COURT FILE NO.: FC-19-FS000042-0000
DATE: 2021-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTHONY CRAIG OLIVER
Applicant
– and –
ANNETTE HELEN JEAN CODERRE
Respondent
Lisa Reeve, Counsel for the Applicant
Walter Drescher, Counsel for the Respondent
HEARD: March 15, 16, 17, 18, 2021
The honourable mdm. Justice d. piccoli
REASONS FOR JUDGMENT
Introduction
[1] This trial is about whether the court should set aside the cohabitation agreement dated June 8, 2009 (the “Agreement”), as null and void, pursuant to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), and if the court does not set aside the entire Agreement, whether the court should set aside the spousal support provisions of the Agreement pursuant to s. 33(4)(a) of the FLA. By way of order of MacLeod J. dated January 11, 2021, this trial was bifurcated such that the validity of the Agreement be determined before the claims made by the Applicant (spousal support, equalization, and divorce) are determined.
[2] The Applicant, Craig Anthony Oliver (the “Husband”), argues that the contract should be set aside, as there was a lack of financial disclosure, he does not recall meeting with the lawyer who signed the certificate of independent legal advice (“ILA”), nor does he recall signing the Agreement. His position is that, even if he did remember signing the Agreement, the ILA provided was inadequate. He further states that the Agreement does not specifically identify what is to happen should there be a matrimonial home at the date of separation. He states that he did not understand the nature or consequences of the Agreement, that it is unconscionable and that he was under duress. He further asserts that the Respondent had undue influence over him and that there was a misrepresentation as to the terms of the Agreement. He relies, in part, on his long-standing learning disability and that he suffered trauma as a result of the murder of his father by his brother when he was 18 years of age.
[3] The Husband argues that, even if I decide not to set aside the entire Agreement, I should set aside the spousal support provisions of the Agreement, as the result of the waiver of spousal support results in unconscionable circumstances.
[4] The Respondent, Annette Helen Jean Coderre (the “Wife”), argues that the contract is valid and binding, and that, as a result, there are no spousal support obligations or obligations to divide property that is solely owned by either party. She states that, although the parties did not exchange formal financial statements, they were aware of the assets and debts of each other. She further states that the parties earned similar incomes when they started living together and when they separated. She states that the parties both understood and agreed with the reason for signing the Agreement and that both parties had ILA. She asserts that, if I set aside the Agreement in these circumstances, the result would be that there would never be any Agreement that would stand.
[5] The Wife is very clear that she relied upon this Agreement to structure her affairs and that she would not have permitted the Husband to live with her, nor would she have married him, had he not signed an Agreement with the benefit of ILA.
[6] For the reasons set out below, I find that there are no grounds to set aside the Agreement under s. 56(4) of the FLA. The Applicant’s claim to set aside the Agreement under s. 56(4) of the FLA is therefore dismissed. Additionally, I find that there are no grounds to set aside the spousal support releases in the Agreement under s. 33 of FLA.
Background Facts
[7] The Husband is 52 years of age. At the time of separation, he was 48 years of age.
[8] The Wife is 57 years of age. At the time of separation, she was 53 years of age.
[9] The parties do not have any children together or otherwise.
[10] The Wife was previously married to Robert Purdy (“Robert”), who died on July 23, 2007, as a result of a farming accident. Robert was a firefighter. The Wife and Robert resided in a home located at 4929 Hwy 59 South RR#1 Courtland (“the Purdy Farm”) at the time of Robert’s death. Robert died without a will.
[11] The Wife received $150,000 from the proceeds of life insurance on Robert’s life, by virtue of his employment as a firefighter, shortly following his death.
[12] The Husband and Wife met on a dating website, Plenty of Fish, in 2008.
[13] At the time the parties met, the Husband resided in Guelph in a basement apartment and the Wife resided in the home located on the Purdy Farm, which was the matrimonial home of the Wife and the late Robert.
[14] At the time the parties met, the Husband was 38 years old. He worked at Trimester in Guelph earning, $17.00 per hour.
[15] At the time the parties met, the Wife was 44 years old. She worked at Fleetwood, earning $19.25 per hour.
[16] The Wife and Robert’s estate were the subject matter of litigation with the Purdy parents with respect to the ownership of the Purdy Farm and a corresponding lawsuit for a personal injury claim against the Wife and Robert’s estate as a result of a fall sustained by Robert’s mother on the Purdy Farm. The Husband knew that there was a dispute in reference to the Purdy Farm as between the Wife and Robert’s parents. The litigation in reference to the Purdy Farm commenced in 2009.
[17] In January 2009, according to the Husband, and in February 2009, according to the Wife, the parties discussed moving in together. Neither party was contemplating marriage at the time.
[18] The Husband gave three months’ notice to vacate his rental unit in Guelph, Ontario.
[19] Both parties agree that the Wife raised the issue of an agreement and that they both wanted such an agreement to protect themselves during cohabitation. They agree that both understood that, in the case of the Husband during cohabitation, and in the case of the Wife during cohabitation and upon marriage, “what’s mine is mine and what’s yours is yours.” The Husband states he did not understand that this agreement would continue during the marriage. He states he believed that, once the parties married, they would share equally those things that they worked on together. He states that he did a lot of work with respect to the matrimonial home.
[20] I accept that, in May 2009, the Wife retained a lawyer from Tillsonburg (Mr. John Holmes) to prepare an agreement. The Wife met with Mr. Holmes to give him instructions and then met him again on May 28, 2009, to sign the Agreement. The Wife states that she brought home copies of the signed Agreement and gave them to the Husband to take to his lawyer and sign.
[21] In essence, the Agreement provided that the parties would be separate as to property and have no support obligations. The details of the Agreement are set out below in the Analysis section.
[22] The Wife recalls reading the Agreement on the couch with the Husband. She indicated in her evidence that he was “okay” with the Agreement.
[23] The parties moved in together at the Wife’s residence located on the Purdy Farm on or about May 31, 2009.
[24] The Husband states that he does not have any memory of signing the Agreement. He agrees, however, that his signature is found on page 8 of the Agreement, that a lawyer’s signature, namely Richard Morrow of Guelph, is found on the same page, and that the Agreement indicates that both he and Mr. Morrow signed on June 8, 2009.
