COURT OF APPEAL FOR ONTARIO

CITATION: Ramdial v. Davis, 2015 ONCA 726

DATE: 20151029

DOCKET: C59917

Gillese, van Rensburg and Miller JJ.A.

BETWEEN

Chandra Ramdial

Applicant (Appellant)

and

John Frederick Davis, by his Litigation Guardian Richard John Davis

Respondent (Respondent)

Uma Kancharla, for the appellant

Erin Melnyck, for the respondent

Heard: October 6, 2015

On appeal from the order of Justice J. Christopher Corkery of the Superior Court of Justice, dated December 15, 2014.

Gillese J.A.:

[1] Parties enter into a negotiated settlement agreement to resolve all claims arising from the breakdown of a marriage. Both sides are represented by legal counsel throughout. Financial disclosure precedes the negotiation process but without formal valuations of certain properties. In the absence of formal valuations, could the motions judge determine whether the settlement agreement was in substantial compliance with the general objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)? That is the critical question raised on this appeal.

[2] In my view, the answer to that question is “yes”. As a result, I would dismiss this appeal.

BACKGROUND

[3] Ms. Ramdial (the “appellant” or “Ms. Ramdial”) and John Frederick Davis (the “respondent”) were married on September 3, 1995. They separated in early 2012.[^1] At the time of separation, Ms. Ramdial was 67 years of age and the respondent was 81. Both were retired. Based on their financial statements, it appears that the appellant’s annual income was approximately $22,000 and the respondent’s annual income was approximately $40,000. They have no children together, although each has adult children from prior marriages. The parties jointly own the matrimonial home, which is located in Newcastle, Ontario.

[4] Since the time of separation, Ms. Ramdial alone has lived in the matrimonial home. The respondent has continued to pay the monthly mortgage, property taxes and house insurance premiums on the matrimonial home. Since April 2012, the respondent has lived in a full-care nursing home, the cost of which has exceeded his annual income. He has borne full financial responsibility for the expenses of the nursing home.

[5] In 2010, the respondent had triple bypass surgery and was very ill. After he was discharged from the hospital until January 14, 2012, Ms. Ramdial had complete control over the respondent’s pension income, personal savings and other assets that he had acquired prior to the marriage (the “asset control period”).

[6] In August 2012, the respondent was declared incapable of managing his property pursuant to s. 6 of the Substitute Decisions Act, S.O. 1992, c. 30.

[7] Ms. Ramdial subsequently commenced matrimonial proceedings related to the breakdown of her marriage to the respondent. In those proceedings, she sought spousal support and other financial relief.

[8] Richard John Davis (“Mr. Davis”) is the respondent’s son. In August 2013, the court ordered Mr. Davis to be his father’s litigation guardian. The court order also required the parties to make certain financial disclosure.

[9] In addition to being his father’s litigation guardian, Mr. Davis is the designated continuing power of attorney for his father.

[10] Prior to being designated as his father’s attorney, Mr. Davis had concerns about whether Ms. Ramdial mismanaged his father’s income and assets during the asset control period. After being so designated, Mr. Davis investigated his father’s finances and concluded that his concerns were well-founded.

[11] For approximately two years after separation, attempts were made to resolve the outstanding issues arising from the parties’ separation and the breakdown of their marriage. All such attempts failed.

[12] On February 14, 2014, the parties participated in a day-long mediation. Ms. Ramdial attended with her former legal counsel. Mr. Davis attended with the respondent’s legal counsel. The mediator was a retired Superior Court judge with extensive experience in the field of family law. The choice of mediator was that of Ms. Ramdial and her lawyer, to which Mr. Davis and the respondent’s counsel agreed.

[13] Before the mediation was undertaken, the parties made financial disclosure. All of the appellant’s requests for financial disclosure were satisfied. However, there were no formal valuations of the matrimonial home or of the parties’ jointly-owned properties in Trinidad. Mr. Davis took the position at the mediation that Ms. Ramdial had misappropriated significant sums of money from the parties’ joint bank accounts during the asset control period. Ms. Ramdial steadfastly denied these allegations.

[14] By the end of the mediation, the parties and their solicitors had mutually negotiated and drafted a written agreement that resolved, on a final basis, all outstanding matters in the matrimonial litigation (the “Settlement Agreement”). The parties then met separately with their respective lawyers to review and execute the Settlement Agreement.

[15] Under the terms of the Settlement Agreement, the respondent was to:

i. pay the appellant $40,000 in full satisfaction of spousal support (past, present and future) by May 3, 2014;

ii. transfer his half-interest in the parties’ jointly owned properties in Trinidad to the appellant;

iii. secure a discharge of all registered encumbrances on the matrimonial home against the appellant by May 3, 2014;

iv. take all steps forthwith to ensure that the appellant is the beneficiary of the proceeds and investments held with Manulife and MacKenzie, and of the respondent’s British military pension and his British government pension and forthwith provide proof of same;

v. transfer registration of the Honda vehicle registered in the respondent’s name to the appellant; and

vi. be responsible for the house insurance on the matrimonial home.

