COURT FILE NO.: FS-20-000126-0000 DATE: 2023 03 28 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SANJAI “SANJAY” MALAVIYA Applicant D. Gelgoot, V. Amyot, and H. Niman for the Applicant

- and -

ANU DHIR Respondent H. Hansen and M. Edwards, for the Respondent

HEARD: October 3, 2022

SUMMARY JUDGMENT MOTION

REASONS FOR DECISION L. Shaw J.

Overview

[1] Following a common law relationship of approximately 18 years, the applicant and respondent separated in February 2020. They have two children who are, respectively, 14 and 6 years old. On consent, the issues of parenting and support were resolved on a temporary basis. Mr. Malaviya is paying Ms. Dhir $25,000 per month in child support and 100% of all s. 7 expenses including private school tuition. He also agreed to pay temporary spousal support of $50,000 per month.

[2] On December 14, 2005, while they were living together, the parties entered into a Cohabitation Agreement (the “Agreement”). In this proceeding, the respondent, Ms. Dhir, seeks an order setting aside that Agreement pursuant to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F-3 (the “FLA”) based on unconscionability, undue influence, duress, and inadequate financial disclosure. If the Agreement is set aside, she is advancing a trust interest in a business Mr. Malaviya owned and sold during the relationship for approximately $115 million. She also advances a claim that the business was a joint family venture.

[3] The applicant, Mr. Malaviya, moves for partial summary judgment to dismiss Ms. Dhir’s claim to set aside the Agreement pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 under Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “FLR’s”) on the basis that there is no genuine issue requiring a trial.

[4] The record before me for this three-hour motion consisted of approximately 2,000 pages of evidence, including affidavits, transcripts, and factums, plus approximately 1,000 pages of jurisprudence. Mr. Malaviya filed two affidavits, a 296-page exhibit brief from the questioning, and a 454-page compendium which was not referred to during oral submissions. Ms. Dhir filed three affidavits. She also filed an affidavit from Dr. Bonomi attaching a report from Dr. Bonomi about the impact of coercive control on women’s decision-making generally and, more specifically, the impact on Ms. Dhir’s ability to freely enter the Agreement. Mr. Malaviya’s position is that I ought not consider that opinion evidence.

[5] Neither party filed affidavits from the lawyers who were involved in the negotiation of the Agreement which, in my view, is important evidence that ought to have been included, presuming privileged was waived.

[6] For the reasons that follow, Mr. Malaviya’s motion is dismissed.

Position of the Parties

[7] At the core of the dispute are the two different narratives of the nature of Ms. Dhir’s and Mr. Malaviya’s relationship and how the Agreement was negotiated. The evidence from the parties is significantly at odds in that regard.

[8] Mr. Malaviya asserts that there is a sufficient evidentiary record upon which I can make findings of fact and dismiss Ms. Dhir’s claim. He also argues that Ms. Dhir has not provided any evidence to support her bald allegations of coercive control during the relationship leading to duress when she signed the Agreement. In a nutshell, he claims that Ms. Dhir has constructed a false narrative of an abusive relationship as a basis to advance a claim in his business. He also disputes Ms. Dhir’s claim that he provided insufficient financial disclosure when the Agreement was negotiated. Mr. Malaviya argues that Ms. Dhir has failed to put her best foot forward in responding to this summary judgment motion and that she has not shown there to be a triable issue that ought to proceed to trial.

[9] Mr. Malaviya relies on the following uncontested evidence to support his summary judgment motion:

1. Ms. Dhir had a lawyer who represented her in the negotiations and made changes to the Agreement before it was signed by the parties;
2. The Agreement includes a term that Ms. Dhir was not under duress, understood the Agreement, had independent legal advice, and was satisfied with the financial disclosure she received from Mr. Malaviya;
3. Ms. Dhir signed an Acknowledgment to her lawyer on the day the Agreement was signed confirming, amongst other things, that her lawyer’s advice was that the Agreement was not in her best interest, that the Agreement should not be signed until Ms. Dhir’s lawyer obtained a copy of the Shareholder’s Agreement from Mr. Malaviya’s business, and that Ms. Dhir was not suffering from any duress or undue influence; and
4. A reporting letter to Ms. Dhir from her lawyer dated January 3, 2006 reviewing the Agreement.

[10] Mr. Malaviya also denies that there was any element of coercive control during their relationship and points to evidence that Ms. Dhir is a highly educated and successful businessperson who would not be a victim of such coercive control.

[11] Ms. Dhir’s position is that there is a triable issue regarding the nature of her relationship with Mr. Malaviya. Ms. Dhir argues that Mr. Malaviya exercised coercive control over her during their relationship, and as a result, she was under duress when she signed the Agreement even though she was represented by a lawyer. She also alleges that Mr. Malaviya did not provide sufficient financial disclosure regarding the value of his shares in his business that she waived any claim to in the Agreement.

[12] Ms. Dhir’s evidence is that her relationship with Mr. Malaviya was marked with demeaning behaviour towards her that negatively impacted her self-esteem to such a degree that she felt she had no choice but to sign the Agreement. Her evidence is that even though she had a lawyer, such legal representation could not protect her from the effects of years of coercive control. Furthermore, when Mr. Malaviya told her that he wanted her to sign the Agreement or he would leave the relationship, she was in a highly vulnerable state, having had three abortions during her relationship with Mr. Malaviya, with the last one being just months earlier.

