COURT FILE NO.: 692-11

DATE: 2012/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WANDA DUNCAN

Applicant

– and –

PAUL DUNCAN

Respondent

D. Larry Segal, for the Applicant

Loreen Irvine, for the Respondent

HEARD: May 4, 2012 (Perth)

REASONS FOR DECISION

KERSHMAN J.

INTRODUCTION

[1] The Applicant, Wanda Duncan (“Ms. Duncan”), commenced an Application on October 7, 2011 to:

1. Set aside a separation agreement dated June 20, 2008 (“Separation Agreement”);

2. Proceed with a claim for spousal support; and

3. Proceed with an equalization of net family property.

[2] The Respondent, Paul Duncan (“Mr. Duncan”), brings a Motion for Summary Judgment to dismiss Ms. Duncan’s Application.

[3] Ms. Duncan brings a Cross‑Motion to dismiss the Summary Judgment Motion brought by Mr. Duncan and for disclosure by Mr. Duncan, as set out in her Notice of Cross‑Motion.

[4] In her pleadings on the Motion, Ms. Duncan claimed that she has not had enough time to respond to Mr. Duncan’s Motion for Summary Judgment. At the Motion, the court asked Ms. Duncan’s counsel if she was seeking an adjournment for further time to prepare. Her counsel advised that she did not want an adjournment and wanted to proceed with the motion.

FACTUAL BACKGROUND

[5] The parties were married on June 4, 1977, and subsequently separated. There is a difference of opinion on the date of separation. According to Mr. Duncan’s evidence, it was in January 2007. According to Ms. Duncan’s evidence, it was in January 2008.

[6] The Separation Agreement was signed in June 2008. It indicated that the date of separation was June 20, 2007. A divorce was granted on August 29, 2008.

[7] During the marriage, Mr. Duncan was employed as a teacher. At the time of separation, he became a vice-principal. In 2010, he was promoted to school principal.

[8] During the marriage, Ms. Duncan worked in the financial services industry for 21 years. She started as a secretary in a bank and then moved into the areas of investments, loans and mortgages. She subsequently worked as a financial consultant with Investors Group (“Investors”).

[9] In October 2002, Ms. Duncan was fired from her job with Investors. She was arrested and charged with fraud in relation to $425,000 that was missing from Investors’ clients’ accounts. Ms. Duncan hired legal counsel. Mr. Duncan borrowed $40,000 from his family members to pay for Ms. Duncan’s defence. In addition, Ms. Duncan borrowed money from her own family to pay for her defence.

[10] At Ms. Duncan’s criminal trial, she claimed the defence of duress. She stated that she had been raped and drugged at a jewellery party in 1992, by unknown people, at a location she could not remember, and had been blackmailed for ten years. She alleged that her blackmailer had demanded one million dollars, over ten years.

[11] In November 2005, a jury convicted Ms. Duncan of fraud and she was sentenced to jail. In April 2006, she was released to a half‑way house. In August 2006, she was released and on probation, under Mr. Duncan’s supervision.

SEPARATION AGREEMENT

[12] After separation, the parties began to negotiate a separation agreement. They went to see their real estate lawyer, Michael Ross. Mr. Ross indicated that he could not act for them as it was a conflict of interest. He referred Mr. Duncan to Heather Morrison, a lawyer in his firm. Ms. Morrison left the firm sometime in 2008, after the Separation Agreement was prepared, but before it was signed.

[13] Ms. Duncan retained Yvonne Lee, a lawyer whose office was located across the street from Ms. Morrison’s.

[14] According to Mr. Duncan’s affidavit, the parties wanted to save money, so they negotiated the terms of the Separation Agreement on their own and with the assistance of lawyers.

[15] The parties entered into a written Separation Agreement prepared by Ms. Morrison. Ms. Duncan’s signature is dated June 20, 2008. Mr. Duncan’s signature is dated June 23, 2008.

[16] In relation to the issue of spousal support, para. 6 states, in part, as follows:

6.1 James will pay Wanda spousal support of $850.00 a month starting June 2008. Commencing June 2010, James will pay Wanda spousal support of $500.00 a month for a period of 36 months. Spousal support will be paid by the 15^th day of each month. On May 15, 2013, spousal support ends forever. This term cannot be changed.

6.2(b) James and Wanda intend this Agreement to be forever final and non-variable.

6.2(d) James and Wanda specifically wish to be able to pursue their separate and independent lives, no matter what changes may occur. James and Wanda specifically anticipate that one or both of them may lose their jobs, become ill and be unable to work, have additional child care responsibilities that will interfere with their ability to work, find their financial resources diminished or exhausted whether through their own fault or not, or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond their imagination. Nevertheless, no change, no matter how extreme or consequential for either or both of them, will alter this agreement and their view that the terms of this Agreement reflect their intention to always be separate financially. James and Wanda fully accept that no change whatsoever in either or both of their circumstances will entitle either of them to spousal support from the other, now and forever.

6.2(e) In short, the parties expect the courts to enforce fully this spousal support release no matter what occurs in the future.

[17] In regard to the issue of Mr. Duncan’s pension, para. 12.2 of the Separation Agreement states:

As a result of the terms of this Agreement, Wanda releases any interest she may have to a share in James’ pension with the Teacher’s Pension Plan. Wanda acknowledges that James did not have his pension valued and Wanda has waived any requirements to him to have it valued.

