Quinn v. Epstein Cole LLP et al. [Indexed as: Quinn v. Epstein Cole LLP]
92 O.R. (3d) 1
Court of Appeal for Ontario,
Feldman, Cronk and Rouleau JJ.A.
October 1, 2008
Family law -- Domestic contracts -- Financial disclosure -- Wife entering into separation agreement without seeking further disclosure from husband -- Wife subsequently seeking to revisit issue of husband's finances in hope that evidence that he failed to make full disclosure would come to light -- Motion judge properly granting husband's motion for summary judgment -- Wife not permitted to resile from consequences of decision not to seek further disclosure unless she could demonstrate that husband's disclosure was inaccurate, misleading or false -- Wife failing to do so -- Wife's assertion that evidence of non-disclosure might come to light on her pending refusals motion speculative at best.
The motion judge granted the husband's motion for summary judgment dismissing the action against him on the basis that the wife had not adduced sufficient evidence to support her assertion that the husband had not discharged his financial disclosure obligations when the parties entered into their separation agreement. The wife appealed.
Held, the appeal should be dismissed.
The wife had made the choice, with the benefit of independent legal advice, not to pursue further disclosure from the husband before entering into a final settlement by way of a formal separation agreement. Nothing in s. 56 of the Family Law Act, R.S.O. 1990, c. F.3 precludes a litigant from entering into a final and binding settlement in circumstances where financial disclosure is provided. Having chosen to do so without seeking to compel further financial disclosure from the husband, the wife could not resile from the consequences of her decision unless she demonstrated that the husband's financial disclosure was false, inaccurate or misleading. She did not do so but, instead, essentially maintained that evidence of material non- disclosure might be forthcoming after her pending refusals motion was adjudicated. This suggestion was, at best, speculative. There was no genuine issue for trial regarding the adequacy of the husband's financial disclosure.
APPEAL from the summary judgment of D.M. Brown J., dated October 31, 2007, dismissing an action.
Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 56 [as am.]
Charles E. Beall, for appellant. Gerald P. Sadvari and Ann Velez, for respondent. [page2 ]
[1] BY THE COURT: -- The appellant seeks to set aside the summary judgment granted in favour of her former husband, the respondent Keiper, on four grounds. She submits that the motion judge erred by: (i) granting summary judgment when he knew that the appellant's refusals motion, which could have led to the discovery of evidence supportive of the appellant's assertions of material non-disclosure by Keiper, was outstanding; (ii) declining to permit amendments to the appellant's pleading; (iii) concluding that there was no genuine issue for trial; and (iv) dismissing the appellant's claim for spousal support. We reject these submissions for the following reasons.
[2] The motion judge held that the appellant failed to adduce sufficient evidence on the summary judgment motion to support her claim that Keiper had failed to discharge his financial disclosure obligations when the parties' separation agreement was entered into. The motion judge examined, in detail, the items of material non-disclosure asserted by the appellant and concluded, in each instance, that disclosure had been made and that further disclosure was available to the appellant prior to entering into the separation agreement, had she wished to pursue it.
[3] We agree. The record indicates that before entering into the separation agreement, the appellant had the benefit of a consent court order that obliged Keiper to make full and complete financial disclosure. Notwithstanding the existence of that order, and the identification by the appellant's own expert of the outstanding information needed to fully understand Keiper's financial circumstances, the appellant elected: (i) not to pursue further disclosure by Keiper; (ii) to herself propose terms of settlement; and (iii) ultimately, to enter into a final settlement in accordance with the terms of a formal separation agreement. The appellant made these choices with the benefit of independent legal advice. Although she now challenges the nature and adequacy of that advice, the fact remains that, as between the appellant and Keiper, the appellant decided not to pursue further disclosure.
[4] Contrary to the appellant's submission, nothing in s. 56 of the Family Law Act, R.S.O. 1990, c. F.3 precludes a litigant from entering into a final and binding settlement in the circumstances above-described, i.e., where financial disclosure is provided. Having chosen to do so without seeking to compel further financial disclosure from Keiper, the appellant could not resile from the [page3 ] consequences of that decision unless she demonstrated that Keiper's financial disclosure was inaccurate, misleading or false.
[5] But the appellant led no evidence on the summary judgment motion establishing that the information disclosed by Keiper was so deficient. Instead, she essentially maintained that evidence of material non-disclosure by Keiper might be forthcoming during his continued discovery and after the appellant's pending refusals motion was adjudicated.
[6] Yet, notwithstanding this contention, the appellant agreed to proceed with the summary judgment motion before the argument of her refusals motion. She did not seek an adjournment of the summary judgment motion nor, it appears, did she argue that the determination of the summary judgment motion was premature or prejudicial given the outstanding refusals motion.
[7] In any event, the appellant's suggestion that the refusals motion and the continued discovery of Keiper could have yielded evidence of material non-disclosure is, at best, speculative. For example, the appellant was unable to point to any question on the refusals motion that, if answered, would have provided evidence of material financial non-disclosure by Keiper.
[8] In these circumstances, we agree with the motion judge that the appellant failed to meet the requisite test to defeat summary judgment. On this evidentiary record, there is no genuine issue for trial regarding the adequacy of Keiper's financial disclosure.
[9] We also reject the appellant's claim that the motion judge erred by failing to permit her requested pleading amendments. The motion judge's reasons indicate that, in determining the summary judgment motion, he proceeded on the assumption that the requested amendments had been made. He thus took the appellant's pleaded case "at its highest" when assessing whether there was a genuine issue for trial.
[10] Two further observations are appropriate. First, under the settlement effected by the separation agreement, the appellant received the equivalent of a net $10 million equalization payment, in consideration for which she waived any right to spousal support. In her action, she does not challenge the validity of s. 16.10 of the separation agreement. That provision consists of acknowledgments by the parties that each had disclosed to the other his or her income, assets and liabilities at the date of separation as well as "more current information", that each was "satisfied with the information provided" and that neither had any outstanding requests for information from the other. By agreeing to s. 16.10 of the separation agreement, the appellant confirmed that her waiver of spousal support was an informed decision. Moreover, when cross-examined on her affidavit materials for the [page4 ] purpose of the summary judgment motion, the appellant testified that she had placed no reliance on the financial information disclosed by Keiper when deciding to settle her claims against him.
[11] Second, this is a case where the appellant acknowledged under oath that she does not know whether she was underpaid or overpaid by Keiper. She does not allege that she suffered any loss or damage, or that the settlement entered into under the separation agreement was improvident or unconscionable. In effect, the appellant simply wishes to revisit the entire issue of Keiper's finances in the hope that evidence will come to light indicating that he failed to disclose significant income, assets or their values when the separation agreement was entered into. We agree with the motion judge that, having previously eschewed her court-sanctioned right to insist on further disclosure from Keiper, and having accepted the benefit of the separation agreement, this course of action is now foreclosed to the appellant.
[12] The appeal is dismissed. Keiper is entitled to his costs of the appeal on the partial indemnity scale. The parties have agreed that the successful party on appeal should be awarded costs of $50,000, inclusive of disbursements and GST, and we so order.
Appeal dismissed.