Court File and Parties

Court File No.: FS-17-216-78 Date: 2019-06-18 Ontario Superior Court of Justice

Between: Richard Smith, Appellant And: Celine Arsenault-Smith, Respondent

Counsel: John Adair, for the Appellant William Pepall and Rebecca Shoom, for the Respondent

Heard at Toronto: May 23, 2019

On appeal from the decision of Arbitrator Herschel Fogelman dated June 27, 2017

C. Horkins J.

Overview

[1] This is an appeal about the immediate ongoing obligation to make full and honest disclosure in a family dispute.

[2] The appellant, Richard Smith, appeals part of a Final Arbitral Award of Arbitrator, Herschel Fogelman, dated June 27, 2017.

[3] The parties separated on August 31, 2012. They proceeded with a mediation/arbitration process with the Arbitrator and resolved many issues. Two substantive issues were not resolved: the children’s residential schedule and child and spousal support. Support required a determination of Mr. Smith’s income and entitlement to spousal support was contested.

[4] The Arbitration of the unresolved issues proceeded in February and March 2016. On the first day of this Arbitration, the parties signed Minutes of Settlement dated February 9, 2016. Paragraph 1 of the Minutes of Settlement resolved the issue of retroactive support up to December 31, 2015. It required Mr. Smith to pay the respondent, Ms. Arsenault-Smith, a lump sum net amount of $72,500.

[5] In the midst of the Arbitration, Ms. Arsenault-Smith brought a motion to set aside paragraph 1 of the Minutes of Settlement. She argued that Mr. Smith misrepresented his income for the purpose of the Minutes of Settlement because he did not disclose that he had earned $1,120,844.98 in stock option income in 2015.

[6] Mr. Smith argued that the Minutes of Settlement should not be set aside because he claimed that he had disclosed his 2015 stock option income to Ms. Arsenault-Smith and Ms. Arsenault-Smith and her counsel failed to appreciate the significance of this disclosure.

[7] The Arbitrator found that Mr. Smith did not fulfill his legal obligation to make full disclosure before the Minutes of Settlement were signed. As a result, paragraph 1 of the Minutes of Settlement was set aside in the Award. Mr. Smith appeals this part of the Award.

Standard of Review

[8] The standard of review on an appeal from a judge's order is set out in Housen v. Nikolaisen, 2002 SCC 33. The same standard applies to an appeal from an arbitrator’s award. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

[9] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[10] With respect to findings of fact, an appellate court "may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence" (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4). The Supreme Court of Canada went on to say (at para. 55) that the language of "palpable and overriding error" and "clearly wrong" found in the case law "encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result."

[11] Finally, deference is owed to the Arbitrator’s decision. The Arbitrator was chosen by the parties and is known for his expertise and experience in family law (see Murphy v. Murphy, 2015 ONCA 69 at para. 11).

Grounds of Appeal

[12] The grounds of appeal as articulated at the hearing of the appeal are as follows:

1. The Arbitrator made a palpable and overriding error of fact when he found that Mr. Smith failed to disclose or misrepresented his 2015 income, specifically his stock option income.
2. The Arbitrator erred in law in finding that Mr. Smith’s non-disclosure of his 2015 income was based on his December 2015 affidavit. This was wrong in law according to Shinder v. Shinder, 2018 ONCA 717 (“Shinder”).
3. The Arbitrator erred in law and made palpable and overriding errors of fact because he relieved Ms. Arsenault-Smith of the obligation to make inquiries upon receiving disclosure.

The Arbitrator’s Decision

[13] The Arbitrator’s decision sets out a careful and detailed review of the applicable law, the evidence and findings of fact. His decision to set aside the Minutes of Settlement is well reasoned and supported by the facts. As I will explain below, he made no errors of law and no palpable and overriding errors of fact.

Summary of the Decision

[14] The issue on the motion before the Arbitrator was whether Mr. Smith had “fulfilled his obligations in law to make full disclosure before a settlement was reached.”

[15] The Arbitrator stated that the issue of disclosure had to be considered in “the context of all the disclosure and statements” that Mr. Smith had made about his 2015 income. He then embarked on a detailed consideration of “all” the disclosure and statements as reviewed below.

