COURT OF APPEAL FOR ONTARIO
DATE: 20241213
DOCKET: COA-23-CV-1372
Nordheimer, Copeland and Madsen JJ.A.
BETWEEN
Naween Vikash Singh Applicant/Appellant
and
Rakiun Khalill Respondent/Respondent
Counsel: Supriya Joshi and Jennifer Eensild, for the appellant Efua Cobbina and Natasha Love, for the respondent
Heard: December 5, 2024
On appeal from the order of Justice William Black of the Superior Court of Justice, dated November 7, 2023.
REASONS FOR DECISION
A. Overview
[1] The appellant appeals the order of the motion judge made November 7, 2023, finding the marriage contract between the parties, signed March 3, 2017 (the “marriage contract” or “contract”), valid, and finding no basis for relief in relation to the appellant’s alleged physical injury and loss of income. The appellant also seeks leave to appeal the related costs order.
[2] At the conclusion of the hearing, we dismissed the appeal and the request for leave to appeal costs with reasons to follow. We now provide those reasons.
(1) Validity of the Marriage Contract
[3] The parties were married in 2016 and separated in 2020. In 2017, the respondent became concerned with the parties’ relationship and prepared a marriage contract. After being provided a copy, the appellant signed and notarized the agreement before a lawyer. The appellant did not ask for or receive legal advice. Nevertheless, the lawyer signed a Certificate of Acknowledgment confirming that the appellant understood the contents of the agreement he was signing, and that he was signing voluntarily and without compulsion by the respondent.
[4] The contract stated that the parties are separate as to property and that there shall be no support payable by either party.
[5] The appellant asserts that he did not have full disclosure before signing the marriage contract and that he signed it under duress to save his marriage. He says these are issues which required oral evidence. He argues that the validity of the marriage contract ought not have been determined on motion and that a trial was required to address conflicts in the evidence and credibility issues, as per r. 16(6.2) of the Family Law Rules, O. Reg. 114/99.
[6] We do not accept these arguments.
[7] First, this was the appellant’s motion, brought after not one but two judges had indicated that the issue of the validity of the marriage contract should appropriately be addressed on motion. The appellant’s motion to set aside the contract was met with a cross-motion seeking an order confirming the validity of the contract. Only on the day of the motion itself did the appellant make what the motions judge referred to as the “late breaking suggestion” that the matter be heard as a trial. In our view, determining the validity of the marriage contract on motion was, in this case, proportionate and wholly in keeping with the direction under the Family Law Rules, rr. 2(3)-(5) to ensure that matters are dealt with in a manner that saves expense and time, and is appropriate to their complexity and importance, while giving appropriate court resources to the case.
[8] While not explicitly framed by either party as a Rule 16 summary judgment motion, it was clear that this is what it was. Both parties understood that to the extent that the marriage contract was found to be valid, this would be a final order that would put an end to the application. Rule 16(6.1) of the Family Law Rules explicitly provides that in determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties, and for that purpose may weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence.
[9] The determination of whether summary judgment is the appropriate procedure is a question of mixed fact and law and entitled to deference absent an error of law: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80–84. Further, whether the court determines that oral evidence is to be presented by one or more parties, as permitted under r. 16(6.2), is a discretionary determination, also entitled to deference. While it would have been preferable for the motion judge to have expressly said that there was no genuine issue requiring a trial, it is implicit in his reasons that he found that to be the case. Further, the appellant has not identified any other or different evidence that would have been heard at a trial than what was before the motion judge.
[10] The motion judge correctly set out the law governing setting aside a marriage contract under s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, and accurately summarized the factors for consideration. He appropriately considered the factors summarized by McGee J. in Harnett v. Harnett, 2014 ONSC 359, 43 R.F.L. (7th) 464, at paras. 87–96, which include whether the party seeking to set aside the agreement is not the victim of the other party, but rather of his or her own failure to self-protect. See also Mundinger v. Mundinger, [1969] 1 O.R. 606 (Ont. C.A.).
[11] Oral evidence was not required to make the determinations made on the motion. There was no need for either a “mini-trial” under r. 16(6.1) or a trial. Nor was there any error in making findings of fact and credibility findings on the written materials before the motion judge.
[12] First, on the appellant’s own evidence, the motion judge was able to make the following central findings of fact:
a. The appellant “had not bothered” to read the contract before signing it;
b. The appellant had significant experience with various legal proceedings;
c. The appellant is capable of understanding contracts (stating that he had read “thousands” of them);
d. The appellant had substantial assets and income when the parties married and was thus not concerned about the financial consequences of the marriage contract.
