Court File and Parties

COURT FILE NO.: FS-18-06278-0000 DATE: 2023-03-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Christopher Rose, Applicant AND: Amy Katharine Rose, Respondent

BEFORE: L. Brownstone J.

COUNSEL: No one appearing for the Applicant Amy Katharine Rose, acting in person

HEARD: March 2, 2023

Endorsement

[1] The respondent wife, Ms. Rose, seeks summary judgment in respect of an application Mr. Rose brought to set aside a separation agreement the parties executed on December 11, 2014. The specific relief claimed by Mr. Rose, once the agreement is set aside, relates to parenting time, support and property equalization. Ms. Rose asks that Mr. Rose’s application be dismissed in its entirety, as it discloses no genuine issue requiring a trial.

[2] Mr. Rose did not attend the motion. For the reasons that follow, I proceeded to hear the motion in Mr. Rose’s absence.

Preliminary Issue – Mr. Rose’s non-attendance

[3] Although accommodation had been made for Mr. Rose to attend the motion by telephone, the manner in which he has been attending court proceedings in this matter for some time, he did not participate. The first issue, therefore, was whether to proceed in Mr. Rose’s absence or adjourn the motion. To understand my decision to proceed in his absence, a review of the history of this matter is required.

[4] Ms. Rose was granted leave to bring a summary judgment motion at a case conference in July 2021. In repeated endorsements beginning in March 2022, several judges have held that the next step in this matter would be Ms. Rose’s summary judgment motion. The motion was originally scheduled for June 2022, but deadlines for service of materials were not met due to illness. On May 26, 2022, Kraft, J. scheduled the motion for September 29, 2022, and set out a schedule for the exchange of motion materials. At 7:29 am on September 29, 2022, Mr. Rose emailed the court and said:

I AM UNABLE TO ATTEND TODAY BECAUSE MY MENTAL ILLNESSES ARE IMPAIRING MY COGNITION PREVENTING ME FROM LEGALLY REPRESENTING MYSELF.

[5] This was not the first time the applicant failed to attend proceedings, citing his mental health as the reason. The respondent asked that the motion proceed on September 29 as scheduled. Justice Horkins adjourned the motion. Relevant portions of her endorsement state:

[21] As our courts have stated, a person is presumed competent and the onus is on the father to show that he is not (Section 2, Substitute Decisions Act, 1992, S.O.1992); [Montague v. Bank of Nova Scotia (1996), 14 E.T.R. (2d) 184 (Ont. Gen. Div.)](Montague v. Bank of Nova Scotia (1996), 14 E.T.R. (2d) 184 (Ont. Gen. Div.)), p. 187; Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Ont. Gen. Div.), p. 295, para d and p. 297, para. g; [Bilek v. Constitution Insurance (1990), 49 C.P.C. (2d) 304 (Ont. Dist. Ct.)](Bilek v. Constitution Insurance (1990), 49 C.P.C. (2d) 304 (Ont. Dist. Ct.)), p. 304).

[22] In C. (C.) v. Children’s Aid Society of Toronto, 2007 ONCJ 561 at paras 20-34, Justice Backhouse sets out the applicable law and process for determining if a party is competent or capable to do the activity or make the decision in question. A two-step applies as set out in para 25:

25 There is a two-part test for determining whether the appointment of a legal representative is warranted. First, the person must appear to be mentally incapable with respect to an issue in the case and second, as a result of being mentally incapable, the person requires legal representation to be appointed by the Court. In addition, the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other (non legal capacity related) reason such as a lack of sophistication, education or cultural differences. (Limbani (Litigation Guardian of) v. Limbani).

[23] For ease of reference a copy of Justice Backhouse’s decision is attached to this endorsement.

[24] In summary the onus is on the father. His email alone is not sufficient to trigger the inquiry that is set out in C. (C.) v. Children’s Aid Society of Toronto.

