COURT FILE NO.: 1665/09

DATE: 20121015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LOUANNE MARIE DERESKI

Applicant

– and –

DAVID WILLIAM PERCIVAL ELLIS

Respondent

Joseph Bisceglia, for the Applicant

Michael Walz, for the Respondent

HEARD: August 20, 2012

t. Mcewen j.

reasons for decision

introduction

[1] The Respondent, David William Percival Ellis (“Mr. Ellis”), has two more motions before the court. The first motion seeks to set aside and revoke the final settlement and subsequent order of Koke J. dated January 26, 2012. The second motion, is more comprehensive, and seeks a number of orders as follows:

1. An Order setting aside the Minutes of Settlement executed between the parties on January 26, 2012.

2. An Order for direction of the court pursuant to Section 15 (26) Family Law Rules, in regards to proceeding on the within motion.

3. An order requiring disclosure of any offers on the matrimonial home located at 97 Pointe Des Chenes.

4. An Order requiring the consent of the Respondent on the acceptance of offers on the matrimonial home located at 97 Pointe Des Chenes.

5. An Order that the parties shall share custody of the children namely, Graeme Carr Ellis born December 19, 1993. Hanna Sofia Constance Ellis born July 6, 1995 and Andrew Aidan Ellis born August 5, 2002.

6. An Order that the proceeds of the sale of the matrimonial home located at 97 Pointe Des Chenes be paid into the court until further Order of the court.

[2] The Applicant, Louanne Marie Dereski (“Ms. Dereski”), has also brought a motion seeking the following relief:

1. An Order permitting and granting leave to Louanne Marie Dereski to bring the within motion.

2. An Order dismissing the Motion of David William Percival Ellis dated April 24, 2012, presently before the Court and originally brought on the return date of April 26, 2012.

3. In the alternative, an Order that, Louanne Marie Dereski is not required to receive the consent or execution of a transfer or deed from or by the husband, David William Percival Ellis to affect the sale of the lands and premises at 97 Point Des Chenes Crescent and that the same be dispensed with.

background Facts

[3] Ms. Dereski and Mr. Ellis were married in June of 1990. Mr. Ellis had been previously married and divorced. It was Ms. Dereski’s first marriage. They have three children: Graeme born December 19, 1993, Hanna born July 6, 1996, and Andrew born August 5, 2002. Ms. Dereski is a registered nurse. Mr. Ellis is an architect. Both are, by all accounts, well educated and intelligent people.

[4] Ms. Dereski and Mr. Ellis separated on March 31, 2009. At the time of the separation they resided at their matrimonial home located at 97 Pointe Des Chenes Crescent in Sault Saint Marie. Both parties retained counsel to deal with their matrimonial issues and attempted mediation which was unsuccessful.

[5] At the same time litigation was commenced by Ms. Dereski and the matter proceeded in the usual way with a number of case conferences and motions. Ms. Dereski was initially represented by Carol Shamess and Mr. Ellis was represented by Augusto Palombi. Ultimately, a motion was scheduled for January 26, 2012, to determine, on an interim basis, issues of child support, child custody, spousal support and other miscellaneous relief. Michael O’Neill replaced Ms. Shamess as solicitor for Ms. Dereski in early September 2011. In or about November, 2011, Mr. Ellis discharged Mr. Palombi as his lawyer and began to represent himself in the matrimonial litigation in early December 2011.

[6] In advance of the hearing date of January 26, 2012, Mr. O’Neill and Mr. Ellis began settlement negotiations concerning the issues involved in the motion and also settlement of the overall issues between the parties on a final basis. There was a meeting at the office of BDO, Mr. Ellis’s accountants on January 23, 2012, in which both Mr. Ellis and Mr. O’Neill attended. At the meeting the value of Mr. Ellis’s business and assets were discussed.

[7] Thereafter, Mr. Ellis and Mr. O’Neill commenced negotiations in earnest on January 25, 2012, to resolve all issues on a final basis. A great number of emails were exchanged between the two of them. During this time it appears that, although Mr. Ellis no longer retained the services of Mr. Palombi, he did have some contact with him concerning certain calculations.

[8] There were a number of disputes between the parties that had to be resolved. It is clear from the emails that negotiations continued into the evening and a tentative agreement was worked out that would be reduced to writing the next day and presented to the court. Subsequently, at 4:39 a.m., Mr. Ellis sent a lengthy email to Mr. O’Neill setting out his frustration with the process, but he did not attempt to renegotiate the tentative agreement.

