COURT FILE NO.: FC-06-1745-EC
DATE: 2015/07/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JANUARY ERVIN KENT, Applicant
AND
ROGER KENT, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: January Ervin Kent, Self-Represented
Peter S. Mirsky, Counsel for the Respondent
HEARD: December 8, 2014, March 4, 2015 and May 12, 2015 at Ottawa
ENDORSEMENT
OVERVIEW
[1] Between March 2, 2005 and March 17, 2008, the applicant January Ervin Kent and the respondent Roger Kent signed four partial separation agreements resulting from the breakdown of their marriage. In the Final Partial Separation Agreement dated March 17, 2008 (the “Final Agreement”), the respondent was to make a lump sum grossed up payment of $35,000 by way of RRSP transfer and a continuation of periodic spousal support until August 1, 2009. This finally resolved the applicant’s claim for spousal support.
[2] On May 9, 2014, almost five years after the termination of the periodic spousal support, the applicant filed a Motion to Change seeking an order for the payment of child and spousal support. The respondent brings this motion for summary judgment but only with respect to the applicant’s claim for spousal support.
ISSUE
[3] The central issue in this motion for summary judgment is if there is a genuine issue requiring a trial with respect to the applicant’s request to set aside the provisions of the Final Agreement. If there is a genuine issue requiring a trial, the Court must then address the matter going forward in keeping with the direction of Rule 16 of the Family Law Rules, O. Reg. 114/99.
FACTUAL BACKGROUND
[4] The applicant, January Ervin Kent is 55 years old and the respondent, Roger Kent is 65 years old. They were married on November 8, 1997, separated on June 13, 2004 and divorced on March 2, 2005. At the time of separation, there was one child of their marriage, namely, Alexander Kent (born June 4, 1998). The applicant also had a child from a previous marriage, namely, Brendan Ervin, who is not the subject of this Motion to Change.
[5] Following their separation and over a period of almost three years, the parties entered into the following separation agreements, which dealt with all issues surrounding the breakdown of their marriage:
• Partial Separation Agreement dated March 2, 2005;
• Partial Separation Agreement dated November 30, 2007;
• Partial Separation Agreement dated December 20, 2007; and,
• Final Partial Separation Agreement dated March 17, 2008.
[6] It should be noted that the December 20, 2007 Partial Separation Agreement dealt with the issues of equalization, custody, residence, access and life insurance in a final manner. These issues did not form part of the Final Agreement. As part of the settlement relating to equalization, the December 20, 2007 agreement included a Net Family Property statement which was the basis for the final settlement on the property issues and included values for the respondent’s business interests.
[7] During the period that the various partial separation agreements were negotiated and signed, the applicant was represented by five different lawyers. As part of the motion material before the Court, there are various correspondences from September 2004 to October 2007 between counsel for the respondent and the various counsel for the applicant. This correspondence also reveals that the parties participated in questioning and that undertakings were answered from the questioning.
[8] The Final Agreement includes the standard background information, releases, acknowledgement of satisfactory disclosure and the recognition of Independent Legal Advice. Specifically, this agreement includes the following relevant paragraphs:
Spousal Support:
The parties agree to amend the provisions of Section 4a. of their Interim Separation Agreement dated the 2nd of March, 2005 as herein provided. In consideration for the lump sum payment of spousal support by Roger to January provided for in Section 5 herein, and in consideration for the continuation of spousal support in accordance with Section 4a. until the 1st day of August, 2009, (the last payment of spousal support being made the 1st day of August, 2009), neither Roger nor January shall be obliged to support the other thereafter and forever and each releases his or her rights to spousal support from the other forever. January acknowledges that she has been capable of earning income of approximately $36,000.00 per annum and that this amount has been properly imputed to her in calculating spousal support.
Upon execution of this Agreement, Roger and January shall both promptly execute such documentation as may be required and Roger shall, in accordance therewith, transfer to January the sum of $35,000.00 from his RRSP with TD Waterhouse, Plan Number 59X375-S to January’s RRSP at TD Canada Trust, Plan Number 103709871. January acknowledges that the said sum will be taxable in her hands should she withdraw the sum or any part thereof from her RRSP. January acknowledges that the sum has been grossed up to offset for her tax liability.
