NEWMARKET COURT FILE NO.: FC-17-53759-00

DATE: 20190117

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bella Nadia Milne, Applicant

AND:

Eric C. Milne, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Cynthia Lauer, for the Applicant

Raymond A. Goddard, for the Respondent

HEARD: December 8, 2018

ENDORSEMENT

BACKGROUND

1The Applicant, Bella Milne, brings an originating application for spousal support against the Respondent, her former common law partner, Eric Milne, but she has a problem. Spousal support was finally settled by way of a separation agreement signed by her some years ago, in December, 2015. That agreement provided for a lump sum payment of $88,000 and spousal support of $4,000 per month payable for three years. The agreement contained full spousal support and property releases.

2The money owing under the agreement has been paid in full by the Respondent and the time limited spousal support is at an end. Now the Applicant finds herself in desperate circumstances. She lives in a shelter and is in receipt of public assistance from both the Ontario Disability Support Plan and the Canada Pension Plan. She seeks to set aside the separation agreement and asks for further spousal support beyond that called for in the agreement.

3When the agreement was signed, the parties disagreed on how long they had lived together. The agreement reflects this in its recitals which confirm that the Applicant says that the parties had lived together for about 10 years from June, 2005 to August 15, 2015 but that the Respondent is that they began living together in November, 2007, separated in December, 2010 and reconciled in May, 2011, finally separating on August 5, 2015, for a total of about seven years. In this proceeding, the parties have changed their positions: Ms. Milne now says that the parties lived together for 12 years between June, 2005 to March 1, 2017 (based upon an alleged reconciliation between June, 2016 and March 1, 2017); Mr. Milne denies the reconciliation and also says that the parties only lived together for three years between 2007 and 2010 although the relationship continued to 2015.¹

4The parties never married and have no children. The matter is therefore governed by the Family Law Act (the “FLA”).² Section 2(10) of the FLA provides that a “domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.” Therefore, as McGee J. told the parties on May 9, 2018, to obtain further spousal support, Ms. Milne must first succeed in her efforts to set aside the agreement or, at least, the spousal support release contained therein.

5A review of Ms. Milne’s application confirms the sections that the Respondent relies upon to attack the agreement. There is a claim for spousal support and a claim to set aside the separation agreement “pursuant to sections 56(4) and 33(4) of the Family Law Act.” The application states that the Respondent “told the Applicant to sign a Separation Agreement or she would be on the street” and that “he had the resources to keep fighting her forever in court and to humiliate her.” The Application also pleads that the “Applicant did not have the financial ability to retain a lawyer with respect to the completion of the Separation Agreement” and that the agreement was completed without “full, complete and accurate financial disclosure” by the Respondent and without legal advice. Finally, the Applicant says that the parties reconciled for more than 90 days, which resulted in the agreement being void according to its terms. As pointed out by the Respondent’s counsel, Mr. Goddard, there is no mention of unconscionability or the factors under s. 33(4) of the FLA which were raised in argument of this motion, and this is possibly because the Applicant was still receiving spousal support when the Application was issued on June 7, 2017, and has only recently qualified for public assistance and lost her housing.

6The Application was filed in June of 2017 and we are now 17 months into the litigation. Two days of questioning of the Applicant have been completed by the Respondent’s counsel. This motion was originally brought by the Applicant for summary judgment, for disclosure and for temporary spousal support. The Respondent brings a counter-motion also for summary judgment requesting a dismissal of the Applicant’s claim to set aside the agreement.

7The Applicant now appears to have abandoned her claim for summary judgment, and has agreed to defer the issue of disclosure until the Respondent’s summary judgment is determined. The parties ended up arguing the Respondent’s claim for summary judgment and the Applicant’s claim for interim spousal support.

Result

8For the reasons set out below, I have determined that the Respondent shall have partial summary judgment and that the Applicant’s claim to set aside the separation agreement pursuant to s. 56(4) of the FLA is dismissed. The remaining issues, including the issue of the alleged reconciliation and unconscionability under s. 33(4) of the FLA shall be referred to trial on a date to be set by the trial coordinator in Newmarket. There shall be an order for temporary spousal support in the amount of $1,800 per month commencing September 1, 2018.

ANALYSIS

9There are two major issues before the court in this motion as follows:

(a) Is the Respondent entitled to an order for summary judgment dismissing the Applicant’s claim to set aside the agreement? In other words, as required under r. 16 of the Family Law Rules,³ has the Applicant raised a genuine issue for trial concerning her claim to set aside the separation agreement?

(b) If the motion for summary judgment is dismissed or the matter sent to trial, is the Applicant entitled to temporary spousal support notwithstanding the releases contained in the separation agreement?

Summary Judgment

10The two sections relied upon by the Applicant in attacking the agreement read as follows:

33(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,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made.

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

11It is apparent from the materials and argument that the Applicant raises three major grounds for the setting aside of the agreement. These grounds arise from the negotiation of the agreement, the present circumstances of the Applicant and the alleged reconciliation of the parties:

(a) The Applicant claims that the agreement was negotiated in an unfair manner and that it cannot be upheld for three major reasons:

(i) There was duress imposed upon her in the negotiation of the agreement. Factored into this was the fact that the playing field was uneven because of the Respondent’s financial resources as opposed to her own. As well, the Applicant suggests that she was ill at the time and therefore was unable to negotiate the agreement in any sort of adequate fashion:

(ii) The Applicant did not have independent legal advice prior to signing the agreement; and

(iii) The Respondent did not provide proper and accurate financial disclosure prior to the signing of the agreement;

(b) The Applicant relies upon her present financial circumstances in suggesting that the result of the agreement is unconscionable; and

(c) The parties reconciled for more than 90 days and the agreement is therefore void according to its terms.

12In family law matters, summary judgment is permitted by r. 16(6) of the Family Law Rules where “there is no genuine issue requiring a trial of a claim or defence.”

13Rule 16(4) sets out the requirements of a Motion for Summary Judgment.

(a) The party making the motion shall serve an Affidavit or provide other evidence setting out specific facts showing there to be no genuine issue for trial;

(b) The responding party must respond; and

(c) Under 16(4.1) the responding party cannot make “mere denials” but must provide specific facts showing a genuine issue for trial.

14This latter requirement has often been referred to as a party putting his or her “best foot forward” in response to a motion for summary judgment: see Children’s Aid Society of Toronto v. E.L.L. (2000), 2000 11422 (ON CJ), 134 A.C.W.S. (3d) 263 (ONCJ) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 7367 (ON SC), 1994 CarswellOnt 166 (Gen. Div.).

15The test of “no genuine for trial” has been referred to in a number of ways. It has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”: Children’s Aid Society of Oxford (County) v. J(J), 2003 2388 (Ont. S.C.J.) at para. 8. The test has also been enunciated as being when “the outcome is foregone conclusion” or when there is “no realistic possibility of an outcome other than that sought by the applicant”: Catholic Children’s Aid Society of Metropolitan Toronto v. O.(L.M.), 1996 7271 (Ont. S.C.J.) at para. 80 and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21.

16Under r. 16(6.1), the court has new fact-finding powers in a motion for summary judgment. The court may now weigh evidence, make credibility findings on the evidence, or draw inferences of fact from the materials filed. The court may also direct a mini-trial or focused hearing under r. 16(6.2).