[18] With respect to the issue of signing the Separation Agreement, paras. 14.14(a) and (b) states:

(a) James and Wanda have both had independent legal advice, James from Michael V. Ross and Wanda from Yvonne Lee. Wanda has decided not to attend with Yvonne Lee to sign this agreement. However, Wanda acknowledges that she has reviewed the agreement, with all amendments to this agreement, with Yvonne Lee. Yvonne Lee recommended that Wanda and James attend with a mediator (David Stevens). Wanda acknowledges this recommendation and has decided not to seek mediation.

(b) James and Wanda:

1. Understand his or her rights and obligations under this Agreement and its nature and consequences;

2. Acknowledge that this Agreement is fair and reasonable;

3. Acknowledge that they are not under any undue influence or duress; and

4. Acknowledge that both are signing this Agreement voluntarily.

[19] A Certificate of Independent Legal Advice was signed by Mr. Ross, indicating that he was consulted by Mr. Duncan. The Certificate states that Mr. Ross had acted only for Mr. Duncan and fully explained to him the nature and effect of the Agreement. The evidence before the Court was that Ms. Morrison was no longer with the law firm at the time the Separation Agreement was signed.

[20] A Certificate of Independent Legal Advice was signed by Ms. Duncan, confirming that she had consulted with Ms. Lee, concerning the Separation Agreement, and had discussed all amendments to the original draft Separation Agreement, particularly with respect to her rights and obligations under the Agreement.

[21] With respect to Ms. Duncan, the Separation Agreement further states:

Yvonne Lee acted only for me and fully explained to me the nature of and affect of the agreement. Yvonne Lee recommended that my husband, James Paul Duncan, and I attend for mediation prior to signing any agreement. I executed the agreement in front of Michael Ross and confirmed I was entering into the agreement of my own volition without any fear, threats, compulsion or influence by James Duncan or any other person.

[22] In October 2011, Ms. Duncan brought an application to set aside the Separation Agreement, as it pertains to equalization of net family property and spousal support.

ISSUES ON THE MOTION

[23] The issues are as follows:

1. Is Mr. Duncan entitled to Summary Judgment to dismiss Ms. Duncan’s application to set aside the Separation Agreement dated June 20, 2008, and to claim spousal support and equalization of net family property?

2. If Mr. Duncan’s motion for Summary Judgment is not successful, should Ms. Duncan be entitled to receive disclosure for the calculation of spousal support and equalization of net family property?

Issue 1: Is Mr. Duncan entitled to Summary Judgment to dismiss Ms. Duncan’s application to set aside the Separation Agreement dated June 20, 2008, and to claim spousal support and equalization of net family property?

Mr. Duncan’s Position

[24] Mr. Duncan argues that the Separation Agreement was negotiated and fairly entered into by both parties, without threats or coercion. Lastly, Mr. Duncan argues that both parties were represented by counsel.

Ms. Duncan’s Position

[25] Ms. Duncan argues that she signed the Separation Agreement under duress and by coercion by Mr. Duncan. She claims that she had been, and has been, suffering mental illness which would render her capacity to enter into the Separation Agreement void. Ms. Duncan further claims that Mr. Duncan made no financial disclosure, did not have his pension valued and that the amount paid in spousal support was less than the Spousal Support Advisory Guidelines (“SSAG”) amount.

[26] Ms. Duncan claims that there are conflicting factual issues in this case requiring a trial so that the Court can have a full appreciation of the evidence. Ms. Duncan requests that Mr. Duncan’s motion for Summary Judgment be dismissed.

Analysis

[27] Mr. Duncan’s position is as follows:

1. He went to a lawyer to have the Separation Agreement prepared.

2. The parties negotiated the Separation Agreement, in large part on their own, and the agreement was then prepared by Ms. Morrison.

3. The Separation Agreement included a provision for the payment of spousal support over five years.

4. The parties intended for the Separation Agreement to be final and non-variable. The Agreement also specifically dealt with changes in the financial circumstances of the parties, whether catastrophic, unanticipated or beyond their imagination.

5. The Separation Agreement dealt with Ms. Duncan releasing any interest in Mr. Duncan’s pension. The Separation Agreement specifically acknowledged that Mr. Duncan did not have his pension valued and that Ms. Duncan was satisfied with that.

6. Ms. Duncan retained Ms. Lee with respect to the Separation Agreement. Her office was located across the street from Mr. Duncan’s lawyer’s office.

7. Ms. Duncan decided to execute the agreement on her own without signing it in front of Ms. Lee. This fact was specifically set out in the Separation Agreement.

[28] Ms. Duncan’s position is as follows:

1. The amount of spousal support paid to her was less than the SSAG amount.

2. She signed the Separation Agreement under duress and undue influence from Mr. Duncan.

3. Mr. Duncan did not provide financial disclosure in the usual format and did not have his pension valued.

4. Ms. Duncan did not have independent legal advice.

(i) Spousal Support Paid

[29] One of the concerns raised by Ms. Duncan was the fact that the amount of spousal support paid was not in accordance with the SSAG.

[30] In the case of Fisher v. Fisher, 2008 ONCA 11, 88 O.R. 3(d) 241 (C.A.), the Court of Appeal states, at paras. 94‑97:

The Guidelines were drafted under the aegis of the federal Department of Justice by the highly-regarded family law professors, Carol Rogerson and Rollie Thompson. The objective of the Guidelines is to bring certainty and predictability to spousal support awards under the Divorce Act. For this purpose, they employ an income-sharing model of support, that if proven viable, will reduce the need to rely on the labour-intensive, and thus expensive, budget-based evidence employed in a typical case. In this way, in a manner quite different from the Child Support Guidelines (CSGs), the Guidelines aspire to reduce the expense of litigation of spousal support by promoting resolution for the average case.

