Evgeniya Fefelova v. Joseph Andrew Matoga

COURT FILE NO.: F-1520/10

DATE: 2013-11-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Evgeniya Fefelova, Applicant

AND:

Joseph Andrew Matoga, Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: J.J. Chaimovitz, Counsel for the Applicant

P. Pellman, Counsel for the Respondent

HEARD: October 31, 2013

ENDORSEMENT

[1] When an application for child support from a former common law spouse, on the basis of “settled intention”, is dismissed on consent as a result of the parties entering into a separation agreement, can the custodial parent re-apply for the same relief? The respondent says such is improper and seeks summary judgment dismissing the application.

Background

[2] The parties were involved in a romantic relationship from April 2005 until October 2008. They cohabited for two or three plus years, depending on the version accepted.

[3] The applicant, Evgeniya Fefelova is 38 years of age. She is from Russia, coming to Canada initially on a student Visa in 2004 and permanently in 2005, although still on a visa that is said to expire in 2018. Ms. Fefelova was previously married to Victor Fefelova on December 27, 1997. Two children were born to that relationship: Anastasia Fefelova, on July 11, 1998; and Sofya Fefelova, on March 23, 2000. A divorce was granted in Russia on March 25, 2005.

[4] Ms. Fefelova is a medical doctor, receiving her education and training in Russia. She has been pursuing re-certification in Canada in her specialty of gynaecology.

[5] The respondent, Joseph Andrew Matoga, is 59 years of age. He is from Poland, moving to Canada after obtaining a university degree in engineering. Mr. Matoga is a citizen of both Canada and the United States of America. It appears he primarily resides in Virginia and also maintains a residence in Toronto. He has an adult son in Virginia, who is pursuing post-secondary education.

[6] Mr. Matoga is a successful businessman. He sold his internet company several years ago and continues to be involved in that field, travelling between his two residences for that purpose.

[7] As hereafter discussed, following separation, Ms. Fefelova commencd an application in Toronto seeking child support, spousal support and other relief from Mr. Matoga. Several temporary orders were granted for financial relief. The parties entered into a separation agreement in May 2009 and the application, on consent, was dismissed.

[8] The separation agreement required Mr. Matoga to pay time limited spousal support. No payment was to be made for child support.

[9] A further term of the agreement required Mr. Matoga to provide Mr. Fefelova with a security deposit equivalent to support for one year. He did so. A dispute arose when Ms. Fefelova used part of those funds. Mr. Matoga commenced an application in Hamilton requesting return of the funds taken and that the security deposit be held by a solicitor, in trust. The matter came on for trial in November 2011. A final order was granted directing Ms. Fefelova to deposit the whole of the fund to a joint bank account.

[10] The present application was issued on March 12, 2012. Ms. Fefelova seeks an order for child support and, if necessary, setting aside that part of the separation agreement addressing child support. Mr. Matoga opposes the claim and requests the application be dismissed.

[11] A case conference was held before me on November 29, 2012. Counsel advise that there was no discussion regarding the merits of the case and that they were content I hear the motion.

[12] By notice of motion, dated January 9, 2013, Mr. Matoga seeks summary judgment dismissing the application of Ms. Felelova. The motion was adjourned on several occasions due to scheduling difficulties and ultimately directed to proceed as a long motion during the October 2013 sittings.

[13] Affidavits were served on behalf of both parties. Counsel presented factums that were most helpful for the motion hearing.

Toronto Proceeding

[14] Following separation, Ms. Fefelova commenced the initial proceeding in the Superior Court of Justice at Toronto. A motion without notice sought financial relief on a purported emergency basis. On December 10, 2008, McWatt J. granted a temporary order directing Mr. Matoga to pay $8,000 to Ms. Fefelova and adjourned the motion to January 15, 2009. Thereafter, the motion was adjourned on several occasions and a case conference was scheduled for April 27, 2009.

