COURT FILE NO. 2922/14

DATE: 2020-08-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

April Sunshine Kinsella

– and –

Troy Kentford Mills

Applicant )

Respondent )

Jennifer Swan, for the Applicant

Self-represented; Surinder Multani as agent for the purposes of Closing Submissions only

HEARD: May 22-24, 2018; June 11, 2018; June 25, 2018; June 29, 2018; July 3, 2018, July 26, 2018; August 28, 2018; September 27, 2018; November 1, 2018; April 1-4, 2019; April 8-12, 2019; April 15-18, 2019; September 3-6, 2019; October 8-11, 2019; January 2, 2020; July 15, 2020

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART 1: INTRODUCTION

1These are my Reasons for Judgment in connection with the trial of this matter, which unfortunately spanned many months. The Applicant April Sunshine Kinsella (“the Applicant”) commenced this application several years ago, on December 16, 2014 (“the current application”). The case has proceeded upon what can only be described as a long, winding and arduous path of litigation since that time. The court disposed of the Applicant’s various property-related claims along the way. Ultimately, the issues that proceeded to trial related to spousal support.

[2] The parties began cohabiting in approximately May 1999 and were married on May 18, 2002. They disagree as to when they separated, with the Applicant alleging that the separation occurred on January 15, 2010 and the Respondent stating that it occurred on June 27, 2009. This is the third Family Law application that the Applicant has commenced against the Respondent. She initiated her first application on June 8, 2010, in the Superior Court of Justice in Windsor, Ontario. She was initially represented by legal counsel, Mr. Gary Ouellette, who prepared and filed the first application on her behalf. At that time, she sought spousal support and advanced numerous property-related claims against the Respondent. In November 2010, she signed and served counsel for the Respondent with a Notice of Change in Representation indicating that she was self- represented. Subsequently, on November 10, 2010, the parties signed Minutes of Settlement and a Consent, which purported to resolve all Family Law issues between them. In this judgment, I will refer to these documents as the “Minutes” and “the Consent.” The Minutes and Consent both stipulated that they were intended to be domestic contracts within the meaning of section 54 of the Family Law Act, R.S.O. 1990, c. F-3, as amended. The Minutes included a complete release of spousal support and equalization claims and addressed all other property-related issues between the parties. Notwithstanding the releases included in the Minutes, the Consent provided that the Respondent was to pay the Applicant a lump sum of $40,000.00. The Applicant executed a Notice of Withdrawal of her application on November 10, 2010, and she filed this Notice with the court in Windsor on December 8, 2010.

3The Applicant now requests an order pursuant to section 56(4)(c) of the Family Law Act setting aside the spousal support terms of the Minutes and Consent on the grounds of duress, undue influence and unconscionability, and because they lack the certainty required to form a valid contract. Further to this request, she seeks an order pursuant to section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, requiring the Respondent to pay her spousal support for the period from January 1, 2010 until December 31, 2017, subject to credits for amounts that the Respondent has paid her pursuant to the terms of the Consent. Her position is that the quantum of spousal support should be increased annually over this period based on alleged increases in the Respondent’s income. In the alternative, if the court declines to set aside the spousal support terms of the Minutes and Consent, the Applicant requests that the court nonetheless override those provisions and grant her the spousal support that she is requesting pursuant to section 15.2 of the Divorce Act based on the principles which the Supreme Court of Canada articulated in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 (S.C.C.). The Respondent requests that the Applicant’s claims be dismissed on various grounds, and seeks costs against the Applicant.

4The issues to be determined are as follows:

1. Is there a limitation period respecting the Applicant’s claims to set aside the Minutes and the Consent pursuant to section 56(4) of the Family Law Act, and if so, what is the applicable limitation period?

2. If there is a limitation period relating to the claims to set aside the Minutes and Consent:

a. When did the limitation period begin to run in this case? and

b. Did the Application advance her claims to set aside the Minutes and Consent within the limitation period?

3. If the claim to set aside the Minutes and Consent is not statute-barred due to a limitation period, should the court set aside the spousal support terms of the Minutes and Consent pursuant to section 56(4)(c) of the Family Law Act on the grounds of:

a. Uncertainty in the terms of the documents;

b. Duress;

c. Undue influence; or

d. Unconscionability?

4. Alternatively, if the spousal support terms of the Minutes and Consent are not set aside, should the court nonetheless exercise its discretion to override those terms pursuant to the principles which the Supreme Court of Canada articulated in Miglin?

5. If the spousal support terms of the Minutes and Consent are set aside, or alternatively if those terms should be overridden:

a. Should the Applicant be permitted to pursue retroactive spousal support, and if so, what is the appropriate commencement date for retroactive relief?

b. What is the appropriate spousal support award in this case; and

c. What credits should the Respondent receive on account of payments that he made to the Applicant pursuant to the terms of the Consent?

6. In order to address the Applicant’s claims to set aside or alternatively to override the Minutes and Consent, it is necessary to determine the length of the parties’ cohabitation for the purposes of spousal support, their respective property entitlements as of the date of their agreement, and their respective incomes and overall condition, means, needs and other circumstances at that time and since then.

5For the reasons set out below, I have concluded as follows:

1. There is no limitation period applicable to the Applicant’s claims to set aside the spousal support terms of the Minutes and Consent. An application under section 56(4) of the Family Law Act falls within the scope of section 16(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which provides that there is no limitation period in relation to a proceeding for a declaration, if no consequential relief is sought. Accordingly, the Applicant’s claims to set aside the relevant terms of the Minutes and Consent are not statute barred.

2. However, there are no grounds to set aside the spousal support terms of the Minutes and Consent on the basis of uncertainty, duress, unconscionability or undue influence.

3. Likewise, there are no grounds for overriding the spousal support terms of the Minutes and Consent and granting the Applicant the spousal support that she is requesting.

4. The Respondent owes the Applicant a total of $8,780.00 pursuant to the terms of the Consent and I am therefore ordering that he pay this outstanding balance. However, I am staying enforcement of this term until the completion of costs submissions, to allow for a determination of whether there should be a set-off against this amount on account of costs.

5. Based on the foregoing, I am dismissing the Applicant’s outstanding claims.

6I wish to highlight at the outset of these Reasons that this was an exceedingly complex case due to the number and nature of the legal issues, the amount of time that passed from the parties’ separation until the commencement of the application, the challenges inherent in attempting to recall and locate evidence respecting historical events and the Applicant’s bankruptcy following the separation. Although the parties were represented by counsel at the outset of this case, they both became self-represented in very short order. Both parties put forth their best effort to identify the issues, understand the law and the legal processes and protect their interests. The litigation was also carefully and expertly case-managed by a very experienced Family Law judge. However, at the end of the day, this case highlights with blaring clarity the enormous challenges that self- represented litigants face in attempting to address complicated Family Law issues which even the most senior and experienced of Family Law litigators struggle with. In these types of situations, self-represented parties often fail to properly identify and prepare for issues in a timely manner, resulting in numerous unexpected problems at trial which all participants in the trial process must then furiously wade through in an attempt to ensure that justice is done. Unfortunately, such were the dynamics in this case. The Applicant was very fortunate to have been able to retain Ms. Swan part-way through the trial. Ms. Multani became involved at the end of the trial to assist the Respondent with respect to Closing Submissions, as the Respondent felt completely overwhelmed with the numerous

complex legal issues that had to be addressed. Both counsel demonstrated great skill, knowledge and dedication in taking on the task of helping these litigants at the ninth hour to maneuver their way through the complexities of this case. The court is extremely grateful for their efforts and assistance.

PART 2: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

I. PERSONAL AND RELATIONSHIP BACKGROUND

7The Applicant was born on April 12, 1974, and the Respondent was born on February 2, 1974. They are both 46 years of age. The parties began a dating relationship in approximately 1998 and started to cohabit in approximately May 1999. They were subsequently married on May 18, 2002. They did not have any children together. However, the Respondent has a child from a previous relationship, Ariel Sierra Fortier- Mills, born June 27, 1996. The Respondent obtained sole custody and primary residence of Ariel when she was 3 months old. Ariel’s mother had very limited involvement in the child’s life. From 1996 until 1999, prior to the parties’ cohabitation, the Respondent’s mother Diane Mills was Ariel’s care-provider when the Respondent worked. Ariel’s maternal grandmother, Kim MacDonald, was also very involved in the child’s care. Ariel resided with the Applicant and the Respondent on a full-time basis throughout their relationship.