[25] I have adjourned the motion to give him an opportunity to file evidence to support his statement that he suffers from a mental illness that impairs his “cognition” and prevents him from “legally representing” himself. At a minimum, the father should file a letter from a treating doctor that explains his mental illness diagnosis, his treatment and the extent, if any, that such mental illness meets the two part test set out above.

[26] The parties are scheduled to attend a trial management conference before Justice Steele on October 12, 2022 at 10 am. This conference will proceed but will not be used as a trial management conference. It will be used to decide next steps in this application.

[6] Justice Horkins concluded as follows:

[27] I make the following orders:

1. The mother’s summary judgment motion dated June 23 2022 is adjourned to a date to be set by the Case Management judge.

2. If the father chooses to provide evidence of his mental illness, then such evidence shall be served on the mother and filed with the court no later than October 11 at 10 am. A copy shall also be filed on Caselines.

3. If the father provides no evidence, then the Case Management judge will set a date for the hearing of the mother’s summary judgment motion and such date shall be peremptory to the father.

4. If the father provides some evidence that he suffers from a mental illness that impairs his “cognition” and prevents him from “legally representing”, then the Case Management judge shall decide the next steps in this application.

[7] The conference proceeded before Steele J. on October 14, 2022. She noted that the father sent some older documents regarding his diagnosis but did not file an affidavit or provide any current information regarding his treatment and the extent to which his illness meets the test set out in C. (C.) v. Children’s Aid Society of Toronto.

[8] Justice Steele granted Mr. Rose another month to provide the court with the information that Horkins J. referred to in her endorsement. A further case conference was scheduled for November 22, 2022 and this motion was set for March 2, 2023 with a schedule for Mr. Rose to provide responding materials. Justice Steele also ordered the following:

12. On or before November 21, 2022 at noon, Mr. Rose may serve and file affidavit evidence to support his statement that he suffers from a mental illness that impairs his “cognition” and prevents him from “legally representing” himself. “ At a minimum, the father should file a letter from a treating doctor that explains his mental illness diagnosis, his treatment and the extent, if any, that such mental illness meets the two part test set out [ in C. (C.) v. Children’s Aid Society of Toronto .” (Underlining in original)

[9] The conference was adjourned to November 22, 2022.

[10] Justice Steele’s endorsement from the November case conference indicates that Mr. Rose left the conference midway through and did not return. Steele J. adjourned the conference to December 13, 2022, at Mr Rose’s request to allow him to see his treating doctor on December 5, 2022. She ordered that Mr. Rose be given until December 12, 2022 to provide the evidence that had been ordered produced repeatedly since the Order of Horkins J. on September 29, 2022.

[11] Mr. Rose did not attend on December 13, 2022 or provide any affidavit evidence, but emailed the Court the following:

“I thought I was very clear in my Nov 23 Email that I am unable to proceed at this time with my application at the SCJ because of mental health and gender discrimination by the SCJ until my case with the Human Rights Tribunal of Ontario HRTO FILE: 2022-51249-I is heard and ruling issued. I request a pause/adjournment in the SCJ process and I will not be attending any further hearings in the SCJ including the Dec 13 hearing until the HRTO provides a ruling at which point I will file their ruling with the SCJ and schedule a case conference.”

[12] The case management conference was adjourned to January 10, 2023 and the parties were required to file written submissions regarding Mr. Rose’s request for a pause to the SCJ process.

[13] Justice Myers presided over that conference. Mr. Rose sent an email advising he would not participate until his human rights case was ruled upon, and that he requires that he be allowed to bring his own motion for summary judgment.

