Court File and Parties

OSHAWA COURT FILE NO.: FC-14-231 DATE: 20160512 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Cavell Taplin, Applicant and Kevin Patrick Walsh, Respondent

BEFORE: Madam Justice S. J. Woodley

COUNSEL: Amanda Taerk, for Applicant Charlena Claxton, for Respondent

HEARD: January 14, 15, 19, 2016

REASONS FOR DECISION

Overview

[1] The Applicant Cavell Taplin and the Respondent Kevin Walsh lived together as common law spouses for approximately 12 years until their separation in February 2013.

[2] On May 14, 2013, the parties entered into a Separation Agreement which provided for an equal division of the proceeds of sale of the parties’ jointly held home, distribution of the parties’ personal effects (including vehicles) and a full and final release from all other claims including any claim for spousal support.

[3] Following distribution of all benefits contemplated by the terms of the Separation Agreement the Applicant Ms. Taplin attended upon a lawyer and commenced an application to set aside the Separation Agreement and for spousal support (retroactive and ongoing).

Issues

[4] The following issues are raised by this proceeding:

a. Is the Separation Agreement valid and binding? b. If the Agreement is valid, is the waiver of the right to spousal support contained in the Separation Agreement valid and binding? c. Is the applicant entitled to spousal support? If so, what is the quantum and duration?

Determination of Issues

[5] For the reasons below, I hereby determine the issues as follows:

a. The Separation Agreement is a valid and binding document and is not set aside. b. The waiver of spousal support contained in the Separation Agreement is valid and binding and is not set aside. c. The Applicant is not entitled to spousal support having waived her right pursuant to the terms of the Separation Agreement.

Facts

[6] The Applicant, Ms. Taplin is 50 years old (date of birth, March 10, 1966) and was 47 years old at the date of separation. Ms. Taplin was previously married (and subsequently divorced) and has two adult children from her prior marriage. Ms. Taplin had a separation agreement with her former spouse and received child support but no spousal support.

[7] Ms. Taplin has been employed as a medical receptionist/office manager for Dr. Yasmeen Syed for the past 18 years. Ms. Taplin works 18 hours per week and currently earns approximately $16,800 annually. Although Ms. Taplin previously worked longer hours (18 to 24 hours per week) her employment has been consistent full-time/part-time work of three to four day work weeks with 18 to 24 hours per week for the past 18 years. At the date of the hearing Ms. Taplin was sharing an apartment and expenses with her former mother in law Beverly Taplin and was engaged to be married.

[8] Mr. Walsh is 52 years old (date of birth June 28, 1963) and was 50 years old at the date of separation. Mr. Walsh was previously married (and subsequently divorced) and has one adult daughter from his previous marriage. Mr. Walsh did not have a separation agreement with his former spouse. Mr. Walsh paid child support but not spousal support.

[9] Mr. Walsh has been employed as a truck driver for CDS Commercial Drywall Supplies for the past 20 years. Mr. Walsh’s position is non-union and has no pension benefits. Mr. Walsh works 12 hours a day, 60 hours a week and earns approximately $70,000 annually. Although Mr. Walsh previously earned between $78,000 and $85,000 for the years 2010 to 2013, his job is physically demanding (as he is required to unload his truck) and has taken a toll on his health. Mr. Walsh has been transported by EMS from work sites to hospital on two occasions since 2014. There are no accommodations available for his position and if Mr. Walsh is required to go on long term disability his income will be reduced to $14,400 to $21,600 per year. At the date of the hearing Mr. Walsh was residing in a one bedroom apartment on his own and was financially assisting his mother as she is not financially independent.

[10] Ms. Taplin and Mr. Walsh met in early 2001 and began residing together at Ms. Taplin’s subsidized housing residence shortly thereafter. Mr. Walsh contributed approximately $1,100 per month to the household expenses.

[11] In 2004, Ms. Taplin and Mr. Walsh purchased a home together. Mr. Walsh paid $5,000 for the initial down payment and contributed a further $15,000 from his RRSPs towards the purchase price. Ms. Taplin made no contribution to the purchase price. The home was registered joint by right of survivorship and both parties executed the mortgage and transfer documents.