8The parties cohabited at 1036 Pierre Avenue in Windsor, Ontario from approximately 1999 until early 2008. The Respondent’s mother Diane Mills lived with the parties throughout the course of their relationship. His grandmother also lived with them for several months in 2003, after she fell ill. Soon after his grandmother left the home to reside in a nursing home, Diane Mills also became ill for several months. As I will discuss in further detail below, the Applicant assisted in caring for the Respondent’s grandmother and mother during this period.

9The parties purchased 45 Masaccio Drive in MacGregor, Ontario in October 2007. However, the home was essentially a shell structure at that point and was not habitable. The parties undertook construction to complete the house and eventually moved in a few months after the purchase, when it was approximately 60% completed. Diane Mills moved into this home with the parties and paid them rent. The Applicant’s parents also lived with them at this home and paid them rent from sometime in 2008 until the summer of 2009. The parties continued to live at 45 Masaccio Drive until their separation.

II. THE PARTIES’ EDUCATIONAL AND EMPLOYMENT BACKGROUNDS

A. The Applicant

10The Applicant was an aromatherapist and massage therapist when the parties began their relationship in 1999. She had qualified as a certified aromatherapist through the Aromatica Centre for Natural Therapies and Holistic Study in April 1998, and had

subsequently become a designated Myomassology Practitioner through that centre in February 1999. Prior to the parties’ cohabitation, she worked at the Oza Chiropractic Clinic. Her work at the clinic included massage therapy services for the chiropractor’s patients as well as her own private massage therapy practice. In addition, she provided private massage therapy services at nursing homes in the community two afternoons each week.

11After the parties began to cohabit in 1999, the Applicant gradually reduced her hours of work at the chiropractor’s office and the nursing homes but began to operate a private massage and aromatherapy practice from the parties’ home. Following the marriage in 2002, she continued her massage and aromatherapy practice in the home. She initially testified that she stopped working altogether within a few months of the marriage due to challenges with depression and anxiety. However, as I discuss in further detail below, the evidence indicates that she continued to engage in various income-earning activities during the parties’ marriage.

12The Applicant eventually applied for and was found eligible to receive Canada Pension Plan (“CPP”) disability benefits in 2003, with payments being retroactive to 2002. She qualified for these benefits based on mental health difficulties that she had experienced since 1999, including depression, anxiety and panic attacks. Notwithstanding her receipt of CPP disability benefits, the Applicant developed a line of organic personal care products which she labelled “Pure Plant Therapy,” commencing in approximately 2002. She created a corporation called Pure Plant Therapy in 2003 to protect the name for her product line. Subsequently, in 2005, she established a business enterprise called the Soul Rejuvenation Wellness Centre, which she operated on a part-time basis from a location on Ottawa Street in Windsor until approximately early 2008. She obtained a formal licence through the City of Windsor, Ontario to operate this business as a holistic centre. Through this centre, she sold her Pure Plant Therapy products and offered numerous types of treatment modalities including massage therapy, hot stone massage, aromatherapy, hydrotherapy, gemstone therapy and natural and botanical esthetics. Once the parties settled into the matrimonial home in 2008, they set up a “clean room” in the basement of the home where the Applicant could work on her Pure Plant Therapy line of products, but the Applicant testified that her ability to advance this business was hampered due to ventilation problems in the room and various family-related challenges. The Applicant also alleged that she suffered a dislocated shoulder after falling down a flight of stairs around the time when the parties moved into the matrimonial home in early 2008, which made it difficult for her to continue with her home massage and aromatherapy practice. However, client receipts marked as Exhibit 32 indicate that she continued to earn income doing massage therapy as well as manicures as late as August 2008. The Applicant acknowledged in her testimony that she continued to do this type of work at some nursing homes in 2008.

B. The Respondent

13The Respondent left home at 15 years of age and did not complete High School at that time. He took on various low paying jobs, and eventually secured a position driving a

delivery truck for Canadian Linen and Supply Company (“Canadian Linen”) in 1994, when he was 20 years old. He took courses to obtain his grade 12 equivalency and delivered pizza on weekends to make ends meet. The Respondent continued to work full-time for Canadian Linen throughout the parties’ relationship. By 2008, he was an Area Manager for the company. In addition, during the parties’ relationship, the Respondent and his friend at the time, Kirk Laporte, developed a partnership purchasing, renovating and then either renting or re-selling homes that had been seized by banks through power of sale proceedings. Through this partnership, the Respondent purchased rental properties located in Windsor, at 953 Langlois Avenue, 1030 Pierre Avenue, and 1036 Pierre Avenue, where the parties originally cohabited. In 2005, Kirk Laporte advanced funds to the Respondent to purchase another property at 873 Ellrose Avenue. As I will discuss later in these Reasons, I find that the Respondent and Mr. Laporte decided to put this property in the Respondent’s name because Mr. Laporte was in the midst of bankruptcy proceedings at the time. Mr. Laporte and his wife lived in an apartment at that home and received all of the rental income from two other units in the home. After the parties purchased the matrimonial home in October 2007, the Respondent took out a line of credit which he secured against 873 Ellrose Avenue, from which he withdrew funds for the completion of the parties’ matrimonial home. He acknowledged at trial that he did not tell Mr. Laporte that he had done this, and that this destroyed their friendship and partnership.

14I find that the parties lived far beyond their financial means during their relationship. They struggled greatly to pay their bills, and the Respondent delivered pizzas and did bar-tending work on evenings and weekends to stay afloat financially. By 2008, the Respondent began to have concerns about the security of his position at Canadian Linen. In addition, as noted above, the Applicant’s ability to earn income was impaired in early 2008 due to her fall down the stairs. In 2008, the Respondent and Applicant discussed the possibility of the Respondent starting a lawn care business to bring in some extra money. Planning for the business began sometime in early 2008, and the Respondent picked up a few industrial lawn cutting contracts in the late spring and summer of 2008, including a contract with Canadian Linen where the Respondent worked and Versatile Tools. The Respondent was able to obtain the Versatile Tool contract through a friend, whose wife’s family owned the business. The Respondent obtained two other industrial contracts as a result of connections that he had made through Canadian Linen. At that point, the operation was limited to the Respondent and a family friend, Adam Davidson, cutting lawns during evenings and weekends. The business evolved later in the year to include snow removal, because the Respondent’s industrial clients asked if he could provide this service. The Respondent obtained two used trucks and other basic snow removal equipment in response to these requests, and he and Adam Davidson began clearing snow during evenings and weekends for a few clients commencing in December 2008. The Respondent also paid a couple of other people on a casual as-needed basis to help with snow removal during the winter season in 2008-2009. This business remained operational as of the parties’ separation date, which I have found to be June 27, 2009 for reasons outlined below, and became the Respondent’s primary source of income in 2013 after his employment with Canadian Linen ended.

III. THE FIRST FAMILY COURT APPLICATION IN 2010

15As I have indicated, there is a dispute as to when the parties separated. The Respondent’s position is that they separated on June 27, 2009, whereas the Applicant asserts that the separation occurred on January 15, 2010. The parties agree that they both continued to reside in the matrimonial home throughout 2009, and that the Applicant left the home and stayed at a hotel for two brief periods in January 2010. However, she returned to the matrimonial home on the advice of her lawyer and remained there until on or around October 5, 2010.

16As noted above, the Applicant commenced her first Family Law application on June 8, 2010 in Windsor. The Applicant retained legal counsel, Mr. Gary Ouellette, who prepared and filed the application on her behalf. At that time, the Applicant advanced claims for spousal support, equalization of net family properties, sale of the matrimonial home, a 50% constructive trust interest in A1 Properties and in the Respondent’s rental property located at 1036 Pierre Avenue in Windsor, and relief relating to benefits coverage and security for spousal support.

17On June 29, 2010, the Applicant brought a motion seeking temporary spousal support from the Respondent. The motion returned to court on July 23, 2010. On that date, Quinn J. made a temporary order requiring the Respondent to pay the Applicant spousal support in the amount of $1,850.00 per month commencing July 1, 2010, to pay the Applicant $10,000.00 to permit her to establish her own accommodations, with this sum to be characterized as either support or an advance on equalization on the return date of the motion, and to provide a full accounting of all rental and business income from January 1, 2009 onward.

18As of the date of this order, the parties were both still living in the matrimonial home. I find that after the Respondent received the order, the parties began to discuss their financial affairs and how they may be able to resolve the Family Law issues arising from their separation. The Applicant remained in the matrimonial home until on or around October 5, 2010, when she moved out and began to reside at 129 Erie Street West, Apartment #10, Windsor. The Respondent remained in the matrimonial home and continues to live there to date.