January acknowledges that she has in the past earned employment income of $50,000.00 to $80,000.00 per annum and that she is quite capable now and in the future of securing employment and earning upwards of $40,000.00 per year. January further acknowledges that she has been urged by Roger since separation to obtain employment and in particular since 2006 when she specifically undertook to obtain employment. Although she does not have employment at the date of this Agreement, January understands and acknowledges that she must obtain employment so as to obtain economic self-sufficiency and that she has more than adequate time to do so before August of 2009. January acknowledges that there is a risk that she may not find employment which is acceptable to her, however, she is prepared to assume the risk in consideration for Roger’s prior support and during times when January should have secured employment and in consideration for the spousal support provided for herein.
Roger and January acknowledge that this Agreement has been negotiated in an unimpeachable fashion and fully represents the intentions and expectations of the parties. Both parties have had independent legal advice and all the disclosure they have asked for and need in order to understand the nature and consequences of this Agreement and to come to the conclusion, as they do, that the terms of this Agreement including the release of all spousal support rights, constitutes an equitable sharing of the economic consequences of their relationship and its breakdown.
January acknowledges that due to unforeseen expenses incurred in the purchase of a new home, she needs the monies provided for in paragraph 5 herein. Nevertheless, January acknowledges that Roger has brought no pressure or duress upon her to accept this Agreement and January is doing so fully aware of her rights and of her own volition.
Roger and January acknowledge that the terms of this Agreement and, in particular this release of spousal support, reflects his/her own particular objectives and concerns. Among other considerations, they are also depending upon this spousal release, in particular, upon which to base their future lives.
January acknowledges that Roger is relying completely upon her acknowledgments and representations made in this Agreement and but for these acknowledgments and representations Roger would not enter into this Agreement nor make the payments of spousal support, in whole or in part provided for herein.
Roger and January acknowledge that the terms of this Agreement substantially comply with the overall objectives of the Divorce Act now and in the future and the parties need to exercise their autonomous rights to achieve certainty and finality.
January agrees that at the termination of spousal support in August of 2009, will not of itself entitle her to greater child support.
January and Roger do not want the courts to undermine their autonomy as reflected in the terms of this Agreement, which they intend to be a final and certain settling of all issues between them. They wish to be allowed to get on with their separate and independent lives, no matter what changes may occur. January and Roger specifically anticipate that one or both of them may not be employed, become ill and be unable to work, have additional child care responsibilities that will interfere with their ability to work, find their financial resources diminished or exhausted whether through their own fault or not, or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond imagining. Nevertheless, no change, no matter how extreme, will alter this agreement and their view that the terms of this agreement reflect their intention to always be separate financially. January and Roger fully accept that no change whatsoever in their circumstances will entitle either of them to spousal support from the other.
[9] At or about the time of execution of the Final Agreement, the applicant had a home in Chelsea, Quebec which had several deficiencies unknown to the applicant despite there having been a home inspection. The applicant has stated that this caused a financial hardship on her which depleted her assets. In addition, in the ongoing dispute with the respondent, her counsel at the time required a further retainer to enable the applicant to proceed to trial. As she could not provide a further retainer, she could not proceed to trial. The applicant states that these events placed her in a position of extreme duress which pushed her to accept the unfavourable spousal support terms, which are found in the Final Agreement.
[10] At the time of the execution of the Final Agreement, the applicant was no longer represented by her former solicitors, Borden Ladner Gervais. In order to give effect to the execution of the Final Agreement, the respondent required that the applicant receive independent legal advice. She retained Emily Comor, a solicitor who, prior to signing off on the independent legal advice, had the applicant sign a release which specified that in the absence of full disclosure, the lawyer could not advise the applicant on the appropriateness of the Final Agreement. During the motion, the applicant confirmed that she did not give the lawyer any of the disclosure received from the respondent while represented by her former solicitors.
[11] Since the execution of the Final Agreement, the applicant’s finances and health deteriorated and she declared personal bankruptcy. She claims that the house in Chelsea has caused her financial ruin but otherwise, very little evidence was provided about the circumstances surrounding the bankruptcy. Further, she had osteoarthritis of her hips which became progressively worse since 2012. This resulted in a total hip replacement surgery in February 2014. Since the surgery, the applicant’s health has improved and she notes that it is getting better all the time.