[16] In the years 2012, 2013 and 2014 there was “virtually no difference” in the income amount disclosed in Mr. Smith’s financial statement and his line 150 income. Mr. Smith represented in a sworn affidavit that his 2015 income would be similar to his 2014 income that was approximately $975,000.

[17] The Arbitrator found that Ms. Arsenault-Smith “had every reason to rely on the statements made by Mr. Smith regarding his 2015 income. She had no reason to think that what Mr. Smith deposed in his affidavit and his financial statements was anything other than the complete truth regarding his income.”

[18] Mr. Smith’s employer, Cosma, granted him stock options during his employment. The value of the options was included in equalization that the parties settled at some point in 2014. When equalization was settled in 2014, Mr. Smith had not realized on the stock options. The options had a value of $69,000 on the date of separation, August 31, 2012.

[19] In March and June 2015, Mr. Smith realized on some of his stock options and in total he received $1,120,844.98.

[20] Mr. Smith prepared and served a Statement of Position dated November 13, 2015 for the continuing arbitration. In para. 47 of this document, he stated that he “realized the value of some of his stock options granted to him as a result of his employment with Cosma International (the Magna Stock Options) with a corresponding inclusion in income, but which should be excluded in his income for support purposes.” He did not include in his Statement of Position, the $1,120,844.98 value of the stock option income. He stated that his 2015 income would be “roughly the same as his 2014 income”.

[21] In the various documents that Mr. Smith served on Ms. Arsenault-Smith, the amount of the stock option income, $1,120,844.98, only appears in two pay stubs. The first pay stub is dated October 23, 2015 and the second pay stub is dated December 18, 2015. Each pay stub was attached to a financial statement as noted below.

[22] Mr. Smith swore a financial statement on November 16, 2015. By this point, his employment had been terminated and he was self-employed. For proof of his “year-to-date income from all sources” he attached a “pay cheque stub dated October 23, 2105”. This pay stub showed that his earnings/gross pay at that point totaled $837,991.29. Under the heading “Other Benefits and Information” three taxable benefits are listed, including a benefit described as “Stock Taxben 1,120,844.98”.

[23] The $1,120,844.98 stock option payment that Mr. Smith had received in 2015 was not listed anywhere in the sworn November 2015 form 13 financial statement.

[24] In para. 4 of the November 2015 financial statement, he set out his 2014 "gross income from all sources', with a precise breakdown of the components of his income:

$975,768.95 2014 Line 150 $851,267.95 Cosma Employment Income $113,386.77 Settlement from CAPREIT RSUs not to be Included as property issues as previously settled with Celine. $11,134.22 - Income from property that was previously settled with Celine

[25] Under part 3 of the November 2015 financial statement dealing with “Assets”, Mr. Smith listed an investment valued at $39,771.36 described as “Vested Magna Stock Options -2,334 Options @ $53.36 (FMV:$70.40)”.

[26] The November 2015 financial statement was served on Ms. Arsenault-Smith on November 24, 2015.

[27] In December 2015, Mr. Smith brought a motion to vary his interim support payments. In support of his motion, he swore two affidavits and did not reveal his receipt of the stock option income. In his December 10, 2015 affidavit, he stated that the interim support agreement was “untenable” because of his employment circumstances. He swore that his 2015 income was as follows:

I received remuneration of approximately $850,000.00 in 2014, inclusive of base salary in the sum of $150,000.00 and a bonus. I expect that my 2015 total income will be similar to my 2014 total income.

[28] On his motion, Mr. Smith did not provide a sworn financial statement, or a pay stub containing a value for his stock option income. The Arbitrator heard the motion and issued an interim award on January 4, 2016. Effective January 1, 2016, his child support was reduced to approximately $1,000/month, and no spousal support was ordered.