19On October 6, 2010, the Respondent’s counsel Ms. Melville sent correspondence to the Applicant’s counsel Mr. Ouellette, attaching the Respondent’s Financial Statement sworn October 6, 2010. She noted that the Respondent was not in possession of his Notices of Assessment at that time, but that he was taking the necessary steps to obtain them. However, she relayed her understanding from the Respondent that the parties had been discussing their financial affairs and that it appeared that they had reached an agreement in principle respecting their Family Law issues, the particulars of which she believed to be as follows:

1. The Respondent would pay the Applicant $35,000.00 in exchange for her interest in the matrimonial home;

2. The Applicant would release her right of spousal support; and

3. In the event that the Respondent was not able to finance the total

$35,000.00 up-front, he would pay whatever lump sum he could secure through the bank and would pay the Applicant the balance of the funds owing to her at the rate of at least $500.00 per month, which would not incur an income tax deduction to the Respondent or be included in the Applicant’s income for tax purposes.

20Ms. Melville requested that Mr. Ouellette confirm the Applicant’s position respecting this proposal prior to October 15, 2010, failing which she would need to commence proceedings to set aside the order of Quinn J. dated July 23, 2010.

21At this juncture, I note that the Applicant chose to adduce evidence from both Mr. Ouellette and Ms. Melville as part of her case. However, the parties reached an agreement that the evidence of these two former counsel would be presented by way of affidavit. Mr. Ouellette swore an affidavit on April 10, 2019, which was filed as an exhibit at trial. With respect to Ms. Melville’s evidence, Ms. Swan provided the Respondent with a list of the questions that she proposed to put to Ms. Melville, and the Respondent agreed to those questions. Ms. Melville addressed those specific questions in her affidavit sworn April 4, 2019, which was also filed as an exhibit at trial. Neither party requested that either counsel attend court for further questioning.

22Based on Mr. Ouellette’s affidavit and his file notes that were attached as exhibits, I find that Mr. Ouellette met with the Applicant on October 8, 2014 after receiving the October 6, 2010 letter from Ms. Melville, and that he and the Applicant discussed the following issues:

1. The Applicant advised Mr. Ouellette that she had the bookkeeping records for A1 Properties for the years 2008, 2009 and part of 2010.

2. The Applicant indicated that she had vacated the matrimonial home on Tuesday October 5, 2010, and that the Respondent had given her two advances of $500.00 each.

3. Mr. Ouellette reviewed the contents of Ms. Melville’s letter dated October 6, 2010 with the Applicant. The Applicant advised that the Respondent had not yet applied for a personal line of credit, and that she did not feel the bank would give him one. However, she felt that the Respondent may have cash.

4. The Applicant and Mr. Ouellette decided during the meeting that Mr. Ouellette would request further disclosure from the Respondent, and that he would check to see if the Respondent’s properties were held jointly or in his sole name.

23After meeting with the Applicant on October 8, 2010, Mr. Ouellette wrote a letter to Ms. Melville on October 14, 2010 confirming that the proposal set out in her October 6, 2010 letter was not satisfactory. He requested that the Respondent produce all of his banking statements from January 1, 2009 onwards, income statements for the Respondent’s businesses from January 1, 2009 onwards, confirmation of all of his debts from January 1, 2009 onward and valuations of all real estate he owned. On October 14, 2010, Mr. Ouellette met with the Applicant once again. His file notes indicate that at that time, the Applicant dropped off the accounting books for A1 Properties, which were hand-written, along with some miscellaneous documents for Mr. Ouellette to review. She explained that the accountant did not do the books for A1 Properties, and that this was why the books were handwritten. The Applicant also provided her counsel with her new address at 129 Erie Street West in Windsor.

24The Applicant did not have any further contact with Mr. Ouellette after October 14, 2010. In November 2010, she signed a Notice of Change in Representation, indicating that she intended to be self-represented. The Notice is dated November 8, 2010, and there is a notation on the back indicating that the Respondent’s counsel, Ms. Melville, accepted service on that same day. However, as I will discuss in further detail below, the Applicant denies having signed and served the Notice of Change in Representation on Ms. Melville on November 8, 2010. She claims that she signed the Notice of Change in Representation, the Minutes and the Consent on November 10, 2010, as a result of duress and undue influence by the Respondent. The Applicant did not advise her former counsel, Mr. Ouellette, that she intended to sign this Notice of Change in Representation or that she had done so. I find that the Applicant advised the Respondent prior to November 10, 2010 that she had “fired” her lawyer, and that both the Respondent and his counsel were of the clear understanding that the Applicant had served Mr. Ouellette with the Notice of Change in Representation prior to the execution of the Minutes and Consent. Mr. Ouellette was eventually served with the Notice on November 17, 2010. It is unclear from his evidence who served him on that date. The Respondent’s employee, Adam Davidson, served him with another copy of the Notice of Change in Representation on November 18, 2010.

IV. THE EXECUTION OF THE MINUTES, CONSENT AND THE APPLICANT’S NOTICE OF WITHDRAWAL ON NOVEMBER 10, 2010

25The parties signed the Minutes and Consent on November 10, 2010. The Minutes reflect that the Respondent’s lawyer, Ms. Melville, witnessed the Respondent’s signature on the Minutes, and that his employee, Adam Davidson, witnessed the Applicant’s signature. On that day, the Applicant also signed a Notice of Withdrawal relating to her original application and a Consent for the Respondent to file his Answer late, which included only a claim for divorce. Ms. Melville, drafted the Minutes and Consent. Her invoice marked as exhibit 89 at trial indicates that she prepared these documents earlier in the day on November 10, 2010. As I will discuss in further detail later in these Reasons, the Applicant and Respondent have drastically different versions of the events surrounding the signing of the Applicant’s Notice of Change in Representation, the Minutes, the Consent and the Applicant’s Notice of Withdrawal.

26The Minutes of Settlement and Consent both stipulated that they were domestic contracts within the meaning of section 54 of the Family Law Act, that the terms would prevail over the matters provided for in that Act or its successor, and that in the event of a divorce order, the terms would survive and continue in force despite not being included in any final order of the court. In addition, both documents included the following acknowledgements by the parties:

1. The Respondent’s solicitor Ms. Melville was not the solicitor for the Applicant or the parties’ joint solicitor;

2. Ms. Melville had recommended to the Applicant that she seek independent legal advice with respect to the terms of the documents, and that she was given an opportunity to seek such legal advice;

3. Notwithstanding the recommendations of Ms. Melville, the Applicant declared that she wished to enter the contracts without the benefit of independent legal advice and acknowledged and declared that the terms of the contracts correctly set out her wishes and intentions;

4. Each of them had the right to review a sworn Financial Statement setting out each of their respective assets and debts and they had both declined to prepare such Financial Statements;

5. They were each aware of each other’s financial situation, and they were fully aware of the nature, extent and probable value of all of their significant assets, debts and liabilities existing at the date of the contracts;

6. They had each given all information and particulars about their assets and liabilities that had been requested by the other, and they were both satisfied with the information and particulars received from each other;

7. There were no requests for further information or particulars that had not been met to their complete satisfaction;

8. They had read the documents in their entirety and had full knowledge of the contents;

9. They understood their rights and obligations under the agreements, and the nature and consequences of the terms;

10. That the terms of the agreements were fair and reasonable;

11. That they were entering into the agreements without any undue influence, fraud, or coercion, and were signing them voluntarily; and

12. They were not under any form of disability at the time of signing the documents.

27The relevant portions of the Minutes for the purposes of this proceeding are as follows:

1. The parties indicated at paragraph 1(b) that they had separated on November 15, 2009, but that they had continued to live separate and apart within the matrimonial home after that time.

2. Paragraph 1(f) indicated that the Respondent was employed full-time with Canadian Linen, and that his annual income from this employment was approximately $45,000.00. It also stipulated that the Respondent was the owner of A1 Properties, which had “various holdings and financial obligations which do not result in additional income to the Respondent.”

3. Paragraph 1(g) noted that the Applicant was unemployed and in receipt of CPP disability benefits in the amount of $6,000.00 per year.

4. Paragraph 33 stipulated that the Minutes shall prevail over any matter provided for in both the Family Law Act and the Divorce Act.

5. Paragraph 7 provided that upon the property transfers as set out in the Minutes, the parties acknowledged that each would be deemed to be self- supporting and not in need of support from each other.

6. Paragraph 8 of the Minutes indicated that both parties had had the opportunity to seek out independent legal advice “and all the disclosure they have asked for and need in order to understand the nature and consequences of the Minutes of Settlement and to come to the conclusion, as they do that the terms of the Minutes of Settlement, including the release of all spousal support rights, constitutes an equitable sharing of both the economic consequences of their relationship and the breakdown.”

