Court File and Parties

COURT FILE NO.: FC-15-1538-1 DATE: 2020/03/30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Marie-Josée Laderoute Applicant – and – Scott Edward Birrell Heffernan Respondent

COUNSEL: Tanya C. Davies, for the Applicant Frederic P. Huard, for the Respondent

HEARD: January 21 – 25, January 28 – 31, February 1, February 4 – 8, and May 13 – 15, 2019. FINAL WRITTEN SUBMISSIONS: June 11 and 21, 2019

REASONS FOR DECISION

D. SUMMERS J.

Introduction

[1] There are two main issues in this trial. First, Ms. Laderoute seeks to set aside a separation agreement dated May 9, 2014 and an amending agreement dated November 27, 2015. In both instances, she relies on section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3. That section enables the court to set aside a domestic contract for failure to make significant disclosure, if a party did not understand the nature or consequences of the contract, or otherwise in accordance with the law of contract. Second, if the contracts are set aside, Ms. Laderoute asserts claims for equalization of net family property, retroactive child support, and retroactive and ongoing spousal support and Mr. Heffernan seeks support for the child in his primary care.

[2] The parties’ evidence conflicts on several material points. There were elements of each party’s testimony that I found rather implausible. I have made findings of fact unfavourable to each of them. Unless my reason is specifically stated, I have done so by considering the evidence as a whole. In general, I preferred Mr. Heffernan’s testimony and found him to be the more credible of the two. Where the evidence was unclear, his often had a ring of reality where Ms. Laderoute’s did not. I found he was candid about his mistakes and genuine in his regard for Ms. Laderoute’s strengths and contributions to the relationship. She, on the other hand, was reluctant to admit either.

[3] I also heard testimony from Ms. Laderoute’s parents and Mr. Heffernan’s mother. His father is deceased. I did not find the parents’ evidence helpful beyond demonstrating that each is a loving parent and grandparent.

[4] There were only two other witnesses called to testify: the professionals that each party hired to value Mr. Heffernan’s interest in two pubs. The issue of their value was at the heart of Ms. Laderoute’s claim to set aside the agreements. After a voir dire, I determined that Mr. Heffernan’s expert was not qualified to give opinion evidence on this topic. My decision can be found at 2019 ONSC 914. Ms. Laderoute’s expert did testify, however, his opinion of value was based on a date that was more than a year and a half after separation. His evidence did not assist the court to determine Mr. Heffernan’s net family property.

[5] The reasons that follow will explain my decision to uphold the contracts. Neither is set aside. I will then briefly address the other claims for corollary relief and why I was unable to make the orders sought, in any event.

Background

[6] The parties began cohabiting in 1994 and married on May 10, 1997. They have three children: Alyson, Connor, and Thomas. Respectively, they were 24, 20, and 17 years of age, at the time of trial.

[7] Kelsey, Mr. Heffernan’s daughter from a prior marriage, spent weekends with the parties until moving to Calgary with her mother. When she was 14 years old, she returned to live with the parties for approximately a year. Kelsey is now 29 years old and living independently in Calgary.

[8] Prior to meeting Mr. Heffernan, Ms. Laderoute attended college. She first worked as an addictions counsellor and then held different office positions. When she met Mr. Heffernan in 1993, he was employed as the general manager of a restaurant in Ottawa.

[9] After Alyson’s birth in 1994, Ms. Laderoute remained out of the paid workforce until 2002. Connor was born in 1997 followed by Thomas in 2001. In 2002, she found an office job with the school board.

[10] As Ms. Laderoute returned to work, Mr. Heffernan left his job to stay at home with Thomas. In 2004, he went back to work three nights a week and cared for Thomas during the day.

[11] In 2006, with the backing of private investors, Mr. Heffernan opened a pub in Ottawa, on Bank Street. Ms. Laderoute spent July and August working with him to ensure the doors would open on time. In September 2006, with Mr. Heffernan’s encouragement, she left her job at the school board and continued to work in the pub. He acknowledged that Ms. Laderoute was instrumental in the success of the Bank Street location.

[12] In 2012, Mr. Heffernan opened a second pub in Orleans, again with the backing of private investors. Soon Ms. Laderoute worked solely at the Orleans location.

[13] Mr. Heffernan incorporated both businesses. He holds the common shares and some preferred shares. The investors received preferred shares. Ms. Laderoute was not a shareholder.

[14] In January 2013, Mr. Heffernan told Ms. Laderoute that he wished to separate. He was 50 and she was 44 years old. Ms. Laderoute rented a townhouse and moved on May 1, 2013.

[15] The parenting arrangement following separation was shared and flexible. Both parties described it as an “open door policy.” Each wanted the children to know that they could see the other parent at any time.

[16] The parties continued to work in the pubs as they had before separation.

[17] On May 9, 2014, the parties signed a separation agreement. One of the terms provided Ms. Laderoute with ongoing employment at the pub at a salary of $3,000 per month plus tips.

[18] In September 2015, Mr. Heffernan sought a divorce.

[19] On October 19, 2015, Ms. Laderoute filed an answer. She sought to set aside the separation agreement and obtain orders for the equalization of net family property, retroactive child support, and retroactive and ongoing spousal support. Each party had counsel.

[20] On November 27, 2015, the parties concluded an amending agreement. The agreement provided Ms. Laderoute with a guaranteed annual salary of $52,000, for five years. She withdrew her answer and the divorce proceeded without contest.

[21] Ms. Laderoute continued working in the Orleans pub for a few more weeks. In early January 2016, she left and never returned.

[22] She commenced this proceeding in May 2016.

[23] Mr. Heffernan continues to operate the pubs. Ms. Laderoute has not worked since January 2016.

[24] When the matter reached trial, both Connor and Thomas were living Mr. Heffernan. Alyson was in the midst of her final year of teacher’s college and spent time with both parents.

The Issues

[25] The issues to be determined are:

1. Should the separation agreement dated May 9, 2014 be set aside?
2. Should the amending agreement dated November 27, 2015 be set aside?
3. If the agreements are set aside, what is the equalization payment owing?
4. If the agreements are set aside, should Ms. Laderoute be awarded retroactive child support and if so, in what amount?
5. If the agreements are set aside, should Ms. Laderoute be awarded retroactive and ongoing spousal support and if so, in what amount?
6. If the agreements are set aside, should Mr. Heffernan be awarded child support and in what amount?

The Law

[26] The legal analysis begins with section 56(4) and (7) of the Family Law Act, set out here:

Setting aside domestic contract

s.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.

Application of subss. (4, 5, 6)

(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary.

