COURT FILE NO.: FS-18-93140
DATE: 2021 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NORIEL GAPATE GABUCAYAN
Pierre Sicco, for the Applicant
Applicant
- and -
AMANDA GABUCAYAN
Respondent
Sarah E. Jackson, for the Respondent
HEARD: December 14, 15, 16, 2020
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] This judgment follows a three-day trial in which the issues of parenting, child support and the validity of a domestic contract were to be determined. If I were to set aside the domestic contract, further evidence would be required for a subsequent trial. To the parties’ credit, at the commencement of trial, they reached a final agreement with respect to parenting issues. That agreement shall become a final order under a separate endorsement. The parties already obtained a Divorce Order on September 16, 2019.
[2] The trial consisted only of the evidence of the parties themselves. On July 7, 2020, Petersen J. ordered that the parties’ evidence in chief was to be entered by way of affidavit. On August 14, 2020, a timetable for delivery of affidavit materials and up-to-date financial statements was set. In support of his position, the Applicant Husband Noriel Gapate Gabucayan (“the Husband”) relied on an affidavit which he swore on October 15, 2020. In support of her position, the Respondent Wife Amanda Gabucayan (“the Wife”) relied on affidavits she swore on April 30, 2020 and November 9, 2020. The parties were cross-examined in person at trial.
I. Issues
[3] The following issues must be determined at trial:
a) Should the Separation Agreement dated June 14, 2018 (“the Separation Agreement”) be set aside?
b) Is child support reviewable at this time? If so, what is proper amount of child support payable by the Husband as of June 1, 2019?
c) Should the Husband reimburse the Wife for credit card debt he incurred, and for which she is liable?
II. Facts
[4] The parties were married on January 22, 2005. They have two children to whom I will refer to by their initials: L.D., born in 2005 and G.J., born in 2012. The Husband states they separated on February 20, 2018. The Wife states they separated on February 22, 2018. According to the terms of the agreement reached on issues of parenting, the parties have joint custody, as it was known at that time. It has been agreed that the children shall reside primarily with the Wife and the Husband shall have parenting time on alternate weekends.
[5] Following separation, all the parties continued to live in the matrimonial home located at 17 Mellowood Avenue, Brampton, Ontario (“the Matrimonial Home”) with the Husband’s parents, the Wife’s parents and the children of the marriage. This continued until which time the Wife paid a sum to the Husband in July, 2018. The Husband’s interest in the Matrimonial Home was then transferred to the Wife, as detailed below, and he and his parents vacated.
A. Events Following Separation
[6] On February 22, 2018, the Husband retained Mr. Sicco who wrote to the Wife, advising her that he was retained to assist in resolving the issues around the separation. The Wife was asked to retain counsel. Having received no response to his lawyer’s letters, the Husband commenced court application FS-18-91946 on April 11, 2018 (“the Earlier Application”) and served the Wife with his Application and Financial Statement.
[7] The Wife eventually retained counsel in April 2018. Her counsel wrote to Mr. Sicco indicating the Wife’s desire to negotiate a settlement and said they would prepare her financial statement and ready her disclosure. The Wife states that with the assistance of her counsel, she prepared a financial statement. She terminated her retainer with her counsel sometime thereafter due to the cost.
[8] Despite having counsel, the parties also met themselves on a number of occasions to discuss the terms of their separation. They would either speak at the Matrimonial Home, at a Tim Horton’s, Starbucks or McDonalds. The texts exchanged between them, as detailed below, show ongoing discussions from at least May 2018. The Wife maintains it started earlier.
[9] During these negotiations, from at least April 2018, the Wife had the Husband’s financial statement from the Earlier Application and his disclosure. Despite this financial statement being sworn March 29, 2018, and served in the course of the Earlier Application, it was incomplete. In particular, with respect to property,
a) the Husband did not disclose his interest in the business Kiam Trans, which he operated in the Philippines (which he later estimated to be valued at $4,500);
b) he listed his HOOPP pension, but provided no value (this was later valued at $65,999.30);
c) he did not disclose a second pension he had with Sienna Senior Living (which was later valued at $22,085.11);
d) he did not list a farm property in Philippines which he claims he owns in trust for his parents (which he later estimated to be valued at $3,100).
[10] On April 8, 2018, the Wife was involved in a motor vehicle accident. As a result of her injuries and the stress she claims resulted from the separation, she went on short-term disability from April 2018 until July 16, 2018. In a letter from her family doctor, Dr. Dulku, the Wife is noted as suffering from knee pain, neck pain and low back pain and was attending physiotherapy regularly. It was recommended that she be off work for 12 weeks. Accordingly, the Wife was off work on short-term disability for almost the entire time she was negotiating the terms of the Separation Agreement. It is the Wife’s position that the Husband served her with the Earlier Application purposively in April, shortly after her accident, trying to take advantage of her vulnerability.
[11] The Husband was also off from work around this time as well. He produced an “Attending Physician’s Report for Employee Medical Absences of Four (4) Shifts or More”, dated March 6, 2018, signed by his family doctor, Dr. Dulku, indicating that the Husband was suffering a moderate degree of personal stress, recommended counseling and therapy, and indicated he would be off of work for 4 weeks. Also provided was a “Medical Information Form – Mental Health”, dated March 16, 2018, again signed by Dr. Dulku, who made a DSM-5 Diagnosis of generalized anxiety with a secondary diagnosis of depression. It also noted objective symptoms of low mood, stress and difficulty concentrating. It noted that the onset of the clinical problems were due to “social/family issues” and psychotherapy was recommended. With respect to cognitive restrictions, Dr. Dulku noted that the Husband had mild restrictions in “learning new material” and “comprehension”, moderate restrictions in “concentration”, “analytical reasoning” and “ability to multi-task, and had severe restrictions in social interaction.” Dr. Dulku recommended that the Husband be off work for an additional 4 to 6 weeks (which would be to the end of April 2018, at the latest), and that he had a good prognosis.
[12] Later in late April 2018, the Husband provided medical evidence of acute pharyngitis, where he reported suffering from a sore throat and fever. In early May 2018, he was diagnosed with acute bronchitis, and the doctor recommended that the Husband be off of work until May 7, 2018. It appears the Husband was working again around the time the Separation Agreement was signed. In cross-examination, the Husband admitted that he never had a mental health issue that required hospitalization and was not diagnosed with any mental health disorders at the time he signed the Separation Agreement.
