Court of Appeal for Ontario
Date: 2019-04-10 Docket: C65683 Judges: van Rensburg, Hourigan and Huscroft JJ.A.
Between
Gordon Tozer Applicant (Appellant)
and
Rita Tassone Respondent (Respondent)
Counsel
Julie K. Hannaford and Melvyn Solomon, for the appellant
Ken H. Nathens, for the respondent
Heard
March 29, 2019
Appeal
On appeal from the order of Justice Irving André of the Superior Court of Justice, dated June 15, 2018, with reasons reported at 2018 ONSC 3726.
Reasons for Decision
[1] The appellant, Mr. Tozer, argues that the motion judge erred in granting summary judgment to the respondent, Ms. Tassone, enforcing a Separation Agreement ("the Agreement") the parties signed in October 2012. He says that the motion judge made palpable and overriding errors in his findings of fact, that he had no jurisdiction to grant summary judgment on the mortgage securing the debt under the Agreement, and that he denied the appellant procedural fairness and natural justice.
[2] We see no error and dismiss the appeal for the following reasons.
Undisputed Facts
[3] The motion judge found that the following facts were not in dispute:
The parties entered into a Separation Agreement on October 30, 2012.
The Agreement was in full and final settlement of all outstanding claims between the two.
Under the Agreement, Mr. Tozer undertook to pay Ms. Tassone the sum of $3,500,000 by December 31, 2015. The amount was secured by a mortgage against an asset known as the Caledon property.
To date, Mr. Tozer has only paid Ms. Tassone $378,491.
Mr. Tozer, pursuant to the terms of the Agreement, owes Ms. Tassone the sum of $3,121,509 plus interest.
Legal Test and Application
[4] The motion judge set out the appropriate test and found that there was no basis to set aside the Agreement.
[5] He properly applied section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, which provides that a court may, on application, set aside a domestic contract or a provision in it:
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
Non-Disclosure Argument
[6] The appellant submits that the motion judge misapprehended the evidence of Ms. Tassone in failing to find that she had not disclosed all of her assets, including land purchases and cash upgrades, prior to signing the agreement, and that there was a genuine issue as to the significance of the assets.
[7] We do not agree.
[8] The motion judge's findings must be put into the appropriate context. The motion judge viewed the appellant's claim about non-disclosure "with great skepticism", noting that neither party had complied with requests that the other had made for disclosure of additional financial information. In other words, the parties were not relying on full financial disclosure, and it was "disingenuous for Mr. Tozer to now seek to justify setting aside the Agreement because of Ms. Tassone's non-disclosure of her assets when he similarly failed to disclose the full value of his own assets prior to mediation on June 26, 2012."
[9] The court is reluctant to interfere in a situation where the parties have purported to conclusively settle their financial issues: see Quinn v. Epstein Cole LLP, 2008 ONCA 662, 92 O.R. (3d) 1 at paras. 3-4. In this case, the parties' Agreement specifically states in para. 7 that it is "in full and final satisfaction" of all outstanding claims between the parties, and acknowledges in para. 10.10 that the appellant and respondent "have sufficiently disclosed their income, assets and other liabilities existing at separation and the date of this Agreement". In these circumstances, even if there was non-disclosure it was not material.
Understanding of Agreement
[10] The motion judge also found that there was no evidentiary basis to support a finding that Mr. Tozer did not understand the nature or consequences of the Agreement. There is no allegation of duress or other misconduct. This was a situation in which two sophisticated parties with complex financial and business interests signed an agreement after having received independent legal advice. In all of the circumstances, the motion judge found no basis to exercise his discretion to set aside the Agreement.
Summary Judgment
[11] In summary, the motion judge applied the proper test and made findings that were open to him. The motion judge also properly articulated the test for summary judgment, and it was open to him properly to conclude that there was no genuine issue requiring a trial. There is no basis for this court to interfere with his conclusions.
Entitlement to Judgment
[12] Before this court, the appellant argued that the respondent was not entitled to judgment on the Agreement. There is no merit to this submission. The appellant brought an application to set aside the Agreement. The respondent sought summary judgment and the motion judge concluded that there was no basis to set aside the Agreement. The decision not to set aside the Agreement meant that the respondent is entitled to the full amount of what is due under the Agreement, subject to any payments that might have been made.
Mortgage and Procedural Fairness
[13] Lastly, the issue of consolidation was properly found to be moot and there was no denial of procedural fairness or natural justice to the appellant. The judgment does not enforce the mortgage, which is subject to another proceeding. Counsel for the appellant acknowledged that the decision in this case resolves claims 1(a), (b), (c), and (f) of his statement of claim in the other proceeding, and we express no views on any other issues concerning the mortgage.
Decision
[14] The appeal is dismissed.
[15] The respondent is entitled to costs in the agreed amount of $15,000, inclusive of taxes and disbursements.
K. van Rensburg J.A. C.W. Hourigan J.A. Grant Huscroft J.A.