[9] The next day, on January 26, 2012, Mr. Ellis and Mr. O’Neill met at the courthouse and executed Minutes of Settlement. Thereafter, they attended before Koke J. A transcript of that attendance was included in the motion materials. Koke J., after hearing submissions from Mr. O’Neill and brief of submissions from Mr. Ellis, indicated that he had thoroughly reviewed the matter. He granted an order in accordance with the Minutes of Settlement.

[10] Thereafter, in March, 2012, Mr. Ellis brought his first of two motions to set aside the Minutes of Settlement and the Order of Koke J. dated January 26, 2012, amongst other relief.

issues

[11] At the motion, some time was spent discussing the authority on which Mr. Ellis could challenge the Minutes of Settlement and seek to set aside the Order of Koke J. Counsel for Ms. Dereski submitted that rule 25(19) of the Family Law Rules did not apply since the motion was not to “change” an order, but rather to set it aside: see Dodge v. Dodge 2007 80075 (ON SC), [2007] O.J. No. 3888 (S.C.J.). I agree.

[12] Counsel for Mr. Ellis submitted that the Minutes of Settlement could be set aside by virtue of the provisions of s. 56(4) of the Family Law Act, R.S.O. 1990 c.F.3 as amended, which provides as follows:

SETTING ASIDE DOMESTIC CONTRACT – 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.

[13] Counsel for Ms. Dereski, however, submitted that since the Minutes of Settlement had been incorporated into the Order of Koke J. s. 56(4) did not apply. Ms. Dereski submitted that any relief had to be sought pursuant to r. 59.06(2) of the Rules of Civil Procedure that provides as follows:

Setting Aside or Varying

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[14] Both parties agreed, however, that the court had inherent discretion to set aside the Minutes of Settlement and the Order of Koke J., notwithstanding that this matter proceeded pursuant to r. 56(4) or r. 59.06(2) if I found for Mr. Ellis with respect to the four issues he has raised which are as follows:

1. Mr. Ellis did not understand the nature or consequence of the domestic contract or the court proceedings that took place on January 26, 2012: (s. 56(4)(b)).

2. The Minutes of Settlement are void by virtue of the fact that Mr. Ellis could not enter into a contract by virtue of his diminished mental state in or about the time the Minutes of Settlement were negotiated, executed and the Order of Koke J. was granted: (s. 56(4)(c)).

3. Ms. Dereski failed to disclose to Mr. Ellis a significant asset that being the value of her pension when the Minutes of Settlement were executed and the order was subsequently taken out: (s. 56(4)(a)).

4. Furthermore, the overall settlement was unconscionable given Mr. Ellis’s mental frailty, the terms of the agreement, lack of legal advice, bullying by Mr. O’Neill and nondisclosure by Mr. O’Neill to Koke J. at the January 26, 2012 attendance.

[15] I agree with counsel, who were very helpful in sorting through the technical nature of the motion, that whether it be by virtue of either rule or the inherent jurisdiction of the court, all four issues raised by Mr. Ellis are properly before me and ought to be determined. If Mr. Ellis is unsuccessful, all the relief sought in both of his motions will be dismissed. I will deal with each of the issues in turn.

Capacity

[16] The first issue that I will deal with is whether Mr. Ellis lacked the capacity to understand the nature and consequences of the Minutes of Settlement and the subsequent granting of the Order by Koke J. This issue relates to the first two submissions of Mr. Ellis.

[17] For the reasons below, I find that Mr. Ellis has failed to establish that he did not understand the nature and consequences of the Minutes of Settlement or what transpired at the attendance before Koke J.

[18] In support of his position, Mr. Ellis has tendered affidavits from a friend Tom Dodds (“Mr. Dodds”), a friend and neighbour Brian Wilson (“Mr. Wilson”), and an acquaintance Bruce Willson (“Mr. Willson”), who is also a practicing lawyer. I have reviewed the affidavits of each of these gentlemen.

[19] Each of them had contact with Mr. Ellis in or about the time he was negotiating the Minutes of Settlement and his attendance at court. Mr. Wilson interacted with Mr. Ellis on the evening the agreement was negotiated. Mr. Wilson recalls, amongst other things, Mr. Ellis being distraught and sobbing. Mr. Ellis expressed despair over the fact that he would not be able to see his children again (although the agreement that he entered into specifically allowed for generous access).