[12] With respect to income, the applicant has seen her income vary since 2009 as follows:
• 2009 − $26,206
• 2010 − $45,146
• 2011 − $65,658
• 2012 − $15,444.
[13] Since 2012, the applicant’s income and ability to work were significantly impacted by the osteoarthritis of her hips and she had been unemployed since August 2013. However, the health issues related to her hips improved following her surgery and as of the date of the motion, the applicant advised that she had obtained employment which, as she put it, suits her very well with her current physical circumstances. No further details were provided.
[14] As for the respondent, he is 65 years old and he is now preparing for retirement. He earned $194,251 in 2013 (which included income from the disposition of property) and approximately $50,000 in 2014. His last financial statement provides a net worth in excess of $650,000.
[15] A production order was made in 2014 by Justice James for the applicant to produce copies of her bank account statements for the past two years. After much delay and a further order to produce the bank records, the applicant provided bank records covering a 23‑month period. The respondent provided an analysis of the deposits into the account which suggested that over the 23‑month period, deposits of $79,748 were made for which few details were provided as to the source of the deposits. In particular, some deposits are marked as either “sale of jewelry” or “gift” but the applicant did not adequately respond to the respondent’s analysis other than by way of bald denials. No particulars are given as to the source of the various deposits. The applicant provided almost no sworn evidence as to the allegations of the respondent that the bank accounts suggest that the applicant deposited significant funds in her bank account, which would be in excess of the income figures she reported.
THE LAW
i) Summary Judgment
[16] The law relating to Rule 16 Motions for Summary Judgment has been transformed in recent times by the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 and then more recently with the changes to Rule 16 of the Family Law Rules.
[17] Rule 16(6) provides that summary judgment shall be granted where there is no genuine issue requiring a trial. In determining whether there is a genuine issue requiring a trial, Rule 16(6.1) grants certain fact‑finding powers and Rule 16(6.2) allows for a mini‑trial to be held to receive oral evidence from one or more parties.
[18] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based only on the evidence before the Court. If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the fact‑finding powers under Rules 16(6.1) and 16(6.2).
[19] In Hryniak at para. 49, the Supreme Court of Canada gave the following direction:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
While this statement was made in the context of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I find it equally applicable to the Family Law Rules.
ii) Setting Aside a Marriage Contract
[20] The decision of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24 , [2003] 1 S.C.R. 303 sets out the approach for determining an application for spousal support when the parties had previously entered into a separation agreement that dealt with spousal support and which provides for releases to spousal support entitlement. The spousal support obligations in the Final Agreement were never incorporated into a Final Order. Although this matter was filed as a Motion to Change rather than an Application, this is a request for spousal support under section 15 of the Divorce Act, R.S.C. 1985, c.3 as amended, and the principles in Miglin are applicable.
[21] The test in Miglin is a two-stage investigation into the circumstances surrounding the agreement: first, at the time of execution and second, at the time of the application for spousal support.
[22] At Stage One, the court must look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. The court should consider the conditions of the parties, including any circumstances of oppression, pressure or other vulnerabilities. The court must also take into account all of the circumstances of the parties including those set out in section 15.2(4) of the Divorce Act as well as the conditions under which the negotiations were held including their duration and whether the parties had professional assistance. (See Miglin at para. 81-82).
[23] If the court is satisfied with the conditions under which the agreement was made, the court must consider the substance of the agreement to determine whether it was in substantial compliance with the factors and objectives of the Divorce Act at the time of its formation. This determination would include not only reference to the spousal support objectives and factors listed in sections 15.2(4) and 15.2(6) but also the goals of certainty, finality and autonomy to settle one’s own affairs reflected elsewhere in the Divorce Act. Only a significant departure from the general objectives of the Divorce Act will warrant the court’s intervention. (See Miglin at paras. 84-85).
[24] Having completed Stage One, the court must then proceed to Stage Two and make two distinct inquiries. The first is whether at the time of the application for spousal support the agreement still reflects the original intention of the parties. The second inquiry involves the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act, in light of the changed circumstances. At para. 88 in Miglin, the majority gives some guidance as to how this inquiry is conducted:
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. It is unlikely that the court will be persuaded to disregard the agreement in its entirety but for significant change in the parties’ circumstances from what could reasonably be anticipated at the time of the 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’ intention 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 lead (sic) to a situation that cannot be condoned.
