Court File and Parties

[Indexed as: Camilleri v. Camilleril]

Re: Charles Camilleri, Plaintiff, Appellant and Vasilica Cristina Camilleri, Defendant, Respondent

Ontario Divisional Court

Lane, Then, Chapnik JJ.

Heard: June 7, 2001 Judgment: June 20, 2001 Docket: Brampton 25276/00

James H. Herbert, for Plaintiff/Appellant/Husband Salvatore Mannella, for Defendant/Respondent/Wife

Reasons for Decision

1 The husband appeals from the judgment of Langdon J. dated October 7, 2000, awarding spousal support to the wife of $1800 monthly for ten years from November 1, 1999.

2 The wife came to Canada in 1995 from her homeland of Romania where she had obtained a high school education. She was 27 years old and supported herself here as an exotic dancer. In early 1996 she and the husband met at a club where she was dancing. They began to cohabit in May 1996 at his home in Brampton. They married on July 5, 1997.

3 From December, 1996, when they first began to discuss marriage, the husband stressed that he would not marry unless there was a marriage contract and such a contract was signed on June 11, 1997. In it the wife gave up all claims for support unless the parties had a child. They did not have a child and separated in April, 1999.

4 Early in the marriage, the husband urged her to quit her job as a dancer and she did so. The motions Judge found that by so doing, the husband effectively removed her ability to be financially independent. She had no training or experience in any occupation that would qualify her for anything more than minimum wage employment.

5 A few weeks after the signing of the marriage contract, and 11 days after their marriage, the husband and wife signed a Sponsorship Agreement whereby he agreed to sponsor her immigration to Canada and to support her for ten years after she obtained permanent residency here. She undertook to make every reasonable effort to provide for her own needs. The Agreement states that it is to begin on the day that the immigrant is granted permanent residence in Canada, and runs for ten years thereafter. The husband also signed an Undertaking to the Minister of Citizenship and Immigration to provide for her essential needs.

6 At the time of the motion, and also at the time the appeal was heard, the wife had not been granted permanent residence in Canada and so, on its face, the Agreement had not yet come into force. Indeed, it is possible that it will never come into force. Although the motions Judge was of the opinion that the effect of the Sponsorship Agreement was to undo the support waiver that the husband had acquired in the marriage contract, he also recognized that any obligations under the Agreement were not yet in force. For that reason, the combination of the two agreements did not help the wife on this motion by providing an independent ground for an award of spousal support.

7 He considered whether the result of the marriage contract was to place the wife in unconscionable circumstances within the meaning of section 33(4) of the Family Law Act. He contrasted the husband's continuation of a well-off life style with the `squalid' quarters which the wife had inhabited until just a week before the motion was heard, and her inability to obtain employment except at less than $1,000 monthly. He considered it "unconscionable for Cristina to be living in poverty and squalor while Charlie lives in a $450,000 mansion, drives two Mercedes, adds substantially to his RRSPs and dines out at his company's expense."

8 Accordingly, Langdon J. ordered spousal support as noted above, notwithstanding the marriage contract.

9 The appellant submitted that the marriage contract should not have been set aside. We were referred to the decision of Bolan D.C.J. in Newby v. Newby (1986), 56 O.R. (2d) 483 (Ont. H.C.) where the Judge suggested three factors to be reviewed by a court asked to exercise its power under section 33(4)(a).

10 The first factor was the circumstances surrounding the signing of the separation agreement (here the marriage contract). It was submitted that the wife here had independent legal advice, financial disclosure, understood the agreement and signed it willingly. The evidence to which we were referred does not entirely support this submission. The wife did have independent legal advice and did understand the agreement, as the Judge found. She also had some partial financial disclosure, as the Judge found; and she did sign the marriage contract. But her willingness was created by the fact that there would be no marriage if she did not and the Judge found that the husband took full advantage of "a colossal inequality of bargaining power to induce Cristina to sign." Nevertheless, it was submitted that the circumstances surrounding the signing favored enforcement of the marriage contract. In the sense that there are insufficient grounds to set the agreement aside on a contract law basis, this submission may well be correct.

11 However, this first factor is not to be given too much weight. Section 33(4)(a) is not concerned with unenforceable or unconscionable contracts, but with unconscionable results of a valid and subsisting domestic contract. This distinction was highlighted in the recent decision of Scheel v. Henkelman (2001), 52 O.R. (3d) 1 (Ont. C.A.), particularly at page 6, where Borins J.A. for the Court said:

As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA, which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision "results in unconscionable circumstances". In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.

12 The second factor is the results of the waiver of support provision. They can be simply stated: the motions Judge found that the husband had effectively removed the wife's ability to be financially independent when he insisted that she give up dancing. He also found that since the separation she had been living in squalor as a result of having neither the ability to earn income at a reasonable rate nor any support from him. These findings are well based in the evidence.