[13] Despite the parties speaking themselves, their counsel were still acting on their behalf. The Husband states he was in communication with Mr. Sicco in February and March 2018, but very little afterwards. Despite this position, it is clear that on May 1, 2018, the Husband’s counsel continued to act for the Husband, in that Mr. Sicco proposed the use of a mediator, and followed up with the Wife again on May 9, 2018, having had no response. Both letters were copied to the Husband. In cross-examination, the Husband conceded that he actually met with his lawyer on two occasions in May 2018. On one occasion, he attended to sign a Notice of Withdrawal with respect to the Earlier Application. He refused to disclose what occurred at the other meeting, claiming solicitor and client privilege.
[14] The Husband and Wife did attend an intake meeting with a mediator, Kavita Bhagat, in early May 2018. Ms. Bhagat did not give evidence herself. The Wife states that Ms. Bhagat provided information about the mediation process, the issues to discuss and the cost. The Wife indicates that both were concerned about the cost.
[15] Both parties agree that it was the Husband who had searched on the internet for ways to obtain a separation agreement and discovered ezDivorce.ca. He was the first to suggest that he and the Wife use this website and associated software to help draft a separation agreement. The Husband states he suggested this because he was tired of the verbally abusive behavior of the Wife and wanted an easy and inexpensive solution. After meeting with Ms. Bhagat, and hearing of the cost, on or about May 11, 2018, the Wife and Husband decided to use ezDivorce.ca.
[16] The Wife then contacted the ezDivorce.ca website and requested a package. On or before May 16, 2018, Mr. Slater, the owner of ezDivorce.ca, sent a questionnaire to the parties to fill out. The parties met at a Starbucks and filled it out together. At first, the Husband stated he did not recall receiving the ezDivorce questionnaire on May 16, 2018, but when shown the email on that date, attaching the questionnaire, he conceded that he and the Wife did fill out the questionnaire together. Then he claimed that although he was involved in filing out the questionnaire, his position is now that he didn’t understand what he was doing, and simply wanted out of the marriage, or “nightmare” as he called it. He claims he was subjected to extreme verbal harassment by the Wife since separation, and wanted it to end. Later in his cross-examination, the Husband changed his evidence and stated that he would not admit that he met with the Wife to discuss the separation agreement, because he does not trust her. Nonetheless, he does agree that they had various discussions by text message, which are detailed below.
[17] In support of his allegation of verbal abuse by the Wife, the Husband included a number of texts between them wherein she called him, amongst other things, a liar, a cheat, lazy, a parasite and a bad father. In cross-examination, the Husband conceded that the subject emails were sent in September 2018, long after the Separation Agreement has been signed. He also conceded that he used equally inflammatory language, but only in response.
[18] In this questionnaire sent by ezDivorce.ca, the Husband and Wife agreed to waive entitlement to each other’s pension. The Wife claims that she brought her recent pension statement with her, dated March 31, 2018 when she and the Husband met. It was not a family law valuation, but it showed a commuted value of $340,000. This pension was later properly valued at $322,916.32. The Wife claims she also brought her bank statements with her at this meeting. As indicated, the Wife had the Husband’s financial statement from the Earlier Application.
[19] The Wife states that the parties continued finishing the questionnaire in the Matrimonial Home on May 18, 2018. She says their negotiations continued until June 13, 2018, and occurred either in public places or by text. The texts show back and forth communication on issues of parenting and a payment to the Husband in exchange for the Wife retaining the Matrimonial Home.
[20] The texts between the parties are instructive:
a) The texts show the Husband asking the Wife repeatedly if she had booked an appointment with Mr. Slater;
b) On or around May 23, 2018, the Husband texted that if the Wife gave him $100,000, he would not file a case against her. On that same day, he attended at his lawyer’s office and signed a Notice of Withdrawal for the Earlier Application;
c) On May 26, 2018, the Husband texted “Give me my $100,000 and I gone ASAP”. He then demanded the money in 10 days and told the Wife to get it from her friends if she couldn’t get it from the bank. The Wife had to repeatedly ask for 10 days to visit the bank again to apply for loan. There is also discussion about property in the Philippines;
d) On June 2, 2018, the Husband acknowledged that the Wife’s pension was 3 times greater than his. Also on that day, the Husband texted to the Wife, “Nobody tell me what to do and FYI I don’t have adviser except my Lawyer”; and
e) On June 7, 2018, the Husband texted:
You wasted my time waiting for nothing.
This coming Monday I will go to my Lawyer to file the Case against you because it’s better to get my 50-50 share and I assure that I have legal documents.
I’ve been asking you 100K but you keep delaying it or delaying tactics strategy, right!!!
I’ve spend money already to my Lawyer and I’m gonna go all the way until I get my 50-50 share including your pension.
[21] In summary, the texts show that the Husband is the individual who is threatening the Wife with litigation and equal division unless she pays him $100,000 immediately. He seems unsympathetic to the fact that the Wife was having difficulty obtaining this type of money, or that she was managing significant debt from the marriage. The Husband was well aware of his entitlement to equalization, but instead used the threat of it as leverage to obtain a quick cash settlement from the Wife.
[22] On or around May 26, 2018, the parties received a letter of opinion from a real estate agent giving the Matrimonial Home a value of $965,000.
[23] The parties met again on June 7, 2018, and the Wife states that she provided the Husband with her unsworn financial statement dated May 29, 2018, which included the value of the Matrimonial Home, as appraised. The Husband did not request anything further. The Wife’s pension is listed, but no value is provided. All bank accounts are joint except for the Wife’s RRSP, her TFSA, and her pension. She provides a balance for her RRSP and TFSA on her unsworn financial statement. All debts are joint except for three credit cards, which total approximately $25,000, for which she provided balances. She used the wrong valuation date (March 23, 2018) and improperly claimed an interest in property in the Philippines. The errors made were to her detriment. The Husband denies seeing this financial statement.