[12] Ms. Taplin’s two children and Mr. Walsh’s daughter resided at the home over varying periods. In 2006, Ms. Taplin’s former mother in law, Beverley Taplin, moved into the home as Beverley was experiencing financial difficulties. Beverley contributed $400 per month to the household expenses.

[13] Mr. Walsh purchased a car for Ms. Taplin and they shared expenses. Mr. Walsh made payments for the mortgage, realty taxes and insurance, car maintenance and insurance, household maintenance and hydro. Mr. Walsh also paid for all renovations to the home including a new roof, siding, flooring, front door, and the installation of two decks. Ms. Taplin paid for the groceries and any remaining expenses.

[14] The parties lived a simple life and did not overspend. They went out to dinner occasionally and went on two vacations together (by car) to Newfoundland.

[15] In 2007 Ms. Taplin separated from Mr. Walsh. Ms. Taplin obtained an apartment and together with her son and Beverley moved out of the home. Ms. Taplin and Beverley returned to the home within a few months. Ms. Taplin’s son returned at the end of the 11 month apartment lease.

[16] Ms. Taplin and Mr. Walsh filed their income tax returns together from 2004 onwards. Ms. Taplin chose and retained the accountant and was fully aware of Mr. Walsh’s income at all times from 2004 to their date of separation.

[17] Over the course of the relationship, Ms. Taplin complained that Mr. Walsh was never home as he was working long hours and Mr. Walsh complained that he had no privacy in his home as Ms. Taplin’s son and mother in law lived in the home.

[18] In February 2013, Mr. Walsh travelled to Newfoundland to visit his father in hospital. While visiting, Mr. Walsh became troubled that he wasn’t able to look after his own parents yet he was looking after Beverley who was no blood relation to him. Upon his return Mr. Walsh advised Ms. Taplin that Beverley needed to find another place to live. Ms. Taplin responded that Beverley wasn’t going anywhere. Mr. Walsh then advised that he wished to end the relationship, sell the home and divide the proceeds.

[19] Ms. Taplin and Mr. Walsh discussed and agreed upon the terms of their separation. They agreed that they would sell the home, pay their debts from the proceeds of sale and equally divide the balance of the equity. They agreed that they would divide the furniture and contents and that Mr. Walsh would sign over the car that he had purchased for Ms. Taplin’s use. Finally the parties agreed that each would be financially independent and no support would be payable.

[20] Ms. Taplin chose the realtor and the home was listed for sale. Mr. Walsh moved to the basement of the home and the parties continued to reside at the home pending sale of the property.

[21] Ms. Taplin contacted a family friend, Elizabeth Bennett, who is a lawyer, for advice and to complete the drafting of a separation agreement. Ms. Bennett agreed to assist Ms. Taplin and did not charge her for her services.

[22] According to the evidence provided by both Ms. Taplin and Ms. Bennett, Ms. Taplin ran into Ms. Bennett at a family party and advised of her separation from Mr. Walsh. Ms. Taplin asked for Ms. Bennett’s assistance and within a week attended privately at Ms. Bennett’s house to discuss the terms of the proposed agreement. While at the private meeting Ms. Bennett discussed Ms. Taplin’s rights on separation including her right to claim support. Ms. Taplin instructed Ms. Bennett that she wanted to leave the relationship with a payment of $50,000, and provided that she received $50,000 she would be content and would not seek spousal support. This private meeting lasted approximately one hour.

[23] Shortly following the private meeting, and on May 14, 2013, Ms. Taplin and Mr. Walsh attended at Ms. Bennett’s office. This meeting lasted in excess of two hours. The Separation Agreement which is the subject of this application was prepared and reviewed at this meeting.

[24] Ms. Taplin provided evidence that Ms. Bennett specifically advised her that the Separation Agreement would NOT be binding up her and would have no legal force or effect. Ms. Taplin provided further evidence that she signed the Separation Agreement under duress and that Mr. Walsh was acting as a bully, making threats and yelling at her. Ms. Taplin stated that she advised Ms. Bennett of Mr. Walsh’s behavior and further advised that she was signing the Separation Agreement under duress as a result of threats. Ms. Taplin advised that Ms. Bennett reassured her that the Separation Agreement would not be binding.