[14] Justice Myers’ endorsement from January 10, 2023 states in part as follows:

Ms. Rose’s summary judgment motion is scheduled for hearing by me on March 2, 2023. It has previously been marked as peremptory to Mr. Rose. Numerous judges, listed in para. 10 of the endorsement of Steele J. dated October 14, 2022, have held that the motion is the next step and is to proceed. Mr. Rose is reminded that the schedule set by Steele J. in that endorsement provides that Mr. Rose’s evidence is due by January 31, 2023. (emphasis in original)…

… Mr. Rose has advised the court that he will not participate in the proceeding unless or until his motion is heard at the same time as Ms. Rose’s motion. I feel duty-bound to warn Mr. Rose that this choice may create very negative risks to his position in this litigation. Mr. Rose should seek legal advice to be sure he understands the impact of his options before deciding to take a step that might severely prejudice his case. (emphasis in original)…

Mr. Rose advised the court that he will not participate in this proceeding until the Ontario Human Rights Tribunal moves forward on his complaint of discrimination by the court. I am unaware of the status of that complaint. However, this case is not impacted by the filing of a human rights complaint. Nothing in that complaint stays this application or affects the court's ability to award costs of proceedings before it. Again, I caution Mr. Rose that his choices may expose his position to negative risks. If he has submissions to make on the relative timing of steps in the two proceedings, he needs to participate and make them. If he fails to appear, he does so at his own risk that matters will proceed in his absence. (emphasis in original)…

Unless or until the court appoints a representative for Mr. Rose as a special party, on a motion brought for that purpose, his capacity to represent himself is not an issue in this proceeding.

[15] In addition, both Steele J. and Myers J. reminded the parties of Rule 1.09 and advised them not to write to the court. Steele J. on November 22, 2022 stated: “Any materials filed unilaterally by a party, other than those specified below, will not be considered by the court for the return of the case management conference”. Myers J. added, on January 13, 2023, “No lengthy emails to the court will be read. No lengthy emails arguing positions are to be sent to the Family Trial Office or any of the Trial Coordinators either”.

[16] Nonetheless, Mr. Rose sent a lengthy email, with forwarded emails he had sent to Ms. Rose and ten attachments, to the court on February 27, 2023. He advised that he would be unable to attend the motion because he is unable to represent himself due to bipolar depression. No new medical evidence or affidavit was attached. It was clear from this correspondence that Mr. Rose has read the January endorsement of Myers J., as he refers to it in his email.

[17] Mr. Rose did not appear at the return of this motion on March 2, 2023.

[18] Ms. Rose requested that the motion proceed in Mr. Rose’s absence. I note the following:

• Mr. Rose is not a special party.
• His capacity is not in issue in these proceedings, as per the endorsement of Myers J.
• During the time in which he has taken the position that he has not had capacity to represent himself, he has commenced proceedings in the OCJ for relief from enforcement by FRO, as well as human rights proceedings.
• He was provided with multiple extensions to file medical evidence and affidavit evidence in support of his claim about his capacity but filed none.
• He has been clearly and fairly provided notice of this motion, notice that it was peremptory on him, that it could proceed in his absence, that there could be serious consequences of his failure to attend and that his position could be negatively affected by such a failure.
• This litigation has been outstanding since 2018. Several judges have ordered that this motion is the next step in the proceedings. The entire litigation is therefore at an effective standstill until this motion is heard.

[19] Considering these circumstances in the context of the interests of justice, the need for the administration of justice to process proceedings in an orderly way, and the overall objective of the determination of the matter on its substantive merits, I denied the adjournment request and proceeded with the hearing of the motion: Khimji v. Dhanani (2004); Ariston Realty Corp. v. Elcarim Inc).

Substantive Issue on the Motion

[20] Does Mr. Rose’s application issued November 13, 2018 disclose a genuine issue requiring a trial? If it does, should Ms. Rose be granted security for costs of the trial?

Background

[21] The parties were married for 8 years and have three children together, now aged 17, 15 and 12. They separated on November 11, 2012, signed an interim separation agreement in February 2013 and a final separation agreement in December 2014.

[22] On February 27, 2015, Paisley J. issued a divorce order effective March 30, 2015.

[23] The terms of their final agreement that dealt with parenting issues were incorporated, with minor modifications on the agreement of the parties, into an order of Justice Scully of the Ontario Court of Justice dated January 16, 2016.

