COURT FILE NO.: FC-17-1323
DATE: 2021/01/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
Respondent
Susan Charendoff
Respondent
Stephen Victor, Q.C. and Kathleen McDormand, for the Applicant
Daniel Schwartz, Erin Pleet, and Marta Siemiarczuk, for the Respondent, Steven Eric Cohen in his capacity as Trustee of the Estate of Sidney Cohen, Deceased
Susan Charendoff, Self-represented (on the return of the motions) and making no submissions
HEARD: January 5, 2021 by Zoom
rULING on motionS
corthorn J.
Introduction
[1] The applicant (“Barbara”) and the late Sidney Cohen (“Sidney”) were married on July 1, 1986. On June 30, 1986, they entered into a marriage contract (“the Contract”). In 2008, they entered into an agreement, amending the Contract (“the 2008 Agreement”), which relates to the matrimonial home. Barbara and Sidney remained married until January 2017, when Sidney passed away.
[2] In June 2017, Barbara commenced this proceeding under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and an application under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). In the former, Barbara seeks an equalization of net family property; in the latter, she advances a dependant support claim. In 2018, an order was made consolidating the two proceedings.
[3] In 2019, however, a bifurcation order was made. The parties are scheduled to proceed, in March 2021, to what they describe as “Phase One” of the trial. The sole issue to be determined in Phase One is set out in the July 2019 ruling of Audet J. on the respondent Estate’s motion for bifurcation: Cohen v. Cohen, 2019 ONSC 4456 (“Cohen”). At para. 59, Audet J. ordered that the consolidated proceeding would be bifurcated, “such that the determination of the validity and enforceability of the Marriage Contract entered into by the applicant, Barbara Cohen and the deceased, Sidney Cohen (“the Issue”), forms the first trial with all other issues to be determined at a second trial”. [^1]
[4] Questioning with respect to the Issue was conducted in late 2019 and early 2020. The individuals questioned were Barbara, Steven Cohen in his capacity as Trustee of the Estate of Sidney Cohen, deceased (“the Estate”), and Kenneth Radnoff, Q.C.
[5] Mr. Radnoff met with Barbara on June 30, 1986, before she signed the Contract. Questioning of Mr. Radnoff was ordered following a motion by the Estate heard in late 2019: Cohen v. Cohen Estate, 2020 ONSC 88.
[6] The parties are unable to resolve all of the refusals and questions taken under advisement that arose during Questioning. Each of Barbara and the Estate bring a motion to compel the other to answer the unresolved questions refused or taken under advisement. From the Questioning of the Estate Trustee, the court is asked to rule on seven refusals and six questions taken under advisement. From the Questioning of Barbara, the court is asked to rule on six refusals.
[7] In addition, the Estate requests directions with respect to Questioning of Barbara on the contents of 500 pages of documents disclosed by her in early December 2020. These documents relate to the breakdown of Barbara’s first marriage. They include copies of the documents in the court file for the proceeding commenced by Barbara’s first husband (“the Documents”). When questioned, Barbara refused to produce the Documents. She subsequently produced them, without waiving her objection on the basis of lack of relevance.
[8] The relevance of a question is determined in large part based on the nature of the claims advanced and the defences to those claims, as set out in the parties’ respective pleadings. It is therefore helpful to review Barbara’s claims, the Estate’s defences to them, and the applicable legal principles. At this stage of the proceeding, the relevance of a question is also determined by the Issue.
Phase One of the Trial
[9] In support of her request that the Contract be set aside, Barbara relies on s. 56(4)(b) and (c) of the FLA. Section 56(4) of the FLA provides that,
[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.
[10] To determine the claims asserted under that section, the trial judge will follow a two-step process. In LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 51, the Ontario Court of Appeal described the two-step process as follows:
The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk. First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case. [Citations omitted.]
[11] Assuming that a party is successful in overcoming the “hurdle” of the first step, what factors does the trial judge consider when determining whether to exercise his or her discretion to set aside a domestic contract? The exercise of the court’s discretion in that regard “pivots on the facts of each case”: Dochuk v. Dochuk, 1999 CanLII 14971 (ON SC), [1999] O.J. No. 363 (Ont. C.J.), at para. 17, quoting from Demchuk v. Demchuk, 1986 CanLII 6295 (ON SC), [1986] O.J. No. 1500 (Ont. H.C.).
[12] Barbara’s claims with respect to the invalidity of both the Contract and the 2008 Agreement are set out in paras. 17-20 of the Further Amended Application.[^2] In summary, Barbara claims as follows:
• The Contract and the 2008 Agreement were not prepared in an effort to anticipate her needs (para. 17);
• Barbara did not understand the nature or consequences of either document (paras. 18b and 19b);
• Barbara did not receive “proper independent legal advice” regarding either document (paras. 18c and 19c);
• Sidney exerted undue influence on Barbara to sign the documents (paras. 18d and 19d);
• There existed an inequality in bargaining power between Barbara and Sidney in both 1986 and 2008 (paras. 18e and 19e); and
• The terms of the Contract and of the 2008 Agreement are unconscionable (paras. 18f and 19f).[^3]
[13] In her pleading, Barbara also alleges that Sidney failed to disclose assets both in 1986 and 2008 (paras. 18a and 19a). Barbara is not, however, relying on s. 56(4)(a) of the FLA with respect to the Contract and Phase One of the trial.
[14] The Estate delivered an Amended Answer to the Consolidated Proceeding.[^4] The Estate’s defences include that Barbara received independent legal advice with respect to both the Contract (paras. 13-16) and the 2008 Agreement (paras. 40-44). The Estate denies that undue influence was exerted on Barbara, that either the Contract or the 2008 Agreement are unconscionable, or that there was any inequality of bargaining power in either 1986 or 2008 (paras. 17, 23-27, and 32-50).[^5]
[15] The Estate also raises a limitation defence in response to Barbara’s request for an order setting aside the Contract. That defence is set out at para. 64 of the Estate’s pleading:
August 22, 2008, the date that Barbara executed the Amending Marriage Contract at Mr. Steinberg’s Office, is the latest possible date that Barbara discovered the alleged injuries, losses and/or damages that she now claims as a basis for setting aside the Marriage Contract in the FLA Application. The Estate pleads that Barbara discovered same much earlier. Barbara’s application pursuant to s. 56(4) of the FLA to set aside the Marriage Contract is barred and must be dismissed pursuant to the Limitations Act 2002 (and any applicable predecessor legislation).[^6]
[16] On the motions now before the court, the Estate takes the position that the limitation defence is to be determined during Phase One of the trial, because that defence goes to the “enforceability” of the Contract.