In the seminal case of Yemchuk v. Yemchuk (2005), 2005 BCCA 406, 16 R.F.L. (6^th) 430 at para. 64 (B.C.C.A.), Prowse J.A. aptly characterized the Guidelines as a “useful tool.” She recognized that, unlike the CSGs, the Guidelines are neither legislated nor binding; they are only advisory. The parties, their lawyers, and the courts are not required to employ them. As well, the Guidelines continue to evolve; they are a “work in progress” subject to revision. Those revisions, as with the Guidelines themselves, will follow after broad consultation by the authors with a wide range of interested constituents.

Importantly, the Guidelines do not apply in many cases. They specifically do not apply at all in certain enumerated circumstances, including where spouses earn above $350,000or below $20,000. Furthermore, they only apply to initial orders for support and not to variation orders. They are thus prospective in application. They do not apply in cases where a prior agreement provides for support and, obviously, in cases where the requisite entitlement has not been established. They will not help in atypical cases. As well, there will be regional variations, as well as rural and urban variations, that may be seen to merit divergent results based on variations in cost of living or otherwise. Importantly, in all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.

Accordingly, the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a set period of time. They must be considered in context and applied in their entirety, including the specific consideration of any applicable variables and, where necessary, restructuring.

[31] As such, the Guidelines only provide a starting point.

[32] This Court acknowledges that spousal support paid was less than the SSAG calculations; however, the SSAG guidelines were just that – guidelines. There is no evidence before the Court as to how the amount of spousal support was calculated in 2008. It could have been based on a variety of factors including income, liabilities of the parties, the apportionment of assets, who needed cash, and many other factors. In this Court’s view, this is not the time to review what happened in 2008.

[33] This Court notes that at para. 10.2 of the Separation Agreement, Ms. Duncan was to receive $30,000 from the net sale proceeds of the property and that Mr. Duncan was to receive the balance of the net sale proceeds; however, it does not say how much they were. At the motion, it was the Court’s understanding that Mr. Duncan received far less than $30,000. In para. 9, Ms. Duncan retained her own RRSP and a spousal RRSP valued in the range of $25,000. Furthermore, at para. 11, Mr. Duncan agreed to be responsible for a $10,000 debt to his brother‑in‑law and a $30,000 debt to his parents. These debts were incurred by Mr. Duncan, in relation to legal fees for Ms. Duncan’s defence to the criminal charges.

[34] Therefore, while Ms. Duncan’s counsel argues that the amount payable to Ms. Duncan may not have been pursuant to the SSAG, the RRSPs, the various amounts paid to Ms. Duncan from the sale of the property and the debts taken over by Mr. Duncan with respect to Ms. Duncan’s legal fees, were factored into the calculations of the spousal support that was being paid to Ms. Duncan.

[35] The Court further notes that Ms. Duncan claims that her salary in 2008 was $25,000, when, in fact, her 2008, Line 150, income as assessed was $36,093, in her Notice of Assessment filed in the Continuing Record. While, on this motion, the numbers set out for spousal support, based on the SSAG amounts calculated by Ms. Duncan’s counsel, appear to show that Mr. Duncan was paying far less than the Guideline amount, this Court is not satisfied that the calculations reflect Ms. Duncan’s true income of $36,093, as compared to the $25,000 amount that she claimed as income.

[36] Based on the aforesaid, the Court is not satisfied this issue is a genuine one that necessitates a trial.

(ii) Duress and Undue Influence

[37] This Court does not find that there is any evidence of duress or undue influence. The fact that Ms. Duncan chose, at the final stages of the Separation Agreement, to proceed without a lawyer, is not evidence of duress or undue influence.

[38] Ms. Duncan’s claim of duress and undue influence is in relation to Mr. Duncan’s threat to report her to the Canada Revenue Agency for collecting Employment Insurance (“EI”) benefits, during a period of time when she worked for her father. Ms. Duncan feared returning to prison. Mr. Duncan was her supervisor, pursuant to her probation order, and she claimed that he had threatened to report her to the authorities and, therefore, had the power to send her back to prison for collecting EI benefits.

[39] It should also be noted that this is not Ms. Duncan’s first claim of duress to a court. In relation to her criminal charges, Ms. Duncan also made a claim of duress. However, the jury, at the time, dismissed her claim and found her guilty of fraud related charges.

[40] Ms. Duncan was found guilty of her crimes and was sentenced. In the Court’s view, she is now trying to use her previous bad behaviour against Mr. Duncan, which the Court does not believe that she should be allowed to do so

[41] As part of Ms. Duncan’s affidavit evidence, there is a letter from Dr. Alan J. Drummond, dated November 6, 2010. The letter states, in part:

I do, however, recall distinctly my impression that during the time of her separation negotiations, Mrs. Duncan seemed passive and seemed quite content to let her husband take the lead as to what she could expect from the agreement. On several occasions I questioned her with respect to whether she was receiving appropriate legal counsel because it seemed to me to be a bit of a one‑sided discussion. This seemed relatively abnormal based on my previous exposure to marital disruptions and [their] very real potential for acrimony and argument. I was repeatedly reassured, however, that she had appropriate counsel and advice.