[13] For the reasons that follow, I find that this is a dispute that cannot be resolved by way of a summary judgment motion. Central to a determination if the Agreement should be set aside will be an assessment of the credibility and reliability of the parties, and their evidence of the nature of their relationship. If the trier of fact accepts Ms. Dhir’s evidence, the trial judge could find that the Agreement should be set aside.

[14] While s. 16 of the FLR’s authorizes me to make credibility and reliability assessments, in my view, it is in the interest of justice for such powers to be exercised at a trial.

Legal Framework for Summary Judgment

[15] Before reviewing the evidence, I will summarize the legal framework for summary judgment motions.

[16] Rule 16 of the FLR’s governs motions for summary judgment. Pursuant to r. 16(4), the party making the motion shall serve an affidavit that sets out specific facts showing that there is no genuine issue requiring a trial. According to r. 16(4.1), the responding party may not rest on mere allegations or denials but must set out specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial, the court shall make a final order.

[17] Rule 16(6.1) sets out the following powers the court may exercise to determine if there is a genuine issue for trial, unless it is in the interest of justice for such powers to be exercised only at a trial:

i) weighing the evidence; ii) evaluating the credibility of a deponent; iii) draw any reasonable inference from the evidence.

[18] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that a matter should be resolved by summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and apply the law to those facts, and (ii) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak, at para. 49. The Supreme Court specifically found that summary judgment rules are to be interpreted broadly; the focus must be on providing access to justice in a timely manner: Hryniak at para. 5.

[19] The principles laid out in Hryniak apply to summary judgment motions in family law matters; parties must put their best foot forward and the motions judge is entitled to assume that the evidence before the court is the best evidence available: Chao v. Chao, 2017 ONCA 701 at para. 24.

[20] In Solcz v. Solcz, 2012 ONSC 8457, Kraft J. reviewed a number of decisions which have considered the term “no genuine issue for trial.” At para. 76, she summarized the case law as follows:

The term “no genuine issue requiring a trial” set out in r.16(6) has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following: “no chance of success;” “manifestly devoid of merit”, or “the outcome is a foregone conclusion” or “no realistic possibility of an outcome other than that sought by the applicant.”

[21] The purpose of a summary judgment motion is to provide an expeditious and cost-effective process for matters to be resolved in a timely fashion without proceeding to trial. In determining if there is no genuine issue requiring a trial, I must be satisfied and confident that I can make findings of fact and apply the legal principles to arrive at a just and fair determination of the issue I am being asked to determine. In this matter, the issue is whether Ms. Dhir’s claim to set aside the Agreement should be dismissed in a summary fashion.

Review of the Evidence

a) Background

[22] Given Ms. Dhir’s position that she was under duress at the time she signed the Agreement, it is necessary to review the evidence regarding the parties’ background, the nature of their relationship – which, as is often the case, is viewed differently by the parties – and the circumstances surrounding the negotiations leading to the signing of the Agreement.

[23] Mr. Malaviya is a business owner and entrepreneur. Before he met Ms. Dhir, he co-founded Radicalogic Technologies Inc.(the “company”), which developed risk management software for healthcare providers. In 2018, he sold his interest in the company to Datix Holdco Ltd. for $115 million. The two companies merged and now operate as RLDatix. Mr. Malaviya is a director and board member of RLDatix.

[24] According to Mr. Malaviya, Ms. Dhir has an undergraduate degree in arts and science from the University of Toronto, a law degree, and a business degree from Harvard. She has co-founded two private mining companies and has sat on the board of directors of several multinational corporations. She currently operates her own business known as Wshingwell Inc., aimed at facilitating private school payments. She also continues to sit on various company boards.

[25] Ms. Dhir does not dispute this description of her background, but her evidence is that following the birth of their oldest child in 2008, she left working full-time but then had to return to work and sat, on an irregular basis, on the board of several corporations as Mr. Malaviya refused to contribute to many of the children’s expenses.

[26] There is no dispute that both parties are successful and accomplished individuals. As will be discussed, it is Mr. Malaviya’s position that given Ms. Dhir’s education level and business acumen and success, she is not the type of person who would be in an unequal bargaining position and would certainly be strong enough to assert her own demands in negotiating a contract.

b) The Relationship

[27] The parties became involved in a relationship starting in 2000-2001. Ms. Dhir was married at the time and was living with her husband in the United States when her relationship began with Mr. Malaviya; her divorce was finalized in 2003.

[28] In the spring of 2001, Ms. Dhir learned she was pregnant. At the time, she had moved back to Canada and was living with her first husband in Oakville, Ontario. She alleges that Mr. Malaviya pressured her to terminate the pregnancy and assured her that they would one day have a family. Her marriage to her husband ended at this time.

[29] Ms. Dhir’s evidence is that as a member of the South Asian community, she, her child, and her family would have experienced shame had she chosen to continue with the pregnancy and raise the child on her own, as a divorced woman. She felt that she had no choice but to terminate the pregnancy.