7. Paragraph 9 was an acknowledgement by the parties that the Minutes “substantially comply with the overall objectives of the Divorce Act and Family Law Act, and that the parties needed to exercise their autonomous rights to achieve certainty and finality.

8. Paragraph 10 stipulated that the terms of the Minutes reflected the parties’ own unique particular objectives and concerns, and that the parties were depending upon the spousal support release upon which to base their future lives.

9. Paragraph 11 specifically indicated that the parties had considered the objectives of spousal support under the Divorce Act, and the factors relating to the determination of spousal support under that Act in making a determination as to the waiver of spousal support. Paragraph 11(b) provided that the parties did not want the courts to undermine their autonomy as reflected in the terms of the Minutes, and included a comprehensive statement indicating that no changes in circumstances, no

matter how catastrophic, unanticipated or extreme, would alter the Minutes and their view that the terms reflected their intention to always be separate financially. It provided that no change whatsoever in their circumstances would entitle either of them to spousal support.

10.Paragraphs 12 to 14 indicated that the matrimonial home was jointly owned, and that it was subject to a jointly held mortgage with Scotiabank which had a balance of $286,720.35 as of the date of separation, and that there was also a line of credit in the Respondent’s sole name registered against the home that had a balance of approximately $51,000.00 as of the separation date. In addition, the parties acknowledged that they had a joint line of credit through Scotiabank that had an approximate balance of $20,000.99 as of their separation date.

11.Paragraph 15 provided that the Applicant would within 30 days of executing the Minutes execute all documents necessary to transfer her right, title and interest in the matrimonial home to the Respondent.

12.Paragraph 16 required the Respondent to obtain a release from Scotiabank of the Applicant’s obligation under the joint mortgage secured against the matrimonial home within 30 days of the transfer of the home to him, or to refinance the property and discharge the current joint mortgage registered against the home before December 30, 2010. The Respondent was also required to discharge the joint line of credit by that date. In the event that he could not obtain a release of the Applicant’s obligation under the mortgage or discharge the mortgage before December 30, 2010, the matrimonial home was to be listed for sale forthwith.

13.Paragraph 17 provided that the Respondent was to be solely responsible for all payments on the joint mortgage relating to the matrimonial home, the line of credit in his name which was secured against the home, and the joint line of credit, as well as all property taxes and other expenses related to the matrimonial home. He was to indemnify the Applicant from all such obligations and expenses.

14.Paragraph 19 stipulated that the Respondent was to have exclusive possession of the matrimonial home.

15.Paragraphs 20 and 21 established that the Respondent was to retain free of any claim from the Applicant, his business, A1 Properties, and the investment properties in his name, specifically:

a) 1030 Pierre Avenue, Windsor;

b) 1036 Pierre Avenue, Windsor;

c) 953 Langlois Avenue, Windsor; and

d) 873 Ellrose Ave, Windsor.

16. The parties acknowledged that the Respondent had three vehicles registered in his name, specifically a 1991 Ford Mustang, a 1998 Lincoln Navigator and a 2005 Yamaha motorcycle, and that the Applicant had a 2002 Mercedes which was registered in her sole name.

17. Paragraph 23 indicated that the parties had a joint bank account with Scotiabank with a balance of approximately $60.00 as of the separation date, and that the parties would within 7 days of executing the Minutes complete all documents to close out that account.

18. Pursuant to paragraph 24, the Applicant was to be responsible for paying off 3 debts in her name and was to hold the Respondent harmless from all liability associated with those debts. These debts were the Applicant’s Citibank credit card, with a balance of $15,000.00 as of the separation date, her student loan debt, with an outstanding balance of approximately

$11,000.00 as of the date of separation, and her CIBC Visa debt, which had a balance of approximately $18,000.00 as of the date of separation.

19. Paragraph 28 stipulated that the Respondent had a Registered Retirement Savings Plan with Scotiabank in his sole name with an approximate principal amount of $12,000.00 as of the date of separation, and provided that he was to retain this plan free from any claim by the Applicant.

20. Paragraph 25 provided that the order of Quinn J. dated July 23, 2010 was to be set aside in its entirety effective July 23, 2010.

21. The Respondent was to maintain the Applicant as a beneficiary of all medical benefits available to him through his employment for so long as the parties were married and until the granting of a divorce order.

22. Paragraph 29 was an acknowledgement by the parties that their respective net family properties had been divided between them, and that they consented to the court granting a declaration that their respective net family property had been equalized.

23. Paragraph 31 was a comprehensive release by the parties of any property claims against each other, except as provided in the Minutes.

24. The Applicant consented to the Respondent filing an Answer and Claim which would include only a claim for divorce, and he was to pay for the costs associated with obtaining the divorce.

25. The Applicant agreed to withdraw her Family Law application in its entirety.

28The parties also executed the Consent on November 10, 2010, at the same time as they signed the Minutes. The Consent confirmed that the parties agreed to the withdrawal of the Applicant’s Family Law application in its entirety subject to the terms set out in the Consent. Although the Minutes of Settlement and Consent were two separate documents, the parties acknowledge that they were executed with the intention that they were “a package” which set out a global settlement of all Family Law issues between them. This conclusion is reinforced by the fact that paragraph 2(a) of the Consent referred specifically to “the within Minutes of Settlement.” The Consent set out the following terms:

1. Paragraph 1 stipulated that the Respondent was to pay the Applicant a “lump sum” payment of $40,000.00, which was not to be subject to interest, and the Applicant’s claims for equalization and spousal support were to be withdrawn with prejudice to the Applicant.

2. Although the $40,000.00 payment was described as a lump sum, paragraph 2 provided that the payment was to be made in instalments as follows:

a) Paragraph 2(a) required the Applicant to pay $5,000.00 “within 24 hours of execution of the within Minutes of Settlement,” by way of certified cheque, bank draft or money order.

b) A term added by the parties on November 10, 2010 required the Respondent to make an additional payment of $5,000.00 by February 2011, to be deducted from the total.

c) The balance was to be paid to the Applicant in monthly payments of at least $500.00 per month, commencing January 1, 2011.

29The Applicant executed a Notice of Withdrawal respecting her application on November 10, 2010, indicating that she was withdrawing the application completely. The Notice erroneously named the Respondent as being the party filing the document, but this was simply a typographical error. The Notice of Withdrawal was filed with the court in Windsor on December 6, 2010. As required pursuant to paragraph 37 of the Minutes, the Respondent took all necessary steps to obtain a divorce. Nolan J. granted the divorce by order dated October 18, 2011.

V. OVERVIEW OF THE PARTIES’ CIRCUMSTANCES AFTER NOVEMBER 2010

A. The Applicant

30The Applicant continued to reside at her apartment at 126 Erie Street West in Windsor until early December 2010. During the course of the parties’ discussions about settlement, she advised the Respondent that she was not comfortable living at that location, and that she wished to move into the Respondent’s rental property at 1036 Pierre Avenue, Windsor, where the parties had initially cohabited. The parties reached an agreement during the negotiations of the Minutes and Consent that the Applicant would

move to that residence, and that the Respondent would be credited $550.00 per month towards the money that he owed the Applicant pursuant to the Consent in lieu of the Applicant paying him rent for this apartment. The Respondent evicted a tenant from the apartment unit so that the Applicant could move in, and the Applicant relocated to that apartment in early December 2010. The Applicant continued to reside at 1036 Pierre Avenue until approximately June 2012, when she moved in with her parents at 28 East 27th Street, Hamilton. She and her parents subsequently relocated to 8 Scotia Avenue, Hamilton in 2014 and they have continued to reside together at that location.

31The Applicant did not take any steps to transfer title to the matrimonial home to the Respondent’s sole name, as required by the Minutes, and the Respondent did not obtain a release of the Applicant’s obligation from the mortgage on the home or discharge the mortgage. Accordingly, as of the date of trial, the matrimonial home and the mortgage remained in both parties’ names. However, the Respondent has continued to reside in the home since the parties’ separation, and he and his current wife, Danielle Herlehy, have covered all mortgage payments, carrying costs and other expenses relating to the home, including property taxes, insurance, utilities expenses and maintenance expenses relating to the home.

32The Applicant was in receipt of CPP disability benefits and social assistance from 2009 until mid-2017. She made an assignment in bankruptcy on May 5, 2011 and was automatically discharged from bankruptcy in February 2012. The trustee in bankruptcy did not take any steps in relation to the matrimonial home, despite the fact that both parties remained on title as joint owners. I find that the trustee in bankruptcy was aware of the terms of the Minutes which required the Applicant to transfer her interest in the home to the Respondent.