[17] I turn first to the Estate’s and then to Barbara’s motion.
1) The Estate’s Motion
[18] The six refusals addressed on the Estate’s motion are divided into two categories:
• Documents and information related to the breakdown of Barbara’s first marriage; and
• Documents and information related to conversations or consultations that Barbara had in or after 2008 with her family physician (Dr. Edwards) and a counsellor (Ms. Wexler).
[19] With respect to the second bullet point, when questioned, Barbara said that she spoke with her family doctor and the counsellor about the Contract, the 2008 Agreement, and the circumstances surrounding the signing of those documents.
a) The Breakdown of Barbara’s First Marriage
[20] The four refusals related to the documents and information arising from the breakdown of Barbara’s first marriage are as follows:
P. 92, Q. 517 To produce a copy of any separation agreement or any divorce agreement between Mrs. Cohen and her first husband Joel Palmer.
P. 93, Q. 519(i) To advise what the court file number was for Mrs. Cohen’s divorce proceedings.
P. 93, Q. 519(ii) To produce any document in Mrs. Cohen’s power, possession, or control relating to her separation or divorce from her first husband Joel Palmer.
P. 93-94,
Q. 519(iii) To produce a copy of any correspondence that she exchanged with her lawyer Lynn Thompson, or whoever her partner was, in relation to the first divorce and separation.
[21] Subsequent to Questioning, Barbara produced a complete copy of the documents in the court file for the 1981 divorce proceeding commenced by her former husband (“the Documents”). She did so without waiving her objection on the basis of lack of relevance. Barbara acknowledges, however, that the court file number and the Documents are a matter of public record.
[22] The Estate seeks the complete production of all relevant, non-privileged documents in response to the four refusals related to the breakdown of Barbara’s first marriage. The Estate’s request stems in part from Barbara’s inability to answer questions on that subject.
[23] For example, Barbara initially did not recall whether she and her former husband entered into a separation agreement.[^7] Thereafter, Barbara provided the name of her lawyer and responded, as follows, to a question about how many times she met with that lawyer: “Not that many, but I know they ultimately made up a pretty good settlement agreement, but he never – my ex-husband never honoured it.”[^8] Barbara does not know whether her first husband ever signed the/a separation agreement.[^9]
[24] Barbara was unable to explain how she ended up as the owner of the matrimonial home she had shared with her first husband. She knew, however, that prior to the separation it was owned solely by her ex-husband or by the two of them jointly.[^10] Otherwise, Barbara “did not recall too much about the separation finances.”[^11] She said that her ex-husband did not pay her anything in connection with either the separation or the divorce.[^12]
[25] Barbara said there were no court proceedings; she and her first husband never went to court at all.[^13] Barbara did not recall what the grounds for divorce were or if there was a “divorce agreement”.[^14]
[26] The questions posed with respect to Barbara’s divorce from her first husband commence at P. 85, Q. 483 of the transcript. The questions on that subject number in excess of 30 and continue on the next six pages of the transcript.[^15] Barbara did not object to answering any of those questions.
[27] No such objection was made until the Estate’s counsel requested a copy of any separation agreement or divorce agreement between Barbara and her first husband. Barbara’s counsel objected to that request on the basis of lack of relevance to the Issue. The objection to the production of other documents and information related to the breakdown of Barbara’s first marriage is on the same basis – lack of relevance.
[28] On the return of the Estate’s motion, Barbara expanded on the basis for the refusal to answer the four questions listed above. Her position is that the 1981 proceeding is not relevant to Phase One because of the differences between the governing legislation in 1981 (the Family Law Reform Act, R.S.O. 1980, c. 152) and that in 1986 when the Contract was signed (the FLA). I am not convinced that the difference, from 1981 to 1986, in the governing legislation is sufficient, on its own, to support a conclusion that documents and information related to the breakdown of Barbara’s first marriage are irrelevant to the Issue.
[29] If the court determines that those documents and that information are relevant, then Barbara makes two additional submissions. First, she submits that the Documents are all of the documents in her possession with respect to the breakdown of her first marriage. Second, she asks the court to consider the principles of proportionality with regard to what she is being asked to produce. Barbara submits that, in the circumstances, it is disproportionate to require her to make inquiries of others in an effort to locate and retrieve files and documents that are almost thirty years old.
[30] The Estate’s position is that Barbara’s knowledge of, understanding of, and experience in family law matters is “very relevant”.[^16] For example, the Estate points to the fact that, in 1981, Barbara signed a separation agreement, which is a form of domestic contract. From the Documents, the Estate is now aware that Barbara also signed minutes of settlement in the divorce proceeding.
[31] I agree with the Estate that Barbara’s knowledge of, understanding of, and experience with family law matters, including domestic contracts, is relevant to the issue of whether Barbara understood the “nature or consequences” of the Contract (i.e., within the meaning of s. 56(4)(b) of the FLA).
[32] In Milne v. Milne, 2019 ONSC 459 (“Milne”), Ms. Milne sought to set aside a separation agreement signed by the parties in 2015, so that she could advance a claim for spousal support. Ms. Milne relied on s. 56(4) of the FLA, alleged that a reconciliation had occurred, and relied on s. 33(4) of the FLA in alleging that the separation agreement was unconscionable. The separation agreement provided for a lump sum payment towards and time-limited monthly payments of spousal support. It also included releases in full for spousal support and property claims.
[33] Mr. Milne was partially successful on a motion for summary judgment, and the claim under s. 56(4) of the FLA was dismissed. The motion judge concluded that the issues of an alleged reconciliation and unconscionability needed to be determined at trial: Milne, at para. 8.