[27] In LeVan v. LeVan, 2008 ONCA 388, at para. 33, the Court of Appeal held that there are two parts to setting aside an agreement and the onus of proof rests with the moving party. A finding that a party violated a provision of s. 56(4) of the FLA does not automatically render the contract a nullity. Rather, the finding engages the section and allows the court to move on to the second step that is a discretionary exercise based on the circumstances of each case. In LeVan, the trial judge determined it was appropriate to set aside a marriage contract not simply because of the failure to disclose, but also because of other factors relevant to s. 56(4), such as the wife's failure to understand the nature and consequences of the contract in accordance with s. 56(4)(b).

[28] The Court of Appeal in LeVan v. LeVan described the section 56(4) analysis this way:

[51] The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk, 1986 ONSC 6295, [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.). 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.

[60] Based upon the trial judge's 12 findings of fact that I have outlined, she properly exercised her discretion to set aside the contract for failure to comply with s. 56(4)(a). In deciding how to exercise discretion, the trial judge considered the "fairness" of the contract. … In my view, once a judge has found one of [the] statutory preconditions to exist, he or she should be entitled to consider the fairness of the contract together with other factors in the exercise of his or her discretion. It seems to me that a judge would be more inclined to set aside a clearly unfair contract than one that treated the parties fairly.

[61] However, this was not the only reason the trial judge articulated in support of her decision to set aside the contract. As I have stated, in exercising her discretion, the trial judge also made the following findings: (i) the husband had interfered the wife's lawyer of choice; (ii) the wife's lawyers were unable to appreciate the consequences of the contract and impart them to the wife due to lack of financial disclosure and misrepresentations; (iii) the wife had not received effective independent legal advice and some advice provided was wrong; and (iv) the wife did not understand the nature or consequences of the contract she signed.

[62] These findings are reasonably supported by the evidence presented at trial. I therefore see no reason to interfere with them in this case. In essence, the trial judge found that the husband failed to make full disclosure of his significant assets, that his disclosure was incomplete and inadequate and that his failure to make full disclosure was a deliberate attempt to mislead his wife. As such, the trial judge's decision to set aside the contract should be upheld.

[29] If the first part of the test is met and s. 56 of the Family Law Act is engaged, the decision in Dochuk v. Dochuk, 1999 ONSC 14971 is instructive. That case looks at the factors to be considered by the court in the exercise of its discretion when determining whether to set aside the contract. Dochuk involved a homemade agreement. At para. [18], the court set out the following factors identified in Demchuk v. Demchuk, [1999] O.J. No. 363 (H.C.) and added a final consideration, as set out in (g) below:

(a) whether there had been concealment of the asset or material misrepresentation;

(b) whether there had been duress, or unconscionable circumstances;

(c) whether the petitioning party neglected to pursue full legal disclosures;

(d) whether he/she moved expeditiously to have the agreement set aside;

(e) whether he/she received substantial benefits under the agreement;

(f) whether the other party had fulfilled his/her obligations under the agreement; and

(g) whether the non-disclosure was a material inducement to the aggrieved party entering into the agreement; in other words; how important the non-disclosed information would have been to the negotiations.

[30] In Dochuk, the court did not exercise its discretion to set aside the agreement even though significant assets were not disclosed. The court found that:

• The husband did not disclose his retirement plan, but the wife knew about it and she made no inquiries;
• The wife had had independent legal advice and disregarded it;
• The wife showed a lack of care in pursuing legal disclosure;
• The wife bought a house and put herself in a position where she needed and wanted money right away;
• The payment agreed to did not take into account the value of the time share retained by the wife, nor did it factor in the husband’s date of marriage deduction; and
• The parties chose to settle their own affairs in their own way.

[31] Other courts have considered additional factors. These are all referred to in the Ontario Court of Appeal decision, Virc v. Blair, 2014 ONCA 392:

• In Butty v. Butty, 2009 ONCA 852 the appeal court held that a party cannot enter into an agreement knowing its shortcomings in disclosure and then rely on those shortcomings to set aside the agreement. Ms. Butty had actual knowledge of his business and either was or would have been aware if there was uncertainty as to its worth.
• In Quinn v. Epstein Cole LLP, 2008 ONCA 662 the same court ruled that a spouse could not resile from the consequences of failing to pursue further disclosure unless she could demonstrate that the disclosure was inaccurate, false, or misleading.
• In Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, the Supreme Court of Canada said that deliberate failure to make full and honest disclosure of all relevant financial disclosure may render an agreement vulnerable to judicial intervention where the result is an agreement substantially at variance from the objectives of the governing legislation.

The May 2014 Agreement

[32] This agreement was signed a year after the parties’ physical separation. Mr. Heffernan hired a lawyer to prepare the agreement. She also gave him independent legal advice. Ms. Laderoute signed a waiver of independent legal advice that was attached to the agreement. It stated that she had read and understood the agreement, understood her rights and obligations under it, had been advised to obtain independent legal advice, had the opportunity to do so, and decided not to. The waiver concluded with an acknowledgment that Ms. Laderoute was signing the agreement of her own volition and without fear, threats, compulsions, or influence by Mr. Heffernan or any other person.

[33] Ms. Laderoute testified that she did not receive financial disclosure, nor were the terms of the agreement negotiated. She said she did not know the meaning of the terms, including what was meant by the words “equalization payment.” She further alleged duress and said that Mr. Heffernan threatened to ruin her reputation, ruin her relationship with the children, and to kill her if she did not sign the agreement. She also said the date of separation in both agreements is wrong and should be January 1, 2013, not May 1, 2013.

[34] Mr. Heffernan described the circumstances differently. He denies threatening Ms. Laderoute and denies forcing or pressuring her to sign the agreement. He says that agreement was not unconscionable, there was disclosure, and that between them, they negotiated the terms over several months.

[35] It is apparent on the face of the agreement that it was a serious, comprehensive legal document. This was not a “kitchen table” agreement.

[36] In summary, the agreement provided for:

• Joint parenting with flexible, shared residential arrangements;
• Allocated sharing of identified children’s expenses between the parents;
• No table amount of child support was required despite the stated differential incomes of the parents (his, $95,000; hers, $34,000 plus tips);
• A summary of payments made by Mr. Heffernan since separation towards Ms. Laderoute’s living expenses and an acknowledgment that no spousal support was owed by one to the other, “at this time”;
• A commitment for Mr. Heffernan to keep Ms. Laderoute employed at his business at a base gross salary of $3,000 per month;
• Prescription drug, dental and life insurance coverage;
• Payment by Mr. Heffernan to Ms. Laderoute of $180,000 in return for her agreement to transfer interest in the jointly owned home to him. He assumed sole responsibility for the mortgage registered on title;
• The two pubs owned by Mr. Heffernan would remain his;
• Various clauses dealing with a division of bank accounts, RRSPs, vehicles, and debts;
• Release clauses including a release of an equalization payment; and
• Provisions with respect to financial disclosure set out below in more detail.