[25] Ms. Taplin further advised that the Separation Agreement was not thoroughly reviewed and she was not made of aware of the effect of the Agreement. Ms. Taplin advised that there was no financial disclosure provided by Mr. Walsh and that she did not know the nature and extent of Mr. Walsh’s assets. Ms. Taplin stated that she had to sign the Agreement in order to receive her money from the sale of the home. She stated that she was under emotional and financial duress.

[26] Ms. Taplin stated that the Separation Agreement was signed at the meeting on May 14, 2013, in front of Ms. Bennett who did not sign as a witness. Ms. Taplin stated that although Dr. Syed signed as a witness she did not actually witness Ms. Taplin’s signature. Ms. Taplin advised that she did not discuss the Separation Agreement with Dr. Syed and merely asked her to sign her name on the witness line. Ms. Taplin claims that the Agreement is not binding upon her.

[27] Ms. Taplin did not call Elizabeth Bennett as a witness in the proceedings.

[28] Mr. Walsh advised that the separation (for the most part) was amicable. He further advised that it was Ms. Taplin who suggested that they obtain a separation agreement and who contacted and met privately with Ms. Bennett. Mr. Walsh did not meet or speak with Ms. Bennett prior to the joint meeting between the parties when the Separation Agreement was prepared.

[29] Mr. Walsh stated that Ms. Bennett went over every single paragraph of the Agreement and amended and finalized the Agreement as they read along. Ms. Bennett inquired as to who paid what for the down payment of the home although no provision was added to the Agreement to repay Mr. Walsh. Ms. Bennett asked questions of both he and Ms. Taplin throughout the meeting and each provided answers to the questions. Mr. Walsh advised that Ms. Taplin had full knowledge of his finances as they had just completed their 2012 income tax filing. Mr. Walsh stated that the joint meeting was amicable and that following the meeting that he and Ms. Taplin never discussed the Agreement again.

[30] Mr. Walsh called Elizabeth Bennett as a witness at trial.

[31] Ms. Bennett was called to the Ontario Bar in 1994 and has been practicing as a lawyer for 23 years. Ms. Bennett testified that she has known Ms. Taplin since she was a young girl and that Ms. Taplin’s brother is married to her sister. Ms. Bennett confirmed that Ms. Taplin asked for her assistance in the preparation of the Separation Agreement. Ms. Bennett advised Ms. Taplin that although she formerly practiced family law she no longer practiced in the area. Ms. Taplin urged Ms. Bennett to assist with the preparation of a separation agreement.

[32] Ms. Bennett agreed to act as a favour to Ms. Taplin. Ms. Bennett made arrangements for Ms. Taplin to come to her home to meet privately. At the private meeting Ms. Bennett discussed and advised Ms. Taplin on her rights on separation. Ms. Bennett specifically discussed the disparity in the parties’ incomes and advised Ms. Taplin that she was entitled to spousal support. Ms. Taplin instructed Ms. Bennett that she wanted to leave the relationship with $50,000. Provided Ms. Taplin received payment of $50,000 she advised that she would be content and would not seek spousal support. Ms. Taplin understood that the $50,000 payment would last a few years and she would be required to be self-supporting. Ms. Taplin advised Ms. Bennett that she intended to secure full-time employment. Ms. Bennett described Ms. Taplin as “level-headed” and noted that Ms. Taplin was not emotional or upset at either the private or joint meeting.

[33] Ms. Bennett denied that Ms. Taplin advised her that Mr. Walsh was bullying or threatening her. Ms. Bennett denied that Ms. Taplin stated that the agreement was being entered into under duress. Finally, Ms. Bennett forcefully denied that she advised Ms. Taplin that the agreement would NOT be binding. On the contrary, Ms. Bennett testified that she advised Ms. Taplin that the agreement would be a legal document that would be binding upon her.

[34] As for the events that occurred at the joint meeting with Ms. Taplin and Mr. Walsh, Ms. Bennett advised that she had a draft precedent separation agreement on her computer and went through each and every term with the parties to ensure accuracy and understanding. Ms. Bennett advised that the typewritten agreement formalized the terms that Ms. Taplin had discussed with her at their private meeting.