The appellant was to:

i. assume the cost of the transfer of the Trinidad properties;

ii. transfer her interest in the matrimonial home to the respondent by May 3, 2014;

iii. permit the respondent’s designate to attend at the matrimonial home to pick up his possessions on March 1, 2014; and,

iv. be responsible for the cost of utilities of the matrimonial home to the time of closing.

[16] Approximately a month after the Settlement Agreement was executed, Ms. Ramdial discharged her counsel and notified Mr. Davis that she intended to resile from it.

[17] Mr. Davis then moved for summary judgment pursuant to rules 16(1) and 16(6) of the Family Law Rules, O. Reg. 114/99, to enforce the terms of the Settlement Agreement. Ms. Ramdial, with the assistance of new counsel, brought a cross-motion to have the Settlement Agreement set aside on the basis of duress, unconscionability, undue influence, and ineffective assistance of counsel.

[18] The two motions were heard together. Before the motions judge, Mr. Davis indicated that he would not rely on the allegation of misappropriation of funds by Ms. Ramdial and she indicated, in reply, that she would not rely on undue influence as a ground to set aside the Settlement Agreement.

[19] By order dated December 15, 2014 (the “Order”), the motions judge granted Mr. Davis’ motion and dismissed Ms. Ramdial’s motion. He found there was insufficient evidence of duress, unconscionability, and/or an improvident bargain to warrant setting aside the Settlement Agreement.

[20] Ms. Ramdial appeals.

THE ISSUES

[21] The appellant raises two issues on appeal. She submits that the motions judge erred by: (i) failing to order a trial of the issues raised on the motions, and (ii) failing to consider whether the substance of the Settlement Agreement complied with the objectives of the Divorce Act.

ANALYSIS

Issue #1 – Did the motions judge err by failing to order a trial of the issues raised on the motions?

[22] The appellant argues that there are gaps in the record relating to the matters in issue and those gaps created an uncertainty which could not be resolved without the benefit of a trial. Thus, she contends, the motions judge erred in failing to order a trial of the issues raised on the motions.

[23] In my view, this submission reflects a misunderstanding of the operation of rule 16(6) of the Family Law Rules.

[24] Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order for summary judgment.

[25] As the party bringing the motion for summary judgment, the respondent had the burden of showing no genuine issue requiring a trial. As the responding party, the appellant had to comply with the dictates of rule 16(4.1), which required that she tender evidence of specific facts showing a genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but must set out, in an affidavit or other evidence, “specific facts showing that there is a genuine issue requiring a trial.”

[26] Rule 16 (4.1) reads as follows:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[27] Each party had to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

[28] Further, in Corchis v. KPMG Peat Marwick Thorne, 2002 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), at para. 6, this court affirmed that the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”.

[29] While these cases rely on the summary judgment rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, they apply also to the summary judgment rules in the Family Law Rules: Brusch v. Brusch, 2007 ONCA 612, at para. 1.

[30] Thus, once the respondent discharged his burden of showing that there was no genuine issue requiring a trial, the appellant bore an evidentiary burden to respond with evidence of specific facts showing that there was a genuine issue requiring a trial. The motions judge found that Ms. Ramdial failed to meet that evidentiary burden.

[31] I agree with the motions judge. Accordingly, he made no error in making an order for summary judgment.

Issue #2 – Did the motions judge err by failing to consider whether the substance of the Settlement Agreement complied with the objectives of the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)?

[32] Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, is the starting point for deciding this issue. While Miglin dealt with spousal support agreements in the context of a divorce, it offers guidance for the conduct of negotiations for separation agreements generally, including negotiations for the division of matrimonial assets: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 39.

[33] In Miglin, the parties executed a final agreement that addressed all matters surrounding the breakdown of their marriage, including mutual releases from any future claims for spousal support. Some years later, the wife applied for spousal support under the Divorce Act. The trial judge ordered spousal support. That order was upheld on appeal (and varied to remove the five-year term) but reversed by a majority of the Supreme Court.

[34] Justices Bastarache and Arbour, writing for the majority in Miglin, explained that where parties execute a negotiated agreement in the family law context and that agreement is called into question, the court should engage in a two-stage inquiry. The second stage is not relevant in the present case because it applies when there has been a change in the parties’ circumstances after the execution of the agreement. It will be recalled that in this case, the appellant sought to resile from the Settlement Agreement within a month of its execution. She did not argue a change in circumstances nor was there any evidence of such a change. Thus, I will address only the first stage of the inquiry.

[35] The first stage of the inquiry consists of two steps.

[36] In the first step, the court should look to the circumstances in which the agreement was negotiated and executed to determine whether the applicant has established a reason to discount the agreement: Miglin, at para. 80.

[37] If the court is satisfied that the circumstances under which the agreement was negotiated were satisfactory, it must proceed to the second step. In the second step, the court considers the substance of the agreement. It must determine the extent to which the agreement takes into account the factors and objectives listed in the Divorce Act, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the Divorce Act objectives will warrant the court’s intervention. The court must not view spousal support arrangements in a vacuum, however. It must look at the agreement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin, at para. 84.