[25] The Wife states that the Husband brought back two copies of the Agreement: one for her and one which she delivered to Mr. Holmes.
[26] The Wife states the Husband did not complain about mental health at the time they executed the Agreement up until the time of separation. She confirms that she knew the circumstances of the Husband’s father’s death.
[27] The Husband transferred locations with his employer to Tillsonburg as a result of his move to the Purdy Farm with the Wife. His income went up $1.00 – $2.00 dollars per hour. When he moved in with the Wife, he was living paycheck to paycheck. His net worth was negative. The Wife gave the Husband a loan to pay back the monies owing to his friends. The Husband believes that he repaid the loan during their relationship. The Wife states that there is still money owing with respect to the loan.
[28] The parties married on July 23, 2011.
[29] From May 31, 2009, to January 2012, the Husband and Wife lived at the Purdy Farm. The “Farm” paid for all the utilities and property taxes. The Husband and Wife paid for insurance, satellite TV and groceries.
[30] The litigation in reference to the Purdy Farm was settled October 11, 2011. The Wife received $260,000 from the settlement but had to pay her own legal fees (the “Purdy Estate Settlement”). The amount of legal fees paid was not in evidence.
[31] The Wife started looking for a home. The Husband attended with her to search.
[32] The Wife purchased the property located in Tillsonburg on December 16, 2011. This property is the matrimonial home. There is no dispute that the Wife paid for the matrimonial home with the funds she received from the Purdy Estate Settlement.
[33] The matrimonial home was purchased in the Wife’s name alone. There was no mortgage owing on the home.
[34] The parties separated between January 12, 2018 and January 15, 2018.
[35] The Husband has had numerous jobs during the party’s relationship, as can be seen from his resume. He has also had periods of unemployment, which has been a source of conflict between the parties. Both parties agree that the Husband’s failure to apply for work, while telling the wife that he did, was what ultimately sealed the parties’ separation.
[36] On January 13, 2018, the Husband attempted suicide. He states that he did this because of an argument that he had with the Wife over his failure to apply for a job, as requested by her. He told her that he applied, and when she found out that was untrue, she became angry with him.
[37] A tenant named Art Hyland (“Art”) was residing in the basement of the matrimonial home when the parties separated.
[38] On or about January 18, 2018, the Husband sublet part of the basement from Art and paid him $350 a month rent. Both Art and the Husband were responsible for repairs and damages to the basement.
[39] At the date of separation, the Wife worked at Ontario Pole Inspection Services. Her 2018 income tax return was not provided to the court. Her evidence is that she earned approximately $18,000.00 in employment income that year.
[40] At the date of separation, the Husband worked at Nevada Foods and was earning $19.00 per hour. In 2018 he earned $29,492.81.
[41] The parties did not own any joint assets, nor did they have joint debt. The Husband’s position is that they had one joint bank account. The Wife disputes this and advises that she confirmed with Toronto Dominion bank that the account in question was a sole account in her name alone and that the Husband was provided with the banking information because their surnames are the same. She produced no evidence of this.
[42] In or about October 2018, the Husband’s new girlfriend, Karen, started attending and living with the Husband at the matrimonial home on weekends.
[43] On November 30, 2018, Art delivered written notice to vacate the basement apartment by December 31, 2018. The Wife had prepared the letter to vacate.
[44] As a result of police involvement, the Husband moved out of the basement apartment on January 1, 2019. He went to Karen’s home in St. Catherine’s, where he remained at the time of trial. Karen owns the home that she and the Husband and her adult children live in. Although no agreement has been signed, Karen and the Husband plan to execute an agreement.
[45] The Wife gave the Husband the opportunity to live in the spare bedroom on condition that he not bring his girlfriend to the home to live with him.
[46] Upon moving to his girlfriend’s home, the Husband states that he went on a stress leave. By 2020, the Husband was working at a foundry plant in Welland. He earned $24.00 per hour and worked 40 hours per week. His annual income would have been $49,920. The Husband underwent elective knee surgery in the later part of 2020. In or about January 2021 he was laid off from his employment. At the time of the trial, he was receiving $890.00 every two weeks and was involved with the Steel Workers program, which he described as a program that assists people out of work to find work or upgrade skills.
Witnesses Called by the Parties
[47] The wife testified but called no other witnesses.
[48] The Husband testified and called the following additional witnesses:
Dr. Clara Beissel, who was qualified as a participant expert witness in clinical psychology;
Dr. Danielle Thornton, who is Mr. Oliver’s family physician and has been since 2003 to the time of the trial. She was qualified as a participant witness as a treating physician;
Dr. Grace Ferreria, who was qualified as an expert witness in general adult psychiatry; and
Jeffrey Purdy, the Wife’s late husband’s brother.
[49] Notably, the Husband did not call the lawyer who signed the certificate of ILA Richard Morrow. Instead, Mr. Morrow provided a letter dated November 4, 2019, which was admitted on consent into evidence for the truth of its contents. The letter states as follows:
November 4, 2019
Mandryk, Morgan & Vervaeke
40 Brock Street W
Tillsonburg, Ontario
N4G 2A2
Re: Oliver and Coderre [sic]
Dear Mr. Vervaeke,
I have your fax of October 29th last which, frankly, caught me unaware and unprepared. Now that I have an opportunity to spend some time and look into this matter, I can advise as follows:
I did not prepared [sic] the agreement- it is not a format used by my office
While I no longer have any file or materials, I do have my 2009 daily dairy [sic], which shows that Craig Oliver had booked an appointment to see me at 11:00 am on June 8th.
The witness signature and ILA signature are my handwriting.
No real estate or other files were connect [sic] to Craig Oliver at the time of our meeting. Any file materials would have [been] put in a “Miscellaneous 2009” file, which has been shredded. While my real estate files are kept for 15-20 years before being shredded, unfortunately the miscellaneous file was shredded some years earlier.
My practice in 2009 was somewhat more balanced as approximately 20% of my time was allocated to non-real estate areas including family law.
I would appreciate if the contents of this letter are made known to the presiding judge.