[24] On November 13, 2018, the father commenced this application, which seeks the following relief:

(i) An order setting aside the Interim and Final Separation Agreements (ii) An order “setting aside” Justice Scully’s order (iii) An order that the mother pay the father spousal support, retroactively and prospectively (iv) An order for unequal division of the net family property or, in the alternative, an order for equalization of net family property (v) An order for “joint custody” of the three children (vi) An order that child support be recalculated from 2012 to date and that the father be reimbursed for an overpayment (vii) An order that the OCL be appointed to investigate and represent the children

The Final Separation Agreement

[25] The 26-page final separation agreement was entered into through a mediation process with Mediate 393. During the course of that mediation, Mr. Rose had legal advice. Ms. Rose had had some advice at various points, but, unlike Mr. Rose, was not represented at the mediation.

[26] The separation agreement was comprehensive. It addressed issues of equalization, spousal support, child support, income imputation and parenting issues.

[27] With respect to property division, the agreement provided that Mr. Rose would pay Ms. Rose $12,841.01, which was “an equalization payment in full satisfaction of all claims under Part I of the Family Law Act including all claims with respect to [Ms Rose’s] pension interests.” The pension was separately accounted for later in the agreement.

[28] Provision was also made for release of the funds from the sale of the matrimonial home. Each was entitled to half the value of the proceeds of sale. Ultimately, Mr. Rose received $94,596.90 and Ms. Rose received $259,219.64. This was the result of a calculation that took into account the equalization payment, retroactive child support, child support for the month the agreement was entered into, and prior debts Mr. Rose owed to Ms. Rose. The calculation was clearly set out in a spreadsheet attached to the agreement and prepared by Mr. Rose.

[29] With respect to child support, the agreement provided for a staged approach. Mr. Rose was between jobs at the time of the agreement. Therefore, for the first period under consideration, he was deemed to have an annual income of $40,000. After that, his income would never be deemed to be less than $65,000 per year. If he was earning less than that amount, it expressly would not be considered to be a material change in circumstances. The parties were to exchange financial information annually while support was being paid.

[30] The parties waived any entitlement to spousal support. The agreement contains the usual clauses about a desire for finality and autonomy, and a mutual understanding that the parties’ circumstances may change drastically.

Governing Legal Principles

[31] Rule 16(6) of the Family Law Rules O. Reg 114/99 provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. The party making the motion is required to provide evidence showing there is no genuine issue requiring a trial (Rule 16(4)), and the responding party is required to provide evidence that there is such an issue. The responding party may not rest on mere allegations or denials (Rule 16(4.1)). In determining whether there is a genuine issue requiring a trial, the court may weigh the evidence, evaluate the credibility of a deponent or draw any reasonable inference from the evidence (Rule 16(6.1)).

[32] The Court of Appeal has held in Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281 para 27-28 that the leading civil summary judgment case of Hryniak v. Mauldin, 2014 SCC 7 applies to family law proceedings, as follows:

27 Hryniak establishes, at para. 49, that there will be no genuine issue requiring a trial when:

[T]he judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

28 Similar principles apply to summary judgment motions under the Family Law Rules: Ramdial v. Davis (Litigation guardian of), at para. 29.

[33] In addition, parties are required to put their best foot forward: Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (Ont. C.A.) at para. 27. That is, “[t]he responding party must put their “best foot forward” or risk summary judgment being awarded against them. The evidentiary burden is on the responding party to present affidavit material or other evidence to support the allegations or denials in their pleading. Absent of this evidence, an adverse inference can be drawn”: Pearson v. Poulin, 2016 ONSC 3707 (Ont. S.C.J.) at para 40. The motion judge is entitled to assume that the evidence before her is the best evidence available. (Chao at para 24).

[34] The process to be followed by the court is first to determine if there is a genuine issue regarding trial based only on the evidence before the court, without using the expanded fact-finding powers granted to the court in the summary judgment rules. If that process provides the court with “the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure” (Hryniak at para. 66) summary judgment will issue. If there appears to be a genuine issue requiring trial, the court then proceeds to use the powers in the summary judgment rule and determine if the need for a trial can be avoided. The trial judge “may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”. (Hryniak at para.66)

[35] As will be outlined below, reaching conclusions in this case did not require the court to weigh the evidence or evaluate credibility. The decisions were made on the basis of the evidentiary record and, in many cases as outlined below, a complete lack of evidence before the court to support bald assertions made by Mr. Rose.