[30] In 2003, Ms. Dhir became pregnant a second time. She alleges that Mr. Malaviya pressured her to terminate the pregnancy, promising her they would start a family. He told her that the timing was not right and that he wanted to focus on building his company to be in a better financial position. According to Ms. Dhir, she felt that she had to acquiesce to Mr. Malaviya’s wishes, and she terminated the second pregnancy.

[31] According to Ms. Dhir, she was profoundly sad to end her second pregnancy. She felt hurt and betrayed by Mr. Malaviya. Her evidence is that she channelled those feelings and focused on being a better partner for Mr. Malaviya and to be “enough” for him.

[32] In the summer of 2005, Ms. Dhir became pregnant for the third time. According to Ms. Dhir, she was overjoyed because she believed the time was right, since the company had become more successful. When she told Mr. Malaviya, he allegedly berated her for getting pregnant and again said he wanted her to terminate the pregnancy. Ms. Dhir agreed as she believed at that time that only Mr. Malaviya would love and support her, and that if she had the baby, she would have to raise the child on her own.

[33] Mr. Malaviya denies that he and Ms. Dhir spoke of starting a family before she became pregnant the first time in 2001. His evidence is that Ms. Dhir told him she was using birth control and when she became pregnant the first time, she admitted that she was not. While he acknowledges being upset as Ms. Dhir had misled him, he denies pressuring her to terminate the pregnancies. His evidence is that Ms. Dhir made the decision each time and he supported it.

[34] Based on the evidence, the third pregnancy was terminated just months before Mr. Malaviya asked Ms. Dhir to enter a cohabitation agreement.

[35] According to Ms. Dhir, Mr. Malaviya preyed on her insecurities about having a family and children, about having a failed marriage, and about her past abortions. She alleges that he also preyed on the power imbalance between them that stemmed from Mr. Malaviya coming from a higher caste than her.

[36] Her evidence is that Mr. Malaviya would tell her that she was lucky he loved her and that if others knew that she had three abortions, they would be disgusted and that would prevent anyone from loving her the way he did. Her evidence is that he would tell her she was lucky that someone from a higher caste and with superior genetics and intelligence wanted a life with her. He allegedly told her she was “used goods” as she was divorced and that no one from their culture would want to be with her. Her evidence is that he would tell her that her skin was too dark and that his mother did not like her due to her dark skin. Mr. Malaviya’s mother did not speak with her, and she was not allowed to attend special events at her home.

[37] Mr. Malaviya denies ever attempting to use Ms. Dhir’s failed marriage, several pregnancy terminations, and the fact his family belonged to a higher caste than hers against her. His evidence is that he does not believe in the caste system and never commented about Ms. Dhir’s skin tone. He agrees that she and his mother did not get along, but it had nothing to do with Ms. Dhir’s skin tone.

[38] Ms. Dhir attached to her affidavit something she wrote in 2008 that she said Mr. Malaviya made her write that said, amongst other things, “show more respect & compassion,” “talk less & more softly,” “always show Sanjai respect & love as I owe this debt to him everyday that I live & breath- I have caused more pain to him that I should not be forgiven for.”

[39] Mr. Malaviya does not dispute that Ms. Dhir wrote this note. His evidence is that he asked her to write it at a time when they were not getting along, as it was a promise she made to him to work on improving their relationship.

[40] According to Ms. Dhir, the emotional fallout from the third abortion was considerable. She felt like a failure and this was reinforced by Mr. Malaviya. Ms. Dhir’s evidence is that she was increasingly worried that her dreams about starting a family would not come true, and she blamed herself.

[41] Despite being highly educated and financially self-sufficient, Ms. Dhir’s evidence is that it did not occur to her that leaving Mr. Malaviya was a viable option. She said it was an all-consuming feeling that she could not do anything without Mr. Malaviya.

[42] In January 2006, Ms. Dhir accepted a job based in the United Kingdom. According to Ms. Dhir, Mr. Malaviya was pleased with this move, as he wanted to expand the company into the UK and the rest of Europe.

[43] Ms. Dhir became pregnant in 2007 and their eldest child was born on June 21, 2008. Ms. Dhir returned to Ontario in 2009. Her evidence is that she was the child’s primary caregiver, but she could not stay home, as Mr. Malaviya told her she had to pay for all expenses related to the children. Their second child was born in 2017.

[44] Mr. Malaviya denies that he exerted coercive control over Ms. Dhir. According to Mr. Malaviya, Ms. Dhir’s claim that his coercive control of her was to such an extent that she could not think for herself is not borne out by the objective evidence. He describes Ms. Dhir as a strong, confident, and assertive person who is capable of “standing her ground.” His evidence is that she was the more dominant personality during their relationship.

[45] In support of his position that she could make decisions on her own and was not dominated by him was her decision to sue a doctor following her first pregnancy, that he did not agree with. She also made a decision to conceive their son using IVF.

c) The Cohabitation Agreement

[46] According to Mr. Malaviya, when he and Ms. Dhir were living together for approximately three years, he asked her to enter a cohabitation agreement as he wanted to protect his interest in the company. He was a party to a Shareholder’s Agreement dated December 21, 2011 that required a sale of his shares in the company if he became subject to an order under the FLA requiring that his shares be transferred, changed, encumbered, attached, seized, or sold.

[47] Mr. Malaviya’s evidence is that he made it clear to Ms. Dhir that if she was not prepared to enter the Agreement, he did not wish to continue their relationship. He denied that he said this as a threat or ultimatum to her, but, rather, asserts that he said this to convey how important it was to him to protect his interest in the company.