Yours truly,
“Richard R. Morrow”
Richard R. Morrow
Credibility Findings
[50] I found the Husband to lack credibility. His evidence that he does not recall anything with respect to signing the Agreement or meeting with Mr. Morrow is simply not credible. This is particularly so when the three medical experts he called as witnesses (and whose care he was under) never reported his memory lapse, which he states spanned approximately two weeks in 2009. Furthermore, his family doctor, who has been his doctor since 2003, indicated that there were no prescribed medications which would affect his memory and cause confusion at the time the Agreement was signed. His claimed memory loss appears convenient in light of his excellent memory with respect to those matters that bolstered his case, namely the extent of work he performed in regard to the renovations to the matrimonial home. When questions were posed to him in cross-examination, he was, at times, nonresponsive and evasive.
[51] I found the Wife to be a credible witness. Her evidence was clear. She conceded any reasonable matter put to her in cross-examination. She answered all the questions to the best of her recollection.
[52] The medical experts called by the Husband were all credible. They provided their evidence is a concise and straightforward manner.
[53] I find Mr. Jeffrey Purdy’s evidence to be irrelevant. Although he corroborates certain issues in relation to the Purdy estate litigation, his evidence on this point was mostly hearsay and inadmissible.
The Law
[54] On an application, the court may set aside a domestic contract or a provision in it pursuant to s. 56(4) of the FLA.
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.
[55] In Ward v. Ward, 2011 ONCA 178, 104 O.R. (3d) 401, at para. 21, the Court of Appeal for Ontario stated that grounds that would justify a court setting aside a domestic contract pursuant to s. 56(4)(c) include the following contractual concepts: unconscionability; undue influence; duress; uncertainty; mistake; misrepresentation; fraud; and repudiation of a term of the contract.
[56] The analytical approach to this statutory test was articulated by the Court of Appeal in LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1. The analysis first requires the court to assess whether the party seeking to set aside the agreement has demonstrated that at least one of the circumstances set out in s. 56(4) has been engaged: see Paunovic v. Wojcik, 2020 ONSC 1341, at para. 10.
[57] The burden is on the party seeking to set aside the agreement, in this case the Husband, to bring himself within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement: see LeVan; see also Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760.
a) Lack of Financial Disclosure
[58] The first basis on which an Agreement may be set aside under section 56 of the FLA is where there is a lack of financial disclosure.
[59] The Agreement states under the heading “Financial Disclosure” as follows:
FINANCIAL DISCLOSURE
Each party:
a) has fully and completely disclosed to the satisfaction of the other, the nature, extent and probable value of all his or her significant assets and all his or her significant debts or other liabilities existing at the date of this contract, and/or in addition to this disclosure;
b) has given all information and particulars about his or her assets and liabilities that have been requested by the other;
c) is satisfied with the information and particulars received from the other; and
d) acknowledges that there are no requests for further information or particulars that have not been met to his or her complete satisfaction.
[60] In Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 47–48, the Supreme Court said the following about financial disclosure in the negotiation of a domestic contract:
… a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances. The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.
[61] In Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 54, the court referred to Professor James G. McLeod’s annotation to Demchuk v. Demchuk (1986), 1986 CanLII 6295 (ON SC), 1 R.F.L. (3d) 176 (Ont. H.C.):
Professor James G. McLeod notes that the trial judge quite properly refused to give effect to non-disclosure in that case. It appears that Justice Clarke was applying traditional contract law. Prof. MacLeod states the following:
…a mistake, misrepresentation, or actionable non-disclosure will have no effect on the validity of the contract unless it is material and operative. Unless the failure to disclose affected the innocent party’s decision to enter the contract or significantly affected the consideration for the contract, and unless the innocent party really cared about the misrepresentation and it was part of her decision, the contract should not be invalidated: Cheshire and Fifoot, Law of Contract, 19th ed., pp. 253-56. On the facts, it is unlikely that the non-disclosure was material or was relied on by the wife. Thus, the non-disclosure did not amount to an “inducement” and the contract remained valid.
[62] A failure to disclose an asset does not necessarily render a domestic contract a nullity: see LeVan. The non-disclosure must relate to “significant” assets: see Currey v. Currey (2002), 2002 CanLII 49561 (ON SC), 26 R.F.L. (5th) 28 (Ont. S.C.).
[63] The parties did not formally exchange financial statements or net worth statements. However, as seen below, I find that the Husband had an adequate understanding of the Wife’s financial circumstances when he signed the Agreement. There was no material lack of disclosure.
[64] The Husband admits that he knew there was a dispute about the Purdy Farm. He agrees that the Wife believed she owned part of the Purdy Farm, as she understood that Robert had, or was in the process of having, the asset transferred into his and the Wife’s name before he died.
[65] The Husband complains that the Wife did not provide him with a “valuation” of the lawsuit. I accept the Wife’s evidence that she did not know if she would owe or receive money as a result of the Purdy Farm litigation and that therefore there was nothing to value.
[66] The Husband admits that he knew the Wife owned two vehicles at the date of cohabitation: the one she drove and the one that was owned by Robert at the time of his death.
[67] Although denied by the Husband, the Wife states that the Husband was fully aware that she received life insurance as a result of Robert’s death. I accept her evidence.
[68] Other than the life insurance proceeds (which were invested with Toronto Dominion Bank), the vehicles and the Purdy litigation, the Wife had no assets other than a bank account in the joint name of herself and her late husband, which she indicates had a nominal balance.
[69] The Husband knew that the Wife had no debt.
[70] There is no dispute that the Wife was aware of the Husband’s assets and debts before they moved in together. He states that he showed the Wife his statement of bankruptcy.
[71] The Husband admits in cross-examination that he knew that when they moved in together, the Wife was working at an automotive plant earning $18.00 – $19.00 per hour.
[72] The Husband admits that he knew before he moved in with the Wife that she was in receipt of WSIB as a result of a workplace accident and that she received a widow’s pension.
[73] The Wife was very clear that the Husband had full disclosure of her financial circumstances. He was her confidant and she hid nothing from him. She was completely transparent about her finances. She states that she was going though a very rough time when she met the Husband and that he “was there for me”. She had no reason to hide anything from him. I believe her.
[74] The Wife testified that she is 75% sure that the Husband would have seen her investment statements, as she left them in plain sight, and he spent every weekend with her before moving in.
[75] I accept the Wife’s evidence that the Husband attended with her in April 2009 to the accountant to discuss tax planning.