[20] The next morning Mr. Dodds saw Mr. Ellis prior to the court attendance. Mr. Dodds was described by Mr. Dodds as being somewhat incoherent, shaking, crying and extremely despondent. He did not feel that Mr. Ellis was in a position to make major decisions.

[21] Mr. Willson actually saw Mr. Ellis at the courthouse and described Mr. Ellis as being emotionally shattered. Notwithstanding Mr. Willson’s concerns, however, he agreed to witness Mr. Ellis’s signature on the Minutes of Settlement which, in my view, demonstrates that Mr. Willson, a lawyer, had confidence that Mr. Ellis was capable of entering into the agreement.

[22] In addition to the above affidavits, Mr. Ellis also relied upon a letter provided by his family physician, Dr. Edward Hirvi, dated June 20, 2012, which reads as follows:

To whom it may concern:

I am the family physician for Mr. David Ellis. It is my understanding that Mr. Ellis has signed a legal contract with respect to his divorce. At the time of signing this divorce settlement, Mr. Ellis reports to me that he was under significant psychologic distress and unable to appreciate the full implications of his decision. I assessed Mr. Ellis on February 9, 2012 who demonstrated distress and admitted to me that he did not understand the full implications of the document he had signed. I have been treating Mr. Ellis for depression since December 7, 2011 and this was likely a contributing factor to his inability to fully understand the full implications of this decision to sign this document.

Sincerely,

Signed: Edward Hirvi, MD. CCFP

EH:

[23] It is clear from the above affidavits and the letter of Dr. Hirvi, that Mr. Ellis was clearly very upset with respect to the negotiations and deal that he ultimately entered into, particularly with respect to access to his youngest son Andrew. I cannot, however, conclude that he did not understand the nature or consequences of the domestic contract or that he lacked capacity to enter into a contract.

[24] Firstly, with respect to the issue of capacity, there is no medical evidence whatsoever to suggest that he lacked capacity. The only evidence in this regard, of any note, is from Dr. Hirvi who simply delivered a letter several months later, in unsworn form, which did not provide any diagnosis or prognosis. The letter simply outlined Mr. Ellis’s history and the fact that his ongoing depression was likely a contributing factor in his ability to fully understand the full implications of his decision to execute the Minutes of Settlement. Dr. Hirvi’s letter, however, in addition to what I have outlined above, is not persuasive by virtue of the fact that he did not see Mr. Ellis at any time in or about the timeframe in which the settlement was negotiated or the Minutes of Settlement were executed. In fact, Mr. Ellis did not even go to see Dr. Hirvi until approximately two weeks after the deal was executed and the attendance before Koke J.

[25] In my view, the nature of the emails exchanged between Mr. Ellis and Mr. O’Neill undermine Mr. Ellis’s submission that he failed to understand the nature of consequences of the deal that was ultimately struck between the parties. I have carefully reviewed the emails in this regard and they disclose a balanced “give and take” between Mr. Ellis and Mr. O’Neill that ultimately resulted in an agreement being entered into which reflects compromise between the parties with Mr. Ellis largely knowing what the final outcome of the Minutes of Settlement would entail. This is bolstered by the fact that I was advised during argument that Mr. Ellis and Ms. Dereski actually had a phone call in the early morning hours of January 26, 2012 wherein Mr. Ellis extracted an extra day of access to Andrew, every two weeks as part of the settlement. The only email that caused me any concern was the aforementioned 4:39 a.m. in which it is fair to say that Mr. Ellis vents to Mr. O’Neill about the terms of the settlement. While it may be true that Mr. Ellis was unhappy that he entered into such a settlement, it is clear from all of the emails, including the 4:39 a.m. email, that he clearly understood the nature and consequences of the deal he was entering into with Ms. Dereski.

[26] My finding in this regard is further supported by the transcript of the appearance before Koke J. in which Mr. O’Neill set out, in general terms (and I will deal with this further below) the parameters of the settlement. Mr. Ellis, who was present in the courtroom was asked by Koke J. whether he had any submissions and he responded as follows:

THE COURT: Mr. Ellis, do you have any submissions you’d like to make?