17The Supreme Court of Canada considered similar amendments to the Rules of Civil Procedure in Hryniak v. Maudlin, [2014] S.C.R. 87. Effectively, the court must firstly consider the motion for summary judgment without regard to the new fact-finding powers under the rule. If, on the basis of the materials filed, the court then finds a genuine issue for trial, I am then to determine whether a trial can be avoided or the process to be followed using the new fact finding tools provided through the amendments to the rule.

18In the present case, there are numerous and lengthy affidavits filed by both parties. These affidavits present vastly different versions of the facts. During argument, counsel for the moving party acknowledged that I could not make a determination as to whether there was a genuine issue for trial without using the expanded powers under r. 16(6.1) and in particular, without making findings of credibility in respect of the Applicant and her evidence.

Negotiation of Agreement

19This part of the endorsement deals with the Applicant’s allegations of duress, lack of disclosure and her inability to obtain proper independent legal advice in the negotiation of the agreement.

20This portion of the summary judgment claim addresses the factors under s. 56(4) of the FLA. In setting aside an agreement under this section, the Court of Appeal has suggested a process under the FLA similar to the analysis under Miglin v. Miglin, 2003 SCC 24. In LeVan v. LeVan, 2008 ONCA 388, the Court of Appeal confirmed that there is a two-step process to considering the setting aside of an agreement under s. 56(4) [at para. 51]:

The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk (1986), 1986 6295 (ON SC), 1 R.F.L. (3d) 176 (Ont. H.C.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case.

21The second part of the test is distinct from the analysis of unconscionability under s. 33(4) which section is related only to spousal support issues and which requires an analysis of present unconscionability in addition to the circumstances surrounding the negotiation of the agreement.

Duress

22The Applicant suggests that the agreement was signed by her as a result of duress. That is an issue concerning negotiation of the contract and is defined as “a threat of wrongful and immediate force in the formation of a contract.”⁴ Duress has also been described as “intimidation or illegitimate pressure to sign the agreement” (Verkaik v. Verkaik (2009), 2009 6843 (ON SC), 68 R.F.L. (6th) 293 (Ont. S.C.J.) as aff’d by 2010 ONCA 23, 85 R.F.L. (6th) 233 (C.A.)) or circumstances “sufficient to negative informed consent of the wife” (Melnyk v. Melnyk, 2010 MBQB 121). Informed consent is essential to the formation of an agreement; obviously pressure brought to bear that robs an individual of that informed consent would vitiate the agreement at common law and allow it to be set aside under s. 56(4) of the FLA.

23What is the duress that the Applicant alleges? In her Application, Ms. Milne says that she was told that unless she signed, she would be thrown out onto the street by the Respondent. She was also told, according to the Application, that she was hopelessly outclassed due to the Respondent’s superior financial situation, and that he would draw out the court proceedings so that she would have no choice but to submit. Finally, through her lawyer during argument, it was alleged that the Applicant’s health issues created an imbalance of bargaining power, resulting in a one-sided and unfair result.

24It has to be remembered that this was not a hastily negotiated agreement. The Applicant says that Mr. Milne asked for a “break” in the parties’ relationship in August, 2015; she also said that Mr. Milne demanded that she had to vacate his apartment in October, 2015. Initially, Mr. Milne’s solicitors prepared a separation agreement which was signed by both parties on October 14, 2015 (although it is common ground that they signed it at separate locations before separate witnesses). Ms. Milne did not have a lawyer when she signed the initial agreement (“Agreement No. 1”).

25The next day, Ms. Milne retained counsel Felix Rocca, who advised Mr. Milne’s lawyer that his client was repudiating the agreement. That repudiation was accepted by Mr. Milne and Agreement No. 1 was at an end. Two weeks later, Ms. Milne terminated the retainer of Mr. Rocca.

26On October 30, 2015, the day after Mr. Rocca left the scene, Mr. Milne delivered a disclosure brief and sworn financial statement. Over the next month, the parties renegotiated a second agreement and, on December 2, 2015, Ms. Milne signed the second agreement (Agreement No. 2) with her lawyer at the time, Sharon Bond, witnessing her signature on the agreement. Mr. Goddard says that Agreement No. 2 was substantially more generous than the first agreement; it provided for a lump sum spousal support payment of $88,000 as opposed to the $50,000 payable under Agreement No. 1.⁵ During her questioning, Ms. Milne said that she consulted with several other lawyers during this period of time, although she could not or would not identify them.

27In his affidavit sworn June 18, 2018, Mr. Milne asserts that he and his lawyer negotiated the terms of the separation agreement throughout November, 2015. It is his evidence that “Ms. Milne made numerous revisions to the terms contained therein” and that his lawyer provided “Ms. Milne with every opportunity to negotiate the terms of the Separation Agreement.”⁶ He stated that “[t]here was considerable negotiation of the term of the Agreement and the form and quantum of the negotiated settlement during this period.”⁷

28He has also attached to his affidavit a number of pieces of correspondence from his lawyer, Diana Foggia, concerning the negotiation of both the first and the second agreement. It is clear from this correspondence that no one was being forced to sign the agreement. On one occasion, prior to the execution of Agreement No. 1, Ms. Foggia advises Ms. Milne that, “You are not being forced to sign this separation agreement” and that “We have repeatedly indicated to you that you are free to commence an Application in court.”⁸

29This type of correspondence continued after the repudiation of Agreement No. 1 up to the execution of Agreement No. 2. On several occasions, firstly on October 29, 2018, the Applicant threatened to commence an application. Mr. Milne offered to pay temporary support to Ms. Milne of about $1,600 per month if she agreed to sign a without prejudice temporary agreement. There is no evidence whatsoever of duress of any sort in the correspondence between Ms. Foggia and Ms. Milne, and in fact, it is Ms. Milne’s proposal for settlement contained in an email dated November 5, 2016 which resulted in the final separation agreement signed by the parties. There was correspondence as to how the lump sum would be paid, and Ms. Milne prepared the direction for transfer of the TD shares that made up the lump sum spousal support payment.

30At one point, on November 18, 2015, Ms. Milne complains to Ms. Foggia that “you and Mr. Milne are aware of the stress, the emotional and financial hardship that you have inflicted upon me for the past three months, yet its (sic.) all ignored”. She complains of her financial circumstances, and demands interim spousal support of $4,000 per month retroactive for three months. In a November 19 email, Ms. Milne demands that the draft agreement be changed to provide for spousal support in the amount of $5,000 per month rather than $4,000 per month, and she again threatens to bring a court application. Ms. Foggia responds by refusing and again suggesting temporary support of $1,616 per month provided an interim separation agreement is signed without prejudice. She again reiterates that, “You are at liberty to issue an Application”.⁹

31Ms. Milne refuses the offer of $1,616 per month and calls it “charity”. However, the ice jam appears to have broken because of compromise on the issue of the date of separation and drafting the recitals to acknowledge both parties’ respective positions on cohabitation. Eventually the agreement is signed by both parties on December 3, 2015, with Ms. Milne’s signature being witnessed by Ms. Bond (who also refused to sign the certificate of independent legal advice).