The Circumstances Surrounding the Formation of the Agreement

[37] The parties’ testimony differed as to the circumstance of their marriage as well as to those surrounding the preparation and execution of the agreement.

[38] Ms. Laderoute described Mr. Heffernan as an abusive and domineering spouse. She said he controlled the money and was secretive about finances. Ms. Laderoute said she never had her own bank account. Even when paid by direct deposit from the school board, she said she did not know whether her pay went into Mr. Heffernan’s account or a joint account. Although he had given her the bank account information to arrange her direct deposit, she said it never occurred to her to use the information to find out the banking details for herself. In addition, she said after she began working at the pub, she had to sign over her paycheque every week. If she needed something for herself or the children, she had to ask for the money, permission, or both. According to Ms. Laderoute, Mr. Heffernan belittled her as a person and disparaged her contribution to the family. That, she said, was her reality.

[39] Ms. Laderoute described two incidents of physical violence in the summer of 2006. She said the first occurred when Mr. Heffenan slammed her head against the computer table after seeing something on her screen that upset him. The second attack happened in the kitchen when he charged through the door, put his hands around her throat, and tried to choke her. She said she thought she was going to die. Ms. Laderoute’s mother called in the midst of this and notified the police. Mr. Heffernan left before they arrived. Ms. Laderoute said she lied to the police and denied physical violence.

[40] Mr. Heffernan admitted the violence that Ms. Laderoute described but denied trying to choke her. He expressed how distraught he was after discovering Ms. Laderoute’s affair and seeing over 400 pages of emails between her and her lover – a person she testified was only a friend from her past. Mr. Heffernan expressed deep remorse and was candid in his admission that there was no excuse for his behaviour. I believed him when he said he regrets nothing more than his actions that day.

[41] Mr. Heffernan also accused Ms. Laderoute of physical abuse. He described a situation in 2002, alleging that she kicked and punched him. He raised another incident involving his daughter, Kelsey, where Ms. Laderoute slapped her face. He said there were times in their relationship when each of them were driven to behaviours that were out of character and not in keeping with who they were.

[42] I find there was physical violence by both parties between 2002 and 2006. Mr. Heffernan’s behaviour toward Ms. Laderoute in 2006 was the most serious. There was no evidence of physical violence by either party after 2006.

[43] Ms. Laderoute also accused Mr. Heffernan of drug and alcohol abuse and said that he had a gambling addiction. Mr. Heffernan acknowledged a period in 2006 when he used cocaine and drank too much. This ended in 2007 when he and Ms. Laderoute agreed to salvage their marriage. He too claimed that Ms. Laderoute had her own issues with marijuana, hash and alcohol during their relationship. To the extent that substances were used during the marriage, I am not persuaded that it rose to the level of substance abuse. Nor am I persuaded that Mr. Heffernan had a gambling addiction. He admitted going to the casino on occasion and that he liked to bet on Sunday football but denied gambling was a problem.

[44] Mr. Heffernan denied the financial abuse and secrecy alleged by Ms. Laderoute. He acknowledged that her pay from the school board was deposited to their joint account and agreed that she endorsed the back of her paycheque from the pub for deposit into their joint account. He said she was largely uninterested in their finances, so he was the one to do the banking and look after the family finances. If she had been interested, he said their banking information was readily available in a marked and unlocked drawer in the basement. He added that they did not have any money in those years, so staying within budget meant most expenses required discussion.

[45] Mr. Heffernan rejects the allegation that he was secretive and withheld financial information. He claims they discussed finances in 2006 when they were opening Bank Street, and pointed to further exchanges in 2011 and 2013. There was evidence that an individual account summary was prepared for each of them on October 17, 2011. These summaries confirmed two joint accounts, their respective RRSP accounts and a USD savings account in Mr. Heffernan’s name. These were essentially the same personal accounts they had at separation. Ms. Laderoute disputes receipt of this information, however, each summary states that it was prepared for the named account holder.

[46] According to Mr. Heffernan, he and Ms. Laderoute met with their account representative on April 19, 2013 to review their account information and to divide his savings account. He said Ms. Laderoute had been clear with him; she expected a measure of financial security before moving. The balance in his savings account was $86,228.91. He testified that he thought transferring half of that balance would be a good start to establishing the financial security she sought before leaving their home. He said they sat together viewing the computer screen that showed the accounts in her name as well as those in his.

[47] Ms. Laderoute recalls the appointment differently. She said Mr. Heffernan completed the transfer of funds before she arrived, and left. She agreed that the bank manager provided her with enough information to be satisfied that the $43,000 transfer was equal to one half of his savings account. She said she was not permitted to see any other account information in Mr. Heffernan’s name, and she left the meeting none the wiser. The bank representative was not called to testify.

[48] That transfer left each party with similar value in their accounts before consideration of future tax liability on RRSP’s. There was no further sharing of their personal accounts. The banking information shared that day did not include evidence of the business accounts.

[49] I am satisfied Ms. Laderoute had access to personal bank account information over the years, including 2013 when they separated. Moreover, I do not regard Mr. Heffernan’s voluntary transfer of $43,000 as consistent with the allegation that he was a financially controlling spouse.

[50] After Ms. Laderoute moved on May 1, 2013, several months passed before the parties discussed settlement terms. Mr. Heffernan emphasized that they were getting along. Their focus was on the children and settling them into their new reality of living between two homes. This is consistent with Ms. Laderoute’s evidence that nothing changed much during this time.

[51] According to Mr. Heffernan, when they did start discussing terms of settlement, their conversations were informal and consisted of at least two meetings at Ms. Laderoute’s home when they were also intimate. He describes her as a strong person with strong opinions and said she was alert to receiving fair payment for her interest in the jointly owned matrimonial home. Mr. Heffernan said he contacted a local realtor who, in turn, provided them with the MLS Price Index chart and other Ottawa-Carleton Real Estate Board data for sales in their neighbourhood. The realtor addressed a note to both saying “here’s a graph to show how the average price of two-story homes has been trending in your area – little change in the last few years. If there is anything [sic] I can help you with, please call anytime. John”. Mr. Heffernan said they used this information to arrive at a value $360,000 for the house. Ms. Laderoute denies there was agreement; she says it was Mr. Heffernan’s value, on a take it or leave basis.

