Court File and Parties

Citation: Burns v. Burns, 2017 ONSC 5615 Court File No.: FC-16-2355-0 Date: 2017-09-21

Ontario Superior Court of Justice

Between: Michelle Burns, Applicant – and – Jeffrey Burns, Respondent

Counsel: Michael Wonham, Counsel for the Applicant Erin Lepine, Counsel for the Respondent

Heard: September 7, 2017

Reasons for Judgment

Blishen J.

Introduction

[1] This is a summary judgment motion brought by the Respondent, Jeffrey Burns pursuant to R. 16 of the Family Law Rules (FLRs) to dismiss the Applicant, Michelle Burns’ claims for equalization of net family property and spousal support, largely based on the terms of what the parties agree is a valid marriage contract.

[2] The applicant, Michelle Burns filed a cross motion seeking a dismissal of Mr. Burns’ motion for summary judgment. She also seeks a finding of fact that the parties’ date of separation was July 15, 2011 or, in the alternative, pursuant to s. 2 (8) of the Family Law Act, (FLA), she seeks an extension of the time limitation outlined under s. 7 (3)(b) of the FLA to bring a claim for equalization of net family property.

Background-Facts and Evidence

[3] The parties began cohabitating in June, 2003 and were married on June 25, 2005. There are no children of the marriage.

[4] In contemplation of their pending marriage, the parties entered into a Marriage Contract dated June 7, 2005. Ms. Burns’ counsel drafted the agreement. Both parties received financial disclosure and had independent legal advice. At that time, Mr. Burns owned a second home. He was also in the process of declaring bankruptcy and on June 19, 2005 filed for an assignment of bankruptcy. The Marriage Contract provided a mutual waiver of spousal support and a mutual release with respect to claims for equalization under the FLA with respect to specific property listed in the agreement.

[5] The parties’ signed the Marriage Contract on June 22, 2005 and were married on June 25, 2005.

[6] During the marriage, Ms. Burns worked as a registered practical nurse. Mr. Burns was initially employed part-time at NAV Canada, while working towards a teaching certificate at St. Lawrence College. After graduating, he obtained a job as a teacher at Smith Falls District Collegiate Institute. The parties lived together in rental accommodation in Smith Falls.

[7] In 2009 the marriage began to suffer from significant stress. Ms. Burns’ father, who suffered from severe Alzheimer’s, moved into the parties’ residence. Ms. Burns continued working, while also providing or arranging care for her father. In addition, Mr. Burns suffered from alcoholism and drank to excess at times. He attended AA off and on during the marriage.

[8] In August, 2010, Mr. Burns moved out of the home in Smith Falls and rented an apartment in Frankville, Ontario, an approximately 15 minute drive away. Ms. Burns deposes that her husband’s drinking was interfering with her father’s care. The Frankville apartment was rented to provide Mr. Burns with a place to drink, away from the family residence. This is denied by Mr. Burns. He does not provide a reason for the move other than to indicate that the parties separated on August 15, 2010.

[9] In her affidavit, Ms. Burns deposes:

1. Mr. Burns continued to sleep at the Smith Falls residence most weekdays (Monday-Friday) when he was working and not drinking to excess.
2. She would spend approximately 6 of 10 weekends at the rental apartment in Frankville depending on her weekend work schedule.
3. They continued to share a bed, 25-27 nights a month.

[10] None of these statements of fact are specifically denied by Mr. Burns. He simply states:

1. He stayed at the Smith Falls home at times to visit and help with Ms. Burns’ father.
2. He “never moved back” into the Smith Falls residence.
3. Ms. Burns never “lived in” the Frankville rental apartment after August, 2010. Mr. Burns acknowledges the parties attempted reconciliation between June and July, 2011 but provides no details as to how, why or where.