[35] Ms. Bennett testified she spent several hours with the parties and reviewed each and every single clause of the Agreement. She read the clauses aloud and repeated and explained each clause including the releases and waivers. Ms. Bennett specifically recalls discussing the issue of spousal support at the joint meeting and recalls reviewing the waiver contained in the Separation Agreement. Ms. Bennett stated that there was no misunderstanding regarding the terms of the Agreement including the waiver of spousal support. Ms. Bennett stated that the Agreement was a simple agreement which reflected the parties’ intentions and the instructions provided by Ms. Taplin at the private meeting. Ms. Bennett testified that there was no confusion, no misunderstanding and to Ms. Bennett’s observations no duress applied to either party in the negotiation and drafting of the Agreement.

[36] Ms. Bennett stated that she advised the parties that they should seek and obtain independent legal advice and both parties indicated that they were content and would not seek advice. As to the execution of the Agreement, Ms. Bennett stated that the Agreement was not signed in front of her at the office. Ms. Bennett provided a printed copy of the Agreement to each party to execute before a witness. She had a clear recollection of this fact and stated that she would never have allowed the parties to execute the Agreement before her when she was not acting as a witness.

[37] Ms. Bennett provided unwavering evidence that Ms. Taplin knew her rights and voluntarily and willingly entered into the Separation Agreement with full knowledge and understanding of the binding nature of the Agreement.

[38] To the extent that Ms. Bennett’s testimony differs from Ms. Taplin or Mr. Walsh’s evidence, I accept Ms. Bennett’s evidence. Ms. Bennett provided her evidence clearly and concisely. She had independent recollection of the events. Ms. Bennett understood her ethical duties as a solicitor and explained her usual practice and the specific procedure followed in this case. Ms. Bennett’s testimony evidenced that she is a careful and considerate solicitor who acted for Ms. Taplin out of kindness. Ms. Bennett had no ulterior motivation in describing the events that unfolded. Ms. Bennett was understandably upset by the litigation and the allegations made by Ms. Taplin but responded in a professional, responsible and ethical manner.

[39] Ms. Taplin’s evidence regarding the negotiation, drafting and execution of the Separation Agreement appeared to be tailored to suit her current position. Quite simply, Ms. Taplin’s explanation of the events leading to the drafting and execution of the Separation Agreement is not credible. In particular, I do not accept Ms. Taplin’s evidence on the following points: (i) she was unaware of Mr. Walsh’s assets and income; (ii) she advised Ms. Bennett that she was being bullied and was signing under duress; (iii) Mr. Walsh threatened to delay distribution of the house proceeds if the Agreement was not signed; (iv) Ms. Bennett told her the Agreement was not binding; and (v) Ms. Bennett did not explain the Agreement.

[40] I accept Mr. Walsh’s evidence that Ms. Taplin was the party who requested a separation agreement and sought out Ms. Bennett’s assistance. I further accept Mr. Walsh’s evidence that Ms. Taplin and he agreed upon all terms of the Agreement and that he acted in good faith in executing the Agreement and completing the terms of the Agreement.

Completion of the Settlement Agreement and Current Circumstances of the Parties

[41] The Separation Agreement provided that the parties would receive: (i) a transfer of the vehicle utilized by them (Mr. Walsh purchased both vehicles); (ii) distribution of the contents and furniture of the home as agreed; and (iii) an equal distribution of the net proceeds of sale of the home.

[42] The sale of the home was completed on June 14, 2013. In accordance with the Separation Agreement, the 1st and 2nd mortgages were discharged from the sale proceeds. The 2nd mortgage which totaled $40,234.61 was a line of credit utilized to pay off the parties’ credit card balances and included repayment of the $5,000 deposit made by Mr. Walsh for the purchase of the home. Mr. Walsh did not, however, receive repayment of the $15,000 down payment made by him from his RRSPs for the purchase of the home.

[43] Following payments of all expenses, the net sale proceeds were divided 50/50 with each party being entitled to receipt of $50,157.51.

[44] Ms. Taplin received payment of $50,157.51 on the date of closing being June 14, 2013. Prior to this date she had received a transfer of the vehicle purchased by Mr. Walsh and her share of the contents and furniture. As at June 14, 2013, Ms. Taplin had received all items that she was entitled to receive pursuant to the Separation Agreement.

