Awni Shair v. Adina Shair, 2015 ONSC 5816

CITATION: Shair v. Shair, 2015 ONSC 5816

COURT FILE NO.: FS-14-395289

DATE: 20150921

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AWNI SHAIR

Applicant

– and –

ADINA SHAIR

Respondent

Steven M. Fehrle, for the Applicant

Olena Brusentsova for the Respondent

HEARD: June 23, 24, 25, 26; August 27, 28 and September 1, 2015

CHIAPPETTA J.:

Overview

[1] The parties met in the Respondent wife’s native Bucharest, Romania in the summer of 1995. The Applicant husband sponsored the Respondent wife as his fiancée and she arrived in Canada in July 1996. The parties signed a marriage contract on September 27, 1996 (“the marriage contract”). They were married on November 2, 1996. There are no children of the marriage.

[2] The Applicant husband caused this proceeding to be commenced by Application for Divorce issued June 5, 2014. He sought a simple divorce. The Respondent wife filed an answer disputing the Applicant’s stated date of separation and seeking spousal support, equalization of net family property and an order setting aside the marriage contract signed by the parties on September 27, 1996. The parties agreed to litigate the issue of the enforceability of the marriage contract prior to any other issues raised by this proceeding. The only issue before the court at this time, then, is the enforceability of the marriage contract.

[3] The terms of the marriage contract provide, in part, as follows:

1. Each party waives all property rights under the Family Law Act R.S.O. 1990, c. F.3 (“the Family Law Act”);

2. There shall be no equalization of net family property following separation;

3. Each party releases the other from spousal support;

4. In case of a child of the marriage, the Applicant husband shall have custody.

[4] The Respondent wife states that the marriage contract is unenforceable as:

1. The Respondent wife did not understand the nature and consequences of the terms of the marriage contract;

2. The Respondent wife suffered from undue influence and duress at the time of signing;

3. There was no disclosure to the Respondent wife of the Applicant husband’s assets, liabilities and debts; and

4. The circumstances at the time of the drafting and signing of the contract were unconscionable.

[5] The Applicant husband states that the marriage contract is enforceable as:

1. The Respondent wife received independent legal advice from an experienced lawyer through a Romanian interpreter;

2. The Respondent wife was not under pressure or duress to sign the marriage contract;

3. Each party waived disclosure of all significant assets and significant debts and liabilities existing at the date of the marriage contract;

4. The circumstances at the time of the drafting and signing the contract were not unconscionable.

[6] For reasons that follow, I have concluded that the marriage contract is valid. I have further concluded that although valid, it would result in unconscionable circumstances if the waiver of spousal support provisions in the marriage contract were permitted to stand. In accordance with section 33(4) of the Family Law Act, section 17 of the marriage contract shall be set aside. The Respondent wife shall be permitted to pursue an application under section 33(1) of the Family Law Act for the provision of spousal support from the Applicant husband.

Background

[7] The Applicant husband is 61 years old. The Respondent wife is 47 years old. They met in June 1995 when the Applicant husband was visiting Bucharest, Romania, where the Respondent wife lived since birth. At the time, the Respondent wife was working as a cosmetician and teaching skincare classes while finishing the second year of a social psychology degree program at Bucharest University. She owned her own condominium, had many friends and a close relationship with her father and brothers, her mother having passed away when she was 17.

[8] The Respondent wife states that she and the Applicant husband fell in love the first week they met. She claims that they talked about marriage and that he gave her a promise ring during this first visit. She testified that neither could speak each other’s language. She also stated,

however, that the Applicant husband told her about his two previous wives, his son, his job as a mechanic and his home in Canada which he owned, and that she understood what he had told her.

[9] The Applicant husband denies that he gave the Respondent wife a promise ring on his first meeting with her in June 1995. He states that the Respondent wife understood English reasonably well. They talked during their first visit of her desire to visit Canada. He assisted her with the application for a visitor’s visa to Canada, but it was denied. The two were affectionate during this visit, he states, but not romantic.

[10] After the Applicant husband left Romania in June 1995, the parties kept in touch by phone and fax. The Applicant husband returned to Bucharest in December 1995 to celebrate Christmas with the Respondent wife and her family. He stayed with her at her apartment and he states that the relationship then started to evolve romantically.

[11] The Applicant husband states that during this visit in December 1995, he told the Respondent wife further details about his prior two marriages and explained the access issues he was having with his son. He told her that he was a mechanic and that he owned his own house, his own business and the property upon which the business is situated. The Respondent wife denies that she was told that he owned his owned business or the property upon which it was situated.

[12] While the parties were in Romania in December 1995, they went again to the Canadian embassy to affect a visitor’s visa for the Respondent wife, but again it was denied. The Applicant husband testified that a fiancée visa was the only way the Respondent wife could obtain a temporary visa to visit Canada, as she was deemed by the Canadian Embassy to be a risk of overstaying her visa period illegally. He returned to Canada after his visit in December 1995 and in March 1996, the Applicant husband submitted a fiancée visa application for the purposes of sponsoring the Respondent wife’s attendance in Canada. He undertook therein to take care of her needs, including providing financial support for up to 10 years. The application was approved.

[13] The Applicant husband attended a third time in Romania in June 1996. He spent some time vacationing with the Applicant wife before the two of them together flew to Canada. He states that it was on this visit that he told the Respondent wife of his intention to spend some time with the Respondent wife in Canada in order to determine if they were compatible. If so, and if she was willing to sign a marriage contract, only then would they be married. He states he advised her of this before the Respondent wife purchased her ticket to Canada.

[14] The Respondent wife denies this conversation. She states that she left her country for the sole purpose of coming to Canada to marry the Applicant husband. She was excited to leave her country to come to Canada and marry a man she had fallen in love with. She told all of her family and friends of her plans. She submits that there was no discussion of the need for a marriage contract until months after she arrived in Canada.

[15] The parties arrived in Canada on July 13, 1996. The fiancée visa required that they marry no later than October 12, 1996. Upon arrival, the Respondent wife executed a Record of Landing wherein she certified that she understood this condition. Also recorded on the executed Record of Landing is that the years of sponsorship were 10. The evidence of the Respondent wife is that she did not know about the length of the sponsorship agreement until she recently revisited the Record of Landing as a result of this proceeding.

The Marriage Contract

[16] The marriage contract was signed by the parties on September 27, 1996. It reads in relevant part:

2. BACKGROUND

Some of the circumstances of the parties are as follows.

(1) The Intended Husband is an auto mechanic in Etobicoke, Ontario.

(2) The Intended Wife is presently located in Canada under a sponsored visa and resides at all other times in Romania. She is a Romanian citizen.

(3) The parties wish to marry each other.

(4) The primary purpose of this Intended Wife’s attendance in Canada is for her marriage to the Intended Husband, following the parties’ courtship in Romania, and continuing commu- nication between the parties since they met.

3. THE PURPOSE OF THE CONTRACT

(1) Each party intends by this contract to agree on their respective rights and obligations under the marriage, on separation and on death.

(2) Each party intends by this contract to do the following for the duration of cohabitation under the marriage and for all time after separation:

(a) To waive all property rights arising strictly out of their marital relationship; and

(b) Except where otherwise specifically provided by this contract, to provide

(i) that the property of the parties will be distributed between them only according to ownership;

(ii) that on separation neither party will be entitled to receive spousal support (as distinct from child support) from the other party or be obliged to provide spousal support to the other party except as provided hereinafter

(3) Neither party intends by this contract to limit the rights of the surviving party under the Family Law Act and the Succession Law Reform Act where the death of the other occurs during cohabitation under the marriage.

7. WAIVER TO RIGHT OF ENTITLEMENT

In the event of a separation of the parties, neither party will have the right by election or otherwise to receive the entitlement under s. 5 of the Family Law Act. The only entitlement will be that provided under a will.

8. WAIVER OF PROPERTY RIGHTS AND ENTITLEMENT

UNDER FAMILY LAW ACT

(1) Each party waives all property rights under the Family Law Act which he or she receives by marrying so that the property rights of each party will be determined at all times as if he or she were unmarried.

(2) Each party

(a) waives the right to receive, and

(b) releases the other and the other’s estate from all claims for,

the entitlement under s. 5 of the Family Law Act, that he or she has, or in the future may have, as a spouse or surviving spouse.