[29] In deciding to set aside the Minutes of Settlement, the Arbitrator acknowledged the relevance of the evidence that Mr. Smith provided to support his December 2015 motion. At paras. 47-49 the Arbitrator stated:

47. I agree with Mr. Pepall’s submissions that the statements made by Mr. Smith in that motion and in the supporting affidavit are relevant to the current issue. In that motion, Mr. Smith sought to reduce his support obligations. Mr. Smith swore that his 2015 income would be similar to his income earned in 2014. His 2014 income was approximately $975,000.00.
48. By the time he swore that affidavit (December 10, 2015) Mr. Smith had already sold his options and received the income inclusion in excess of one million dollars as set out in the paystub. He must have known that his “income” in 2015 would be far greater than that earned in 2014. I also agree with the submissions of counsel for the moving party that Mr. Smith’s failure to include either an updated financial statement or the relevant paystubs to the December affidavit is material to this issue.
49. The effect of these omissions is that they leave Ms. Arsenault-Smith and her advisors with the erroneous belief that Mr. Smith’s 2015 income would be in the range of $850,000-$950,000 for 2015. Ms. Arsenault-Smith and her advisors relied on his sworn evidence regarding his income. They had no reason at that stage to doubt the veracity of Mr. Smith’s evidence regarding his income. [Footnotes omitted.]

[30] On February 5, 2016, Mr. Smith swore another financial statement. In the February 2016 financial statement, he swore that his 2015 gross income from all sources was $866,186.46 that consisted of “$806.930.45 - Cosma Employment Income (excluding benefits)” and “$59,250.00 Consulting Fees per attached”. He attached a pay stub dated December 18, 2015 as proof of his “income from all sources”.

[31] The December pay stub was similar to the one attached to the November 2015 financial statement. His gross pay was listed as $905,216.99. Under a heading “Other Benefits and Information” three taxable benefits were listed. The first benefit was described as “Stock Taxben 1,120,844.98”.

[32] The December pay stub also included a handwritten calculation that matched the 2015 gross income ($806,936.45) shown on the February 2016 financial statement.

[33] Under Part 3 of the February 2016 financial statement, dealing with Assets, Mr. Smith included “Vested Magna Stock Options” and assigned a value of “$0.00”.

[34] While the value of the stock option income was shown on the attached December pay stub, the $1,120,844.98 was not included anywhere in the February 2016 financial statement.

[35] The Arbitrator found that when Ms. Arsenault-Smith and her counsel received the February 2016 financial statement, it confirmed their earlier erroneous belief that his 2015 income was in the range of $850,000-$950,000. At para. 50, the Arbitrator stated:

… their review of the references to income (whether they are on page 2 or 3 of those documents) confirms their earlier belief, and accords with the sworn statements in Mr. Smith’s December 2015 affidavit. They have little or no reason to cross-reference the income amounts stated in the financial statements with the paystubs attached.

[36] To support this finding of fact, the Arbitrator referred to the income that Mr. Smith disclosed in his financial statements and his line 150 income in the years 2012-2014. At para 51, the Arbitrator stated:

For the years 2012, 2013 and 2014 there was virtually no difference in those two amounts. Ms. Arsenault-Smith had every reason to rely on the statements made by Mr. Smith regarding his 2015 income. She had no reason to think that what Mr. Smith deposed in his affidavit and his financial statements was anything other than the complete truth regarding his income.

[37] On February 9, 2016, Mr. Smith served a second Statement of Position, in which he stated:

Richard’s total income for 2015, exclusive of benefits, is the sum of $866,186.45 as comprised of his base salary with Cosma in the amount of $124,038.45, his bonus from Cosma in the sum of $682,898.00 and his 2015 consulting billings to Cosma and Acasta in the sum of $59,250.

[38] In this second Statement of Position, Mr. Smith stated that in 2015 he “realized the value of some of his stock options” but he did not include any reference to the $1,120,844.98 value. He also stated that the value “should be excluded in his income for support purposes” and that the stock options formed part of the settlement of property.

[39] Returning to the pay stubs, the Arbitrator stated at paras. 68-70:

68. In considering Mr. Moldaver’s arguments one must also return to the actual paystub and what it says. As indicated above the specific reference is found under the heading “Other benefits and information.” The exact reference is to “Stock Taxben” beside which is a number, without a dollar sign, of 1,120,844.98.
69. There is no associated paystub issued at the exact time of the sale of the options. The paystub in question, dated October 23, 2015 shows at the bottom a single payment of $19,148, which is the after-tax amount of Mr. Smith’s monthly income. The October 23, 2015 paystub does not specifically show the amount received on the sale of the options as a cheque or payment to Mr. Smith as the options were sold prior to October. There is no associated paystub for the time the options were sold.
70. In this regard, it is noteworthy that requests were made for Mr. Smith’s monthly bank statements and those requests were denied. Those statements if they had been delivered ought to have solved this problem, as would the delivery of the paystubs where the receipt of the option income was clearly referenced or set out as a payment/cheque to Mr. Smith. [Footnote omitted.]