[11] Ms. Burns deposes the attempted reconciliation during June and July 2011 took place after an accident suffered by her father on April 4, 2011. He left the Smith Falls home unattended; fell on the road and suffered a neck injury. Following the accident, Ms. Burns became depressed; took stress leave from her employment and never returned. She deposes she left the home in Smith Falls and moved into the Frankville apartment full time with Mr. Burns in late May, early June, 2011.

[12] Medical reports prepared by Ms. Burns’ family physician on November 6, 2011 and March 2, 2013, indicate Ms. Burns was suffering from major depression and PTSD, for which she was receiving psychotherapy and medication. She also suffered from chronic back pain due to degenerative disc disease and disc contusion.

[13] The attempted reconciliation came to an end around mid-July 2011. Ms. Burns deposes Mr. Burns became extremely drunk; the police attended the apartment and she moved on a temporary basis to a women’s shelter. None of this is denied by Mr. Burns.

[14] Ms. Burns has provided letters from her pastor, neighbours, mother and daughter in support of her contention that the parties held themselves out to be a married couple until approximately May 2011. Ms. Burns’ daughter, Shannon O’Halloran has provided an affidavit. The letters provided are not sworn and the writers have not been cross-examined. Although they provide some support for Ms. Burns’ argued date of separation, the letters cannot be given much weight in making a final finding of fact.

[15] To support his contention that the parties separated on August 15, 2010, when he began renting the Frankville apartment, Mr. Burns relies on a January 16, 2012, mediation report and draft joint application for divorce where the parties indicated a separation date of August 15, 2010.

[16] Ms. Burns notes:

1. At the time of mediation, she was medicated for depression (a letter from her doctor is attached to her affidavit).
2. She was not represented by counsel.
3. Both parties wanted to immediately file for divorce which would not be possible if the correct date of separation, July 15, 2011, was entered on the application.
4. In her December 15, 2011, application for mediation, Ms. Burns stated the date of separation was July 15, 2011.
5. The parties’ never filed the joint application for divorce and continued to work on their relationship, taking trips together in 2012.

[17] Mr. Burns also relies on the parties’ 2010 tax returns. He filed his return as “separated” and Ms. Burns filed hers as “single”, which she acknowledges was not “a smart (or honest) idea.”

[18] Ms. Burns attempted to resolve matters on her own without counsel in 2013. In 2015, she retained Brockville counsel to represent her in a claim which included equalization of net family property and spousal support. Her counsel spoke to Mr. Burns in January, 2016 to recommend he retain counsel but did not have any contact with Mr. Burns thereafter. Ms. Burns moved to Ottawa in 2016 and met with Ottawa counsel on June 20, 2016. Her application was filed on November 2, 2016. There was no mention of a Marriage Contract in her application.

[19] On March 24, 2017, a case conference was held before Master Fortier who ordered, if the respondent was not successful in obtaining summary judgment, within 30 days of the date of disposition of the summary judgment motion, he “shall request the statement of the family law value of the pension for both dates of separation.” In addition, Master Fortier ordered the applicant to produce:

• a complete copy of her 2010 income Tax Return, showing her marital status at that time, by April 28, 2017 • proof of her current income • medical evidence supporting the Applicant’s inability to work as a result of her disability • documentation showing all efforts to find appropriate employment since August, 2010 • documentation support all account balances (assets and debts) for the date of marriage • documentation supporting all account balances (assets and debts) for August 14, 2010

[20] On August 22, 2013, Ms. Burns was hit by a motor vehicle while riding a bicycle. She suffered compression fractures and slipped discs which compounded her earlier back injuries and was a set a back in her recovery from depression.

[21] Ms. Burns continues to suffer from serious mental health issues including major depression with psychosis, PTSD and suicidal ideation for which she receives medication and counselling. She has not worked since April, 2011. She receives a CPP Disability Pension and ODSP. Her income for 2017 is projected to be $12,956.00.