9. NO NET FAMILY PROPERTY

None of the property owned at any time by either party, or by them together, will be included in his or her net family property, so that the net family property of each party as calculated under the Family Law Act would have no value and would equal zero.

12. FAMILY RESIDENCE – MATRIMONIAL HOME

(1) Each party acknowledges that the family residence at 14 Jopling Avenue South, Toronto, is owned by the Intended Husband, and each agrees with the other that it will continue to be owned by him until such time as he specifically, in writing, conveys an interest to the Intended Wife.

(2) If the parties separate, or if the family residence is sold, the Intended Husband shall retain the entire value, including any enhanced value, of the family residence, or if sold, the entire proceeds of sale; this will apply to any successive family residence registered solely in the Intended Husband’s name.

13. RIGHT TO DEAL WITH OWN PROPERTY

At all times, each party may dispose of, encumber, or otherwise deal with that party’s property as if he or she were unmarried and as in his or her absolute discretion deems fit.

14. SUPPORT DURING COHABITATION

(1) The Intended Husband and the Intended Wife will contribute to the support of the family during cohabitation under the marriage in such proportion as they may agree from time to time.

(2) Initially the Intended Wife will not have employment, and the Intended Husband will provide fully for the day-to-day support of the wife, including reasonable necessary medical expenses and other necessities of life.

(3) Upon obtaining the equivalent of full time employment, the Intended Wife will become responsible for her personal expenses.

(4) Upon the Intended Wife securing the equivalent of full time employment, she will contribute equally to the joint living expenses, including the operating costs annexed to the family residence. She will not be responsible for any capital costs for the family residence, including mortgage payments, municipal taxes, and fire insurance, unless a portion of title has been conveyed to her, in that circumstance, she will be liable for that portion of capital costs equivalent to her proportionate share of ownership.

15. CUSTODY AND ACCESS FOR CHILD OR CHILDREN

(1) The parties may create a family with children or a child.

(2) If the parties are the natural or adoptive parents of children or a child, and a separation occurs, the parties agree that prima facie custody of the children or a child should be the responsibility of the husband, unless the prospective wife proves him unfit. The parties recognize this is of cultural significance, and the Intended Wife recognizes that the Intended Husband has all of the attributes of a good and caring father, with experience in the raising of a child.

(3) Once the children or child are placed in the custody of the Intended Husband, it is acknowledged that the Intended Wife should have equal responsibility for the care and raising [of] children or child, equal access to all relevant records regarding the children or child, and that her views would be given serious consideration. She is to be wholly involved in the raising of the children or child, and shall have extensive access, with up to equal time with the children or child.

17. RELEASE OF SPOUSAL SUPPORT DURING SEPARATION

(1) Where the parties have separated neither of them will have the right to receive support from the other for himself or herself during the period of separation.

(2) For any period or periods of separation each party waives all right to support for himself or herself and releases the other and the other’s estate from all claims to support for himself or herself, that he or she has or in her future may have under the Family Law Act, Divorce Act, and the Succession Law Reform Act, except as hereinafter provided.

(3) Each party acknowledges that in waiving the rights and giving the release in subsection (2) of this section

(a) each has considered his or her prospects in life against the possibility of change in circumstances, including radical or catastrophic changes such as career reversals, mismanagement of funds, illness and disability, rising costs and inflation; and

(b) each has signed this contract knowing that neither of them will have a right to receive support from the other or the other’s estate for himself or herself at any time or under any circumstances.

(4) Notwithstanding paragraph 3(2) (b) (ii), 17(1) and 17(2), if the parties separate, and the Wife is unemployed and without income, the husband shall assist the Wife in locating gainful employment, and shall financially assist the Wife for a period of up to 3 months, provided that the Wife is not guilty of a matrimonial offence.

22. FINANCIAL DISCLOSURE

(1) Each party has fully and completely been apprised of the necessity of disclosure of all significant assets, and significant debts or other liabilities existing at the date of this contract.

(2) Each party waives disclosure, recognizes and accepts the right to privacy.

(3) Each party is satisfied that the information received from the other is sufficient, and each acknowledges that there are no requests for further information.

26. AMENDMENT OF CONTRACT

Any amendment of this contract must be made in writing and must be signed by each party before a witness.

29. JOINT PREPARATION OF CONTRACT

Each party acknowledges that each of them personally and by their lawyers has participated in preparing this contract. It must be construed as if the parties were joint authors, and it is not to be construed against one party as if that party or that party’s lawyer were the sole or major author of the agreement.

30. INDEPENDENT LEGAL ADVICE

Each party acknowledges that he or she

(1) (a) has had independent legal advice;

(b) understands his or her respective rights and obligations under this contract; and

(c) is signing this contract voluntarily.

(2) (a) the Intended Wife acknowledges that the contents of the within written contract have been interpreted to her from the English language to the Romanian language, and that she has fully understood the same.

Circumstances surrounding the signing of the Marriage Contract

[17] The parties are 14 years apart in age. In 1996, the Applicant husband was 42 years old and had been twice married and divorced. The Respondent wife was 29 years old and had never been married. She was born and raised in Romania. This was her first time in North America. The Respondent’s wife visa was set to expire on October 12, 1996. The marriage contract was signed on September 27, 1996. The parties were married on November 2, 1996.

[18] The Respondent wife testified that 2 weeks prior to the expiry of her visa, the Applicant husband told her for the first time that she would have to sign a marriage contract as a condition of the marriage. The Applicant husband states that he told her about this requirement first in Romania in December 2005 and again when she came to Canada in July 1996.

[19] The Applicant husband retained a lawyer on behalf of the Respondent wife who had rich experience in family law matters, Albert Diniz. Mr. Diniz was retained to provide the Respondent wife with legal advice on the proposed marriage contract and negotiate its terms on her behalf with the Applicant husband’s lawyer, Robert Kostyniuk. The Applicant husband also retained a Romanian interpreter on behalf of the Respondent wife, Christina Samanis, to translate the proposed marriage contract and the legal advice for her.

[20] Mr. Diniz was called as a witness on behalf of the Applicant husband. He answered questions candidly and directly and I accept his testimony. He does not recall the specifics of this case and he no longer has any file notes. His correspondence from the time in question, however, is informative.

[Original on Albert Diniz, LLB. Letterhead]

September 17, 1996

Adina Stefan

Etobicoke

Ontario

STATEMENT OF ACCOUNT

FEES

TO: Fees for reviewing draft of the

marriage contract prepared by your

intended spouse’s solicitor,

attendance on you, reviewing the

said contract with you with the

assistance of a Romanian interpreter,

advising you on the contents of the

contract, especially with regard to

your interests, reducing my advice to

writing, and generally acting on

your behalf in the matter $ 300.00

G.S.T. (7%) $ 21.00

TOTAL FEES $ 321.00

DISBURSEMENTS NOT SUBJECT TO G.S.T.

TO: Interpreter’s agreed charges $ 120.00

TOTAL FEES AND DISBURSEMENTS $ 441.00

With Compliments

(signed by)

Albert Diniz

G.S.T. Registration No. R 132452400

E & O E

[Original on Albert Diniz, LLB. letterhead]

September 17, 1996

Kostyniuk & Abogado

Barristers & Solicitors

Suite 612 Via Fax: (416) 364 4631

390 Bay Street

Toronto, Ontario

M5H 2Y2

Att: Robert N. Kostyniuk

Dear Mr. Kostyniuk:

Re: Marriage Contract

Awni Shair and Adina Stefan

I have been retained by Ms. Adina Stefan in the above matter, and have reviewed with her the marriage contract that was prepared by you on behalf of your client, Mr. Shair.

I have the following comments on the contract as drawn:

1. Page 2 section 1 (1) (h)

The matrimonial home is not described in the section on FAMILY RESIDENCE, as is stated in this section. This will need to be done.

2. Page 3 section 3 (2) (b) (ii)

Given the provision in section 17 (4) on page 10 for time limited support, this section will have to be made subject to section 17 (4).

3. Page 6 section 12

See #1 above – a description of the matrimonial home/family residence needs to be included.

Section 52 (2) of the Family Law Act renders unenforceable any provision that purports to limit a spouse’s rights to a matrimonial home.