[24] After considering the evidence given throughout the trial, I am unable to accept the Husband’s evidence that he did not see the financial statement. The Husband’s evidence throughout the trial was vague and contradictory. He would adamantly deny that something occurred or that he received something until confronted with evidence that it had occurred, or that he had received it. Only then would he concede the point, and then change his evidence again, claiming he didn’t understand what he was doing, that he was harassed, verbally abused and desperate to get out the situation. At times his evidence contradicted what he had stated in questioning under oath. He would then admit to the inconsistency but excuse it with claims of pressure, or that he did not understand. The Husband’s evidence in general lacked credibility. I find that he did view the wife’s unsworn financial statement in early June 2018, which as indicated, overstated the Wife’s net family property value.
[25] In addition, whether or not the Husband had the Wife’s unsworn financial statement in June 2018, it is clear that the Husband had a good understanding of the Wife’s financial situation, and choose not to investigate further. During his cross-examination, the Husband admitted the following:
a) both their incomes went into a joint account with the RBC and they paid for the matrimonial home bills from that account;
b) they paid their credit card bills from this account;
c) they both made contributions to their TSFA and RRSP accounts from their joint account, though he claims not to know the balance of the Wife’s accounts;
d) he knew the wife had a pension; he didn’t know the value, but he knew it was approximately three times higher than his because she is a R.N. and he is a P.S.W.;
e) he admitted that he never wanted the Wife’s pension and didn’t want to share his;
f) he admitted that he never asked the Wife to value her pension anytime between February and June 2018 and he did not provide any information regarding his pension;
g) he admits that he is not sure if his lawyer ever sought disclosure from the Wife;
h) he admits he never asked the Wife to provide him with a financial statement; and
i) he admits that he wanted the Wife to retain the Matrimonial Home so that the children could remain there.
[26] It is clear that at the time the Husband signed the Separation Agreement, he knew he could equalize the parties’ pensions. This is evident from his Application in the Earlier Application, wherein he requested an equalization which included the Wife’s pension, which was larger than his. It is also clear from his texts to the Wife.
[27] The Wife produced the emails between her and Mr. Slater, and the emails between her and the Husband, where she shared various drafts of the Separation Agreement. These emails include an email from the Husband to Mr. Slater dated June 8, 2018, sending back the draft separation agreement asking him to draft it for the next week. The Husband also sent an email to Mr. Slater on June 12, 2018 with several small changes for the Separation Agreement.
[28] On June 13, 2018, Mr. Slater sent the Separation Agreement to the Wife and stated that if she and the Husband were satisfied, to print off two copies, and sign it in front of a witness. Mr. Slater also indicated that if they were not going to get independent legal advice, to discard the last two pages.
[29] The Wife forwarded the Separation Agreement to the Husband that evening at 7:41 p.m. The only change made from the previous draft was the removal of a clause that dealt with federal employees, which neither of them were. The first page of the Agreement contained a Disclaimer that stated, amongst other things, that Mr. Slater is not providing legal advice to either party, that the parties are strongly encouraged to obtain independent legal advice, and encourages the parties to complete and exchange financial statements. The parties then texted each other and agreed upon the time to meet at Mr. Slater’s office the next day.
[30] Both parties attended at Mr. Slater’s office on June 14, 2018, arriving separately. They both signed the Separation Agreement and Mr. Slater witnessed both signatures. The Husband did not ask Mr. Slater any questions regarding the Separation Agreement. The Wife left first, and the Husband after. It is agreed that the Wife arrived with the Husband’s nephew, as she was driving him somewhere after. The nephew said nothing. The Husband claims this was intimidating because he was not on good terms with his nephew. The Wife observed nothing that would show the Husband was intimidated, and claims that the nephew was physically smaller than the Husband. Neither party submitted any evidence from Mr. Slater directly.
[31] The essential terms of the Separation Agreement are as follows:
a) The parties agreed that the document was a domestic contract as contemplated by s. 54 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”);
b) Both parties waived any entitlement to spousal support from the other;
c) They agreed to joint custody of the children, and that they would live primarily with the Wife, with access on alternate weekends to the Husband;
d) The Husband would pay child support and section 7 expenses based on his annual income of $80,000 and the Wife’s income of $96,893, in the sum of $1,200 per month, plus a monthly contribution to the children’s RESP’s;
e) The Wife would pay to the Husband the sum of $100,000 for his share of the Matrimonial Home on July 15, 2018 and he would be removed from any liability associated with the Matrimonial Home;
f) Neither party would seek an interest in the other’s pension;
g) The property in the Philippines would be transferred to the minor children, under the guidance of the wife until they reach the age of 18 years; any income from the properties will be deposited to a joint account of the children, which both parents could access;
h) Other than as indicated herein, no equalization payment would be made.
i) The parties acknowledge that they have fully disclosed to each other their income, asserts and liabilities as of the date of marriage, the date of separation and at the time of the Separation Agreement, and that they had had an opportunity to request, obtain and review any and all financial documentation from each other;
j) The parties also state that neither has coerced the other, or offered any incentive or disincentive respecting the complete investigation of the other’s finances;
k) They both had an opportunity to obtain independent legal advice before signing; and
l) That they are signing voluntarily.
[32] The document was initialed by both parties on each page and then signed and witnessed before Mr Adam Slater, who indicated “no legal advice given.”
[33] The Wife maintains that she would have delayed the signing if the Husband wanted time to think about the Agreement or seek additional advice. She claims it was the Husband who was anxious to receive his $100,000, and she was the one having difficulty obtaining refinancing for the Matrimonial Home sufficient to pay out all their significant joint debt and pay the Husband the sum he wanted.
[34] The Husband admits he could have gotten the Agreement reviewed by a lawyer, but he wanted it done because of the abusive texts by the Wife and her harassment of his family. He states he was just too emotionally, mentally and financially drained to resist the Wife’s pressure to accept $100,000, and that he finally “cracked” and signed.
[35] With respect to getting independent legal advice, the Husband would not admit that he had access to such advice from Mr. Sicco. The fact that Mr. Sicco was his counsel at this trial was unusual given that he may otherwise have been a witness on this issue. Neither counsel addressed this issue at trial.
[36] Nonetheless, at trial, the Husband acknowledged that no one preventing him from getting independent legal advice. He admits that he never asked for more time to consider his position. He was aware of the disclaimers by Mr. Slater that the parties should have independent legal advice. He claims he thought Mr. Slater was his and the Wife’s lawyer, but now alleges Mr. Slater acted for the Wife only. Despite this allegation, he can point to no instance in which Mr. Slater negotiated on behalf of the Wife.