32Ms. Milne addresses issues of duress in her affidavit sworn July 16, 2018.¹⁰ She says that, between the repudiation of Agreement No. 1 and Agreement No. 2, “My life became a living hell, my health has deteriorated significantly and my mental and emotional state were severely impacted.” She says that she was “bullied and I was asked to bring on a court application” and also that Ms. Foggia and Mr. Milne “inflicted on me a tremendous amount of stress, emotional duress and financial hardship in an attempt to bully me around so I could sign anything”. She says that both Mr. Milne and Ms. Foggia “were fully aware of my health conditions and my vulnerable emotional and mental state yet; they have made every effort possible to manipulate me and put me under a tremendous duress and financial hardship so I could sign anything.”¹¹

33The facts simply do not bear these allegations out. Mr. Milne offered interim support, which his lawyer advised was based upon his obligations under the Spousal Support Advisory Guidelines (the “SSAG”). It was Ms. Milne, either through Mr. Rocca or on her own behalf who threatened to bring an application. Applicant’s counsel, Cynthia Lauer, suggested that for her client to bring an application without legal assistance was impossible for her to achieve: in fact, Ms. Milne has successfully represented herself for much of the present case and has filed extensive materials in the Continuing Record. I do not find Ms. Milne’s assertions that Ms. Foggia “asked” her to “bring on a court application” to be credible in light of Ms. Milne’s threats to do exactly that on several occasions.

34Also, in her affidavit, Ms. Milne deposed that the “respondent (sic.) position was that I would sign or be in the street” and that Mr. Milne “stated the he had the resources to keep fighting me in court forever and to humiliate me.”¹² Ms. Milne provides no details of when these statements were made, or how they actually affected her decision to sign the agreement. These statements on their own are insufficient to allow the court to determine that Ms. Milne was deprived of her ability to exercise informed consent in the execution of the agreement. Many people make threats of litigation without there being duress. And the Applicant has not explained how the Respondent had the power to put her out “on the street” if she did not sign the agreement since the Applicant also deposes that she had moved into a new apartment on November 1, 2015 in the same building that she said that she was living in with the Respondent. Finally, the threats, if they did exist, did not prevent the Applicant from repudiating the first agreement and negotiating the second, and Mr. Milne accepted the Applicant’s repudiation of Agreement No. 1 even though he did not have to.

35And what of the issue of Ms. Milne’s illness and her medical condition? It is common ground that the Applicant was in a motor vehicle accident in 2014 and that she says has been in chronic pain since that time. She has brought a motor vehicle action, but refused to disclose the particulars of that during questioning. She provided medical reports from various physicians, none of which confirm her condition between September and December, 2015.¹³ These medical reports date from 2017 and 2018. Ms. Milne currently suffers from chronic neck pain and headaches, fibromyalgia, sleeplessness and depression. She is receiving disability assistance from both CPP and ODSP. She has not worked since February of 2016.

36Other than what she says in her own affidavits, the Applicant does not connect her medical condition to the negotiation of the agreement. She provides no medical information or records from the time of negotiation. Without this, there is no medical evidence of any condition which would affect the Applicant’s informed consent to the separation agreement.

37Significantly, however, the person who might have had the best knowledge of any circumstances of duress at the time of the negotiation of the agreement was Ms. Bond, the lawyer who attended on Ms. Milne to sign the agreement. Duress was not mentioned in her report or the acknowledgement that she asked Ms. Milne to sign at the time.¹⁴ The statements by the people involved in the negotiation of the agreement are crucial to evidence of duress at that time: see Einstoss v. Starkman, 2010 ONSC 4126 at para. 24, J. E. Kelly J. stated:

The problem with the issue of the wife's state of mind 15 years after the fact is that all that is before me is the wife's self serving evidence on this issue. That is not enough. The wife cannot simply say that this issue may be resolved at trial with the benefit of the viva voce evidence of the wife, Ms. Wahbi and Mr. Slan. The time to provide the court with such evidence was during the summary judgment motion that was argued on July 22, 2010.

38I note as well that Ms. Milne stated in her affidavit that her lawyers refused to provide independent legal advice partly because of her vulnerability.¹⁵ That statement is not credible in light of Ms. Bond’s reporting letter; again it does not mention duress or Ms. Milne’s vulnerability in the negotiation of the agreement. Neither does the acknowledgement signed by Ms. Milne to Ms. Bond which confirms the advice given to Ms. Milne: nothing in that acknowledgement confirms that Ms. Bond was told by Ms. Milne of any undue pressure or influence being exerted by Mr. Milne or his lawyer on Ms. Milne.¹⁶

39Finally, we cannot ignore what Ms. Milne signed when she signed Agreement No. 2, the agreement she seeks to set aside. Along with the agreement, she signed an acknowledgment that she was informed of her right to independent legal advice and declined this. She as well stated in that acknowledgment that she was “executing this Separation Agreement of my own volition and without fear, threats, compulsions or influence by, ERIC MILNE, DIANA A. FOGGIA of CAPO SGRO LLP or any other person”.¹⁷ She fails to address her execution of this acknowledgment anywhere in her material filed on this motion.

40Other than what the Applicant says in her affidavits, which lack specificity, there is no evidence of duress at the time that the agreement was negotiated, or that there was any sort of “gun to the Applicant’s head” which forced her to sign the agreement. The agreement was negotiated over a six-week period and interim support was offered by the Respondent. The onus is on the Applicant to put her best foot forward, and present to the court all of the evidence that she would be relying upon at trial to prove this aspect of the case; the evidence provided is insufficient to satisfy me that there was duress which forced the Applicant to sign the agreement and deprived her of an informed consent.

41I do not find that duress in the negotiation of the separation agreement is a genuine issue for trial.

Independent Legal Advice

42The Applicant claims that she did not receive independent legal advice prior to the signing of the agreement. She signed a waiver of independent legal advice in the agreement.

43Ms. Milne says in her affidavit that the Respondent and his lawyer “took advantage of the fact that I was self-represented and with no financial ability to obtain legal counsel” and that she only found Ms. Bond, the lawyer who witnessed her signature, on Google¹⁸ implying that her advice was deficient in some way.

44Significantly, in Ms. Milne’s most recent affidavit prepared by her lawyer,¹⁹ she did not complain of the lack of independent legal advice.

45Ms. Milne said in her questioning that Ms. Bond,

…instructed me strongly, please do not sign this, it’s unfair, it’s inappropriate what they’ve done, you should never sign this. I said, I’m in a desperate need, I need to move on, and I need to live. I have no money. Four months they badgered me, they intimidated me. They used everything within their means, unfortunately, to make me – force me. Either the street – that was simple as said, you’re on the street or you sign. I signed.²⁰

46This ignores the fact that at one point, Ms. Milne was told by Ms. Foggia that Mr. Milne would not sign the agreement until Ms. Milne had received independent legal advice.²¹ Ms. Milne responded by stating that “I am not seeking legal advise (sic.) with regards to the separation agreement draft” after which Ms. Foggia confirms this in a responding email enclosing a further draft of the agreement.²² It was not Mr. Milne’s choice that Ms. Milne remained unrepresented during portions of the negotiations; it was at Ms. Milne’s insistence.

47Ms. Milne’s allegation of lack of independent legal advice is also put paid to by the reporting letter from Ms. Bond which was attached to Mr. Milne’s affidavit. Ms. Bond outlined that the support was within the Spousal Support Advisory Guidelines (the “SSAG”) and was in the correct amount. She told Ms. Milne that she was not self-sufficient and she should not sign the release of spousal support. Ms. Bond mentions at no point in either the acknowledgment that Ms. Milne signed or, in her reporting letter, the note of desperation testified to in Ms. Milne’s questioning. The letter and acknowledgment are carefully drafted. Ms. Milne’s suggestion that she told her lawyer that she was in financially desperate straits, and was badgered into signing, is without credibility.