4. Page 7 section 14 (2)

The intended husband will provide the intended wife with all medicals, and other necessities of life, until she is self-sufficient.

5. Page 8 section 15

I have advised my client that this section, as drafted, is not acceptable. The section purports to deprive my client of all her rights to custody of any child/children that the parties may have. I have, of course, advised my client of the fact that the law requires that, in matters of custody, it is the best interests of the child that is the determining factor.

My client is mindful of the cultural significance referred to in this section, and the difficulty that your client has had in the past on this matter.

I propose that sections 15 (2) and (3) be amended to read as follows:

(2) If the parties are the natural or adoptive parents of a child or children, and a separation occurs, the parties agree that the issue of custody of the child/children shall be determined on the basis of the best interests of the child/children.

(3) For the purpose of determining the best interests of the child/children, the intended wife acknowledges and recognizes:

(a) that the intended husband has all the attributes of a good and caring father, with experience in the raising of a child.

(b) that the intended husband is not an unfit person and that, prima facie, the best interests of the child/children would not be unduly affected if the parties had joint custody of the child/children.

(c) that it is of cultural significance that, prima facie, the custody of the child/children should be the responsibility of the intended husband.

(4) In the event that the child/children is/are placed in the custody of the intended husband, both parties acknowledge that the intended wife should have equal responsibility for the care and raising of the child/children, equal access to all relevant records regarding the child/children, and that she would be consulted in all matters affecting the welfare and wellbeing of the child/children, including, but not limited to, the health and education of the child/children. The intended wife will also be provided with, and have free access to, all relevant records regarding the child/children, and that her views and wishes regarding the child/children would be given due and serious consideration. She is to be wholly involved in the raising of the child/children, and shall have extensive access, with up to and equal tie with the child/children.

6. Page 9 section 17 (1) and (2)

See my comments in paragraph 2 above.

7. Page 10 section 17 (4)

Add “Notwithstanding anything to the contrary hereinbefore contained,” at the beginning of this section.

Delete the phrase “provided that the wife is not guilty of a matrimonial offence”.

8. Page 11 section 20 (3)

The contract as drawn does not contain the section CONTENTS OF MATRIMONIAL HOME. Kindly include the same.

9. Page 14 section 30

As you are aware, my client has recently immigrated from Romania. She does speak English reasonabl[y] well. However, to ensure that she fully understood the contents of the contract, and its importance, I used the assistance of a Romanian interpreter. I would request that the present contents of the section be numbered (1), and that an additional subsection be added as follows:

“(2) The intended wife acknowledges that the contents of the within written contract have been interpreted to her from the English language to the Romanian language, and that she has fully understood the same.”

I trust that you will find the above proposed changes in order, and I look forward to receiving an amended copy at your earliest convenience. If you wish to discuss any of the proposed changes, I would be glad to do so.

Yours truly

[Original signed by]

Albert Diniz

c.c. Client

[Letterhead of Kostyniuk & Abogado LLP]

September 24,1996

VIA FAX ONLY (416) 234-0154

Mr. Albert Diniz

Suite 303

5415 Dundas Street West

ETOBICOKE, Ontario

M9B 1B5

Dear Sir:

RE: SHAIR and Stefan –

Marriage Contract

Our file No: S038201

We have yours of September 17, 1996 and have amended the draft Marriage Contract as follows:

1. The address of the matrimonial home is added in paragraph 12(1), but the additional words “this will apply to any successive family residence registered solely in the Intended Husband’s name” has consequently been added to 12(2). The parties intend that the present family residence, and any successive family residence, will be owned, both titular and equitably, as registered on title, or otherwise as documented by collateral agreement. The right to possession is intended to be limited, despite the provisions of Section 52(2) of the Family Law Act. Although unenforceable, the provisions limiting the wife’s future right to possession in the event of a marriage breakdown would have strong persuasive effect.

2. Section 17(4) [h]as been amended in accordance with your recommendation.

3. See 1) above.

4. Done.

5. The future custody of any children born of the marriage remains a matter of primary concern to our client. He is aware of the provisions in the relevant provincial and federal legislation concerning the best interests of the child(ren). Nevertheless, given his previous experience, he is adamant that his wide cede to him the primary right to custody to any children born of the marriage. He is fully aware that these provisions are not chiseled in stone, but nevertheless would have a persuasive effect upon a judge determining the issue of custody should that become a problem in the future. We have asked our client to re-visit Section 15 and provide final instructions within the next day or so. For the moment, Section 15 stays as drafted.

6. See point 2) above.

7. See point 2) above.

8. Paragraph 20(3) has been deleted in its entirety. It is intended that the contents be governed by paragraphs 3 (2)(b)(i) and 10.

9. 30(2) has been added.

Enclosed is a copy of the revised Marriage Contract. Any agreed changes to page 8 await our client’s instructions.

Yours very truly,

KOSTYNIUK & ABOGADO

[Original signed by]

Robert N. Kostyniuk

RNK/sg

Encl.

c.c. Mr. Awni Shair

D:\WPDOCS\SHAIRMAR.LET

[Original on letterhead of Albert Diniz, LLB.

September 25, 1996

Adina Stefan

14 Jopling Avenue South

Etobicoke, Ontario

M9B 3P5

Dear Ms. Stefan:

Re: Separation Agreement

I enclose herewith a copy of a letter dated September 24, 1996 from Mr. Kostyniuk, the contents of which are self-explanatory, as well as a copy of the amended marriage contract that was sent with his letter.

I would request that you review the letter and the amended contract in detail.

You will note that, subject to what is stated below, in general, the proposals that I made in my letter of September 17, 1996 have been accepted.

The areas that still are in contention/have to be resolved are as follows:

1. The matrimonial home

Mr. Kostyniuk proposes that you will at no time in the future be entitled to any interest in the present matrimonial home and any future matrimonial home that may be registered in Mr. Shair’s sole name. I have pointed out to you, as well as to Mr. Kostynick, what the law is on this matter.

2. Custody

Mr. Kostyniuk is awaiting instructions from Mr. Shair on my proposals. Until he receives instructions to the contrary, the provisions as to custody are to remain the same. I will contact you as soon as I hear from Mr. Kostyniuk further on this, once he has had an opportunity to take instructions from his client.

3. “Matrimonial Offence”

I proposed that the provision disentitling you to support for the limited period of three months, if you are guilty of a matrimonial offence, be deleted. You will note that in his letter to me (paragraph numbered 7, as read with paragraph numbered 2), Mr. Kostyniuk states that the agreement has been amended in accordance with my recommendation. However, I note that the amended draft agreement still contains the phrase that I requested be deleted. I trust that this is an oversight on the part of his office. The offending phrase can be deleted and the deletion initialed by all parties.

While I await Mr. Kostyniuk’s response to the custody issue, I would request that you give due thought to the issues of the matrimonial home and custody, bearing in mind what I discussed with you during our meeting.

Yours truly

[Original signed by]

Albert Diniz

[Original on Kostyniuk & Abogado letterhead]

September 27, 1996

VIA FAX ONLY (416) 234-0154

Mr. Albert Diniz

Suite 303

5415 Dundas Street West

ETOBICOKE, Ontario

M9B 1B5

Dear Sir:

RE: SHAIR and Stefan –

Marriage Contract

Our file No: S038201

Your client will be attending at your offices with 4 Marriage Contracts, executed by Mr. Shair and the writer. They are in the final form acceptable to Mr. Shair, and specifically contain the following terms:

1. Section 15 remains as initially submitted. Mr. Shair is aware of the problems with enforcement, should that ever become necessary.

2. Section 17(4) remains as initially submitted. If Ms. Stefan separates from Mr. Shair and is guilty of a matrimonial offence, she loses her 3 months of financial support. Mr. Shair refuses to strike the last sentence.

3. Section 2(3) is amended to reflect the probability that the marriage will not occur before October 13, 1996.

Yours very truly,

[Original signed by]

Robert N. Kostyniuk

RNK/sg

c.c. Mr Awni Shair

[Original on letterhead of Albert Diniz, LLB.

September 27, 1996

Adina Stefan

14 Jopling Avenue South

Etobicoke, Ontario

M9B 3P5

Dear Ms. Stefan:

Re: Separation Agreement

I refer to my letter of September 25, 1996 as well as to our meeting on September 17, 1996 at my office, at which time Ms. Christina Samanis, a Romanian interpreter, was also present, to assist you in understanding the Marriage Contract and my discussions with you.