[37] While English is not the first language for either party, I do not find this to be a factor. Both the Mother and the Father work in the English language, both with vulnerable people. Neither sought the assistance of a translator at trial nor were any of their affidavits translated. The texts between the parties are predominantly in English.
B. Conduct Following the Signing
[38] Pursuant to the terms of the Agreement, the Husband transferred his interest in the Matrimonial home to the Wife in or around July 20, 2018. In return, the Wife paid the Husband the sum of $100,000 and the Husband and his parents moved out. The Wife refinanced the Matrimonial Home, eliminating the Husband’s liability for the existing mortgages and significant joint debt. In particular, the Wife obtained a new mortgage for $403,062.67, which paid for the following joint debt:
First Mortgage: $271,239.72
Second Mortgage: $46,656.21
Sec’d Line of Credit: $85,166.74
$403,062.67
[39] The balance on the joint secured line of credit had increased by $60,000 since the date of separation, which was paid out by the Wife when she refinanced. There was also an additional unsecured joint line of credit of approximately $45,000, which the Wife paid by borrowing from family. The Wife also remains the primary debtor on a number of credit cards which include charges made by the Husband post-separation.
[40] Also pursuant to the Agreement, the Husband paid child support in the stated amount of $1,200 per month and has exercised access. There was one instance in early August 2018 where the Wife withheld access and demanded payment of approximately $32,000. The Husband was forced to call the police and access was granted without payment. Following this event, Mr. Sicco, on behalf of the Husband, wrote to the Wife, relied on the Agreement and demanded that she grant access in accordance thereof.
[41] Unfortunately, the conflict did not end with the signing of the Separation Agreement. The Wife misinterpreted her rights as against the Husband and on August 13, 2018, started a Small Claims Court Action against the Husband seeking the sum of $15,097.67 towards their jointly held credit cards, plus child support arrears (“SCC #1”). Even though the credit cards were held primarily by her, she believed that the Husband should have to pay for his charges by virtue of the clause in the Agreement that said each party is responsible for their own debt. She also states that she didn’t understand she could not pursue child support arrears in this manner. She was unrepresented when she signed the Separation Agreement and when she started the small claims court matters.
[42] On the same day, the Wife also started two other Small Claims Court actions. During the course of marriage, it is agreed that the Husband’s mother Alejandria Gabucayan and the Husband’s nephew Angelo Leano borrowed money from time to time from the Husband and Wife. Payments towards the loan were made. After the Husband moved out of the Matrimonial home, these repayments stopped, and payments were made to the Husband only. Both parties acknowledge these joint debts on their financial statements, although they disagree on the amount outstanding by $5,000 to $8,000.
[43] Since the repayments stopped, on August 13, 2018, the Wife started a Small Claims Court Action against Alejandria Gabucayan seeking the sum of $22,000, being the amount still outstanding to the Wife and Husband (“SCC #2”). Also on that day, the Wife also started a Small Claims Court Action against Angelo Leano seeking the sum of $16,500, being the amount he owed to the Wife and Husband (“SCC #3”).
[44] Shortly after these Small Claims Court actions were commenced, the Husband commenced the within Application. All three Small Claims Court actions have been stayed pending this trial.
[45] The Husband had additional health issues following the summer of 2018. He was off of work for a period of time from August 21, 2018 due to a repetitive work injury. Again, he was off a short time in November 2018 due to uncontrolled hypertension. Throughout 2018, the Husband had short term disability and long-term disability benefits available to him.
[46] Despite the Separation Agreement indicating that contents were to be divided, the Husband claims that this has not been done. In cross-examination, he admitted he has never provided a list to the Wife of what contents he wishes to have.
III. Validity of the Separation Agreement
[47] The applicable provisions of the Family Law Act are as follows:
55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
56 (4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[48] The courts “should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship. This is particularly so where the agreement in question was negotiated with independent legal advice”: Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 9; Ramdial v. Davis, 2015 ONCA 726, 68 R.F.L. (7th) 726, at para. 52. The court stresses the importance of allowing the parties the right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 45, citing Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 73.
[49] Section 56(4) of the FLA deals with intrinsic flaws in the formation of a contract that nullify the apparent consent between the parties and invalidate the agreement, allowing a court to set aside the contract: Faiello v. Faiello, 2019 ONCA 710, 438 D.L.R. (4th) 91, at para. 17.
[50] It is conceded that the Separation Agreement is a domestic contract. It was made in writing, signed, and witnessed by Mr. Slater. It must be determined then whether the Husband can show the court that the Separation Agreement should be set aside pursuant to s. 56(4) of the FLA.
[51] The burden of proof lies with the Husband to show that there are grounds to set aside the domestic contract: Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760, at para. 11; Faiello, at para. 20.
[52] When determining whether to set aside a domestic contract, the court must follow a two-part process. First, it must be determined whether the party who requests the agreement be set aside can demonstrate one of the circumstances set out in s. 56(4) of the FLA. If this has been shown, then the court must determine whether it is appropriate to exercise its discretion in favour of setting aside the agreement: LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 51.
A. Financial Disclosure of Significant Assets and Debts
i. The Law
[53] In Rick v. Brandsema, the Supreme Court of Canada recognized the particular vulnerability of parties negotiating a settlement following the breakdown of their marriage. Accordingly, the Court stressed the importance of full and honest disclosure of all relevant financial information, so as to protect the integrity of the negotiations in this vulnerable time. While usually a negotiated agreement is entitled to judicial deference, the court may intervene depending on the particular circumstances of each case, paying particular attention to the extent of defective disclosure and the degree to which it has been found to have been deliberately generated: Rick v. Brandsema, at paras. 47-49.
[54] Financial disclosure sufficient to support the validity of a domestic contract does not have to be perfect. While a sworn financial statement, backed up with documentation, is always preferred, it is not mandatory. If it can be shown that each party had knowledge of the significant assets and debts of the other party, and did not seek any other information because of their personal knowledge of their affairs, it will be considered sufficient disclosure: Faiello, at paras. 25-29. Parties are expected to do their due diligence and follow up on those items for which they require more information: Lisa Ludmer v. Brian Ludmer, 2013 ONSC 784, at para 46 [Ludmer].
