Superior Court of Justice – Ontario (Family Court)

Citation: Wight v. Hernandez, 2017 ONSC 5909

Court File No.: F1065/17

Date: 2017/10/10

Re: Vanessa Gale Wight, Applicant

And: Gonzalo Hanz Gomez-Daza Hernandez, Respondent

Before: George J.

Counsel: S. Hassan, for the Applicant G. Hernandez, Self-Represented

Heard: September 20, 2017

ENDORSEMENT

[1] The parties met in 2005 and started dating shortly thereafter. They began cohabiting in 2006 and separated in July 2017. They have two children, now ages 8 and 10.

[2] The parties entered into a separation agreement on July 20, 2017. It sets out an equal-time parenting schedule with no child support. Its validity and enforceability lie at the heart of this matter.

[3] This is the Applicant’s motion. She seeks to, on an interim basis, set aside the agreement. She requests interim sole custody (or interim shared custody) with the children in her primary care. She wants the Respondent’s parenting time limited to alternating weekends and one mid-week visit.

[4] There has not yet been a case conference, which means there must be an urgency before I can make an order. Given the allegation that the status quo has been altered through pressure and manipulation, with the children’s best interests consequently being compromised; and given the length of time to obtain a case conference date, I am of the view that there is an urgency as its contemplated in r. 14(4.2) of the Family Law Rules.

[5] The issue of child support has already been addressed. The Respondent is now paying to the Applicant an offset child support amount.

[6] These are the relevant provisions of the separation agreement:

D. The parties have each voluntarily entered into this Agreement and have not been forced by anyone to sign this Agreement, and both the Parties confirm that they are in sound mental health.

3. The Parties agree that joint legal custody is in the best interests of the children. The Parties agree that both parents are fit and proper persons to have joint responsibility for the care of the dependent children.

4. The Parties agree that the children will reside with both parents.

5. The parties also agree that the parties will have the following visitation time with the children:

a. Regular visitation schedule:

On a 14 day schedule the children will spend an equal of 7 days and nights with each parent, following the routine below:

Children will spend days 1, 2, 3, 4, 8, 9, 10 of the 14 day schedule with Vanessa Gale Wight.

Children will spend days 5, 6, 7, 11, 12, 13, 14 of the 14 day schedule with Gonzalo Hanz Gomez-Daza [Hernandez].

6. Gonzalo Hanz Gomez-Daza Hernandez will pay child support in the amount of $0.00 (or the amount payable pursuant to Federal Support Guidelines of Canada) monthly to Vanessa Gale Wight. Child support payments will commence on August 1, 2017 and will be paid on the 1st day of each and every month.

[7] The Applicant points to additional terms that, in her view, render the entire agreement unconscionable. These include a no spousal support provision (despite her need and dependency throughout the relationship), as well as a transfer of her interest in the family home to the Respondent without a buy-out term. Respecting the latter, it appears as if the consideration is the Respondent will maintain the property and pay all expenses including fees, taxes, utilities and mortgage. It’s not entirely clear to what extent the property is leveraged and whether this represents a fair bargain. I suspect it is not fair but that will be determined another day.

[8] Each party signed the agreement. Attached to it is a signed acknowledgement, completed by a lawyer that states as follows:

1. This document was acknowledged under oath to my satisfaction by Vanessa Gale Wight apart from Gonzalo Hanz Gomez-Daza Hernandez.

2. Vanessa Gale Wight acknowledged to me:

a. THAT he/she is aware of the agreement and understands the provisions of same.

b. THAT he/she is aware of the possible claims to property that he/she may have under the existing Provincial legislation that he/she intends to give up these claims to the extent necessary to give effect to the Agreement.

c. THAT he/she is executing this document freely and voluntary without any compulsion on the part of Gonzalo Hanz Gomez-Hernandez.

[9] The Applicant says she was pressured into signing the agreement and did not voluntarily agree to its terms. She claims to have been forced from the matrimonial home, which in turn increased the pressure to agree with whatever the Respondent proposed. Her primary position is the contract is invalid, but alternatively argues that even if it is valid, it is contrary to the children’s best interests as she has always been their primary caregiver. She says she did not receive, and did not have the opportunity to obtain, independent legal advice.

[10] The Respondent submits the separation agreement should continue to govern, as it maximizes the amount of time the children spend with each parent and is therefore in their best interests. He maintains the agreement was arrived at fairly and that the applicant advised him she had obtained independent legal advice. He contends the children have always been in their mutual and equal care.