48Finally, if Ms. Milne is saying that she did not know what she was doing, and that she “did not understand the nature or consequences of the domestic contract” as set out in s. 56(4)(b) of the FLA, there is a contradictory finding by another court that Ms. Milne was an experienced litigant, and knew her way around family law matters. In a case that involved Ms. Milne, then using the name of Nadia Hama, decided in British Columbia in 2001, Hama v. Werbes, 2001 BCSC 881, [2001] B.C.J. 1255 (S.C.), Ms. Milne attempted to set aside a pre-nuptial agreement. Boyd J. determined, after a trial that:

To suggest that in November, 1996, she was a neophyte and one who was unfamiliar with the machinations of such agreements, is not tenable. To the contrary, Hama presented as a very intelligent, calculating individual, quite capable of negotiating the best deal possible and weighing both the risks and the opportunities of the situation at hand.

49Boyd J. found that Ms. Milne had “executed the agreement with a complete understanding of the agreement and its ramifications and full access to legal counsel.”²³

50If Ms. Milne was a knowledgeable party in 2001, there is no reason to believe she did not remain so in 2015. I do not find that the lack of independent legal advice to be a genuine issue for trial in this matter.

Disclosure

51The Applicant complains that the Respondent did not make adequate financial disclosure prior to her entering into the agreement. She requests that the agreement be set aside under s. 56(4)(a) of the FLA.

52The first separation agreement, Agreement No. 1, was signed by Ms. Milne without financial disclosure. That agreement was repudiated by Mr. Rocca on behalf of Ms. Milne, partly because of a lack of financial disclosure. After that repudiation, on October 30, 2015, Mr. Milne’s lawyer produced a sworn financial statement and an indexed disclosure brief which was served on Ms. Milne.²⁴

53At the time, Ms. Milne found the disclosure provided by Mr. Milne to be inadequate. On November 19, 2015, Ms. Milne emailed Ms. Foggia demanding “full official source disclosure of Mr. Mine (sic.) since the year of 2010” including documents concerning the sale of Maple Leaf Insurance Co., the partnership agreement with Cornell Insurance Brokers Ltd., cottage documents re Mississauga Lake, Visa statements and bank statements for the past five years, CRA tax filings for past five years (she already had the past three years in the disclosure brief), disclosure of Meadow Brook Golf & Country club accounts and payment of the costs of Mr. Milne’s son’s wedding.²⁵

54The Applicant continues to request this disclosure, as well as further items of disclosure, in this proceeding.

55She also appears to have entered into the agreement knowing, in her mind, that she did not have the disclosure necessary to adequately determine the income of the Respondent. Firstly, she did not provide the entire disclosure brief received from Mr. Milne to her own lawyer prior to the execution of the agreement: the reporting letter of Ms. Bond says that she was provided only with Mr. Milne’s financial statement as well as copies of his income tax returns and Milne Family Trust documents. There were other documents included in the disclosure brief but not provided to Ms. Bond, including correspondence from Mr. Milne’s employer, as well as statements of revenue and expenses for part of 2012 and all of 2013 and 2014. In addition, there was documentation respecting 1688993 Ontario Ltd. including documents concerning a condominium sale and promissory notes as well as a summary of account holdings at TD Canada Trust. It does not appear that Ms. Bond was provided with any of this documentation.

56Ms. Bond was also clear with Ms. Milne that the disclosure that Ms. Bond was provided with by her was inadequate. Ms. Bond confirmed this in her reporting letter to Ms. Milne. Ms. Milne also confirmed that she was aware of the fact that the Respondent’s disclosure to her was inadequate in the acknowledgement that Ms. Bond insisted that she sign. In that acknowledgment, she confirmed “that my common law spouse has not provided full disclosure” and that she was “content with the little disclosure I have received to date directly from said spouse.” Interestingly, Ms. Bond also had Ms. Milne acknowledge that she was also “not providing full disclosure” to Mr. Milne.²⁶

57Apart from the fact that her own lawyer does not appear to have been provided with the entire disclosure brief, Ms. Milne cannot complain about lack of disclosure leading up to the execution of the agreement when she was expressly told that disclosure was inadequate: see Quinn v. Epstein Cole LLP (2007), 86 O.R. (3d) 184 (S.C.J.) as aff’d by 2008 ONCA 662 at para. 47 and Butty v. Butty, 2009 ONCA 852 at para. 54. If the disclosure was inadequate, Ms. Milne was aware of this fact and signed the agreement regardless; she cannot now complain about non-disclosure when she was specifically warned about this prior to the signing of the agreement.

58And there is also substantial evidence to show that Ms. Milne was actually aware of the nature and extent of the Respondent’s assets.

59Ironically, Ms. Milne attempted to prove that disclosure was inadequate by filing extensive documents in her possession regarding the Respondent’s business assets which demonstrated that she had an intimate knowledge of the Respondent’s business affairs. These documents are sprinkled throughout the Applicant’s materials filed in support of her motion for disclosure.

60Ms. Milne explained during her questioning of how she came to be in possession of these documents. That explanation makes it apparent that she had these documents in her possession when she negotiated the agreement. In the transcript of her questioning from August 15, 2018, Ms. Milne said:

To me, I have access to all of Mr. Milne's files. They were in our home. We lived together for Christ's sake. The -- we had an office room. He had all his files and I have all my files. Actually, it wasn't an office, only room. It was the dining room that we used. He has his files all there of the business, and I have my files, too, work, computers, whatever we had. So it's all accessible to me. I have an access to all of it.²⁷

61Later, Mr. Goddard asked her how she obtained the documents that ended up in her materials, she said “That’s from living together.”²⁸ Although the Applicant refused to answer how she actually got these documents, all of these were presumably in her hands when she negotiated the agreement as she obviously would not have gotten these documents after the separation of the parties which she said occurred in October, 2015, when “the respondent gave a notice to break the lease on the apartment that we have lived…[which] left me with no choice other than being forced into finding a place to live hastily.”²⁹

62And the materials that the Applicant seems to have come into possession appear to be extensive. At Ex. I to her affidavit sworn July 16, 2018, she had, for example, extensive documents concerning Maple Leaf Insurance Brokers including balance sheets between 2006 to 2011 and an extensive flow chart concerning the Cornell Group of Companies. Ms. Milne files this to show that Mr. Milne had interests in companies or partnerships that were much more extensive than he disclosed; however, these documents also go to show that Ms. Milne had numerous documents in her possession regarding Mr. Milne’s business affairs when the agreement was negotiated.

63These documents are beyond what would normally have been required to be produced as part of the disclosure process for domestic contracts. In Tozer v. Tassone, 2018 ONSC 3726, the court held at para. 37 that the Applicant’s “general knowledge of Ms. Tassone’s assets” was sufficient financial disclosure; there was no requirement to go beyond that. See also Quinn v. Epstein Cole LLP, supra where the motions judge, D.M. Brown J., noted at para. 48 that a “general awareness of the assets of the other party may be sufficient to avoid setting aside an agreement.”

64As well, the Applicant cannot embark on a fishing expedition in this proceeding to hopefully find further information or evidence: that has been held to be “speculative” at best: see the Court of Appeal decision in Quinn v. Epstein Cole LLP, supra at para. 7. At the motion for summary judgment, the responding party must provide cogent evidence of material non-disclosure and she cannot defend the motion on the basis that she may possibly discover other concerning information about the Respondent’s income or assets if the matter is permitted to proceed to trial.