Analysis

The order to set aside the order of Scully J., or otherwise change the parenting arrangements

[36] This court has already ruled in this case, on several occasions, that it has no jurisdiction to vary the order of Justice Scully, which covered the parenting arrangements (endorsements of Kimmel, J. dated Dec 17, 2021, Papageorgiou, J. dated January 11, 2022 and Davies, J. dated March 3, 2022.). This is based on settled law: Doherty-Mulder v. Mrowietz, [2003] OJ No. 3388 (SCJ). It is clear that Mr. Rose’s sought-for relief of setting aside the order of Scully J., is not attainable, and raises no genuine issue requiring a trial. Mr. Rose’s application for this relief is dismissed.

The order to set aside the separation agreement

[37] Section 2(10) of the Family Law Act provides:

(10) A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise

[38] Section 56(4) of the Family Law Act provides:

(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.

[39] Mr. Rose makes several arguments in support of his position that the contract should be set aside. He argues that Ms Rose failed to disclose significant assets at the time the domestic contract was made, suggests he failed to understand the nature or consequences of the contract, and argues that it was unconscionable at the time it was made.

[40] None of these issues raises any factual controversies or states a case that needs a trial. In my view, it is efficient, affordable and proportionate to resolve the issues summarily. As will be seen below, I am able to find the facts on the affidavit evidence, and apply the law to reach a fair outcome.

a. Alleged failure to disclose assets at the time the agreement was entered into

[41] Mr. Rose argues that Ms Rose’s financial disclosure was “improper and false”. He raises concerns about the completeness of disclosure in respect of a property on Beatrice Street to which Ms Rose held legal title but owned with her father. The evidence clearly shows Ms Rose disclosed a fifty per cent interest in the Beatrice property as of the date of marriage, and claimed fifty per cent of the value of that property as a date-of-marriage asset. The property was sold in 2006, during the course of the marriage. The applicant states that he only learned from disclosure in these proceedings (which commenced in 2018) that the funds were paid in full to Ms. Rose to a bank account held under her maiden name. Ms. Rose has obtained the available documents in respect of the Beatrice Street sale. The applicant clearly knew that she owned the property with her father and that it was sold in 2006, 6 years before the parties’ separation. None of that was hidden from him, and he provides no reason for not raising this issue upon separation. Indeed, the notes from his lawyer from the mediation in 2014, produced by Mr. Rose, indicate that the Beatrice St. property was discussed by Mr. Rose with the lawyer. In particular, he had some questions about a loan Ms Rose’s father had advanced in respect of the property and he removed this loan as a date-of-marriage liability on the equalization spreadsheet he prepared.

[42] Mr. Rose speculates that the bank account to which the Beatrice St. property’s proceeds of sale were paid was a hidden account at the time of separation, and that Ms Rose must have had other assets, otherwise she would not have been able to afford her post-separation home. The record discloses nothing more than speculation on this issue. Ms. Rose has provided the disclosure she has been able to obtain, given the passage of time. That Ms. Rose has been able to manage her finances post-separation is not evidence that she was hiding assets during the marriage. On a motion for summary judgment, Mr. Rose is required to put forth his best case. There is simply no evidence of material non-disclosure; in fact, there is positive evidence of disclosure. This is not because Ms. Rose has failed to disclose evidence in this proceeding. She has complied as best she could with the Request for Information provided by Mr. Rose. She has done her best to answer this speculative argument, for which Mr. Rose provides no evidence. I give no effect to this argument; it raises no genuine issue requiring a trial.

b. Failure to understand the nature or consequences of the contract

[43] Mr. Rose also argued that his untreated mental illnesses prevented him from fully understanding what he was signing, including the agreement’s full legal implications. He has provided no evidence in support of this claim. He has provided the following documentary evidence:

1. An email indicating that he participated in a clinical trial for people with bipolar disorder in 2021.

2. A portion of progress notes from CAMH that appears to be from 2017 which indicates that his responses on a test are consistent with a diagnosis of narcissistic personality disorder and that he has avoidant and borderline personality traits that interfere with his social and work functioning. Therapy was recommended.