I wish to put on record my advice to you that the contract, as drafted was unacceptable, and required to be amended. You indicated that you wished to sign the contract that day, as drafted despite my pointing out to you that there were numerous terms that were certainly not in your best interests, and indeed were contrary to family legislation, and the spirit of such legislation. I am, in particular, referring to the provisions relating to the matrimonial home and the children.

I was able to get you to agree (albeit reluctantly) to my attempting to have the contract amended in accordance with my advice to you.

As you are aware, Mr. Kostyniuk agreed to have the agreement amended to some extent, and I forwarded to you a copy of his letter to me on that, as well as the amended contract. However, Mr. Kostyniuk was adamant that the provision relating to the matrimonial home be maintained as originally drafted. He was to seek his client’s instructions on the custody issue.

I have now heard from Mr. Kostyniuk, and attach herewith a copy of his letter dated today. You will note that Mr. Shair is not prepared to accept any amendment to section 15 – the custody provisions.

Furthermore, Mr. Kostyniuk informs me that the “matrimonial offence” provision is to remain as originally submitted. It appears that paragraph 7 of his letter was intended to refer only to the first recommendation contained in paragraph 7 of my letter of September 17, 1996 and NOT to the second part dealing with the matrimonial offence provision.

Please note also the change to the intended date of marriage.

Mr. Kostyniuk informs me that you are to bring to my office 4 engrossed copies of the contract which still contains:

(a) a provision purporting to deprive you of your rights to the present matrimonial home and to any future matrimonial [home] that may be registered in Mr. Shair’s name;

(b) the “matrimonial offence” provision; and

(c) the same custody provisions that appeared in the initial contract.

My advice to you was, and still is, that you should not sign the contract as drafted.

However, despite my advice to you, you are insistent on signing the contract as it now stands and that you want to sign the contract without any further delay. You indicated to me that over the period of time that you have known Mr. Shair he has proved to be very reliable and that you do not expect any problems with your relationship with him AND that even in the, hopefully unlikely, event that there are problems, you are confident that he will be fair and conscientious in his dealings with you.

I am presenting this letter to you in advance of your signing the contract, in the hope that you will once again reconsider your position. You indicated to me that you do not require the contents of this letter, and that of my letter to you of yesterday, to be interpreted to you. I, on my part, am satisfied that you have understood the same. However, if you still do require interpretation, I can make arrangements for the same.

Yours truly

[Original signed by]

Albert Diniz

[Original on Albert Diniz letterhead]

November 20, 1996

Adina Stefan

14 Jopling Avenue South

Etobicoke, Ontario

M9B 3P5

Dear Ms. Stefan:

Re: Marriage Contract

I enclose herewith, for your records and retention, a copy of the marriage contract that has now been signed by all parties, and initialed on all pages.

This now concludes my involvement in this matter.

I wish to take this opportunity of thanking you for using my services herein, and to wish you all the very best for the future.

Yours truly

[Original signed by]

Albert Diniz

[21] Mr. Diniz also executed a Certificate of Solicitor dated September 27, 1996 wherein he certifies that he is solicitor to the Respondent wife and that he saw her sign the marriage contract in his presence; he subscribed his name as a witness to her signature. He certifies therein that when the Respondent wife signed the marriage contract she “understood its nature and consequences and signed voluntarily”.

[22] Upon reviewing his correspondence, Mr. Diniz testified that his opinion as expressed to the Respondent wife was that she should not sign the marriage contract. He explained that the contract was contrary to her rights as protected under family law legislation and the spirit of those rights. Mr. Diniz stated that the Applicant wife decided she wanted to sign the marriage contract notwithstanding his advice to her. He testified that while terms of the contract might not have been fair to her, “she went into it with open eyes”. He confirmed that he advised her not to sign it, but that she wanted to sign it because she trusted the Applicant husband and believed him to be a good man.

[23] The Respondent wife argues that Mr. Diniz’s evidence should not be accepted. She submits that his evidence is put forward only to protect himself against a claim of solicitor’s negligence by the Applicant wife. There is no evidence to demonstrate this submission and I do not accept it. As noted above, Mr. Diniz was credible in his testimony that he had no direct recollection of the events almost 19 years ago, but rather refreshed his memory by the clear language of the correspondence written at the time of the negotiating and signing of the marriage contract. Further, Mr. Diniz’s evidence is consistent with that of Ms. Samanis.

[24] Ms. Christina Samanis also testified on behalf of the Applicant husband. She too was forthright with her answers and credible as a witness. Ms. Samanis testified that she interpreted the marriage contract for the Respondent wife at the offices of Mr. Diniz, with only her, Mr. Diniz and the Applicant wife present. Prior to this case, she had been interpreting and translating from English to Romanian for 20 years. Romanian is her first language. English is her second language. She remembered this case specifically as the custody terms in the marriage contract troubled her. She stated that she read every line of the marriage contract to the Respondent wife and double checked that she understood every word as translated.

[25] Ms. Samanis testified that she also translated Mr. Diniz’s legal advice to the Respondent wife that it was not in her best interests to sign the marriage contract. She confirmed with the Respondent wife in Romanian that she was sure she wanted to sign the marriage contract even though terms therein were troubling. The Respondent wife indicated to her that she was sure she wanted to sign the contract because the Applicant husband was a good man. Ms. Samanis testified that at no time did the Respondent wife indicate that she was in fear, under duress or being forced to sign the marriage contract. Rather, the Respondent wife said that she wanted to sign the marriage contract, even after it was translated line by line and she heard and understood the advice of Mr. Diniz not to sign it.

[26] The Respondent wife’s evidence is that she did not understand the nature or the consequences of the marriage contract. She states that she had no idea what a marriage contract was or the purpose of making one. She signed what was put in front of her as she believed in a traditional marriage wherein a man would take care of his wife and all of the family’s financial needs while a woman would take care of the children, cook, clean and support her husband. She just wanted to get on with the marriage and that she trusted the Applicant husband. Further, she stated that she did not receive any of the above noted letters from Mr. Diniz.

[27] I have serious concerns about the Respondent wife’s credibility on the issue of her understanding the nature and consequences of the marriage contract. Ms. Samanis’ evidence and the objective history, as documented in the letters, above shall be preferred and accepted wherever it conflicts with the evidence of the Respondent wife. For example:

1. The Respondent wife testified that she recalls that the Applicant husband was in the room at the time she went through the marriage contract line by line with the interpreter prior to signature. Ms. Samanis testified her clear recollection that the Applicant husband was not in the room when she translated the marriage contract for the Respondent wife. While Mr. Diniz could not recall the specific event, he was adamant that he would never have a party adverse in interest in the room while he was explaining the marriage contract.

2. The Respondent wife testified that she was at Mr. Diniz’s office only once, to have the marriage contract interpreted and then to sign the marriage contract on September 27, 1996. This is entirely inconsistent with the correspondence that clearly reflects an earlier meeting on September 24, 1996. Moreover, in her affidavit sworn April 24, 2015 in the context of these proceedings, she deposed that she “attended all meetings” with Mr. Diniz. When presented with this inconsistency in cross-examination, she stated that her affidavit contained a grammatical error. She insisted there was only one meeting to review the contract with the interpreter and to sign it.

3. The Respondent wife testified that at no time did Mr. Diniz explain what rights she was waiving by signing the document, contrary to his clearly stated assertions as set out in the above noted letters.

4. The Respondent wife testified that she did not understand that a contract could be negotiated, contrary to the clear example of negotiation set out in the correspondence above. Mr. Diniz’s correspondence further demonstrates that the Respondent wife was reluctant to agree to his negotiating efforts. While the negotiations were not substantively successful, there was nonetheless an attempt by Mr. Diniz to change the contract in the best interests of the Respondent wife by Mr. Diniz. When his attempts were unsuccessful, he advised the Respondent wife not to sign the contract and she chose to do so in any event.