The Circumstances of Negotiation and Execution

[38] Ms. Ramdial’s position on this matter is based on the circumstances in which the Settlement Agreement was negotiated. She alleges that she was vulnerable and under duress in the mediation process.

[39] These allegations appear to be based on two matters. First, Ms. Ramdial has diabetes and says she was suffering from its effects during the mediation process. Second, she contends that both her counsel and the mediator failed in their obligations and pressured her into executing the Settlement Agreement.

[40] The motions judge was aware that Ms. Ramdial is a diabetic and that she claimed to have been vulnerable at the mediation as a result of that condition. At pages 2-3 of his reasons, the motions judge states:

As evidence of such vulnerability [Ms. Ramdial] provided an affidavit stating that she suffers from diabetes, the symptoms of which include dizziness, blurred vision and severe headaches. And she stated that while waiting for the mediator to arrive, as a result of her not eating for a substantial period of time, she was feeling dizzy and overwhelmed.

[41] However, assuming that Ms. Ramdial was vulnerable despite being represented by counsel throughout, the motions judge found no objective evidence to suggest that Mr. Davis or his counsel took advantage of or exploited that vulnerability. That finding was fully open to the motions judge.

[42] The motions judge also addressed the appellant’s contention that she executed the Settlement Agreement under duress. As the motions judge noted, vulnerability cannot be equated to duress. Duress is the coercion of a person’s will through illegitimate pressure, with one party dominating the will of another at the time that a contract is executed: Gordon v. Roebuck (1992), 1992 7443 (ON CA), 9 O.R. (3d) 1 (C.A.); Stott v. Merit Investment Corp. (1988), 1988 192 (ON CA), 63 O.R. (2d) 545 (C.A.), leave to appeal refused, [1988] S.C.C.A. No. 185.

[43] The motions judge found no evidence of duress in the mediation process or execution of the Settlement Agreement. On the record, that finding was virtually inescapable.

[44] The motions judge was fully alive to the Miglin dictates in this step of stage one. He considered all of the circumstances relating to the negotiation and execution of the Settlement Agreement, not limiting himself to the specific allegations based on vulnerability and duress. He concluded that nothing in those circumstances gave rise to a basis on which to interfere with the Settlement Agreement.

[45] I agree with the motions judge. Prior to the mediation, the parties had exchanged sworn financial statements and draft net family property statements. All of the appellant’s requests for financial disclosure had been fulfilled. Both parties had prepared extensive mediation briefs. Both parties were represented by legal counsel prior to the mediation and throughout the mediation process. The mediation was conducted by an experienced mediator. Both parties were actively involved in the negotiations that took place during the mediation. Both parties met separately with their respective lawyers to review and execute the Settlement Agreement.

The Substance of the Settlement Agreement

[46] The appellant submits that the motions judge failed to consider the substance of the Settlement Agreement, as required by the second step of the first stage of the Miglin test. Indeed, she says that the motions judge could not consider the substance of the impugned agreement because he did not have before him valuations of the matrimonial home and the Trinidad properties. Without that information, she contends, it was not possible for the motions judge to have determined whether the Settlement Agreement met the overall objectives of the Divorce Act.

[47] I do not accept this submission.

[48] As the party seeking to set aside the Settlement Agreement, the appellant bore the burden of proof to show some legitimate basis on which to set it aside. She offers no concrete suggestion as to how the Settlement Agreement fails to meet the objectives of the Divorce Act.

[49] To the extent that the appellant contends that the Settlement Agreement results in some unfairness in the equalization of property, that submission is purely speculative. She adduced no evidence to support that contention. The appellant could have obtained formal valuations for the properties prior to the mediation or the summary judgment motion and chose not to. All requests that she made for financial disclosure were met. The motions judge was entitled to conclude that the appellant had put her best foot forward. He found nothing to suggest that the Settlement Agreement was unconscionable or unfair to the appellant.

[50] Again, I agree with the motions judge.

[51] The court should treat the parties’ reasonable best efforts, as reflected in their negotiated agreement, as presumptively dispositive. It should set aside the wishes of the parties as expressed in that agreement only where the applicant shows that the agreement fails to substantially comply with the overall objectives of the Divorce Act. Those objectives include certainty, finality and autonomy: Miglin, at para. 78.

[52] The Supreme Court reiterated the need for courts to respect private arrangements made for the division of property on marriage breakdown, particularly where the agreement was negotiated with independent legal advice, in Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 9. While such agreements are not immune to scrutiny, they are to be set aside only where there is evidence establishing that the circumstances in which the agreement was negotiated were not satisfactory or that the agreement was not in substantial compliance with the objectives of the Divorce Act. There is no such evidence in this case.

DISPOSITION

[53] Accordingly, I would dismiss the appeal with costs to the respondent fixed at $13,000, all inclusive, deductible from the amount which the respondent is to pay the appellant pursuant to the Settlement Agreement.

Released: October 29, 2015 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. B.W. Miller J.A.”

[^1]: The parties differ on whether the date of separation is before or after the appellant’s trip to Trinidad, which took place between mid-January 2012 and early February 2012.