[76] At no point did the Husband request particulars. By virtue of paragraphs (c) and (d) under the heading “Financial Disclosure” in the Agreement, the Husband acknowledged that he was satisfied with the information and particulars received from the Wife and there were no requests for further information or particulars that had not been met with his complete satisfaction.
[77] Although the preferred practice is to attach a financial statement or net worth statement to any domestic contract, in this case, I find that the parties had knowledge of each other’s assets and debts and that neither failed to disclose a significant asset or debt.
[78] I further find that the Husband has not proven on a balance of probabilities a material failure to disclose significant assets and liabilities such that the court should exercise discretion and set aside the Agreement on the basis of s. 56(4)(a) of the FLA.
b) Failure to Understand the Nature or Consequences of the Agreement
[79] The second basis on which an Agreement or provision within it may be set aside under section 56 of the FLA is on the basis of a failure to understand the nature or consequences of the Agreement.
[80] Factors relevant to the determination of whether the Husband failed to understand the nature and consequences of the Agreement include:
• whether the Husband had ILA throughout the negotiation and signing of the Agreement;
• whether the Husband is intelligent, articulate and sophisticated;
• whether the Husband suffers from some disability;
• whether the terms of the Agreement include an acknowledgement by the Husband that he understood its terms and consequences and was signing voluntarily; and
• whether the Agreement includes an attestation by the Husband’s counsel that he advised the Husband with respect to the Agreement and that he believes the Husband to be aware of the nature, consequences and effect of the Agreement and is signing it voluntarily.
See Rolland v. Tevendale, 2015 ONSC 3226, 62 R.F.L. (7th) 371, at paras. 48–54
Memory Lapse/Learning Disability/Intelligence
[81] The Husband claims that he does not remember signing the Agreement; he does not remember the Wife bringing home signed copies; he does not remember making an appointment with a lawyer in Guelph; he does not remember meeting the lawyer and signing the Agreement on June 8, 2009; he does not remember bringing home the fully signed Agreement; and he does not remember paying his lawyer’s account.
[82] However, with respect to the date of cohabitation on May 31, 2009, the Husband remembers that he was working in Guelph, earning $17.00 per hour, and that he was living paycheck to paycheck in a basement apartment in Guelph. He remembers that he had a Volkswagen Jetta at the time and that he had debt. He remembers talking about an Agreement. He remembers the website that he met the Wife on. Furthermore, he recalls other aspects of the parties’ lives in detail. A perfect example of this is the detailed list that he produced in reference to renovations that he states he completed or took part in as it pertained to the matrimonial home.
[83] It is of note that the Husband did not tell any of his doctors or psychiatrists that he had a substantial two-week gap in his memory. This is despite him regularly seeing his family doctor and undergoing an assessment, as well as psychiatric evaluation.
[84] I do not accept that the Husband had a memory lapse.
[85] Dr. Beissel is a clinical psychologist practicing in London, Ontario. She completed a psycho-educational assessment with respect to the Husband on January 20, 2014. The husband was referred by staff at Learning Disability Services at ATN Access Inc. The assessment was based on testing, self reports by the Husband and a questionnaire completed by the Wife. ATN Access Inc. is an agency that assists those that are unemployed, underemployed or seeking to return to school. The assessment was not done to determine if the Husband had a mental disorder. The Husband scored extremely low: in the low range of 4 in the area of language and reasoning. He had particular weaknesses in reading comprehension, fluency and phonetic reading, as well as writing fluency and expression. Dr. Beissel indicated that, although the Husband might have trouble understanding a document, she could not advise if someone explaining the document would assist. She also confirmed that the Husband did not self report memory gaps, nor did her clinic look for memory gaps. Dr. Beissel was clear that she is unable to comment as to how the learning impairments affect the Husband’s day-to-day life or his ability to interpret and read legal documents.
[86] Dr. Thornton testified that the Husband had mild depression in 2004 for a brief period of time and that his condition improved. There were no other signs of depression or anxiety from 2009 until his suicide attempt in 2018. There is nothing in Dr. Thornton’s notes in April 2009 or May 2009 which indicate any mental health issues. In fact, Dr. Thornton indicates that the Husband was assessed on April 23, 2009 for hypertension and that his next appointment was July 23, 2009, for a weight and blood pressure check. She notes that, prior to his admission on January 13, 2018, he was previously assessed for mild depressive symptoms on August 24, 2004, and dysthymia September 21, 2004, and that a trial of Prozac was initiated along with counselling and lifestyle modification. As the Husband reported no improvement in his condition with Prozac, his prescription was weaned in March 2005.
[87] The Husband started meeting with Dr. Ferreria in January 2018 after his suicide attempt. The appointments ceased in December 2020, as Dr. Ferreria did not feel that the Husband required her further assistance. He was compliant with taking his medications.
[88] Dr. Ferreria confirmed that her notes about the Wife’s behaviour towards the Husband are all based on reports by the Husband and that she has never met the Wife. Dr. Ferreria indicated that the Husband did not meet the four clusters required for a diagnosis of PTSD, but that he did meet the cluster that indicated he avoided conflict and confrontation. It was his feelings of guilt and his argument with his Wife that prompted him to attempt suicide. She testified that the Husband suffers from major depressive disorder, but she could not state how long he has suffered from this. She is unable to provide any evidence as to his mental health in 2008 or 2009. She is unable to say whether his mental health issues would affect his ability to understand a legal document.
[89] None of the Husband’s experts supported his position that his mental health issues or his learning disabilities would have had an impact on his ability to comprehend the Agreement, especially with ILA. In the context of his selective memory and coupled with Dr. Ferreria’s at best, inconclusive findings, I am unable to accept that his deficits impacted his understanding of the Agreement. None of his experts provided any evidence that his mental health in May and June 2009 was such that he could not understand the Agreement. Dr. Thornton stated that she has no record of the Husband expressing that he felt pressure or influence from the Wife during the time the agreement was signed.
[90] The Husband has a learning disability related to his verbal comprehension, working memory skills and processing speed skills, which can also affect his ability to understand written information and sustain concentration. However, the certificate signed by both Mr. Morrow and the Husband clearly sets out that the Husband does understand the nature and consequences of the Agreement.