[25] Miglin has made it clear that the changes that occur in the ordinary course of people’s lives, such as health problems and changes in job market, will not be a reason for judicial interference in an agreement which provided for a release of spousal support. “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.” Relevant here are the references to changes in health and employment found at paragraph 13 of the Final Agreement. (See Miglin at para. 89).
[26] It is also clear that the Supreme Court of Canada has given direction in Miglin that written agreements between spouses should generally be upheld. (See para. 78).
ANALYSIS
Summary Judgment on a Miglin Motion
[27] On this motion for summary judgment, I have considered if it is appropriate for what is now commonly known as a “Miglin Motion” to be disposed of by way of a summary judgment motion. I have considered the decision of the Court of Appeal in Kelly v. Kelly, 2004 4328 (ON CA), 72 O.R. (3d) 108 where the court stated at para. 22:
No case is immune from an order for summary judgment. Rule 20, however, is often poorly suited to dispose of claims that must be resolved by applying the detailed analysis in Miglin. That analysis typically requires the court to draw inferences, determine credibility and find facts in the face of disputed evidence. These determinations lie in the domain of the trial judge, not the motions judge. Because the Miglin analysis typically throws up material facts that are disputed, experienced family law judges in Ontario have been reluctant to grant summary judgment on a claim for spousal support under s. 15.2 of the DA even where the parties have signed an agreement waiving support. See Bedard v. Huard, 2000 22563 (ON SC), [2000] O.J. No. 969 (S.C.J.) at para. 14, T.S. v. E.J.S., [2002] O.J. No. 4937 (S.C.J.) at para. 43 and Menzinger v. Menzinger 1998 14849 (ON SC), [1998] O.J. No. 3567 (Gen. Div.) at para. 11. I share that reluctance in this case.
This decision was followed by Justice Leach in Bruxer v. Bruxer, 2013 ONSC 5656. Conversely, my colleague Justice Kershman granted summary judgment in Duncan v. Duncan, 2011 ONSC 1248.
[28] The Court of Appeal has not made an absolute finding on the appropriateness of summary judgment in a Miglin motion. In addition, the Court should be influenced by the primary objective of the Family Law Rules which is to enable the court to deal with cases justly. Rule 2 goes on to state that dealing with a case justly includes:
DEALING WITH CASES JUSTLY
(3) Dealing with a case justly includes,
a. Ensuring that the procedure is fair to all parties;
b. Saving expense and time;
c. Dealing with the case in ways that are appropriate to its importance and complexity; and
d. Giving appropriate court resources to the case while taking account of the need to give resources to other case. O. Reg. 114/99, r.2(3)
[29] Having considered the appropriateness of summary judgment for a Miglin motion, I conclude that there is no established rule in favour or against the use of summary judgment in such circumstances; each case should be evaluated on its merits. While it may be true that the evidence required for the two‑stage analysis may be significant, this is not the case in the present circumstances. The motion brought by the respondent was adjourned on two occasions to allow the applicant to file properly sworn evidence. The respondent was also permitted to complete the evidentiary record by including the correspondence which led to the four separation agreements and I am of the opinion that the record is complete.
[30] The circumstances of the present motion for summary judgment call for particular attention to be brought to the requirement that parties who answer a motion for summary judgement must put their best foot forward. This concept has been recognized within the text of Rule 16(4.1) which requires that the party responding to the motion not rest on mere allegations or denials but shall set out specific facts showing that there is a genuine issue for trial.
Miglin Motion Analysis
[31] I will now consider the issues raised by the parties as part of the two‑stage analysis mandated by the Supreme Court of Canada in Miglin. As this is a motion for summary judgment, the respondent must satisfy the Court that there are no genuine issues at each step of the Miglin analysis.
Stage One
a) Stage One – Step One
[32] At this first step, I am required to consider the circumstances under which the Final Agreement was negotiated and executed to determine if there is any reason to discount it. I must consider whether there is evidence on which I can find that there were circumstances of oppression, pressure or other vulnerabilities. At the same time, one cannot presume that there is a power imbalance and there must be evidence to warrant a finding that the agreement cannot stand on the basis of a fundamental flaw in the negotiation process.