MR. ELLIS: The only thing is and it’s only because…spent $3 or $4,000.00 to have this prepared – it is our rebuttal to the wages and it shows historically the highest…is $89,000.00, a low of 40, but…and the fact that yes, I get a house at the end of it, but it’s mortgaged to the hilt and the other one is free and clear – but, on the other hand, I want to get it over with and I want to get it over with and I..we decided, reluctantly, we’ve decided because if I don’t sign, I don’t get a deed and if I don’t get a deed, I can’t borrow money and it don’t borrow money, by Wednesday, I’m going to be sued for that, so…it’s done. Thank you.

[27] Based on the reasons above, I simply cannot conclude that Mr. Ellis did not understand the nature or consequences of the Minutes of Settlement nor that he lacked the requisite capacity to enter into the agreement.

Non-Disclosure

[28] Mr. Ellis submits that the Minutes of Settlement and resulting Order of Koke J. ought to be set aside by virtue of Ms. Dereski’s failure to provide full disclosure of her pension.

[29] I do not agree that Ms. Dereski failed to provide full disclosure. Mr. Ellis was well aware of the fact that Ms. Dereski was entitled to a pension. His greater complaint comes from the fact that it was not properly particularized in the days leading up to the motion. Once again, I disagree. The record clearly shows that Ms. Dereski disclosed that she had a pension which she valued at $25,000. If Mr. Ellis disputed the amount of this valuation he had every opportunity to do so. Further, there was no evidence tendered by Mr. Ellis that the pension had a higher value. In my view it is disingenuous at this stage to claim that there was a failure to disclose based on the facts of this case.

Unconscionability

The Law

[30] As stated by Mulligan J. in Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331:

[63] There is no question the courts have set aside separation agreements or minutes of settlement when there is a finding of a significant lack of full financial disclosure. See Underwood v. Underwood (1995) 11 R.F.L. 4361 and Bradley 2000 22513 (ON SC), [2000] O.J. No. 1734 (S.C.J.). However in Bradley v. Bradley the court determined that the separation agreement was a “kitchen table” agreement signed by the wife without the benefit of any legal advice in circumstances where the husband’s behaviour was considered to be coercive and where the husband failed to provide a full and frank disclosure of his financial assets.

[64] In Baxter v. Baxter (2003) 2003 1992 (ON SC), 41 R.F.L. (5th) 23, at para. 6 Ohal, J. summarized a number of factors which can inform the court’s discretion in setting aside orders or agreements:

(1) whether the facts existed at the time of the signing of the agreement;

(2) whether the party seeking to set aside on this basis knew the facts were different than originally stated but decided not to inquire further about details, or neglected to pursue full legal disclosure;

(3) whether there was concealment or misrepresentation;

(4) whether there was duress or unconscionable circumstances;

(5) whether the non-disclosure was material, how important would the non-disclosed information have been to the negotiations;

(6) whether the agreed upon terms are reasonable and fair; would they have been different had the facts been known. Would knowledge of the undisclosed assets have made any difference in negotiations;

(7) whether the request to set aside is made expeditiously [citations omitted].

[65] In Pruss v. Pruss 2000 22454 (ON SC), [2000] O.J. No. 3662, 12 R.F.L. (5th) 188, Granger J. upheld a separation agreement signed by the parties in circumstances where the wife had access to independent legal advice but disregarded it. Although there was some issue of non-disclosure the court concluded in all the circumstances, at paragraph 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.

[66] Courts do have power to set aside separation agreements in circumstances that existed in cases like Miglin v. Miglin 2003 SCC 24 , [2003] 1 S.C.R. 303. In Miglin the court looked at balancing finality versus fairness and suggested a two stage analysis of the facts of a case. In the first stage it is important to scrutinize the facts at the time of execution of the document. Did flawed negotiations exist indicating procedural unfairness or was there any evidence of substantive unfairness at the time of execution? If no grounds exist under stage one, stage two indicates that these facts must be looked at again at the time of the application. Were there changed circumstances, or was there other evidence of substantive unfairness?

[67] In Rick v. Brandesma 2009 SCC 10, [2009] 1 S.C.R. 295 the Supreme Court of Canada gave further clarity to the Miglin analysis. Abella J. stated at paragraph 50:

The best way to protect the finality of an agreement in family law is to ensure both the procedural and substantive integrity in accordance with the relevant legislative scheme.

[31] In considering the issue of unconscionability, I must obviously have regard to the two-part test set out in Miglin.