[91] Neither party has a sophisticated understanding of legal matters. The Wife readily admits that she did not fully understand all of the language in the Agreement. What she cared about was ensuring that her assets were protected in the event of separation. She understood from her lawyer that they were. That was all she needed to understand.
[92] The Husband acknowledged in his evidence that he understood that the Wife wanted an agreement “that would protect both of them”. What he understood was that the Wife wanted an agreement which basically said, “What’s yours is yours, what’s mine is mine and anything we do together is ours”.
Independent Legal Advice/Acknowledgement/Attestation
[93] As seen above, one of the measures of whether a party understands an Agreement within the meaning of section 56 (4)(b) is the presence or absence of legal advice.
[94] The following is part of the Agreement signed by the parties:
CERTIFICATE AND ACKNOWLEDGEMENT
I, RICHARD R. MORROW of the City of Guelph, in the County of Wellington, certify as follows:
I have been consulted by CRAIG ANOTHER OLIVER as to the legal effect of his signing the within Agreement.
I have explained the nature of the Agreement and the effect on his rights of signing. He stated to me and I am satisfied that he understands the nature and effect of the document and that he has executed it freely and voluntarily and is not under any undue influence exercised by any other person.
DATED this 8 day of June 2009.
“Richard R. Morrow”
I HEREBY acknowledge that Richard R. Morrow explained the nature of this agreement to me and the effect of my signing it. I confirm that I understand the nature and effect of the document and I have executed it freely and voluntarily.
[95] Furthermore, there is an acknowledgement in the Agreement that states as follows:
INDEPENDENT LEGAL ADVICE AND FAIR AGREEMENT
Each of the parties acknowledges that he or she;
a) has had independent legal advice or has been advised to seek independent legal advice and has failed or refuses to do so;
b) understands his or her respective rights and obligations under this agreement and understands the nature and consequences of this agreement;
c) is signing this agreement voluntarily;
d) believes that the provisions of this agreement adequately discharge the present and future responsibilities of the parties to one another and that the contract will not result in circumstances that are unconscionable or are unfair to either party.
[96] The Husband, in his evidence, confirmed that he lived and worked in Guelph at the time of the Agreement.
[97] Although the Husband states he does not recall making an appointment with Mr. Morrow, it appears from the Agreement that he met with Mr. Morrow in Guelph on June 8, 2009, at 11:00 a.m., to sign the Agreement. This appointment is consistent with the fact that the Husband worked the afternoon shift in Guelph.
[98] Furthermore, the Husband admits that he had a connection to Guelph. The Wife clearly indicates that she had no connection to Guelph, nor would she have any knowledge of lawyers in Guelph.
[99] Mr. Morrow’s letter, admitted on consent for the truth of its contents, indicates that he met with the Husband on June 8, 2009, which coincides with the dates on the Agreement.
[100] Mr. Morrow, a lawyer of good standing with the Law Society of Ontario, has acknowledged that he explained the Agreement to the Husband and that the husband understood the Agreement. Since Mr. Morrow was not called as a witness and given my credibility determination with respect to the Husband, I find that the ILA received was adequate.
c) Otherwise in Accordance with the Law of Contract
[101] The third basis on which an Agreement may be set aside under section 56(4) of the FLA is “otherwise in accordance with the law of contract.” This comprises several aspects, including unconscionability, undue influence, duress and misrepresentation.
i. Unconscionability
[102] The Husband’s position is that the Wife preyed upon him, as she was aware of the wealth imbalance, housing issue and lack of disclosure, which would force him to sign, unaware of what he was signing away.
[103] Unconscionability, with respect to domestic contracts, focuses on whether there were unconscionable circumstances surrounding the formation of the contract. The circumstances at the time of the drafting and signing of the contract must be considered, not the results or effect of the contract at the time the application is brought to be set aside. Section 33(4) of the FLA is an exception to this, as it permits a court to order or vary spousal support where a valid and subsisting domestic contract results in unconscionable circumstances.
[104] Unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context. As stated in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 82:
… There is a danger in borrowing terminology rooted in other branches of the law and transposing it into what all agree is a unique legal context. There may be persuasive evidence brought before the court that one party took advantage of the vulnerability of the other party in separation or divorce negotiations that would fall short of evidence of the power imbalance necessary to demonstrate unconscionability in a commercial context between, say, a consumer and a large financial institution.
[105] The question to be asked is whether there were “‘any circumstances of oppression, pressure, or other vulnerabilities’, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation” (see Brandsema, at para. 44).
[184] Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of the mind, economically weaker or situationally weaker. However, the “mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties” (see Miglin, at para. 82).
[185] The court should not “presume an imbalance of power in the relationship or a vulnerability on the part of one party, nor should it presume that the apparently stronger party took advantage of any vulnerability on the part of the other”. There must be evidence to conclude that “the agreement should not stand on the basis of a fundamental flaw in the negotiation process. Recognition of the emotional stress of separation or divorce should not be taken as giving rise to a presumption that parties in such circumstances are incapable of assenting to a binding agreement” (see Miglin, at para. 82).
[106] There is no evidence that the Wife preyed upon the Husband. The fact that there was a wealth imbalance at the time the Agreement was signed is not in and of itself a basis for finding unconscionability.
[107] The Husband’s assertion that he had already given notice to vacate his basement apartment in Guelph before he signed the Agreement also does not result in a finding of unconscionability. The parties discussed signing an Agreement before the Husband gave his notice to vacate. Furthermore, there is no evidence that the Husband felt pressure to sign the Agreement because he had given his notice to vacate. In fact, his evidence is that he has no recollection of signing the Agreement. It is inherently contradictory that he could both state that he could not remember signing the Agreement and state that he felt pressured to sign to do so.
[108] Based on the circumstances, I find, on a balance of probabilities, that the Husband has not proven unconscionability.
ii. Undue Influence
[109] In considering undue influence, the court must inquire into whether there was (i) an improvident bargain, and (ii) if so, whether there was inequality in bargaining power: see Hyldtoft v. Hyldtoft (1991), 1991 CanLII 12868 (ON SC), 33 R.F.L. (3d) 99, at paras. 26–28 (Ont. Gen. Div.). To establish undue influence or inequality in bargaining power, “the plaintiff must prove the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power” (see Segal v. Qu (2001), 2001 CanLII 28201 (ON SC), 17 R.F.L. (5th) 152, at para. 59 (Ont. S.C.)).
