ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LIUDMILA NIKOLAEV
Plaintiff
- and -
PAVEL FAKHREDINOV
Defendant
Ron Shulman
for the Plaintiff
Galyna Pribytkova
for the Defendants
HEARD: September 28 to October 1, 2015
F.L. Myers J.
REASONS FOR decision
Background
[1] There are few litigation policies more strongly advocated than the policy favouring settlement out of court in family law cases. In this case, the parties reached a settlement themselves. The settlement was in the form of a separation agreement that is elegant in its simplicity. Essentially, the respondent husband agreed to sign over his half of the family condominium to the applicant wife. In return, the applicant wife released the respondent from all of his spousal and child support obligations. To save money, the parties jointly retained a paralegal to draft the formal agreement for them. They did not obtain independent legal advice before they signed their separation agreement. This is an unfortunate example of the adage “penny wise and pound foolish.” The parties have since realized that the separation agreement, as drafted and signed, was, at minimum, incomplete and, perhaps, so unfair to the children and the parties as to be unenforceable. They have terminated the agreement and are left to litigate the issues that they had hoped to resolve. They saved the cost of negotiating an agreement. Instead they incurred far greater financial and emotional costs of litigation.
[2] There are a number of legal and factual issues in dispute that are resolved below. The parties quite properly rely upon Divorcemate software to assist them in calculating outcomes as a result of the various inputs required by the law. They need the findings in these reasons in order to run a final Divorcemate calculation. After discussion with counsel during closing argument, it seems to me that I should invite the parties to consider the results in this judgment and return for brief oral submissions to finalize the formal judgment. I should be clear that I am not inviting any argument concerning any of the matters determined in this judgment. Rather, counsel are invited to run their Divorcemate models and to add and subtract the various findings that make up net family property equalization equation. They should then speak to each other to agree upon the draft judgment to be issued as a result of the findings below. I will hear argument on the final judgment and the costs of the trial on Monday, October 26, 2015 at 10:00 a.m.
The Facts
[3] The parties filed an Agreed Statement of Facts. Much of their oral evidence simply duplicated the facts to which they had already agreed. However, there are a few key areas of dispute that I will highlight below.
[4] The parties lived in Russia when they met. They married in 1997. Shortly before their marriage, they emigrated to Israel. The applicant has a son from a previous marriage (“S1”). He was born March 11, 1990. The respondent acknowledged him as a child of the parties’ marriage. There are also two biological male children of the marriage. The first, whom I refer to as “S2,” was born October 15, 1998 and the second, whom I refer to as “S3,” was born December 9, 2007.
[5] S1 is currently 25 years old and has graduated from university. S2 is almost 17 years old and is in high school. S3 is not yet eight years old and is in public French immersion elementary school.
[6] The parties agree for the purposes of this litigation that they separated on May 20, 2009. In fact, the respondent says that it was only in December of that year when he returned from working in Vancouver that applicant told him to leave the matrimonial home. He rented an apartment on December 31, 2009 and he commenced moving in on New Year’s Day of 2010. The applicant’s counsel noted that the respondent freely returned to the matrimonial home many times throughout January and therefore denies the respondent’s characterization that the applicant “kicked him out.” In light of the parties’ agreement on the effective date of separation, I do not need to resolve this issue.
[7] The children have resided with their mother since the parties separated. S3 was only 17 months old at that time.
[8] At the time of their separation, the parties owned jointly and resided in a residential condominium in Toronto. They owned their unit free and clear with no mortgage debt.
[9] As noted above, respondent went to Vancouver in May, 2009. He did this to pursue an employment opportunity. That job ended in late November of that year. The respondent had no job when he returned to Toronto.
The oral settlement
[10] The parties began discussing a settlement agreement in early 2010. At the time, the respondent was concerned that he had no job and few prospects. He told the applicant that he was considering returning to Russia, where, at least, he would have a roof over his head living with his mother who was still there. He told the applicant that he was willing to pay support, as best as he could afford, but that if he returned to Russia, the support that she could expect would likely be less under Russian law than what she would be entitled to in Ontario. The applicant and her mother were concerned that the respondent would not be able to pay much support to the applicant. They believed that the risk of nonpayment increased if the respondent returned to Russia. The applicant’s mother therefore suggested the simple solution of trading the respondent’s half of the condominium for a release of his support obligations.