[33] The material filed by the applicant raises the following issues:
a. she was under duress at the time of entering into the Final Agreement;
b. she did not receive full financial disclosure;
c. her lawyer recommended against signing the Final Agreement due to an absence of disclosure; and,
d. as a result of health issues, the circumstances under which the agreement anticipates her financial independence have changed and she has a significant need for periodic spousal support.
[34] The applicant claims that there were no negotiations leading up to the signing of the Final Agreement, that she did not have complete disclosure of the respondent’s business affairs in respect of his true income for the purposes of calculation of spousal support, and that she was under duress and proceeded against the advice of the counsel who provided her with independent legal advice.
[35] Conversely, the respondent argues that there was extensive disclosure including disclosure into his corporate affairs. Business valuations were prepared on his behalf; requested financial information was provided, which was sufficient to allow the parties to settle all matters relating to the equalization in the Partial Separation Agreement dated December 20, 2007. The respondent advances that all the information relating to the value of his business interests was provided and the applicant had all the information she needed to determine her entitlement to spousal support.
[36] I conclude that there is not sufficient evidence to warrant discounting the Final Agreement for the following reasons:
a. From 2005 to 2008, the applicant incurred legal fees of approximately $166,000 in retaining five solicitors to assist her in negotiating the various agreements;
b. The correspondence included in the respondent’s affidavit dated December 20, 2014 demonstrates that, contrary to the applicant’s contention, there were significant negotiations between the parties during the relevant period;
c. There were exchanges of correspondence which demonstrate that documents were provided by the respondent and that the parties also proceeded to questioning, which resulted in undertakings and further disclosure;
d. There was sufficient disclosure about the respondent’s business interests to allow the parties to finally resolve the equalization in the December 20, 2007 Partial Separation Agreement;
e. The issue of duress raised by the applicant is not supported in the evidence. No evidence was presented that the applicant communicated to her solicitors or anyone else that she was in duress at the time of execution of the Final Agreement;
f. Paragraph 8 of the Final Agreement specifically refers to the applicant’s financial needs for the Chelsea property and she specifically acknowledged that she was not in duress to accept the terms of the Final Agreement;
g. The inability of Emily Comor to advise the applicant on the appropriateness of the Final Agreement was caused by the applicant. Arrangements were not made to provide Ms. Comor with the disclosure therefore it is not surprising that she could not do a full analysis of the merits of the spousal support issues. This was not due to a lack of disclosure by the respondent but the result of the applicant’s failure to provide the information to Ms. Comor. While I appreciate that the applicant may not have had access to her entire file at the time, there is no evidence before me which suggests that steps could not have been taken to obtain the file.
[37] The evidence does not persuade me that, at the time of the execution of the Final Agreement, the applicant was under duress. To the contrary, in reading the correspondence between counsel and the specific paragraphs of the Final Agreement, the evidence leads me to the conclusion that the parties were well aware of the circumstances surrounding the final settlement and entered it voluntarily. There is no evidence which is contemporaneous with the execution of the Final Agreement that suggests an imbalance of power. Specifically, paragraph 8 of the Final Agreement acknowledges the applicant’s need for funds to deal with her property in Chelsea and that she was accepting the lump sum payment willingly and without duress.
[38] Further, while I recognize that the fact that both parties were represented by counsel is not determinative of a finding that the negotiations were conducted in circumstances in which there was no oppression or pressure, it is an important factor to be considered at this stage of the analysis. The evidence is clear that the applicant was represented by various senior and competent counsel throughout the disclosure and negotiation process. While I recognize that she ended her relationship with the Borden Ladner Gervais firm due to an inability to provide a $50,000 retainer to proceed to trial, the evidence does not indicate that the Borden Ladner Gervais firm recommended against resolving the property and support issues. There is no independent evidence which suggests that the applicant was upset at the time of execution and that she proceeded otherwise than with the full knowledge of what she was doing.
[39] I conclude at this step that there are no genuine issues requiring a trial as to the manner in which the Final Agreement was negotiated and that the Final Agreement has survived Step One of Stage One of the Miglin analysis.
b) Stage One – Step Two
[40] At Step Two, I am required to determine whether the agreement was in substantial compliance with the spousal support objectives of the Divorce Act at the time of its execution. While the objectives of certainty, finality, and the autonomy to settle one’s own affairs are enshrined in the Divorce Act, there are also specific factors and objectives set out in sections 15.2(4) and (6) regarding spousal support.