[48] Mr. Malaviya’s evidence is that he and Ms. Dhir each retained their own lawyer to negotiate terms of the Agreement. He retained Ms. Lorna Yates and a draft agreement was prepared in October 2005.

[49] According to Mr. Malaviya, the negotiations regarding the agreement lasted two months. Ms. Dhir’s lawyer made a number of changes to the original draft Agreement his lawyer prepared, which he says he accepted. Correspondence between the two lawyers during the negotiation process was filed supporting Mr. Malaviya’s evidence that there was a negotiation process before the Agreement was signed.

[50] According to Ms. Dhir, in mid-fall of 2005, while she was still vulnerable from her third abortion, Mr. Malaviya told her that if she did not sign a cohabitation agreement, he would move out. He told her that it was a term of the shareholder’s agreement that all shareholders prevent their spouses from obtaining an interest in the company.

[51] Her evidence is that he told her that if she loved and trusted him, she would sign a cohabitation agreement for him, as it was about protecting the company. According to Ms. Dhir, they had never previously discussed a cohabitation agreement.

[52] According to Ms. Dhir, on November 1, 2005, Mr. Malaviya forwarded to her a draft agreement he received from his lawyer. Her evidence is that he told her to sign it, or he would leave by the end of the week. He then moved into the guest room.

[53] Ms. Dhir’s evidence is that she did not know any family law lawyers and was given the name of Antonette Barreto by either Mr. Malaviya or his lawyer.

[54] Ms. Dhir’s evidence is that Mr. Malaviya told her that he would not agree to any material changes to the substantive terms of the agreement other than a change relating to their wills. According to Ms. Dhir, Mr. Malaviya became quite upset when her lawyer proposed alternative language in the Agreement regarding property issues. Her evidence is that when they got home that evening, after her lawyer proposed changes, Mr. Malaviya became upset and told her he would leave her forever if she did not sign, that she would never have the chance to have children and a family as she was “used goods,” and that no one could love her given all of her mistakes with the pregnancies. He told her that if she truly loved him, she would trust him. Her evidence is that she felt that she had no choice but to sign.

[55] Mr. Malaviya denies that he became upset with Ms. Dhir regarding proposed changes. He denies referring to Ms. Dhir as “used goods” or suggesting that she owed him for “screwing up with the pregnancies.”

[56] His evidence is that a number of changes were requested and that he accepted many of them, including a term that spousal support rights would remain open if their relationship lasted more than seven years or if they had a child.

[57] When she was cross-examined on her affidavit, Ms. Dhir agreed that her lawyer added the following to the agreement:

• a term that spousal support would be open if they lived together for more than seven years or had children
• the agreement would expire if they married
• she was given the first right of refusal to purchase the home in which they were living.

[58] Ms. Dhir also agreed that on December 7, 2005, her lawyer sent Mr. Malaviya’s lawyer a letter attaching a blacklined draft of the Agreement with the proposed changes. Ms. Dhir agreed on cross-examination that these were material changes, but her evidence was that it was her lawyer, not herself, who wanted these changes.

[59] One of the changes made by Ms. Dhir’s lawyer was the insertion of a paragraph acknowledging that each of the parties disclosed to the other his or her net worth and had no significant assets, debts, or other liabilities other than those listed in the schedule attached to the agreement.

[60] According to Mr. Malaviya, Ms. Dhir is a sophisticated businessperson who has two post-graduate degrees. He denies that there was any power imbalance when they negotiated the Agreement; both were represented by counsel.

[61] The main terms of the Agreement at issue are those in which Ms. Dhir releases any claim she has to the company. Some of the relevant terms are as follows:

3 Each party intends this Agreement…. (b) to protect Sanjay’s interest in rL Solutions in accordance with the Shareholder’s Agreement

8 Support after Breakdown of Relationship (f)This Agreement has been negotiated in an unimpeachable fashion and fully represents the intentions and expectations of the parties. Both parties have had independent legal advice and all the disclosure they have asked for and need in order to understand the nature and consequences of this Agreement and to come to the conclusion, as they do, that the terms of this Agreement, including the release of all Spousal Support rights, constitutes and equitable sharing of both the economic consequences of their relationship if there is a breakdown of same.

10 Constructive Trust Except as provided by this Agreement, each party waives all rights and entitlement to, and releases and discharges the other and his or her estate from all claims that he or she has on the effective date of this Agreement or may later acquire in equity by way of constructive, implied, or resulting trust, or by way of any other doctrine of equity, and at law under the Family Law Act and the laws of any jurisdiction to: (a) compensation; or (b) any interest or right in Property (including an interest in rL Solutions that Anu may claim or any interest in Anu's Options that Sanjay may claim), or amount of money measured by reference to the value or increase in value of Property (including an interest in rL Solutions that Anu may claim or any interest in Anu's Options that Sanjay may claim) owned by the other, by reason of: (c) the transfer of Property to the other without any payment or adequate payment or other due consideration; or (d) work, money, or money's worth contributed to the acquisition, management, maintenance, repair, operation, or improvement of Property (including an interest in rL Solutions that Anu may claim or any interest in Anu's Options that Sanjay may claim); or (e) any other fact or circumstance creating a beneficial interest in Property (including an interest in rL Solutions that Anu may claim or any interest in Anu’s Options that Sanjay may claim).