[32] I must also have consideration, however, to the comments of Bastarache and Arborr JJ. in Miglin, at paragraph 4, wherein they stated:

We believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objections of the Divorce Act as a whole should receive considerable weight…

These general objectives include, not only equitable sharing of the consequences of the marriage breakdown under s. 15(2), but also certainty, finality and autonomy.

Analysis

[33] The first argument presented by Mr. Ellis concerning the issue of unconscionability involves his claim that he was bullied by Mr. O’Neill and ultimately forced by Mr. O’Neill to execute the Minutes of Settlement giving the pending trial date.

[34] Based on the record before me, I cannot conclude that Mr. O’Neill, in any way, shape or form, applied any form of undue pressure upon Mr. Ellis. Mr. Ellis is an intelligent, sophisticated businessman who, as I have noted above, entered into detailed settlement negotiations with Mr. O’Neill.

[35] It was well known to Mr. Ellis on the court date in question, being January 26, 2012, that the matter was not proceeding to trial but rather there were a number of interim orders being sought by Ms. Dereski. I can also not conclude that Mr. Ellis felt compelled to proceed that day and was unaware that an adjournment was available to him. Not only was this his second time in which he was involved in matrimonial proceedings, but in this matter he had experience with the fact that the proceedings were adjourned on previous occasions. Furthermore, his claim is undermined by the fact that Mr. O’Neill advised Koke J. in open court, with Mr. Ellis present, as follows:

Mr. Ellis is obviously worried about this and when I met with him this morning, of course, I told him that he should seek legal advice if he want; he should review the documents if he wants; he is insistent on signing the documents; he feels it’s over. Mr. Willson, who gave him no advice, was kind enough to witness the signature and I like to go through the documents briefly just to confirm what’s being done so I can have Mr. Ellis’ acknowledgement as to what’s transpired here so that there is no debate as to what happened. So, I have a copy of Minutes of Settlement signed, Your Honour.

[36] It is clear from the above that Mr. O’Neill was not forcing the matter on that morning. Even if he had failed to previously advise Mr. Ellis of his right to obtain counsel he stated in open court that Mr. Ellis should seek legal advice. It would have been clear to Mr. Ellis, at the very least at this time, that he could pursue both the option of independent counsel and an adjournment. Further, the motion before the court that day dealt with a number of interim matters. Mr. Ellis knew this fact and that he was not compelled to deal with a final resolution of the litigation.

[37] Furthermore, I do not agree with Mr. Ellis that, leading up to the court appearance of January 26, 2012, that there was any “bullying” going on as alleged by Mr. Ellis. In fact, the record discloses that there was very little contact between them at all except for the email transmissions, none of which can be characterized as being hostile in any way. At worst there may have been a few harsh words at the January 23, 2012 meeting, but nothing of consequence.

[38] Lastly, it cannot be ignored that Mr. Ellis was represented by counsel throughout the proceedings up until November 2011 and that his counsel did provide him with at least some assistance thereafter. It cannot therefore be reasonably argued that an imbalance of power persisted throughout the matrimonial litigation. I conclude my comments concerning the allegations against Mr. O’Neill by restating what has often been said in the past that, absent fraud, a lawyer owes no duty to the opposite party in a family law dispute. Mr. O’Neill was under no obligation to advance Mr. Ellis’s position. To place any such obligation on Mr. O’Neill would put him in an untenable position vis a vis his own client, Ms. Dereski: see Dodge at paragraphs 45-47.

[39] The second argument presented by Mr. Ellis concerning the issue of unconscionability involves the fact that the Minutes of Settlement do not reflect what the parties agreed to, that the agreement itself is unconscionable given its terms and that Mr. O’Neill did not accurately set out the information that lead to the settlement to Koke J.