[15] On April 21, 2009, the motion returned before Greer J. She declined Mr. Matoga’s request for a further adjournment until the case conference was completed “... given the type of relief being requested and the urgency and need to put certain interim orders in place, in the circumstances of this case”. The motion proceeded and Greer J. granted a further temporary order as follows:

(i) Ms. Fefelova to continue to occupy the apartment until June 30, 2009, with Mr. Matoga to ensure the rent was paid;

(ii) Mr. Matoga to continue paying $8,000 monthly commencing May 1, 2009 as per the initial order of McWatt J. until further order, the amount to remain “uncategorized”; and

(iii) Mr. Matoga to pay to Ms. Fefelova $6,000 by May 30, 2009 for her rent deposit and moving expenses.

[16] In her endorsement, Greer J. made reference to the following matters:

(a) Mr. Matoga had been making regular monthly without prejudice payments to Ms. Fefelova since October 2008, three of such payments being delivered before the initial order;

(b) Ms. Fefelova and the children continued to reside in the apartment by agreement between the parties, the lease being in the name of a business associate of Mr. Matoga;

(c) Ms. Fefelova was to commence a residency at McMaster in Hamilton in July and would require a new residence in the area;

(d) Mr. Matoga was a businessman residing in Virginia with his son; and

(e) the parties had jointly retained an appraiser to determine the value of Mr. Matoga’s income.

[17] On the issue of temporary child support, Greer J. said:

... I am satisfied on the evidence before me that the respondent was in loco parentis to the applicant’s two children, Anastasia and Sofya, at the date of separation. I find that they are entitled to child support on an interim basis, not quantified at the moment until the respondent’s income has been determined or the parties agree on how the lump sum of $8,000 to be paid to the applicant is categorized.

[18] As hereafter discussed, the parties executed a separation agreement on May 8, 2009 to resolve all issues. The motion came back before Greer J. on May 12, 2009. She made the following endorsement:

Counsel for the parties have informed the court that all issues between the parties have been settled ... On consent, the application is dismissed without further costs.

[19] Both parties were present in court on that occasion. The separation agreement was presented to Greer J., according to Mr. Matoga, for consideration on the joint request for dismissal.

Separation Agreement

[20] Following the court appearance on April 29, 2009, the parties retained new counsel. Ross Davis would represent Ms. Fefelova. Michael Cochrane was hired by Mr. Matoga.

[21] In the present motion, Mr. Matoga has waived solicitor client privilege regarding Mr. Cochrane. In his affidavit, sworn September 18, 2013, at para. 4, Mr. Cochrane explains the reason for new counsel as follows:

The parties were trying to resolve the issues and felt that it would assist in retaining new counsel in order to avoid the clash of egos or the fact that there had been hard feelings between the counsel.

[22] It appears that the parties and their new counsel diligently pursued settlement negotiations as a separation agreement was executed on May 8, 2009. The agreement was prepared by Mr. Davis but, at paragraph 19, it says it was to be construed as if the parties were joint authors.

[23] Of interest on the present motion, the separation agreement contains the following provisions:

Evgeniya and Andrew’s relationship began in April 2005. The parties separated October 3, 2008. Evgeniya is a spouse within the meaning of the Family Law Act. Evgeniya, has two children by her previous marriage, Sofya Fefelova born March 23, 2000 and Anastasia Fefelova born July 11, 1998 (collectively “the children”). Andrew is not the biological father of the children.

3. AGREEMENT TO PREVAIL

This Separation Agreement is a domestic contract as defined in the Family Law Act, the provisions of which take precedence over any similar provision in the Family Law Act.

5. CHILDREN

The parties have given contradictory evidence as to whether or not Andrew stands in the place of a parent to Evgeniya’s children. In light of the provisions in this agreement, the parties agree that no determination of the issue is necessary and that Andrew will not pay child support for the children. Notwithstanding that Justice Greer made an interim finding that Andrew Matoga stood in the role of parent to the children of Evgeniya, the parties have agreed on a final basis that this interim ruling will not govern and have agreed to resolve the matter in accordance with this full and final Separation Agreement. The provisions of this Agreement are mindful of the children’s best interests and both parties agree that this Agreement’s terms are in the interests of both parties and the children.

