issues to be determined:
(a) Has there been a material change in the circumstances of the claimant?
(b) If so, is she entitled to spousal support?
(c) If there is an entitlement to spousal support, is the claim barred due to the long delay in applying for same?
62Where there has been a delay of twenty-four years in pursuing a claim for spousal support, there must also be a consideration of the intervening factors as well as the reasons for the delay in pursuing such a claim (see Howe v. Howe, [2012] O.J. No. 2031).
63Time delay does not bar a claim for support provided that there is reason for the delay and events that have transpired since the delay (see Albert v. Albert, [2007] O.J. No. 2964, Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074, [2014] O.J. No. 5828 and Norbega v. Norbega, [2007] O.J. No. 1134).
64There is no requirement to demonstrate a material change in circumstances where there is an initial application for spousal support under s. 15(2) of the Divorce Act after a prior release of spousal support. The prior release is simply a factor to be considered (see Miglin, supra).
65There are three conceptual bases for spousal support under the Divorce Act:
(a) Compensatory, to compensate for any economic advantages or disadvantages arising from the marriage or its breakdown;
(b) Non-compensatory, also known as needs-based support;
(c) Contractual (see Bracklow v. Bracklow, [1999] 1 S.C.R. 420).
66Remarriage is not an automatic bar to entitlement to spousal support but only a consideration to be taken into account (see Uens v. Uens, [2000] O.J. 4470).
67There is no limitation period for a spouse to make a claim for spousal support; however, the courts still retain a residual discretion to dismiss an application for spousal support due to delay (see Walker v. Greer, [2003] O.J. no 3396).
68In deciding whether to dismiss a spousal support application for delay the court will consider whether the explanation for the delay was reasonable and any blameful conduct by the payor spouse causing the delay such as failure to disclosure increased income and any prejudice to the payor spouse caused by the delay including lack of notice and any obligation the payor has assumed in the meantime (see Hillhouse v. Hillhouse, [1992] 43 RFL 3d 266 (BCCA), A.M. v. R.P.K., 2010 ONSC 930, [2010] O.J. No. 807 and Philp v. Philp, [1997] O.J. No. 3415 Ontario General Division).
Analysis
69The parties are agreed as to the issues before me. They are as follows:
(a) Is there a genuine issue requiring a trial regarding the Applicant’s motion to set aside or change the separation agreement dated October 3, 1984 and the decree nisi dated April 9, 1985, with respect to spousal support and equalization?
(b) If the answer to question (a) above is “yes” is the Applicant’s claim for equalization statute barred?
(c) If the answer to question (a) is “yes”, does the Applicant raise a genuine issue requiring a trial in advancing her claim for spousal support?
(d) Does the Applicant raise a genuine issue requiring a trial in advancing her claim for a constructive trust with respect to the Respondent’s current home, municipally known as 1020 Rouge Valley Drive Pickering, Ontario?
Applicant’s Constructive Trust Claim
70In her factum the Applicant indicated: “Upon the advice of her lawyer, the Applicant no longer wishes to advance the constructive trust claim on the Respondent’s home in Pickering”.
71I therefore treat this prayer for relief as having been withdrawn or discontinued by the Applicant before commencement of argument before me. There may still be an element of costs arising in this regard however.
Is There a Genuine Issue Requiring a Trial regarding setting aside the Agreement? And the decree nisi regarding Spousal Support and Equalization?
72Embarking upon the first stage of the test in Hryniak, I must take a liberal approach only on the evidence before me, without using the new fact finding powers under the second part of this test. If the summary judgment process provides me with the evidence required to justly determine the motion, I must hold that there is no genuine issue requiring a trial.
73In this regard I note that there are significant evidentiary disputes between the parties including:
(a) The nature of their premarital relationship (ie. sexual or non-sexual, assaultive or non-assaultive);
(b) Whether the Respondent assaulted or otherwise abused the Applicant during their marriage;
(c) Whether the Respondent assaulted and/or intimidated the Applicant in the period leading up to and continuing through the preparation of the Agreement;
(d) Whether there were in fact negotiations regarding the Separation Agreement;
(e) Whether the Applicant had a reasonable awareness of the Respondent’s financial circumstances, including his pension;
(f) Whether the Applicant supported the Respondent while he pursued post-secondary education;
(g) Whether the Respondent pursued post-secondary education;
(h) What was the Respondent’s income leading up to and at the time of separation;
(i) Whether there is any causal link between the Respondent’s alleged abusive behaviour; and
(i) the Applicant’s alleged injuries
(ii) the Applicant’s delay in bringing her Motion to Change
(iii) the Applicant’s alleged need for spousal support (ie. her reduced income over time)
(iv) the Applicant’s alleged failure to fully comprehend the nature and consequences of the Agreement
(v) the Applicant’s alleged failure to actively participate in negotiating the Separation Agreement
(vi) the Applicant’s alleged failure to pursue financial disclosure from the Respondent
(vii) the alleged elements of undue influence, duress and unconscionability.