[11] The applicant saw the condominium as a bird in the hand. She did not intend to sell the condominium. She did not need to do so in order to maintain herself and the three boys. The applicant has been employed throughout and receives financial support from her parents.
[12] The applicant and the respondent therefore agreed orally to the mother’s suggestion.
The relationship between the parties
[13] The applicant handled the family’s finances throughout. The parties had multiple bank accounts and were quick to move money around to chase fluctuations in interest rates. They had a joint chequing account and a joint savings account. In addition, they each had two or three personal accounts. They also dealt extensively in cash. It was clear from the evidence that the applicant had more financial wherewithal and acumen than the respondent. She also was much more proactive in all matters than the respondent. She took the initiative in financial matters.
[14] The applicant has always been the primary caregiver to the children.
[15] The applicant presented as a very bright and a very demanding person. No one in the courtroom was allowed to finish a sentence while the applicant was on the witness stand before she cut in and commenced arguing. It did not always matter to her whether the things she argued were consistent with evidence that she had given previously. She had to win each point and no one, not counsel opposite, her own counsel, or the judge was going to stop her from making her points.
[16] By contrast, the respondent presented as unenergetic bordering on indifferent. He agreed that he had a temper, although it did not show itself during the trial. The applicant tried to present the respondent as an abusive bully. The respondent conceded that while the parties were still living in Israel he hit S1 once. The respondent realized that what he had done was wrong and he apologized. Apparently, he disciplined S2 before the child was 10 years old by requiring him to do push-ups. The respondent says he did so to demonstrate to his son that he should think before he acts as the punishment for acting out physically would be unpleasant physical consequence. The respondent says that when the parties separated and S2 was about 10, he found that he could discipline S2 more effectively by removing TV or his computer privileges for a day rather than by physical exercise.
[17] While I have no doubt that the party’s household was loud, I have equally no doubt that the applicant was the dominant personality in the relationship. She did not deny that in the main, the respondent’s discipline of the children, to which she now objects, was, at the time, prompted by her requests for his help when the children misbehaved or would not listen. She is quick to blame the respondent and to tar him in general terms that she did not support with particulars. She even blames the respondent for the mild autism diagnosis made for S2 last year.
[18] For his part, the respondent was very clear in his evidence that he views it as his role as a father to see the younger two children once every couple of weeks for an hour or two and to become involved with them otherwise only when asked to do so by the applicant. He seems to have been responsive when the applicant called him sporadically to ask him to take the children to school or to the dentist or to court, for example. But the respondent took little initiative to be involved in his children’s lives despite the parties’ agreement to share joint custody. He seemed to lack insight into the larger role that was available to him and was expected of him as a father. His response to many questions was that he did what he was asked to do or what he could do in light of the applicant’s alleged lack of cooperation. His behaviour is consistent with both his own general lack of initiative and with the applicant’s dominance in the relationship.
(continues exactly as in the source text)
F.L. Myers, J.
DATE: October 10, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LIUDMILA NIKOLAEV
Plaintiff
- and -
PAVEL FAKHREDINOV
Defendant
REASONS FOR DECISION
F.L. MYERS J.
Released: October 10, 2015
[^1]: The applicant also relies upon Belisle v. Belisle, 2000 22470 (ON SC), [2000] O.J. No. 4744 (S.C.J.) in which the judge mentioned an entitlement of a spouse to seek rescission for breach. In my view, the judge simply used words loosely as he was not discussing at all the availability of rescission as a remedy for repudiation before simply asserting that the remedy was available. If indeed that was his intended holding, I respectfully disagree that it is available at common law or that s.56(4)(c) is to be read so as to provide a remedy of rescission for ordinary breach of contract claims. The mischief of such a provision would be great as people would seize on breaches to try to turn back the clock whenever market performance shows that another route to settlement might have been more profitable.