Mary-Anne Sandrelli v. Dean Sandrelli, 2015 ONSC 7913
OSHAWA COURT FILE NO.: FC-13-1086
DATE: 2015-12-16
SUPERIOR COURT OF JUSTICE - ONTARIO
FAMILY COURT
BETWEEN:
Mary-Anne Sandrelli
Applicant
– and –
Dean Sandrelli
Respondent
COUNSEL:
Sharon E. Warden, for the Applicant
Tami Waters, for the Respondent
HEARD: September 21, 2015
Reasons for decision
Overview
[1] This motion for summary judgment seeks to determine whether a cohabitation agreement executed on October 6, 1994, is determinative of the financial and support issues between the spouses where the parties separated shortly following execution of the agreement and later reconciled, resumed cohabitation, married and then separated on a final basis on April 9, 2012 after 16 years of marriage.
[2] The Applicant seeks a declaration that the Agreement is not valid in the context of determining the financial and support issues arising from their separation on April 9, 2012. The Respondent seeks a declaration that the Agreement is determinative and seeks to enforce the provisions of the Agreement relating to a waiver of spousal support and division and distribution of property.
Issues
[3] The issues to be determined are as follows:
a. Is the Cohabitation Agreement executed on October 6, 1994, valid and binding on the parties and of full force and effect?
b. Is the Applicant prohibited from claiming spousal support from the Respondent?
c. Is the Applicant prohibited from claiming an equal division of the Respondent’s pension interests and any other assets excluded from equalization by the terms of the Cohabitation Agreement?
Determination of Issues
[4] For the reasons that follow I find as follows:
a. The Cohabitation Agreement although validly made triggered disposition and division of the parties assets in March of 1995. The Agreement was not reinstated, amended or continued following the triggering event and has no application to the parties’ separation on April 9, 2012.
b. There is no agreement that prohibits the Applicant from claiming spousal support from the Respondent upon the parties’ separation on April 9, 2012.
c. There is no agreement that prohibits the Applicant from seeking equalization of net family property in the usual manner upon the parties’ separation on April 9, 2012.
Facts
[5] In August 1993 the Applicant Mary-Anne Sandrelli and her daughter (8 years old) moved into the home of the Respondent Dean Sandrelli located in Whitby, Ontario.
[6] Sometime following cohabitation the Respondent proposed that the parties enter into a Cohabitation Agreement. Each party separately retained experienced family law lawyers who negotiated the terms of the Agreement executed on October 6, 1994.
[7] The Agreement by the preamble provides as follows:
The parties intend this Cohabitation Agreement to provide for their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death.
[8] The Agreement details the rights and responsibilities of the parties and provides for the tracing and compensation for benefits and for the division of property on separation or dissolution of the relationship.
[9] The triggering events that invoke the tracing and compensation for benefits and the division of property on separation or dissolution are found at paragraphs 1(c), 1(e), 2 (b) and 2(c) of the Agreement as follows:
1(c) In the event the parties cease to cohabit for a period of greater than 90 days or if one party dies …
1(e) Except as otherwise specifically provided in this Agreement, if the parties cease to cohabit for a period of greater than 90 days or if one party dies, all property, real and personal, acquired during the period the parties cohabit which is not One Party Property shall be divided equally between the parties after having taken into account the income tax consequences or any transfer of interest and assets…
2(b) In the event of the sale of the Matrimonial Home for any reason…
2(c) If the parties cease to cohabit for a period of greater than 90 days, Sandrelli shall obtain an appraisal of the then current market value of the home. After taking into consideration …
[10] The Agreement provided that in the event the parties marry, the Agreement shall be construed as a Marriage Agreement and could be amended only by written agreement between the parties witnessed by at least one other person.
[11] There were no written amendments to the Agreement.
[12] In March of 1995 the Applicant and the Respondent separated for a period exceeding 90 days. Neither party took steps to enforce the division and disposition provisions of the Agreement.
[13] In November of 1995 the Applicant and the Respondent resumed their relationship (but did not cohabit).
[14] On February 28, 1996, the Respondent sold the Whitby property and moved in with his parents. The Respondent retained the entire proceeds of sale.
[15] The Applicant and the Respondent became engaged in December of 1995 and began looking for homes to purchase together.
[16] On June 7, 1996, the Applicant and the Respondent jointly purchased a home located in Blackstock, Ontario. Title was registered in the parties’ joint names by right of survivorship.
[17] On July 1, 1996, the parties moved in together to the Blackstock home.
[18] On July 20, 1996, the parties married one another.
[19] In January of 2003 the parties separated. Each of the parties’ lawyers wrote letters regarding division of assets, equalization and support. Neither of the parties referenced the Agreement. The parties reconciled shortly after the January 2003 separation.
[20] The parties remained married and continued to cohabit with one another until April 9, 2012, when the parties separated on a final basis.
Analysis
Family Law Rules, Rule 16 – Summary Judgment
[21] Rule 16 of the Family Law Rules governs motions for summary judgment. Rule 16 was recently amended to expand judge’s powers on a summary judgment motion. The amendments are consistent with amendments made to Rule 20 (2.1) of the Rules of Civil Procedure that allow motion judges to weigh evidence, evaluate credibility, draw reasonable inference and call oral evidence. These new powers expand the number of cases in which there will be no genuine issue requiring a trial; thus, demonstrating that a trial is not the default procedure and eliminating the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment.
[22] The objective of the amendments was to improve access to justice and to reflect the principles enunciated by the Supreme Court of Canada in Hyrniak v. Mauldin[^1]. The reforms changed the test for summary judgment from whether a case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial”. [^2]
[23] Karakatsanis, J., writing for the court, laid out the test to apply when determining whether a summary judgment motion may be granted, as follows:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^3]
[24] At para. 49, Karakatsanis, J. explained that “there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”
[25] In the present case I find that the evidence submitted is sufficient to (1) allow me to make the necessary findings of fact; and (2) allow me to apply the law to the facts. In the present case based on the facts before me I find that partial summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.