65Ms. Milne was aware that there were deficiencies in the financial disclosure. She held back financial disclosure from her own lawyer, and was then told that Mr. Milne had not provided adequate financial disclosure; she knew that there were disclosure concerns, and was told to get further documentation prior to signing. She signed anyways. As well, when negotiating the agreement, she had numerous documents which showed the nature and extent of Mr. Milne’s business assets and income which she had removed from the home office of the common residence prior to entering into the agreement and there is no evidence to show that she was not aware of the general nature and extent of Mr. Milne’s assets and income at the time she negotiated the agreement. In her disclosure motion, Ms. Milne certainly appears to be embarking on a fishing expedition at this time.

66I do not find that there is any genuine issue for trial arising from material non-disclosure of the Respondent’s assets in the negotiation of the separation agreement that the Applicant seeks to set aside.

Result re s. 56(4) Grounds for Setting Aside Agreement

67I therefore find that there are no grounds to set aside the agreement under s. 56(4) of the FLA, and specifically that there are no grounds to set aside the agreement resulting from the way it was negotiated. The Applicant’s claim to set aside the agreement under s. 56(4) of the FLA is therefore dismissed.

Unconscionable Terms: FLA, s. 33(4)(a) and (b)

68The Applicant has made a claim under s. 33(4) of the FLA to set aside the spousal support releases in the separation agreement both because she qualifies for public assistance and because the present circumstances are unconscionable.

69There is no issue that Ms. Milne qualifies for public assistance and without a doubt is subsisting on a combination of Ontario Disability Support and Canada Pension Plan payments. She has obviously been found to be suffering from a disability and as being unable to work. There is little or nothing left of the funds paid to Ms. Milne under the agreement or, for that matter, previous funds paid to her through various loans from Mr. Milne or from her share of the net proceeds of the sale of a condominium, all of which can be quantified as being about $265,000.³⁰ At the time of the hearing of the motion, she had been evicted from her apartment and was living in a shelter.

70At this time, Mr. Milne continues to be employed at his occupation making well over $100,000 per annum; in 2017 he acknowledges income of $160,000. In his financial statement, Mr. Milne showed a negative net worth, but he is a beneficiary under a “discretionary family trust”. He has a place to live. Although a comparison of present economic positions alone does not make for unconscionable circumstances, that comparison makes for a stark contrast between the economic circumstances of these parties.

71Section 33(4)(b) of the FLA allows for a spousal support release to be set aside where a party qualifies for public assistance, which is without a doubt the situation in the present case. However, the case law appears to indicate that unconscionability is presumed where a party is on public assistance and the other is not (see Aly v. Halal Meat Inc., [2013] O.J. No. 1329 at para. 430 et sequent. and Patan v. Patan 2004 50070 (ON SC), [2004] O.J. No. 5365 (S.C.J.) at para. 14) although the courts have also ignored a spousal support release on an interim motion where the only factor proven was the recipient being on public assistance and there was no finding of unconscionable circumstances (see Tugwell v. Tugwell [1996] O.J. No. 266 (S.C.J.)).

72I have already found that there is no triable issue concerning the negotiation of this agreement. However, in Scheel v. Henkelman (2001) 2001 24133 (ON CA), 52 O.R. (3d) 1 (C.A.), Borins J.A. pointed out that the test for the setting aside of a domestic contract under s. 56(4) of the FLA is more stringent than that for setting aside a waiver of spousal support because of unconscionability under s. 33(4)(a) of the FLA. He states that s. 33(4)(a) is directed towards the unconscionable results of a spousal support waiver as distinguished from an unconscionable agreement:

The use of the phrase "results in" in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which 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: Mance v. Mance (1981), 1981 4074 (ON SC), 22 R.F.L. (2d) 445 (Ont. Co. Ct.); aff'd. (December 18, 1981), Cory, Jessup, Wilson JJ.A. (Ont. C.A.); Newby v. Newby (1986), 1986 2616 (ON SC), 56 O.R. (2d) 483 (Ont. H.C.). As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision "results in unconscionable circumstances". In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.

73As set out in Scheel, unconscionability has been defined in a number of ways. It can be seen as being “shocking to the conscience of the court”, “harsh and unjust” or “improvident or unfortunate”: see para. 19 and 21 of Scheel. Borins J.A. suggested at para. 20 that the court consider three factors in determining whether the present circumstances are unconscionable:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b) the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c) the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their life-style.

74The court found that the trial judge was in error in emphasizing “antecedent factors” and in failing to consider the circumstances at the time of the application.

75If the court were only addressing the circumstances of the execution of the agreement as noted above, summary judgment would issue dismissing the application to set aside the waiver of spousal support under s. 33(4)(a) and (b) of the FLA as well. However, the present circumstances of the parties are also a major focus of that section in determining unconscionable circumstances. Regarding hardship, the Applicant says that she is suffering hardship and on the face of it, this is clearly the case. She is living in a shelter, and has no housing, having been evicted from her apartment. She is subsisting on public assistance and this assistance is being paid to her because both Ontario Disability Support and the Canada Pension Plan have determined that she is unable to work because of physical or other disability.

76Regarding the parties’ comparative circumstances, Mr. Milne is clearly doing better than is Ms. Milne. He has a place to live and income from employment which is well over $100,000 per annum. He appears to have his health. On the other hand, Ms. Milne says she has a continued disability arising from a motor vehicle accident that she says occurred in 2014 during cohabitation. She says she cannot work and cannot pay rent. She has gone through her funds, and is living on public assistance paid to her because of that disability. Her medical evidence indicates that she has been unable to work since April, 2016, soon after the agreement was signed. She says that she suffers from fibromyalgia, chronic pain, arthritis, osteoporosis, MGUS blood disorder and peripheral neuropathy. She has confirmed at least some of these conditions in her doctor’s statement in support of her application for CPP as well as medical records of her various attendances with doctors or at various clinics.³¹

77Mr. Goddard urged me to find that these assertions of the Applicant are without credibility and that I should find that the Applicant’s evidence in general lacks credibility. He bases this partly on the fact that this Application was only brought after all of the money had been paid under the separation agreement. He also notes that the Applicant was charged with forging a spousal support cheque; those charges have now been resolved by private peace bond. Finally, he relies upon the findings of the trial judge in Hama v. Werbes, supra, wherein Ms. Milne (then Ms. Hama) was found to have little credibility.

78As pointed out by Ms. Lauer, this application was commenced by the Applicant in June, 2017; at that point in time, there still remained more than a year of spousal support to run. I am not prepared to make findings as to who was responsible for the delay in the prosecution of this application: Ms. Milne says that the delay rests with Mr. Goddard and his client because of the refusals to provide disclosure and the time taken for Ms. Milne’s questioning. All I will note is that there appear to have been delays on both sides: Ms. Milne appears to have indulged in a fishing expedition for disclosure, which is not what these proceedings should be directed at, and my review of the questioning seems to indicate that Ms. Milne was generally evasive, and refused to answer proper questions put to her by Mr. Goddard. Her own refusal to provide undertakings other than “under advisement” do not put her in a good light. However, I am not prepared to translate the delays in prosecuting this matter into credibility findings against Ms. Milne especially where she was self-represented for much of this proceeding, and may have had difficulty in prosecuting the matter on a timely basis as a result.

79Similarly, I am also not willing to determine that Ms. Milne is not credible because of the findings of Boyd J. in 2001 in British Columbia. I was prepared to use specific findings in that case, such as the finding that Ms. Milne was not a neophyte in negotiating the agreement. However, I am not willing to find that her evidence is generally not credible because of the findings of Boyd J.: that is a finding to be made on a case by case basis, and generally after a trial or, alternatively, if there is compelling evidence respecting credibility of the party in the present case. The fact of an alleged forged support cheque, where the charges have been withdrawn and the matter settled by private peace bond (regarding contact between the parties) is also not sufficient to allow a general finding of credibility against the Applicant.