5. The Respondent wife testified that she was unaware the contract was not favourable to her. This is inconsistent with Mr. Diniz’s assertion as documented in the correspondence set out above. It is also inconsistent with the Respondent’s wife’s pleading at paragraph 7 wherein she pleads that her lawyer advised her that the contract was unfavourable to her. The Respondent wife’s testimony at trial on this issue is further inconsistent with the assertion of Ms. Samanis who recalls translating into Romanian the noted opinion of Mr. Diniz for the Respondent wife and asking her if she was certain she was comfortable signing the marriage contract given terms therein were not in her best interests.

6. The Respondent wife stated that at the time she did not understand the English language. The correspondence from Mr. Diniz documents that she spoke English reasonably well.

7. The Respondent wife testified that she did not receive any of the letters set out above. The last paragraph of Mr. Diniz’s letter to her of September 27, 1996 indicates that he presented the letter to her prior to her signing the marriage contract.

[28] The correspondence set out above from Mr. Diniz and the testimony of Ms. Samais together evidence that:

1. The Respondent wife was duly informed that the provisions of the marriage contract she was being asked to sign deprived her of her legal entitlements under family law legislation and were contrary to the spirit of the legislation;

2. The Respondent wife was duly counseled that, because of this, she should not sign the marriage contract. This counsel was translated into Romanian for her; and

3. The Respondent wife chose to ignore the counsel and sign the marriage contract believing that it did not matter if terms therein deprived her of her legal entitlements as the she believed that the Applicant husband was a good man and that he would be “fair and conscientious” if there were any problems in the relationship.

Conduct Post Marriage Contract

[29] After signing the marriage contract, the Respondent wife states that the parties did not discuss the contract again until recently as a result of this proceeding.

[30] The parties had a traditional marriage. For the most part, the Applicant husband contributed financially while the Respondent wife took care of the home. The Applicant husband paid for all housing expenses, including mortgage charges and property taxes. He paid for all living expenses as well, including groceries, dental, gas and clothing. He supported the Respondent wife’s personal needs and sent money to the Respondent wife’s family when she asked him to do so. The Applicant husband cooked a little, but the Respondent wife was primarily responsible for the household duties.

[31] The family residence at the time of the signing of the marriage contract was 14 Jopling Avenue in Toronto. As contemplated by paragraph 12 of the marriage contract, the family residence was sold and the Applicant husband retained the entire value. As further contemplated by paragraph 12 of the marriage contract, the Applicant went on to purchase 2 successive family residences, registered them solely in his name and retained the respective entire values. Details of these transactions are as follows:

1. The Applicant husband purchased 14 Jopling Avenue in July 1986 for $120,000. A mortgage was registered against the property in 1991 for $120,000. The property was sold in May 2001 for $245,000. The Respondent wife signed the transaction papers as a consenting spouse. The transaction closed with the assistance of the vendor’s lawyer, Igor Bobrow. The proceeds of sale were distributed to the Applicant husband.

2. The Applicant husband purchased 12 Jopling Avenue in Toronto in May, 2001, for $385,000 and title was registered solely to him. A mortgage was registered against the property at the time of purchase for $250,000. The Respondent wife signed the mortgage charge as a consenting spouse. 12 Jopling Avenue was sold in July 2004 for $419,500. The proceeds of sale were distributed to the Applicant husband. Igor Bobrow facilitated both legal transactions.

3. The Applicant purchased 10 Appleby Court in Toronto in December 2003 for $585,000 and title was registered solely to him. A mortgage was registered against the property at the time of purchase for $438,750. The Respondent wife signed the mortgage charge as a consenting spouse. Igor Bobrow again assisted with the legal transaction. As of May 15, 2015, the mortgage is $438,700.

[32] The Respondent wife testified that she provided her spousal consent noted above, as a dutiful wife and did not fully appreciate what she was signing. She does not recall if she signed the documents in Mr. Bobrow’s office. She states that any attempt by her to question the respective transactions was met with verbal abuse from the Applicant husband who told her it was none of her business. The Applicant husband denies that he was verbally abusive. He states that it was the Respondent wife that was verbally abusive to him. He further denies that he ever said that her consent as a spouse was none of her business. Rather, he states she spoke to Mr. Bobrow about the issue prior to signing.

[33] At the time of signing of the marriage contract, the Respondent husband owned two businesses: A & C Repair Ltd. and Shair Investments Ltd. A & C Repair Ltd. was the business through which he operated his auto repair work. It was a small business. He was the only mechanic. A & C Repair Ltd. was housed in a garage located at 3875 Bloor Street West, Toronto (“the Bloor Street property”). The Bloor Street property was purchased in February 1994, for $245,000 by Shair Investments Ltd. Shair Investments Ltd.’s only asset is the Bloor Street Property. The purchase price was based on an anticipated environmental clean-up cost of $12,000, as assessed for the Applicant husband by an environmental company prior to his purchase. After purchase it was determined that the clean-up cost was closer to $75,000. The Applicant husband did not pay the further clean up amounts as charged. The environmental company subjected the Bloor Street property to a construction lien in May 1995. Litigation ensued and was eventually settled.

[34] In 2001, the Applicant husband wound up A &C Repair Ltd. He leased the Bloor Street property through Shair Investments Ltd. to a company called Bloor Street Auto. He had no affiliation or control of the ownership in Bloor Street Auto. He worked for Bloor Street Auto as an employee, however, until his retirement in 2008.

[35] In 2013, the Applicant husband received an offer to purchase the Bloor Street property for $1.4 Million, conditional upon the completion of environmental due diligence. The offer was rescinded in furtherance of the results of the due diligence, as it was determined that the property remained contaminated and not available for new construction. There have been no offers to purchase the property since the 2013 offer.

[36] The Applicant husband continues to lease the Bloor Street property to Bloor Street Auto through Shair Investments Ltd.

[37] The Respondent wife spent time at the Bloor Street property regularly from the time she arrived in Canada in July 1996 through to 2007. Commencing in July 1996, she would bring food for the Applicant husband on her bicycle at lunch time and visit with his customers. According to her resume, the Respondent wife was employed for a few hours a week at the Applicant husband’s business from 1997-2001 and then with Bloor Street Auto from 2001-2007 performing “general clerking, computer use, banking deposits, customer service”. She was paid for her services.

[38] It was not until 2005 that the Respondent wife strayed from her household responsibilities for any great length of time, to take a diploma course in social services at Humber College. She received a grant from the school and the Applicant husband contributed the rest of her costs for attending the program. She continued her household duties while pursuing her studies.

[39] After working in social services from 2007-2008, the Respondent wife commenced employment in the beauty industry. In 2012, she began working full time for the first time since coming to Canada in 1996. It was only then that she began contributing to some household expenses providing the Applicant husband with modest monthly amounts for utilities and car insurance and supporting her personal needs. She presently earns $17/hour as a beauty advisor with Sears Canada.

[40] As contemplated by paragraph 13 of the marriage contract, throughout the marriage, without exception, the parties kept their property separate. After 4 years of living in Canada, the

Respondent wife sold her condominium in Romania. She maintained all of the net proceeds of sale. She inherited vacant land in Romania and continues to own it outright. The parties also maintained separate bank accounts.

Law

[41] Section 56(4) of the Family Law Act provides that 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.

[42] Subsection 56(4)(c) of the Family Law Act codifies the common law position that ordinary contract law principles apply to domestic contracts. Under the law of contract, contracts can potentially be set aside if:

• there was undue influence at the time of signing;

• there was duress at the time of signing;

• unconscionability;

• there was a mistake as to an essential element of the contract;

• there was fraud or material misrepresentation; or

• there was a repudiation of a term in the contract.

[43] A finding that a party has violated a provision of s. 56(4) of the Family Law Act does not automatically result in the nullification of the contract. Rather, a trial judge must determine whether it is appropriate, in the circumstances, to order that the contract be set aside. This is a discretionary exercise (LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 33).

[44] The party who seeks to set aside a marriage contract carries the burden of proof. That party must first show that his or her case comes within s. 56(4) of Family Law Act and then persuade the court to exercise its discretion in his or her favour to set aside a contract or a provision in it (LeVan v. LeVan, at para. 177).

Analysis

[45] The Respondent wife submits that her case comes within s. 56(4) of the Family Law Act such that the marriage contract should be set aside.