[41] As drafted, I have no doubt that the Final Agreement met the objectives of finality, certainty and autonomy, and the right of parties to settle their own affairs. Not only does the agreement incorporate the standard provisions relating to a final resolution with respect to spousal support, it goes much further in clearly setting out the specific circumstances of the parties which were put front and centre for acknowledgement by them. Specifically, I refer to paragraphs 4 to 8 of the Final Agreement which include language intended to require the parties to turn their minds to the finality of the document and the circumstances under which it was being entered into. Within those paragraphs, the applicant acknowledges her past ability to earn $36,000 per annum and that going forward, she is capable of earning upwards of $40,000 per year. These acknowledgments by the applicant are the best evidence demonstrating that the Final Agreement was intended to bring certainty, finality and autonomy to the parties.
[42] When turning to sections 15.2(4) and 15.2(6) of the Divorce Act, I find nothing in these sections which is at odds with the Final Agreement. This was a 6.5‑year marriage. When considering the lump sum payment made, it provided the applicant with approximately seven years of spousal support in addition to an ongoing obligation that the respondent pay child support. While this would not be at the high‑end of the scale, it is not outside of the reasonable range following this marriage which can be qualified as being one of a shorter term. While I was not provided with evidence on the functions performed by each spouse during the cohabitation, the acknowledgements made in paragraphs 4 to 8 of the Final Agreement recognize that the parties agreed that they were both able to move forward independently at the end of the periodic spousal support period.
[43] I have also considered the economic objectives found at section 15.2(6) of the Divorce Act. Although it was foreseeable that the respondent had a better earning capacity than the applicant, sections 4 to 8 of the Final Agreement set out the anticipated economic circumstances of the applicant. During the years following the Final Agreement, these circumstances played out as anticipated with the applicant earning income of $26,206 in 2009, $45,146 in 2010 and $65,658 in 2011. I acknowledge that the applicant experienced health problems which led to a period of unemployment, however, at the time of execution, the Final Agreement recognized the applicant’s economic circumstances arising from the marriage breakdown and it promoted self‑sufficiency.
[44] For these reasons, I conclude that there are no genuine issues which suggest that the Final Agreement was not in substantial compliance with the spousal support objectives of the Divorce Act and, as such, the Final Agreement has survived Step Two of Stage One in the Miglin analysis.
Stage Two
[45] The Court is now to assess if there are new circumstances which could not have reasonably been anticipated at the time of the execution of the Final Agreement.
[46] My review of the spousal support provisions of the Final Agreement summarizes the circumstances at the time as being:
a. The applicant required a lump sum amount from her spousal support entitlement to deal with issues surrounding the Chelsea property (para. 8);
b. The lump sum payment of $35,000 was accepted by the applicant as satisfactory to allow her to address her immediate need for funds (paras. 5 and 8);
c. The applicant acknowledged that she had in the past earned employment income between $50,000 and $80,000 per annum and that going forward, she was capable of earning upwards of $40,000 per annum (para. 6);
d. Following August 1, 2009, neither the applicant nor the respondent would have any obligation to support the other (para. 4);
e. The applicant understood that she would be required to obtain employment in order to attain economic self‑sufficiency (para. 6);
f. The applicant recognized that there was a risk that she may not find employment but she was prepared to assume the risk (para. 6);
g. Both parties had independent legal advice and understood the nature and consequences of the Final Agreement (para. 7);
h. Both parties understood that the Final Agreement was to be final regardless of changes in circumstance and specifically the risk that one of them may become ill and be unable to work or that their financial resources may become diminished or exhausted (para. 13); and,
i. The spousal support provisions were final and non‑variable, notwithstanding any change of circumstance (para. 19).
[47] Within the context of the above provisions, I am unable to find that there has been a significant change in circumstance which produces a situation that the Court cannot condone. (See Miglin, para. 88). In this part of the analysis, I am concerned that the applicant has failed to put her best foot forward in the evidence she has provided in support of her position. Specifically, this motion was adjourned on two occasions for the applicant to file evidence addressing her circumstances. Finally, on March 16, 2015, she filed a sworn affidavit which provided some evidence to address the allegations of the respondent. However, I note the following:
a. she did not file evidence of her efforts to become employed although some information was disclosed to the respondent;
b. she disclosed at the hearing of the motion that she was now employed in a position that works quite well with her current physical circumstances, without providing any additional specifics;
c. she did not properly address the significant deposits made into her bank account for the 23‑month period for which records were obtained. Further, she did not properly address the respondent’s allegation that the questionable deposits amount to approximately $79,748; and
d. she did not provide evidence on her ability going forward to earn $40,000 per annum as anticipated by the Final Agreement.
