ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 44717-10
DATE: 2014-04-23

BETWEEN:

Jeffrey James Dillon
Applicant

– and –

Lucia Dillon
Respondent

P.D. Amey, Counsel for the Applicant

K. Caspersz, Counsel for the Respondent

HEARD: February 11, 12, 13, 14,
24, 25, 2014

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] Jeffrey Dillon and Lucia Zivcakova married on May 16, 2008 following a period of cohabitation.

[2] They separated on August 31, 2010. This action was commenced shortly thereafter. A number of claims are advanced in the application and answer involving, in part, a marriage contract and an amending agreement, both executed prior to marriage.

[3] Pursuant to an order I granted on December 13, 2013, the case was split pursuant to Rule 12(5), Family Law Rules. See: 2013 ONSC 7679. A trial of the issue regarding the validity of the marriage contracts was to proceed first, the balance of the claims to be addressed, if required, at a second trial.

Background

[4] Mr. Dillon and Ms. Zivcakova met on August 25, 2005. A romantic relationship commenced shortly thereafter. At the time, Mr. Dillon was 29 years of age, recently separated from his spouse and residing with his parents in Conestogo, Region of Waterloo. He was employed in his parents’ business, Davenport Office Inc., operating as Basic Office Supplies. Ms. Zivcakova was 20 years of age. She was residing in Mississauga, Region of Peel, and enrolled in an undergraduate program at the University of Toronto.

[5] From October 2005 to June 2006, the parties visited regularly as their relationship developed. Each would stay at the other’s residence involving most weekends. In June 2006, Ms. Zivcakova had completed her third year of university studies. She moved to Waterloo to live with Mr. Dillon in a condominium purchased by his father the previous year.

[6] Ms. Zivcakova continued her education program at the University of Toronto. She maintained an apartment in Mississauga for that purpose. Mr. Dillon provided the transportation.

[7] In February 2006, Mr. Dillon resolved all issues with his former spouse by way of a separation agreement. The agreement dealt with parenting of their two children, child support, equalization of net family property and related issues.

[8] Mr. Dillon and Ms. Zivcakova decided to marry. They were engaged on March 17, 2007.

[9] Early in the relationship, Mr. Dillon informed Ms. Zivcakova that a marriage contract, frequently referred to in the evidence as a prenuptial agreement, would be required. Ms. Zivcakova was not opposed.

[10] The parties entered into a marriage contract in July 2007. The contract was prepared by Mr. Keller, solicitor for Mr. Dillon. Ms. Zivcakova retained Mr. McMurray for independent legal advice.

[11] In August 2007, Mr. Dillon’s parents sold their business. The sale proceeds were transferred to the Dillon Family Trust. In September 2007, at a family meeting, the parents informed Mr. Dillon, and his two sisters, of some particulars regarding the Trust. They also delivered gifts, including money. Ms. Zivcakova was given a new vehicle.

[12] Mr. Dillon was advised to seek an amendment of the marriage contract, particularly in view of the Dillon Family Trust. An amending agreement was prepared by Mr. Snyder, solicitor for Mr. Dillon. Ms. Zivcakova consulted Mr. McMurray again for independent legal advice. The agreement was signed in October 2007, by Mr. Dillon, and in December 2007, by Ms. Zivcakova.

[13] The parties married on May 16, 2008. They continued to reside in the condominium in Waterloo. Ownership of the condominium had been transferred to Mr. Dillon several months prior to marriage.

[14] Ms. Zivcakova graduated from the University of Toronto in June 2008 with a B.Sc. in Psychology. She applied to graduate school at Wilfrid Laurier University but was not accepted. She worked at the university as a volunteer to enhance her credentials. Ms. Zivcakova was then accepted and commenced a Master’s program in September 2009, graduating two years later. Ms. Zivcakova has continued post-graduate studies and anticipates qualifying for a Ph.D. in 2015.

[15] During their cohabitation, Mr. Dillon paid most of the living expenses from his employment income. Ms. Zivcakova was a full-time student, her income limited to scholarships and other funds received from the university related to the post-graduate program.

[16] Problems in the relationship developed shortly after marriage. Separation occurred on August 31, 2010. Their personal dispute has no bearing on the issues in this case. All that need be said is that they were unable to resolve their personal differences and continue cohabitation.

[17] The parties continued to reside in the condominium following separation. Mr. Dillon asked Ms. Zivcakova to vacate the unit. She refused. This action was commenced in response. A temporary order was granted in April 2011, awarding exclusive possession of the condominium to Mr. Dillon and directing him to pay spousal support to Ms. Zivcakova. The order also dealt with other matters. Ms. Zivcakova obtained alternate accommodation and moved out of the condominium on May 15, 2011.

Litigation

[18] Although the issues in the first trial pertain to the validity of the marriage contracts, it is helpful to review the nature of the competing claims.

[19] In his application, issued November 3, 2010, Mr. Dillon claims:

(a) a divorce;

(b) exclusive possession of the matrimonial home and contents; and

(c) enforcing the terms of the marriage contract and amending agreement.

[20] The original answer of Ms. Zivcakova was dated December 2, 2010. I granted leave to amend the answer on February 12, 2014, the second day of trial, so as to allow her to particularize the factual allegations and claims. Ms. Zivcakova agrees with the request for a divorce. She claims:

(a) spousal support;

(b) equalization of net family property; and

(c) a declaration the marriage contract and amending agreement are invalid and no longer binding on the parties pursuant to section 56(4), Family Law Act (incorrectly cited as Rule 56(4)(c) of the Family Law Rules in the amended answer).

[21] The litigation dispute quickly escalated. A temporary order was granted in April 2011, directing the following:

(a) exclusive possession of the condominium to Mr. Dillon;

(b) monthly spousal support of $1,000 to be paid to Ms. Zivcakova;

(c) Mr. Dillon’s mother to provide disclosure of the Dillon Family Trust; and

(d) Mr. McMurray to provide disclosure as to the contents of his file regarding Ms. Zivcakova.

[22] Questioning took place in September 2011.

[23] In August 2012, a temporary order suspended the payment of spousal support. In May 2013, a further order directed Mr. Dillon to pay $27,000 to Ms. Zivcakova for interim expenses. Lastly, in December 2013, I directed the case be split.

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[309] In all of the circumstances, I conclude the marriage contract, dated July 17, 2007, as amended by the agreement dated October 17, 2007, is valid. A declaratory order in this respect is granted. Ms. Zivcakova’s claim to set aside the marriage contracts is dismissed.

[310] At the completion of the trial, counsel agreed to contact the trial co-ordinator to schedule a settlement conference, before a different judge, regarding the remaining issues.

[311] If the parties are unable to agree on the issue of costs, brief written submissions are to be exchanged and delivered to my chambers in Cayuga within 30 days.

Released: 23 April 2014
D.J. Gordon J.

COURT FILE NO.: 44717-10
DATE: 2014-04-23

ONTARIO
SUPERIOR COURT OF JUSTICE

Jeffrey James Dillon
Applicant

– and –

Lucia Dillon
Respondent

REASONS FOR DECISION

D.J. Gordon J.

Released: April 23, 2014

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