[42] In this case, this Court does not find Ms. Duncan’s assertion to be logical or credible and accordingly dismisses the duress claim.

[43] In the Court’s view, the assertions made by Ms. Duncan are not credible. In 2006, Ms. Duncan agreed to accept the conditions of her probation which included having Mr. Duncan act as her supervisor. She chose to accept Mr. Duncan as her supervisor. It is not appropriate for Ms. Duncan to now try and say that this supervision allowed Mr. Duncan to have undue influence over her. If she did not want to accept the terms of probation, her choices included remaining in jail or obtaining different terms. There is no independent evidence of the duress claim. In the Court’s view, Ms. Duncan is trying to re‑litigate a matter previously decided upon, in the Family Court, which, in this Court’s view, is not appropriate.

[44] Ms. Duncan repeatedly reassured Dr. Drummond that she had appropriate counsel and was receiving appropriate advice.

[45] Based on what Ms. Duncan was telling her own doctor, this Court is satisfied that she was not under duress or being coerced by Mr. Duncan.

[46] Ms. Duncan claims that she was mentally ill when she signed the agreement. Ms. Duncan had been prescribed anti‑depressant medication by Dr. Drummond as far back as 2005.

[47] Even though Ms. Duncan was being treated for anxiety, the Court is not satisfied that the evidence provided by Ms. Duncan is enough to warrant a trial on this issue.

(iii) Financial Disclosure and Valuation of the Pension

[48] Ms. Duncan argues that she should have been provided with financial disclosure to support the equalization provisions of the Separation Agreement. In addition, she argues that Mr. Duncan’s pension was not valued and that it should have been.

[49] Up to the signing of the Agreement, Ms. Duncan had legal counsel who had discussed various financial scenarios with her and who should have advised her of Mr. Duncan’s limited obligations to provide financial disclosure. Furthermore, under the Separation Agreement, Ms. Duncan waived her rights dealing with the pension and acknowledged that that she had reviewed “all the disclosure” that was requested by both parties (Clause 6.2(c)(ii)).

[50] This Court agrees with Mr. Duncan’s argument that the negotiations for the Separation Agreement went on for six months and that Ms. Duncan could have requested and obtained the information that she needed.

[51] In the case of Quinn v. Keiper, 2007 CanLII 45714 (ON SC), [2007] O.J. No. 4169, 87 O.R. (3d) 184, at para. 48, the court said:

Finally, formal disclosure by way of sworn financial statements prior to executing an agreement is not necessary to meet the obligation to disclose (Segal v. Qu, 2001 CanLII 28201 (ON SC), [2001] O.J. No. 2646 (S.C.J.), at para. 52). A general awareness of the assets of the other party may be sufficient to avoid setting aside an agreement (Ablaka v. Ablaka (1991), 1991 CanLII 12843 (ON SC), 32 R.F.L. (3d) 369 (Ont. U.F.C.), at para. 20). Parties are expected to use due diligence in ascertaining the facts underlying their agreements; a party cannot fail to ask the correct questions and then rely on a lack of disclosure (Clayton v. Clayton (1998), 1998 CanLII 14840 (ON SC), 40 O.R. (3d) 24 (Gen. Div., Fam. Ct.), at paras. 28 and 29). One must inquire whether the responding party withheld information or whether the information was available to the party seeking to set aside the agreement (Clayton, at para. 35).

[52] Mr. Duncan, in his affidavit, said that Ms. Duncan wanted cash and agreed that she would take the bulk of the sale proceeds from the home. It was agreed that Ms. Duncan would keep her remaining RRSPs, $10,000 spousal and $15,000 in her name, and $30,000 being the majority of the proceeds of the home. In turn, Mr. Duncan would keep his pension and pay the $40,000 in debt owing to family members for the loans to fund the Applicant’s criminal defence and one of their children’s university debts. This Court is satisfied that, based on the evidence as a whole, the division of assets was taken into account by the parties when determining the amount of spousal support to be paid.

[53] Ms. Duncan’s decision not to use a lawyer to complete the Separation Agreement was a personal choice that she made. She agreed not to have Mr. Duncan’s pension valued. The agreement not to value the pension was specifically set out at para. 12.2 of the Separation Agreement. This term was neither glossed over nor hidden. Ms. Duncan cannot now claim that she was duped into accepting a lower equalization amount by virtue of the pension not being valued. There is no evidence of this.

(iv) Independent Legal Advice

[54] Ms. Duncan argues that she did not have independent legal advice. The evidence is that she retained and used the services of Ms. Lee and saw her several times. The further evidence is that the parties decided to complete as much of the negotiating of the Separation Agreement, on their own, as possible. This was in an effort to save money. They proceeded to negotiate the terms of the Separation Agreement on their own on that basis. Thereafter, the documentation was completed at the lawyer’s office.

[55] Ms. Duncan argues that she was not provided with the opportunity to review the Agreement and sign it with her own legal counsel.

[56] This evidence is contradicted by para. 14.14 of the Separation Agreement, which reads as follows:

(a) James and Wanda have both had independent legal advice, James from Michael V. Ross and Wanda from Yvonne Lee. Wanda has decided not to attend with Yvonne Lee to sign this agreement. However, Wanda acknowledges that she has reviewed the agreement, with all amendments to this agreement, with Yvonne Lee. Yvonne Lee recommended that Wanda and James attend with a mediator (David Stevens). Wanda acknowledges this recommendation and has decided not to seek mediation.