80Finally, the medical evidence is, at least, supported, I assume, by physical examination of Ms. Milne by the medical practitioners who have provided their notes and reports. It is undoubted that there is a severe difference today in the circumstances of the parties, and without a doubt, Ms. Milne is receiving public assistance, while Mr. Milne makes ten times that of Ms. Milne from his employment. Again, not to be repetitious, Ms. Milne is homeless and in a shelter and has provided evidence that she suffers from medical issues preventing her from working. This is all objective evidence of unconscionability independent of the credibility of Ms. Milne.

81I therefore find that there is a genuine issue for trial respecting present unconscionable circumstances and whether the spousal support release will withstand an attack based upon those circumstances. Spousal support is the major issue between these parties in this proceeding. That issue will proceed to trial by way of a trial on the issue of present unconscionable circumstances, and the effect that these circumstances will affect the spousal support release contained in the separation agreement.

Reconciliation

82The separation agreement provided that a reconciliation of 90 days or more would bring it to an end. Paragraph 6.2 of the agreement specifically provides as follows:

If ERIC and NADIA cohabit as spouses, as defined in the Family Law Act, for any periods of less than ninety days, the terms of the Separation Agreement shall not be affected. If the parties cohabit as spouses for a continuous period of more than ninety days, the terms of this Separation Agreement shall immediately become void, except that nothing in this Paragraph shall affect or invalidate any payment, conveyance or act made or done pursuant to the terms of this Separation Agreement.

83Ms. Milne says that the parties reconciled for well over 90 days. She says that Respondent “invited” her to move in in April, 2016 and that she moved in with the Applicant on May 1, 2016 when she sublet her apartment. She said that she moved into the Respondent’s residence at 809-131 Upper Duke Crescent in Markham but that the Applicant moved to 303-68 Main Street North in Markham in October, 2016, and the Respondent followed along gradually because the Upper Duke Crescent lease was not yet expired. She states that she and the Respondent finally separated in March, 2017.

84The Respondent has a different story. He says that the Applicant contacted her in May or June of 2016 and said that she was having difficulty in obtaining rental accommodation, partly because the publicity surrounding her daughter’s fall from her arms on the Capilano Suspension Bridge in British Columbia. She asked to move into his residence temporarily for a couple of weeks. He says that he “reluctantly agreed” and that she moved into Upper Duke Crescent on June 13, 2016. He says that he had asked for written confirmation that the parties were not cohabitating, but that was never provided. He said that he moved into a hotel between June 11 and 26, 2016 and from July 4 to 18, 2016; eventually that became unaffordable and because the Applicant had not yet moved out as she had promised, he moved back into his home. He said that when he returned, they were not residing together as “spouses” as required by the agreement; other than occasional casual sex, the parties did not cohabit, eat together, go out in public together or engage in any social activities together. He says that Ms. Milne moved into 303-68 Main Street in Markham on August 31, 2016; Mr. Milne denies living in that residence and says that he remained in the Upper Duke Crescent apartment where he apparently continues to live today. He says that throughout the period of time that the Applicant says that they lived together, he continued to pay the support of $4,000 per month set out in the Separation Agreement.

85Both parties have filed some documentation which they say corroborates their respective positions. Mr. Milne filed his hotel receipts from June and July, 2016³² and asks why he would have stayed in a hotel in the area if the parties were reconciling. In support of her case, Ms. Milne provides copies of some text messages for April, May, July, August, September and October, 2016;³³ although the texts do not confirm that the parties were living together, they do confirm that Ms. Milne at least was complaining at times about the parties’ relationship and about how Mr. Milne was acting within that relationship. If Ms. Milne was discussing moving into Mr. Milne’s place in April and May, 2016, this is not reflected in the text messages. At one point, in a text dated October 26, 2016, Ms. Milne says that she “made dinner at home” which she says shows that the parties were still living together on that date. As well, if Ms. Milne was moving out of the Respondent’s residence in August, 2016, there was again no talk of it in the text messages. Likewise, there was no discussion of the Applicant leaving the Upper Duke Crescent apartment in October, 2016 which is when the Applicant says she moved out.

86In his affidavit, Mr. Milne says that he intends to call third party witnesses to verify his position that he and the Applicant did not reconcile as she claims but he has not provided affidavit evidence from those witnesses. I repeat that a party must put all of the evidence that he or she intends to rely upon at trial before the court in support of their position in a summary judgment motion; Mr. Milne has not even identified the “third party witnesses” that he intends to call. I have already ruled that I am not in a position to make a general finding that the Applicant’s evidence has no credibility. A trial will be necessary to determine whether there was a reconciliation as alleged by the Applicant as the parties have essentially different stories, and, other than Mr. Milne’s third party witnesses or their identity, each party has provided their corroborating evidence to the best of their abilities. There is no clear path to determining which version of this story is accurate other than through viva voce evidence at trial.

Partial Summary Judgment

87As set out above, I am granting partial summary judgment, while dismissing other aspects of the Respondent’s motion.

88The Court of Appeal recently addressed this issue in Mason v. Perras Mongenais, 2018 ONCA 978. In that case, the court set aside the motion judge’s order for partial summary judgment in a solicitor’s negligence case.

89The court stated that partial summary judgment should not be easily granted, and cited Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, for the following statement of law, at para. 22:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.

90Ultimately, the court found that the issue on which summary judgment was granted was inextricably connected to the issues remaining before the court. The court found the following, at para. 42:

[T]he determination of whether Perras failed to meet the standard of care as a lawyer, in these circumstances, cannot properly be determined summarily, as the motion judge did. Proceeding summarily also does not achieve the fundamental purposes of the summary judgment process, that is, to provide a "more expeditious and less expensive means to achieve a just result": Hryniak, at para. 49.

91In the present case, the issue that must therefore be considered is whether my findings under s. 56(4) of the FLA can be easily bifurcated from the other issues remaining before the court. And will summary judgment on the s. 56(4) issue allow for an expeditious or inexpensive means to achieve a just result?

92In my view, it does. The issues regarding negotiation of the agreement (as opposed to the present unconscionable circumstances under s. 33(4)) can easily be split off from the remaining issues which are to go to trial. Partial summary judgment allows the parties to avoid argument and evidence concerning negotiation of the agreement, which the parties have spent a lot of time and energy on in this motion. It would avoid the necessity for the parties to call the three lawyers who were involved in the negotiation of the agreement. As well, I note that the Applicant has embarked on what appears to be a fishing expedition regarding disclosure of the Respondent’s financial circumstances leading up to the signing of the second agreement: that expense, which would be extreme considering the Applicant’s disclosure requests (and considering the Applicant’s refusal to provide clear answers and undertakings other than under advisement in the questioning) would be avoided by the partial summary judgment.

93I note that the court in Scheel outlines three different factors to determine unconscionability; one of those factors is the negotiation of the agreement and, essentially, the factors under s. 56(4) of the FLA. This does not mean, however, that the negotiation of the agreement has to be litigated; my findings in this motion can address those issues in the determination by the court of the unconscionability of the agreement under s. 33(4). My refusal to grant summary judgment in respect of the spousal support release under s. 33(4) lies under the present circumstances between the parties and not the negotiation of the agreement.

94Therefore, the granting of partial summary judgment meets the test set out in Mason v. Perras Mongenais, supra as the s. 56(4) issues can be bifurcated from the remaining issue, and granting summary judgment meets the goal of proportionality under r. 2(2) of the Family Law Rules.