Validity of the Cohabitation Agreement
[26] The Applicant argues that the Agreement, although valid, was discharged by performance in 1995 when the parties ceased to cohabit for a period in excess of 90 days.
[27] The Respondent argues that the Agreement is valid, has not been discharged by performance and remains in full force and effect.
[28] Both parties therefore agree that the Agreement is valid – the real argument is whether the Agreement had been performed, discharged, reinstated, amended, or extended such that it is enforceable to determine the respective rights of the parties upon separation in April of 2012.
Discharge of a Contract
[29] In simple terms, the Agreement is a contract between the Applicant and the Respondent. As such, the contract continues in effect until it has been discharged or is unenforceable for some other reason.
[30] As noted by the Supreme Court of Canada in Hartshorne v. Hartshorne[^4] courts must encourage parties to enter into agreements that are fair, and to respond to the changing circumstances by reviewing and revising their own contracts for fairness when necessary. Courts should be reluctant to second guess the arrangement on which the parties reasonably expect to rely.
[31] Contracts may be completed or discharged by performance, agreement, frustration, repudiation, fundamental breach, by merger, cancellation, or other particular circumstances such as discharge by death, bankruptcy or winding up.[^5]
[32] Discharge of a contract by performance describes the situation where the contract comes to an end when both parties perform their contractual obligations in the manner prescribed by the contract.[^6]
[33] Contracts may also be discharged by the happening of a triggering event. In the Hartshorne decision the Supreme Court of Canada noted as follows:
Once an agreement has been reached, albeit a marriage agreement, the parties thereto are expected to fulfill the obligations they have undertaken. A party cannot simply later state that he or she did not intend to live up to his or her end of the bargain. It is true that, in some cases, agreements that appear to be fair at the time of execution may become unfair at the time of the triggering event, depending on how the lives of the parties have unfolded…However, in a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second guess their initiative and arrangements, particularly where independent legal advice has been obtained.[^7]
[34] It is not necessary that parties perform or complete performance of the contract for the contract to be at an end. Where parties to a contract ignore the terms of the contract, the obligations under the contract remain in effect and are enforceable by either party to the contract.[^8]
[35] Similar to the fact situation in the Jedfro Investments[^9] decision, parties to a cohabitation agreement whose actions trigger the property disposition settlement provisions of the agreement are bound by the provisions of the agreement regardless of whether the agreement is enforced at that time.
[36] In the present case the Agreement between the parties was a contract. The terms of the contract provided for the disposition of property upon the happening of certain triggering events including “where the parties cease to cohabit for a period of greater than 90 days”.
[37] The contract did not provide for reinstatement upon reconciliation following the triggering event and there is no presumption in law that reconciliation revives a cohabitation agreement.
[38] Further, although not entirely analogous, subject to certain exceptions for partial performance - separation agreements are void upon reconciliation.[^10]
[39] Where the parties intend that a separation agreement survives reconciliation specific provision must be inserted in the agreement to that affect.
[40] There is no juristic reason to distinguish the rights of parties to a contract where the dispositive provisions of the contract have been triggered and the parties subsequently reconcile. Each contract forms the entire agreement between the parties. If the parties intend the agreement to continue then they should be required to provide for such continuation in the body of the original contract or through an addendum.
[41] Reconciliation is not a bar to enforcement of a cohabitation agreement. However, reconciliation following the triggering event is a bar to continuing the cohabitation agreement without a specific agreement in writing to reinstate or continue the agreement.
[42] When the parties signed the Cohabitation Agreement they were seeking to settle their respective property rights in the event of separation. Separation did occur in 1995 as anticipated by the Agreement and the parties’ rights were subject to the Agreement. The Agreement operates as a full and complete settlement of all rights, obligations and claims that each of them then had as at March 1995.[^11]
[43] There is no justification or grounds which would extend the Agreement beyond the triggering event. The Agreement did not survive the triggering event and when the parties resumed cohabitation in 1996 no agreement was in place. The parties’ rights upon separation on April 9, 2012 are not determinable by the Agreement executed on October 6, 1994.
Disposition of Motion
[44] The Applicant’s motion for summary judgment for a final Order without trial that the Cohabitation Agreement executed on October 6, 1994, between the Applicant and the Respondent, is not valid in the context of resolving the financial and support issues arising from their separation on April 9, 2012 is granted.
[45] The Respondent’s cross-motion is dismissed.
[46] If the parties are unable to agree on costs they may file costs submissions not exceeding three pages within 30 days failing which no costs shall be payable.
Madam Justice Woodley
Date: December 16, 2015
[^1]: 2014 SCC 7, [2014] 1 SCR 87 [^2]: Supra, at par 43 [^3]: Ibid, at par 66 [^4]: 2004 SCC 22, [2004] 1 SCR 550 at par 36 [^5]: Jedfro Investments v. Jacyk, 2007 SCC 55 [^6]: Waddams, The Law of Contracts, 6th edition at par 582 [^7]: Hartshorne, supra, at par 67 [^8]: Jedfro Investments, supra, at paras 19, and 28 [^9]: 2007 SCC 55 [^10]: Sydor v. Sydor, 2003 17626 (ONCA) par 22; Bebenek v. Bebenek (1979), 24 OR (2d) 382 (ONCA); Bailey v. Bailey (1982), 1982 1760 (ON CA), 37 OR (2d) 117 (ONCA) par 7 [^11]: Lasby-Gamble, supra, par 70