Court File and Parties

CITATION: Verkaik v. Verkaik, 2010 ONCA 23

DATE: 20100115

DOCKET: C50198

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Ann Verkaik

Applicant (Appellant)

and

Douglas Verkaik

Respondent (Respondent)

John M. Freeman, for the appellant

Paul E. McInnis, for the respondent

Heard and released orally: January 13, 2010

On appeal from the judgment of Justice S.S. Seppi of the Superior Court of Justice dated February 20, 2009.

ENDORSEMENT

[1] The overarching issue on this appeal is whether the trial judge erred in law in upholding the parties’ prenuptial agreement.

[2] This is our discussion of the issues raised by the appellant and our disposition of them.

1. Did the application judge err in holding that adequate financial disclosure had been made pursuant to s. 56(4)(a)?

[3] The appellant makes three submissions in this regard: (1) the respondent failed to make full disclosure; (2) the lawyer who gave the appellant independent legal advice was not in a position to advise her properly because he did not have sufficient information about the respondent’s financial position; and, (3) the legal advice the appellant received was not independent.

[4] The trial judge found that, in the circumstances, the respondent’s disclosure was adequate. The draft agreement had attached to it a schedule of assets and their values. In addition, as the appellant was involved in the respondent’s business as a bookkeeper and real estate manager, the trial judge found she had full access to the books of the company and knew well his and its financial position. We would not give effect to the argument that there was inadequate financial disclosure.

[5] The appellant also makes the novel argument that, even if the appellant were aware of the respondent’s financial circumstances, the lawyer who gave her independent legal advice was not and, therefore, he could not properly advise her. In our opinion, the lawyer was in a position to tell the appellant that the respondent had considerable assets as indicated on the schedule attached to the draft of the contract. In the event of separation she would not share in them by way of an equalization payment except with respect to the matrimonial home which was a provision inserted at her request. The appellant’s lawyer told her what the legal effect of the document was and, having regard to our conclusion above, the appellant appreciated its effect on her particular situation.

[6] The appellant submits that Mr. Weir, the lawyer who advised the appellant, had a conflict of interest because he had acted for the respondent on many occasions with respect to his business dealings and, as a result, the advice given was not independent. Mr. Weir testified at trial about his legal advice and explanations to the appellant before she signed the contract. It does not appear that the allegation of conflict of interest was put to him in cross-examination. However, the appellant submits he asked Mr. Weir about the extent to which he had acted for the respondent and his companies and made the submission that Mr. Weir had a conflict. The trial judge found, however, that Mr. Weir urged the appellant to seek advice from another lawyer besides himself but she declined to do so preferring to receive advice from him. In addition it appears that the appellant may have consulted another lawyer prior to her last attendance on Mr. Weir. The appellant does not suggest what was deficient in the advice received as a result of the alleged conflict. We would therefore not give effect to this submission.

[7] In all the circumstances, the trial judge was satisfied that the appellant knew she was giving up her rights to an equalization of net family property. That conclusion was open to her on the evidence and we cannot interfere with it.

2. Should the marriage contract be set aside pursuant to s. 56(4)(c) of the FLA on the grounds that the appellant signed the agreement under duress?

[8] The trial judge found that there was no credible evidence to support the allegation that the appellant was under duress. Further, to the extent the appellant may have felt she was under duress, that pressure did not emanate from the respondent. We would not give effect to this argument.

3. Did the respondent’s actions after the marriage constitute such a different state of affairs that the marriage contract should be set aside pursuant to the test applied by the Supreme Court in Miglin v. Miglin?

[9] The trial judge found that the appellant cooperated in the various transactions and, as noted by the trial judge, the appellant agreed at trial that there was no financial detriment to her. This ground of appeal is dismissed.

4. Should the memorandum prepared by Ms. DeSante have been admitted under s. 35(2) of the Evidence Act as a contemporaneous document?

[10] We see no reason to interfere with the trial judge’s finding that the appropriate test for admissibility was met.

[11] Accordingly the appeal is dismissed. Costs in the amount of $11,500 all inclusive are awarded to the respondent from the appellant’s share of funds being held in trust.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”