(b) James and Wanda:

i. understand his or her rights and obligations under this agreement and its nature and consequences;

ii. acknowledge that this agreement is fair and reasonable;

iii. acknowledge that they are not under any undue influence or duress; and

iv. acknowledge that both are signing this agreement voluntarily.

[57] In this Court’s view, the words in the Separation Agreement are very plain and clear and express the parties’ intentions.

[58] In addition, the Separation Agreement and the Certificate of Independent Legal Advice states that Ms. Duncan had consulted with Ms. Lee, who had explained the nature and effect of the document to her, as well as her rights and obligations under the Agreement.

[59] Ms. Duncan chose to execute the documents without a lawyer notwithstanding the fact that her lawyer’s office was located across the street from Mr. Duncan’s lawyer. It would not have been difficult to have Ms. Lee to attend a meeting to sign the Separation Agreement or to see Ms. Lee before signing the Separation Agreement. The evidence before the Court is that Ms. Duncan had retained Ms. Lee in approximately November 2006 and received advice from her. The Separation Agreement was not signed until June 2008.

[60] The Separation Agreement states that Ms. Lee recommended that the parties attend mediation prior to signing the Agreement. For whatever reason, the parties chose not to attend with the mediator, and Ms. Duncan signed the Agreement first, on June 20, 2008. Mr. Duncan signed three days later, on June 23, 2008. Prior to affixing her signature to the Agreement, Ms. Duncan could have taken the document across the street to Ms. Lee. For whatever reason, she chose not to. Some people choose not to follow the advice of their lawyers. In this Court’s view, it does not follow that by acting contrary to one’s counsel’s advice, a party can then come back to court and say that he or she has been prejudiced by not following the advice of counsel. This is what Ms. Duncan is attempting to do, which is not an appropriate course of action to be sanctioned by this Court.

[61] This Court’s reading of the Separation Agreement indicates that it was specifically tailored to the particular situation, in light of the wording in para. 14.14(a), and the Certificate of Independent Legal Advice signed by Ms. Duncan. In this Court’s view, if Ms. Duncan was not going to sign it in front of her lawyer, then signing the document in Mr. Duncan’s lawyer’s offices was acceptable. She had to have it witnessed. It could have been anyone, but for whatever reason, only known to her, she chose to sign it in front of Mr. Ross.

[62] This Court reviewed a letter from Ms. Lee to Mr. Segal, dated May 1, 2012. This Court notes that Ms. Duncan originally retained Ms. Lee on November 29, 2006, and then retained her services on July 12, 2007, for general advice regarding her separation from Mr. Duncan. Over the course of her retainer, Ms. Lee and Ms. Duncan reviewed Ms. Duncan’s family and financial background, including several proposed financial settlements.

[63] In her letter, Ms. Lee states that her file contains neither a copy of a draft Separation Agreement nor a draft Amended Separation Agreement prepared by either Ms. Morrison or Mr. Ross, nor does she have any record of receiving correspondence from either Ms. Morrison or Mr. Ross. While Ms. Lee’s file does not contain a copy of the draft Separation Agreement or draft Amended Separation Agreement, this Court does not understand how Ms. Lee would know that there was an Amended Separation Agreement unless she had information related to it. This Court notes that the letter from Ms. Lee is silent as to whether she reviewed any Separation Agreement with Ms. Duncan. If, in fact, Ms. Lee had not reviewed a Separation Agreement, the letter should have said so. While this may be a credibility issue, it is not one that rises to the level to necessitate a trial of the issue.

[64] Furthermore, this Court is of the view that it should not now have to go back and determine why Ms. Duncan chose to sign the Separation Agreement without first obtaining legal advice before signing the Separation Agreement. In this Court’s view, it is too late for that.

[65] Based on the aforesaid, the argument in relation to independent legal advice fails.

The Law

Test for Summary Judgment

[66] The Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 (C.A.), clarified the terms of the scope of the amended Rule 20 of the Ontario Rules of Civil Procedure, which governs motions for summary judgment. The court introduced a “full appreciation test” and provided guidance on the circumstances in which it would be appropriate for a court to resolve issues on a motion for summary judgment.

[67] At paras. 38-39, of Combined Air, the Court of Appeal stated: “The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. … This pivotal determination must be made on a case-by-case basis.”

[68] The Court then laid out three types of cases that are amenable to summary judgment:

1. Where the parties agree that summary judgment should be used, although the court still has discretion to refuse summary judgment: paras. 41 and 72.

2. Where claims or defences are shown to be without merit or have no chance of success. The motion judge must use the full appreciation test before deciding whether to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence: paras. 42-43 and 73.

3. Where the trial process is not required in the “interests of justice”. This power arises from the phrase “genuine issue requiring a trial” combined with the enhanced powers under Rules 20.4(2.1) and 20.4(2.2). The motions judge is to assess whether he or she should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence, or whether these powers should be exercised only at trial: paras. 44-50 and 74.

[69] The full appreciation test is set out in para. 50, of Combined Air, as follows:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? [Emphasis added.]

[70] At paras. 51 and 52 of the case, the Court of Appeal identified the types of cases that would be amenable to summary judgment and those that would not:

In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.

In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge's direction by hearing oral evidence on discrete issues.

[71] The Court of Appeal, at para. 53, of Combined Air, stated that the motions judge must assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case.