[22] During the marriage, Mr. Burns trained as a trades teacher and obtained employment as a teacher with his current employer, the Upper Canada District School Board. He projects his income for 2017 to be $64,033.00. The parties’ financial disclosure to date shows each has net family property of $0. In preparing a draft net family property statement, Mr. Burns did not include anything for his teacher’s pension as it has not been valued.

Law and Analysis

Summary Judgment

[23] Mr. Burns’ motion for summary judgment is brought pursuant to Rule 16 of the FLRs. Rule 16 was amended in May, 2015 to broaden the powers of the court on a summary judgment motion. The Rule now provides the same summary judgment powers set out in sub rules 20.04 (2.1) (2.2) of the Rules of Civil Procedure.

[24] The relevant provisions of Rule 16 for this motion are as follows:

WHEN AVAILABLE 16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

DIVORCE CLAIM (3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6). O. Reg. 114/99, r. 16 (3).

EVIDENCE REQUIRED (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE (5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

NO GENUINE ISSUE FOR TRIAL (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

POWERS (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

ORAL EVIDENCE (MINI-TRIAL) (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

ORDER GIVING DIRECTIONS (9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2), (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

[25] The test on a summary judgment motion set out in sub rule 16 (6) is whether there is a genuine issue requiring a trial. If the court determines the answer to this questions is no, the rules provide the court shall make a final order accordingly.

[26] As noted above, Mr. Burns argues the Marriage Contract signed by the parties in June, 2005 bars the applicant, Michelle Burns from seeking an equalization of net family property or spousal support.

[27] The process for a summary judgment motion is set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. This process is summarized by Justice Sherr in A. (E.A) v. H. (F.A.), 2015 ONCJ 339, as follows:

8 The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers…

9 If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests 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 (paragraph 66).

12 The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

13 There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[28] In Hryniak v. Mauldin, Madam Justice Karakatsanis states:

49 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.

[29] She goes on:

On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.

[30] The principles outlined in Hryniak have been applied to summary judgment motions in family law cases since the amendments to Rule 16 in May, 2015.

Divorce

[31] Ms. Burns’ application includes a divorce claim. As noted above, pursuant to sub Rule 16 (2) a motion for summary judgment may be made in any case that does not include a divorce claim. Therefore, pursuant to sub rule 16 (3) I order the divorce claim be severed from the other claims.

Marriage Contract

[32] Both parties agree there is a valid Marriage Contract. There is no request made by the Applicant to set it aside.

[33] The relevant sections of the Marriage Contract dated June 7, 2005 are as follows:

1. DEFINITIONS (a) In this agreement (iii) “property” means any interest, present or future, vested or contingent, in real or personal property and shall also include any payments received under disability pensions; (v) “Property” has the meaning given by the Family Law Act;

7.) FINANCIAL PROVISION The parties acknowledge that they are financially independent and that they do not require financial assistance from each other and that they are capable of supporting themselves. In the event of separation of the parties, or annulment or dissolution of the marriage, neither party shall be obliged to make payments of any kind of for the benefit of the other, and each party hereby expressing renounces any right or claim which he or she had, has or may hereinafter acquire whether at law or in equity, or under the provisions of any statute past, present or future, for alimony, interim alimony, support maintenance, property settlement or otherwise, and each party hereby agrees that he or she will not make any claims for monies of any nature for or towards his or her support and maintenance or referable to any obligations whatsoever arising or existing by reason of the marriage of the parties. The parties realize that their respective financial circumstances may change in the future, and no such changes will give either party the right to claim support, interim support, maintenance, interim alimony from other pursuant to the Family Law Act, or the Divorce Act, or pursuant to the laws of any other jurisdiction.