74The presence and significance of these issues do not preclude determination that there is no genuine issue requiring a trial; however, they do factor prominently in my deliberations.
The Agreement
75There is no time limitation with respect to an application to set aside the Separation Agreement or any provisions in it. Thus the delay in bringing the Motion to Change is not fatal in and of itself.
76Section 56(4)(a) of the Family Law Act permits the court to set aside a domestic contract or a provision in it “if a party failed to disclose to the other significant assets, or significant debts, or other liabilities existing when the domestic contract was made…”.
77In this case the Applicant has deposed in part as follows:
(a) “….I released my interest in his UNDISCLOSED “any Registered Retirement Savings Plan, other pension or savings account” (he told me had NONE)…”
(b) “I believed Mr. F.D. when he told me that he had no RRSP’s, no assets or investments, and little savings because he said everything he earned went to pay the mortgage, property taxes, car insurance and repairs (two cars), utilities, entertainment and vacations over the years; he had told me that he did not contribute to a company pension plan. I believed him because whenever I questioned him, he would hit me for not believing him, called me names and many people lost their homes in the early 1980’s because they could not pay their mortgages”.
78In his reply affidavit the Respondent denies any abusive or assaultive behaviour. However, he does not deny the Applicant’s allegation regarding non-disclosure of his assets as set out above. I therefore have no reason to disregard the Applicant’s evidence in this regard.
79Section 56(4)(b) of the Family Law Act permits the court to set aside a domestic contract or provision in it “if a party did not understand the nature or consequences of the domestic contract…”.
80In relation to this issue the Applicant has deposed as follows in part:
(a) She never received any legal advice regarding the Separation Agreement before signing;
(b) “Mr. F.D. told me and I understood that his lawyer, Donald Citron, was acting for both of us in the preparation of the Separation Agreement and arranged for its execution by Moira Bartram, a sole practitioner lawyer…”
(c) “Mr. F.D. told me what to do and how it was going to be done; he paid all legal fees….I never received any legal advice…”
(d) “I did not understand any rights, present or future, that I was giving up. There was never any financial disclosure of assets or income whatsoever during the entire fifteen years of marriage or at separation; he never brought home paystubs or left any of his bankbooks or papers in the house, except for bills; he told me since I was fifteen that his finances were “none of your fucking business”. No one told me that he was supposed to disclose”.
(e) “I did not understand the waiver of alimony in the Separation Agreement. Mr. F.D. told me I was entitled to alimony because he paid it to me through the house and I was working.”
81The Respondent by way of reply indicates that he “….executed the Separation Agreement with my legal counsel at that time, Donald L. Citron, and the Applicant obtained independent legal advice from her counsel Moira Bartram”. He further deposes as follows:
I deny the Applicant’s allegations that, at the time the Applicant and I signed the Separation Agreement, I advised the Applicant that my lawyer, Donald A. Citron, acted for both of us. The Applicant had her own counsel, Moira Bartram and I deny being in any way involved in making arrangements with or paying for Ms. Bartram’s services.
82There is no evidence before me about what efforts, if any, the Applicant has expended to attempt to secure disclosure of Moira Bartram’s file in relation to her involvement on behalf of the Applicant in relation to the execution of the Agreement in 1984. This is a concerning hole in the Applicant’s evidence; however, the Respondent is not in a position to contradict the Applicant’s evidence to the effect that she received no independent legal advice in relation to the Separation Agreement. The Applicant has produced an email from a representative from the Law Society of Upper Canada, dated February 22, 2016 by way of apparent response to an inquiry by the Applicant and confirming that “…Ms. Bartram was licenced as a lawyer with the Law Society of Upper Canada on April 13, 1978 and practiced in the City of Toronto. She retired on March 1, 2001”. It therefore appears the Applicant has made some effort to secure Ms. Bartram’s file. Beyond that I am not prepared to speculate.
83Section 56(4)(c) of the Family Law Act permits the court to set aside a domestic contract or a provision in it “otherwise in accordance with the law of contract”. In this regard the Applicant raises issues of duress, undue influence and unconscionability.