[52] The information from the realtor supports $360,000 as a reasonable value for the matrimonial home. There was no evidence that Ms. Laderoute took any steps to determine the value of the home after separation or for purposes of trial. She did not give any indication of what she thought the house was worth. I find the value of the house was $360,000. Although there was still a small mortgage of $17,573 at separation, Mr. Heffernan paid Ms. Laderoute $180,000, as if the house was unencumbered.

[53] Mr. Heffernan testified that he and Ms. Laderoute negotiated the key terms of the agreement over several months. He said they did their own “footwork” because they were both concerned about legal fees. He testified to his belief that the document reflected the terms that they discussed and that it had been necessary for his lawyer to prepare a couple drafts before he was satisfied it fully captured their agreement. There is no dispute that the only draft Ms. Laderoute saw was the one that she signed. Mr. Heffernan’s lawyer was not called as a witness, nor was an earlier draft of the agreement available to the court.

[54] According to Ms. Laderoute, Mr. Heffernan presented her with the separation agreement during the morning of May 9, 2014 at the Orleans pub telling her that he wanted her to feel protected, that the agreement reflected the terms discussed, and it had to be signed. She said she was busy with customers and had no time to do more than flip through the pages. When first asked, she testified that she did not read the document at all. She later said she did see the clauses about the pubs belonging to him and her obligation to contribute to certain expenses for the children. She said she objected to both and told him she wanted to take the agreement home that night and read it, but was told there was no time as he was meeting with his lawyer later that day. Ms. Laderoute asserts she felt “cornered,” that he threatened to turn the children against her, and they would live with him if she did not sign. She testified that she had not been feeling well and was tired of fighting. She said she decided to sign the agreement and “fight for her share later”. She also said she knew the minute she signed the agreement that she had made a mistake. She felt she had been manipulated into signing a document that benefitted him and realized that she was acting as she always had - to protect him. Ms. Laderoute denies signing the agreement before a witness. She contends the witness signatures were added later. Neither witness was called to testify at trial.

[55] Mr. Heffernan admits to delivering the agreement to Ms. Laderoute at work but said he did so approximately an hour before the pub opened in the morning. He denies exerting any pressure or making the threats attributed to him. He described the mood as kind, not angry. He denies rushing her and said it took about forty-five minutes to conclude the agreement and sign before the two witnesses who were pub employees. He admitted that, in hindsight, it might seem unusual to have concluded their separation agreement at work but said it did not seem odd at the time. He reiterated that they were on friendly terms and had discussed the terms of settlement. Mr. Heffernan acknowledged that Ms. Laderoute did not read the agreement, page for page. He said she flipped through until she found the provisions that were important to her, or until something jumped out at her, and then she took time to read. This evidence is consistent with Ms. Laderoute’s statements regarding her objection to that clauses setting out his ownership of the pubs and the expectation that she would share certain child related expenses.

[56] Mr. Heffernan said he did not know if Ms. Laderoute talked to a lawyer after separation but he did not think so. When Ms. Laderoute was asked if she sought counsel at any point, she said she could not afford legal advice, but if she could have, he would never have allowed it. She did not persuade me of either contention. Ms. Laderoute received $43,000 in cash a year earlier. She had other assets in her name, plus salary and tips that she estimated at $80.00 a day. I am satisfied that she had the financial means to obtain legal advice if she wanted it. I am also satisfied that Mr. Heffernan did not interfere with her ability to consult a lawyer. There was no evidence to suggest that he intruded on her freedom in any way. Although they continued to work together, her ability to work elsewhere was not restricted. Ms. Laderoute had several years of experience in the food and beverage business. Her skills were readily transferrable. I conclude that she continued working with Mr. Heffernan because she chose to.

Financial Disclosure

[57] Ms. Laderoute’s key submission with respect to her claim to set aside the agreements was the lack of financial disclosure, especially in relation to the value of the pubs. Paragraph 10 of the May 2014 agreement provided:

10. FINANCIAL DISCLOSURE

10.1 Each party has investigated the other’s financial circumstances and is satisfied with the disclosure and investigation.

10.2 The parties acknowledge that they have been made aware of section 56(4)(a) of the Family Law Act, that provides as follows:

56(4) A court may, on application, set aside a domestic contract or a provision in it, if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made.

10.3 Although neither Scott nor Julie has requested formal financial disclosure from the other, each is satisfied with the financial information each has about the other, including about the fair market value of the matrimonial home and of Scott’s businesses, and each waives any further need to exchange financial disclosure.

10.4 Scott and Julie agree that they have chosen to enter into this Agreement based on what they considered to be fair and reasonable given their child care arrangements, their existing income, their ability to earn income in the future, their age as well as the choices and contributions they each made to the acquisition and maintenance of the assets that they owned at the time of their separation.

10.5 Julie and Scott agree that the lack of formal financial disclosure shall not constitute a ground for avoiding the provisions of this Agreement. Scott and Julie deemed the exchange of formal financial disclosure irrelevant to the negotiation of the terms of this Agreement.

[58] I have already referred to the disclosure that Ms. Laderoute did receive. With respect to the value of the two pubs, Mr. Heffernan testified to his belief that neither location had any value at the date of separation. He said the first few years at Bank Street were rough. They both worked very hard, kept their incomes low and put profits back into the business. It was important to him to meet his obligations to the investors. Mr. Heffernan readily admitted that Ms. Laderoute was instrumental in getting the Bank Street location up and running and to the success that it enjoyed in subsequent years. Mr. Heffernan remarked many times about the high failure rate of restaurants and bars. He said the pub began to do well in 2011 and 2012. Then, in 2013 the tide turned when the city undertook construction on Bank Street. Although the pub did not fail, Mr. Heffernan said the investors in Bank Street have not received dividends since then. His testimony appears consistent with the income tax information before the court. To the extent dividends were declared after 2013, it was to Mr. Heffernan to account for withdrawals over and above salary. To the extent that business picked up again, he attributed it to the end of construction on Bank Street and the closure of nearby Elgin Street, also for purposes of construction.

[59] When the marriage ended, the Bank Street location had been open for approximately seven years. Orleans had been operational for only a year. It too opened with the financial backing of private investors who received preferred shares and there was a small business loan. The amount owing at separation was $33,676.

[60] Ms. Laderoute said she did not know the details of the financial arrangements to open Bank Street, but in general, she knew the business was incorporated, and that there were investors. She said saw gross revenue numbers on occasion and that she was responsible for submitting staff hours to their payroll company. As for Orleans, she was aware of a loan but not the details.

[61] In the course of this proceeding, Mr. Heffernan disclosed a bank account that was not disclosed at separation. He said he simply forgot about the account. I do not believe him. There was considerable activity in that account during the spring of 2013. On May 1, 2013 it had a balance of $21,199.