Disposition re Motion for Summary Judgment

95Mr. Goddard seeks a focused trial on the issues in respect of which the summary judgment motion has been dismissed.

96Under r. 16(6.2), the court can order a focused trial or a “mini-trial” on the issues remaining on the motion for summary judgment. In other words, the court can order a focused trial on the issues of unconscionability and the reconciliation of the parties and limit the testimony of the parties to that purpose.

97I can understand the position of Mr. Goddard. Although I have not examined the disclosure requests of the Applicant in detail, it is apparent to me that she is overreaching in many of the requests. She appears to be requesting disclosure disproportionate to the issues which are before the court: see r. 2(2) of the Family Law Rules. Ms. Milne was both evasive and unresponsive to Mr. Goddard’s questioning as disclosed by the transcripts. It is not surprising that Mr. Goddard wishes to limit the extent of the inquiry to be conducted by the court.

98However, unconscionability requires a full inquiry as to the present financial circumstances of the parties. The parties have differing versions of how long they cohabited, as well as the issue of the reconciliation, which is a factor, in my view, in a determination of present unconscionability; the longer the relationship, the more unconscionable the release of spousal support that the Applicant seeks to set aside. The Applicant says that she suffers from illness and disability and this as well is a factor in unconscionability. All of these issues have to be examined to determine whether the waiver of spousal support results in unconscionable circumstances which would allow the court to set that waiver aside.

99However, these issues also cross into the general inquiry necessary to determine entitlement to and quantum of spousal support. There is little utility in having a focused trial on unconscionability and then a separate trial on entitlement and quantum of spousal support where much of the same evidence would have to be led. This would be contrary to the goals of saving expense and time as well as proportionality which are set out in r. 2(2) of the Family Law Rules.

100The matter should therefore proceed to trial on the following issues:

(a) The issue of whether the waiver of spousal support should be set aside under s. 33(4) of the FLA;

(b) The issue of whether the parties reconciled and cohabited as spouses for more than 90 days between June of 2016 and March 1, 2017, bringing the agreement to an end; and

(c) If the answer to either of these questions is “yes”, the issue of entitlement and quantum of spousal support.

101Under Hryniak, it is suggested that I should remain seized of the matter if at all possible. I will not delay the trial if the matter can be placed on the February sittings list. However, if the matter comes before the court during the May, 2019 sittings and, assuming I am sitting in Newmarket, the trial should be heard by me.

102As noted above, the Applicant’s application to set aside the agreement under s. 56(4) of the FLA is dismissed.

103I wish to also comment on the issue of the disclosure demanded by the Applicant. She has requested a great deal of disclosure from the Respondent including requests which appear to go to the value of his business interests and the family trust disclosed in his financial statement.

104I agree with Mr. Goddard that this claim should not be used to allow the Applicant to ask for disclosure that is extensive, overly intrusive and disproportionate to the claims being made by the Applicant, which essentially involve determining the present incomes of the parties. I am not making any order for disclosure as that issue was not argued before me, but disclosure should be limited to determining the respective financial circumstances of the parties and no more. The disclosure requests by the Applicant appear to go beyond that.

Temporary Spousal Support

105The Applicant seeks an order for temporary spousal support under s. 34(1) of the FLA. She seeks interim support of $2,500 per month.

106But for the spousal support waiver in the agreement, there would be a prima facie claim by the Applicant for temporary spousal support. The Applicant alleges that the parties had resided together for more than 12 years, between June of 2005 and March 1, 2017, including the alleged reconciliation. There is a clear discrepancy between the parties’ financial circumstances; Mr. Milne earned more than $160,000 in 2017, according to his financial statement.³⁴ Ms. Milne receives Ontario Disability Support and CPP in a combined monthly amount of $1,351 per month³⁵ which translates into an annual income of $16,212, about a tenth of Mr. Milne’s income. She alleges that she is disabled and ill and has filed medical evidence to that effect.

107On behalf of the Respondent, Mr. Goddard denies that there is entitlement to temporary relief. He points out that if spousal support is ordered, and the Applicant fails to obtain spousal support at trial, she will never be in a position to return the funds paid to her. He relies upon Jones v. Murray, [2005] O.J. No. 2761 (S.C.J.), a decision of Wood J. where a support recipient was seeking to set aside a domestic agreement pursuant to the Miglin criteria. Wood J. examined the case law and determined that there was a three-fold test necessary to order interim spousal support in the face of a separation agreement which waived spousal support:³⁶

I would suggest that interim relief should only be granted where the party seeking such relief can demonstrate:

1. a substantial likelihood of success at trial,

2. that failure to do so will cause irreparable harm to the party seeking the relief,

3. that granting the relief will not cause harm to the other party which cannot be compensated.

108This case, however, appears to be in conflict with cases cited to me by Ms. Lauer, counsel for the Applicant. In both Lafrance v. Charbonneau, 2011 ONSC 6462 (S.C.J.) and Veneris v. Veneris, 2015 ONCJ 49, the court examined whether spousal support waivers in a domestic contract could be set aside under s. 33(4). In both cases, interim spousal support was in issue and both judges ruled that all that was necessary was a “triable issue” as to whether the waiver of spousal support was enforceable. In Lafrance, Koke J. found, at para. 47, that “the applicant has raised a number of triable issues which bring into question the enforceability of the spousal support waivers in the cohabitation and separation agreements” and therefore the applicant was “entitled to apply for an interim order for spousal support”. Similarly, in Veneris, Murray J. stated that an “in depth analysis” of entitlement was not necessary at the interim stage and that “courts have ruled that the applicant is required at that stage only to demonstrate that a triable issue exists as to whether the agreement will be found to be ‘unconscionable’” [para. 84].

109The difference between the two lines of cases is explained by Scheel, which confirmed a less stringent test to set aside an agreement under s. 33(4) of the FLA as opposed to the requirements under s. 56(4). Because of this, the requirements for a temporary spousal support order where the moving party relies upon s. 33(4) are also less than that required in the case of an application under either Miglin or s. 56(4) to set aside the entire agreement. See Patan v. Patan, 2004 50070 (ON SC), [2004] O.J. No. 5365 (S.C.J.) at para. 15 where Coats J. found that a party was entitled to apply for interim spousal support in an application under s. 33(4) and differentiated between the two approaches in allowing interim spousal support in the face of a waiver:

I accept Ms. Haber's submission that the Court in applying s. 33(4) does not apply the test applied when one is attempting to set aside an entire separation agreement. In Scheel v. Henkelman (2001), 2001 24133 (ON CA), 52 O.R. (3d) 1 (Ont. C.A.) the Ontario Court of Appeal is clear that the Court is to look at the circumstances at the time of the hearing. This case involved s. 33(4)(a) however by analogy the same reasoning applies to section 33(4)(b). The Court is not required to apply the Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 (S.C.C.) analysis.

110I have already found that there is a triable issue as to unconscionability under s. 33(4). I therefore find that Ms. Milne may request temporary spousal support notwithstanding the waiver of spousal support contained in the separation agreement.

111Temporary spousal support is based upon the means and needs of the parties, and in the present case there is a clear need and also a clear ability to pay. The major issue has to arise from the disparate positions of the parties regarding the length of cohabitation.