[110] The Husband provides the following examples of the Wife exerting control: (i) her insistence that he speak to a social worker; (ii) her desire to adopt a child without regard for his own feelings; and (iii) her attendance at his workplace to speak with his boss when the Husband broke his finger and she told his boss not to bully him.
[111] On May 29, 2009, the Wife had $199,999 invested, which was the growth of the $150,000 in life insurance that she received on January 29, 2008. Currently, she has $40,000. She spent approximately $5,000 for her husband’s funeral. The remainder of the life insurance was spent on renovations, tree removal and other household expenses.
[112] While they lived together, the Wife paid for all of the renovations. The Husband assisted with the renovations by doing some of the work. The Wife also had a brother who was a plumber and a friend who was an electrician. This work was provided at a discount to the Wife. She traded her electrical friend her lawnmower for wiring the “shop”.
[113] The Agreement is not reflective of an improvident bargain. In fact, had the Agreement not been signed, it is likely that there would have been little or no equalization payment owing, given the date of marriage deduction the Wife would have had in reference to both the life insurance proceeds and the Purdy Estate settlement.
[114] The Husband seeks to be compensated for the things he has done around the home but did not answer any of the questions in respect to compensating the Wife for those things she had done.
[115] The Husband admits that there were times during their relationship when he was unemployed, and the Wife supported him.
[116] The Husband admits that the Wife paid fully for the matrimonial home and the cost of the renovations. He also admits that she paid the carrying costs in reference to the matrimonial home, although it is his position that she had control of his bank account and that some of the funds to pay for the carrying costs came from his bank account.
[117] The Wife does not dispute that the Husband may have paid for small items like screws and screwdrivers, and she does not deny that he replaced the front desk. She vehemently denies, however, that the Husband did the amount of work that he testified he did in respect of the renovations. She points to the third parties she hired and that her brother, who is a plumber, did the plumbing work. Since the separation, the Wife has completed further renovations.
[118] The Husband admitted in cross-examination that he also had control over his own bank account.
[119] The Husband further admitted in cross-examination that the Wife visited him in the hospital following his suicide attempt and that she is the one who picked him up upon discharge from the hospital.
[120] The Wife’s evidence is that the Husband did not manage money properly and that, when they first started living together, she requested, and he did, destroy his credit cards. Sometime after the marriage, he obtained other credit cards. She states that she did not have access to his bank accounts, and he did not have access to hers.
[121] The Wife states that she paid for the vast majority of the household expenses and vet bills, as they had 4-5 dogs at any given time. She states that the Husband spent his funds on his own personal items. Over the course of their relationship, he owned five different cars. He spent a lot of time and money on these cars, including putting in expensive car speakers and electric windows. He also spent money on radio-controlled race cars and junk food.
[122] I do not find that the Wife dominated the will of the Husband. She was more financially responsible but that does not amount to undue influence. There is no evidence that she manipulated or coerced the Husband nor that she had power over him. She was genuinely surprised when the Husband stated during the trial that he never wanted to adopt. The Husband’s avoidance of conflict and confrontation does not amount to an abuse of power by the Wife.
[123] Based on the circumstances, I find, on a balance of probabilities, that the Husband has not proven undue influence.
iii. Duress
[124] Duress is described in Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72, as follows:
Duress involves a coercion of the will of one party or directing pressure to one party so they have no realistic alternative but to submit to the party (see Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 81 D.L.R. (4th) 194 at para. 22 (Ont. C.A.)). Equity recognizes a wider concept of duress including coercion, intimidation or the application of illegitimate pressure.
[125] Further, “there can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract” (see Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, at para. 53).
[126] To prove duress, the Husband must show that he was compelled to enter into the Agreement out of fear of actual or threatened harm of some kind. There must be credible evidence demonstrating that he was subject to intimidation or illegitimate pressure to sign the Agreement: see Ludmer at para 53.
[127] When the party alleging duress has received ILA and had a meaningful opportunity to review the domestic contract, courts are less likely to make a finding of duress: see Balsmeier v. Balsmeier, 2016 ONSC 950, at paras. 121–22, 153; Ludmer at paras 55–58.
[128] In this case, and based on the findings of fact made above, I find, on a balance of probabilities, that the Husband was not under duress when he entered into the Agreement. Furthermore, it is not plausible for the Husband to state he does not remember signing the Agreement and then to assert that he was compelled to enter into the Agreement out of fear of or actual threatened harm of some kind.
iv. Misrepresentation
[129] In contract law, a misrepresentation must be material in the sense that a reasonable person would consider it relevant to the decision to enter the agreement in question. In addition, the material misrepresentation must have constituted an inducement to enter the agreement upon which the party relied: see e.g. Panzer v. Zeifman (1978), 1978 CanLII 1658 (ON CA), 20 O.R. (2d) 502 (C.A.) and Beer v. Townsgate I Ltd. (1997), 1997 CanLII 976 (ON CA), 36 O.R. (3d) 136 (C.A.); see also Pearson v. Poulin, 2016 ONSC 3707, at para. 74 (in the context of a divorce consent): “In order to succeed on misrepresentation and mistake, the Applicant must show, on the balance of probabilities, that the Respondent misrepresented to her the value of his pension and this misrepresentation induced her to sign the Divorce Consent to her detriment”.
[130] It is unclear what the Husband is saying the Wife misrepresented. In closing submissions, the Husband states that the Wife “misrepresented the intention to enter into the cohabitation agreement”. Her stated intention was to protect her assets from the Purdy litigation – there was no intention to exclude the division of the matrimonial home.
[131] Based on the overall submissions made by the Husband, I cannot find that the Wife misrepresented either the intention of the agreement or the protection she sought by requiring an executed agreement.
The Matrimonial Home
[132] The Husband states that s. 52(2) of the FLA stands for the proposition that the release against one party’s property as it relates to the matrimonial home is unenforceable and, as such, that the matrimonial home should be equalized. I do not agree.