[45] Following receipt of the proceeds, Ms. Taplin bought new furniture and took several trips. Ms. Taplin lives in rental accommodations with Beverley who shares her living expenses. Ms. Taplin started a RRSP and contributes to the RRSP regularly. According to Ms. Taplin’s sworn financial statement, she has approximately $23,000 in assets (cash and RRSPs) and her net worth is approximately $22,000. Ms. Taplin has not obtained full time employment and continues to work part-time for Dr. Syed. Ms. Taplin had been on vacation for approximately one month prior to the trial and advised that she planned to return to work for Dr. Syed following the trial.

[46] Mr. Walsh’s father died on June 13, 2013. On this date Mr. Walsh executed all documents necessary for the sale, sold or stored his furniture and contents and immediately left for Newfoundland to make arrangements and care for his mother. Mr. Walsh received his share of the proceeds upon his return to Ontario several weeks following the sale. Mr. Walsh has received all items to which he is entitled by the Separation Agreement. Mr. Walsh lives in rental accommodations. He bought new furniture and a boat and took several trips. He contributes to his RRSP regularly. According to his sworn financial statement, Mr. Walsh has $47,000 in assets (cash and RRSPs) and his net worth is approximately $46,500. Mr. Walsh remains employed working full-time but his employment is uncertain due to health issues. Mr. Walsh assists his mother financially.

The Law and Analysis

Formal Validity

[47] Pursuant to s. 55 of the Family Law Act, R.S.O. 1990, c. F.3 [FLA], the requirements for formal validity of separation agreements requires the agreement to be in writing, signed, and witnessed. Independent legal advice is not a formal requirement, but is recommended to prevent challenges to the agreement on other grounds such as understanding the nature and consequences of the agreement and duress.

Challenging Domestic Contracts

[48] Section 56(4) of the FLA sets out the most common grounds relied upon to set aside a domestic contract, in whole or in part as follows:

a. failure to disclose a significant asset or debt in existence when the agreement was formed; b. failure to understand the nature and consequences of the agreement; and c. any other ground upon which an ordinary contract may be attacked.

Financial Disclosure

[49] There is a positive duty on every spouse to make complete, fair, and frank disclosure of all financial affairs, even if there has not been a request for information.

[50] Generally speaking, the court will set aside a domestic contract where a party’s failure to disclose significant assets has been due to a deliberate attempt by one party to mislead the other. In the case of Tadayon v. Mohtashami, 2015 ONCA 777, 341 O.A.C. 153, the Court of Appeal upheld the trial judge’s decision to set aside a separation agreement where the appellant materially misrepresented his income, and that the material misrepresentation was an inducement for the respondent to sign the separation agreement.

[51] The Court of Appeal has refused to set aside domestic contracts where there is insufficient evidence to support a failure to disclose a significant asset or debt. In Ward v. Ward, 2011 ONCA 178, 104 O.R. (3d) 401, the Court of Appeal found that there was no evidence to support the trial judge’s finding of either a repeated failure to provide financial information or that further information was required for sufficient disclosure. The evidence suggested that through the negotiations of the agreement the parties had actual knowledge of each other’s financial positions.

[52] In Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228, the Court of Appeal overturned the trial judge’s determination to set aside a contract for lack of financial disclosure. The court held that a party cannot enter into an agreement knowing of its shortcoming in disclosure and then rely on those shortcomings to have the agreement set aside. Additionally, the court questioned whether the differences in the husband’s assets were of sufficient magnitude to meet the statutory requirement that it is a failure to disclose a “significant” asset or debt.

[53] In the present case I find that Ms. Taplin had full knowledge of Mr. Walsh’s assets, income and liabilities. The parties had jointly filed their tax returns since 2004. At the date of execution of the Separation Agreement the parties had just completed filing their 2012 joint tax returns. Ms. Taplin retained the accountant and gathered the documents for the preparation and filing of their joint returns. Mr. Walsh’s assets were not complicated and were limited to his home (jointly owned), his vehicles, and his RRSPs. Ms. Taplin retained the realtor and knew the value of the home. Ms. Taplin received a copy of Mr. Walsh’s information slips and knew his income and the value of his RRSPs. Ms. Taplin had personal knowledge of Mr. Walsh’s income and assets. Mr. Walsh made full, frank and complete financial disclosure to Ms. Taplin on an ongoing basis throughout their relationship. There is no doubt that sufficient financial disclosure was provided to Ms. Taplin.