6. SPOUSAL SUPPORT

(a) The parties have applied their minds to the issue of Evgeniya’s entitlement to spousal support pursuant to the Family Law Act and they have developed a global and final settlement on the basis that Evgeniya is entitled to and will receive spousal support as follows:

(i) $20,000 per month from October 1, 2008 to and including January 1, 2009,

(ii) $10,000 per month from February 1, 2009 to and including December 1, 2009,

(iii) $10,000 per month from January 1, 2010 to and including December 1, 2010,

(iv) $10,000 per month from January 1, 2011 to and including December 1, 2011,

(v) $10,000 per month from January 1, 2012 to and including August 1, 2012,

after which her entitlement to support will terminate forever.

The payments are periodic payments under the Income Tax Act and such amounts will be included in Evgeniya’s income and deducted from Andrew’s income in the calculation of their respective incomes for tax purposes. Notwithstanding the foregoing, the three payments for 2008, shall not be deductible by Andrew and not included in Evgeniya’s income under the Income Tax Act (Canada).

(c) Upon the execution of this Agreement, Andrew will provide Evgeniya with a security deposit in the amount of $120,000, which will be returned to Andrew no later than August 1, 2012. If this security deposit is not returned, Andrew may seek a judgment for the amount of $120,000 and this Agreement may be pleaded as Evgeniya’s consent to a judgment in that amount regardless of the jurisdiction in which the enforcement is commenced or in which jurisdiction she may reside.

7. SPOUSAL SUPPORT RELEASE

Upon payment of the sums to which the previous paragraph refers, each of the parties acknowledges that he or she:

(a) is financially independent;

(b) does not require financial assistance from the other;

(c) releases the other from all obligations to provide support or interim support, pursuant to the Family Law Act, Succession Law Reform Act, or any other statute or law of Ontario or any other jurisdiction; and

(d) releases all rights to claim or obtain support or interim support, pursuant to the Family Law Act, Succession Law Reform Act, or any other statute or law of Ontario or any other jurisdiction from the other.

(e) the parties realize that there may be future changes in their financial circumstances by reason of their health, the cost of living, their employment, financial mismanagement, financial reversals, inheritance or otherwise. No change whatsoever will give either party the right to claim support from the other pursuant to the Family Law Act, Succession Law Reform Act, or any other statute or law of Ontario or any other jurisdiction, even if the change is a catastrophic, drastic, material, profound or radical one, whether or not the change was foreseeable, foreseen, unforeseeable or unforeseen, whether or not the change is causally connected to the relationship, and whether or not such change arises from a pattern of economic dependency related to the relationship.

(f) The parties specifically agree that:

(i) Andrew and Evgeniya have been fully compensated for his or her contributions to their relationship and, therefore, they have suffered no economic hardship or disadvantage as a result of the relationship or its breakdown;

(ii) there have not been any economic advantages or disadvantages to either of them that have not been fully compensated in the arrangements set out in this Agreement;

(iii) each party acknowledges the obligation and his or her ability to be self-sufficient and that he or she is solely responsible for his or her own support;

(iv) Paragraphs 5 and 6 may not be varied by either party under any circumstances at any time.

(g) The parties acknowledge and agree that they have considered the economic consequences of their relationship and its breakdown in agreeing to the final release of spousal support above. The parties have specifically considered the provisions and factors set out in section 30 through 33 of the Family Law Act in agreeing to the provisions in this paragraph.

(h) Each party acknowledges that his or her solicitor has advised him or her of recent rulings of the Ontario Courts in which the Court has awarded spousal support, notwithstanding that full releases in respect of spousal support had been contained in a Separation Agreement previously entered into between the parties. Notwithstanding these rulings, the parties to this Agreement agree and intend that no change in circumstances whatsoever, including but not limited to those set out in paragraph (e) above, will entitle either party to apply to a Court for spousal support. This Agreement and this paragraph, in particular, may be pleaded as a complete defence to any claim brought by either party for spousal support in contravention of the terms of this paragraph.