[34] In support of her claim under s. 56(4), Ms. Milne alleged that she did not receive independent legal advice before she signed the separation agreement. She had signed a waiver of independent legal advice, but in the end received advice from a lawyer. That lawyer recommended to Ms. Milne that she not sign the separation agreement. Regardless, Ms. Milne signed the document. Thereafter, the lawyer sent Ms. Milne what the motion judge described as a “carefully drafted” reporting letter: Milne, at para. 47.
[35] The motion judge was aware of a finding made by a judge in the British Columbia matrimonial proceeding in which Ms. Milne was involved approximately 20 years earlier under the name “Nadia Hama”: Hama v. Werbes, 2001 BCSC 881. In the B.C. proceeding, Ms. Hama attempted to set aside a 1996 pre-nuptial agreement on the grounds that she was unfamiliar with how such agreements worked. The B.C. trial judge concluded, at para. 156, that the suggestion that Ms. Hama was, in 1996,
a neophyte and one who was unfamiliar with the machinations of such agreements, is not tenable. To the contrary, Hama presented as a very intelligent, calculating individual, quite capable of negotiating the best deal possible and weighing both the risks and the opportunities of the situation at hand.
[36] The B.C. trial judge concluded that Ms. Hama had a complete understanding of the 1996 pre-nuptial agreement – including its ramifications and with the benefit of full access to counsel.
[37] On the motion for summary judgment in the Ontario proceeding in 2019, the presiding judge concluded that “if Ms. Milne was a knowledgeable party in 2001, there is no reason to believe she did not remain so in 2015” when she signed the separation agreement: Milne, at para. 50. The alleged lack of independent legal advice was therefore not an issue that required a trial.
[38] The fact that the divorce proceeding with respect to Barbara’s first marriage was commenced almost 30 years ago does not detract from its relevance to the Issue. I find that Barbara’s familiarity with “the machinations” of domestic contracts and the documents in the 1981 court file are relevant to the Issue. Barbara’s experience in that regard is relevant to the first step in the two-step process described above. If Barbara overcomes the hurdle of the first step, her experience in that regard may also be relevant to the second step in the process.
[39] Therefore, Barbara shall answer the following questions: P. 92, Q. 517; P. 93, Q. 519(i); and P. 93, Q. 519(ii). The production of the Documents constitutes a complete answer to QQ. 517 and 519(i) and a partial answer to Q. 519(ii).
[40] Question 519(ii) is a request for Barbara to produce “any document in Mrs. Cohen’s power, possession or control relating to her separation or divorce from her husband” (emphasis added). On the return of the Estate’s motion, Barbara’s position was that the Documents are all such documents in Barbara’s “possession”. I note that in the December 4, 2020 letter under which the Documents were produced, Barbara’s counsel said that the Documents are all of the documents in Barbara’s “possession or control”[^17] (i.e., distinguishing between “possession” and “control”).
[41] Neither in that letter nor on the return of the motion did Barbara’s counsel address the subject of documents in Barbara’s “power” related to Barbara’s separation or divorce from her first husband. There is no evidence from Barbara or the Estate as to what additional documents related to that separation and divorce may exist and be within Barbara’s power – other than the Estate’s request for copies of correspondence between Barbara and her lawyer regarding the 1981 proceeding (i.e., the fourth refusal in this category, at P. 93-94, Q. 519 (iii), and which is discussed below).
[42] I find that Barbara has produced copies of all documents available from the court file for the 1981 proceeding. In a letter dated December 7, 2020 addressed to Barbara’s counsel, the Estate’s counsel identified two pages (of the 500 produced) that appear to be completely redacted.[^18] No explanation for the alleged redactions is before the court.
[43] Barbara shall produce completed, unredacted copies of those pages. If those pages have not been redacted, Barbara shall provide an explanation for their appearance. Lastly, if Barbara is maintaining privilege over the contents of those pages, she shall provide the basis of the claim for privilege and a summary description of the nature of the documents.
[44] Included as Exhibit “H” to the December 7, 2020 Parrell Affidavit is an index to the Documents. More than 35 documents are listed therein. These documents include the record filed with respect to the first husband’s petition for divorce, the parties’ respective statements of financial information and statements of property, an affidavit from each of the parties, minutes of settlement, and orders.
[45] A copy of a 1978 separation agreement between Barbara and her first husband is an exhibit to an affidavit Barbara filed in the 1981 proceeding. The separation agreement is 15 pages long. It includes affidavits of subscribing witnesses: Allyne F. Thomson for Barbara and “G.R. Morin” for the first husband.[^19]
[46] The Documents identify that, in the 1981 divorce proceeding, Barbara was represented by Fred Cogan, of Cogan and Cogan, and her first husband by Leonard Levencrown. The backing page of the minutes of settlement bears the Cogan & Cogan firm name. The minutes of settlement address child support, a release from the terms of the separation agreement, a release by the ex-husband of any claim that he might have in the matrimonial home, and a lump sum payment by the ex-husband to Barbara.
[47] Returning to the separation agreement, it appears that, in 1978, Allyne F. Thomson was practising at Gowling & Henderson, as the firm was then known. The back page to the separation agreement bears that firm’s name and the initials “AFT”.
[48] I take judicial notice of the fact that lawyers and law firms make arrangements to store closed files – either on site or through a storage company. Whether Gowling WLG (as the firm is now known) still has a closed file for the negotiation of a separation agreement in 1978 can easily be determined. An inquiry can be made of that firm. If the file is still in storage, it can be retrieved and provided to Barbara.
[49] Similar inquiries can easily be made of other firms, if any, at which Ms. Thomson is known to have worked subsequent to 1978 (and to which she may have transferred the relevant file).
[50] If Gowling WLG and/or any other firm either does not have the file or is unable to locate it in storage, then the inquiry is at an end.