(i) s.56(4)(b) – failure to understand the nature or consequences of the marriage contract

[46] The Respondent wife asserts that she did not understand the nature or consequences of the marriage contract. The evidence, however, does not support this assertion. Rather, as noted above, the documentary evidence in the form of letters from Mr. Diniz and the testimony of Ms. Samanis confirm that both the nature and the consequences were explained to her. She was advised that by signing the marriage contract she was giving up rights to which she was legally entitled to and that she should not to sign it. She chose to do so nonetheless, as she trusted that the Applicant husband was a good man and would take care of her.

[47] Throughout the marriage, the Respondent wife conducted herself in accordance with the property terms of the marriage contract. The family residence was sold on two occasions. On each occasion she was content to permit the Applicant husband to retain the entire value, including any enhanced value, of the family residence and the entire proceeds of sale. She permitted the Applicant husband to register two successive family residences solely in his name and she provided her spousal consent for the mortgages. She also retained the entire proceeds of sale from her condominium in Romania.

[48] The nature and consequences of the terms of the marriage contract were explained to the Respondent wife in her native language. She was advised that terms of the contract were contrary to the legislative scheme and her rights thereunder. The Respondent wife’s conduct throughout the marriage was consistent with an understanding that the parties agreed to keep their property separate as if they were unmarried. I have concluded, therefore, that the Respondent wife has not satisfied her onus of proving her circumstances fall within s56(4)(b) of the Family Law Act

(ii) s.56(4)(c) - undue influence and duress at the time of signing the marriage contract

[49] The Respondent wife further asserts that she signed the marriage contract under duress and with undue influence. Again, the evidence does not support this assertion. Her fiancé visa was to expire on October 26, 1996. The Respondent wife had to be married or return to Romania. If she chose not to sign the contract, as was recommended to her by Mr. Diniz, however, it was open to her to return to Romania.

[50] The Respondent wife had an excellent relationship with her father and brothers. She had access to at least $5,000 in liquid funds and therefore had the financial means to purchase a ticket back to Romania in 1996 if she chose to return. The condominium she owned in Romania was left vacant for 4 years after she was married and was available to her to return to in 1996. She testified that she left her employment on good terms and that her work there was valued. Upon receiving the advice from Mr. Diniz, she made no efforts to ascertain whether a job was available to her in the event she returned to Romania. She further made no attempt to ascertain if she could return to her studies mid-term. Further, she made no attempts to extend her fiancé visa and further postpone the marriage for further negotiations on the intended marriage contract. Rather, she voluntarily chose to knowingly sign a marriage contract, terms of which she was advised were unfair to her.

[51] As she testified, the Respondent wife did not want to return to Romania without being married as she was embarrassed to do so, having told her family and friends of her plans and having had a celebration of the relationship prior to her departure. Rather, she decided to ignore the voice of her counsel and was reluctant to even permit him to attempt to negotiate in her best interests. She wanted to sign the marriage contract as presented no matter the terms.

[52] Ms. Samanis has a clear recollection of translating the marriage contract for the Respondent wife and translating for her Mr. Diniz’s advice to her not to sign it. Her recollection stems in part from the custody language she described as memorable given its strict terms against the Respondent wife as a potential mother. Her objective evidence was that she saw no signs of duress or undue influence. Rather, she saw a woman anxious to be married and willingly prepared to ignore the advice of her counsel not to sign the marriage contract in the form presented to her.

[53] There is no evidence that the Respondent wife was under any duress or undue influence to sign the marriage contract. There is no credible evidence demonstrating that she was subject to intimidation or illegitimate pressure to sign the marriage contract (Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699, at para. 53). Rather, the evidence demonstrates that she chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither. I have concluded, therefore, that the Respondent wife has not satisfied her onus of proving she was subject to undue influence or duress in accordance s.56 (4)(c) of the Family Law Act.

(iii) s.56(4)(a) – failure to disclose significant assets, debts or liabilities when the marriage contract was made

[54] Thirdly, the Respondent wife asserts that the Applicant husband failed to disclose to her his significant assets, or significant debts or other liabilities, existing when the marriage contract was made. She admits that she was told by the Applicant husband that he was a mechanic and that he owned a home in Canada. The Applicant husband states that he also told her that he owned his own business (A & C Repair Ltd.) and the land upon which it was situated (the Bloor Street property). He testified that he told her these details while in Romania in December 1995 and again when she came to Canada in July 1996. He further states that prior to the marriage the Respondent wife knew the value of land upon which his business was situated. She noticed his lawyer visiting the business and asked the reason for the visits. He fully explained to her the claim for lien against the Bloor Street property and the fact that he purchased the Bloor Street property for $245,000 based on an anticipated $12,000 environmental clean-up cost, but that the actual costs was $75,000.

[55] In Rick v. Brandsema 2009 SCC 10, [2009] 1 S.C.R. 295, the Supreme Court said the following about financial disclosure in the negotiation of a domestic contract. The court noted at para. 47:

[A] duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances. The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.

[56] In Levan, at para. 181, the court noted that section 56(4) places a positive duty on a party to a domestic contract to make complete, fair and frank disclosure of all financial affairs without the other party having to request it or take legal steps to compel disclosure (See also: Montreuil v. Montreuil, 1999 CarswellOnt 3853 (Ont. S.C.); additional reasons at: 2000 CarswellOnt 3566 (Ont. S.C.); affirmed: 2001 CarswellOnt 3464 (Ont. C.A.); Reinhardt v. Reindhardt, 2004 CanLII 35095 (ON SC), 2004 CarswellOnt 3275, 8 R.F.L (6th) 340 (Ont. S.C.); Quinn v. Keiper (2007), 2007 CanLII 45714 (ON SC), 87 O.R. (3d) 184 (Ont. S.C.), affirmed on other grounds: 2008 ONCA 6562).

[57] It cannot be said that the Applicant husband provided complete, fair and frank disclosure of his relevant financial information. Clearly he did not. The marriage contract refers only to his job as a mechanic, not a business owner, and his ownership of a family residence, not a commercial building. It is not enough that he told the Applicant wife he owned his home and worked as a mechanic. It is further not enough if he told her he owned the Bloor Street property and his own mechanic business. The Applicant husband never disclosed the market value of his home, the market value of the Bloor Street property, or any mortgages thereunder. He never disclosed the value of his companies, or his belongings including his tools which he values at $25,000-$30,000. The Applicant husband did not tell the Respondent wife anything about his income and he did not produce his income tax returns or bank statements to her or Mr. Diniz. I have concluded, therefore, that the Respondent wife has satisfied her onus of proving her circumstances fall within s. 56(4)(a) of the Family Law Act.

[58] Having found a violation of s. 56(4)(a) of the Family Law Act, I must now consider my discretion as to whether or not to set aside an agreement for lack of disclosure. The burden of proof remains with the Respondent wife as the party seeking to set aside the contract to persuade the court to exercise its discretion in its favour (Quinn, at para. 47).

[59] There is no evidence of inaccuracies or misrepresentation by the Applicant husband. He simply did not disclose his assets, debts and liabilities in a meaningful way. Both parties signed a waiver of further financial disclosure within the marriage contract. There is no evidence of Mr. Diniz requesting financial disclosure on the Respondent wife’s behalf and no evidence of the Applicant husband’s refusal to such a request, even though other changes to the marriage contract were requested and refused. The parties governed themselves in accordance with the marriage contract during their marriage, particularly as it related to the family residences. The Respondent wife did not move to set aside the marriage contract until 18 years after its signature and only in response to the Applicant husband’s application for divorce.

[60] Further significant to the exercise of this court’s discretion, is that the circumstances of this case demonstrate that further disclosure would not have materially affected the outcome of the marriage contract. This is distinguished from Levan, at para. 226, where Backhouse J. concluded that had the husband disclosed the value of his assets and income, the marriage contract would likely have been more favourable to the wife or that she would have refused to sign it. I make this conclusion for the following reasons, taken together:

1. Mr. Diniz explained the terms of the marriage contract to the Respondent wife. Ms. Samanis, a Romanian interpreter, assisted her in her understanding of the marriage contract and Mr. Diniz’s discussions with her.