21 Release against Property (a) Except as provided in this Agreement, each of the parties’ releases and discharges all rights and claims each now has or may afterward acquire relating to Property in which the other had, has, or may have an interest, including all rights and claims involving: i) possession of Property; ii) ownership of Property; (iii) division of Property; (iv) compensation for contributions of any kind, or an interest in Property for contributions of any kind; and, (v) equalization payments of any kind, under the Family Law Act. (b) Each party acknowledges that neither holds any Property in trust for the other, whether by way of resulting trust, constructive trust, implied trust, or any other type of trust.

23 Financial Disclosure Each of the parties acknowledges that he or she: (a) has fully and completely disclosed to the other the nature, extent, and value of all of his or her significant income, assets, debts, or other liabilities existing at the date this Agreement was made; (b) has made such investigation of the financial circumstances of the other as he or she considers reasonable; (c) is satisfied with the information furnished and disclosure made; and (d) has made no requests for information or particulars that have not been met to his or her complete satisfaction. As evidence of the disclosure referred to above the parties have agreed to append hereto as Schedules "A" and "B" their respective Statements of Net Worth, and which they further acknowledge formed the basis of the disclosure referred to herein.

28 Independent Legal Advice The parties acknowledge that: (a) Sanjay has had independent legal advice from Loma M. Yates and Anu has had independent legal advice from Antonette Barreto; (b) each of them understands his or her rights and obligations under this Agreement, and the nature and consequences of this Agreement; (c) the Agreement is fair and reasonable; d) each of them is not under any undue influence, duress, or fraud; and (e) each of them is signing this Agreement voluntarily.

[62] A Statement of Net Worth for both parties was attached to the Agreement which set out the assets, debts, and income of each as follows:

SCHEDULE "A"

SANJAY'S STATEMENT OF NET WORTH

SANJAY'S ASSETS 1/4 Interest in 145 Massey Street, Toronto, Ontario $300,000.00 Household contents $7,500.00 1989 Honda CRX $2,000.00 2002 Ducati Monster (Motorcycle) $5,000.00 Bank Accounts (cash) TD Canada Trust $20,000.00 TD Canada Trust RRSP $51,000.00 RBC RRSP $37,000.00 TD Waterhouse Investment Account $9,000.00 33.3 per cent interest in rL Solutions Inc. $970,000.00 Total Assets $1,399,700.00

SANJAY'S LIABILITIES 1/2 Interest in CIBC Mortgage re: 145 Massey Street Toronto, Ontario $300,000.00 Contingent Debt re: guarantees on rL Solutions Loan BDC Bank $225,000.00 Contingent Debt re: disposition of stocks and RRSPs Unknown * to be calculated by accountant upon Breakdown of the Relationship Total Liabilities $525.000.00 Sanjay's Net Worth $874,700.00 Sanjay's Income from all sources (2004) $87,006.00

SCHEDULE "B"

ANU'S STATEMENT OF NET WORTH

ANU'S ASSETS 1/2 Interest in 145 Massey Street, Toronto, Ontario $300,000.00 Household contents $7,500.00 Options As set out on Schedule B(i), attached Jewellery $7,500.00 Vehicle $8,000,00 TD Waterhouse Investment Account (CDN) $75,664.74 TD Waterhouse Investment Account (U.S.S) $19,648.37 ETrade Investment Account (U.S.$) $7,884.59 Haywood Securities Investment Account $13,500.00 Jones Gable Investment Account (CDN) $23,138.46 Jones Gable Investment Account (U.S.$) $156,060.00 TD Canada Trust (cash) (CDN) $2,900.63 TD Canada Trust (cash) (U.S.$) $99.63 Bank One (cash) (U.S.$) $60.17 TD Canada Trust RRSP $235.51 TD Waterhouse RRSP $27,523.83 Total Assets $649.715.93 (not incl. Schedule B(i))

ANU'S LIABILITIES 1/2 Interest in CIBC Mortgage re: 145 Massey Street Toronto, Ontario $300,000.00 RBC Vehicle Loan (est.) $10,000.00 TD Canada Trust Loan re: RRSP $3,400.00 Credit Cards $7,000.00 John McBride MOTO Stock $4.500.00 Contingent Debt re: disposition of stocks, options and RRSPs Unknown * to be calculated by accountant upon Breakdown of the Relationship Total Liabilities $324,900.00 Anu's Net Worth $324,815.93 Anu's Income from all sources (not incl. options) $68,000.00

[63] Schedule B(i) set out a list of numerous shares and options held by Ms. Dhir but no value was attached to those assets.

[64] In addition to the terms of the Agreement, Mr. Malaviya also relies on the certificate signed by Ms. Barreto that is attached to the Agreement that states as follows:

CERTIFICATE AND AFFIDAVIT OF SOLICITOR I, Antonette Barreto, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:

1. I am the solicitor for Anu Dhir and a subscribing witness to this domestic contract. I was present, and saw it executed at the City of Toronto by her.
2. I believe that the person whose signature I witnessed is the party of the same name referred to in the contract.
3. I have advised Anu Dhir with respect to this domestic contract and believe that she is fully aware of the nature and effect of the domestic contract on and in light of her present and future circumstances and is signing it voluntarily.