112Ms. Milne says that cohabitation was just under 12 years in length based upon the reconciliation that she says occurred after several months of separation during which the separation agreement was signed. Mr. Milne originally acknowledged seven years of cohabitation in the separation agreement, stating that the parties lived together between November, 2007 and December, 2010, and later between May, 2011 and August of 2015. Although he says in his motion materials that cohabitation was only three years in length, I do not find this position to be credible considering the recitals of the separation agreement. I find that Mr. Milne’s position is, at best, seven years of cohabitation.

113The difference between 11 and 7 years of cohabitation is reflected in the SSAG which are based partly on the years that the parties lived together. Those calculations are attached as Schedules A and B to this endorsement. The differences are substantial. If these parties separated in 2017 after 11 years of cohabitation, the range of spousal support is between $2,089 and $2,785 per month, with a midpoint of $2,437. Support would be indefinite in nature. If the cohabitation is 7 years, with a separation in 2015 as alleged by Mr. Milne, the support range is between $1,329 and $1,772 per month, with a midpoint of $1,551 per month. Support in that scenario would be for a duration of between 3.5 and 7 years.

114In choosing a monthly figure, I have to take into account the two very different stories told by each of these parties. I also have to keep in mind that the Applicant has received all of the benefits of the separation agreement and that, if the Respondent’s position bears out, he substantially overpaid spousal support owing under the SSAG.

115There shall be an order for temporary support of $1,800 per month commencing September 1, 2018, the month after the support under the separation agreement came to an end.

ORDER

116There shall therefore be an order to go as follows:

(a) On a final basis, the Applicant’s claim to set aside the separation agreement under s. 56(4) of the Family Law Act is dismissed.

(b) The Respondent’s motion for summary judgment is otherwise dismissed, and the matter shall proceed to trial on the following issues:

(i) The issue of whether the waiver of spousal support should be set aside under s. 33(4) of the FLA;

(ii) The issue of whether the parties reconciled and cohabited as spouses for more than 90 days between June of 2016 and March 1, 2017, bringing the agreement to an end; and

(iii) If the answer to either of these questions is “yes”, the issue of entitlement and quantum of spousal support.

(c) If the trial goes ahead during the May or November, 2019 sittings in Newmarket and I am available, the trial should be heard by me.

(d) There shall be an order for temporary spousal support in the amount of $1,800 per month commencing September 1, 2018.

117In respect of costs, success appears to be divided. However, if the parties cannot agree on the issue of costs, they may make written submissions as to costs, the Applicant first and

then the Respondent, on a ten-day turnaround. Costs submissions, if made, are to be no more than four pages in length not including bills of costs and any offers to settle made on the motion.

McDermot J.

Footnotes

1. 1Para. 10 to 12 Respondent’s affidavit sworn June 18, 2018 found at Tab 1 of Vol. 4 of the Continuing Record.
2. 2R.S.O. 1990, c. F.3
3. 3O. Reg. 114/99
4. 4McLeod & Mamo, Annual Review of Family Law, 2013 at p. 1062.
5. 5That may not be true. Agreement No. 1 provided for a $50,000 lump sum payment, which was stated to be non-taxable to the Applicant and non-deductable to the Respondent. Agreement No. 2 provided for a rollover of $88,000 from the Respondent’s RRSP which would mean that the funds would end up being taxable to the Applicant, which means that she might net less than what was being paid. However, there was evidence that the Applicant would not have had to pay taxes on her support or the RRSP in any event because of substantial capital losses that could be carried forward in future years against her income.
6. 6Para. 55 of the Affidavit of the Respondent sworn June 18, 2018 found at T. 1 of V. 4 of the Continuing Record.
7. 7Ibid., para. 53.
8. 8Ibid., pp. 59 -60 of Ex. “F”: Email to Ms. Milne dated October 13, 2015
9. 9Ibid., pp. 34-36 of Ex. I: Email exchange between the Applicant and Ms. Foggia dated November 18 and 19, 2015.
10. 10Found at Tab 1 of Vol. 6 of the Continuing Record.
11. 11Applicant’s affidavit sworn July 16, 2018, section entitled “Facts and Events with regards to the preparation and execution of the Separation Agreement of December 1, 2015”
12. 12Paragraph 33 of the Applicant’s affidavit sworn April 27, 2018 found at Tab 2 of Vol. 2 of the Continuing Record.
13. 13Ex. D to the Applicant’s affidavit sworn April 27, 2018 found at Tab 2 of Vol. 2 of the Continuing Record.
14. 14See Ex. A to the Affidavit of Mr. Milne sworn on December 6, 2018 found in V. 9 of the Continuing Record.
15. 15See para. 6(d) of Ms. Milne’s affidavit sworn October 18, 2018 found at Tab 10 of Vol. 9 of the Continuing Record.
16. 16See the signed acknowledgement filed as Ex. E14 to the affidavit sworn by the Applicant on July 16, 2018 found at Tab 1 of Vol. 6 of the Continuing Record.
17. 17Acknowledgment attached to Agreement No. 2 of Nadia Hama found at p. 187 of Ex. I to the affidavit of sworn by the Respondent on June 18, 2018, and found at Tab 1 of Vol. 4 of the Continuing Record.
18. 18Affidavit of the Applicant sworn July 16, 2018 found at Tab 1, Vol. 6 of the Continuing Record.
19. 19The Applicant’s affidavit sworn October 18, 2018 found at Tab 10 of Vol. 9 of the Continuing Record.
20. 20Questioning of Ms. Milne from August 15, 2018 at p. 189, Q. 1051
21. 21Email from Ms. Foggia to Ms. Milne dated November 5, 2015 found at p. 17 of Ex. I to Mr. Milne’s affidavit sworn June 18, 2018 at Tab 1 of Vol. 4 of the Continuing Record.
22. 22Ibid., pp. 30 and 32.
23. 23Hama v. Werbes at para. 156-157.
24. 24Found at Ex. H to the affidavit of the Respondent sworn June 18, 2018, located at Tab 1 of Vol. 4 of the Continuing Record.
25. 25Ibid., Ex. I, p. 40.
26. 26Ex. E14 to the affidavit sworn by the Applicant on July 16, 2018 found at Tab 1 of Vol. 6 of the Continuing Record.
27. 27Questioning of Applicant from August 15, 2018, p. 113
28. 28Ibid., p. 114, Q. 614
29. 29Para. 30-31, affidavit of the Applicant sworn April 27, 2018 found at Tab 2, Vol. 2 of the Continuing Record.
30. 30Ms. Milne acknowledged receiving $140,000 from a home that was sold and which was jointly owned by the parties. Mr. Milne subsequently advanced $37,000 to Ms. Milne; she says it was a gift and he says that these funds were loaned to her and remain unpaid. Finally, Ms. Milne received $88,000 under the separation agreement. These funds total $265,000.
31. 31See Ex. D to the Applicant’s affidavit sworn April 27, 2018 found at Tab 2 of Vol. 2 of the Continuing Record.
32. 32Ex. B to the Respondent’s affidavit sworn June 18, 2018 found at Tab 1 of Vol. 4 of the Continuing Record.
33. 33Ex. WW to ZZ of the Applicant’s affidavit sworn April 27, 2018 found in Vol. 5 of the Continuing Record.
34. 34Dated July 17, 2018 and filed at Tab 1 of Vol. 8 of the Continuing Record.
35. 35ODSP Statement of Assistance found at Ex. C of Ms. Milne’s affidavit sworn October 18, 2018 and found at Tab 9 of Vol. 9 of the Continuing Record.
36. 36Cf. Tugwell v. Tugwell, supra where Wood J. did not apply this three part test in a motion for interim spousal support in the face of a marriage contract.