[51] I find it proportionate to require Barbara to make those inquiries. First, the contents of the lawyer’s file with respect to the negotiation of the 1978 separation agreement are relevant to the Issue. Second, the value of the Estate is estimated to be in excess of $24,000,000. The time and effort required to make the inquiries is reasonable and proportionate in this matter.
b) The Records of Dr. Edwards and Ms. Wexler
[52] The second category of refusals relates to conversations and consultations Barbara had with her family physician and a counsellor at or subsequent to the time when she was negotiating the terms of and entered into the 2008 Agreement:
P. 306, Q. 1404 To ask Dr. Edwards and Ms. Wexler to review their files and produce any notes or any other information regarding any conversations that they had with Mrs. Cohen about the marriage contract, the amending marriage contract, stress that Barbara had in connection with either of those, stress that she had about financial arrangements.
P. 307-308,
Q. 1410 To request that Dr. Edwards and Ms. Wexler search their files and produce any notes or other documentation referring to such concerns. And if there aren’t any notes, to ask them what their recollection is, if any, of any discussions with Mrs. Cohen regarding same.
[53] By the return of the motion, Dr. Edwards had produced a copy of her file to Barbara’s counsel. Through her counsel, Barbara undertook to review Dr. Edwards’ file and, no later than January 11, 2021, produce the documents relevant to the Issue.
[54] In a telephone conversation with Barbara’s counsel, Ms. Wexler advised that she did not have any notes, but had diary entries for several sessions with Barbara in 2012 and 2013. On the return of the motion, and through her counsel, Barbara undertook to obtain a letter from Ms. Wexler setting out the dates on which those sessions occurred. The undertaking given includes to produce the letter from Ms. Wexler no later than January 25, 2021.
c) Directions for Continued Questioning of Barbara
[55] The Estate asks the court for directions with respect to Questioning of Barbara on the contents of the Documents and the documents, if any, produced with respect to Barbara’s consultations with her family physician and the counsellor. Subrule 20(19) of the Family Law Rules, O. Reg. 114/99 (“FLR”) sets out the discretion of the court with respect to a party’s refusal to answer a question. The court is entitled to “give directions for the [refusing party’s] return to the questioning”: FLR, r. 20(19)(a)(ii).
[56] On the return of the motion, Barbara submitted that she should not be required to return for further Questioning related to the breakdown of her first marriage because doing so would require her to revisit a difficult time in her life. I note that, in response to the Estate’s motion, there is no evidence from Barbara or anyone else in support of a conclusion that there is any medical or health-based reason why Barbara is not capable of being Questioned on that subject.
[57] Given the outcome on the Estate’s motion, the Estate is entitled to Questioning of Barbara on the Documents and on the responses to the questions related to the family physician and the counsellor. Barbara is therefore to return for continued Questioning; the questions posed shall, however, be restricted to matters relevant to the Issue.
[58] The refusals on the Estate’s motion have now all been addressed. I turn next to Barbara’s motion.
2) Mrs. Cohen’s Motion
[59] When questioned, Steven took six questions under advisement and refused to answer seven questions. Before turning to the substantive issues on Barbara’s motion, I first deal with an evidentiary issue raised by the Estate.
a) Preliminary Evidentiary Issue
[60] Barbara delivered two facta on the motions. The first was delivered in December 2020, in advance of the original return date for the motions; the second was delivered in January 2021, following the adjournment of the motions.
[61] The December 2020 factum addresses the questions taken under advisement and refused on Questioning of Steven Cohen. The evidence cited in that factum is restricted to the affidavit of Mary Cybulski, sworn on November 27, 2020. The Estate has no objection with respect to Barbara’s reliance on that affidavit.
[62] Barbara’s January 2021 factum appears to have been delivered, in large part, in response to the Estate’s stated intention to seek leave, if necessary, to amend its Answer. If Barbara does not consent to a proposed amendment to the Answer, the Estate may seek leave to amend its pleading. The proposed amendment is the addition of the defence of laches based on Barbara’s alleged delay in attempting to set aside the Contract.
[63] Barbara’s January 2021 factum consists of the following:
• In the first 71 paragraphs, Barbara reviews the evidence related to the Issue. In doing so, she relies on the pleadings, the evidence from Questioning of Mr. Radnoff, and the evidence she gave when Questioned;
• The next 20 paragraphs address the procedural history of the litigation to date, including the Estate’s 2019 bifurcation motion and Shelston J.’s fall 2020 case conference order;
• Ten paragraphs are devoted to the potential defence of laches;
• The balance of the substantive paragraphs deals with Barbara’s refusal to produce copies of a separation agreement or divorce agreement with respect to Barbara’s first marriage; and
• The factum concludes with the relief sought by Barbara on her motion and in response to the Estate’s motion.
[64] The 71-paragraph review of the substantive evidence includes 54 footnotes, 12 of which cite Barbara’s evidence on Questioning. The other citations are to evidence from Questioning of Mr. Radnoff, to an affidavit sworn by Ms. Cybulski in December 2020, and to the pleadings. The Estate objected to Barbara’s reliance, if any in support of her motion, on the evidence from Barbara’s Questioning cited in the 12 footnotes.
[65] The Estate acknowledges that, in response to the Estate’s motion, Barbara is entitled to rely on the transcript from her Questioning. The Estate’s position is that if, in support of her motion, Barbara wishes to rely on her own evidence, then she must provide affidavit evidence. The Estate submits that the Estate’s reliance on that transcript in support of its motion does not entitle Barbara to rely on it in support of her motion.
[66] The Estate initially requested that the court strike or disregard the first 13 pages (paras. 1-100) of Barbara’s January 2021 factum. After hearing the submissions of counsel on this issue, the Estate’s request was refined and the parties agreed as follows:
• Barbara is entitled to rely on her evidence, as cited in paras. 1-71 of her January 2021 factum, in response to the Estate’s motion (dealt with above); and
• The proposed amendment is not before the court on these motions. As a result, the court shall disregard the paragraphs of the factum that address the proposed amendment to the Answer (paras. 81-83 and 87-98).