[55] In fact, if a party has some financial disclosure, knows that more information is available, chooses not to pursue the disclosure they are entitled to, and signs an agreement nonetheless, the court will not be inclined to set the agreement aside based on the lack of disclosure: J.L.S. v. D.B.S., 2016 ONSC 1704, at para. 38, affirmed 2017 ONCA 759; Quinn v. Epstein Cole LLP, 2008 ONCA 662, 92 O.R. (3d) 1, at paras. 3-4.
[56] In addition, the court has found that a party cannot enter an agreement knowing of its shortcomings, and then rely on those shortcomings in their efforts to have it overturned: Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228, at para. 54. Likewise, a party cannot rely on another party’s failure to provide full financial disclosure when they have failed to provide it themselves: Tozer v Tassone, 2018 ONSC 3726, at para. 36.
[57] Even if there was a failure to make disclosure of assets and liabilities, the assets and liabilities have to be significant for the court to consider setting aside an agreement. The term “significant” must refer to and be measured in the context of the entire relationship between the parties and it should not be considered in isolation of all the surrounding circumstances: Turk v. Turk, 2018 ONCA 993, 143 O.R. (3d) 661, at para. 11. Disclosure should be considered significant if its financial effect would have caused the spouse to rethink their position: J.L.S., at para. 34.
ii. Position of the Parties
[58] The Husband claims that despite the statements in the Separation Agreement regarding financial disclosure, he in fact had no financial statement from the Wife, sworn or unsworn, when he signed the Separation Agreement and the Wife provided no disclosure. He claims he was “completely in the dark” with respect to the Wife’s assets, debts and liabilities that were not joint. The Husband knew that the Wife had a HOOPP pension, but did not know the value.
[59] The Wife maintains that each party was aware of the other parties’ financial position, that they both disclosed their significant debts and assets prior to signing the Separation Agreement and the Husband never asked for any additional information or clarification.
iii. Analysis
[60] Having reviewed the applicable law in this area, and after considered the evidence, I am satisfied that the Husband had sufficient knowledge of the Wife’s significant assets and liabilities prior to signing the Separation Agreement.
[61] First, I am satisfied that the Husband saw a copy of the Wife’s unsworn financial statement in early June 2018. As indicated above, despite the Husband’s assertion that he did not see it, I find the Husband’s evidence lacks credibility and I accept the Wife’s evidence that she showed it, as well as a copy of her pension statement and bank statements, to the Husband. While the financial statement she showed to the Husband at that time was deficient, it was so, to her detriment. In addition, the only significant asset missing was the Wife’s pension, but I am satisfied, based on texts exchanged by the parties, that the Husband was well aware of its value. His text, indicating that her pension was worth three times the value of his, further supports the Wife’s evidence that she showed him her pension statement when they met in the spring of 2018.
[62] Also, the Husband was well aware of his right to full financial disclosure and that he could demand documentary evidence of all assets and liabilities claimed by the Wife. He had counsel could have kept the Earlier Application open. He chose not to do so.
[63] In addition, I am satisfied, that even had the Husband been given a sworn financial statement, with all balances inserted, that he would not have settled the matter any differently. It was clear that he wanted his cash settlement fast. It was clear that he was using the threat of equalizing the Wife’s pension to get it.
[64] Given that the Wife does not seek to set aside the Separation Agreement, the failure of the Husband to disclose his significant assets and liabilities is not relevant. Nonetheless, the court does recognize that the Husband’s sworn financial statement from the Earlier Application was also deficient, but to his advantage.
B. Understanding Nature and Consequences
[65] It is not alleged that the Husband did not understand the nature and consequences of signing the Separation Agreement. On the contrary, the Husband stated repeatedly during his evidence that he just wanted the matter to be over. He understood that this was to be a final agreement on their parenting and financial issues. That is what he wanted – finality.
C. Principles of Contract
[66] The ordinary principles of contract law apply to domestic contracts. Accordingly, domestic contracts can be set aside on the basis of undue influence or duress at the time of signing, unconscionability, mistake as to an essential element, fraud or material misrepresentation, repudiation of a term in the contract, or a lack of complete or adequate legal advice: M.O. v F.S., 2019 ONSC 5091, at para. 178; Dochuk v Dochuk (1999), 1999 14971 (ON SC), 44 R.F.L. (4th) 97, at para. 3.
i. Position of the Parties
[67] The Husband is relying not only on the failure of the Wife to provide full and frank financial disclosure, but also on the general inequity of the Separation Agreement, based on the principles set out in Rick. I would equate this to an argument of unconscionability.
[68] The Husband alleges verbal abuse by the Wife. He has provided the court with a number of undated texts from the Wife which he claims were after separation, which we know were sent a few months after the Separation Agreement was signed. They denigrate the Husband’s parenting, call him selfish, cheap, a liar and cheat, and a parasite, all of which the Wife admits. The Husband alleges the verbal abuse was in front of his parents and the children. The Husband states the atmosphere in the Matrimonial Home became so tense that he and his parents moved to the basement of the Matrimonial Home following separation. The Husband also states that when he told the Wife that he was ending the marriage, she destroyed all his shirts and some of his documents. He further alleged that, following the Wife being served with the court documents from the Earlier Application, the situation at home got worse. He alleges that the Wife refused to let the children visit him in the basement, M.J. wouldn’t talk to him or be photographed with him, and the Wife harassed the Husband’s parents.
[69] The Husband also states that he signed the Separation Agreement in intimidating circumstances, in that the Wife and his nephew was present. He states, “I felt like a beaten man, beaten into submission by the [Wife]’s unending accusations and insults, I was sleep-deprived, my health was suffering, I had no money, I was depressed.” He stated that Mr. Slater never asked him if he understood or if he had any questions.
[70] The Husband also alleged that the signing was very rushed. He states he did not see the agreement until June 11, 2020, which was 3 days before it was signed. The Wife then asked Mr Slater to make a few more changes, which was forwarded to the Husband at 7:41 p.m. on June 13, 2018. It was signed at approximately 12:30 p.m. the next day.
[71] The Husband also claims his English is limited and he didn’t have time to digest the contents of the agreement or have a lawyer review it for him. He said no one explained the terms to him and that he felt under pressure to sign it because he was worried about money. The Husband also now states that some of the statements in the Separation Agreement are not true, mostly surrounding the language that speaks to financial disclosure.