8. RELEASES

(d) Full and Final Settlement:

The support provisions and paragraph 5 of this agreement are inextricably intertwined and constitute a full and final settlement.

(e) General:

(i) Andrew and Evgeniya intent this agreement to be final as to all claims and release all claims arising out of their relationship, past events and financial dependency. Both parties are aware and acknowledge that each of them may suffer or enjoy drastic changes in their respective incomes, assets and debts, in the cost of living or in their health, or changes of fortune by reason of unforeseen factors. Except as provided in this agreement, each agree that under no circumstances will any change, direct or indirect, foreseen or unforeseen, in the circumstances of either of them, give either the right to claim any alteration of any of the terms of this agreement or the terms in any other agreement.

(ii) More particularly, both Andrew and Evgeniya acknowledge that he or she may be called upon during the rest of his or her life to use, either wholly or in part, his or her capital for his or her own support and each agrees to do so without any recourse to the other party at any time.

(iii) Andrew and Evgeniya wish to be able to rely upon this agreement, and in particular paragraphs 5 and 6, as the final and binding one, a once-and-for-all settlement of all their differences and affairs to avoid ever engaging in further litigation with each other, whether about matters or causes of actions existing now or at any time.

16. COURT PROCEEDINGS

Evgeniya has commenced an action against Andrew in the Ontario Superior Court of Justice (action no. FS-0800145840) and agrees to dismiss actions without costs. In the event a costs order is made, neither party will enforce such costs order.

18. INDEPENDENT LEGAL ADVICE AND FINANCIAL DISCLOSURE

Each of Andrew and Evgeniya acknowledges that he or she:

(a) has had independent legal advice, Andrew by Michael Cochrane (Ricketts Harris LLP) and Evgeniya by Ross Davis (Bennett Best Burn LLP);

(b) has read the agreement in its entirety and has full knowledge of the contents;

(c) understands his or her respective rights and obligations under this agreement, the nature of this agreement and the consequences of this agreement;

(d) has made full and complete disclosure of his or her financial circumstances to the other, including but not limited to his or her income, assets, debts or other liabilities;

(e) acknowledges that the terms of this agreement are fair and reasonable;

(f) is entering into this agreement without any undue influence, fraud or coercion whatsoever; and

(g) is signing this agreement voluntarily.

19. JOINT PREPARATION OF AGREEMENT

Each party personally and by her or his lawyer has participated in the preparation of this agreement. It must be construed as if the parties were joint authors and it will not be construed against one party as if that party or that party’s lawyer were the sole or majority author of the agreement.

Security Deposit

[24] As required by para. 6(c) in the separation agreement, Mr. Matoga delivered the security deposit of $120,000 to Ms. Fefelova. At some point, Ms. Fefelova began using the funds for her own purposes, later saying at trial that she understood the money was a loan until August 1, 2012. Mr. Matoga became aware of the funds being used and, in August 2010, he caused an application to be issued in Hamilton seeking return of the money.

[25] The case came on for trial in November 2011 before Chappel J. The issue requiring determination was whether Ms. Fefelova had the right to spend the money held in the security deposit. Essentially, this was an interpretation of para. 6(c) in the separation agreement.

[26] In her reasons for decision (Matoga v. Fefelova, 2012 ONSC 1093), Chappel J. concluded that “... Ms. Fefelova is required to maintain the security deposit funds specifically as security for spousal support and is not entitled to draw upon those funds for any purpose” (para. 48). She directed Ms. Fefelova to deposit $120,000 into a bank that would require the signatures of both parties for any transactions, indicating such to most closely accord with the terms of their agreement (para. 63).

[27] Of some interest, Chappel J. found that “... Ms. Fefelova did not present as a credible or reliable witness” (para. 54). She provided ten examples of Ms. Fefelova’s conduct in support of this finding, including a reference to Ms. Fefelova’s actions between May 2009 and April 2011 raising “... serious concerns regarding her true motivations in her dealings with Mr. Matoga ...”.

