Court of Appeal for Ontario

Citation: Brusch v. Brusch, 2007 ONCA 612

Date: 20070910

Docket: C46838

Between:

John Peter Brusch

Applicant (Respondent in Appeal)

and

Gina Elizabeth Brusch

Respondent (Appellant)

Counsel:

Bryan R. G. Smith for the appellant

Paul Larkin Seitz for the respondent

Heard and released orally: September 5, 2007

On appeal from the orders of Justice Casimir N. Herold of the Superior Court of Justice dated February 12, 2007 and March 20, 2007.

Endorsement

[1] Counsel acknowledges that there was an agreement to settle in accordance with the written settlement agreement signed by the husband and that it was made by the lawyers with authority. The wife says however that she did not understand that the agreement settled more financially than the matrimonial home. No evidence was led by the wife on the motion from her lawyer at the time. That evidence was essential to raise a genuine issue for trial that the wife was mistaken. Without that evidence, the wife did not put her best foot forward on the summary judgment motion to raise a genuine issue for trial. There is also on the record no evidence that the husband was aware of the alleged mistake.

[2] We are also not persuaded that the motion judge made any error by failing to find that the agreement was unconscionable or that there was a genuine issue regarding unconscionability. The record discloses that the parties negotiated a comprehensive settlement of all property issues for equalization beginning in April 2004. The values of properties and debts were the basis for those negotiations culminating in the settlement that was reached. From the settlement conference material it is clear that the wife was aware of all of the issues.

[3] On the issue of child support, because both parties were represented by competent counsel throughout, and the issue was fully resolved to everyone’s satisfaction, the trial judge made no error in dealing with that issue the way he did.

[4] We agree with the appellant that the form of settlement agreement should not have been made part of the order but an order incorporating the relevant and enforceable terms should have been crafted using Rule 18.13 of the Family Law Rules. In our view, only those parts of the order within the court’s jurisdiction are enforceable.

[5] With respect to the issue of costs, we accept the appellant’s submission that the motion judge failed to fully consider the wife’s ability to pay and the effect of the order on her child support obligations. The costs order is therefore reduced to $15,000.

[6] The balance of the appeal is dismissed.

[7] The costs of this appeal are fixed at $7,000.

Signed: “K. Feldman J.A.”

“J. Simmons J.A.”

“J. MacFarland J.A.”