3. An August, 2018 letter from his family physician addressed “to whom it may concern” that refers to a past gambling addiction, a 2012 diagnosis of bipolar 2 disorder, a recent diagnosis of social anxiety disorder, and a subsequent diagnosis of narcissistic personality disorder. The letter states that the patient, Mr. Rose, told his physician that he had not disclosed his illness during mediation. It concludes with an opinion that he has been continuously disabled from work since at least September, 2012. There is no suggestion or mention in that letter that Mr. Rose’s ability to understand is or was impaired.

4. A 2012 assessment summary from Broadview psychology, where Mr. Rose was seen to address personal and marital issues that had arisen, including a history of gambling and its effect on the relationship. The psychologist’s diagnostic impression was one of bipolar 2 disorder, mild borderline personality traits and psychosocial stressors, including periods of unemployment. His intelligence and motivation were seen as strengths, and resources and treatment recommendations were made.

5. A 2004 article entitled “cognitive and neurological impairment in mood disorders”.

[44] That is, there is information provided to the court that Mr. Rose has been diagnosed with various mental illnesses, beginning in 2012. There is no evidence that his cognitive function is or has been impaired, or that it interfered in any way with his ability to understand what he was signing. The correspondence provided from the time the separation agreement was negotiated indicates that Mr. Rose was actively involved in its negotiation. He had clear goals and made decisions to achieve those goals.

[45] Indeed, the legal advice provided to him at the time of signing the agreement specifically pointed out that the $65,000.00 floor for child support income imputation might be hard to meet. The lawyer noted they discussed FRO and the difficulties of changing income imputation, as well as spousal support. The final nature of the agreement and its risks and consequences were explained. The lawyer raised concerns about the agreement (Ms. Rose had no life insurance, the income imputation of $65,000.00 might be difficult, the sharing of s. 7 expenses at 50/50 might be difficult, and the lawyer had not reviewed the financial documentation on the instructions of Mr. Rose). Mr. Rose elected to enter into the agreement despite these concerns being explained to him. As noted above, there is no evidence that he was unable to understand what he was signing. Indeed, the evidence demonstrates that he actively participated in the negotiations, created spreadsheets to be used in the discussions, and that he wished to reach an agreement, achieve finality, and move forward with his life. His arguments on this issue also fail to raise a genuine issue requiring a trial.

c. Unconscionability s. 56(4)(c) Family Law Act

[46] Mr. Rose implicitly argues unconscionability with respect to the separation agreement.

[47] In addressing an argument of unconscionability under s. 56(4)(c) of the Family Law Act, the court looks to the circumstances at the time of the drafting and signing of the contract, not the results Toscano v. Toscano, 2015 ONSC 487 at para. 63.

[48] There was no evidence that any party was taken advantage of at the time this agreement was entered into, and no inequality between the parties. It was not outside the realm of fairness when made: Leopold v. Leopold. As a comprehensive agreement at the time it was made, it was in substantial compliance with the objectives of the Divorce Act RSC 1985 c. 3(2nd Supp): Miglin v. Miglin, 2003 SCC 24 at paras. 4, 57.

[49] I find that there is no evidence of any unconscionability, mistake, or duress at the time the contract was made. Mr. Rose’s application to set aside the agreement from the time it was made under s. 56(4) of the Family Law Act raises no genuine issue requiring a trial and is dismissed.

d. Unconscionability s. 33(4) Family Law Act

[50] However, s. 33(4) of the Family Law Act concerns itself with whether support provisions in a domestic contract later result in unconscionable circumstances. It provides:

4. The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;…

[51] An agreement that is fair and reasonable when it is signed may, through later events, result in unconscionable circumstances: Desramaux v. Desramaux (2002), 216 D.L.R. (4th) 613 at para. 27 (Leave to appeal to SCC denied (2003), 189 O.A.C. 197).