8.) JEFF’S PROPERTY AND RELEASES OF WIFE (a) The parties agree that all of the following property owned by Jeff will remain his separate property and will belong exclusively to him: i. The property owned by him at the date of this agreement; ii. Any property which JEFF may acquire after the date of this agreement by way of purchase, inheritance or gift from any person including MICHELLE, as well as any property which JEFF may receive as a consequence of the distribution of property from an inter-vivos or testamentary trust of which he is or may be a beneficiary. iii. Any investments or property purchased with funds from (i) or (ii) above to the extent that these funds are used to purchase such investments or property, and iv. All income, gains, and accretions derived from (i), (ii), and (iii) above, whether derived while the parties are cohabitating or afterwards. (b) The parties agree that none of the property referred to in subsection (a) above will be included in a determination of JEFF’s net family property, as that term is defined in the Family Law Act, and any successor. (c) MICHELLE agrees that she will not make any claim whatsoever for an interest of any kind in the property referred to in subsection (a). (d) MICHELLE releases and discharges all rights and claims relating to the property referred to in subsection (a) above including all rights and claims involving: i) ownership of property; ii) division of property; iii) compensation for contributions of any kind or an interest in property for contributions of any kind; iv) equalization payments of any kind, under the Family Law Act, and any successors, or similar legislation of any other jurisdiction

[34] Clause 9 is identical to clause 8 in the Marriage Contract regarding Michelle’s Property and Releases of Husband.

[35] Mr. Burns argues the Marriage Contract is clear, unambiguous and provides in paragraph 7 a full and final spousal support release and in paragraph 8, a property release prohibiting Ms. Burns from making any claims against any property owned or acquired by him. Mr. Burns argues he planned his financial affairs based on the agreement which he believed released any claims for equalization of net family property or spousal support.

[36] In interpreting a domestic contract such as this Marriage Contract, the court must search for an interpretation in accordance with the parties’ intention at the time they entered into the contract. The court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. The court must interpret the provision in the context of the entire contract to discern the likely intention of the parties. See MacDougall v. MacDougall, [2005] O.J. No. 5171 (Ont. C.A.)

Equalization

[37] Ms. Burns requested a Marriage Contract prior to the marriage and retained counsel to draft the agreement. At that time, Mr. Burns was in the process of claiming bankruptcy and filed an assignment in bankruptcy on June 19, 2005, just prior to the marriage. Mr. Burns deposed that at the time the agreement, was signed he understood that Ms. Burns did not want to be impacted by his financial circumstances, as they were in worse shape than hers. Ms. Burns agrees. She adds that Mr. Burns owned a home which he wished to protect. It was her understanding the contract was to allow both parties to keep the assets they brought into the marriage as well as any property they later acquired by purchasing, inheritance, gift or trust. The contract deliberately left out savings, bank accounts or pensions and did not contain a waiver of equalization of net family property under the FLA except for the listed assets.

[38] Mr. Burns argues that prior to the mediation held in January, 2017, Ms. Burns had consulted with a lawyer. At the mediation, she only dealt with personal property and household items. A Joint Application for Divorce subsequently drafted but never pursued, did not claim equalization of net family property. Although she met with counsel in late 2015, she did not make any equalization claim until retaining her current counsel in the summer of 2016.

[39] In considering the relevant clauses in the Marriage Contract as a whole, I find the property releases ambiguous and subject to interpretation.

[40] I note the following:

1. There are two definitions of property under the agreement. Clause 1 (a) (iii) defines “property” as: any interest, present or future, vested or contingent, in real or personal property and shall also include any payments received under disability pensions. Whereas clause 1 (a)(v) “Property” with a capital “P” is indicated to have the meaning given by the FLA. It is unclear as to why these two separate definitions were provided in the contract.

2. Clause 7 Financial Provision indicates each party renounces any right or claim for “alimony, interim alimony, support, maintenance, property settlement or otherwise.” The clause concludes: “The parties realize that their respective financial circumstances may change in the future, and no such changes will give either party the right to claim support, interim support, maintenance, interim alimony, or alimony from the other pursuant to the Family Law Act, or the Divorce Act, or pursuant to the laws of any other jurisdiction.” This clause deals with support and financial independence with respect to future support claims. At the very least, the reference to “property settlement” is ambiguous and unclear.