[40] In this regard, it is worth noting that given the parties’ high net worth there were many aspects to the claim, including the following:

1. The 97 Point Des Chenes Crescent property;

2. The 255 Pim Street property;

3. The business known as David Ellis Architect Inc.;

4. The motor vehicle;

5. The RRSPs and investments;

6. The interest of Mr. Ellis in 726 Queen Street Investments Limited;

7. Her lost opportunity of accumulating a pension through her nursing career had she continued to work full time;

8. Lost opportunity to earn an income as a full time nurse;

9. Past spousal support;

10. Past child support (from date of separation);

11. Future spousal support;

12. Future child support;

13. Equalization of the amounts in RRSPs and investments.

[41] Ultimately, the settlement resulted in the parties receiving the following properties, assets and liabilities:

To Mr. Ellis:

1. 255 Pim Street

2. His motor vehicles

3. RRSPs

4. His business

5. His interest in 726 Queen Street Investments Limited

6. Liability assumed – Payment of outstanding renovation costs

To Ms. Dereski:

1. 97 Point Des Chenes Crescent

2. RRSP investments

3. Her pension

4. ¼ interest in 726 Queen Street Investments Limited

[42] In addition to the above agreement concerning the properties and assets, it bears noting that there was great debate over a number of issues including the value of the Point Des Chenes Crescent and the Pim Street properties, the value of Mr. Ellis’s business, Mr. Ellis’s true yearly income (as he was earning income plus taking money out of his company). The contentious and fluid nature of the parties’ positions is reflected in the fact that counsel for Mr. Ellis conceded that in Mr. Ellis’s own Net Family Property Statement there was a $150,000 error, to the detriment of Ms. Dereski, with respect to the value of the Pim Street property.

[43] As the Minutes of Settlement reflect in coming to the agreement, Ms. Dereski gave up the right to future spousal support as well as any claim to arrears for child or spousal support.

[44] I have carefully reviewed all components of the settlement and in my view, it cannot be considered to be unfair, let alone unconscionable. Both sides compromised in order to come to an agreement. Even if Mr. Ellis’s comments that his business was overvalued, or that he made other compromises that he felt were too significant, are accurate he clearly understood the nature of the agreement. This is reflected by the aforementioned emails and the agreement he signed. In any event, it is also clear that Ms. Dereski was not entirely satisfied with the agreement and made considerable compromises. These included her waiver of future spousal support and, in my view, it is clear that the settlement was not in any way unconscionable.

[45] Similarly, I have compared the contents of the emails to the Minutes of Settlement and I cannot conclude that what is included in the Minutes of Settlement is not generally reflected in the negotiations that led up to its creation. In any event, Mr. Ellis ultimately executed the agreement without complaint. In my view, Mr. Ellis’s complaints largely stem from the fact he is unhappy with the deal that he entered into, in hindsight.

[46] Mr. Ellis also submitted that Mr. O’Neill advised Koke J. that Mr. Ellis’s business was valued at $380,000 notwithstanding the fact that at the BDO meeting, the day before, the valuation was not this high and this was confirmed in correspondence. While this is true, it appears as though Mr. O’Neill’s submission was based on an error since he had earlier been provided with the valuation of Mr. Ellis’s business by BDO in the amount of $380,000. The true value of the business was never determined by a court and even when one considers this error in Mr. O’Neill’s submissions, I cannot conclude that it resulted in an unconscionable situation. Mr. Ellis was well aware of BDO’s new valuation of his business. In any event, it was certainly a debateable point and did not detract from the overall fairness of the settlement that involved considerable give or take. It also bears noting that Mr. O’Neill did not provide Koke J. with an extensive review of each and every element of the settlement, nor in my view, was he required to in the circumstances. Lastly, Mr. Ellis did not raise this issue with Koke J., nor did he raise any other objections as to what Mr. O’Neill was advising the court.

[47] Based on the above, applying the criteria set out in Miglin, I conclude that Mr. Ellis cannot succeed in either of the two stages of the analysis.

disposition

[48] For the reasons above the motions of Mr. Ellis are dismissed. Given the above, I do not believe that I have to deal with the motion brought by Ms. Dereski but to the extent that an explicit order is required, I further order that she is not required to receive the consent or execution of a transfer or deed from or by Mr. Ellis to effect the sale of lands and premises at 97 Des Chenes Crescent.

[49] The parties can make submissions to me concerning costs in writing. Ms. Dereski’s submissions, not to exceed three pages, shall be delivered within three weeks of the order. Mr. Ellis will have 14 days thereafter to respond and Ms. Dereski seven days thereafter to reply.

T. McEwen J

Released: October 15, 2012

COURT FILE NO.: 1665/09

DATE: 20121015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LOUANNE MARIE DERESKI

Applicant

– and –

DAVID WILLIAM PERCIVAL ELLIS

Respondent

REASONS FOR DECISION

T. McEwen J.

Released: October 15, 2012