ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-FL-334-2
DATE: 20130326

BETWEEN:

ALONA SOSCHIN

Applicant

– and –

MICHAEL TABATCHNIK

Respondent

Kourosh Farrokhzad, for the Applicant
Steve Duplain, for the Respondent

HEARD: January 29, 30, and 31; February 7, and 8, 2013

REASONS FOR JUDGMENT

J. Mackinnon J

[1] Ms. Soschin applies under section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am., for an award of spousal support at variance from the terms of an agreement entered into between the parties in June 2006. The agreement provided that she receive Mr. Tabatchnik’s one half equity ($37,500) in the jointly owned condominium in exchange for mutual releases of spousal support. Her previous application to set aside the agreement on the alleged grounds that her signature was not witnessed, that financial disclosure was not made, that the agreement was unconscionable, that it was made under duress and that she lacked the capacity to enter into it, was dismissed on a motion for summary judgment heard in June, 2011. At that time, she was given leave to amend her application to assert a claim for spousal support invoking the decision of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] S.C.J. No. 21.

[2] The key paragraphs in the agreement are 3, 4, and 7:

3 Real Property

a) Contemporaneously with the execution of this Agreement, Michael shall execute a transfer of all his interest in the property to Alona. The costs of the preparation and registration of such transfer shall be paid to Alona.

b) Contemporaneously with the execution of this Agreement, Alona shall arrange a new mortgage on the property in her name alone and the existing mortgage shall be discharged from title with proceeds of the new mortgage.

c) Notwithstanding the transfer of the property to Alona, Michael shall be permitted to continue to reside in the property until the 1st of September 2006. He shall be responsible for the condominium fees and utilities (those not paid by the Condominium Corporation) during this period. Further Michael shall be responsible for any repairs required to the unit and its appliances during his possession of the unit. Alona shall be responsible for all other carrying costs. Michael shall vacate the property on or before the 1st of September 2006.

4 Financial Release

a) Each of the parties:

i. is financial independent;

ii. does not require financial assistance from the other;

iii. releases the other from all obligations to provide support or interim support pursuant to the Family Law Act, or the Divorce Act, 1985, and

iv. releases all rights to claim or obtain support or interim support pursuant to the Family Law Act, or the Divorce Act from the other.

b) The parties realize that their respective financial circumstances may change in the future by reason of their health, the cost of living, their employment, and otherwise. No change whatsoever, even if it be material, profound, catastrophic, or otherwise, will give either party the right to claim or obtain interim or permanent support pursuant to the Family Law Act, the Divorce Act or any other statute or law, from the other.

7 Legal Advice, Disclosure and Fair Agreement

Each of the parties acknowledges that he or she:

a) has had an opportunity to obtain independent legal advice;

b) understands his or her respective rights and obligations under this Agreement;

c) Is signing this Agreement voluntarily.

[3] In Miglin, the Supreme Court set out a two stage analysis to apply when an application is made pursuant to section 15.2 of the Divorce Act for spousal support at variance from the terms of a pre-existing final agreement. Stage one of the analysis focuses on the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount the agreement. The substance of the agreement is then considered to determine the extent to which its terms are in substantial compliance with the objectives of the Divorce Act.

[4] In this case, the applicant concedes the stage one analysis. Her claim is based on stage two. Although this is unusual, it is contemplated in Miglin. The Supreme Court stated at paras. 87, 88, 89, 90 and 91:

87 Where negotiation of the agreement is not impugned on the basis set out above and the agreement was in substantial compliance with the general objectives of the Act at its time of creation, the court should defer to the wishes of the parties and afford the agreement great weight. Nevertheless, the vicissitudes of life mean that, in some circumstances, parties may find themselves down the road of their post-divorce life in circumstances not contemplated. Accordingly, on the bringing of an application under s. 15.2, the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.

88 The parties' intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties' circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be "radically unforeseen", and the applicant need not demonstrate a causal connection to the marriage, the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties' intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned.

89 ...The test here is not strict foreseeability; a thorough review of case law leaves virtually no change entirely unforeseeable. The question, rather, is the extent to which the unimpeachably negotiated agreement can be said to have contemplated the situation before the court at the time of the application.

90 ...Rather, the court should be persuaded that both the intervention and the degree of intervention are warranted. That is, at this stage, even if unbending enforcement of the agreement is inappropriate, that agreement may still indicate to a trial judge the parties' understanding of their relationship and their intentions. Even an agreement that is not determinative as a result of the parties' circumstances at the time of the application warrants compulsory consideration under s. 15.2(4).

91 ...It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. ...

[5] In this case, not only is the appropriate outcome in dispute, many of the basic facts of the relationship are too, and must be determined before the stage two Miglin analysis is undertaken.

Duration of Cohabitation

[6] The parties were married in Israel on December 20, 1996. They lived together before marriage. The respondent had moved to Israel in June 1991. He and the applicant met when he was attending a program where she was teaching English as a second language. The applicant testified that they started living together very quickly in 1991. The respondent testified that it was later than that, in 1992. I find that they commenced cohabitation in October 1992. This is the date when both are first shown to have the same home address in the application for permanent residence in Canada which the applicant filled out and they both signed.

[7] The couple moved to Canada together in 1998. The respondent returned to Israel shortly thereafter. This was planned in advance so that he could continue to work in Israel for one more year as an electrical engineer. By so doing, he would earn enough to pay off all of their debts and contribute to the applicant’s expenses here in Canada. As planned, the respondent returned to Canada in March 1999. I find that this period of time did not constitute a period of legal separation.

