CITATION: Simper v. Grison, 2013 ONSC 3049

COURT FILE NO.: FC-11-2943

DATE: 2013-05-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KERRI-LYNN SIMPER

Applicant

– and –

MICHEL GRISON

Respondent

Richard Bowles, for the Applicant

Self represented

HEARD: May 10, 2013 (Ottawa)

REASONS FOR DECISION

PARFETT J.

1On February 27, 2013, a bifurcated trial was ordered. The sole issue on this part of the trial is whether or not the separation agreement signed by the parties in December 2009 should be set aside.

Background

Background

2The parties were married on May 1, 1982. They separated on November 17, 2006. The Applicant, Kerri-Lynn Simper (“Simper”) remained with the couple’s three children in the matrimonial home. The Respondent, Michel Grison (“Grison”) purchased a condominium in which he continues to reside. In 1998, Grison was diagnosed with bipolar disorder. He was prescribed medication to control the disorder and remains to this day under the care of a psychiatrist. Despite his mental health issues, Grison was steadily employed until 2009 when his employment as a mortgage broker with CIBC was terminated. Currently, he is on long-term disability. Simper is also a mortgage broker with CIBC and continues to work there.

3When the parties separated initially, they did not seek legal assistance nor did they do anything to disentangle their respective financial affairs. Simper assumed payment of the mortgage and all of the children’s expenses. After he lost his job, Grison began making regular requests to Simper to be paid some portion of his equity in the matrimonial home. Simper complied with these requests and over the course of approximately two years paid significant sums to Grison.

4In December 2009, Grison prepared a separation agreement using an online template. The agreement set out the major assets and liabilities of the parties, which in essence was the matrimonial home and the mortgage. The agreement provided that in return for a payment of $10,000, Simper would receive full beneficial title to the matrimonial home (it was already legally in her name alone) and she would also take over responsibility for the mortgage. No child or spousal support would be payable by either party, but each party would pay his or her share of the line of credit secured on the home. Each party’s share depended on monies that they had received from the line of credit after the date of separation. It is important to note that as of the date of separation, no monies were owed on the line of credit. Furthermore, Simper paid Grison from the line of credit and both parties agreed that the payments constituted a portion of Grison’s half of the net equity in the matrimonial home. An issue that has yet to be determined is what monies were paid to Grison that were for his benefit, but do not form part of his portion of the equity in the home. The separation agreement was signed and witnessed by both parties and Simper paid Grison the $10,000. Neither party received any legal advice prior to signing the agreement.

5Grison indicated to the court that in 2009 he was in a bad way. He had lost his job and he was not complying with his medication for bipolar disorder. Instead, he was self-medicating with a combination of alcohol, cocaine and marijuana.

6In 2010, Grison sought the assistance of a lawyer, who advised that the agreement could potentially be set aside. However, Grison did not pursue that course of action. In 2011, Simper filed an application seeking an order that Grison pay his portion of the parties’ secured line of credit in accordance with the separation agreement signed in December 2009. Grison filed an answer asking that the agreement be set aside and requesting an equalization of the net family property as well as spousal support.

Issue

Issue

7Is the separation agreement a valid domestic contract pursuant to sections 54 and 55 of the Family Law Act (FLA)¹?

Legal principles

Legal principles

8Section 54 of the FLA states:

Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including:

a) ownership in or division of property;

b) support obligations;

c) the right to direct the education and moral training of their children;

d) the right to custody of and access to their children; and

e) any other matter in the settlement of their affairs.

9The relevant portion of s. 55 FLA notes that “a domestic contract [is] unenforceable unless made in writing, signed by the parties and witnessed.”

10Finally s. 56 (4) of the FLA states that:

A court may, on application, set aside a domestic contract or a provision in it,

f) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was mad;

g) if a party did not understand the nature or consequences of the domestic contract; or

h) otherwise in accordance with the law of contract.

11The burden of proof is on the party seeking to set aside the agreement and it is a two part process². First, the party seeking to set aside the agreement must demonstrate that one or more of the circumstances set out in s. 56(4) have been engaged. If he succeeds, then the court will go on to consider whether it is appropriate to exercise their discretion and set aside the agreement.³

12In determining whether the circumstances as set out in s. 56(4) FLA have been engaged, the following checklist is of assistance:

i) whether there has been concealment of assets or any material misrepresentation;

j) whether there has been duress or other unconscionable circumstances;

k) whether the petitioning party neglected to pursue full legal disclosures;

l) whether s/he moved expeditiously to have the agreement set aside;

m) whether s/he received substantial benefits under the agreement; and

n) whether the other party had fulfilled his/her obligations under the agreement⁴.