[72] In response, while the Wife admits the texts, she maintains they were not so intimidating such that the Husband’s negotiation and signing of the Separation Agreement should be set aside. She also adamantly denies that she verbally abused the Husband and maintains she was the victim – of an alleged affair and of the precarious financial position they found themselves in and which she primarily assumed following separation.
ii. Law
[73] In M.O., the court did an analysis of what is considered unconscionable in the matrimonial context, after considering the principles set out in Miglin and Rick. In summary, Horkins J. stated:
[183] 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”.
[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. 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”.
[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”.
[186] 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. However as stated in Brandsema, at para. 61 it is a question of fact in each case:
… Given that vulnerabilities are almost always present in these negotiations, the parties’ genuine wish to finalize their arrangements should, absent psychological exploitation or misinformation, be respected. One way to help attenuate the possibility of such negotiating abuses is undoubtedly through professional assistance. But exploitation is not rendered anodyne merely because a spouse has access to professional advice. It is a question of fact in each case.
[Citations omitted.]
iii. Analysis
[74] In the circumstances of this case, I do not find that the negotiation and signing of this Separation Agreement results in an agreement that is unconscionable.
[75] As can be seen in the case law, the focus of unconscionable circumstances is not the result of the agreement, but on the circumstances surrounding the negotiation and signing.
[76] I find no support for the Husband’s position that he did not understand what he was signing due to his poor grasp of the English language. As indicated previously, he functions daily in the English language, and did not seek a translator at trial.
[77] Further, while the husband was off work earlier in the year, he was back at work in the month before the signing of the Separation Agreement, and agreed that he was not diagnosed with any mental health ailment at that time.
[78] Also, there is evidence of back and forth communication between the parties regarding the terms of the agreement, which were not one-sided. The Husband is the party who sought out Mr. Slater and EZ Divorce. It was the Husband who was pushing the Wife to met with Mr. Slater, to make an appointment to sign the Separation Agreement and to pay him $100,000.
[79] I do not find that the e-mails sent by the Wife to the Husband, where she denigrates his character, or the Wife’s allege treatment of the Husband, to be such that it vitiates the Husband’s voluntary consent to the terms of the Separation Agreement. The evidence presented at trial simply does not support the Husband’s position that the Wife’s conduct caused him to “crack”.
[80] Also, although the Husband was surprised by his nephew being present at Mr. Slater’s office, he admitted that he went to see the lawyer that day with the intention of signing the agreement because he wanted to put an end to the conflict. Nothing changed by virtue of his nephew being present.
[81] In addition, the Husband was working at this time. He was not financially dependent on the Wife. Even while off from work, he had access to short-term and long-term disability benefits. In addition to his several jobs, he also had a small company in Philippines earning income and farm property for which he held title and which he expected to inherit.
[82] The Husband was not in a subordinate bargaining position. It was important to him to retain both his pensions and he obtained that. He was also negotiating out of his responsibility for significant family debt. Finally, the Husband was still living in the Matrimonial Home with his family at that time. Given that the Wife wanted the Matrimonial Home and he could not be forced to leave without his consent, he held the stronger negotiating position.
[83] I have no doubt that the tension in the home was extreme, but in April and May, the Husband was in a stronger position legally. He had started the court Application. He had the right to bring a motion and seek full financial disclosure. He had the right to bring a motion and force the sale of the house. He had a lawyer on retainer ready to do this for him if he provided the instructions to do so. His evidence was clear at trial: his Wife treated him horribly, it was a stressful environment, and he just wanted to end the negotiations and get on with his life. This does not amount to unconscionable circumstances in which to sign a separation agreement.
D. Duress
[84] At the commencement of trial, the Husband indicated that he is alleging duress, but is not relying on it to set aide the Separation Agreement. Nonetheless, I have found no evidence of duress, such that it would justify the setting aside of a Separation Agreement.
[85] As stated in M.O., duress involves the coercion of the will of one party or directing pressure to one party so that they have no realistic alternative but to submit to the party: para. 196, citing Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72.
[86] As stated in Ludmer, at para. 53:
Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. 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. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.
[87] There is no evidence that the Husband was subjected to this type of coercion. Accordingly, these arguments have no impact on the validity of the Separation Agreement.
E. Exercise of Discretion
[88] I have determined that the Husband has not satisfied the first part of the LeVan analysis. Even if he had, I would not, in these circumstances, exercise my discretion and set aside the Separation Agreement.
[89] When exercising my discretion, it is appropriate that I consider the following:
a) Whether there was concealment of an asset or a material misrepresentation: Dochuk, at para. 18;
b) Whether the responding party refused to provide financial disclosure or misrepresent or conceal financial facts: J.L.S., at para 32; Baxter v. Baxter (2003), 2003 1992 (ON SC), 41 R.F.L. (5th) 23, at para. 6.
c) Whether the petitioning party neglected to pursue full legal disclosure: Dochuk, at para. 18;
d) How important the non-disclosed information would have been in the negotiations: Dochuk, at para. 19; J.L.S., at para. 32;
e) Whether the petitioning party consented to incomplete disclosure, or was otherwise aware of the asset and had means to ascertain its value: J.L.S., at para. 32;
f) Whether there has been duress or unconscionable circumstances: Dochuk, at para. 18; J.L.S., at para. 32; Baxter, at para. 6;
g) Whether the petitioning party moved expeditiously to have the agreement set aside: Dochuk, at para. 18; Baxter, at para. 6.
h) Whether the petitioning party obtained substantial benefits under the agreement and then moved to set it aside: Dochuk, at para. 18; J.L.S., at para. 32;
i) Whether the other party fulfilled their obligations under the agreement: Dochuk, at para. 18;
j) Whether the parties had independent legal advice: Rosen v. Rosen (1994), 1994 2769 (ON CA), 18 O.R. (3d) 641 (C.A.); and
k) The overall fairness of the Separation Agreement: LeVan, at para. 60; Baxter, at para. 6.
[90] After considering these factors, I would not find this is an appropriate situation in which to exercise my discretion and set aside the Separation Agreement.
[91] I made this decision for a number of reasons. I have already indicated that the parties were aware of each other’s significant assets and debts. In addition, the parties complied with the property terms of the agreement, in that the house was transferred and the Husband accepted the sum of $100,000. This settlement was challenged only because the Wife then started new litigation in the Small Claims Court to pursue debts for which she felt she was owed, despite the agreement. The Father commenced this Application shortly thereafter.