[11] To illustrate the conflicting accounts before me, I will reproduce portions of their respective affidavits. At para. 4 of the Applicant’s affidavit dated September 8, 2017 she deposes that:

I had hoped the respondent and I would be able to come to an arrangement that we both agreed was best for our children. I realized very early that this was not going to happen. He controlled our family throughout our relationship and is trying to do the same in our separation. He dictated all of the terms…and gave me no option but to accept them. This included no child support, no spousal support, no interest in the home, no medical or dental coverage for me or the children, and no real say in where our children lived. After I was out of the home I [realized] this was not a fair settlement, and not in the interests of the children, and I commenced this proceeding as soon as possible, with the assistance of my parents.

[12] At para. 6 of the Respondent’s affidavit dated August 21, 2017 he deposes that:

The [children’s] joint legal custody was agreed on the fact that I am an extremely committed father, with a deep history of involvement ranging from taking parental leave in their first year of life to [travelling] to Vancouver as the sole caregiver during the [children’s] soccer activities. I did not [force] any of [these] terms, the applicant and I agreed on these together because [they] would be in the best [interests] of the children and the related parties, [and they] would maximize the time with each parent and minimize the time spent under a third party child care.

[13] The dispute relates to both the nature of the relationship and the extent to which each has been, and is, involved in childcare. The Applicant says the Respondent was and is controlling, erratic, and abusive. The Respondent paints a more positive picture suggesting the Applicant and he have largely communicated in a polite and civil manner and can together focus on the children’s best interests.

[14] The extent to which each cared for the children and the circumstances surrounding the preparation of the separation agreement are not questions I can now resolve. The record to this point consists of conflicting and untested evidence. The Applicant argues the evidence shows that the status quo, immediately before separation, was that she was the primary caregiver and that the Respondent’s time with the children was limited. The Respondent argues otherwise.

[15] My intention is not to minimize the Applicant’s allegation that the Respondent is abusive and erratic. I recognize the law does not require such an allegation be corroborated by independent evidence. But in this case, I must use caution. The only objectively known fact is the police have twice been called, each time declining to become involved. Furthermore, I know there have been no complaints to, or intervention by, child protection authorities. With that I am left with a he said-she said scenario.

[16] Further context includes the Applicant’s newfound employment. She was a stay at home mom and therefore able to care for the children full-time, but this is no longer the case. Also, while the circumstances surrounding her exit from the family home must still be litigated, the reality is that, since separation, the Respondent has been living there with the children. During this interim period, the children should be there as often as possible.

[17] Having said that there is some merit to the Applicant’s position that the collective impact of all the terms, including how, initially, no child support was payable; the no spousal support provision; and her relinquishment of any interest in the family home, calls the integrity of the entire agreement into question.

[18] The leading authority in this area is Miglin v. Miglin, 2003 SCC 24, which sets out when a separation agreement should be upheld. While Miglin dealt narrowly with a support obligation, cases decided thereafter, including in Ontario, have held that the principles enunciated in Miglin apply to custody agreements as well.

[19] Miglin requires that I consider, amongst other factors, whether the negotiations were fair, whether the parties had equal bargaining power and access to legal advice, and whether pressure was brought to bear upon a vulnerable party.

[20] The Applicant submits that, even if the agreement passes the Miglin test, I must still be satisfied that the parenting schedule is in the children’s best interests. At this stage, it is in their best interests. It strikes the right balance and provides least a semblance of stability and continuity for the children. Based on the conflicting affidavit evidence filed on this motion there is no reason to disrupt the arrangement that has been in place since separation.

[21] The Applicant may well achieve success at trial, and most certainly will if the credibility issues are resolved in her favour. However, there are a number of crucial facts in dispute that I can’t now resolve. There have also been considerable changes since separation, including the Applicant’s new-found employment and the Respondent’s continued presence in the family home. Until the credibility issues can be resolved and the evidence can be fully evaluated, I cannot address the first stage of the Miglin test and have no reason to set aside the agreement.

[22] For these reasons, I make the following interim order.

Respecting the Applicant’s motion at tab 4 of the continuing record:

1. Para. 2 is granted;

2. Paras. 3, 4, and 5 are dismissed;

3. The parties shall have interim joint custody of the children G. W., DOB July 29, 2007, and G. W., DOB January 22, 2009;

4. The parties shall abide by the parenting schedule set out in paras. 4 and 5 of their separation agreement dated July 20, 2017;

5. The balance of this motion, and the Applicant’s motion at tab 11, are adjourned to the December 12,2017 case conference, to be spoken to;

6. Subject to the case conference judge’s discretion, if the balance of the issues are to be argued at once, a special appointment is to be arranged; and

7. No costs.

[23] Incidentally, it appears that the Office of the Children’s Lawyer would be helpful in this case, and I would urge the parties to jointly request an order inviting its involvement.

“Justice J. C. George”

Justice J. C. George

Date: October 10, 2017