[40] The Arbitration of the remaining issues proceeded in February and March 2016. As noted, the parties signed Minutes of Settlement dated February 9, 2016 that resolved the issue of retroactive child and spousal support up to December 31, 2015. This settlement required Mr. Smith to pay Ms. Arsenault-Smith a lump sum net amount of $72,500.

[41] During the Arbitration, Ms. Arsenault-Smith learned that Mr. Smith’s income was far greater than what he had disclosed to her, when the Minutes of Settlement were signed. Specifically, she was unaware that Mr. Smith had earned over $1,120,844.98 in stock option income in 2015 and that his total income that year was $1,928,314.49. As a result, she brought her motion to set aside the Minutes of Settlement. Mr. Smith maintained that he had made full disclosure and argued that Ms. Arsenault-Smith and her counsel failed to appreciate the disclosure he had provided.

[42] The Arbitrator found that the Mr. Smith did not provide “full disclosure” before the Minutes of Settlement were signed. His disclosure created “information asymmetry” that the Arbitrator explained at para. 61:

Information asymmetry is precisely what happened in this case. There was a disconnect between Mr. Smith’s paystub and the totality of his other evidence concerning his income. He did not correct that asymmetry. He did not specifically advise counsel for Ms. Arsenault-Smith of this asymmetry and in doing so, allowed the mistaken belief regarding his 2015 to continue.

[43] Having found a lack of full disclosure and information asymmetry, the Arbitrator stated at para 75:

Mr. Smith believed that having equalized on the options, he could reasonably exclude them from income. This is the position he advocates in his position statement. However, it is not for him alone to make that determination, it must be done in the context of full disclosure which it was not.

Analysis - Grounds of Appeal

1. The Arbitrator made a palpable and overriding error of fact when he found that Mr. Smith failed to disclose or misrepresented his 2015 income, specifically his stock option income

[44] This ground of appeal rests on the argument that Mr. Smith disclosed the fact that he received stock option income in 2015, told Ms. Arsenault-Smith his position that it was excluded and supplied two pay stubs to her counsel that included the amount of this income. In addition to what he revealed in his affidavits, financial statements and Statements of Position (as reviewed above), Mr. Smith relies on the fact that in preparation for the arbitration, Ms. Arsenault-Smith’s counsel asked that the pay stubs be included in the exhibit brief. Mr. Smith states that her counsel obviously thought that the pay stubs were important.

[45] Mr. Smith argues that he complied with his disclosure obligation and Ms. Smith and her counsel failed to appreciate the significance of his disclosure.

[46] Mr. Smith relies on Quinn v. Keiper, [2007] O.J. No. 4169 at para. 48. This decision involved a motion to set aside a Separation Agreement because of non-disclosure. At para. 48 the court stated:

Finally, formal disclosure by way of sworn financial statements prior to executing an agreement is not necessary to meet the obligation to disclose. A general awareness of the assets of the other party may be sufficient to avoid setting aside an agreement. Parties are expected to use due diligence in ascertaining the facts underlying their agreements; a party cannot fail to ask the correct questions and then rely on a lack of disclosure. One must inquire whether the responding party withheld information or whether the information was available to the party seeking to set aside the agreement. [Footnotes omitted.]

[47] Relying on this decision, Mr. Smith argues that he fulfilled his disclosure obligation because he made his information available in a reasonable fashion. As a result, he states that the Arbitrator made a palpable and overriding error of fact in finding that he failed to disclose the stock option income. I disagree.

[48] The decision in Quinn v. Keiper is not the guiding authority on disclosure. The Arbitrator correctly relied upon Rick v. Brandsema, 2009 SCC 10 as set out below.