13 The final factor is the situation of the parties today. The motions Judge rejected the husband's plea that he could not afford support and the evidence amply supports this finding. He considered whether the wife should be regarded as having the ability to return to exotic dancing, where she had made a good living before the marriage. She testified that she did not want to do so and probably could not as she had put on weight through inactivity. The motions Judge found that she should not be required to do so because the husband had thought it inappropriate for his wife (as she still is); and that, assuming she could lose the offending weight, no woman who did not wish to do so, should be obliged to undertake such employment. In argument before us, counsel for the husband stated that he did not press on the court the view that she should be, in effect, required to return to stripping for a living. That concession was wisely and fairly made, but even without it, we agree with the motions Judge that it would not be an appropriate order in the circumstances.

14 The appellant submitted that, even without returning to stripping, the wife has a work permit and can contribute to her own support. No doubt that is so, but the evidence is that her uncertain immigration status is a handicap in obtaining the better grades of employment. As the motions Judge noted, she can earn something at minimum wage type jobs earning less than $1,000 monthly. Taking this into account, the amount awarded is not out of line, bearing in mind her need and the parties' previous, and the appellant's present, standard of living. We also note that neither counsel challenged the monthly amount before the motions Judge: see his reasons, paragraph 32.

15 In our view, the evidence supports the motions Judge's finding that the result of the marriage contract was unconscionable. Although he stated that this was the result of that contract, as amended by the Sponsorship Agreement, the reasons show that he was well aware that the latter had not yet come into effect and would, if it did become operative, be beneficial to her. Therefore, we do not consider that the references to the Sponsorship Agreement demonstrate that he was in error in his decision that the result of the marriage contract was unconscionable.

16 It was submitted that the motions Judge erred in his conclusion that the effect of the Sponsorship Agreement was to "undo" the waiver of support clause. The Sponsorship Agreement was not witnessed and so could not be a domestic contract as defined in s. 55(1) of the FLA. The copy in the Appeal Book is indeed not witnessed, but the evidence is that it was signed in the presence of an immigration officer whose signature as witness could presumably be affixed even now. More importantly, counsel submitted that Langdon J. had effectively written out of the Sponsorship Agreement the clause suspending its operation until the wife obtained permanent residence here. As noted, we do not agree that he set aside the waiver of support in the marriage contract because of the effect of the Sponsorship Agreement. He recognized that it had not come into effect and he acted upon the authority of s. 33(4)(a). It is not, therefore, necessary to consider if he correctly characterized the effect in law of the execution of the Sponsorship Agreement.

17 Counsel further submitted that the motions Judge had erred in adopting the ten year period of support found in the Sponsorship Agreement rather than reviewing and deciding the duration of support upon the basis of the factors set out in s. 33(9) of the FLA. He had focussed on one element only, contrary to principle. We were referred to Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.) where the Court stated at paragraph 53 that the submissions of both parties missed the mark by fixing on one statutory factor to the exclusion of others; the wife focussed on need and the husband on the length of the relationship, but each was simply one among many factors.

18 It is to be noted that the motions Judge in the case at bar was expressly required to consider the Sponsorship Agreement: it comes within the language "any other legal right" that the wife had to support under s. 33(9)(m).

19 Specifically, it was said that the motions Judge failed to consider s. 33(9)(c), her capacity to contribute to her own support. On the contrary, he made specific reference to her education (paragraph 5 and 11), her language skill (paragraph 11), her lack of training in anything but exotic dancing (paragraph 11), her loss of that skill due to the marriage (paragraph 12), her husband's unhelpfulness during the marriage in locating suitable employment for her, (paragraph 12), the possibility of a return to exotic dancing (paragraph 17) and the difficulties caused by her immigration status (paragraph 23).

20 It was also submitted that the motions Judge had failed to consider s. 33(9)(e), the ages and physical and mental health of the parties. No submission was made that there were special facts relating to these factors that required assessment. Simply because the wife is somewhat younger than the husband and is able-bodied cannot overcome the effect of the factors considered at length as to her employment prospects.

21 It was also said that the motions Judge failed to consider 33(9)(g), the measures available to her to become able to provide for her own support. This was gone into in the evidence at page 203 of the transcript where she agreed that she would not have problems in getting better jobs if she had permanent residence status. That problem was specifically dealt with by the motions Judge in paragraph 23 of his reasons.

22 Counsel for the appellant stressed the relatively short duration of the relationship, being roughly a year of cohabitation and two years of marriage. Clearly the motions Judge was well aware of these facts, recited by him in his reasons. The length of the relationship is but one of many factors and this case teems with additional factors tending to support the award, all of which were considered and referred to by the Judge.

23 In our view, even if the ten year period was influenced by, or even derived from, the Sponsorship Agreement, this was not the result of improperly focussing on that factor to the exclusion of others. The reasons demonstrate a wide-ranging review of all the factors of importance. The balancing of those factors is the task of the motions Judge and his decision must be given deference unless he acted upon a wrong principle, misapprehended important evidence or was clearly wrong: Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.). We are satisfied that he committed none of these errors.

24 Finally, the appellant submitted that this was an appropriate case to order a review of the support order after a fixed period of time. In our view, it is best to leave the matter to the usual test of material change in circumstances. To that end, we amend the order appealed from to require the wife to advise the husband promptly of any change in her address, her employment income or her immigration status.

25 The appeal is dismissed with costs to the respondent wife fixed at $3500.

Appeal dismissed.