[65] Ms. Dhir also signed a two-page acknowledgement to her lawyer dated December 14, 2005 confirming that Ms. Barreto had provided her with independent legal advice regarding the agreement. That acknowledgment states as follows:

ACKNOWLEDGEMENT I hereby acknowledge that:

1. You have provided me with independent legal advice with respect to a Cohabitation Agreement, a copy of which is attached hereto;
2. You have advised me that, in your opinion, the terms of the attached Cohabitation Agreement are not in my best interests;
3. You have advised me to obtain Mr. Malaviya's Shareholder's Agreement for Radicalogic Technologies Inc., a company in which Mr. Malaviya has thirty-three (33%) percent interest and which Shareholder's Agreement is referenced in various paragraphs as contained in the Cohabitation Agreement;
4. You have recommended that I not execute the attached Cohabitation Agreement without first obtaining and reviewing a copy of the aforementioned Shareholder's Agreement;
5. You have recommended that I not execute the attached Cohabitation Agreement until such time as I account for any retained earnings in Radicalogic Technologies Inc. (which Sanjay may elect to keep in such company), when determining his income for future spousal support purposes;
6. Against your recommendation, I have advised you that I am agreeable to and have instructed you to include in my income, all unexercised options, and contingent gains from unrealized options in determining my income for future spousal support purposes notwithstanding that Mr. Malaviya is not accounting for any retained earnings in Radicalogic Technologies Inc. in determining his income for future spousal support purposes;
7. I have advised you that I have reviewed the Shareholder's Agreement for Radicalogic Technologies Inc. previously and I am comfortable with the financial disclosure that I have received, however, you have advised me against signing this Cohabitation Agreement without having received a copy of the Shareholder's Agreement for your review. I do not want to obtain a copy of the Shareholder's Agreement and have caused you not to pursue our obtaining such copy;
8. I understand your advice and the reasons underlying your recommendation, as well as the nature and effect of the attached Cohabitation Agreement;
9. I am not suffering from any duress, undue influence, lack of capacity or other circumstances in any way limiting my free will; Notwithstanding the above, I have decided to execute the attached Cohabitation Agreement. I instruct you to proceed accordingly.

[66] While Ms. Dhir’s evidence is that she probably did not read this document before she signed it, she agreed when cross-examined that the statements were truthful when she met with her lawyer.

[67] Ms. Dhir’s lawyer sent her a reporting letter dated January 3, 2006 in which she confirmed that: 1) she met with Ms. Dhir on several occasions and had numerous telephone discussions with her; 2) she engaged in negotiations with Ms. Yates regarding the terms of the agreement; 3) a significant reason for the agreement was to protect Mr. Malaviya’s interest in the company in the event of a separation; and 4) despite her advice, Ms. Dhir instructed Ms. Barreto not to obtain a complete copy of the Shareholder’s Agreement.

[68] Ms. Dhir’s evidence is that Mr. Malaviya refused to provide her with a copy of the company’s Shareholder’s Agreement during their negotiations. She says that Mr. Malaviya accused her of not trusting him and refused to give her the Shareholder’s Agreement. She agrees that she signed an acknowledgment that she had reviewed a copy of it, but her evidence is that she did so as Mr. Malaviya wanted the Agreement signed and he was growing more upset and their homelife was becoming more precarious.

[69] Mr. Malaviya denies refusing to produce the Shareholder’s Agreement and says he had no reason to withhold it. His evidence is that he explained to Ms. Dhir that the Shareholder’s Agreement required him to protect his shares from being transferred, charged, or sold, etc., as part of a family law proceeding. According to Mr. Malaviya, Ms. Dhir could have insisted on receiving a copy of the Shareholder’s Agreement, but she did not.

[70] Mr. Malaviya’s evidence is that they did not exchange any supporting documentation regarding the assets and debts listed in their Statements of Net Worth attached to the Agreement and that Ms. Dhir made a choice to sign without receiving any other disclosure.

d) The Company

[71] According to Ms. Dhir, after the termination of her second pregnancy in 2003, the company started to do better. She says that Mr. Malaviya sought her input on issues. He referred to everyone at the company as family and they often entertained colleagues, employees, and others at the home. Ms. Dhir did all the meal preparation and cleaning. She says she helped with hiring employees.

[72] Ms. Dhir’s evidence is that when the company was in its infancy, she invested $190,000 of her own funds. She also introduced her then-boss to Mr. Malaviya who invested $150,000 into the company. According to Ms. Dhir, when the company was sold, Mr. Malaviya paid her former boss $20 million to repay his initial investment. She has not been paid anything for her investment.

[73] Mr. Malaviya does not dispute that Ms. Dhir advanced these funds to him, but there was no agreement that this gave her an interest in the company. The funds were used to buy shares. According to Mr. Malaviya, the parties would assist each other financially during the relationship. For example, he paid for her education at Harvard.