[133] Section 52(2) does afford protection to any agreement that purports to limit a spouse’s possessory rights under Part II (matrimonial home). As the Agreement did not do that, I do not find this provision to be relevant to this case. This subsection does not preclude parties from contracting about ownership and division of the matrimonial home.
[134] The Husband further states that, because the matrimonial home is not specifically defined and dealt with in the marriage contract, it is not captured in the definition of one-party property. I do not agree.
[135] It is the Husband’s position that the Agreement did not apply to the matrimonial home. He thought that he was protected and, as a result, he did not argue about the matrimonial home being placed in the Wife’s name alone. He states that he maintained and improved the home. He provided detailed evidence of the improvements that he states he made to the home. He agrees that the Wife paid for the cost of the materials and any third-party workers, but states that this is because she had control over his finances and his bank account. He does not dispute that the Wife paid the carrying costs of the matrimonial home.
[136] The Husband points to the fact that there was one bill in his name, namely the water treatment bill, which he paid over the phone as evidence of his understanding that the matrimonial home was a protected asset. He also states that at one point he was listed on the cable bill, but that the Wife had that changed.
[137] The Agreement states as follows (my emphasis added):
CLASSES OF PROPERTY TO REMAIN SEPARATE
Neither party shall under any circumstance acquire any interest in the following property (which is referred to collectively as “one party property”), which shall be and remain the sole and exclusive property of the other party throughout the period the parties cohabit and in the event that they cease to cohabit and upon the death of either party,
a) all real and personal property acquired by the other party prior to the date of this agreement;
b) all real and personal property acquired by the other party in his or her name alone after the date of this agreement;( Emphasis added)
c) all real and personal property inherited by the other party;
d) all income derived by the other party from any source;
e) all real and personal property acquired by the other party exclusively from his or her one party property in substitution or in replacement therefor;
f) all gifts acquired by the other party from whatever source;
g) all property received by the other party as damages;
h) all winnings received by the other party from a lottery or game of chance.
RELEASE AGAINST ONE PARTY PROPERTY
Without limiting the generality of the foregoing, neither party shall have a right to a division of any one party property, obtain an interest in any one party property, or shall have the right to compensation by reason of any direct or indirect contribution of the party not having an interest in the one party property whether;
a) by the assumption of responsibility for household management or financial provisions;
b) by reason of circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of any one party property;
c) by reason of the parties having disproportionate assets or liabilities; or
d) by reason of the use of the one party property.
JOINT PROPERTY
Should the parties wish to acquire property in both their names on joint account, the parties agree that they will hold the same as to an undivided one-half interest in the said property with rights of survivorship to prevail in the event of the death of one of them.
Unless the parties agree otherwise, in the event of the separation of the parties, all property owned jointly by them shall be sold and the net proceeds therefrom divided equally.
[138] In this case, the Agreement clearly refers to and defines both real property and one-party property. Although it is preferable that the matrimonial home be specifically referenced and, where possible, defined, the failure to specifically define the matrimonial home does not result in a circumstance that would void the contract.
Husband’s Assertion That the Agreement Would Not be Effective on Marriage.
[139] Section 53(1) (a) and (b) of the FLA states the following:
Agreements
53 (1) Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,
(a) ownership in or division of property;
(b) support obligations;
[140] Section 53(2) provides that, if the parties to an agreement marry, the agreement is deemed to be a marriage contract.
[141] The Agreement sought to be set aside by the Husband states as follows (my emphasis added):
AND WHEREAS the parties intend this agreement to provide for their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, or on marriage.
DOMESTIC CONTRACT
Each party acknowledges that this agreement is entered into under Section 53 of the Family Law Act and is a domestic contract which prevails over the same matters provided for in the Act or its successors.
[142] The Husband’s assertion that he did not understand the Agreement did not take effect on marriage is not plausible.
Conclusion
[143] As the Husband has failed to establish any of the s. 56(4) requirements, it is not necessary for me to determine if I should exercise discretion to set aside the Agreement.
[144] It should be noted that, even if the court were to set aside the Agreement, the Wife would have a significant date of marriage deduction. I note this because the financial issues between the parties may not be as significant as they believe them to be.
Spousal Support Provisions
[145] Section 33(4)(a) of the FLA gives the court the power to set aside a provision for support or a waiver of the right to support in a domestic agreement where the provision or waiver “results in unconscionable circumstances”.
[146] Section 33(4) reads as follows:
33(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under the subsection (1) although the contract or agreement contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances: …
[147] The Agreement reads as follows:
NO RIGHTS AS SPOUSE OR DEPENDENT
Neither party will be:
a) a spouse within the meaning of the Family Law Act or common-law spouse within the meaning of the Succession Law Reform Act, or a spouse or common-law spouse within the meaning of any other legislation which gives rise to, or imposes obligations on a spouse or a common-law spouse; or
b) a dependent within the meaning of the Family Law Act and the Succession Law Reform Act or any other legislation which gives right to a dependent.
SUPPORT WAIVER AND RELEASE
Neither party will have the right to receive support from the other and neither party has any obligation to provide support to the other personally or by his or her estate,
a) while cohabiting;
b) if they cease to cohabit; or
c) on the death of one of them.
Except as provided by this agreement, each party:
a) waives all rights; and
b) release the other and the other’s estate from all claims to support under;
i) the Family Law Act,
ii) the Succession Law Reform Act, and
iii) the laws of Ontario and any other jurisdiction.
[148] In Scheel v. Henkelman (2001), 2001 CanLII 24133 (ON CA), 52 O.R. (3d) 1 (C.A.), Borins J.A. pointed out that the test for the setting aside of a domestic contract under s. 56(4) of the FLA is more stringent than that for setting aside a waiver of spousal support because of unconscionability under s. 33(4)(a) of the FLA. He stated at para. 15 that s. 33(4)(a) is directed towards the unconscionable results of a spousal support waiver as distinguished from an unconscionable agreement:
The use of the phrase "results in" in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application: Mance v. Mance (1981), 1981 CanLII 4074 (ON SC), 22 R.F.L. (2d) 445 (Ont. Co. Ct.); aff'd. (December 18, 1981), Cory, Jessup, Wilson JJ.A. (Ont. C.A.); Newby v. Newby (1986), 1986 CanLII 2616 (ON SC), 56 O.R. (2d) 483 (Ont. H.C.). As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision "results in unconscionable circumstances". In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements.