33In the summer of 2011, shortly after declaring bankruptcy, the Applicant suffered burns to her legs during a laser hair removal treatment. She sued the business that carried out the treatment and received a net settlement of $1,548.97 in February 2013. Subsequently, on July 19, 2017, she was injured in a motor vehicle accident when another driver side- swiped her car. She commenced legal proceedings relating to this accident. As of July 2017, she began to receive insurance benefits from AVIVA insurance of approximately

$750.00 per month in relation to the motor vehicle accident settlement, in addition to her CPP disability benefits. The Applicant alleges that she has not had any sources of income other than CPP disability benefits, social assistance and her insurance benefits since 2009. As I discuss in further detail below, the Respondent argues that income should be attributed or imputed to her.

34Despite her injuries from the laser treatment and the motor vehicle accident and some ongoing challenges with depression and anxiety, the Applicant was able to pursue ongoing education and engage in volunteer work following the parties’ separation. In 2013, she began part-time online studies at the Institute of Traditional Medicine in Toronto, run by Diane Kent, to become qualified as a clinical herbalist. She began attending classes in person in early 2014. In 2014, Diane Kent opened the Diane Kent School of Clinical Herbalism, and the Applicant continued her studies in herbalism at that

school until 2015. She received her Clinical Herbalist Diploma in September 2015. Subsequently, from 2015 until 2016, she engaged in studies in nutritional therapy through the Health Sciences Academy. In August 2016, she obtained a diploma in Nutritional Therapy through that organization. In 2016, she completed an online course through Northwestern University in social marketing. In regard to volunteer work, she was a volunteer at a women’s shelter in November 2010, and started doing volunteer work for the Heart and Stroke Foundation of Canada in October 2013. She has been a member of the Ontario Herbalist Association since 2013. From 2016 until 2018, she was a volunteer director of the Canadian Association of Aromatherapists, assuming the duties of Director of Events Coordination. She testified that she stopped this volunteer work in 2018 due to the high expectations of a new board of directors and her inability to cope with the work due to her medical issues.

B. The Respondent

35The Respondent continued to work as an Area Manager for Canadian Linen until 2012. At that time, the company shut down its plant and restructured. The Respondent was re- assigned to the job that he had previously held driving a delivery truck. He became injured on the job in 2013 and had to undergo hernia surgery. Canadian Linen ended his employment in 2013 following a dispute regarding a WSIB claim that he filed in connection with this injury. The Respondent eventually received a severance package from Canadian Linen in 2014, and he used those funds to attempt to develop A1 Properties into a full-time business. He continues to operate A1 Properties to date.

36The Respondent’s daughter Ariel continued to reside with the Respondent following the parties’ separation. The Respondent was the sole financial provider for Ariel and assisted her with the cost of her post-secondary studies. Ariel began to reside in his rental apartment at 1036 Pierre Avenue when she completed her studies. The Respondent’s mother, Diane Mills, has also continued to reside with the Respondent since the parties separated. As I will discuss later in these Reasons, she has remained financially dependent on the Respondent due to health issues. The Respondent married Danielle Herlehy on June 7, 2014.

VI. THE APPLICANT’S RESTRAINING ORDER APPLICATION IN 2014

37On June 18, 2014, shortly after the Respondent’s marriage to Ms. Herlehy, the Applicant commenced a second application against the Respondent in which she sought a restraining order against him. In that application, she alleged that she had recently learned that the Respondent had forged her signature on a Notice of Withdrawal with the Family Responsibility Office (“the FRO”) respecting enforcement of the temporary support order dated July 23, 2010, and that she had recently reported this alleged forgery to the police. She claimed that she was fearful that the Respondent would retaliate against her due to this report to the police, and summarized numerous alleged historical incidents of physical, emotional and financial abuse by him. In addition, she stated that she wished to pursue many other charges against the Respondent for alleged historical abuse, but that she was too afraid to do so until she obtained a restraining order. Mazza J.

granted a temporary order on June 18, 2014 restraining the Respondent from having any direct or indirect contact with the Applicant.

38The Applicant did in fact go to the police around the time of her application for a restraining order, alleging that the Respondent had forged her signature on an FRO Notice of Withdrawal form and a Child Tax Benefit cheque and had assaulted her in the past. The Respondent was charged with two counts of assault, one count of uttering a threat and forgery. However, the police dropped all charges after interviewing the Respondent and investigating the allegations. In addition, the Applicant filed a complaint with the police that the Respondent breached the temporary restraining order on June 18, 2014 by e-transferring her a payment of $500.00 pursuant to the terms of the Consent. The police did not pursue charges against the Respondent once he explained the reason for the e-mail. McLaren J. conducted a case conference in relation to the restraining order application on September 16, 2014, at which time she made an order permitting the Applicant to withdraw the application without costs.

VII. THE PARTIES’ COMPLIANCE WITH THE MINUTES AND CONSENT

39I find that neither party complied fully with the terms of the Minutes and Consent. As I have indicated, the Applicant did not take steps to transfer her interest in the former matrimonial home to the Respondent within 30 days of executing the Minutes, as she was required to do pursuant to paragraph 15 of the Minutes. The parties had different versions as to why the transfer did not occur. I find that initially, it did not occur due to lack of clarity in the Minutes about which party was required to have the legal paperwork completed and pay for the costs associated with the transfer. Both parties assumed that the other party was responsible for doing so. I accept the Respondent’s evidence that he had assumed that the Applicant had arranged for the transfer of her interest to him, and that he only found out otherwise when he inquired with the bank about options available to him respecting the mortgage on the home. I conclude that the Respondent learned at that point that he could not arrange a release of the Applicant from the mortgage, and that he could not discharge the mortgage and refinance the house because of his poor credit rating. However, I accept the Respondent’s evidence that he qualified for refinancing at a later date, as a result of his wife’s solid credit rating, but that the Applicant refused to transfer her interest to him at that point.

40Turning to the Respondent’s obligations pursuant to the parties’ agreement, I find that he only partially complied with his obligation pursuant to the Consent to pay the Applicant

$40,000.00. As discussed above, the parties both acknowledge that they agreed around the time of the execution of the Minutes and Consent that the Respondent would receive a credit of $550.00 per month towards the amount payable on account of the Applicant’s occupation of the rental unit at 1036 Pierre Avenue, and that he would also be credited for items that he purchased for the Applicant from time to time. They also agree that he made several payments to the Applicant, but that he stopped making further payments as of June 18, 2014. He ceased making further payments at that time due to the Applicant’s complaint to the police after he sent her the $500.00 payment, and further to directions that he received from the police that he should not make further e-transfers to her.

Another reason for the cessation of payments was that the Applicant commenced this proceeding, seeking to set aside the parties’ agreement altogether. At that point, any acceptance of further payments could have constituted evidence that the Applicant had affirmed the agreement.

41The parties disagree respecting the total amount of the Respondent’s payments and credits towards the $40,000.00 that he was to pay the Applicant pursuant to the Consent. The Applicant alleges that he only satisfied $25,000.00 and the Respondent claims that his payments and credits totalled in the range of at least $30,000.00. Upon carefully considering the parties’ evidence, and Exhibits 28, 29, 30, 40, 41 and 42, and 90, I conclude that the Respondent’s payments and credits total $31,220.00, and that the outstanding balance owed pursuant to the Consent would therefore be $8,780.00. My findings respecting the payments and credits are as follows:

October 3, 2010

$500.00 for Applicant’s rent for September 2010, which the parties agreed would be credited towards the $5,000.00 payable by the Respondent pursuant to paragraph 2(a) of the Consent

October 8, 2010

$500.00 for Applicant’s last month’s rent, which the parties agreed would also be credited towards the $5,000.00 payable pursuant to paragraph 2(a) of the Consent

November 2010

$800.00 paid for a bed set

November 2010

$500.00 paid for repairs to the Applicant’s car

November 2010

$4,000.00 to pay the balance owing pursuant to paragraph 2(a) of the Consent

November 1, 2010

$500.00 paid to the Applicant while at a local mall, for Applicant’s November rent

December 2010 to June 2012

$10,450.00: credit of $550.00 per month for 19 months on account of the Applicant’s occupation of 1036 Pierre Avenue

February 12, 2011

$100.00 cash payment

February 15, 2011

$180.00 paid for the Applicant’s car insurance

February 17, 2011

$20.00 for groceries purchased for Applicant’s mother

March 1, 2011

$250.00 cash payment

March 2011

$150.00 paid for battery and tool

May 10, 2011

$500.00 cash payment

May 2011

$130.00 paid for fan and floor pads for exercise room

July 2011

$150.00 paid for air conditioner

September 2011

$120.00 cash payment

October 7, 2011

$100.00 cash payment

November 17, 2011

$100.00 cash payment

December 2011

$160.00 paid

July 2011 to February 2012:

$1,880.00: The Respondent received CPP disability benefits for Ariel during this period of time. The disability payments were $220.00 per month for July and August 2011, but then increased to $240.00 per month for September 2011 to February 2012. In July and August 2011, he gave

$220.00 per month to the Applicant. In September and October 2011, he gave

$240.00 per month to the Applicant. In November 2011, he gave $130.00 to the Applicant and $110.00 to her father at her request. From December to February 2012, he gave $240.00 per month to the Applicant. These were intended for the support of Ariel, who was in the Respondent’s sole care.

