Court of Appeal for Ontario

Date: November 6, 2017 Docket: C63500

Justices: Sharpe, Rouleau and Pardu JJ.A.

Between

Philip Freire Appellant (Applicant)

and

Adalaura Testani Freire Respondent on Appeal (Respondent)

Counsel

Murray E. Lightman, for the appellant

Philip Viater, for the respondent

Heard and released orally: November 1, 2017

On appeal from: the order of Justice S. Stevenson of the Superior Court of Justice, dated February 21, 2017.

Reasons for Decision

[1] We do not agree that the motion judge erred in refusing to extend the time to bring a claim for equalization of net family property. The parties separated in February 2005 after nearly 16 years of married cohabitation. In October 2007, the appellant signed a separation agreement and gave up any right to require the wife to pay any equalization payment. He attacks this agreement on numerous grounds including the absence of independent legal advice, the absence of any provision for equalization of net family property and says that he signed it to provide stability for the children who continued to reside with the respondent in a home owned by her. He says he signed it because he felt guilty because he had an affair which led to the breakup of the marriage.

[2] The appellant brought an application for equalization of net family property in January 2016, some 11 years after separation and nine years after the execution of the separation agreement.

[3] The parties had however signed a marriage contract before marriage in 1989. At that time the respondent was the sole owner of an unencumbered home. Her parents assisted her financially to acquire that home and acquire and improve a subsequent home. The marriage contract barred a claim for equalization of net family property.

[4] The appellant concedes that he did not contribute financially to the acquisition of the homes occupied by the parties during cohabitation.

[5] The motion judge considered and applied the appropriate statutory test. She analyzed the grounds advanced by the appellant to invalidate the separation agreement and rejected each of them, concluding, therefore, that there were no "apparent grounds for relief" within the meaning of s. 2(8)(a) of the Family Law Act.

[6] In any event, the motion judge also refused the extension on the ground that the appellant did not meet the second branch of the test specified in s. 2(8)(b) of the Family Law Act that "relief is unavailable because of delay that has been incurred in good faith". This was a finding reasonably open to the motion judge on the evidence before her, in view of the lengthy delay. There is no basis for this court to intervene.

[7] We express no opinion as to the proper interpretation of any contractual entitlement arising out of the separation agreement, in particular, s. 10. This remains an open question.

[8] The appeal is dismissed with costs to the respondent fixed at $12,000, inclusive of taxes and disbursements.

"Robert J. Sharpe J.A."

"Paul Rouleau J.A."

"G. Pardu J.A."