[49] A palpable and overriding error of fact is one that is “clearly wrong” and no such error occurred in this case. The Arbitrator carefully reviewed what Mr. Smith disclosed. He considered his affidavits, financial statements, Statements of Position and pay stubs. He also considered what was not provided. This evidence viewed as a whole provided the factual support for the Arbitrator’s finding that there was information asymmetry. On these facts, it was open to the Arbitrator to find that Mr. Smith had not complied with his positive duty to make “full and honest disclosure” as set out in Rick v. Brandsema, 2009 SCC 10 at paras. 46-49.

[50] As the Supreme Court of Canada explained in Rick v. Brandsema at para. 46, Informational asymmetry compromises a spouse's ability to reach an acceptable bargain:

Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse's ability to do so (Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 (S.C.C.), at para. 34”. [Emphasis added.]

2. The Arbitrator erred in law in finding that Mr. Smith’s non-disclosure of 2015 income was based on his December 2015 affidavit. This was wrong in law according to Shinder

[51] I start with an overview of Shinder. In this case the motion judge found that the respondent, Neil Shinder had deliberately failed to disclose to the applicant, Randi Shinder, his interest in a family trust. This finding was made in the context of the applicant’s request to set aside a Separation Agreement and Minutes of Settlement. The issue of whether the non-disclosure was “material or significant” under s. 56 of the Family Law Act R.S.O. 1990, Chapter F.3 was not decided.

[52] The respondent appealed the decision and was successful. There was no dispute that the respondent had failed to include his trust interest in his financial statement as required under the Family Law Rules O. Reg. 114/99. However, disclosure of the trust interest had been made to the applicant’s counsel and financial advisor as explained in para 52:

… indeed among other things, they were given the Trust indenture that clearly identified Neil as a Trust beneficiary, financial statements for Coofer for the years preceding the couple's separation, and a Coofer valuation report prepared to effect the estate freeze and to value Neil's shares in Coofer. Furthermore, this was not disclosure that was in any way buried. The Trust was specifically mentioned in correspondence between counsel and the financial advisors. Randi was deemed to have knowledge as a result of the knowledge of her counsel.

[53] Although the respondent should have included his trust interest in his financial statement, this failure did not alter the fact that the applicant’s counsel and financial advisors received disclosure of the trust interest. Such disclosure was not “in any way buried”. Given the knowledge of her advisors, the applicant was deemed to have knowledge of the respondent’s trust interest.

[54] In Shinder, the Court of Appeal stated that an “omission cannot serve to turn actual disclosure … into non-disclosure for the purpose of s. 56(4) of the Family Law Act.”

[55] On this appeal, Mr. Smith argues that the Arbitrator erred in law because he relied on the “omission” of the stock option income in the December 2015 affidavit, to turn actual disclosure of his stock option income elsewhere, “into non-disclosure for the purpose of s. 56(4) of the Family Law Act.”

[56] I reject this argument. The facts in this case do not trigger the principle in Shinder, that an omission cannot turn actual disclosure into non-disclosure. It is a fact that Mr. Smith did not disclose his stock option income in his December 2015 affidavit. He swore this affidavit in support of his motion to decrease his interim support obligations. The principle of law set out in Shinder assumes that despite an omission, “actual disclosure” is found to have been provided. “Actual disclosure” did not occur in this case. As I explained under the first ground of appeal, there was ample evidence to support the finding of fact that information asymmetry had occurred and that Mr. Smith had not complied with his duty to make full disclosure. Attaching the pay stub did not amount to “actual disclosure”. Instead, the disclosure provided created information asymmetry and as a result, Mr. Smith did not comply with the duty to provide “full and honest disclosure”.

3. The Arbitrator erred in law and made palpable and overriding errors of fact because he relieved Ms. Arsenault-Smith of the obligation to make inquiries upon receiving disclosure

[57] This ground of appeal misconstrues the law of disclosure and the Arbitrator’s findings of fact.