[67] With the evidentiary issue addressed, I turn to the substantive issues on Barbara’s motion.
b) Phase One and the Issue
[68] It is clear from the submissions made on Barbara’s motion that the parties have different views as to the issue or issues that will be determined at Phase One. Barbara’s view is that by defining the Issue as “the validity and enforceability” of the Contract, Audet J. restricted Phase One to that singular issue. The Estate is of the view that, in the context of “enforceability”, Audet J. intended that the trial judge will, at Phase One, determine the limitation defence raised by the Estate in its Amended Answer to the Consolidated Proceeding.
[69] It is important to resolve the difference between the parties in that regard because the relevance of questions posed by either party is determined by the pleadings as they relate to the issue to be determined in Phase One. To resolve that issue, I turn first to the 2019 endorsement of Audet J. on the bifurcation motion.
[70] That endorsement is included at Exhibit “J” of the November 2020 Parrell Affidavit. At paras. 1 and 2, Audet J. summarized the issue to be determined on and the outcome of the Estate’s motion:
This motion brought by the respondent Estate deals with the question as to whether, on a balance of probabilities, bifurcation on the issue of the validity of a Marriage Contract from the other issues raised in the case will result in the just, expeditious and least expensive determination of this proceeding on its merits.
I have decided that the proceeding should be bifurcated as requested by the respondent Estate.
[71] After reviewing the background facts, Audet J. set out the respective positions of the parties. At para. 17, she described the Estate as seeking to bifurcate the proceeding into two trials with the first being “a determination of the validity of the Marriage Contract” and the second being “the determination of any remaining issues, if necessary.” Justice Audet then highlighted that “[t]he Estate takes the position that the validity of the Marriage Contract is a discrete threshold issue, and that there is no overlap between the evidence on this issue and the multitude of other issues that Ms. Cohen has raised.”
[72] The Estate’s position on the bifurcation motion was supported by the respondent, Susan Charendoff. Ms. Charendoff holds a mortgage on the matrimonial home. Her position on the motion was that the only issue relevant to her is the validity of the Contract. As a result, with bifurcation of the issue of the validity of the Contract, she could be excused from Phase One: Cohen, at para. 18.
[73] In the Analysis section of her endorsement, Audet J. summarized the Estate’s position at para. 32: “the only issue that the Estate wishes to have bifurcated as a threshold issue is the issue of the validity of the Marriage Contract.” Justice Audet repeatedly uses the term “validity of the Marriage Contract” in the endorsement: see, for example, Cohen, at paras. 51, 52, and 58. In the latter paragraph, Audet J. highlighted that bifurcation of the issue of “the validity” of the Contract reflects “the court’s ongoing duty to ensure an expeditious and cost effective process which maximized the efficient use of scarce judicial resources.”
[74] In reaching her decision, Audet J. relied on the representations made by the Estate with respect to the length and lack of complexity of Phase One. The Estate estimated that there will be no more than four witnesses and it will likely not take any longer than four days to complete Phase One: Cohen, at para. 56.
[75] Justice Audet used the phrase “the validity and enforceability” of the Contract in only two places in her endorsement. Justice Audet highlighted that Barbara is seeking an equalization payment but is not seeking spousal support. In that regard, Audet J. commented at para. 39 that, “[u]nlike a potential spousal support claim, [Barbara’s] equalization claim will not survive a determination that the Marriage Contract is valid and enforceable” (emphasis added). Item 1 of the order made at para. 59 of the endorsement includes that the consolidated proceeding is bifurcated, “such that the determination of the validity and enforceability of the Marriage Contract entered into by the applicant, Barbara Cohen and the deceased, Sidney Cohen, form the first trial with all other issues to be determined at a second trial.”
[76] In her endorsement, Audet J. makes no mention whatsoever of the limitation defence raised by the Estate in its Amended Answer to the Consolidated Proceeding. I find that the use by Audet J. of the phrase “validity and enforceability” in the order made was not intended to include a determination of the limitation period defence advanced by the Estate. Phase One requires a determination of what the Estate described on the bifurcation motion as a discreet threshold issue – the validity of the Contract.
[77] At the conclusion of argument on the motions now before the court, the Estate requested leave to file a copy of the transcript from the hearing before Audet J. It sought permission to do so in support of its position with respect to the issues to be determined at Phase One. A copy of the transcript had not, however, been produced to Barbara’s counsel.
[78] I ordered as follows with respect to the copy of the transcript from the 2019 hearing before Audet J.:
a) A copy of the transcript shall, no later than January 6, 2021, be produced to Barbara’s counsel. In the copy produced, the Estate’s counsel shall highlight the portions it submits are relevant on the motions now before the court;
b) Barbara shall, no later than January 11, 2021, determine whether she consents to the transcript (as highlighted) being filed with the court. If so, then Barbara shall, no later than January 11, 2021: (i) highlight any additional portions of the transcript relevant to the motions now before the court; and (ii) file the transcript, as highlighted by both counsel, with the court.
[79] A copy of the transcript was filed with the court. From the emails sent to the court with various copies (i.e., more than the single copy requested by the court), it appears that counsel were unable to follow the above-noted order to the letter.
[80] Regardless, I reviewed the transcript and conclude that there is nothing in it to support a finding that, on the bifurcation motion, the Estate took the position before Audet J. that a determination of the validity and enforceability of the Contract would include the limitation defence in response to Barbara’s claim to set aside the Contract. To the contrary, the transcript confirms that the Estate emphasized the narrow scope intended for Phase One and the cost-effectiveness of a bifurcated proceeding.[^20] For example, in support of bifurcation, the Estate’s counsel submitted that “this could be a very short focused mini-trial, which we think after some brief questioning of the parties, [we could] probably have that trial done before the end of the year.”[^21]
[81] In summary, the Issue, defined by Audet J. as “the validity and enforceability” of the Contract, does not include the limitation defence advanced by the Estate in response to the claim to set the Contract aside.
[82] I find, in any event, that the limitation defence advanced by the Estate does not go to the “validity and enforceability” of the Contract, but rather to whether Barbara’s claim to set aside what she alleged to be an invalid and unenforceable contract is out of time.