[13] Second, to the extent that the motion judge made credibility findings against the appellant, they arose directly from conflicts and contradictions in his own evidence. For example, in his affidavit, he stated both that he has never been married and that he has been married once before. In questioning, he stated that he had been married twice before. By way of further example, in the application underlying this proceeding, he did not disclose the existence of the marriage contract that is the subject of this appeal.
[14] Third, to the extent that there were conflicts in the evidence, they were not material. For example, the parties’ evidence differed on how long the appellant had the marriage contract in the appellant’s possession before he signed it with the lawyer. The motion judge held that “whenever he received it,” the significant factor was that the appellant did not read it. We agree. Similarly, while an issue was raised about whether the appellant received a copy of the schedule of the appellant’s assets (and the motion judge found that he had, notwithstanding a “photocopying misadventure” in relation to the copy of the agreement received from the lawyer), given the appellant’s admissions that he did not read the contract, that he had substantial assets and income [1] when the parties married, and that he was not concerned with the financial consequences of the contract, this too was of little moment.
[15] In the result, the motion judge found no credible evidence that the respondent had exploited the appellant or that she had taken advantage of any unequal bargaining power. The appellant’s own evidence was that he was at least as well off as the respondent when they married. The motion judge declined to set aside the marriage contract. We find no error in this conclusion, nor in the process used to arrive at it.
(2) Relief Related to the Appellant’s Injury
[16] The appellant’s affidavit states that post-separation, he was involved in a motor-vehicle accident, sustaining significant injuries, which he says have impacted his ability to earn an income. It appears that he wishes to seek spousal support from the respondent.
[17] The motion judge addressed the lack of evidence of the injury or its impacts on the appellant. He noted the “thin” evidence to support any support claim; the fact that the injury took place post-separation; the lack of evidence about the parties’ roles during the relationship; and the short duration of the marriage. He found that “no relief is appropriately due to [the appellant] from [the respondent] relative to his alleged trauma and loss of income.”
[18] The appellant’s factum on appeal argues that the motion judge ought to have set this matter to trial, which he asserts was necessary to conduct a proper Miglin analysis of his spousal support claim: see Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at paras. 80—91.
[19] The appellant’s argument cannot succeed. He did not claim spousal support either in his application or on the motion. Also, as mentioned above, the motion judge commented on the lack of evidence supporting the appellant’s injury or its impact. There is no basis for this ground of appeal and certainly no error by the motion judge in this regard.
B. Costs
[20] The motion judge ordered costs in the amount of $15,000. Five thousand dollars was in relation to the costs of the motion before him, and $10,000 was in relation to costs of four prior appearances, for which the total amount claimed was $14,911.49. Those appearances included two conferences.
[21] The appellant argues that the motion judge erred in awarding costs in relation to the conferences in the face of r. 17(18) which states that costs shall not be awarded at a conference unless a party is not prepared, did not serve the required documents, did not make the required disclosure, or otherwise contributed to the appearance being unproductive. He says that no such findings were made by the motion judge. The appellant further emphasizes the presumption set out in r. 24(10), that costs are to be determined at each stage of the proceeding. Finally, the appellant says that the motion judge erred in not considering his inability to pay.
[22] We do not accept these submissions. First, the determination of costs is discretionary and entitled to significant deference from this court: Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at paras. 67—69. Second, at the appearances in question, costs were reserved, as is explicitly permitted under r. 24(11). Third, three endorsements indicated that the appellant had yet to serve his financial statement, as is required under the Family Law Rules and which is essential for matters to move forward in an efficient and orderly manner. Finally, whether to address the appellant’s ability to pay was a discretionary consideration within the purview of the motion judge: M. (C.A.) v. M. (D.) (2003), 67 O.R. (3d) 181 (ON CA).
C. Disposition
[23] It is for these reasons that the appeal and the request for leave to appeal costs were dismissed. The respondent is entitled to her costs of the appeal, fixed in the agreed amount of $18,000 inclusive of disbursements and HST.
“I.V.B. Nordheimer J.A.”
“J. Copeland J.A.”
“L. Madsen J.A.”
[1] In his affidavit evidence, the appellant swore that he was earning approximately $180,000 per year as a self-employed contractor at the time of marriage.