2. Paragraph 22 of the contract clearly stated (1) Each party has fully and completely been apprised of the necessity of disclosure of all significant assets, and significant debts or other liabilities existing at the date of this contract. (2) Each party waives disclosure, recognizes and accepts the right to privacy. (3) Each party is satisfied that the information received from the other is sufficient, and each acknowledges that there are no requests for further information. There is no evidence that the Applicant wife took issue with this language or the representation herein that that each party is satisfied that the information received is sufficient. At the very least the Respondent wife knew that the Applicant husband worked and earned an income. No disclosure of that amount of that income was requested.

3. Mr. Diniz’s advice to the Respondent wife was that the marriage contract, as drafted, was unacceptable and required amendment. She ignored the advice and told him that she wished to sign the contract that day, as drafted, despite him pointing out to her that there were numerous terms that were certainly not in her best interests, and were contrary to family legislation.

4. Mr. Diniz was able to get the Respondent wife to agree “albeit reluctantly” to him attempting to have the contract amended. There were no requests made for disclosure between Mr. Diniz and counsel for the Applicant husband.

5. The attempts by Mr. Diniz to amend the marriage contract were unsuccessful. The Applicant husband refused to amend the terms of the contract as they related to property, custody and marital offence/spousal support. There was little negotiation. Just a hard fast “no.”

6. Given the unsuccessful attempts at negotiations, Mr. Diniz again advised the Respondent wife that she should not sign the contract as drafted.

7. Despite his advice to her, the Respondent wife was insistent on signing the marriage contract as it stood without any further delay.

8. The Respondent wife indicated to Mr. Diniz that over the period of time that she had known the Applicant husband, he has proven to be very reliable and that she was confident that he would be fair and conscientious in his dealings with her. She was not concerned with the nature or the consequences of the marriage contract. She wanted to be married and she trusted the Applicant husband regardless of the nature and consequences of the marriage contract.

9. The Respondent wife admitted at questioning that even she had been told that the Bloor Street property was worth 1 million dollars she would have still signed the marriage contract because she was only interested in getting married.

[61] The Respondent wife understood the nature and consequences of the marriage contract. She received independent legal advice not to sign the contract. She chose to sign the contract voluntarily and expeditiously in any event without undue influence or duress, having been advised certain terms therein were unfair to her and contrary to the legislative scheme and her rights thereunder. Any attempts made by Mr. Diniz to materially amend the marriage contract on behalf of the Respondent wife were refused. Had the Respondent husband disclosed the value of his assets and income, the marriage contract would therefore likely not have been more favourable to the wife, nor would she have likely refused to sign it if there was a request to amend that was refused.

[62] In my view, it is therefore appropriate to exercise the court’s discretion to enforce the terms of the marriage contract independent of the breach of s56(4)(a), as the shortcomings in disclosure did not impact significantly upon the final agreement reached between the parties.

[63] Finally, the Respondent wife submits that the failure of the Applicant husband to disclose the sponsorship agreement to Mr. Diniz, or reflect the same in the marriage contract, is reason enough to set aside the marriage contract. While it has been held that sponsorship agreements must be given a higher priority than marriage contracts (Johnson v. Johnson, 2005 ONCJ 325, 2005 ONJC 325, 23 R.F.L. (6th) 46, at para. 22), and are not cancelled by a marriage agreement (Segal v. Qu, 2001 CanLII 28201 (ON SC), [2001] O.J. No. 2646, 17 R.F.L. (5th) 152), the 10-year obligation in the sponsorship agreement is not relevant to the case at hand, as it had expired by the time of separation.

(iv) Unconscionablity

(a) s.56(4)(c)

[64] The Respondent wife asserts that the terms of the marriage contract are properly set aside for unconscionability. It is the circumstances at the time of the drafting and signing of the contract that must be examined under section 56(4)(c) of the Family Law Act, in the context of unconscionability, not the results (Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 61).

[65] As set out by Blishen J. at paras. 64-66 of Toscano v. Toscano:

Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context (Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 43 [Brandsema]). The question to be asked is whether there were “any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation” (ibid, at para. 44).

Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of the mind, economically weaker or situationally weaker. Vulnerability may also arise due to a special relationship of trust and confidence (see Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at para. 33). However, the “mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties” (Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 82, [Miglin]).

In Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 at para. 12 (Ont. C.A.), the Ontario Court of Appeal states the question to be answered in determining unconscionability is whether there was inequality between the parties, or a preying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of the vulnerable. At para. 13 the Court notes it is: “not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability”.

[66] The Respondent wife was comparatively the more vulnerable party. She was new to Canada and her entry into the country was governed by a time-limited fiancé visa. The Applicant husband, however, did not exploit theses vulnerabilities. Rather, he took proactive efforts to diffuse them. He retained a lawyer and an interpreter for her to assist in the negotiation and execution of the marriage contract; to even out their respective positions as contracting parties and protect her interests as the less sophisticated party. Mr. Diniz served the Respondent wife well and advised her that certain terms of the marriage contracted deviated from family legislation and the spirit of the legislation. He counselled her not to sign it, as terms therein were unfair to her. She signed a marriage contract having been advised that certain terms therein were unfair to her. Yet, she now asks the court to set aside the marriage contract because terms therein are unfair to her. The Respondent wife voluntarily chose to ignore the advice from the person acting in her best interests. Her choice does not make the process unconscionable. I have concluded, therefore, that that the process surrounding the signing of the marriage contract was not such to warrant judicial intervention; it was not unconscionable.

(b) s. 33(4) of the Family Law Act

[67] The parties made submissions to the court with respect to s.33(4) of the Family Law Act and its application by the Ontario Court of Appeal in Scheel v. Henkelman, 2001 CanLII 24133 (ON CA), [2001] O.J. No. 55 (Ont. C.A.). The parties did not make submissions to the court with respect to s.15.2 of the Divorce Act, R.S.C., 1985, c.3 or its application by the Supreme Court of Canada in Miglin v.Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303.

[68] In comparison to Section 56(4)(c) of the Family Law Act, which examines unconscionability in the context of circumstances at the time of the drafting and signing of the contract, Section 33(4) of the Family Law Act examines unconscionability in the context of the results of the contract. Specifically, pursuant to section 33(4) of the Family Law Act, 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 section 33(1), if the provision for support or the waiver of the right to support results in unconscionable circumstances. Therefore, section 33(4) operates to remedy unconscionable circumstances arising from the waiver of support under a valid domestic contract.

[69] I have concluded above that the marriage contract is valid. While the Applicant husband failed to sufficiently disclose his assets, debts and liabilities in accordance with section 56(4)(a) of the Family Law Act, I found that the shortcomings in disclosure did not impact significantly upon the final agreement reached between the parties and it is therefore appropriate to exercise the court’s discretion to enforce the terms of the marriage contract independent of the breach of s.56(4)(a).

[70] I will now consider whether the waiver of spousal support under the marriage contract results in unconscionable circumstances. The Applicant husband submits that it does not, while the Respondent wife argues that the waiver of spousal support does result in unconscionable circumstances. As noted above, the waiver of support reads as follows:

17. RELEASE OF SPOUSAL SUPPORT DURING SEPARATION

(1) Where the parties have separated neither of them will have the right to receive support from the other for himself or herself during the period of separation.

(2) For any period or periods of separation each party waives all right to support for himself or herself and releases the other and the other’s estate from all claims to support for himself or herself, that he or she has or in her future may have under the Family Law Act, Divorce Act, and the Succession Law Reform Act, except as hereinafter provided.

(3) Each party acknowledges that in waiving the rights and giving the release in subsection (2) of this section

(a) each has considered his or her prospects in life against the possibility of change in circumstances, including radical or catastrophic changes such as career reversals, mismanagement of funds, illness and disability, rising costs and inflation; and

(b) each has signed this contract knowing that neither of them will have a right to receive support from the other or the other’s estate for himself or herself at any time or under any circumstances.

(4) Notwithstanding paragraph 3(2) (b) (ii), 17(1) and 17(2), if the parties separate, and the Wife is unemployed and without income, the husband shall assist the Wife in locating gainful employment, and shall financially assist the Wife for a period of up to 3 months, provided that the Wife is not guilty of a matrimonial offence.

[71] In Scheel v. Henkelman, 2001 CanLII 24133 (ON CA), [2001] O.J. No. 55 (Ont. C.A.), at para. 15, the Ontario Court of Appeal reflected on the meaning of “results in” under section 33(4) of the Family Law Act, noting that “An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application.” The court further discussed the definition of unconscionability in the context of section 33(4) of the Family Law Act noting at para. 19: whether "unconscionable" is used in a legal or non-legal sense, it can best be described as "something which is shocking, oppressive, not in keeping with a caring society". The Court of Appeal ultimately concluded that requiring the wife to live on her modest pension, while the husband had assets in the millions, would shock the conscience of the court.