Analysis

[74] I will start with reviewing the general legal framework for setting aside a domestic contract under the FLA. I will then review the legal framework for the grounds that Ms. Dhir relies upon to set aside the Agreement: insufficient disclosure, duress, unconscionability, and undue influence. Governed by that legal framework, I will then consider the evidentiary record before me. I will decide whether there is a genuine issue requiring a trial with respect to whether Ms. Dhir’s claim to set aside the Agreement should be dismissed.

i) Legal Framework

[75] Courts have long recognized that agreements reached between spouses, particularly where they have both had independent legal advice, should be respected: Hartshorne v. Hartshorne, 2004 SCC 22, 1 S.C.R. 550 at para. 9. There are circumstances, however, where the court will set aside such agreements.

[76] The statutory framework to set aside domestic contracts is found in s. 56(4) of the FLA, which states as follows:

(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.

[77] The onus is on the party seeking to set aside the agreement to prove that it should be set aside: Dougherty v. Dougherty, 2008 ONCA 302 at para. 11.

[78] Grounds that would justify setting aside a domestic contract include the following contractual concepts: unconscionability, undue influence, duress, uncertainty, mistake, misrepresentation, fraud, and repudiation of a term of the contract: Ward v. Ward, 2011 ONCA 178 at para. 21.

[79] In LeVan v. LeVan, 2008 ONCA 388 (Ont. C.A.) at para. 51, the court found that there was a two-part test to consider in an application to set aside an agreement pursuant to s. 56(4) of the FLA as follows:

a) The court must determine if the party seeking to set aside the agreement can demonstrate that one or more of the circumstances in subsections (a) to (c) have been engaged; and b) If the moving party has fulfilled the first part, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement.

[80] In Turk v. Turk, 2015 ONSC 5845, at para. 55, Kiteley J. summarized the factors the court must consider in exercising its discretion to determine if an agreement should be set aside as follows:

(a) whether there had been concealment of the asset or material misrepresentation; (b) whether there had been duress, or unconscionable circumstances; (c) whether the petitioning party neglected to pursue full legal disclosure; (d) whether he/she moved expeditiously to have the agreement set aside; (e) whether he/she received substantial benefits under the agreement; (f) whether the other party had fulfilled his/her obligations under the agreement.

[81] In J.L.S. v. D.B.S., 2016 ONSC 1704, Skarica J. set out a summary of the law regarding setting aside domestic contracts at para. 29 as follows:

The Superior Court has recently clearly enunciated the law regarding the setting aside of domestic contracts in Harnett v. Harnett, 2014 ONSC 359 supra,

90 A domestic contract will be set aside when a party was unable to protect his or herself. Such cases are generally predicated upon a finding that one party has preyed upon the other or acted in a manner to deprive the other of the ability to understand the circumstances of the agreement.

91 The court is less likely to interfere when the party seeking to set aside the agreement is not the victim of the other, but rather his or her own failure to self-protect. The Ontario Court of Appeal in Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.) says that the court will step in to “protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position.”

92 The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (ONCA)

93 The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (Ont. C.A.).

94 The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court’s discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan, 2008 ONCA 388, 2008 CarswellOnt 2738, ONCA.

[82] Based on these principles, the onus is on Ms. Dhir to establish that one of the grounds set out in s. 56(4) of the FLA applies and that the court should exercise its discretion to set aside the agreement.

a) Insufficient Financial Disclosure

[83] Ms. Dhir alleges that the complete Shareholder’s Agreement for the company was not produced. Mr. Malaviya contests this. What is not in dispute is that no supporting documentation was provided by either party regarding the value of their assets and debts listed in their Statement of Net Worth attached to the Agreement, including the value of Mr. Malaviya’s shares in the company.

[84] Disclosure under s. 56(4) of the FLA includes not only the existence of significant assets but also their extent and value: LeVan at para. 57. There is no suggestion that Mr. Malaviya failed to disclose an asset; rather, the suggestion is that there was insufficient disclosure regarding the value of his shares in the company.

[85] In paragraphs 46 and 47 of Mr. Malaviya’s factum, he accurately summarizes the law regarding failure to disclose as follows:

Failure to Disclose

46. In considering whether to set aside a contract for non-disclosure, the court should employ a two-stage analysis. First, the party seeking to set aside the contract must demonstrate that the other party failed to discharge its duty to disclose significant assets. This includes the making of a material misrepresentation about the true value of assets or the failure to disclose changes in income. If a court finds a party has failed to disclose a significant asset, it must then determine in light of the facts whether to exercise its discretion to set aside the contract on this basis. In doing so, the court will consider a number of factors, including: a) whether the party who did not make full disclosure was asked or refused to do so; whether that party misrepresented or concealed financial facts; whether the other party had full financial information in any event; and, whether the other party would have signed the contract even if the disclosure had occurred; b) whether the party relied on the non-disclosure or misrepresentations in entering into the separation agreement in the sense that the party would not have entered the agreement had she known the true value of the assets; c) whether a party consented to incomplete disclosure, or was otherwise aware of the asset and had the means to ascertain its value; d) whether one party took benefits under the contract and then moved to set it aside; and e) whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosure; whether she moved expeditiously to have the agreement set aside; and whether the other party had fulfilled his obligations under the agreement. Quinn v. Epstein Cole LLP, 2007 ONSC 45714, [2007] O.J. No. 4169 (S.C.J.) at para 47

47. A party to a marriage contract cannot enter into it knowing of shortcomings in the disclosure and then rely on those shortcomings as the basis to set aside the contract.

b) Duress

[86] Duress originally was considered the coercion of the will of another to execute a contract through the infliction of violence or threats of violence around the time of the negotiation and execution of the agreement. The concept has been expanded such that evidence of emotional, psychological, or verbal abuse, as well as intimidation tactics and other forms of controlling behaviour by one person that cause fear in the mind of the other party may also be a foundation for a duress claim: Bennett v. Bennett, 1997 34 R.F.L. (4th) 290 (ON SC).