[58] The alleged palpable and overriding error of fact goes to the issue of whether Mr. Smith provided Ms. Arsenault-Smith with enough disclosure. He argues that he did and says that the Arbitrator’s decision on this point is not consistent. To support this argument, Mr. Smith states that in paras. 58 and 79 of the decision, the Arbitrator said there was enough disclosure to put Ms. Arsenault-Smith on notice and yet, in para. 66, the Arbitrator said the opposite (para. 65 is included to provide context). These paras. are set out below:

58. Conversely as argued by Mr. Pepall, Mr. Smith had a positive duty to make complete disclosure in his financial statements. Without that disclosure is it not clear to the reader what options Mr. Smith owned or their value, approximate or otherwise in 2015. The true value of the options was only evident by the sale and the inclusion of that income in the paystub and in the tax return.
59. As he states in his factum, “parties are expected to use due diligence in ascertaining the facts underlying their agreements; a party cannot fail to ask the correct questions and then rely on lack of disclosure.”
60. That statement is no doubt correct, but implies that the necessary foundation for the questions exist. Put another way, Ms. Arsenault-Smith would have to have known that Mr. Smith exercised options and then ought to have asked the next and proper questions regarding quantum. If on the other hand, she did not know of the fact that the options were exercised she cannot be faulted for failure to pursue that area of inquiry.
61. Surely at some point in the disclosure continuum the onus shifts to the recipient party, but that can only happen if complete and non-ambiguous disclosure is made. Ms. Arsenault-Smith and her team could and probably should have asked more questions regarding the paystub and the position statement. The fact that they did not may be an issue on costs, but is not in my view, sufficient to insulate Mr. Smith from the motion.

[59] I see no inconsistency in these excerpts from the decision nor a palpable and overriding error of fact. The Arbitrator acknowledged that at “some point in the disclosure continuum the onus shifts to the recipient party”. He also made it abundantly clear that the onus only shifts when “complete and non-ambiguous disclosure is made” which did not occur on the facts before the Arbitrator.

[60] Connected to this argument is Mr. Smith’s position that the Arbitrator erred in law because he relieved Ms. Arsenault-Smith (and her counsel) of the obligation to make inquiries upon receiving disclosure.

[61] Mr. Smith states that the Arbitrator misstated the disclosure obligation when he described the issue before him in para. 11 as follows: “the only issue is whether Mr. Smith fulfilled his obligation in law to make full disclosure before a settlement was reached”. Further, Mr. Smith relies on para. 50 where the Arbitrator stated:

When Ms. Arsenault-Smith and her counsel subsequently receive updated financial statements, their review of the references to income (whether they are on page 2 or 3 of those documents) confirms their earlier belief, and accords with the sworn statements in Mr. Smith’s December 2015 affidavit. They have little or no reason to cross-reference the income amounts stated in the financial statements with the paystubs attached.

[Emphasis added.]

[62] Mr. Smith argues that the Arbitrator erred in law because he says that this decision, and in particular the above passage, relieved Ms. Arsenault-Smith and her counsel of the duty to make inquiries upon receipt of his disclosure.

[63] In an adversarial system, Mr. Smith states that the recipient of the disclosure has a duty to cross reference the information that is disclosed. He also argues that one cannot have a system where a domestic contract is negotiated and set aside because one party did not appreciate the significance of what was disclosed.

[64] Mr. Smith states that the effect of the Arbitrator’s decision is to impose an obligation on him to “connect the dots” for Ms. Arsenault-Smith. He argues that this is contrary to the nature of an adversarial system and contrary to Quinn v. Keiper. He argues that he made his disclosure and the burden shifted to Ms. Arsenault-Smith to conduct whatever due diligence she deemed was necessary.

[65] Once again, Mr. Smith relies on Quinn v. Keiper at para. 48. This paragraph was considered above. It is not the guiding authority on disclosure. The Arbitrator correctly relied upon Rick v. Brandsema and the duty to make “full and honest disclosure”. Whether Ms. Arsenault-Smith’s counsel should have asked questions about the disclosure does not relieve Mr. Smith of his duty to make full and honest disclosure. The onus on Mr. Smith cannot shift to Ms. Arsenault-Smith until he has discharged his obligation to provide the disclosure. Mr. Smith did not discharge his disclosure obligation. Instead, his disclosure created information asymmetry.

Conclusion

[66] The appeal is dismissed.

[67] The parties have agreed on costs fixed at $12,500 all inclusive. The appellant shall pay the respondent her costs of this appeal fixed at $12,500.

C. Horkins J. Released: June 18, 2019

COURT FILE NO.: FS-17-216-78 DATE: 20190618 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Richard Smith Appellant – and – Celine Arsenault-Smith Respondent

REASONS FOR JUDGMENT C. Horkins J. Released: June 18, 2019