CITATION: Radosevich v. Harvey, 2022 ONSC 3549

DIVISIONAL COURT FILE NO.: 619/21 (Toronto)

DATE: 20220620

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mary Radosevich and Jane Harvey

BEFORE: Pomerance, Kurke, and Davies JJ.

COUNSEL: Ted R. Laan, for the Appellant Mary Radosevich Tanya A. Pagliaroli, for the Respondent Jane Harvey

HEARD virtually at Toronto: June 7, 2022

ENDORSEMENT

[1] At the close of submissions on this appeal, we directed that the appeal be dismissed with reasons to follow. These are those reasons.

[2] The appellant, Mary Radosevich, retained the respondent solicitor, Jane Harvey, to help her negotiate a separation agreement. Unhappy with the agreement, the appellant says that the respondent was negligent in her legal representation. The appellant commenced an action against the respondent seeking to recover the amount to which she claims entitlement by way of unsought spousal support. Vella J. stayed the action as an abuse of process, ruling that the appellant must exhaust her remedies under the Family Law Act R.S.O. 1990, c. F.3 (“FLA”), before she could pursue a civil action against her solicitor.

[3] The appellant challenges this ruling, arguing that Vella J. erred in staying the action. The appellant complains that a motion under the FLA would be doomed to fail, and that she should not be required to suffer the costs consequences of a frivolous action. She argues that the only viable claim that she has is against her solicitor and that the measure of civil damages should be sufficient to cover the shortfall in support.

[4] We disagree. In our view, Vella J. correctly held that this family dispute should be adjudicated under the terms of the FLA, the Act that governs spousal support obligations. It is also the statutory mechanism by which a party may seek to set aside a separation agreement, which is the remedy that the appellant should seek in this case before resorting to a civil action against her lawyer.

[5] The essence of the appellant’s position is that her incomplete knowledge caused her to make an imprudent bargain with her spouse. She claims that the respondent did not properly advise her of her right to retroactive spousal support and was negligent in failing to obtain a valuation of the husband’s business income for family law purposes. She seeks damages from the respondent solicitor in the amount that she should have received in spousal support.

[6] However, the support obligation is that of the appellant’s husband, not that of her lawyer. If the appellant entered into an unfair separation agreement, the situation should be rectified under the authority of the FLA, which is “a complete code for the bringing, proving and adjudicating of spousal support claims”: Conroy v. Vassel, 2019 ONSC 4147, at para. 15. The civil law system must not be used to circumvent the statutory regime governing matrimonial disputes: Cunningham v. Moran, 2011 ONCA 476, at paras. 36 and 40; Sutton v. Balinsky, 2015 ONSC 3081, at paras. 174-177. The pursuit of civil damages in lieu of matrimonial proceedings is inconsistent with the proper and orderly interests of justice. It is, as found by Vella J., an abuse of process.

[7] The appellant argues that a claim under the FLA is doomed to fail. We disagree. Whether the appellant can succeed on a claim to set aside parts of the separation agreement will depend on the evidence led by the parties. However, the FLA clearly governs the dispute. Contrary to the appellant’s arguments, the grounds alleged against the respondent solicitor are the very grounds that may be used to set aside a separation agreement under the FLA.

[8] Section 56(4) of the FLA provides as follows;

56 (4) 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. R.S.O. 1990, c. F.3, s. 56 (4).

[9] While not styled as such in the civil claim, the appellant’s arguments fall to be determined under s. 56(4) of the FLA:

a. The appellant claims that the respondent solicitor failed to properly advise of her rights under the FLA. This argument could ground a finding that the appellant did not understand the nature or consequences of the domestic contract. This would permit the setting aside of the contract or a provision of the contract under s. 56(4)(b). The appellant argues that she did understand the contract, in that she understood what it was she was receiving. However, the point here is that the appellant did not understand what she was not receiving. If, as alleged, the appellant did not know of her right to retroactive support, she did not know that, by entering into the contract, she was giving up her right to retroactive support. This is a consequence of the contract that was not understood, a situation contemplated by s.56(4)(b).

b. The appellant claims that the respondent solicitor was negligent in failing to obtain a valuation of the husband’s income. It is said that the husband did provide full disclosure of his income, but that a valuation of business interests might have increased his income for family law purposes. If the appellant did not appreciate her husband’s true income, she could argue that she did not understand the consequences of agreeing to a lump sum support payment. The appellant argued that this argument is doomed to fail because her husband provided full disclosure and is not to blame for her signing an imprudent agreement. However, the issue is not whether the husband is at fault. There is no such requirement in s. 56(4)(b). The issue is whether the appellant had a full appreciation of what she was and was not giving up.

c. Finally, in her action against the solicitor, the appellant claims that there was a power imbalance between her and her husband, which contributed to a sense of duress. If that was established, this might permit the contract to be set aside under 56(4)(c) of the FLA which refers more generally to the law of contract, where unconscionability is a legitimate claim against the validity of a contract: Rosen v. Rosen (1994), 1994 2769 (ON CA), 18 O.R. (3d), 641 (C.A.); Dochuk v. Dochuk, 1999 14971 (ON SC), [1999] O.J. No. 363 (S.C.J.), at para. 5. Unconscionability can arise in a variety of circumstances and must be assessed in the particular circumstances of the case. Norberg v. Wynrib 1992 65 (SCC), [1992] 2 S.C.R. 226, at para. 40.

[10] In short, as held by Vella J., the appellant’s claims are justiciable under the FLA and that is where they should be tried. Contrary to the argument of the appellant, she does not have the right to choose her defendant. By commencing an action against her solicitor, the appellant chose the wrong forum and is calling the wrong party to account. We agree with the conclusion of Vella J. in para. 14:

[14] For these reasons, I concluded that Ms. Radosevich must attempt to vary the separation agreement, and otherwise avail herself of whatever remedies she might have against her former husband under the relevant family law legislation first, before coming to the civil court to advance an action based on solicitor's negligence against her former lawyer. The remedies advanced by Ms. Radosevich against Ms. Harvey are, in substance, matters governed by the FLA; namely, whether retroactive spousal support ought to be paid by her husband, and whether the lump sum spousal support agreed to be paid was fair in light of her husband's true financial picture.

[11] It inexorably follows that it was open to the motions judge to conclude that the action against the solicitor was an abuse of process. The appellant may seek to lift the stay of the civil action if she is unsuccessful in family court. However, to begin with the civil claim is to litigate with the cart before the horse. We see no basis for appellate intervention.

[12] For the above reasons, the appeal is dismissed.

[13] In accordance with the agreement of counsel, costs are payable by the appellant to the respondent in the amount of $10,000, all inclusive.

R.M. Pomerance J.

A.D. Kurke J.

B. Davies J.

Date: June 20, 2022