[28] Ms. Fefelova consulted Mr. Chaimovitz in the Fall of 2011. He was not her counsel at the aforementioned trial. On November 16, 2011, six days before the trial commenced, Mr. Chaimovitz wrote Mr. Pellman, saying:

I have been retained by Evgeniya Fefelova to commence a motion to vary paragraph 5 of the Separation Agreement dated May 8, 2009 between my client and yours, Andrew Matoga.

The material is almost complete. Please advise as to whether you are in a position to accept service on behalf of your client. I look forward to your early attention and reply.

Issues

[29] The issues identified in the pleadings and submissions of counsel engage the application of Rule 16(6); that is whether Mr. Matoga is entitled to summary judgment dismissing the application of Ms. Fefelova on the basis there is no genuine issue requiring a trial. In particular, the following matters require consideration:

(a) whether the separation agreement is binding or can it be set aside in whole or in part? And

(b) whether Mr. Matoga was a parent to Ms. Fefelova’s children as defined in the Family Law Act?

Legislation

[30] The following provisions in the Family Law Act are relevant to the issues in this case:

1. (1) Definitions

“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, ...

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage;

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family ...

2. (10) Act subject to contracts – A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.

3. Definitions – In this Part,

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, o

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

30. Obligation of spouses for support – Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

31. (1) Obligation of parent to support child – Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

32. (1) Order for support – A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(4) Setting aside domestic contract – The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made.

(7) Purposes of order for support of child – An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

(8) Purposes of order for support of spouse – An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

(11) Application of child support guidelines – A court making an order for the support of a child shall do so in accordance with the child support guidelines.

(12) Exception: special provisions – Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,

(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.

54. Separation agreements – 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.

56. (1) Contracts subject to best interests of child – In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

(1.1) Contracts subject to child support guidelines – In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.

(4) 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.

[31] The Child Support Guidelines have a potential bearing on the issues, as follows:

3. PRESUMPTIVE RULE – (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

5. SPOUSE IN PLACE OF A PARENT – Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.

Rules

[32] Rule 16, Family Law Rules, permit a motion for summary judgment. Of interest in this case are the following:

16. (1) When available – After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim make or any defence presented in the case.

(4) Evidence Required – 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.

(4.1) Evidence of Responding Party – 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.

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

[33] The comparable provisions in the Rules of Civil Procedure are Rules 20.01 and 20.04, namely:

20.01 (1) To plaintiff – A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.

(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.

(3) To defendant – A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

20.04 (1)

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) Powers – In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) Oral evidence (Mini-Trial) – A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(3) Only genuine issue is amount – Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.

(4) Only genuine issue is question of law – Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.

(5) Only claim is for an accounting – Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.

Positions of the Parties

(i) Position of Mr. Matoga

[34] Mr. Pellman and Mr. Chaimovitz have provided extensive factums and thorough submissions. It would be a disservice to summarize the positions advanced on behalf of the parties; however, in the interests of brevity and to focus on the issues, I will attempt to do so.

[35] Mr. Pellman submits this is an appropriate case for summary judgment dismissing the application as:

(a) all issues between the parties were resolved by a separation agreement, the result being that the within claim advanced in a prior proceeding was dismissed; and

(b) Mr. Matoga did not have the settled intention to act as a parent to Ms. Fefelova’s children.

[36] As to the separation agreement, Mr. Pellman argues Ms. Fefelova cannot meet the test required under section 56 (4) and section 33 (4), Family Law Act. If the agreement is not set aside, he says the claim cannot proceed.

[37] The requisite factors for a finding of settled intention do not exist, according to Mr. Pellman, the onus being on Ms. Fefelova to establish. He goes on to say the separation agreement confirms this position as no child support was required.

(ii) Position of Ms. Fefelova

[38] Mr. Chaimovitz articulates a different approach. He submits the evidence does support a finding of settled intention, supported by the previous decision of Greer J. in the first case.

[39] Mr. Chaimovitz argues that the waiver of child support in the separation agreement is invalid and unenforceable as a parent cannot bargain away the child’s right to support.

[40] At the very least, Mr. Chaimovitz says these are genuine issues for trial and cannot be determined on a motion.