84As noted above, the Applicant has deposed to numerous events of sexual and non-sexual assault perpetrated upon her by the Respondent from the time that she was thirteen years of age until the parties physically separated following execution of the Agreement in 1984. The Respondent denies all such allegations.
85There is one independent witness to the Respondent having struck the Applicant across the face during a dinner party “sometime in the mid-1970’s….” according to the affidavit of Saverio Angiola sworn December 18, 2015. Mr. Angiola further deposes as follows:
We were all sitting having dinner when F.D. abruptly rose half-way up from his chair and punched A.P. right in the face; she was sitting across from him at the dinner table. The punch was unexpected and shocking. Everyone had been laughing and having fun but A.P. had said something in general that F.D. did not like or agree with and he punched her right in the face for expressing her opinion. A.P.’s reaction was that she said something like “that’s it, I want a divorce”. A.P.’s face was all red on the left side of her face and I remember that very clearly as she ran out of the house. F.D. did not pursue her but rather stayed and finished his dinner and remained for the entire evening.
I still remember that incident vividly because it was so unexpected and violent. F.D. did not like A.P. contradicting him in any manner or disagreeing with him.
86The most proximate allegation of assault in relation to execution of the Agreement is described in the Applicant’s affidavit as follows:
This is the event that finally led to our separation and Mr. F.D. agreeing to move out. In August/September of 1984, I had permitted my neighbour to place a political sign on our front lawn and Mr. F.D. tore up the sign when he came home from work. Derek Walton, my neighbour, told me that he saw Mr. F.D. rip up the sign, advised him that I would not be happy and that he responded with “mind your own fucking business”. Mr. F.D. entered the house and began screaming at me, telling me how stupid I was for wanting to vote for that party, that I did not know what I was doing, that I as an idiot and when I talked back to him, he hit me. By now, I am 30 years old and he was still hitting me. I locked myself in the bathroom and was crying and begging him to leave.
I signed the Separation Agreement as a battered spouse under duress and undue influence to end the abuse. Mr. F.D. moved out on October 6, 1984; he would not move out unless the agreement was signed first. He told me that the agreement was fair, to trust him that he had taken care of me and I believed him, as always.
87The Respondent deposes that his departure from the matrimonial home was not in any way tied to the execution of the Agreement.
88My function on a motion for summary judgment is not to arrive at conclusions on the substantive issues in dispute; rather, the issue is whether there is a genuine issue requiring a trial.
89I am satisfied given the circumstances outlined above, that the Applicant has succeeded in demonstrating that there are genuine issues requiring a trial regarding setting aside the Agreement and the terms of the decree nisi which incorporated its terms. I am not confident, even if I embarked upon the second step of the Hyrniak approach, that justice could be done, in a proportional way, to the significant issues before me. I cannot conclude that the outcome of the Applicant’s claim to set aside the Agreement is a foregone conclusion given the analysis of the evidence above regarding s. 56(4) of the FLA. While the expert evidence does not assist the Applicant in casually connecting the Respondent’s alleged actions to the circumstances surrounding execution of the Agreement, I am satisfied that there is a genuine issue requiring a trial on the issues of unconcionability, duress and whether the Applicant fully understood the nature and consequences of the Agreement. The allegation of assault in the days leading up to the execution of the Agreement, and the allegation of the Applicant’s overwhelming desire to escape an abusive relationship in the days preceding execution of the Agreement, although denied by the Respondent, give rise to the possibility of substantive rights having been unwittingly bargained away in order to escape a history of abuse. In this case these allegations can only be properly tested at trial.
90Although there are some troubling components of the evidence outlined by the Applicant (including her compliance with the impugned Agreement in 1999 by paying $40,000 to the Respondent, the commencement of the Motion to Change soon after collapse of the criminal prosecution against the Respondent, the absence of any explanation for the failure to adduce evidence from Moira Bartram) I find there is sufficient merit in the broad underpinnings of the Applicant’s claims that I cannot conclude that they are doomed to failure. In other words, it is not plain and obvious that the Applicant cannot succeed.
Is the Claim for Equalization Statute-Barred?
91Section 70 of the FLA provides that sections 5 to 8 of that Act apply unless an application under s. 4 of the FLRA was “adjudicated or settled” before June 4, 1985.
92On the evidence before me it does not appear that there was ever an application under s. 4 of the FLRA; rather, it appears that the decree nisi was issued in an application for divorce only, although the decree nisi did ultimately include other terms agreed upon by the parties touching on property division and support. There was no adjudication per se of the issues referred to therein as the court simply incorporated terms of the parties’ Agreement.