Positions of the parties

Positions of the parties

13Mr. Grison contends that as a result of his bipolar disorder and his self-medicating that he was not competent to sign this agreement. In addition, he points to the fact that the parties did not exchange any financial disclosure prior to signing the agreement and the fact that neither party received legal advice as further arguments for setting aside the agreement.

14Ms. Simper argues that there is no evidence to support Grison’s contention that he was not mentally competent and states that there was no concealment of assets. Furthermore, Grison had the opportunity to consult counsel but chose not to; therefore the lack of legal advice is not a reason to set aside the agreement.

Analysis

Analysis

15As part of the trial record, the financial statements of both parties were filed. These statements indicate that as of the date of separation, the matrimonial home and the mortgage were the primary asset and liability of the parties. For non-disclosure to be a factor in setting aside a domestic contract, the non-disclosure must be material. In this case, there was no non-disclosure of consequence given that the matrimonial home and the mortgage were listed in the agreement. Mr. Grison was unable to point to any other asset or liability that would have had an impact on the reasonableness of the settlement that he proposed to Simper. In my view, there was no concealment of assets or any material misrepresentation.

16Grison filed clinical notes and a report from his family physician as part of the evidence in this trial. The clinical notes indicate that Grison was self-medicating, and was in severe financial difficulties by July 2009, but also indicate that he was not hypomanic and that his thought process was normal and did not display any distortion.⁵ According to these same notes, by September 2009, the financial difficulties had eased⁶ and by October 2009, Grison had reduced his alcohol intake and had not consumed cocaine for approximately a month and a half.⁷ In November 2009, his doctor noted that Grison was neither manic nor depressive.⁸ Finally, in a letter written on October 16, 2012, Grison’s family doctor noted that Grison was financially irresponsible and tended not to comply with his medication for bipolar disorder, but most importantly he did not state that in December 2009 Grison was not mentally competent.⁹

17In these circumstances, I cannot find that Grison was mentally incompetent at the time he prepared and signed the separation agreement. Moreover, Grison was a mortgage broker. As a result, his education and training were such that he understood the nature of financial statements and legal agreements. Therefore, I cannot find that he did not understand the nature and consequences of the agreement.

18The failure to seek legal advice is not necessarily fatal to a domestic contract¹⁰, particularly where the failure was a conscious decision on the part of the party.¹¹ In this case, Grison acknowledged that he could have sought legal advice, but that he chose not to do so.

19Of more importance is whether Grison was in a position of vulnerability as a result of his uncontrolled bipolar disorder. The medical notes on which Grison relies are useful in this context. These notes certainly indicate that Grison’s judgment was impaired. The issue however, is not just whether Grison was vulnerable, but whether his vulnerability was exploited by Simper.¹² The evidence indicates that Grison prepared the separation agreement for the parties and that Simper signed the agreement. In such circumstances, it is difficult to see how Grison was taken advantage of. Grison indicated in his testimony that the purpose of the agreement was to get more money from Simper. The courts will not protect parties from poor judgment. In my view, Grison may have been vulnerable but that vulnerability was not exploited and his judgment was poor, but he was competent to make the decisions that he did.

20Finally, there is no evidence that this agreement was unconscionable. Up until the date of the agreement, Simper was already paying all the expenses of the matrimonial home. There was only a small amount of equity in the home at the time of separation. As of the date the separation agreement was signed, Grison had already been paid out a significant portion of his half of the equity. Debts were accumulated by both parties on the joint line of credit, although the precise amount that Grison accumulated has yet to be determined. It was not unreasonable that he would agree to pay his portion of those debts. In my view, this agreement was not unconscionable and indeed was probably reasonable in the circumstances.

Conclusion

Conclusion

21There will be an order dismissing the application to set aside the separation agreement.

Costs

Costs

22The parties should attempt to resolve the issue of costs themselves, however, if the parties cannot resolve the issue of costs, brief written submissions of not more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided with 15 days with a right of reply within a further five days.

Footnotes

1. 1R.S.O. 1990, c. F.3, as amended
2. 2Levan v. Levan, 2008 ONCA 388, 2008 CarswellOnt 2738 (C.A.)
3. 3Ibid at para. 51.
4. 4Dochuk v. Dochuk, 1999 14971 (ON SC), 44 R.F.L. (4th) 97 at para. 18.
5. 5Exhibit 1, Tab B3 & B4.
6. 6Exhibit 1, Tab B5.
7. 7Exhibit 1, Tab B6.
8. 8Exhibit 1, tab B7.
9. 9Exhibit 1, Tab B8.
10. 10Dougherty v. Dougherty, 2008 ONCA 302.
11. 11Settle-Beyrouty v. Beyrouty, (1996), 1996 19739 (ON SC), 24 R.F.L. (4th) 318 (Ont. G.D.)
12. 12See Rick v. Brandsema, 2009 SCC 10 and Miglin v. Miglin, 2003 SCC 24.