Analysis

(i) Summary Judgment

[41] Rule 16 (1) Family Law Rules, allows a party to bring a motion for summary judgment. The test is set out in Rule 16 (6):

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

[42] There are divergent views in the caselaw as to whether the more expansive powers in Rule 20, Rules of Civil Procedure, are available in family law proceedings. Under Rule 20, the motions judge may weigh evidence, assess credibility and draw reasonable inferences from the evidence, engaging the “full appreciation test” as described in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

[43] The issue was considered but not resolved in Kalaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 265 D.L.R. (4th) 320 (Ont. C.A.).

[44] In my view, there ought be a consistent approach regardless of the subject matter. The more expansive powers in Rule 20 are far more logical and beneficial. However, when Rule 20 was amended, no similar action was taken with respect to Rule 16.

[45] Accordingly, I adopt the position taken by Healey J. in Virc v. Blair, 2012 ONSC 7104, and apply the more restricted test. In this regard, the motions judge may not assess credibility, weigh the evidence or make findings of fact: see Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (Ont. C.A.), at para. 32; and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 20.

[46] The onus of establishing there is no genuine issue for trial rests with the moving party. Rule 16 (4.1) can impose an evidentiary burden on the responding party, described in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (Ont. C.A.), at p. 19, as “lead trump or risk losing”.

(ii) Cohabitation

[47] There appears to be a dispute regarding the period of cohabitation. Mr. Matoga says it was two years while Ms. Fefelova claims it was in excess of three years. To the extent this issue has a bearing on the purported parent-child relationship or child support, it appears necessary to address the matter.

[48] Although there is an evidentiary dispute and Rule 16 limits the powers of the motions judge, I am of the view this is not a genuine issue for trial.

[49] Continuous daily cohabitation is not required. Such can be found to exist even when the parties maintain separate residences. See Campbell v. Szoke (2003), 2003 CanLII 2291 (ON SC), 45 R.F.L. (5th) 261 (Ont. S.C.J.); and Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65.

[50] In the preamble of their separation agreement, the parties refer to the “relationship” beginning in April 2005 and separation occurring on October 3, 2008. Ms. Fefelova is referred to as a “spouse” within the meaning of the Family Law Act. The agreement provides for spousal support, entitlement to same requiring cohabitation of not less than three years, as defined in section 29.

[51] Mr. Matoga does not seek to set aside the separation agreement, in whole or in part. Accordingly, he cannot resile from the matters therein addressed. At the very least, for the purposes of this motion, I accept the position advanced by Ms. Fefelova that the period of cohabitation was in excess of three years.

(iii) Separation Agreement

[52] Is the separation agreement determinative on the issue of child support and binding on the parties? Does the agreement need to be set aside, in whole or in part, for the claim to proceed?

(a) Principles

[53] The starting point is the application of certain principles of contract law that are relevant to the issues in this case. In this regard, interpretation of a contract is to determine the intentions of the parties by examining the whole of the agreement, interpreting each term, if possible, harmoniously with the other terms while avoiding an unreasonable outcome. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co. (1979), 1979 CanLII 10 (SCC), 112 D.L.R. (3d) 49 (S.C.C.). Further, the purpose in interpretation is to protect the reasonable expectations of the parties on an objective basis, the subjective intent of a party being irrelevant, with vagueness or ambiguity of terms necessitating the court to supplement the words used. See: H.W. Liebig & Co. Ltd. v. Leading Investments Ltd. (1981), 1981 CanLII 1700 (ON CA), 34 O.R. (2d) 175 (Ont. C.A.); aff’d 1986 CanLII 45 (SCC), [1986] 1 S.C.R. 70.

[54] Next is the provision in section 2 (10), Family Law Act, previously cited. The agreement is strong evidence that adequate provision for the children has been made. See Dickson v. Dickson (1987), 1987 CanLII 158 (BC CA), 11 R.F.L. (3d) 337 (B.C.C.A.); and Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.