Lack of Independent Legal Advice, Failure to Understand Effect and Consequences and Duress

[54] The absence of independent legal advice is not a ground in and of itself to set aside an agreement. Absence of independent legal advice is to be considered when viewing the fairness of the agreement as a whole and in particular whether a party understood the nature, effect and consequences of the agreement and whether duress was involved in the making of the agreement.

[55] The Court of Appeal, in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, stated the fact that the respondent appreciated that the domestic contract was not good for her does not mean that she understood either the nature or consequences of the domestic contract. The domestic contract was set aside as “the respondent had in effect no independent legal advice” and “had no clue about what the implications of such a significant legal document really meant” (at para. 42).

[56] In Ward v. Ward, noted above, although the Court of Appeal found evidence that the wife felt pressured to sign the agreement, including the need for funds to buy her house, the pressure was not sufficient to establish that the wife did not understand the nature of the agreement or its consequences. The Court found that the wife was represented by experienced family law counsel and fully understood the nature and the consequences of the agreement.

[57] In LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, the Court of Appeal found that although independent legal advice was received, the advice was not effective, some advice was wrong, and the wife did not understand the nature and consequences of the agreement.

[58] As is apparent from this short review, the presence or absence of independent legal advice is not determinative of the issue. However, the presence or absence of independent legal advice is a factor to be considered in determining whether a party understood the nature and consequences of the agreement. It is the knowledge of the parties to the agreement that is of paramount concern. If a party fully understood the nature and consequences of the agreement and entered the agreement voluntarily, barring other factors, the agreement should be upheld.

[59] In the present case both parties refused independent legal advice. However, practically speaking, Ms. Taplin is the only party that received independent legal advice which was provided at the private meeting with Ms. Bennett. Ms. Taplin had the further benefit of receiving legal advice at the joint meeting where the terms of the Separation Agreement were reviewed and explained by Ms. Bennett.

[60] Ms. Taplin’s counsel argued that Ms. Taplin as the joint registered owner was entitled to receive one-half of the net proceeds of sale and support. It was argued that Ms. Taplin did not understand her rights and did not benefit by the Agreement as she was entitled to receive one-half of the net proceeds in any event as joint owner. I disagree.

[61] At the commencement of the relationship, Ms. Taplin was residing in subsidized housing, had few assets and no savings. Ms. Taplin’s income and savings did not increase except minimally during the relationship.

[62] During the course of the relationship, Mr. Walsh paid for the deposit, down payment, ongoing mortgage and realty tax payments, maintenance costs, yearly insurance and renovation costs relating to the parties’ jointly owned home.

[63] It is arguable that the inclusion of Ms. Taplin as joint owner of the home was effectively a gratuitous transfer. On separation, it was open to Mr. Walsh to seek an unequal distribution of the net sale proceeds on the basis of resulting trust principles and/or an accounting of profits pursuant to a partition and sale proceeding. However, despite discussions as to who paid for the down payment, no provision was made by the Agreement to reimburse Mr. Walsh for any of the expenses paid by him for the home. The parties agreed without argument to equally divide the net proceeds of sale in exchange for a release of spousal support.

[64] Ms. Taplin understood the overall terms of the Agreement and the consequences and is not required to understand the legal minutiae relating to the law of trusts, matrimonial property and partition and sale proceedings.

[65] I find that the Agreement was fairly made and negotiated. Having received the benefits I find that Ms. Taplin is also bound by the consequences of the Agreement.

Duress and Unconscionability

[66] Duress is present where there is coercion of the will of one party or where one party feels that they have no other realistic alternative but to sign the agreement. While one party might feel pressured and trapped by the circumstances into signing an agreement, this does not mean that the other party exerted undue pressure or subjected the party to duress (Balsmeier v. Balsmeier, 2016 ONSC 950, [2016] O.J. No. 667 at para. 135).