[62] I conclude that Mr. Heffernan did not provide Ms. Laderoute with any financial disclosure related to the pubs before they signed the 2014 agreement. There was no indication that he offered even those documents that one would expect to have been readily available such as corporate bank statements, corporate tax returns, loan documents, private investor contributions, corporate financial statements or in-house statements. The duty to disclose financial information is the most basic obligation in family law. This requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, at para. 11. Mr. Heffernan’s failure to meet his disclosure obligation engages s. 56(4) of the Family Law Act and satisfies the first of the two-step process in Levan.

[63] I turn now to the second step and consider the Dochuk factors and the evidence that affected the exercise of my discretion to uphold the agreement.

Did Ms. Laderoute Understand the Consequences of the Agreement?

[64] The answer to this question is yes. Although Ms. Laderoute said she did not read the agreement or know the meaning of the term “equalization payment,” I am satisfied from her evidence as a whole that, in general, she understood the entitlement to share in the value accumulated during the marriage. Moreover, her admission that she objected to certain provisions as she “flipped” through the agreement indicates that she read some portion of the document. Nevertheless, Ms. Laderoute signed the agreement and admitted doing so with the thought that she would fight for her share later. She also said she knew immediately that she had made a mistake. In my view, those statements belie a lack of understanding and find them more in keeping with knowledge that she may have been entitled to more.

Concealment

[65] No such concern existed in this case. Ms. Laderoute was well aware of the two pubs. She had been actively involved in both.

Duress

[66] In Berdette v. Berdette, 1991 ONCA 7061, 1991 CarswellOnt 280 (Ont. C.A.), Galligan J.A. set out the test for undue influence and duress at paras. 21 and 22:

I adopt the definition of undue influence found in the judgment of Henry J. in Brooks v. Alker (1975), 1975 ONSC 423, 22 R.F.L. 260, 9 O.R. (2d) 409, 60 D.L.R. (3d) 577 (H.C.), at p. 416 [O.R., p. 266 R.F.L.]. There undue influence was defined as the "unconscientious use by one person of power possessed by him over another in order to induce the other to" do something.

Finlayson J.A., speaking for the majority of this Court in Stott v. Merit Investment Corp. (1988), 1988 ONCA 192, 19 C.C.E.L. 68, 25 O.A.C. 174, 63 O.R. (2d) 545, 48 D.L.R. (4th) 288 (C.A.), leave to appeal to S.C.C. refused (1988), 63 O.R. (2d) x (note), 49 D.L.R. (4th) viii (note) (S.C.C.), at pp. 561-562 [63 O.R.], said that in order for pressure to amount to duress it must be "'a coercion of the will', or it must place the party to whom the pressure is directed in such a position as to have 'no realistic alternative'" but to submit to it. [Italics added]

[67] More recently, in Turk v. Turk, 2015 ONSC 5800, Justice Kitely set out the following definition of duress:

Duress is said to occur where there is such pressure placed on one of the parties that any consent by that party is not sufficient to uphold the agreement. There exists an absence of choice which in effect vitiates any ability to lawfully consent. However, duress sufficient to void an agreement does not arise based only upon a lack of will to proceed but rather it must be based upon a resolution on the part of the submitting party that there is no other practical choice but to perform the act in question. Duress can be established based upon actual or threatened violence or upon economic consideration.

[68] The evidence did not persuade me that Ms. Laderoute was unduly influenced, pressured, or under duress when she signed the agreement. A year had passed since separation. There was no evidence of any objective circumstance creating pressure to conclude the agreement such as a financing deadline to close a real estate purchase. I also consider that the opportunity for force or coercion was somewhat mitigated by the presence of others in the pub that morning. According to Mr. Heffernan, their two witness were present. According to Ms. Laderoute, the pub was open, and she was busy serving customers.

[69] To the extent there was evidence of discord between the parties prior to the date of the agreement, it did not relate to their ability to parent or resolve other issues arising out of their marriage breakdown. Ms. Laderoute’s evidence of conflict related to her day to day interactions with Mr. Heffernan in the pub and her belief that he was pushing her out of the business. She referred to herself as an owner/manager and complained that he was gradually taking away her previous responsibilities. It was clear throughout Ms. Laderoute’s testimony that she expected her post-separation role in the pubs to continue as business partnership even though she was not a shareholder. If she was experiencing stress, it was my impression that it related to the loss of the public role she one played in the pub vis-a-vis customers.

Was Mr. Heffernan’s Conduct Unconscionable?

[70] To prove unconscionability, the moving party must establish that there was inequality of bargaining power and that the other preyed upon it in order to conclude an improvident agreement. If there is both inequality and improvidence, the onus then shifts to the party seeking to uphold the agreement to prove that he or she acted with scrupulous care for the welfare and interests of the other: Rosen v. Rosen, 1994 CarswellOnt 390 (Ont. C.A.) paras. 12 and 13. Grange J.A., in Rosen went on to say,

“We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability. I can find nothing in the reasons for judgment quoted above to denote that advantage was taken.”

[71] In Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303, at para. 82, the Supreme Court of Canada said that the degree of power imbalance necessary in a family law context is less than that required for an ordinary commercial contract. However, there is no presumption of a power imbalance, nor should the court presume that one party took advantage of the other's vulnerability.

[72] To the extent that there was any power imbalance in the parties’ relationship, I was not persuaded that it was significant, nor that Mr. Heffernan took advantage to create an improvident agreement. There were aspects of the agreement that benefitted each of them. Both parties struck me as strong-minded, however, Ms. Laderoute said it was only with therapy in the recent months, that she found herself and gained the strength to stand up to Mr. Heffernan. Aside from this statement, there was no evidence to support the contention that she ever been in therapy in relation to her marriage or any other situation. Ms. Laderoute did not express ever feeling sadness over the loss of her marriage or that separation caused her fear for her future. I am not persuaded that the agreement was unconscionable, nor that duress was a factor when the parties concluded the agreement.

Did Ms. Laderoute Neglect to Pursue Full Legal Disclosure?

[73] There was no evidence that Ms. Laderoute requested any disclosure beyond what she received from Mr. Heffernan. She said she knew better than to ask – that to do so was to invite bullying and hostility. If an asset was in Mr. Heffernan’s name, it was off limits. I was not convinced by Ms. Laderoute’s evidence. Mr. Heffernan admitted that his manner is brash at times but that is not who he is. That brashness appeared from time to time as he testified; so too did Ms. Laderoute exhibit disdain and a penchant for sarcasm. As was the case in Butty v. Butty, 2009 ONCA 852, I conclude that Ms. Laderoute was aware of the shortcomings in disclosure when she signed the agreement and find that she cannot now rely on those same shortcomings to set aside the agreement. I am satisfied that Ms. Laderoute, like Ms. Butty, had sufficient knowledge of the business to be aware if there was some uncertainty of its worth.