Motion for Summary Judgment: Application of the “Full Appreciation Test”

[72] In a Motion for Summary Judgment, the judge must use the full appreciation test before deciding whether to weigh the evidence, evaluate credibility, or draw reasonable inferences from the evidence.

[73] In this Court’s view, the full appreciation of the evidence and the issues can be achieved by way of summary judgment in this case. A trial is not required in the interests of justice.

[74] There is some conflicting evidence, but it does not emanate from a number of witnesses. It emanates from only one witness, Ms. Duncan, the Applicant. This Court acknowledges that there is a letter from Ms. Lee which is attached as an exhibit to a three paragraph affidavit from Samantha Park, a legal assistant in the office of Ms. Duncan’s solicitor. However, in this Court’s view, Ms. Park is not a witness. Furthermore, Ms. Lee only provided a letter, not an affidavit.

[75] Having had the opportunity to read and consider the motion materials filed on behalf of each of the parties, together with their respective factums, and having heard from both counsel, this Court finds that the factual position advanced by Mr. Duncan is more credible and trustworthy than that of Ms. Duncan.

[76] The attributes of the trial process are not necessary to enable this Court to fully appreciate the evidence and the issues in this case. This Court can accurately weigh and draw inferences from the evidence without the benefit of a trial narrative, without the ability to hear witnesses speak the words, and without the assistance of counsel.

[77] Rules 16(4) and (6) of the Family Law Rules state:

16(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

16(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[78] The disputed facts must be material to the genuine issue for trial. Even if facts are disputed, if they do not affect the result, then they do not reach the level of facts in dispute and as such, it does not raise a genuine issue necessitating a trial.

[79] In Steine v. Steine, 2010 ONSC 4289, 91 R.F.L. (6th) 93 (Sup. Ct.), Mulligan J., at para. 56 states:

I am satisfied that FLA rule 16(6) is now bolstered by the new tools that motions judges can have regard to under Rule 20 of the Rules of Civil Procedure. The additional ability to weigh evidence, evaluate the credibility of deponents and draw reasonable inferences gives motion judges additional tools to determine and weed out those cases where no genuine issue requiring a trial exists.

[80] In Pruss v. Pruss, 2000 CanLII 22454 (ON SC), [2000] O.J. 3662, 12 R.F.L. (5th) 188 (Sup. Ct.), Granger J. upheld a separation agreement signed by the parties in a case where the wife had access to independent legal advice, but disregarded it. Although there was some issue of non-disclosure, in the circumstances, the court concluded, at para. 36:

I am satisfied that this separation agreement cannot be successfully attacked [on] the grounds that it is unconscionable as the parties were of equal bargaining strengths and Mr. Pruss did not take advantage of Mrs. Pruss. There is a lack of credible evidence, that Mr. Pruss preyed on any weakness of Mrs. Pruss to extract an agreement that was unfair. This agreement was arrived at as a result of bargaining between Mr. and Mrs. Pruss and when concluded satisfied the needs and financial desires of both parties. As evidenced by Mrs. Pruss’s statement to Ms. Meikle she knew the agreement was fair and she was satisfied with the agreement.

[81] Granger J. went on to say, at paras. 37 and 39:

I am also satisfied that this agreement cannot be successfully attacked under s. 54(4) of the Family Law Act. Mr. Pruss did not fail to disclose any asset when the agreement was executed. Both of the parties were aware that Mr. Pruss had a pension with the C.P.R. and a Canada Pension Plan pension. I [simply] do not accept Mrs. Pruss’s evidence that she did not see the last pension statement from the C.P.R. I am sure that neither Mr. or Mrs. Pruss knew the present value of the pension but Mrs. Pruss knew the pension had value of $45,000 and she did not want any part of the value of the pension. There was no misrepresentation on the part of Mr. Pruss nor did he fail to disclose that he had such a pension. In my view the information that was available to Mrs. Pruss was sufficient to allow her to make an informed decision on whether or not she wished to make a claim against the pension of Mr. Pruss. The cost of placing a value on assets is expensive and as long as one of the spouses does not mislead the other as to the value I see no reason why the spouses cannot be allowed to negotiate an agreement. The Courts should not be seen as the guardians of the terms of a separation agreement. If this were the case every settlement would require Court approval and the cost to the parties would be increased tenfold. Adult spouses are entitled to enter into separation agreements that are not in accordance with spousal property rights under the provisions of the Family Law Act. In this case Mrs. Pruss must have known that she had a claim for more than she was receiving and armed with that knowledge she chose to give up that claim. She should not be heard more than a year later to say that the agreement was unfair and should be varied to provide her with the financial settlement she may have been entitled to at the time of separation.

In my view as stated by Justice Zuber in Farquar v. Farquar, supra, separating spouses must be encouraged to settle their affairs. This is true whether the settlement arises through personal negotiations or through their solicitors. As long as there is no misrepresentation or failure to disclose the value of assets and the parties are of equal bargaining strength, Courts should be reluctant to set aside a settlement. Spouses spend thousands of dollars to have a lawyer negotiate a settlement on their behalf and if a settlement is reached the parties should be entitled to move on with their lives secure in the knowledge of their future financial obligations. Any negotiations involve give and take. In this case custody of the children and leaving the marriage was upper most in the mind of Mrs. Pruss and she agreed to the settlement to achieve these aims without difficulty. There is nothing in the evidence that Mr. Pruss misled Mrs. Pruss or in fact used the aims of Mrs. Pruss to take advantage of her in the negotiations. Although Mrs. Pruss may now be disenchanted with the terms of the separation agreement I see no basis to set the agreement aside.