[55] Willick also stands for the proposition that child support is the right of the child and cannot be bargained away by a parent. The court is not bound by the terms of a separation agreement in exercising its jurisdiction to award child support under the legislation. See, also, Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801; and Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857.

[56] It may be that special circumstances, as set out in section 33 (12), Family Law Act, apply to the agreement. This involves an objective test to determine if the children have benefited, directly or indirectly, by the terms of the separation agreement to the extent their right to be supported by both parents should be extinguished. See Deiter v. Sampson (2002), 2002 CanLII 53250 (ON SC), 31 R.F.L (5th) 296 (Ont. S.C.J.); aff’d 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904 (Ont. C.A.); and Wright v. Zaver, 2002 CanLII 41409 (ON CA), [2002] O.J. No. 1098 (Ont. C.A.).

[57] In addition, the agreement should be given considerable weight and the court must recognize that the parties likely considered the agreement holistically, such that a smaller amount of child support may be explained by a larger amount of spousal support. See D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

[58] Sections 33 (4) and 56 (4) are two exceptions to the general statement in section 2 (10), Family Law Act. The court may, in appropriate circumstances, set aside the separation agreement or one provision in it.

[59] The analysis required under section 56 (4) is a two part process:

(i) can the applicant demonstrate that one or more of the stated circumstances are engaged? and

(ii) if so, is it appropriate for the court to exercise its discretion in favour of setting aside the agreement.

See: LeVan v. LeVan, 2008 ONCA 388.

[60] Section 33 (4) allows the court to override a support provision in an agreement where, as alleged in this case, the waiver “results” in “unconscionable circumstances”. The validity or enforceability of the agreement is not engaged.

[61] An agreement may be fair and reasonable at the time it was executed but unconscionable, that is “shocking to the conscience”, at the time the proceeding is commenced. See Scheel v. Henkelman (2001), 2001 CanLII 24133 (ON CA), 11 R.F.L. (5th) 376 (Ont. C.A.); Wright v. Zaver, supra; and Desramaux v. Desramaux (2002), 2002 CanLII 45030 (ON CA), 28 R.F.L. (5th) 25 (Ont. C.A.).

(b) Discussion

[62] Given the right of a child to support, the separation agreement is open to challenge.

[63] The words used in drafting the agreement are not ambiguous. Similarly, the intent of the parties may be said to be clear. Nevertheless, in my view, the agreement is incomplete or, at least, relies on inferences to be drawn to understand its terms.

[64] In para. 5 of the separation agreement, the parties addressed, but did not determine, their dispute regarding the relationship between Mr. Matoga and the children. They simply said no determination of that issue was necessary “in light of the provisions in this agreement”.

[65] From an interpretation perspective, it would have been preferable to agree on the issue. By failing to do so, the evidentiary dispute continues.

[66] The paragraph goes on to say the terms of the agreement are in the best interests of the children. This, of course, is the overriding test in all cases involving children. But, how did the parties arrive at the conclusion?

[67] When examining the whole of the agreement, and relying on the words used by the parties in paragraph 5 as noted above, the obvious inference is that they took into account the potential issue of child support when determining the amount of spousal support. This could meet the test of special circumstances.

[68] On the face of it, the agreement appears to provide generous spousal support of $10,000 monthly, for a total of $510,000, having regard to the length of the relationship. The monthly amount is higher than the temporary award previously granted by Greer J. However, what is generous in one case may not be so in another.

[69] In this regard, the analysis must involve the financial circumstances of the parties. No reference is made to the incomes or resources of the parties in the agreement and, hence, it is unknown as to the basis for the spousal support payments.

[70] Further, no evidence was presented on this motion as to the income or financial resources of Mr. Matoga, either at the time the agreement was executed or at present, save to refer to his previous disposition of a corporate interest of some magnitude. Further, it appears the income of Mr. Matoga at the time of the motion before Greer J. was less than clear. Reference was made in her endorsement, dated April 21, 2009, to the parties jointly retaining an appraiser to conduct an analysis in that regard.