3. The property releases under clause 8 and 9 are with respect to specific classes of property listed under sub section (a). With respect to property acquired after the date of the agreement, property acquired by way of purchase, inheritance or gift as well as any property received from any inter-vivos or testamentary trust was to be separate property belonging exclusively to the party. Clauses (b) (c) and (d) refer to only to the property listed in (a). There is no general waiver of claims for equalization of net family property under the FLA, except for the property specifically excluded by the contract. If the intention of the parties was to cover any claim whatsoever for equalization of any property then the agreement should have made that clear.

[41] Mr. Burns argues that his teachers’ pension which has not been valued was acquired by him after the date of the agreement by way of “purchase” and therefore would not be “property” to be included in any equalization. Whether or not a deduction from gross income for the acquisition of a pension is a “purchase”, as contemplated by the parties at the time, is subject to further argument. Payments received under disability pensions are specifically defined as “property” under s. 1 (a)(iii). No other pensions are referred to.

[42] At the time the agreement was signed, Mr. Burns was working and attending college. Whether he would finish his training as a trades teacher and ultimately whether he would be entitled to a pension was yet to be determined. Whether the parties intended to exclude any future pensions, other than disability pensions, from equalization is unclear.

[43] Given, that the contract does not contain a clear, unambiguous waiver of equalization of all net family property and the fact that it lists specific items which will not be equalized permits an inference to be drawn that there would be certain property subject to equalization. In reviewing the contract, it appears that savings and bank accounts acquired after the date of the contract would not be included in the waiver and releases under sections 8 or 9.

[44] Therefore, I do not find the Marriage Contract an absolute bar to equalization of all net family property. The respondent, Mr. Burns’ motion for summary judgment on that issue is dismissed. There is a genuine issue requiring a trial with respect to equalization of net family property.

[45] It may be that once Mr. Burns has his pension valued, as ordered by Master Fortier, there will be little if anything to equalize. That valuation is now to take place.

Date of Separation

[46] The date of separation is relevant to both Ms. Burns’ claim for equalization and her claim for spousal support. There is clearly competing evidence with respect to this issue. There are issues of credibility and weight with respect to the evidence of both parties. Letters were provided in support of Ms. Burns’ contention regarding the July 15, 2011 date of separation which are unsworn and the writers have not been cross-examined. There appears to be a genuine issue requiring a trial as to the date of separation.

[47] In considering the second part of the test set out in Hryniak, I find it difficult to clearly evaluate credibility on the evidence provided without some opportunity for cross examination of the parties and possibly some of the witnesses supporting Ms. Burns’ contention. This could be done by way of a brief half day mini trial on the issue of the date of separation.

[48] Having said that, on the evidence before me, I find Ms. Burns to have provided more details and specifics with respect to the date of separation. In addition, she has provided some supporting evidence, although it has not been tested. Mr. Burns’ evidence is more of a blank denial indicating the parties never “lived together” after August 15, 2010. He provides little detail or specifics in this regard.

[49] I also note the time limitation for a claim for equalization for net family properties begins to run after “the spouses separate and there is no reasonable prospect that they will resume cohabitation.” s. 7 (3) FLA. The parties in fact attempted reconciliation in June and July 2011.

[50] Given that a final determination as to the date of separation has yet to be made, it is premature to consider an order under s. 2 (8) of the FLA to extend time.

Spousal Support

[51] In clause 7 of the Marriage Contract, the parties renounce any right or claim to spousal support. That clause concludes “the parties realize that their respective financial circumstances may change in the future and no such changes will give either party the right to claim support…. pursuant to the FLA or the Divorce Act or pursuant to the laws of any other jurisdiction.”

[52] As previously noted, both parties acknowledge the contract is valid. It has never been amended and there is no request to set it aside.

