Deblois v. Deblois, 2016 ONSC 1504

CITATION: Deblois v. Deblois, 2016 ONSC 1504

COURT FILE NO.: FS-15-15272

DATE: 20160301

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brenda Marie Deblois, Applicant

AND:

Kevin Onesime Deblois, Respondent

BEFORE: Carey J.

COUNSEL: Dawn Melville, Counsel, for the Applicant (Responding Party)

Shirley Jackson, Counsel, for the Respondent (Moving Party)

HEARD: February 29, 2016

ENDORSEMENT

[1] The applicant wife (“the wife”) seeks to set aside a separation agreement entered into by the parties in 2013. In particular, she seeks an order in respect of the equalization of family property having acknowledged in the separation agreement that both parties had “received all entitlements and met all obligations to equalize their Net Family Properties under Part I of the Family Law Act.” She alleges that the separation agreement was entered into under duress and without her having an opportunity to seek legal advice. She also says she signed the agreement without the benefit of a review of sworn financial statements. The parties had been married almost 35 years and the respondent husband (“the husband”) was entitled to a pension from over 20 years employment at Ford Motor Company.

[2] Since the execution of the separation agreement, the wife has relocated to Halifax and found full time employment. She also entered into an assignment in bankruptcy from which she was discharged about ten months prior to her commencing her application.

[3] The moving party respondent says the fact of the bankruptcy disentitles the applicant from now making an equalization claim, relying on the authority of Schreyer v. Schreyer, 2011 SCC 35, 2011 S.C.C. 35 and Blowes v. Blowes, 1993 8521 (ON CA), 1993 CarswellOnt 232 (Ont. C.A.).

[4] The husband seeks an order, pursuant to R. 16(12)(b), striking out the claim for equalization of net family properties in the amended application as it “sets out no reasonable claim.” He also seeks security for costs due to the applicant’s residency in Nova Scotia.

[5] The wife relies on a letter from her Trustee in Bankruptcy to distinguish her situation from the authorities relied on by the respondent husband.

[6] I agree with the applicant wife that the acknowledgment from B.D.O. (attached to the endorsement) is some evidence that the Trustee has returned to Mrs. Deblois the right to sue her husband for equalization after her discharge from bankruptcy. This distinguishes the applicant’s position from the case law relied upon by the respondent (see: Lajoie v. Woito, 2009 CarswellOnt 8476 (Ont. S.C.J.), at para. 121).

[7] As a result, I cannot conclude that the respondent has shown that the applicant has “no reasonable claim” in law. The respondent’s motion under R. 16 is therefore dismissed. In my view, there is an insufficient record to assess the respondent’s request for security for costs. That request is denied without prejudice to any future motion on fresh material. Costs to the applicant fixed at $1,500.

original signed “Justice Carey”

Thomas J. Carey

Justice

Date: March 1, 2016