[83] I turn to the questions taken under advisement and refused on Questioning of Steven Cohen, in his capacity as the representative of the Estate.
c) Capacity in Which Steven Cohen was Questioned
[84] Steven Cohen is the Estate Trustee and he was questioned in that capacity. He is represented in that capacity only by the Estate’s counsel of record. Counsel for the Estate does not act for Steven in his personal capacity.[^22] During Questioning of Steven, counsel for the parties had several exchanges regarding the distinction between Steven giving evidence in his capacity as the Estate Trustee versus in his personal capacity.
[85] During some of those exchanges, Barbara’s counsel took the position that it is not possible to distinguish between Steven’s personal knowledge and his knowledge in his capacity as the Estate Trustee.[^23] During at least one other such exchange, Barbara’s counsel stated their intention to bring a motion to Question Steven personally (i.e., as a non-party). I am not aware of such a motion having been brought or now contemplated – the latter with Phase One to commence in approximately two months.
[86] The capacity in which Steven was Questioned is clear from the questions posed at the outset of Questioning. He was asked: “And you are the trustee of the estate of your father, the late Sidney Cohen?”[^24] It was then confirmed with him that the Estate is the respondent in Superior Court of Justice Family Court File No. FC-17-1323.[^25]
[87] At times, Steven did not object to answering questions based on his personal knowledge. By answering such questions, Steven did not waive his right to object to answering questions other than in his capacity as the Estate Trustee. I note that Barbara took a similar position in her December 2020 factum. She therein highlighted that her “tolerance” in answering some questions that she considered irrelevant “should not be taken as acquiescence that all questions about which the Estate inquire are relevant.”[^26]
[88] It would have been more efficient if the parties had reached an agreement, prior to the Questioning of Steven, as to how they would address Questioning of him in his capacity as the Estate Trustee and to address the Estate’s obligation to inform itself from others (i.e., including Steven personally) with respect to matters relevant to the Issue: Cimtel v. TSV Holdings Ltd., 2018 ONSC 894, 141 O.R. (3d) 226, at paras. 38-39. Absent such an agreement or an order for Questioning of Steven personally (as a non-party), Steven is not required to answer questions intended to solicit his personal knowledge.
d) Questions Taken Under Advisement
[89] The six questions discussed in this section were taken under advisement. Prior to the return of the motions, the Estate provided an answer to four of the six questions; it did so, however, without waiving its objection to the questions. Barbara’s position is that the answers provided are unsatisfactory and, in any event, the other two questions taken under advisement remain unanswered. Barbara requests that the court order the Estate to provide an answer to the six questions taken under advisement.
[90] For a combination of one or more of the following reasons, the Estate objects to answering these six questions: (a) the information sought is irrelevant to the Issue, (b) Steven is being examined in his capacity as the Estate Trustee and is not required to answer questions in his personal capacity, and (c) the information sought is subject to a claim of privilege.
i) Questions 163 and 165
P. 98, Q.163 What is the estate’s position on who wanted the amended contract in 2008?
P. 99, Q. 165 What is your personal knowledge with respect to the genesis, how it came about, the 2008 amended marriage contract?
[91] Barbara’s position is that the answers to the questions related to the 2008 Agreement (P. 98, Q. 163 and P. 99, Q. 165) are relevant to whether the late Gary Steinberg gave Barbara independent legal advice prior to her execution of that agreement. Barbara attempts to tie Mr. Steinberg’s involvement in 2008 to the fact that, in 1986, when the Contract was signed, Mr. Steinberg worked at the same firm as Sidney’s lawyer, the late Arnell Goldberg. The relationships in 1986, such as they may have been, between Mr. Goldberg, Mr. Steinberg, and Mr. Radnoff, is a theme advanced by Barbara in support of a number of the questions taken under advisement or refused.
[92] I agree with the Estate and find that the circumstances in 2008, including the importance, if any at all, of Mr. Steinberg’s prior affiliation with Mr. Goldberg, are not relevant to the Issue. Those circumstances are not relevant to the grounds upon which Barbara relies in seeking to set aside the Contract, entered into in 1986.
[93] The request for the Estate to provide more than the answers provided to date in response to Q. 163 and Q. 165 is dismissed.
ii) Question 189
P. 116-119,
Q. 189 The Estate pleads at paragraph 27: Sidney, contemplating entering a second marriage, wanted to ensure that he left the majority of his property on death to and for the support of his own children and their lineage. What's the source of the knowledge of that?
[94] The answer given by the Estate, without waiving its objection to the question, is that the “sources” of the allegations made in para. 27 of the Estate’s Amended Answer to the Consolidated Proceeding include Steven Cohen. The answer implies that there is more than one source of information in that regard; the answer is therefore incomplete.
[95] Barbara is entitled to know the names of the individuals who have knowledge or information, and are potential witnesses, with respect to the allegations made in para. 27 of the Estate’s amended pleading. The scope of permissible questions includes questions about “the names of persons who might reasonably be expected to know about the claims in the case and, with the court’s permission, their addresses”: FLR, r. 20(18)(a).
[96] The Estate shall answer Q. 189 by informing Barbara of (a) the names of any individuals, in addition to Steven, who might reasonably be expected to know about the allegations made at paragraph 27 of the Estate’s Amended Answer to the Consolidated Proceeding, and (b) the addresses for those individuals.
iii) Questions 386, 391(i), and 391(ii)
P. 170, Q. 386 Did Steven in his personal capacity have any conversations with his late father prior to the making of the June 4, 2013 will about Barbara’s entitlements under the will?
P. 176, Q. 391(i) Did Steven Cohen, in his personal capacity, have communications with any of his father's lawyers relevant to the Phase One trial?
P. 176-178,
Q. 391(ii) Emails and/or other written communications between Steven Cohen, in his personal capacity, and Gary Steinberg during the time he worked at Arnell Goldberg’s firm relevant to the issues in the Phase One?
[97] In support of the relevance of these questions, Barbara once again relied, in part, on the potential relationship between Messrs. Goldberg, Steinberg, and Radnoff. For example, she highlighted that, subsequent to 1986, Mr. Radnoff acted for the business that Sidney ran (Colonial Furniture) on the sale of business. The “spectre” of a relationship between the lawyers involved in 1986 and 2008 potentially impacting on the independence of the advice that Barbara received in those years is not pleaded in her Amended Application.