June 2012

$800.00 towards the Applicant’s moving expenses

July 2012

$230.00 paid for the Applicant’s movers

July 2012

$500.00 cash payment

August to September 2012:

$1,600.00 on account of charges the Applicant incurred on cell phone

December 2012

$500.00 cash payment

January 13, 2013

$500.00 cash payment

February 13, 2013

$500 cash paid (two payments of $200.00 and $300.00 respectively)

July 27, 2013

$1,000.00 paid to assist the Applicant with school expenses

September 23, 2013, November 11, 2013 and December 21, 2013

$1,500.00: three payments of $500.00 to assist the Applicant with school expenses

January 30, 2014, February 19, 2014, March 21, 2014, March 17, 2014, April 15, 2014, May 15, 2014

$3,000.00: $500.00 per month paid to assist the Applicant with school expenses

TOTAL:

$31,220.00

42The Applicant contested some of these amounts at trial, but I am satisfied that the exhibits that I have referenced fully support this tally. The Respondent was financially unable to make the lump sum payment of $5,000.00 that he was required to pay by February 2011 pursuant to the Consent. However, I find that he used his best efforts to make additional payments or credits over and above the minimum required amount of

$500.00 per month, and that these additional payments or credits totalled approximately

$5,300.00 by early December 2011.

VIII. HISTORY OF THE CURRENT APPLICATION

43As I have indicated, the Applicant commenced the current application on December 16, 2014. She was represented by Mr. Saenz at that time, and requested the following relief in the application:

1. An order setting aside the Minutes;

2. An order for retroactive and ongoing spousal support;

3. An order for unequal division of the parties’ respective net family properties;

4. An order for the sale of family property;

5. An order for the sale of the matrimonial home;

6. A restraining order;

7. A declaration that she had a 50% interest by way of constructive trust in A1 Properties and the Respondent’s rental property at 1036 Pierre Avenue, Windsor;

8. An order that the Respondent provide a full accounting of his rental income and business income from January 1, 2009 onward; and

9. An order that the Respondent provide medical coverage for her, and that he secure life insurance as security for spousal support.

44The course of the current application has been extremely protracted for various reasons. I summarize the history of the proceedings in detail for three reasons. First, the summary explains the addition and resolution of the Applicant’s various claims along the way throughout this case. Second, it will ultimately be very relevant to the issue of costs. Finally, the history is also highly relevant to the important question of financial disclosure, which counsel for the Applicant raised as a significant issue in support of the Applicant’s claims and her position respecting imputation of income to the Respondent. The pertinent aspects of the litigation history are as follows:

1. Based on Volume 1 of the Trial Record, (Exhibit 1), I find that the Applicant brought a motion in the current application on January 23, 2015, prior to the Respondent filing his Answer and Claim. Mr. Saenz continued to represent her at that time. Only Mr. Saenz appeared on this date, and neither party adduced any evidence at trial respecting the details of this motion. The motion was adjourned to February 20, 2015, at which point it was then adjourned sine die, with no fixed date. Lafrenière J. directed that the parties schedule and participate in a case conference prior to the hearing of the motion. The Applicant never brought the motion back on for a hearing, and costs were never addressed.

2. The Respondent issued an Answer in response to the current application on February 19, 2015, requesting that the application be dismissed in its entirety.

3. A case conference eventually occurred before Brown J. on April 14, 2015. Ms. Swan appeared for the Applicant and Ms. Cowan represented the Respondent. Brown J. gave opinions at that time, adjourned the case to the timelines and endorsed that the parties could schedule a settlement conference if necessary. However, the Applicant did not take any further steps in court to move the case forward in 2015, and accordingly a Notice of Approaching Dismissal was sent on December 17, 2015.

4. In response to the Notice of Approaching Dismissal, the parties scheduled a settlement conference before Brown J. on February 17, 2016. Mr. Pratt appeared as counsel for the Applicant and Ms. Cowan appeared for the Respondent. Brown J. gave opinions once again, and determined that a separate preliminary hearing should be held to determine the Applicant’s claim that the Minutes should be set aside. She scheduled a trial management conference on July 5, 2016 to organize that hearing, and directed the parties to exchange disclosure and requests for disclosure. She noted at that time that the disclosure to be exchanged should include income information back to 2008 as well as Net Family Property Statements and supporting documentation in advance of any trial management conference.

5. The trial management conference proceeded before Brown J. on July 5, 2016. Mr. Pratt and Ms. Cowan appeared on behalf of the parties on that date. After protracted discussions at the conference, Brown J. determined that it would not in fact be appropriate to conduct a separate preliminary hearing of the Applicant’s claim to set aside the Minutes. A trial of all issues was scheduled to the trial sittings commencing February 27, 2017. Brown J. identified the relief requested by the Applicant at that time as being: a) an order setting aside the Minutes of Settlement dated November 10, 2010; b) an order for spousal support; and c) an equalization of the parties’ net family properties. She ordered that the parties exchange updated Financial Statements and proposed trial exhibits by no later than January 27, 2017. Having regard for the equalization claim, she also ordered that the parties were to exchange Net Family Property Statements and comparative Net Family Property Statements by no later than January 27, 2017, as neither party had complied with her previous order respecting these matters. She further ordered that any issues respecting disclosure that could not be resolved should be brought to her attention by no later than December 27, 2017.

6. The trial had still not been called by early March 2017. Notwithstanding Brown J.’s direction that any issues respecting outstanding disclosure be brought to her attention by no later than December 27, 2016, the Applicant brought a motion on March 3, 2017 before Pazaratz J., seeking disclosure of financial information. Neither party adduced evidence respecting the full particulars of this motion, but the endorsement of Pazaratz J. dated March 3, 2017, located in Volume 1 of the Trial Record, indicates that the Applicant was seeking disclosure of information from the Windsor Family Credit Union Ltd. Both parties were self-represented by this point. The motion did not proceed at that time because the Applicant had not served the Windsor Family Credit Union Ltd. with the motion materials. However, Pazaratz J. endorsed that the parties had engaged in extensive discussions while at court on that day, and that “they appear to have dealt with the outstanding disclosure issues.” The motion was therefore considered to have concluded. Pazaratz J. adjourned the application to March 9, 2017 so

that the parties could attend mediation on that date and have a last-minute settlement conference before him.

7. On March 9, 2017, Pazaratz J. endorsed that the parties had not participated in mediation and had still not in fact exchanged all outstanding disclosure. Accordingly, the matter remained on the trial list.

8. This case was eventually called to trial on March 13, 2017 before Mazza J. On that date, Mazza J. concluded that the matter was still not trial-ready. He noted that neither of the parties had exchanged Net Family Property Statements yet. He also noted that the Applicant made a request at the outset of the trial for disclosure respecting the Respondent’s accounts with the Bank of Nova Scotia. The matter was therefore scheduled for another trial scheduling conference before Brown J. on March 31, 2017 to once again attempt to sort through disclosure issues.

9. Brown J. conducted another trial scheduling conference on March 31, 2017. Both parties continued to be self-represented at that point. On that date, Brown J. made an order requiring the parties to exchange comprehensive Document Briefs including the following by no later than May 15, 2017:

a) Updated Financial Statements with proof of 2016 and 2017 gross income from all sources attached;

b) Proof of income for the years 2008 to 2015;

c) Net Family Property Statements;

d) If not already provided, proof of the value of all assets and debts listed in their respective Net Family Property Statements, including the following:

i. The Respondent was to provide proof from the Windsor Bank of Nova Scotia, the Windsor Ukrainian Credit Union, the Windsor CIBC and the Windsor Royal Bank of all accounts, investments and debts in his name, if available, as of May 18, 2002 (date of marriage) and January 15, 2010 (the date of separation alleged by the Applicant);

ii. The Respondent was to forthwith sign releases to be prepared by the Applicant to allow her to inquire and obtain documentation with respect to any assets or holdings that the Respondent may have with Boardwalk Inc., Skyline Inc., the Mortgage Company, Greenwood Homes, Star Company, My Next Funding, and Computershare;

iii. The Applicant was to include an affidavit setting out all bank accounts she had at the time; and

e) A copy of all documents upon which they intend to rely in direct examination or to put to a witness in cross examination.