[72] The Respondent wife came to Canada from Romania in 1996 at 29 years old. She was well established in Romania. She had a good job, her own apartment and was enrolled in studies to better her and secure her future. She left all of that behind to come to Canada to marry the Applicant husband. She ignored the advice of her counsel not to sign the marriage contract, as she believed that she would be married forever. She wanted and received a traditional marriage and by all accounts she enjoyed her role of caregiver to her husband. The Applicant husband received the care so willingly given and provided for the Respondent wife financially. The parties settled into their respective roles. The Respondent wife’s husband was her whole life for nine years until 2005, when the Respondent wife included part time studies to her household duties. Until then, she devoted her days to being a wife and caring for her husband, working a few hours at his business to be with him during the day and bringing him a warm lunch on her bicycle. It was only as recent as 2012, 16 years after the date of marriage, that the Respondent wife obtained full time employment.

[73] It is within this context that the Applicant husband relies on the waiver of spousal support in the marriage contract to deny the Respondent wife spousal support. In doing so, he minimizes her years of devotion to the marriage and his care. He ignores the years of her reliance on his financial support. He denies the lifestyle she enjoyed during the marriage and her inability, at least in the short term, to sustain a similar one on her own. Rather, he is content to abruptly end his financial support, refuse her continued financial care and justify this behavior by the waiver of support in the marriage contract signed so many years before.

[74] The parties’ intentions were set out in part at paragraph 14 of the marriage contract wherein it is stated that “Initially the Intended Wife will not have employment, and the Intended Husband will provide fully for the day-to-day support of the wife...” The parties’ marital relationship did not evolve as per their original intention, however. The Respondent’s wife financial dependence on the Applicant husband lasted far longer that the initial stage of their marriage. Instead of pursuing her own financial dependence, she devoted her time to his comfort and care. In turn, he supported her financial needs.

[75] This is distinguished from a change in circumstances as contemplated by section 17.3 (a) of the marriage contract. The parties’ circumstances did not change. No one lost their job, fell ill or sustained a disability preventing employment. Rather, the parties fundamentally altered their originally intended roles as husband and wife in favour of a traditional marriage wherein for 16 years after the date of the marriage, the Respondent wife relied fully on the Applicant husband for all her financial needs. As a result, what may have been a good faith bargain in terms of a waiver of spousal support when the marriage contract was signed, now shocks the conscious of the court and is unconscionable.

[76] For reasons set out above, I have concluded that it would result in unconscionable circumstances if the Respondent wife’s application for spousal support was prevented by the marriage contract. In accordance with section 33(4) of the Family Law Act, section 17 of the marriage contract is, therefore, set aside. The Respondent wife is permitted to pursue an application under section 33(1) of the Family Law Act for the provision of spousal support from the Applicant husband.

I will remain seized

[77] After 7 days of trial considering the preliminary issue of the enforceability of a marriage contract, I have concluded that the Respondent wife is permitted to pursue an application under section 33(1) of the Family Law Act for the provision of spousal support from the Applicant husband. The result from a procedural perspective is similar to a summary judgment motion that does not resolve the entire action. In my view, therefore, remaining seized of the outstanding triable issue between the parties would well serve both the goals of the Osborne Report and the underlying philosophies of the Family Law Rules, O. Reg. 114/99.

[78] The goals of the Osborne Report were articulated by Karakatsanis, J. at para. 78 of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 :

[the involvement of a single judicial officer throughout] saves judicial time since parties will not have to get a different judge up to speed each time an issue arises in the case. It may also have a calming effect on the conduct of litigious parties and counsel, as they will come to predict how the judicial official assigned to the case might rule on a given issue [p. 88].

[79] In D.G. v. A. F., ONCA 290, Lauwers, J. addressed the issue, speaking in the context of a motion judge who seized herself of a family law case as the trial judge who had seized himself had been transferred from the jurisdiction at paras 13-15:

However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seizeseiseizee herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).

In Norman v. Connors, 2010 ONSC 1975, [2010] O.J. No. 1564, at para. 34, Gordon J. noted that in non-unified Superior Court sites, litigants are sometimes denied the benefit of active case management as described in r. 39. Despite the lack of resources, he stated that the court must step in and impose case management, by relying on the general provisions of the Rules and the court’s inherent jurisdiction. This is particularly so in high conflict cases.

I would agree with this approach to case management. It permits reasonably quick access to justice before a judge who is familiar with the relevant facts and with the parties. It is proportionate, within the meaning of r. 2(3), since the frequent resort to the court in high-conflict cases would otherwise rapidly consume too many judicial resources, as judge after judge is forced to learn the details of an ever-burgeoning file.

[80] I heard evidence and submissions from the parties over 7 days of trial. I am now familiar with the parties and the relevant background, context and facts. Remaining seized of the outstanding triable issue is an efficient use of judicial resources and will serve the parties well from the perspectives of further costs, proportionality and access to justice.

Conclusion

[81] I agree with the statement made under oath by Mr. Diniz after he reviewed his correspondence on this file: while terms of the contract might not have been fair to the Respondent wife, “she went into it with open eyes”. The Respondent wife was advised in her native language that the marriage contract deprived her of her legal rights and was not in her best interests to sign. She ignored this advice and signed the contract because she wanted to get married. At that moment, despite the learned counsel’s advice that terms of the marriage contract

were unfair to her, she could not imagine a scenario wherein the Applicant husband would treat her unfairly. She was naïve and in love and she signed a marriage contract correctly described by Mr. Diniz to her as not in her bests interests, contrary to family legislation and contrary to the spirit of such legislation.

[82] The Applicant husband had been divorced twice at the time of the marriage contract. He was not naïve to the end of love, despite the feelings of forever at its beginning. He sought out to protect his pre-marital property, the custody of his unborn children and his obligations to support the Respondent wife in the event of a marriage breakdown. He retained her counsel and an interpreter and was intent to shield himself from the obligations of family legislation should his third marriage suffer the same fate of his prior two.

[83] The parties were married for many years. Contrary to their stated intention in the marriage contract, they continued to live a traditional marriage wherein each assumed a role of dependency, his to her personal support and hers to his financial support.

[84] The Respondent wife left all she had established in her native land to come to Canada, marry the Applicant husband shortly thereafter and devote many years of care to him and their home. That she would be left in economic hardship and disadvantage as a result of the marriage breakdown with no recourse to a consideration of spousal support, is not keeping with a caring society and properly shocks the conscious of the court. In these circumstances, judicial intervention is required to prevent an unconscionable result.

Disposition

[85] Order to go:

1. The marriage contract signed by the parties on September 27, 1996 is valid.

2. In accordance with section 33(4) of the Family Law Act, section 17 of the marriage contract signed by the parties on September 27, 1996 is set aside. The Respondent wife is permitted to pursue an application under section 33(1) of the Family Law Act for the provision of spousal support from the Applicant husband.

3. I will remain seized of the trial of the Respondent wife’s claim under section 33 (1) of the Family Law Act, for the provision of spousal support of the Applicant husband.

4. The parties shall attend a trial management conference within 60 days of this Order, to be scheduled at the convenience of the parties, wherein the trial of the Respondent wife’s application under section 33(1) of the Family Law Act, will be reviewed and scheduled for trial before me. The parties shall attend the trial management conference having completed Part I of the trial management endorsement form.

Costs

[86] If the parties are unable to agree on an appropriate costs award for this matter, they may make written submission to me on the issue. I will accept written submissions of not more than 2 pages, all relevant offers to settle and respective bills of cost first from the Respondent wife within 60 days followed by the Applicant husband 30 days thereafter.

CHIAPPETTA J.

Released: September 21, 2015

CITATION: Shair v. Shair, 2015 ONSC 5816

COURT FILE NO.: FS-14-395289

DATE: 20150921

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AWNI SHAIR

Applicant

and -

ADINA SHAIR

Respondent

REASONS FOR JUDGMENT

CHIAPPETTA J.

Released: September 21, 2015