COURT OF APPEAL FOR ONTARIO

CITATION: Shair v. Shair, 2016 ONCA 982

DATE: 20161228

DOCKET: C61201

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Awni Shair

Applicant (Respondent/Appellant by way of cross-appeal)

and

Adina Shair

Respondent (Appellant/Respondent by way of cross-appeal)

Olena Brusentsova, for the appellant

Steven M. Fehrle, for the respondent

Heard and released orally: December 21, 2016

On appeal from the order of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated September 21, 2015, with reasons reported at 2015 ONSC 5816.

ENDORSEMENT

I. OVERVIEW

[1] The appellant wife emigrated from Romania to Canada to marry the respondent, who had been married and divorced twice before. The respondent insisted the parties enter into a marriage contract.

[2] Prior to signing the marriage contract, the appellant received independent legal advice. As well, the terms of the contract were translated into her native Romanian. Her lawyer strongly advised her not to sign the marriage contract. The appellant ignored his advice and signed the contract dated September 27, 1996 (the “Marriage Contract”). In the contract, the parties agreed to a separate property arrangement and the appellant waived her right to spousal support, save during a short, post-separation period.

[3] In 2014, the respondent applied for a divorce order. In her answer, the appellant sought an order setting aside the Marriage Contract in its entirety.

[4] Both the appellant’s independent legal advice lawyer and the translator testified at the trial. The trial judge found the lawyer to be credible, and she preferred the evidence of the translator to that of the appellant.

[5] The trial judge upheld the validity of the Marriage Contract, save for the provision waiving the appellant’s right to spousal support, which she set aside. The trial judge ordered a further hearing to determine the issue of spousal support.

[6] The appellant appeals that part of the trial judge’s order declaring valid the Marriage Contract; she seeks to set aside the Marriage Contract in its entirety. The respondent seeks leave to cross-appeal the trial judge’s award of costs of the trial against him in the amount of $15,000.

II. APPELLANT’S APPEAL

[7] The appellant advances four grounds of appeal.

A. First ground

[8] First, although the appellant acknowledges the trial judge identified the proper test for a claim under s. 56(4) of the Family Law Act, R.S.O. 1999, c. F.3, as that set out in LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, she submits the trial judge erred in applying that test to the facts of this case. The appellant’s main argument is that having found the respondent did not comply with the disclosure requirements of FLA s. 56(4)(a), the trial judge erred by failing to exercise her discretion to set aside the Marriage Contract.

[9] We are not persuaded by the appellant’s argument. For the most part, the appellant simply repeats before this court the arguments she made before the trial judge. The trial judge explained, at paras. 57 to 63 of her detailed reasons, why she exercised her discretion to enforce the Marriage Contract notwithstanding the respondent’s failure to comply with s. 56(4)(a). We see no palpable or overriding error in her findings of fact on the issue, and therefore the exercise of her discretion is entitled to deference in the circumstances.

B. Second ground

[10] The appellant submits the trial judge erred in refusing to admit at trial a letter written by the respondent’s former counsel to the respondent during the negotiation of a separation agreement from his second wife. The appellant had sought to use the letter to impeach the respondent’s credibility on the issue of his understanding of the financial disclosure requirements imposed by law.

[11] The trial judge excluded the letter primarily on the ground it was subject to solicitor-client privilege between the respondent and his former lawyer, and the respondent had not waived privilege. We are not persuaded the trial judge erred in so excluding the letter. In any event, the exclusion of the letter did not prejudice the appellant’s claim under FLA s. 56(4)(a) – the trial judge accepted the appellant’s submission that the respondent had failed to disclose significant assets.

C. Third ground

[12] The appellant further submits the trial judge erred in failing to set aside the Marriage Contract as unconscionable. The appellant argues the process leading to the execution of the Marriage Contract was unfair, the terms of the contract were unfair and, as an immigrant under a fiancé entry permit, she had no realistic choice but to sign the contract.

[13] Again, the appellant advanced these submissions before the trial judge, who considered and dealt with each of them. We see no palpable and overriding error in her findings of fact or application of the law to those facts.

D. Fourth ground

[14] The trial judge set aside the provisions of the Marriage Contract in which the appellant waived any claim for spousal support. The trial judge ordered a further hearing of the appellant’s application for spousal support and seized herself of the hearing.

[15] The appellant submits that the trial judge erred by failing to recognize that a claim for spousal support would not assist her in any way given that the respondent has retired.

[16] We do not accept this submission. First, it is speculative. Second, in fixing an order for spousal support, a court takes into account many factors, including the “condition, means, needs and other circumstances of each spouse”: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), s. 15.2(4); Spousal Support Advisory Guidelines, The Revised User’s Guide (Ottawa: Department of Justice, 2016), s. 19(e) – “Retirement: Living off capital and income-based guidelines”. No doubt the trial judge will consider all relevant factors when considering the appellant’s claim for spousal support.

[17] The appeal is dismissed

III. CROSS-APPEAL

[18] The respondent seeks leave to cross-appeal the trial judge’s award of costs in the amount of $15,000. We grant leave to cross-appeal, but dismiss his cross-appeal. The trial judge gave thorough reasons for her costs order. We see no error in principle that would justify appellate interference in her award.

IV. DISPOSITION

[19] The appeal and cross-appeal are dismissed.

[20] The respondent is entitled to his costs of the appeal fixed in the amount of $5,000, inclusive of HST and disbursements.

“Doherty J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”