10. On June 16, 2017, the Applicant brought a motion seeking an order striking the Respondent’s Answer and Claim on the basis of his alleged failure to comply with his disclosure obligations and the disclosure timelines set by Brown J. on March 31, 2017. The motion was adjourned to June 23, 2017.

11. On the return of the Applicant’s motion to strike the Respondent’s Answer on June 23, 2017, the Respondent indicated that he opposed the motion, and he raised the issue of whether the Applicant could in fact proceed with her equalization claim, given that she had declared bankruptcy in May 2011. Mazza J. made an order directing the trial of the discrete issue of whether the Applicant’s equalization claim was barred due to her bankruptcy, to be heard during the trial sittings commencing July 17, 2017. The Applicant’s motion to strike the Respondent’s pleading was adjourned to be dealt with by the trial judge assigned to deal with the equalization claim issue, to set a new date if necessary.

12. On September 20, 2017, Braid J. heard the trial of the issue as to whether the Applicant’s equalization claim was barred by virtue of her bankruptcy. She reserved judgment on that date, but made an order on consent of the parties that the Respondent obtain a present-day valuation of the matrimonial home by either Bower Appraisals or Gorski Realty, to be completed by November 30, 2017.

13. In Reasons for Judgment dated December 8, 2017, Braid J. concluded that the Applicant’s right to pursue an equalization claim had vested in her trustee in bankruptcy, and that she could not pursue this claim since the trustee had not assigned the right to her. She also concluded that the Applicant’s discharge from bankruptcy did not re-vest in the Applicant the right to pursue the equalization claim. For these reasons, she dismissed the Applicant’s claim for an equalization of net family properties. Braid J. directed that a further trial scheduling conference be set to address the remaining issues as well as scheduling of the Applicant’s motion to strike the Respondent’s Answer and Claim. She specifically ordered that the parties’ respective Trial Management Conference Briefs set out their positions respecting the Applicant’s motion to strike the Respondent’s Answer and Claim. Braid J. also reserved costs of the trial to the judge hearing the remainder of the trial.

14. Brown J. held yet another trial scheduling conference on January 11, 2018. In her Trial Management Conference Brief, the Applicant specifically

referred to her outstanding motion to strike the Respondent’s pleading, and alleged that the outstanding disclosure she sought from the Respondent was an up to date Financial Statement and income information, specifically Notices of Assessment from 2008 to present. She requested that the court provide a forensic accountant to carry out an assessment of the Respondent’s income for spousal support purposes. After conducting the trial scheduling conference and hearing from the parties regarding the outstanding disclosure issues, Brown J. did not schedule the Applicant’s motion to strike for a hearing. Based on her endorsement dated January 11, 2018, it is apparent that the parties identified the outstanding disclosure issues as being the need for updated Financial Statements from both parties, and proof from both parties of gross income from all sources for 2017 and 2018. Significantly, no other outstanding disclosure issues were identified by either party at that time. Brown J. made another comprehensive order on that date in an attempt to ensure that the trial would proceed in an orderly manner. A deadline of March 29, 2018 was set for the parties to serve and file updated Financial Statements attaching proof of total 2017 and year to date 2018 income. The Respondent did subsequently serve and file an updated Financial Statement sworn March 29, 2018. New deadlines were set for the exchange of final Document Briefs containing all documentary evidence which the parties intended to rely on at trial. Brown J. ordered that there were to be no further motions, subject to the discretion of the trial judge.

45The trial of the remaining issues in this matter finally commenced before me on May 22, 2018. Unfortunately, there continued to be numerous unexpected delays after that time. The parties both raised various issues of concern at the outset of trial, and it was necessary to deal with several preliminary motions. The numerous appearances and orders made following the commencement of the trial were as follows:

1. Although Brown J. had addressed the Applicant’s motion to strike the Respondent’s Answer for non-disclosure at the trial scheduling conference on January 11, 2018 and had clearly identified all outstanding disclosure issues raised by the parties at that time, the Applicant nonetheless alleged at the outset of trial on May 22, 2018 that her motion to strike the Respondent’s Answer and Claim remained outstanding. It was extremely difficult to ascertain the Applicant’s position regarding the alleged outstanding disclosure that she was relying on. Eventually, I was able to determine that the Applicant’s complaint was that the Respondent had allegedly failed to disclose his personal Notices of Assessment and Reassessment for 2008 to 2017, proof of his business income for 2008 to 2017, and proof from the Windsor Bank of Nova Scotia, the Windsor Ukrainian Credit Union, the Windsor CIBC and the Windsor Royal Bank of all accounts, investments and debts in his name as of May 18, 2002 and January 15, 2010. I decided that the motion to strike had to be addressed and adjourned the motion to May 23, 2018. In addition, the Applicant

alleged on May 22, 2018 that the Respondent had not complied with an order that he redact personal information respecting her clients from his Document Briefs. I made an order on that date addressing this concern. Finally, the Applicant brought an oral motion on May 22, 2018 for leave to serve an additional Document Brief on the Respondent, which the Respondent opposed. I adjourned this issue to May 23, 2018 as well.

2. On May 23, 2018, I made an order permitting the Applicant to serve an additional Document Brief, and reserved costs in relation to that motion. I also heard the Applicant’s motion to strike the Respondent’s Answer. Based on the motion materials before me and viva voce evidence from the parties, I concluded that the Respondent had in fact served the Applicant with proof from the Windsor Bank of Nova Scotia, the Windsor Ukrainian Credit Union, the Windsor CIBC and the Windsor Royal Bank of all accounts, investments and debts in his name as of May 18, 2002 and January 15, 2010. With respect to the income disclosure issues, I concluded that the Respondent had not produced his Income Tax Return or Notice of Assessment for 2008. However, I concluded that he had in fact produced the following income documentation to the Applicant:

a) His 2009 Income Tax Return and Notice of Assessment;

b) His 2010 Income Tax Return with attachments and 2010 Notice of Reassessment. It later became apparent during the trial that he had also produced his 2010 Notice of Reassessment.

c) His 2011 to 2013 Income Tax Returns and attachments. It later came to light during the trial that he had also produced his 2012 Income Tax Return Regular from Canada Revenue Agency and his 2013 Notice of Assessment.

d) His 2014 and 2015 Income Tax Returns and his 2014 Notice of Assessment. At trial, it became apparent that he had also produced his 2015 Income Tax Return Regular from Canada Revenue Agency.

e) His 2016 Income Tax Return and Notice of Assessment. At trial, it became clear that he had also produced his 2016 Notice of Reassessment.

f) His 2017 Income Tax Return with attachments. The Respondent testified that he had not yet received a Notice of Assessment for 2017.

Based on my findings, I concluded that the shortcomings respecting the Respondent’s disclosure did not justify an order striking his Answer. Accordingly, I dismissed the Applicant’s motion, and reserved costs of

the motion. I note that it also became evident at trial that the Applicant had received disclosure of the Respondent’s bank statements for all of his personal and business accounts for the years 2009 to 2016, and for his business account for 2017.

3. On May 23, 2018, the Respondent raised concern that the Applicant had used improper means to obtain disclosure respecting his financial affairs from various financial institutions, including all of his personal and business bank statements, by serving those entities with Form 20 Requests for Information pursuant to Rule 20(3) of the Family Law Rules. On May 23, 2018, I heard an oral motion brought by him to determine the validity of those Requests for Information, and I determined that they were invalid. I made an order that no further disclosure was to be requested or provided pursuant to any Form 20 Requests for Information. I reserved costs in connection with that motion as well.

4. The trial was to continue on May 24, 2018. However, during her Opening Submissions on that date, the Applicant indicated that she wished to pursue numerous claims that were not included in her application, including wide- ranging constructive trust claims respecting various additional properties and assets. She described her constructive trust claims in her proposed draft order as including claims in relation to RRSP and LIRA investments, 873 Ellrose Avenue Windsor, a company called Millport Investment Corporation, and “any Business, House or investments which came about during this trial or thereafter, owned without my knowledge during the marriage, or directly from Proceeds which were obtained before the divorce took effect on November 18, 2011. Or businesses which were dissolved, then re-opened after the divorce proceedings. Those that can be found throughout the process of the Trial or, by a Forensic Accountant.” This request for additional relief took the Respondent by surprise, and he opposed the request for an amendment of the Applicant’s pleading. I directed that the Applicant serve and file a proper motion to address the requested amendments to her application, set deadlines for the exchange of materials and adjourned the motion to June 11, 2018.