[67] Duress, in civil law, means threats to another’s property, threats of physical violence, or economic duress which induces a contract (Bruni v. Bruni, 2012 ONSC 6568, 104 O.R. (3d) 254, at para. 107).

[68] The circumstances that will constitute duress must be quite extreme; antagonism and stress do not qualify as duress or economic duress. The burden is on the party alleging duress to prove that duress existed (Mayerovitch v. Breslin, 2012 ONSC 5192, [2012] O.J. No. 4870, at paras. 336, 344).

[69] In the present case, Ms. Taplin alleges duress and bears the burden of proving that duress existed. However, the evidence presented did not disclose that duress of the nature and quality required existed. It was Ms. Taplin that sought and obtained legal advice, initiated the drafting and execution of the Separation Agreement, accepted and received all benefits flowing from the Agreement. Ms. Bennett denied being advised of any duress and did not witness antagonistic behavior or bullying. The Agreement was made in an amicable manner and the parties are required to take responsibility for their own lives and their own decisions.

[70] Having carefully considered the evidence and the issues raised in the proceeding, I find in the particular circumstances of this case that the Separation Agreement dated May 14, 2013 as executed by Ms. Taplin and Mr. Walsh, to be a valid and binding document. The Settlement Agreement and is not set aside.

Waiver of the Right to Spousal Support

[71] Notwithstanding that the Separation Agreement is valid, the question arises whether Ms. Taplin is entitled to receipt of spousal support.

[72] Section 33(4) of the FLA establishes that courts may set aside a waiver of the right to support in domestic contracts in certain circumstances:

Setting aside domestic contract

a. (4) 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 subsection (1) although the contract contains an express provision excluding the application of this section, b. (a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

[73] In Scheel v. Henkelman, 52 O.R. (3d) 1 (C.A.), the domestic contract was set aside on the ground that unconscionable circumstances arose from the waiver at the date of separation. The court found that the support waiver provision in the domestic contract was unconscionable and awarded support. The court concluded that given the relative circumstances of the parties, it would be shocking to the conscience to require the appellant wife to survive on a modest pension while the husband had millions of dollars in assets.

[74] In Scott v. Lloyd, 2014 ONCJ 639, [2014] O.J. No. 5775, the court affirmed that s. 33 (4) of the FLA is not directed to unconscionable agreements but to unconscionable results of a provision waiving support. An agreement that 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. In such a case the agreement may be set aside.

[75] The court in Scott v. Lloyd also noted that “courts are expected to grant considerable deference to separation agreements. Courts have recognized that it is desirable that separating spouses settle their affairs, when possible, through the negotiation of separation agreements and that such settlements will only be encouraged if, as a general rule, they are upheld by the courts. It is important for parties to an agreement to be able to rely upon it as final and binding” (at para. 217).

[76] In the present case, Ms. Taplin received the benefits of the Separation Agreement. She understood that the monies received would last for a few years and she would be required to obtain full-time employment.

[77] The parties settled their affairs through negotiation and entered into a Separation Agreement, fairly made and fully executed. Settlements should be encouraged and it is important for parties to an agreement to be able to rely upon the agreement as final and binding. Both Ms. Taplin and Mr. Walsh have limited assets, live simple lives, and face challenges with respect to their future ability to earn an income. There is no evidence that the waiver of support causes unconscionable results at the date of the trial.

[78] The waiver of support contained in the Settlement Agreement is neither shocking nor oppressive. Enforcement of the waiver of support does not result in unconscionable circumstances at the date of the trial. The waiver of support is valid and binding and is not set aside.

Disposition

[79] For the reasons detailed above, the following Judgment shall issue:

a. the Application is hereby dismissed; and b. If the parties are unable to agree upon costs, the Respondent shall have until June 11, 2016, to file costs submissions and the Applicant shall have until June 30, 2016 to respond. The Respondent’s reply, if any, shall be served and filed before July 12, 2016. The cost submissions, response, and reply shall each not exceed three pages in length with Bills of Costs attached. If no submissions are filed by June 11, 2016, no costs shall be awarded.

Released: May 12, 2016 Madam Justice S.J. Woodley