[149] As set out in Scheel v. Henkelman, unconscionability has been defined in a number of ways. It can be seen as being “shocking to the conscience of the court”, “harsh and unjust” or “improvident or unfortunate” (see paras. 19 and 21 of Scheel). Borins J.A. suggested at para. 20 that the court consider three factors in determining whether the present circumstances are unconscionable:
(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;
(b) the results of the support provisions of the agreement, including any hardship visited upon a party, and
(c) the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their lifestyle.
[150] The case of Kennedy v. Bowen, 2017 ONSC 3977, 97 R.F.L. (7th) 166, at paras. 46–48, used the Miglin analysis, which outlines a two-part test for determining whether a court should uphold an agreement that limits, or waivers, a spouse’s support rights:
a consideration of the circumstances surrounding negotiation and execution of the agreement to determine whether there is any reason to discount it; and
a consideration of the substance of the agreement to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time of its formation
[151] Part 1 of the two-part test has already been discussed above.
[152] In considering part 2, we focus on s. 15.2(6)(a) and (c) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.): economic advantages and disadvantages; and economic hardship of the spouse arising from the breakdown of the marriage.
[153] The Husband asserts that the parties’ assets and debts at the date of valuation show that the Wife is leaving the marriage with a significant economic advantage while he is at a significant disadvantage.
[154] The parties’ incomes for the last few years have been as follows:
Income (Year)
Husband
Wife
2016
$30,904.00
$31,604.05 ($16,388.60 employment, $2,863.92 EI and remainder from those sources Husband agrees are excluded)
2017
$18,758 (Laid off and wanted to start his own renovation company but did not – he could not get EI because of taxi business)
$29,179.13 ($12,826.14 employment and $4,245.00 from employment insurance and remainder from those sources Husband agrees are excluded)
2018
$29,492.81
$32,978 complete tax return for 2018 not provided historically, part of income was her CPP survivor benefit of about $2,200/yr. and a WSIB personal injury pension of about $8,200/yr. So, her employment and EI income in 2018 would have been about $18,000.
2019
$17,876 from employment and $14,249 in EI - total income being $32,125.
$45,457.19 ($30,223.80 employment working two jobs, $3,618.48 EI and remainder from those sources Husband agrees are excluded)
[155] The Husband agrees that the Wife’s widow’s pension and WSIB income are excluded from her income for spousal support purposes.
[156] In 2020, the Husband was earning $24.00 per hour for a 40 hour week. He has been off work since October 2020 because of elective knee surgery. He was also “laid off” as of December 21, 2020. He does not know when he will be called back. Since receiving a layoff notice, the Husband has applied for some jobs on the Indeed website. He has not provided any evidence of an aggressive job search.
[157] The Wife had two knee surgeries in 2012 and 2013. She testified, and I accept, that she returned to work as soon as she was able to thereafter, which she estimates to be six weeks after surgery. The Wife is hard working.
[158] The Wife’s income in 2020 stemmed from 16 weeks of EI (she was a seasonal employee with Ontario Pole Inspection and was laid off at the time the COVID lockdown occurred in March 2020) and amounted to $420.00 gross per week ($6,720). Her EI was converted into CERB and she received three payments of $2,000 ($6,000). She then was able to obtain employment through a “temp” agency in August 2020 at $16.00 per hour, with Martin Rae. She has recently received a raise to $19.00 per hour, has been hired on with Martin Rae and is currently on probation.
[159] The Husband is employable and has been employed since the date of separation. His income and the Wife’s income have been very similar since 2018 when they separated. They have been separated for 3 years and 3 months now.
[160] When the Husband moved in with his girlfriend in January 2019, he became one of four adults living in that home and sharing expenses. The Wife lives on her own and has been since the date of separation.
[161] The Husband agrees that his current unemployment is not associated with the Wife. He admits that he did not sacrifice his career for the Wife.
[162] There were no roles adopted in the relationship which resulted in one party becoming financially dependent on the other party. Neither party gave up anything in their career or career potential for this relationship.
[163] The fact that the Husband went on “stress leave” post separation does not mean he is entitled to spousal support. The Husband’s family Doctor (Dr. Thornton) confirmed that stress following separation is a very common thing. The stress of litigation and separation is not just limited to the Husband.
[164] This is a relatively short relationship of 8 years and 7 months. Neither party’s income has increased or decreased to the detriment of the other. Both are similarly qualified with a high school education. There is nothing from the relationship that is causally connected to the parties’ current financial situations. Neither party sacrificed career for family in this relationship.
[165] The Wife did not accumulate any wealth during the marriage. She does not have a company pension. She still owns the same house. Her TD investments went down from $199,000 at the date of cohabitation to $80,000 on the date of separation. Her income and the Husband’s income would support any savings. They both admitted that they lived paycheck to paycheck, with the Wife dipping into her savings from time to time.
[166] The Wife did the cooking, cleaning, laundry, took down brush, redid flowerbeds and cut the lawn. The only time where the Husband assisted with these chores was during her recovery from knee surgery.
[167] In this case, the Husband has the ability to earn the same income as the Wife. Even if he had entitlement to support, the DivorceMate calculations do not provide for any amount. The Husband is, in many ways, the author of his own misfortune. His spending habits have created the situation which he finds himself in, which is not dissimilar to the situation he came into the relationship with.
[168] For these reasons I would dismiss the claim being advanced by the Husband that the court set aside the support provisions of the Agreement.
Order
[169] For the reasons set out herein, I dismiss the Husband’s claims related to this trial.
Costs
If the parties are unable to resolve the issue of costs, which I encourage them to do, the Husband may file written submissions on costs within 21 days. The Wife may file responding written submissions within 14 days thereafter. The Husband may provide brief reply submissions seven days thereafter. Submissions are not to exceed five pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines without my permission. If a party does not provide submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.
D. Piccoli J.
Released: June 17, 2021
COURT FILE NO.: FC-19-FS000042-0000
DATE: 2021-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
ANTHONY CRAIG OLIVER
Applicant
– and –
ANNETTE HELEN JEAN CODERRE
Respondent
REASONS FOR JUDGMENT
D. Piccoli J.
Released: June 17, 2021