[52] This is certainly a triable issue in this case. Things have clearly not gone well for Mr. Rose in the last several years. Whatever his hopes, intentions and plans were at the time he entered into the contract, he is currently supporting himself on ODSP and living with his parents. He is entitled to proceed with his claims that the spousal support waiver and the income floor for child support result in unconscionable circumstances and may be set aside for that reason.

The Limitation Period Issue

[53] Ms Rose argued that Mr. Rose was statute-barred from proceeding with his property claims. Unlike support, there is a limitation period with respect to property claims under s. 7(3) of the Family Law Act, which provides:

(3) An application based on subsection 5(1) or (2) [the equalization provisions] shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death.

[54] The application was commenced more than two years after the parties’ divorce. The two-year limitation period ended on March 30, 2017. Mr. Rose commenced this application on November 13, 2018.

[55] The Family Law Act provides in s. 2(8) as follows:

(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

[56] I have concluded that there is no merit to the application, save and except for under s. 33(4) of the Family Law Act. Given my conclusion that there are no grounds for relief on the property issue, I decline to extend the limitation period under s. 2(8) of the Family Law Act with respect to the equalization claim. On that issue, I note that there is no evidence that Mr. Rose’s illness caused delay in commencing these proceedings. There is no indication of why he was unable to commence proceedings before March 30, 2017, but was able to do so in November, 2018. There is no evidence of any intention or desire to commence proceedings in respect of the equalization issue before the expiry of the limitation period. I note that the parties dealt with the parenting issues in the order of Scully, J. during the time that the equalization limitation period was running. There is no evidence that Ms Rose contributed in any way to the delay in commencing the proceedings. Further, there is prejudice to Ms. Rose to extending the limitation period. Documentary evidence regarding a property sold in 2006 is largely unavailable. The separation agreement is 8 years old. Limitation periods exist to provide a measure of certainty and finality. There is no reason to extend the limitation period in this case.

Remaining Issues

[57] This was Ms Rose’s summary judgment motion. Mr Rose provided sufficient evidence to successfully resist Ms Rose’s motion on the issue of whether the final separation agreement should be set aside as having, at some point, resulted in unconscionable circumstances under s. 33(4). He had expressed a desire to bring his own motion for summary judgment, but was not permitted to do so until Ms. Rose’s motion was heard. The matter of if and when the support provisions became unconscionable is one that may also be able to be decided summarily, if Mr. Rose can provide the court with sufficient evidence of when he became unable to work to the point that he began receiving ODSP.

[58] It is unclear whether there are current proceedings relating to support in this case in the Ontario Court of Justice. If there are, now that there is no property issue between the parties, the remaining support issues should be dealt with in that court only.

Disposition

[59] The motion for summary judgment is granted and the application is dismissed on the following issues:

a. Setting aside the Interim and Final Separation Agreements from the date they were made; b. Setting aside the Order of Scully J. c. An order for unequal division of the net family property or, in the alternative, an order for equalization of net family property d. An order for “joint custody” of the three children e. An order that the OCL be appointed to investigate and represent the children.

The motion for summary judgment is dismissed on the following issue:

a. Whether the final Separation Agreement should be set aside as having resulted in unconscionable circumstances under s. 33(4) of the Family Law Act.

[63] The applicant did not press her request for security for costs under Rule 24(13) in her oral or written argument. While there are unpaid costs orders in this case, Mr. Rose is seeking relief precisely because of his current financial situation. I do not believe it would be just to require him to provide security for costs, and I decline to make such an order. Given this reality, and the fact that success was in some measure divided, I make no order as to costs of this motion.

L. Brownstone J. Date: March 20, 2023