[92] I have also considered the reasons of Rick, which stated that the court will consider instances of defective disclosure and the degree which it as deliberately generated: at para. 49. In this case, there is no evidence that the Wife deliberately misled the Husband as to her assets. They discussed their settlement over several months. He knew the approximate value of the Wife’s pension. No settlement was forced on the Husband, and if anything, he appeared to be the one pressuring the Wife to settle the matter.
[93] The Husband also had access to his own lawyer, who remained retained until late May 2018. The Husband chose not to consult him. In addition, by the Husband’s own evidence, he thought Mr. Slater was his and the Wife’s lawyer. He had Mr. Slater’s contact information and was free to contact him as much as he wanted. He chose not to do so.
[94] Finally, I find that the settlement reached by the parties was fair and reasonable.
[95] As indicated, it is clear that the parties were trying to resolve their financial issues on the basis that each would retain their own pension. This is clear from the texts between the parties and admitted by the Husband at trial. Accordingly, once the parties’ pensions are removed from the equalization calculation, the settlement amount makes eminent sense.
[96] At trial, the Husband’s financial statement indicates that he has a net family property value of $483,428.68. When the net value of his pension is removed, his net family property value is $413,061.15. In the Wife’s financial statement filed for this trial, her net family property value is $376,586.78. When the net value of her pension is removed, her net family property value is $118,253.72. Based on an equal split of the value of the Matrimonial Home, the Husband would therefore be required to pay the Wife an equalization payment of $147,403.72.
[97] With respect to the Matrimonial Home, it was valued at $965,000. The total joint debt, both secured and unsecured, that the Wife assumed upon signing the Separation Agreement, totalled approximately $448,000. Accordingly, the net value of the Matrimonial Home was $517,000. Therefore, to purchase the Husband’s interest, the Wife would have to pay the Husband the sum of $258,000. If the Husband’s equalization payment of $147,403.72 was deducted, the Wife would only need to pay the Husband the sum of $110,59328. She paid him $100,000. Given that the Husband has admitted to significantly undervaluing his income for child support purposes for the first year, as detailed below, the deal struck between the parties is reasonable and fair.
IV. Child Support
[98] The parties agreed, in the Separation Agreement, that the Husband would pay child support in the sum of $1,200 per month, plus his proportionate share of s. 7 expenses and a contribution to the children’s RESP. This was based on his income of $80,000 and the Wife’s income of $96,893. The Separation Agreement also carries the usual clause that child support was to be adjusted on a yearly basis. The Wife seeks an adjustment from June 1, 2019, the year anniversary of the Separation Agreement, based on the Husband’s higher income.
[99] The Wife concedes that she has not specifically sought a variation in child support in her Answer, but seeks an order of the court varying child support in accordance with the Husband’s income, and pursuant to the Separation Agreement.
[100] Paragraph 9(f) of the Separation Agreement states:
(f) Once per year, the husband and the wife shall review and adjust the child support arrangement in this Agreement in light of their then current income and, if they do not agree about any change, they will use the dispute resolution sections of this Agreement to resolve the issues.
[101] The dispute resolution section of the Separation Agreement requires the parties to negotiate first, either themselves or through counsel. The use of a mediator is optional.
[102] In responding to this allegation, the Husband never demanded that the parties resort to mediation first. Both parties were aware that the Wife would be seeking a variation in child support at trial. The parties made disclosure regarding their ongoing income and the issue of the Husband’s income was vigorously disputed at trial. A yearly review was required by the Separation Agreement, if not pursuant to the Child Support Guidelines, SOR/97-175 (“CSG”). The parties were already involved in this litigation since the first review date. It is appropriate that this issue be determined at this time to avoid the time and cost of another legal proceeding being commenced. This is in keeping with the primary objective of the Family Law Rules, O. Reg. 114/99, rr. 2(2), 2(3), of dealing with cases in a just manner, which includes being fair to all, and being cost and time efficient.
A. Husband’s Income
[103] At the time of the separation, the Husband worked as an environmental support assistant. He had a second part-time job as a personal support worker.
[104] According to his tax returns, in 2017, the Husband earned $65,344.22 in employment and RRSP income, but due to a loss of $19,946 from his Uber and Uber Eats enterprises, his total income was only $46,166.61.
[105] It is clear, and the Husband concedes that, this is not an accurate picture of his income from 2017. He concedes that he has not declared income from his work with Access Rehab, where he acts as a P.S.W., or as an agent arranging for P.S.W. services. There is also additional income from his business at Kiam Tran, which used to be shared by both parties. Of note is that when the Husband swore his financial statement in the Earlier Application on March 29, 2018, he disclosed two places of employment, plus self-employment, for a total monthly income of $9,167, or $110,004 per year. The financial statement was prepared with the assistance of counsel. At trial, the Husband agreed with his evidence given at his questioning earlier that in 2017, he actually earned approximately $110,000.
[106] As for 2018, the Husband has admitted that he earned more than is declared as “total income” in his income tax return for that year. In his tax return, the Husband declares that he earned $41,564.47 in income and other benefits, but due to a loss of $16,709 from his Uber, Uber Eats and Lyft enterprises, his total income was only $24,855. Despite this, in cross-examination, the Husband admitted that his income was actually $110,000 in 2018. In his tax return, he had not declared his income from Access Rehab, where he provides P.S.W. services or acts as a broker for other P.S.W.s. He then changed his evidence and indicated that he did not earn that much in 2018. When confronted with his sworn evidence at his questioning, the Husband changed his evidence again and admitted to making $112,000 in 2018.
[107] In 2019, the Husband declared that he earned $54,465.95 in income, but claimed a loss of $6,400 from his Uber, Uber Eats and Lyft enterprises, for a total income of $48,065. Despite this, the Husband admitted that he has many sources of income:
a) He works full time at West Park Health Centre;
b) He works part time for Sienna Senior Living, at two different locations;
c) He acts as a broker for Access Rehab, where he gets P.S.W. work for himself or gives it out to other P.S.W.s for a fee. During his questioning, he estimated this income as approximately $24,000 per year; he admits that any cash income from this business is not declared;
d) He declares income as an Uber driver or delivery person but “writes off” more expenses than income;
e) He operates L&M Personal Support Services, where he obtains private P.S.W. contracts, which he estimates allows him additional income of $400 per month, which is not declared.
f) He also earns income from Kiam Trans which stays in the Philippines. The Wife stated that every year they would visit family in the Philippines and they would collect their yearly income of about $15,000; according to the Separation Agreement, this income is now to be for the children, but with access by the Wife and Husband; and
g) He and his sister own farm property in the Philippines, but he maintains the income is kept by his parents, and he only owns the land as part of his parents’ estate planning.