[98] I agree with the Estate that these questions are not relevant to the determination of the Issue. I also agree with the Estate that issues of solicitor-client privilege may arise depending on the nature of Steven’s relationship, if any, with any of his late father’s lawyers. In any event, I find that Questions 391(i) and (ii) are overly broad.
[99] The request for the Estate to expand upon the answers provided or to answer Q. 386, Q. 391(i), and Q. 391(ii) is dismissed.
e) Refusals
[100] In total, seven refusals are addressed in this section.
i) Questions 46 and 419
P. 45, Q. 46 Have you ever attended a meeting with Mr. Radnoff with your father?
P. 189, Q. 419 Did you ever retain Mr. Radnoff personally?
[101] Barbara submits that there is evidence that Mr. Radnoff acted for Sidney’s business both before and after 1986. The solicitor-client relationship, if any as of 1986 and thereafter, between Mr. Radnoff and Colonial Furniture is said by Barbara to be relevant to the issue of the independence of the legal advice that Barbara received from Mr. Radnoff when she entered into the Contract.
[102] The Estate refuses to answer Q. 46 on the grounds that Barbara did not specifically plead that the legal advice that she received from Mr. Radnoff in 1986 was not independent because of his ties to Sidney’s business. The Estate points out that the answer might require a waiver of solicitor-client privilege over a matter.
[103] I find that the Estate is not required to answer Q. 46 for the most basic of reasons: the question is too broad. Seeking clarification of the question, the Estate’s counsel asked, “A meeting about what?”[^27] Barbara’s counsel responded with, “Anything.” Barbara’s counsel made no attempt to narrow the question to a time frame and/or subject matters that are relevant to the Issue.
[104] The Estate’s counsel also sought clarification as to the relevance of Q. 419: “Did you ever retain Mr. Radnoff personally?” The information sought was said by Barbara’s counsel to be relevant because, “I want to know, when we question Mr. Radnoff next week, what the relationship is between him and the parties in the room.”
[105] Barbara’s counsel had the opportunity to ask Mr. Radnoff about his dealings with Sidney and/or Sidney’s business(es) both before and after 1986. Both parties’ counsel Questioned Mr. Radnoff in January 2020. From my review of the transcript of Questioning of Mr. Radnoff, it appears that Barbara’s counsel did not ask him questions with respect to the subject matters of Q. 46 and Q. 419, listed above.
[106] I agree with the Estate that whether Steven ever retained Mr. Radnoff is not relevant to the Issue and, in any event, the question is overly broad.
[107] The request for the Estate to answer Q. 46 and Q. 419 is dismissed.
ii) Questions 57 and 58
P. 46-7, Q. 57 And do you know the nature of what the relationship between Mr. Goldberg and Sidney would have been in terms of representation? So we know, for example, that he signed the 1986 marriage contract. Do you know any other dealings?
P. 48, Q. 58 Do you know whether Arnell Goldberg was your father's lawyer other than for the marriage contract?
[108] Both questions relate to Sidney’s relationship with Mr. Goldberg. When asked as to the relevance of the information sought, Barbara’s counsel said, “Well I’m asking the question based on the – all of the lawyer relationships in relation to Mr. Cohen. I want to know all of his lawyer relationships.”[^28]
[109] On the return of her motion, Barbara contrasted her brief relationship (allegedly 10 minutes) with Mr. Radnoff, prior to signing the Contract, with what appears, even as of 1986, to be a long-standing relationship between Sidney, his businesses, and Mr. Goldberg. Barbara submits that the differences in the parties’ respective solicitor-client relationships are relevant to the alleged power imbalance in 1986 when the Contract was signed.
[110] It is not in dispute that the nature of Barbara’s relationship with Mr. Radnoff is relevant to the Issue. Based on the pleadings, however, I find that the history of Sidney’s relationship with Mr. Goldberg is not relevant to the Issue.
[111] The request for the Estate to answer Q. 57 and Q. 58 is dismissed.
iii) Questions 384, 385, and 389
P. 169, Q. 384 Did your father deal with any lawyer with respect to his estate other than Ken Webb? His estate planning, I should say.
P. 169-170,
Q. 385 Did you ever meet with your father and Ken Webb?
P. 172, Q. 389 Did you have -- did you email with your father about any of the financial issues in relation to him and Barbara?
[112] These questions relate to Sidney’s estate planning, the will that Sidney executed in 2013 (“the Will”), and the solicitor-client relationship between Sidney and Mr. Webb with respect to the Will. During Questioning, the relevance of the information sought was said by Barbara’s counsel to be “Witnesses [as to] [a]ll the issues relevant in the case” (for Q. 384 and Q. 385).[^29]
[113] On the return of her motion, Barbara’s position is that Sidney’s planning and views with respect to the Will are relevant to the alleged exertion of undue influence by Sidney in 1986 and the alleged unconscionability of the Contract.
[114] I agree with the Estate that Sidney’s estate planning subsequent to 1986 is not relevant to either the issue of undue influence or unconscionability, both as measured based on the circumstances in 1986.
[115] Turning to Q. 389, in providing clarification of the question, Barbara’s counsel stated that the question covers any time, including after the Contract was signed.[^30] I find that Question 389 is overly broad. It does not speak to either a specific time period or specific financial issues that may be relevant to the Issue.
[116] The request for the Estate to answer Q. 345, Q. 385, and Q. 389 is dismissed.
Disposition on the Motions
[117] On the Estate’s motion, I order as follows:
Barbara Cohen (“Mrs. Cohen”) shall answer the following questions: P. 92, Q. 517; P. 93, Q. 519(i); and P. 93, Q. 519(ii) from the transcript of her Questioning conducted in November 2019.