Did Ms. Laderoute Move Expeditiously to Set Aside the Agreement?

[74] Here, the answer is no. Almost a year and a half passed after the agreement was signed before Ms. Laderoute took steps to challenge it despite her testimony that she knew as soon as she signed that she had made a mistake. There was no evidence that Ms. Laderoute expressed her dissatisfaction to Mr. Heffernan before serving her answer in 2015.

Did Ms. Laderoute Receive Substantial Benefits Under the Agreement?

[75] Before the agreement was signed, Ms. Laderoute received $43,000 in cash, plus a total of $23,886 in contributions to her RRSP in 2013 and 2014. The agreement itself provided payment of $180,000 for her joint interest in the home based on a value of $360,000, without deduction for the small mortgage. The agreement provided her with employment and a salary of $3,000 per month plus tips. There was no dispute that she continued to receive full salary despite her decision to reduce the number of days she wished to work from five, to four, to three, and finally, to two. Mr. Heffernan assumed the debt for the vehicle she received under the agreement. Dental and prescription drug insurance was provided, and Ms. Laderoute was relieved of any obligation to contribute to orthodontics and post-secondary education costs for their sons.

Did Mr. Heffernan Fulfill his Obligations Under the Agreement?

[76] Mr. Heffernan complied with the agreement and paid other costs he was not obliged to pay. For instance, he paid and still pays the premiums on Ms. Laderoute’s whole life insurance policy that had a cash surrender value of approximately $4,000 at the time of trial. I am also satisfied that Mr. Heffernan paid all of Alyson’s tuition costs for her first degree despite the requirement that it be shared.

Was non-disclosure a material inducement to Ms. Laderoute?

[77] I cannot determine whether the non-disclosure was an inducement to sign the agreement. There was no evidence before the court to call into question Mr. Heffernan’s testimony that the business had no value. As I have said, his expert was not qualified to testify and Ms. Laderoute’s expert did not provide an opinion of value as of the date of separation.

Fairness

[78] As stated in Levan, the court may consider the fairness of the agreement once s. 56 of the Family Law Act is engaged. Here, I conclude that overall, the May 2014 agreement represents a fair settlement of the parties own making. I am satisfied they addressed the issues that were important to them, in the manner they chose. They made a deal. I am satisfied that Ms. Laderoute understood the consequences of that deal. It was not perfect, but nor was it unfair. It provided Ms. Laderoute with certain payments and relieved her of certain obligations. Mr. Heffernan honoured the agreement. Ms. Laderoute accepted it for eighteen months without complaint. I decline to exercise my discretion to set it aside.

The November 27, 2015 Amending Agreement

[79] After signing the 2014 agreement, Ms. Laderoute grew increasingly unhappy working in the pub. She said she did not feel like the business “was hers anymore”. She wanted out, and she wanted her share.

[80] Ms. Laderoute said that in the summer of 2015, she saw a lawyer about the agreement and was told it would be hard to set aside. She said before she could issue her claim, Mr. Heffernan served his divorce application. In her answer dated October 19, 2015 she sought to set aside the 2014 agreement and to obtain orders for child support, spousal support and the equalization of net family property. The November 27, 2015 amending agreement was signed in settlement of this litigation.

[81] The main amendments required Mr. Heffernan to pay Ms. Laderoute $52,000 per year from his pubs, for five years, and to assume all costs for the children including s. 7 expenses. The payment provision clearly stated that it was replacing paragraph 8.13 of the May 2014 agreement that provided for Ms. Laderoute’s employment and salary of $3,000 per month. The annual amount due under the amending agreement was identified as salary and consisted of twenty-six payments of $2000. Each pub was paying $26,000. The payments corresponded with the employee bi-weekly pay periods. The agreement clearly stated that Ms. Laderoute was responsible to pay the income tax on her salary. The balance of the original agreement was stated to remain unchanged. Ms. Laderoute agreed to withdraw her answer and allow the divorce to proceed uncontested.

[82] Both parties were represented by counsel who provided independent legal advice on the amending agreement. Ms. Laderoute signed the amending agreement in the presence of her lawyer on November 26, 2015. The agreement includes a signed certificate from Ms. Laderoute’s lawyer stating that she believed Ms. Laderoute was fully aware of the nature and effect of the agreement and was signing it voluntarily. Ms. Laderoute also signed a certificate attesting that her lawyer’s certificate was true and accurate. Her certificate further confirmed that she read, understood, and was signing the amending agreement voluntarily.

[83] Mr. Heffernan signed the next day in the presence of his lawyer.

[84] The relevant provisions of the November 2015 amending agreement are:

AMENDMENT

1. The parties executed a Separation Agreement on May 9, 2014 on all issues pertaining to their separation.

2. They are hereby amending their Separation Agreement of May 9, 2014.

3. Sub-sections 4.3 (a), (b), (f) and (g) are hereby replaced with: (i) Scott will continue to pay for all of Thomas’ hockey expenses; (ii) Scott will be solely responsible for Alyson’s tuition until she completes her first post-secondary degree; (iii) Scott will be solely responsible for any school activities for Thomas and Connor; and (iv) Scott will pay for all of the children’s clothing expenses.

4. Subsection 4.4 is hereby struck.

5. The following Sub-Section 8.13 is hereby replaced with: (i) Commencing at the start of the next pay period following the execution of this Amending Agreement, Scott will pay Julie $26,000 per year from each of his restaurants, namely Connor’s Pub located at 313 Bank Street, Ottawa, and Connor’s Pub located at 2401 St. Joseph Blvd., Orleans, for a total of $52,000.00 per year, or $2,000 every two weeks for a period of 5 years. (ii) Julie is not entitled to vacation pay. (iii) Julie is responsible to pay her taxes based on her yearly T4’s. (iv) If Julie should marry or cohabitate, she will lose the salary for the restaurant located in Orleans but will still maintain the salary from the Bank Street location for a period of 5 years. (v) After 5 years, Julie will no longer receive the two salaries from Scott. Julie can continue to work at the restaurants if she so wishes. (vi) If either restaurant fails, if Scott should declare bankruptcy, or if Scott sells either one of the restaurants, he would continue to pay Julie her yearly salary.