[48] The applicant’s failure to present sufficient evidence on the change in her circumstances leads me to conclude that there is no significant change in circumstance which results in a situation that the Court cannot condone. I accept that the applicant has endured challenges relating to her health and a loss of employment. However, her evidence is that her condition is improving to the point where she is now employed. These were circumstances contemplated by the Final Agreement and accordingly, at Stage Two of the Miglin analysis, I conclude that there is no genuine issue which supports that there has been a significant change in the applicant’s circumstances which was not contemplated by the Final Agreement.
[49] In considering the second inquiry at Stage Two of the Miglin analysis, I am unable to conclude that the applicant’s circumstances at the time of filing this Motion to Change was significantly different than at the time the Final Agreement was entered into. I come to this conclusion for the following reasons:
a. The applicant’s health issues which restricted her ability to work were not a permanent condition. In fact, the evidence is that since her 2014 hip replacement surgery, she has improved to the stage of now being employed in a position that suits her current physical circumstances;
b. The applicant’s financial circumstances and her difficulties with the property in Chelsea were specifically incorporated in the Final Agreement;
c. I have not been provided with evidence about the applicant’s bankruptcy to appreciate how it came about and the resulting impact it had on the applicant;
d. The applicant has not properly addressed her financial circumstances. The evidence suggests that there have been deposits in her account which exceed her reported income and she did not make a reasonable effort to identify the source of the deposits. As such, I am unable to conclude that her financial circumstances have significantly changed from that which was contemplated in the Final Agreement;
e. While it is not part of the analysis in Miglin, the evidence is that the applicant’s circumstances have improved since the filing of the Motion to Change and that while she went through a period of time when her financial circumstances had significantly deteriorated, the evidence is that this has and will continue to improve.
[50] I have concluded above that the objectives of the Divorce Act were met at the time the Final Agreement was executed and my view has not changed as at the date of the filing of the Motion to Change. The only relevant event which has been put into evidence is the applicant’s bankruptcy and I cannot, on that information and the limited evidence provided by the applicant, conclude that there has been a significant change in the applicant’s circumstances. The applicant’s financial challenges formed part of the Final Agreement and I am not able to conclude that the terms of the Final Agreement no longer reflect the parties’ intention at the time of execution. To the contrary, I find that any changes in the applicant’s circumstances were contemplated within the Final Agreement. The objectives of the Divorce Act were substantially complied with in March 2008 and I find that the Final Agreement continues to be in substantial compliance with those objectives in May 2014 when the Motion to Change was filed by the applicant. I conclude that there is no genuine issue which could suggest otherwise.
[51] I should also note that the applicant’s financial challenges are also impacted by the respondent’s termination of child support payments. This is an unrelated factor which will be dealt with as these proceedings move forward.
[52] For the reasons set out above, I am satisfied that there is no genuine issue raised which would require a trial. To the contrary, I conclude that the Final Agreement was drafted in a manner and following a disclosure process which is unimpeachable, that is in substantial compliance with the objectives of the Divorce Act and that there has not been a change of circumstance which results in a situation that the Court cannot condone.
[53] Accordingly, the Court grants the respondent’s motion for summary judgment and hereby dismisses the applicant’s claim for spousal support made at paragraphs 7 and 8 of the applicant’s Motion to Change.
COSTS
[54] If the parties are unable to agree on the issue of costs, they may write to me. The respondent shall provide written costs submissions within 14 days of the date of release of this Endorsement. Thereafter, the applicant shall provide written costs submissions within 14 days. Each costs submission shall be no longer than three pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.
Mr. Justice Marc R. Labrosse
Date: July 10, 2015
COURT FILE NO.: FC-06-1745-EC
DATE: 2015/07/10
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: January Ervin Kent, Applicant
AND
Roger Kent, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: January Ervin Kent, Self-Represented
Peter S. Mirsky, Counsel for the Respondent
ENDORSEMENT
Labrosse J.
Released: July 10, 2015