[82] While the Pruss decision is in relation to a trial, this Court is of the opinion that the aforesaid principles properly convey the view of the courts as it relates to entering into separation agreements.

[83] Ms. Duncan has not established sufficient evidence upon which to ground her submissions. An inference can be drawn that she had second thoughts about signing the agreement and realized, at some point, that her spousal support was going to end.

[84] The Court cannot turn back the clock and allow an individual to relitigate issues due to the fact that he or she may have had second thoughts about a settlement that he or she has entered into. The Separation Agreement was signed in June 2008. Ms. Duncan did not bring her Application until October 2011. This is over three years after signing the Separation Agreement. If Ms. Duncan truly believed that the Separation Agreement was not appropriate, she would not have waited so long to pursue the Application.

[85] This Court notes the following:

1. At no time prior to the signing of the Separation Agreement or any reasonable time thereafter did Ms. Duncan raise the issue of undue influence, coercion, lack of independent legal advice, lack of financial disclosure, or non-valuation of the pension.

2. Ms. Duncan did not put her best foot forward, either through affidavit evidence or otherwise, that would show that there are genuine issues that require a trial.

[86] In this Court’s view, Mr. Duncan is entitled to succeed on his Motion for Summary Judgment. The Court is satisfied that there are no genuine issues that require the holding of a trial. This conclusion is based on the following:

1. Both parties had the opportunity to, and did retain, counsel to prepare and negotiate the Separation Agreement. Thereafter, the parties chose to save monies and negotiated between the Agreement themselves.

2. Ms. Duncan decided, for whatever reason, not to continue with counsel when completing the Separation Agreement.

3. The wording of the Separation Agreement contemplated the following:

(a) the payment of spousal support for a limited period of time;

(b) specific relief of Ms. Duncan’s rights in relation to Mr. Duncan’s pension;

(c) acknowledgment by Ms. Duncan that Mr. Duncan did not have to value the pension and that she waived her requirement to have it valued;

(d) Ms. Duncan’s acknowledgment that she did not attend at Ms. Lee’s office to sign the Separation Agreement;

(e) Ms. Duncan’s acknowledgment that she had reviewed the agreement and all of the amendments with Ms. Lee and that Ms. Lee recommended mediation, which Ms. Duncan chose not to pursue.

4. The Separation Agreement indicated that both parties understood the agreement and that they agreed to comply strictly with its terms.

5. An affidavit was provided by Michael Ross for which there was no cross‑examination. The affidavit reads in part as follows:

(4) I was advised by Heather Morrison that Wanda had sought advice from Yvonne Lee, an experienced Family Law Lawyer, and that the agreement, as drafted with changes agreed to, was satisfactory.

(6) The agreement, with changes agreed to, that Heather Morrison prepared, is the agreement that James and Wanda signed in my presence.

(7) I did not give James and Wanda any advice on the agreement with the changes agreed to, although I did review it with them both individually to confirm that it was satisfactory.

(10) Wanda advised that she had discussed various scenarios with James and she was satisfied with the terms of the agreement.

(11) Wanda did not at any time express a concern about the agreement or that she was under pressure or threatened by James to sign the agreement.

The Setting Aside of Domestic Contracts: The Miglin Test

[87] Ms. Duncan’s counsel argues that this Court has to apply a two stage test, as set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 (S.C.C.). The Miglin test is to determine whether the Separation Agreement should be set aside.

[88] The two‑stage test, as taken from Miglin, is set out at paras. 18-21 of Kelly v. Kelly, 2004 CanLII 4328 (ON CA), [2004] O.J. No. 3108, 72 O.R. (3d) 108 (C.A.):

(1) Stage one

Stage one has two components: the circumstances of the execution of the agreement and the substance of the agreement.

(i) Circumstances of execution

The court must assess whether there is any reason to discount the agreement because of the circumstances under which it was negotiated and executed. In doing so, the court must consider whether “there were any circumstances of oppression, pressure or other vulnerabilities” that flawed the negotiations (para. 81). Professional assistance – the advice of a lawyer – may compensate for or overcome any vulnerability or power imbalance but will not automatically do so. If the power imbalance vitiates the bargaining process, the court should give the agreement little weight.

(ii) Substance of the agreement

If the conditions under which the agreement was negotiated cannot be impeached the court must assess the substance of the agreement. It must decide whether the agreement substantially complies with the objectives of the DA. These objectives include those expressly listed in s. 15.2(6)[^1] as well as those of certainty, finality and autonomy.

(2) Stage two

If the agreement satisfies both components of stage one, the court should give it great weight. Still, stage two of the analysis recognizes that because of “the vicissitudes of life” the parties may find themselves in circumstances that they did not contemplate at the time they signed their agreement. Some change is inevitably foreseeable. The court must assess whether the new circumstances of the parties could not reasonably have been anticipated at the time of execution of the agreement; and whether in the light of these new circumstances the agreement no longer reflects the parties’ intentions or substantially complies with the DA, thus producing a situation that the court cannot condone.

[89] In the present case, based on the Miglin test, this Court does not find that there are any circumstances of oppression, pressure or other vulnerabilities that flawed the negotiations, notwithstanding the arguments put forward by Ms. Duncan. There was no power imbalance in the bargaining process. The assets of the marriage were fully disclosed by both parties. Ms. Duncan was fully aware of Mr. Duncan’s pension and his assets (Separation Agreement, s. 6.2(c)(i)). Furthermore, Ms. Duncan had counsel until such time as she consciously chose not to further deal with counsel.