5. At the outset of the hearing of the Applicant’s motion to amend her application on June 11, 2018, I raised the issue of whether the Applicant’s various constructive trust property claims would be barred due to the Applicant’s bankruptcy or by virtue of a limitation period. I adjourned the motion to amend the application to June 25, 2018, and ordered the Applicant to serve and file a Factum and Book of Authorities respecting these issues. When the motion to amend the application returned to court on June 25, 2018, the Applicant alleged that she could not cope with the trial on her own due to health issues and that she wished to adjourn the motion and the trial once again so that she could attempt to retain counsel. Based on the Applicant’s presentation in court, I concluded that she could

not proceed on that date, and I adjourned her motion to amend her application and the trial to June 29, 2018.

6. On June 29, 2018, the Applicant indicated that she thought Mr. Wasserman would be representing her. She submitted for the first time since the trial began that she had suffered a concussion during her motor vehicle accident in 2017, and that she was experiencing residual effects from that concussion which were impacting her ability to represent herself at trial. I adjourned the trial and the motion to amend the application to July 3, 2018, to determine if Mr. Wasserman would be going on the record for the Applicant.

7. On July 3, 2018, the Applicant did not appear in court. However, her mother had forwarded an email to the court indicating that the Applicant was ill and could not attend. In addition, I received a report from Dr. Jason Bola dated June 25, 2018 indicating that the Applicant was receiving treatment at his concussion clinic, that she was experiencing difficulties with concentration and immediate memory recall along with neck pain, headaches, stress and anxiety. Having regard for this information, I adjourned the trial and the motion to amend the application to July 26, 2018.

8. On July 26, 2018, the Applicant appeared in court with new counsel, Mr. Carson. Unfortunately, it was determined on that day that Mr. Carson had a conflict of interest. Having regard for all of the circumstances, I made an order adjourning the trial and the motion to amend the application once again, to August 28, 2018.

9. The Applicant attended court on August 28, 2018 with counsel Mr. Grant, who advised that the Applicant was in the process of retaining Mr. Vamos as counsel. The matter was adjourned to September 27, 2018 to be spoken to.

10. On the return date of September 27, 2018, Ms. Swan appeared and committed to going on the record for the Applicant. The motion to amend the application was adjourned to a hearing on November 1, 2018, and I set deadlines for the Respondent to bring a cross motion to strike the existing constructive trust claims in the application. I adjourned the trial to the sittings commencing March 25, 2019.

11. On November 1, 2018, Ms. Swan advised that the Applicant was not proceeding with the motion to amend her application after all, and that she was consenting to an order striking all constructive trust claims set out in the application. I made on order on that date striking all existing constructive trust claims, amending the application to include a request that the Consent dated November 10, 2010 be set aside, and dismissing the

balance of the Applicant’s motion to amend her application. Costs in connection with the motion to amend the application were reserved.

12. On February 22, 2019, prior to the resumption of the trial, the Applicant brought yet another motion seeking financial disclosure. Specifically, she sought an order requiring the Respondent to produce copies of his 2010 to 2016 Income Tax Returns and Notices of Assessment, proof of 2018 year to date income, and proof of business expenses from 2010 to 2012, and for 2015. At the hearing of the motion, I advised Ms. Swan that I had determined during the Applicant’s motion to strike the Respondent’s Answer that many of the Income Tax Returns and Notices of Assessment requested had in fact been previously produced. The matter was stood down for Ms. Swan and the Respondent to review the extensive court file, and Ms. Swan eventually confirmed later that day that the only outstanding items of disclosure that the Applicant was requesting were the Respondent’s Notices of Assessment for 2011, 2012 and 2015. I made an order pursuant to Minutes of Settlement on that date requiring the Respondent to produce these Notices of Assessment within 14 days. The issue of costs in connection with the motion was not addressed at that time.

46The hearing of evidence in this matter did not commence until April 1, 2019. Unfortunately, the trial had to be adjourned after April 23, 2019 for personal reasons relating to Ms. Swan’s availability and could not resume again until September 3, 2019. On September 4, 2019, as a result of developments in the law, I made an order on consent of the parties granting the Respondent leave to amend his Answer and Claim to include the defence that the Applicant’s claim to set aside the Minutes and Consent was statute- barred by virtue of section 4 of the Limitations Act, 2002. I also gave directions regarding additional evidence to be adduced from the Applicant respecting the limitation period defence.

47At the end of her Closing Submissions on October 11, 2019, Ms. Swan indicated that the Applicant was requesting an order for partition and sale of the former matrimonial home, 45 Masaccio Drive, and that the net proceeds of sale be divided equally between the parties. I queried whether the Applicant could advance these claims having regard for her bankruptcy, and I directed the Applicant to serve and file a Factum and Book of Authorities respecting the implications of the Applicant’s bankruptcy on these claims by December 9, 2019. On December 10, 2019, the Applicant filed a Notice of Withdrawal with respect to these claims relating to 45 Masaccio Drive. On January 2, 2020, I made an order reserving the issue of costs in connection with the withdrawal of this claim. Counsel subsequently advised during a teleconference call on May 20, 2020 that all issues relating to the former matrimonial home had been resolved, and that the Applicant had transferred her interest in the home to the Respondent in February 2020.

48This matter was scheduled for completion of Closing Submissions on April 20, 2020. Unfortunately, the matter could not proceed on that date due to the suspension of the court’s regular operations as a result of the COVID-19 pandemic. I held a teleconference

with counsel on May 20, 2020 to arrange for the completion of Closing Submissions through a combination of Written Submissions and appearance via zoom video conference. Closing Submissions proceeded on July 15, 2020 and the trial finally ended on that date.

PART 3: OVERVIEW OF THE PARTIES’ POSITIONS

I. THE APPLICANT’S POSITION

49As I have indicated, the Applicant seeks an order setting aside the spousal support terms of the Minutes and Consent pursuant to section 56(4)(c) of the Family Law Act, which permits the court to set aside a domestic contract or a provision in it in accordance with the law of contract. Specifically, the Applicant requests that the court set aside the parties’ agreement on the grounds of uncertainty, duress, undue influence and unconscionability. As a corollary to this claim, she seeks spousal support pursuant to section 15.2 of the Divorce Act for the period from January 1, 2010 until December 31, 2017 in the high range under the Spousal Support Advisory Guidelines (the “SSAG”), taking into consideration changes in the parties’ respective incomes over that period of time. In the event that the court concludes that there are no grounds to set aside the Minutes and Consent, the Applicant argues that the court should nonetheless override the spousal support terms of those agreements and grant her the spousal support relief that she is seeking, based on the principles set out in Miglin. The specific amounts of spousal support which she seeks over the 7 year period encompassed in her claim are as follows:

1. From January 1, 2010 until December 31, 2010: $1,348.00 per month;

2. From January 1, 2011 until December 31, 2011: $2,780.00 per month;

3. From January 1, 2012 until December 31, 2012: $2,609.00 per month;

4. From January 1, 2013 until December 31, 2013: $3,789.00 per month;

5. From January 1, 2014 until December 31, 2014: $4,173.00 per month;

6. From January 1, 2015 until December 31, 2015: $1,667.00 per month;

7. From January 1, 2016 until December 31, 2016: $2,895.00 per month; and

8. From January 1, 2017 until December 31, 2017: $2,077.00 per month.

50The sum of these retroactive amounts is $256,488.00.00. However, the Applicant submits that the Respondent should be credited the sum of $25,000.00, which is the amount which she states he has paid her pursuant to the terms of the Consent. Accordingly, she seeks an order fixing arrears of spousal support owed to her in the amount of $231,488.00, and making these arrears payable at the rate of $3,000.00 per month on a prospective basis.

51Dealing first with the Applicant’s claims to set aside the Minutes and Consent on various grounds, I noted earlier that the Respondent was granted leave during the trial to amend his Answer to plead as a defence that this claim is statute-barred by virtue of the two year limitation period set out in section 4 of the Limitations Act, 2002. This amendment was prompted by the release of the decision of Kyle v. Atwill, 2019 ONSC 3707 (S.C.J.) during the course of the trial. In that case, Minnema J. held that a request to set aside a domestic contract is a “claim” within the meaning of section 1 of the Limitations Act,