Mrs. Cohen shall produce completed, unredacted copies of the pages from the court file for the 1981 divorce proceeding following the breakdown of her first marriage:
a) For any pages that appear but have not been redacted, Mrs. Cohen shall provide an explanation for the appearance of those pages; and
b) If Mrs. Cohen is maintaining privilege over the contents of those pages, she shall provide the basis of the claim for privilege and a summary description of the nature of the documents.
Mrs. Cohen shall respond to P. 93-94, Q. 519(iii) by making an inquiry of Gowling WLG, and any other firm at which Allyne F. Thompson is known to have practised, for a copy of any correspondence that Mrs. Cohen exchanged with Ms. Thompson, or whoever the latter’s partner was, in relation to Mrs. Cohen’s separation and divorce from her first husband.
Mrs. Cohen shall respond to the questions posed at P. 306, Q. 1404 and P. 307-308, Q. 1410 as follows:
a) She shall, no later than January 11, 2021, review the file produced to her counsel by Dr. Elizabeth Edwards and produce the documents relevant to the Issue; and
b) She shall obtain a letter from Ms. Wexler setting out the dates on which sessions with Mrs. Cohen occurred and shall, no later than January 25, 2021, produce the letter from Ms. Wexler.[^31]
- Mrs. Cohen shall re-attend for continued Questioning with respect to the documents from the court file for the 1981 divorce proceeding following the breakdown of her first marriage, the records of her family physician, the letter from the counsellor, and copies, if any available and produced, of correspondence exchanged with Allyne F. Thomson with respect to the 1978 separation agreement. The Estate shall be entitled to pose questions only in relation to the Issue.
[118] On Barbara’s motion, I order as follows:
The request for an order compelling Steven Cohen, in his capacity as the Estate Trustee of the Estate of Sidney Cohen, deceased, to answer the following questions is dismissed: P. 98, Q. 163; P. 99, Q. 165; P. 170, Q. 386; P. 176, Q. 391(i); P. 176-178, Q. 391(ii); P. 45, Q. 46; P. 189, Q. 419; P. 46-7, Q. 57; P. 48, Q. 58; P. 169, Q. 384; P. 169-170, Q. 385; and P. 172, Q. 389.
Steven Cohen, in his capacity as the Estate Trustee of the Estate of Sidney Cohen, deceased, shall answer P. 116-110, Q. 189 by informing Barbara Cohen of the following:
a) The names of any individuals, in addition to Steven Cohen, who might reasonably be expected to know about the allegations made at para. 27 of the Estate’s Amended Answer to the Consolidated Proceeding; and
b) The addresses for those individuals.
Costs
[119] In the event the parties are unable to agree upon costs of the motions, they may make submissions as follows:
a) Their respective primary submissions shall be limited to a maximum of six pages (excluding the bill of costs);
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”);
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules with respect to font size;
d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;
e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released. Submissions shall be sent by email, to my attention, at SCJ.Assistants@ontario.ca; and
f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the thirtieth business day following the date on which this ruling is. Reply submissions shall comply with paragraphs (a) to (d) above and be sent by email to my attention at SCJ.Assistants@ontario.ca.
[120] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.
Madam Justice Sylvia Corthorn
Released: January 25, 2021
COURT FILE NO.: FC-17-1323
DATE: 2021/01/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
Respondent
RULING ON MOTIONs
Madam Justice Sylvia Corthorn
Released: January 25, 2021
[^1]: The “validity and enforceability of the Contract” is referred to in the balance of the ruling as “the Issue”. [^2]: The Application was amended pursuant to the February 22, 2019 order of Shelston J. He is the Case Management Judge for the consolidated proceeding. [^3]: All paragraph numbers referenced are from Barbara’s pleading. [^4]: The Estate’s pleading was amended on April 11, 2019, pursuant to the February 22, 2019 order of Shelston J. [^5]: All paragraph numbers referenced are from the Estate’s pleading. [^6]: Para. 64 is underlined in its entirety in the Estate’s amended pleading, reflecting that this paragraph is part of the amendments made to the original pleading. The italicized portions of para. 64 appear in the quote above as they appear in the Estate’s amended pleading. [^7]: Dec. 4/20 Parrell Affidavit, Exhibit “C”: Questioning of Barbara Cohen, Nov. 25/19 (“Mrs. Cohen”) at P. 86, Q. 491. [^8]: Mrs. Cohen, at P. 89, Q. 506. [^9]: Mrs. Cohen, at P. 89-90, Q. 509. [^10]: Mrs. Cohen, at P. 87-88, Q. 494-498. [^11]: Mrs. Cohen, at P. 86, Q. 491. [^12]: Mrs. Cohen, at P. 90, Q. 513. [^13]: Mrs. Cohen, at P. 90, Q. 510-511. [^14]: Mrs. Cohen, at P. 90, Q. 512, 514. [^15]: Mrs. Cohen, at P.85 ff., Q. 483-517 [^16]: Mrs. Cohen, P. 91, Q. 517. [^17]: Dec. 7/20 Parrell Affidavit, Exhibit “G”. [^18]: Dec. 7/20 Parrell Affidavit, Exhibit “H”, Item 15, Bates numbered pp. 276, 277. [^19]: The subscribing witness for the first husband’s signature is likely that of the late Honourable G.R. Morin, a former judge of this Court. I take judicial notice of the fact that both of the subscribing witnesses are deceased. [^20]: See, for example, pp. 11, 23, 25, 26, 31 and 34 of the transcript from the 2019 bifurcation motion before Audet J. (“The Transcript”). [^21]: The Transcript, at p. 26. [^22]: Transcript of Questioning of Steven Cohen (“Estate Trustee”), at p. 27. [^23]: Estate Trustee, at p. 25. [^24]: Estate Trustee, at p. 4. [^25]: Estate Trustee, at p. 4. [^26]: Mrs. Cohen’s December 2020 factum, at paras. 62-63. [^27]: Estate Trustee, at p. 45. [^28]: Estate Trustee, at p. 47. [^29]: Estate Trustee, at pp. 169-170. [^30]: Estate Trustee, at p. 173. [^31]: The dates relevant to this paragraph of the order have passed. It is included in the order for the sake of completeness as to the outcome of the Estate’s motion.