[53] In an originating application for spousal support under s. 15.2 of the Divorce Act where the parties have executed a Marriage Contract that is inconsistent with the claim for spousal support, the court must embark on a two stage process as outlined by the Supreme Court of Canada in Miglin v Miglin, 2003 SCC 24

[54] The parties agree that the conditions under which the agreement was negotiated are satisfactory and, given the circumstances of the parties at the time, the agreement was substantially in compliance with the objectives of the Divorce Act when it was executed. Therefore, in this case the argument is in respect to Stage 2 of the Miglin analysis which requires a consideration of the parties current circumstances and, as the court states in Miglin:

87 the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.

[55] The court goes on to note:

91 Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight

[56] The court makes it clear that the parties’ intentions as reflected in the agreement must be carefully considered. They “are the backdrop which the court must consider.”

88 The parties' intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties' circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be "radically unforeseen", and the applicant need not demonstrate a causal connection to the marriage, the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties' intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned.

[57] As noted, the court is not bound to intervene only where a change in circumstances in “radical”. Nor is it necessary to demonstrate that the circumstances rendering enforcement of the agreement inappropriate are causely connected to the marriage or its breakdown. The court notes at para 89:

The test here is not strict foreseeability; a thorough review of case law leaves virtually no change entirely unforeseeable. The question, rather, is the extent to which the unimpeachably negotiated agreement can be said to have contemplated the situation before the court at the time of the application.

[58] In this case, when the marriage agreement was signed in June, 2005 both parties were healthy and both were employed.

[59] Ms. Burns argues that although it was understood that circumstances might change in the future and that, according to clause 7 of the Marriage Contract, if the financial circumstances of the parties changed, no such change would give either party the right to claim spousal support, she did not foresee the catastrophic impact of the numerous changes in her circumstances which could not have been reasonably anticipated at the time she signed the agreement.

[60] On the evidence before me, I find that there have indeed been numerous uncontemplated, unforeseeable changes that have resulted in Ms. Burns’ losing her employment, going on a disability pension and therefore, dramatically reducing her income. Those changes are as follows:

1. The ongoing difficulties due to Mr. Burns’ alcoholism;
2. Her father suffering from Alzheimer’s and coming to live with the parties;
3. The serious accident suffered by her father while in her care for which her siblings blamed her;
4. Her resulting major depression with psychosis and suicidal ideations;
5. The development of significant back problems; and,
6. Being hit by a motor vehicle while riding a bicycle causing more back injury and a delay in recovering from depression.

[61] Ms. Burns has not been able to work since April 4, 2011 and has had to rely on social assistance ever since. Her income projected for 2017 is $12,956.00.

[62] Although the parties’ cohabitated for only 7-8 years and no claim was made for spousal support until approximately 6 years after separation, given the significant changes and the impact of the changes on Ms. Burns’ financial circumstances, it is arguable that the objectives listed under section 15.2 (6) of the Divorce Act are no longer met by the agreement.

[63] I do not find s. 7 of the Marriage Contract to be an absolute bar to Ms. Burns’ claim for spousal support. Therefore Mr. Burns’ motion for summary judgment with respect to the claim for spousal support is dismissed. There is a genuine issue requiring a trial as to entitlement, quantum and duration of spousal support.

Conclusion

[64] To summarize, Mr. Burns’ motion for summary judgment with respect to equalization of net family property and spousal support is dismissed. The parties are directed to follow the Order made by Master Fortier at the case conference on March 24, 2017. Once Mr. Burns’ pension has been valued and Ms. Burns has complied with the Order regarding production, a settlement conference date is to be set by the trial coordinator. If the parties agree, I would be prepared to conduct the settlement conference.

Costs

[65] Ms. Burns’ was the more successful party on the motions and is therefore entitled to costs. If the parties cannot agree on the quantum of costs, they may set a motion date before myself with the trial coordinator for a maximum of one hour to determine this issue.

Blishen J.

Released: September 21, 2017