[90] In terms of the substance of the Separation Agreement, this Court has reviewed it. This Court finds that the Separation Agreement substantially complies with the objectives of the Divorce Act, R.S.C. 1985, c. 3, including those listed at s. 15.2(6) of the Divorce Act. In the Court’s view, there were no economic advantages or disadvantages to Ms. Duncan, arising from the marriage breakdown. As to the issue of child support, two of the three children were no longer dependent. The parties agreed that each would support the third child without contribution from the other. Furthermore, Mr. Duncan agreed to pay for one child’s post‑secondary education expenses as of that date, the amount being approximately $10,000. In terms of relief of hardship of the spouse arising from the marriage, Ms. Duncan received a large share of the monies, including RRSPs valued at approximately $25,000 and $30,000 from the sale of the house. In contrast, Mr. Duncan obtained a much smaller share of the household proceeds and agreed to repay $40,000 of debt to the family, incurred for Ms. Duncan’s legal fees. In 2008, Ms. Duncan was working and had an income of $36,093. In addition, at that time, she received spousal support in the amount of $850 per month or $10,200 per annum, thereby increasing her total income to $46,293. This Court finds that her employment and her total income promoted her economic self‑sufficiency.

[91] Therefore, stage one of the Miglin test has been satisfied.

[92] With regard to stage two of the Miglin test, this Court has to assess whether the parties’ new circumstances could not have reasonably been anticipated at the time of the execution of the Agreement. As well, the Court must assess whether, in light of these new circumstances, the Agreement would reflect the parties’ intentions or substantially comply with the Divorce Act, and whether the Agreement produces a situation that the Court cannot condone.

[93] In the Court’s view, there are no new circumstances of the parties. The Separation Agreement contemplated payment of spousal support for a specific period of time and reduction after a certain number of years. Mr. Duncan did receive a promotion from vice-principal to principal, which under the circumstances would have been foreseeable because the promotion is a natural progression in post-secondary education administration. Ms. Duncan is employed, which was foreseeable. Therefore, this Court finds that no new circumstances have arisen. The Separation Agreement continues to reflect the intention of the parties when the Agreement was signed. Furthermore, the Separation Agreement specifically included the following:

1. On May 15, 2013, spousal support ends forever. This term cannot be changed. (paras. 6.2, 6.3, 13)

2. James and Wanda intend this Agreement to be forever final and non-variable. (paras. 6.2 and 6.3)

3. James and Wanda specifically wish to be able to pursue their separate and independent lives, no matter what changes may occur. James and Wanda specifically anticipate that one or both of them may lose their jobs, become ill and be unable to work, have additional child care responsibilities that will interfere with their ability to work, find their financial resources diminished or exhausted whether through their own fault or not, or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond their imagination. Nevertheless, no change, no matter how extreme or consequential for either or both of them, will alter this agreement and their view that the terms of this Agreement reflect their intention to always be separate financially. James and Wanda fully accept that no change whatsoever in either or both of their circumstances will entitle either of them to spousal support from the other, now and forever. (para. 6.2(d))

4. In short, the parties expect the courts to enforce fully this spousal support release no matter what occurs in the future. (para. 6.2(e))

[94] Based on the aforesaid, the Court does not see how Ms. Duncan can now say that the Separation Agreement should be set aside. To do so would be inequitable. Accordingly, the Court is satisfied that stage two of the Miglin test has been satisfied.

[95] Based on the aforesaid analysis, this Court is satisfied that it is able to assess whether the attributes of the trial process are necessary to fully appreciate the evidence and the issues posed by the case. In this case, the Court finds that the trial process is not necessary to enable it to fully appreciate the evidence and the issues posed by this case. The Court finds that Mr. Duncan’s Motion for Summary Judgment should succeed.

[96] While Ms. Duncan has raised some issues on this Motion for Summary Judgment, the Court considers them to be minor in nature and as such, either individually or collectively, they are not enough to raise issues that necessitate a trial.

Issue 2: If Mr. Duncan’s motion for Summary Judgment is not successful, should Ms. Duncan be entitled to receive disclosure for the calculation of spousal support and equalization of Net Family Property?

[97] As Mr. Duncan’s Motion for Summary Judgment is successful, the Court will not deal with the claims by Ms. Duncan for disclosure.

[98] Ms. Duncan’s Cross-Motion is dismissed both in relation to the Motion for Summary Judgment and disclosure.

COSTS

[99] Mr. Duncan was successful on the motion and should be entitled to his costs, on a partial indemnity basis. Mr. Duncan’s counsel provided a costs summary on a full indemnity basis, seeking costs of $4,108.42, plus costs of the hearing on May 11, 2012. Ms. Duncan’s counsel did not provide a costs outline. Mr. Duncan advised the Court that he seeks $15,000.00 in costs.

[100] Having reviewed the claim for costs, together with the factors in Rule 24(11) of the Family Law Rules, this Court fixes Mr. Duncan’s costs in the amount of $3,500.00, inclusive of disbursements and HST.

[101] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: October 5, 2012

COURT FILE NO.: 692-11

DATE: 2012/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WANDA DUNCAN

Applicant

– and –

PAUL DUNCAN

Respondent

REASONS FOR decision

Kershman J.

Released: October 5, 2012

[^1]: An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.