6. All other sections of the parties’ Separation Agreement dated May 9, 2014 shall remain unchanged.

[85] Five months after signing the amending agreement, Ms. Laderoute commenced this proceeding asking for essentially the same relief that she claimed in 2015. She makes many of the same allegations and arguments that she made then. She states that she still did not receive the financial disclosure she wanted in relation to the business. She said she was rushed, and that once again, Mr. Heffernan pressured her into signing. She further submits that some of the terms in the agreement are unfair such as the one that stipulates that her income from the business will reduce by half if she marries or cohabits during the five-year period. She also claims there was a verbal agreement that she would receive her payment of $52,000 each year over and above the salary of $3,000 per month received under the 2014 agreement. When those details did not appear in the amending agreement, she said Mr. Heffernan assured her that she would receive both amounts.

[86] In addition, and despite the wording of the amending agreement, Ms. Laderoute further maintains that the five-year $52,000 annual payment was intended to be her equalization payment and, therefore, tax free to her. She said she believed the reference to salary in the amending agreement was to the income she received under the 2014 agreement.

The Circumstances Leading Up to the November 2015 Agreement

[87] Ms. Laderoute testified Mr. Heffernan reacted poorly to her claim, that he called her names, told her she was stupid, and wasting money. Nevertheless, three days later she accepted his dinner invitation to discuss a proposal. She said he asked her what she needed to feel secure and she told him $40,000 plus her half of the business. As she described the conversation, Mr. Heffernan said he had “looked at the books”, thought the pubs were worth $500,000, and offered her $250,000. He also agreed to pay all costs for the children including their s. 7 expenses. She testified that she thought his value “made sense” and accepted the offer. She said Mr. Heffernan’s proposal ended with a reminder that he did not have to pay anything extra as they already had a signed agreement.

[88] Approximately one month later, the parties signed the amending agreement. Ms. Laderoute testified that the word “salary” did not register with her as it related to the $52,000 annual sum. She then testified she could not be sure if she read that paragraph. And later, she said she did not understand. She just believed what Mr. Heffernan told her – that she would receive both payments from the pub, that $52,000 would be tax free and the income tax payable was on the salary she was already getting. She also said she believed the amending agreement was an “add on” to the 2014 agreement and not a variation.

[89] Ms. Laderoute said she signed the agreement in a rush. She was afraid that if she did not conclude the deal quickly, she would not get anything, so she wanted it done. She did not want to fight. Her priority, she said, was to keep herself safe and to keep the children safe.

[90] She said only when the agreement was signed, did Mr. Heffernan tell her he could no longer afford her $3,000 monthly salary. She realized then that she had made a big mistake. She told the children that she would never speak to him again. In January 2016, she left the pub and did not return.

[91] Ms. Laderoute confirmed that she did not see any financial documentation for the pubs, nor did she ask. She said the nature of “their dynamic” was such that she could not question Mr. Heffernan without fear of repercussion. She said it was only when she stopped talking to him and sought therapy, that she was able to break away from his influence.

[92] Mr. Heffernan’s account of the dinner conversation in October 2015 was similar insofar as he asked Ms. Laderoute what she needed to feel secure and able to move on with life. He says she told him she needed financial security before she could leave the pub, either to go back to school or start a new career. He testified that as the mother of his children, he wanted her to be happy, and to feel valued. He remained adamant that the business did not have value and explained how he approached his proposal to pay $52,000 annually. He said he did not place a value of $500,000 on the business, rather he looked at average household income in Canada. His plan was to guarantee Ms. Laderoute income for five years regardless of the success or failure of the pubs. Mr. Heffernan acknowledged that, by then, their relationship was strained, and their communication poor. Nevertheless, when Ms. Laderoute accepted, his proposal met her concerns.

[93] The only condition attached to Ms. Laderoute’s salary was cohabitation or remarriage in which case, they agreed that her salary from the Orleans pub would cease. Mr. Heffernan explained that the provision related to her disparate contributions to the two pubs. Because her role in Bank Street was significant, he thought the pay from that pub should continue for the balance of the five-year term regardless of her spousal status.

[94] Mr. Heffernan denies that he threatened, pressured or exerted undue influence. He maintains that Ms. Laderoute was happy with his proposal, that she did not ask for disclosure, and that nothing was done in a rush. Over a month passed between their dinner and the day she met with her lawyer to sign the agreement. He said he did not act with malice.

Discussion

[95] Mr. Heffernan did not provide Ms. Laderoute with financial information for the pubs before the 2015 amending agreement was signed. His failure to do so engages the court’s the jurisdiction under s. 56(4) of the Family Law Act to set aside the agreement. In the circumstances of this case, I find no reason to exercise my discretion to do so. I am satisfied that Ms. Laderoute knew and understood the consequences of the agreement she signed. The agreement was brief and straightforward. She knew the terms that she negotiated with Mr. Heffernan over a meal in a restaurant. Ms. Laderoute is a capable person. She accepted a proposal and had a month to think about it. She had a lawyer to explain the agreement to her. She volunteered that her lawyer told her not to sign it. She did not call her lawyer to testify.

[96] Ms. Laderoute did not pursue financial disclosure claiming there would be a price to pay if she did so. I find that allegation is at odds with the decision to hire counsel and put her case before the courts. There was no evidence she ever instructed her lawyer to seek disclosure. I conclude that she did not regard disclosure as important to the deal struck.

[97] Ms. Laderoute said she was rushed and pressured. She said she felt compelled to sign in order to protect herself and her children. No evidence was presented to support that contention. There was no indication that Mr. Heffernan was in contact with her after they reached agreement nor that he ever posed a threat to his children. Ms. Laderoute testified that she signed the agreement in her lawyer’s office. No one else was there. I do not believe Ms. Laderoute feared Mr. Heffernan. Accepting his dinner invitation three days after notifying him of her lawsuit undermines this assertion.

[98] Mr. Heffernan fulfilled his obligations under the agreement. Although Ms. Laderoute did not return to work after January 2016, he continued to pay her $52,000 each year and was still doing so when the trial was heard. He also continued paying the premiums on her life insurance policy and for her dental and prescription drug coverage. Ms. Laderoute was reluctant to admit that he still provided her with coverage but eventually acknowledged that she still uses the plan. There was no dispute that Mr. Heffernan honoured his child support obligation. Both boys live with Mr. Heffernan. Thomas is still in school and Connor also now works with him.

[99] I find no basis to set aside the 2015 amending agreement. It is not unconscionable. It was concluded with the benefit of counsel. Ms. Laderoute ignored the advice she received and has accepted significant benefits under the agreement. It is binding and to be respected.