[108] Based on the Husband’s evidence only, his employment income in 2019 was $54,465 and he earned an additional $24,000 from Access Rehab, $4,800 from L&M Personal Support Services, and an amount from Kiam Trans, which the Wife estimated to be $7,500 each, and for which he provided no other evidence. He claimed no income from Uber and Lyft in 2019, but wrote off $6,400 in expenses reducing his income. If that $6,400 was added back into his income, the evidence establishes that the Husband earned approximately $97,000 in 2019. That does not account for any income from the family farm in the Philippines, which he admits is owned by him and his sister. It is also important to note that the deposits associated with Access Rehab exceed $24,000 but the Husband claimed he pays others out of those deposits. His disclosure and evidence regarding his Access Rehab income was unclear and disorganized.
[109] As of September 27, 2020, the Husband had earned $35,484 in employment income, putting him on track to earn approximately $47,000 in 2020. I received no evidence about any losses associated with Uber or Lyft. In his financial statement sworn October 15, 2020, he states he earns $57,132.72. It is acknowledged that the Husband will not earn any income from his part-time P.S.W. job at Sienna Senior Living during the pandemic as he is not permitted to work at more than one long-term care facility due to COVID-19 restrictions. Unfortunately, no evidence was given as to what portion of his past income was attributable to this employer. Otherwise, I see no reason to assume his income will be any different in 2020.
B. Wife’s Income
[110] The Wife is a nurse who is employed at West Park Healthcare Centre. Her income is straightforward. Over the last few years, she has earned the following amounts:
Year
Income
2017
$96,893
2018
108,412 ($15,000 in RRSP)
2019
$102,926
[111] As of October 11, 2020, she had earned $96,874, putting her on track to earn $122,000 in 2020.
C. Position of the Parties
[112] The Wife is seeking a variation of child support from the first review date as per the Agreement, which would be June 2019.
[113] She is seeking an order that 2018 income be imputed to the Husband in the sum of $281,910; for 2019, that it be imputed at $173,320; and for 2020, that it be imputed at $255,000.
[114] The Husband’s position is that the Wife’s claims of hidden income are not realistic.
D. The Law
[115] Under s. 19 of the CSG, the court can impute income to a party in a number of circumstances. In the case before me, the following provisions, which apply equally to parents of children, are applicable:
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[116] The Husband has admitted to earning income of $110,000, and then of $112,000 in 2018. His child support obligations commencing 2019 should reflect this income. In 2019, I see no reason to assume he would make any less. As for his 2020 income, I do find that his income will be slightly less as he would be unable to work as a P.S.W. at his second place of employment. Given that it was only part-time, a small reduction is appropriate, but not much as he would be able to make up that time with any number of his income earning ventures.
[117] Unfortunately, although the Husband’s disclosure regarding his income is less than ideal, I am not satisfied that he earns the level of income asserted by the Wife. Accordingly, I impute income to the Husband at $112,000 for 2018 and 2019, which results in child support in the sum of $1,618, and then at $100,000 for 2020, which results in the sum of $1,471 per month. I assume that when COVID restrictions are lifted, the Husband’s income will revert to pre-2020 levels.
E. Section 7 expenses
[118] The Separation Agreement states that the parties will pay their proportionate share of agreed-upon section 7 expenses. The Wife has provided a number of receipts, some of which are appropriate section 7 expenses. Unfortunately, the Wife has provided no evidence that the Husband agreed upon any of them. If the Wife insists upon compliance with the Separation Agreement, then that would apply to the entire agreement. Accordingly, the court will make no order with respect to these expenses.
V. Credit Card Debt
[119] Given that the Separation Agreement has been upheld, I find that the Wife is unable to pursue the Husband for the credit card debt. She is the primary card holder on these accounts. Paragraph 17(d)(i)2 of the Separation Agreement indicates that each is responsible for their own debts regardless of when they occurred. Accordingly, she cannot pursue the Husband’s share of these debts, even for post-separation charges. Obviously, she cannot pursue child support arrears in Small Claims Court, without prejudice to her right to pursue same pursuant to the Family Law Act and Family Law Rules.
[120] The Separation Agreement does not prohibit the Wife from pursuing the debts owed to her by her mother-in-law and the Husband’s nephew, but it should be remembered that they are joint debts and anything she recovers should be split equally, or she is only entitled to half of the repayment.
VI. Conclusion
[121] Accordingly, for the foregoing reasons, I make the following orders:
a) The Husband’s request, that the Separation Agreement of June 14, 2018 be set aside, is dismissed;
b) Commencing June 1, 2019, the Husband is to pay to the Wife child support for the two children of the marriage, in the monthly sum of $1,618 based on his imputed income of $112,000;
c) Commencing June 1, 2020, the Husband is to pay to the Wife child support for the two children of the marriage, in the monthly sum of $1618, based on his imputed income of $112,000;
d) Commencing June 1, 2021, the Husband is to pay to the Wife child support for the two children of the marriage, in the monthly sum of $1,471, based on his imputed income of $100,000;
e) The Wife’s claim for payment by the Husband for credit card debt is dismissed;
f) The parties are encouraged to resolve the issue of costs as between themselves. If they are unable, the Wife is to serve and file her written costs submissions, limited to 2 pages, single-sided and double spaced, exclusive of Costs Outline, no later than July 2, 2021; the Husband is to serve and file his responding written submissions, with the same size restrictions, no later than July 16, 2021; any reply submission by the Wife should be served and filed by July 23, 2021; and
g) The remainder of the claims by both parties are dismissed.
Fowler Byrne J.
Released: June 15, 2021
COURT FILE NO.: FS-18-93140
DATE: 2021 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NORIEL GAPATE GABUCAYAN
Applicant
- and -
AMANDA GABUCAYAN
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: June 15, 2021