ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-14-112
DATE: 2015-July-6
BETWEEN:
Charlene Philion
Applicant
– and –
Curtis Philion
Respondent
Paul M. Stillman, for the Applicant
Paul D. Amey, for the Respondent
HEARD: June 29, 2015
The Honourable Justice J.C. Kent
Reasons for ruling ON motion and cross-motion
[1] Two motions have been considered by the court. The respondent (husband), pursuant to Family Law Rule 16, moves for partial summary judgment seeking a declaration that an agreement made between the parties on 17 August 2011 remains valid and binding upon the parties and a further declaration that, pursuant to that Agreement, the applicant (wife) released all her right, title and interest in the property municipally known as 6122 Municipal Road, Clergue Township, Porquis Junction described in Schedule “A” to the Notice of Motion.
[2] The applicant (wife) seeks a temporary order for spousal support, pending trial.
Background
[3] The wife executed documentation on 17 August 2011 and 6 September 2011 releasing and conveying her interest in the former matrimonial home to the husband. The documentation included an Acknowledgment and Waiver of Independent Legal Advice. It did not, however, include any reference to payment or consideration.
[4] In April 2014, the wife commenced her application to have the 2011 “Agreement” and transaction addressed in that agreement set aside. She also sought an order for spousal support.
[5] The un-contradicted evidence of the husband that is that he paid the wife $27,000.00 for her one-half interest in the equity in their former matrimonial home. Further, un-contradicted evidence establishes that the amount paid was approximately the value of one-half of the equity in that home as of August 2011.
Analysis
[6] On the evidence, the “Agreement” was fair to both parties. The Supreme Court of Canada has made it clear that parties have the freedom to arrange their affairs as they see fit and courts should be reluctant to second-guess the private arrangements that spouses make for their affairs upon the breakdown of their relationship. See Hartshorne v. Hartshorne, 2004 SCC 22 at paragraph 36.
[7] While the wife asserts in her application that she has difficulty in 2014 remembering the execution of the agreement approximately 3 years earlier, there is no evidence that she did not understand the nature and effect of the agreement at the time of execution.
[8] The evidence indicates that she was with lawyers on three occasions in August and September 2011. She also signed an Acknowledgment stating:
“I, Charlene A. Philion, of the City of Brantford, in the Province of Ontario, do hereby acknowledge that I have been requested by the above Recipients to obtain legal advice with respect to the effect and scope of all of the aforementioned documents from a qualified ONTARIO lawyer who is independent of the Recipients. I understand that this request was made to me in order that I might obtain a complete understanding of my legal obligations prior to signing the said Documents.
“I hereby certify that I have elected of my own free will not to obtain such independent legal advice. I confirm that none of the Recipients, nor any other person, has exerted influence over me in order to convince me to sign the Documents, or has made any representation to me concerning the legal effect or scope of the Documents.”
[9] In addition, the wife has made no effort to attack or contradict the agreement for a period of almost three years.
[10] The wife asserts that she was subject to undue influence. In law, undue influence requires an element of coercion to the point the person is not making decisions with her own free mind. The evidence relied upon in an effort to show undue influence falls far short of meeting the onus that is upon the wife. Her own affidavit evidence is merely a conclusory statement with no specific allegations or particulars. The affidavit evidence of her daughter, at its highest, is hearsay.
[11] In the face of the above evidence, no finding of undue influence or a lack of understanding can be made.
[12] The wife has also asked this court to set aside the agreement because it is not “in accord with the law of contract”.
[13] Section 56(4)(c) of the Family Law Act provides that a court may set aside an agreement which is not in accord with the law of contract.
[14] Counsel for the wife points out that even though the evidence indicates that consideration ($27,000) was part of the agreement, that element was not provided for in the written agreement. He is correct in that regard. The agreement, therefore, was not made in accord with the complete law of contract.
[15] Counsel for the husband submits that there is evidence concerning why the consideration paid was not provided for in the agreement. That evidence, also un-contradicted, was that, at the time of the agreement, the wife was a recipient of ODSP benefits and that her entitlement to such benefits might be affected if her receipt of $27,000 for a property settlement was recorded and known. In his affidavit, the husband states that he was not to “disclose receipt of any monies from me to her (as per the Land Transfer Tax Affidavit showing the consideration was for natural love and affection); and if I were to be contacted by the ODSP authorities, I was not to disclose to ODSP her receipt of these monies from the transfer of the property.”
[16] The authority of this court to set aside an agreement is permissible not mandatory. An explanation has been provided for the omission of any mention of the consideration in the written Agreement. It would seem inequitable to now set aside that Agreement when the omission was for the benefit of the party who now seeks to have the Agreement set aside.
The Law
[17] The court should grant summary judgment when the judge is satisfied that there is “no genuine issue requiring a trial.” In those circumstances, the judge needs to be able to reach a fair and just determination on the merits following the 2-part test set out in the recent decision of the Supreme Court of Canada Hryniak v. Mauldin, 2014 SCC 7 at para. 49 (a) and (b):
(a) First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact-finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and
(b) Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at his discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided by using these new tools to come to a fair and just result.
[18] The Family Law Rules have also been amended recently to reflect the principles enunciated by the Supreme Court of Canada.
[19] Both the case law and the rules send a message to those of us involved in the administration of justice to, where possible, deal with matters expeditiously balancing procedure with the interest of access to justice by providing a timely, proportionate and affordable process while determining a fair and just result for the parties.
Result
[20] This is clearly a situation where a judge can decide the issues fairly and justly without the necessity of a traditional trial. There is no genuine issue for such a trial.
[21] For all of the above reasons, a declaration should go as requested and set out at the commencement of these reasons. Order accordingly.
Spousal Support
[22] Counsel for the husband does not seriously contest the wife’s need for spousal support nor her entitlement to same. He points out, however, that the evidence is clear that the husband does not currently have the means to pay support and is already supporting an 18 year old son of the marriage of the husband and wife. Their son, Royce, lives with the husband.
[23] The husband’s income for the one year period following the date that the wife’s application was commenced was almost entirely employment insurance which terminated in April 2015. His total income for that twelve month period April 2014 to April 2015 as near as can be calculated would appear to be $31,127.28.
[24] It is appropriate, therefore, to determine his arrears for spousal support that should have been paid for the one year period ending when his employment insurance terminated. A Divorce Mate calculation using his above income for that one year period with one child in his home produces a range of $374.00 to $499.00 with a mid-point of $436.00.
[25] Using the above mid-point, this court determines that his arrears of spousal support as of 30 April 2015 are fixed at $5,232.00. His ongoing spousal support may only be ordered at a nominal amount given his current lack of income. Therefore, effective 1 May 2015, he is ordered and directed to pay spousal support in the amount of $1 per month on the first day of each and every month. He is further ordered and directed to advise the applicant immediately upon obtaining any employment and provide a copy of his first and second paycheques to the applicant upon receipt of same.
Order accordingly.
Costs
[26] Success would appear to have been divided here. However, the court is unaware of any offers that may bear on the costs outcome.
[27] If counsel are unable to resolve the issue of costs, they may address same in written submissions. The applicant shall make her submissions within 21 days of the release of these reasons. The respondent shall respond within 14 days thereafter with reply, if any, within 7 days following.
Kent, J.
Released: July 6, 2015
Charlene Philion v. Curtis Philion, 2015 ONSC 4255
COURT FILE NO.: FS-14-112
DATE: 2015-July-6
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Charlene Philion
Applicant
– and –
Curtis Philion
Respondent
REASONS FOR JUDGMENT
Kent, J.
Released: July 6, 2015