Equalization Payment and Corollary Relief

[100] Had I set aside the agreements, I would have had great difficulty evaluating Ms. Laderoute’s other claims. The only valuation evidence she presented regarding the value of the pubs was a calculation report prepared by her expert that valued the businesses as of December 31, 2015. The explanation for this was Mr. Heffernan’s failure to provide the financial information needed to value the businesses as of the date of separation in 2013. This statement is not supported by the evidence. In the cover letter to the business valuation report, the expert states that he was instructed to value the business as of December 31, 2015. The questionnaires sent to Mr. Heffernan also state the valuation date as December 31, 2015. Consistent with this, the valuator requested financial documents for the five-year period between December 31, 2011 to 2015. Ms. Laderoute’s expert admitted in cross-examination that his 2015 value was not a guide to value as at separation.

[101] The issue of disclosure was addressed twice by the court. At the case conference on July 20, 2016, Justice Beaudoin made an order granting Ms. Laderoute permission to proceed with a motion for disclosure. There is no indication that she ever did so. On June 7, 2017, Justice Parfett presided over the settlement conference. Her endorsement notes Ms. Laderoute’s wish to obtain her own business valuation and Mr. Heffernan’s agreement to facilitate access to his accountant. Justice Parfett’s endorsement also allowed the parties to bring the matter back before her if Ms. Laderoute’s business valuator experienced any difficulty obtaining access to the information. There was no indication that Justice Parfett was involved with this matter again.

[102] Ms. Laderoute did not retain her expert until late April 2018. Mr. Heffernan confirmed permission for the valuator to contact his accountant and advised that he was ready to meet with the valuator when requested. Over the course of May, June and early July, numerous requests were made to Mr. Heffernan and his accountant. Some of the information was produced but not all. I am satisfied that neither Mr. Heffernan nor his accountant cooperated as they should have. There is no evidence that Ms. Laderoute sought a disclosure order. The valuator released his report on July 19, 2018.

[103] Had it been necessary for me to decide this issue on the evidentiary record, I would have accepted Mr. Heffernan’s position that the pubs had no value at the date of separation.

[104] Ms. Laderoute also claimed child support retroactive to the date of separation. She submitted calculations premised on her assertion that she had, in fact, been the primary residential parent throughout despite the shared parenting terms of their agreement. Ms. Laderoute’s testimony did not persuade me. She described the parenting schedule between May 1, 2013 and September 1, 2014 as the children living with her from Sunday at noon until Friday morning each week before going to Mr. Heffernan’s home for the weekend. She said they also went to his home every day after school from 3:15 p.m. until approximately 5:30 p.m. when she either picked them up or he dropped them off at the pub. She said this schedule changed in September 2014 when Thursday became the transition day to Mr. Heffernan’s home.

[105] Mr. Heffernan, on the other hand, said that he cared for the children from Wednesday through Sunday from the beginning as well as every afternoon between the end of the school day and 6:00 p.m. when they returned to their mother with dinner and homework completed. Mr. Heffernan said he also picked up the children every morning and drove them to school. He described the nature of his work as flexible and that as the owner, he could, to some extent, arrange his work obligations around the needs of the children.

[106] The parties disagreed on the date that Connor moved to live with his father. According to Ms. Laderoute, Alyson and Connor followed the Sunday to Thursday schedule in her home until September 2017 when Connor moved to his father’s. She says Alyson, at age 24 years, still follows this routine when she is not away at teacher’s college in North Bay. Mr. Heffernan disagrees. He testified that Alyson stays with him from Wednesday to Sunday when she is in town and states that Connor moved to his house when was he was 17 years old. The common ground between the parties with respect to Connor’s move seems to be that it coincided with college. Based on Ms. Laderoute’s evidence, he would have been 19 almost 20 years old when he started his post-secondary education yet there was no suggestion that he was behind in school or that he took time off before college. For that reason, I prefer Mr. Heffernan’s evidence that Connor moved in with him when at age 17. That puts the date somewhere in the fall of 2015. It is not disputed that Thomas moved to live with his father in September 2016.

[107] I do not accept either party’s account of the day-to-day schedule between May 2013 and the time that Connor and Thomas each moved to live with Mr. Heffernan. The evidence did not persuade me that they deviated from the shared and flexible approach to equal parenting time envisioned in their separation agreement.

[108] Further, in relation to Ms. Laderoute’s claim for retroactive child support, no evidence or submissions were directed to the factors set out in the leading case of S. (D.B.) v. G. (S.R.), 2006 SCC 37. That case, commonly referred to as DBS, identifies factors that the court must consider when determining whether retroactive child support should be awarded. At paras 133 and 134, the court states:

133 In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

134 Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.

[109] As one example, Ms. Laderoute did not provide evidence of the children’s past circumstances, whether they suffered any hardship or negative impact on their lifestyle that could be addressed by a retroactive award. Nor was there evidence of how such an award would benefit them now in light of their present circumstances. The evidence otherwise before the court indicates that the children’s needs were met; that they were provided with everything they needed and wanted. They travelled with each parent, participated in activities such as hockey, and obtained or are currently obtaining their post-secondary education. Mr. Heffernan covered all expenses but for travel costs. Considering Connor and Thomas, each has been living with Mr. Heffernan for several years and he has been solely responsible for their support. Connor is now working, Thomas is in college. Ms. Laderoute does not contribute to Thomas’ support or s. 7 expenses. There is no evidence that a retroactive child support award to Ms. Laderoute would redress any past or present need of the children. I would decline to make such an order.

[110] In Kerr v. Baranow, 2011 SCC 10, the court found the factors in DBS were also relevant to the analysis of retroactive spousal support claims stating that the factors must be seen and weighed in the context of the different legal principles that apply to spousal support. My comments above with respect to retroactive child support apply equally here. No evidence or submissions were directed to these factors to inform the exercise my discretion had the agreements been set aside.

[111] Mr. Heffernan claimed ongoing child support for Thomas in his answer, in the event the agreements were set aside. Had that happened, I would have awarded child support plus a proportionate contribution from Ms. Laderoute to Thomas’ post-secondary expenses.

[112] Finally, with respect to Ms. Laderoute’s claim for ongoing spousal support, I note that independent of whether the separation agreements were set aside, she did not make a Miglin type claim for spousal support.

Decision

[113] For these reasons, the application is dismissed with costs to Mr. Heffernan.

Costs

[114] If the parties are unable to resolve the costs payable, Ms. Laderoute shall have 14 days to serve and file her costs submissions. Mr. Heffernan shall have 14 days thereafter to serve and file his cost submissions and Ms. Laderoute shall have a further 5 day right of reply. Submissions shall be prepared using 12-point font, shall not be single spaced and shall not exceed 5 pages exclusive of offers to settle and bills of costs. Reply submissions shall not exceed 2 pages.

Justice D. Summers Released: March 30, 2020