[8] The respondent testified that soon after his return to Canada, he learned that the applicant was involved in a relationship with someone else. She was frequently away from home and did not consult the respondent about her comings and goings. The respondent testified that she returned from one absence at the end of 1999 and asked him for a divorce so that she could marry the other man. He named the individual and identified his place of residence. The applicant testified that she applied for the divorce because the respondent had abused her. I accept the respondent’s version of events. It is more consistent with the fact that the divorce application was joint. It is also consistent with the fact that the parties signed an undertaking not to appeal so that the divorce order could be obtained immediately. In addition, the applicant told a psychologist in 2011 that her relationship with the respondent was positive or acceptable prior to 2005.

[9] The divorce application was issued February 1, 2000. The application stated that the parties had been living separate and apart since March 1998. I have already found that at this time they were physically apart but not legally separated. It is not necessary for me to determine whether I accept the applicant’s testimony that this date was entered under a mistaken understanding of what it meant. The divorce was granted on March 16, 2000.

[10] The applicant testified that after obtaining the divorce, she quickly realized that it was a mistake and that the parties never in fact separated. I reject this testimony. I find that the parties were separated for several months in 1999 and 2000 while the applicant pursued the other relationship. It did not work out for her and she returned to the parties’ condominium. I accept the respondent’s testimony that when she returned, they lived apart in their home initially but that their relationship as a couple was gradually restored. Although he did not provide specific dates in relation to this testimony, I find that for the purposes of determining the length of their cohabitation, it is reasonable to conclude that they were separated for several months in both 1999 and 2000.

[11] The parties did not remarry despite their resumption of cohabitation.

[12] There is also disagreement about their date of separation. The applicant pleads that they continued to live together as husband and wife until 2006 when the respondent “disappeared”. The respondent says that the separation became final at the end of 2004. During 2003, the applicant had travelled to Boston in an effort to establish a professional association with MIT. She says that it was either late 2003 or early 2004 when she moved into student housing in Boston. The respondent says that, from September 2003, she was in Boston permanently and returned to Ottawa only four or five times in total. He testified that when she left, she told him she would be back in four months’ time but she did not return and kept extending her stay.

[13] The applicant obtained a grant from the Canada Research Council starting in April 2004 and was accepted as a visiting scholar by MIT. It has been established that the parties visited each other in 2004. The applicant produced a number of bus tickets showing trips between the two cities. She also produced a copy of a dependant’s claim which she made under the respondent’s dental plan in October 2004. The parties filed their 2003 income returns as “married or living common law”. The parties also agree that they took a two week trip together in December 2004 to Cuba. They disagree as to its significance. The applicant testified that it was a wonderful holiday enjoyed by an intact couple. The respondent testified that it was his last attempt to persuade the applicant to return to Ottawa to live with him but she declined to do so.

[14] The respondent’s description of the trip is more consistent with subsequent events. It is not disputed that his 2004 income tax return was marked “separated”. He did not travel to Boston to see the applicant after 2004. She did not return to Ottawa until October 2006. The respondent maintained the applicant as a dependant under his medical and dental coverage until he remarried in November 2006. He also allowed her to use the secondary copy of his credit card until mid-way through 2005. In my view, these last two facts are not persuasive either way as to the status of their relationship.

[15] In 2005, the applicant sustained two separate injuries in Boston. The first was in February. She suffered a slip and fall on ice resulting in a bad break to her left ankle. Surgery was required and the recovery was painful. The applicant testified that she contacted the respondent right away and expected him to rush to her side but he did not. A second surgery was required in order to remove hardware installed in the first surgery.

[16] In June, the applicant was robbed outside her residence. She was pushed down and her purse was stolen. She suffered a fracture to her hand and toe, and other abrasions. The applicant testified that she sent pictures of her injuries to the respondent so that he would see her pain. She also testified that it was during these months when she was injured and on pain medication that the respondent first raised with her his desire to transfer the condominium to her. She said that he was very nasty to her on the telephone about this, but that it was not related to a change in their marital status.

[17] The respondent’s description of these events is different. He testified that she did not ask him to come to Boston in February. Rather, he offered to bring her to Ontario where she had medical coverage and she refused. She told him she was going to sue the hotel where the accident had occurred and therefore she had to stay in Boston. The applicant acknowledges telling him this but she did not go forward with legal action.

[18] The respondent testified that he first learned of the June robbery when he received his credit card statement showing some charges at a strange location. He called the applicant who then told him that she had been robbed and injured in the process. He stated that she did not ask him to come to help her and that they were beyond the point of getting back together then in any event.

[19] The respondent agrees that they did start to discuss what to do with the condominium in 2005 because it was obvious they had no future. He suggested that it be sold and that the applicant receive all the proceeds of sale. At the time, her preference was to keep the condominium. The respondent stated that their discussions were dropped when she was injured in February and again in June. He did not disappear. He stayed in the condominium pursuant to their agreement until September 2006, and continued working in Ottawa thereafter.

[20] Where the parties’ testimony differs in relation to these events in 2005, I prefer that of the respondent. For reasons that will be provided later, I have concluded that the applicant’s recitation of these events has been subject to significant reframing.

[21] I find that the parties were separated as of the end of 2004. They never lived together after that date. They did not visit each other after that. They began discussing what to do with their jointly-owned condominium shortly after that date.

[22] Accordingly, I find that their cohabitation extended from October 1992 to the end of 2004, with a period of separation in 1999 and 2000. I conclude that eleven to eleven and one half years is a fair assessment of the duration of their cohabitation.

(Decision continues exactly as in the source…)

J. Mackinnon J

Released: March 26, 2013

Footnote

[1] Dr. Leonoff’s opinion was that she likely had a very limited sense of what she was signing in 2006. I would put little weight on this. He had not seen her until four and one half years after the fact. He had not seen the agreement in question, nor the communications between her and the respondent or with her own lawyer in relation to it.