93Also, it cannot be said that an application under s. 4 of the FLRA was “settled” in the absence of evidence that there was such an application before the court.
94Therefore, I conclude that sections 5 to 8 of the FLA would apply to any determination of property issues between the parties in the absence of a valid separation agreement.
95Thus, such issues would be subject to s. 7(3) of the FLA which requires that an application for equalization be brought within a time frame that expired in the summer of 1982 (being 6 years after separation if one relies upon the terms of the Agreement regarding separation in “summer of 1976”), or July 16, 1987 (being 2 years after the marriage was terminated by divorce on July 16, 1985).
96Therefore, the limitation under the FLA expired either 34 or 29 years ago, approximately, subject to possible extension of time under s. 2(8) of the FLA if the court is satisfied that (a) there are apparent grounds for relief, (b) relief is unavailable because of delay that has been incurred in good faith and (c) no person will suffer substantial prejudice by reason of the delay.
97The components of s. 2(8) are conjunctive; therefore, the court must be satisfied regarding all three components before an extension of time could be ordered.
98I find it is impossible to escape the conclusion that the Respondent would suffer substantial prejudice by reason of the delay in the Applicant bringing an application for equalization. Evidence of the values of the parties’ respective assets, the balances of bank and credit card accounts, inventories of personal property and so on would be difficult if not impossible to marshal for the purpose of calculating the parties’ net family properties. Also, in the wake of execution of a separation agreement parties move forward in their lives based upon an assumption that the terms of the agreement bind them. Financial decisions are made. Commitments are made or avoided, depending on the terms agreed to. This practical reality also supports a presumption of prejudice following a delay such as that presenting here.
99I also consider that in 1990 the Applicant paid $40,000 to the Respondent by way of compliance with her obligations under the Agreement, thus communicating to the Respondent well after execution of the Agreement that she considered it a binding document. The relief sought by the Applicant is inconsistent with her own conduct in this regard. A further layer of prejudice to the Respondent results in my view.
100Given my finding of substantial prejudice to the Respondent, being one on the conjunctively required components, there can be no extension of time under s. 2(8) and thus the Applicant’s claim for equalization would fail. Therefore, there can be no genuine issue for trial regarding the Applicant’s claim for equalization, even assuming she was successful in setting aside the Agreement.
Does the Applicant Raise a Genuine Issue for Trial in Advancing her Claim for Spousal Support?
101I have already concluded that there is a genuine issue requiring a trial regarding setting aside the Agreement. Assuming the Agreement is set aside, is there a genuine issue requiring a trial regarding spousal support?
102There is clearly no time limitation within which an application for support must be brought, provided there is a reason for the delay (see Albert, supra).
103Having said that, the court retains authority to dismiss a claim for relief where undue delay has preceded the prayer for relief (see Walker, supra). However, I would not exercise my discretion in the circumstances of this case given the real possibility that the Applicant’s health issues contributed to the delay.
104In my view the Applicant has raised a genuine issue requiring a trial for the following reasons:
(a) In the circumstances herein, the Applicant need not establish a material change in circumstances. There has been no adjudication of the issue of support for the same reasons set out above regarding property division. Thus, if the Agreement is set aside the claim for support would proceed by way of Application ab initio.
(b) The parties were in a relationship of seven or fifteen years duration, depending upon which separation date is utilized. While I have evidence of the Applicant’s income at the time the Agreement was signed in 1984 (i.e. $22,700.00) the Respondent has provided no evidence regarding his income at the time. This is evidence solely within his control. I draw an adverse inference that his income in 1984 would have been significantly greater than that of the Applicant. Thus a “needs” based entitlement to spousal support might realistically be made out. Also, there may be a compensatory basis for support given the Applicant’s evidence (denied by the Respondent) that she supported him while he pursued post-secondary education.
(c) The delay in advancing the claims is explained by the Applicant as resulting from lack of awareness of her rights and entitlements combined with mental health issues which she attributes to the Respondent’s conduct towards her. While the Respondent denies the factual underpinnings of the Applicant’s position in this regard, I cannot conclude on the evidence before me, that the Applicant’s position is devoid of merit.
105Again, the factual disputes are, in my view, such that they cannot be done justice within the ambit of Hryniak. Only a trial will be sufficient to fully explore and expose the facts upon which a just determination can be constructed.
106For all of these reasons, there shall be an order in the terms set out in paragraph 6 above.
Douglas, J.