[71] Without financial disclosure, and as the agreement makes no reference to incomes, I am unable to determine how the parties arrived at the amount of spousal support. Hence, I cannot assess the special circumstances. Any inference, as above, cannot be found on this evidentiary record.

[72] It appears unlikely that Ms. Fefelova can meet the test under section 56 (4), Family Law Act, concerning the validity of the agreement. Although considerable time was spent addressing this section in submissions, I note that Ms. Fefelova did not seek this relief in her application. Rather, the inquiry is with section 33 (4).

[73] Here, as above, financial disclosure is necessary to address whether the results of the agreement are unconscionable. While I suspect child support was considered within the overall resolution, I am unable to make that determination on this motion. In addition, when considering whether the result was unconscionable at the time of this application, it would appear Ms. Fefelova’s financial circumstances, and likewise that of the children, had not really changed since the date of the separation agreement. The only exception to that statement might be the pending expiration of time limited spousal support and the repayment of loans to Mr. Matoga.

[74] Whether the agreement meets the requisite criteria, or if child support may still be granted on the basis of Willick, is a matter that can only be resolved at trial. Hence, it is premature to determine if the support provision in the agreement must be set aside.

(iv) Settled Intention

(a) Principles

[75] Although the terminology used in the Divorce Act and the Family Law Act is different, there is no meaningful discrepancy and, therefore the caselaw involving a divorce applies. See: Robinson v. Birch, 2010 ONSC 2172.

[76] The court must determine the nature of the relationship, objectively examining all relevant factors, including:

(a) whether the child participates in the extended family in the same way as a biological child;

(b) whether the person provides financially for the child;

(c) whether the person disciplines the child;

(d) whether the person represents to the child, the family or the world, explicitly or implicitly, that he is responsible for the child; and

(e) the nature of the child’s relationship with the absent biological father.

See Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242; and Robinson v. Birch, supra.

(b) Discussion

[77] Considerable evidence was presented by both parties. There is an obvious dispute.

[78] Ms. Fefelova refers to the contribution, financially, by Mr. Matoga during the relationship. Activities involving the children are set out in some detail. She also describes events in Russia, in particular her former husband signing off his rights pertaining to the children.

[79] Ms. Fefelova also refers to the affidavit of the former nanny, used in the Toronto proceeding, in which the parental relationship was set out in some detail.

[80] Mr. Matoga, however, says no financial support was provided for the children and he was not involved in making parenting decisions. Nor was he involved in the children’s activities. Adoption was never discussed. He was not considered a father figure.

[81] Of some interest, a temporary finding of settled intention was made by Greer J. in the prior proceeding. The ruling is not binding and was responsive to the evidence then presented.

[82] There has not been any contact between the children and Mr. Matoga since separation. The separation agreement is not conclusive on this issue. Ms. Fefelova has never attempted to seek child support from the biological father. It is likely a difficult task to distinguish between financial contribution to Ms. Fefelova and to the children.

[83] I conclude a determination of this issue cannot be made on the motion. Credibility is a significant factor, perhaps determinative, and is beyond the scope permitted by a motions judge. Although Chappel J. made credibility findings against Ms. Fefelova in the security deposit case, those findings were made after a trial. While persuasive, those findings are not directly applicable to this proceeding at this stage.

[84] This issue can only be decided on a full evidentiary record at trial.

(v) Summary

[85] For the foregoing reasons, the motion is dismissed. In my view, there are genuine issues requiring a trial. I anticipate counsel will be able to resolve the issue of costs; failing which, brief written submissions are to be delivered to my chambers in Cayuga within 45 days. Although Rule 16 (10) contains a presumptive direction on costs, there was merit in the motion.

[86] The evidentiary record on this motion was not sufficient to allow for a final determination. Given the terms of the separation agreement, and the circumstances at the time it was negotiated, it may well be the special circumstances issue will be determination in this case.

[87] Further, if this matter proceeds to trial, I suspect the child support issue will also involve the biological father and the current spouse of Ms. Fefelova, having regard to the provisions in section 5, Child Support Guidelines.

D.J. Gordon J.

Date: November 29, 2013