[87] In Kinsella v. Mills, 2020 ONSC 4785, Chappel J. thoroughly reviewed the law regarding duress and found as follows at para. 352:

In the context of domestic contracts, the dynamics of the parties’ relationship and of the interactions between them around the time when the contract was signed may be relevant to the duress analysis. For instance, evidence of a history of abuse or intimidation may provide a critical backdrop to appreciating the undercurrents that were at play when the contract was executed, and whether the aggrieved party acted under coercion that fell within the realm of duress [citation omitted]. The court should also consider the ability of the complaining party to resist any pressure when the contract was completed, and in particular, whether they were struggling with any physical, emotional, or psychological difficulties that may have impaired their ability to do so.

[88] In Turk, Kiteley J. found at para. 93 that duress was a state of mind and that it occurs where there is pressure placed on a person to the extent that any consent of that party is not sufficient to uphold the agreement. She referred to it as an absence of choice which vitiates any ability to consent. Kiteley J. concluded at para. 93 that duress can be established based upon actual or threatened violence, or upon economic considerations.

[89] Turk also involved a summary judgment motion. Kiteley J. concluded that based on the evidentiary record before her, she could not fairly and justly determine the issue of duress. She found that there was a genuine issue for which a trial was required. At para. 98, she wrote:

The question of duress is fundamentally a question of credibility as between the Applicant and the Respondent. The question of duress is engaged as one factor in the s. 56(4)(c) analysis but is also engaged in the disclosure factor in s. 56(4)(a). While rule 16(6.1) gives me the authority to evaluate the credibility of the parties, I am not confident that I can make findings of the necessary facts and apply the relevant legal principles so as to resolve that aspect of the dispute. In this case, it is in the interest of justice for that power to be exercised only at the trial.

[90] Concern and anxiousness are not sufficient bases to prove duress: Turk v. Turk, 2017 ONSC 6889 at para. 315, affirmed in Turk v. Turk, 2018 ONCA 993.

c) Unconscionability

[91] Unconscionability involves concerns regarding fundamental deficits in the negotiation process. The circumstances at the time of drafting and signing of the contract must be considered and not just the results.

[92] In Rosen v. Rosen (1994), 3 R.F.L. (4th) 267 (Ont. C.A.), the court held at para. 12 that the question to be answered in determining if there was unconscionability is whether there was inequality between the parties, or a preying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interest of the vulnerable. At para. 13, the court noted that contracting parties are seldom equal, but it is the taking advantage of that ability to prey on the other that produces the unconscionability.

d) Undue Influence

[93] The doctrine of undue influence is intertwined with unconscionability. It requires the court to inquire into whether the agreement was improvident and if so, whether there was an inequality of bargaining power: A.P. v. F.D., 2016 ONSC 2566 at para. 49.

ii) Is there a Genuine Issue for Trial?

[94] As I noted above, the parties filed approximately 3,000 pages for this three-hour motion, including case briefs. While there was some repetition (such as the compendium), that volume of material, in and of itself, seems to be incongruous with a summary determination of the issue.

[95] I am also mindful that if the process does not leave me confident that I can reach a just and fair adjudication of the issues, then a summary judgment motion is not the proportionate way to resolve the dispute.

[96] When assessing the evidentiary record before me, I do have some concerns with Ms. Dhir’s overall credibility. First, she gave conflicting evidence in an affidavit filed for this motion and in an affidavit filed in a previous action involving her former husband with respect to why she moved to Oakville. In her affidavit filed for this motion, she deposed that in the spring of 2001, she moved to Oakville from the United States, where she had been living with her husband, to be closer to Mr. Malaviya who she says made it clear to her that if they were going to continue their affair, she needed to be closer to him. However, in an affidavit she swore on September 11, 2002 in a motion for support from her former husband, Ms. Dhir deposed that “In the spring of 2001, Rajiv told me it was time for me to move back to Toronto. He said that the Oakville house needed to be furnished and looked after property [sic]. He said that he needed me in Toronto so that I could accompany him to Accenture social events.”

[97] A second inconsistency relates to a home the parties owned in Toronto. Ms. Dhir deposed in her affidavit for this motion that when she bought a house on Massey Street in Toronto, she paid the down payment but agreed to put Mr. Malaviya on title as a joint owner. She deposed that this was an example of his control over her. However, this is inconsistent with the Agreement which states that each party contributed $56,250 to the purchase price.

[98] I am also troubled by Ms. Dhir’s evidence that she did not know a lawyer to retain to provide her with independent legal advice regarding the Agreement and that Mr. Malaviya or his lawyer referred her to a lawyer. Ms. Dhir was represented by a lawyer from Epstein Cole LLP, a leading family law firm, when she was in litigation with her first spouse. Ms. Dhir’s explanation when she was cross-examined on her affidavit was that she did not know of a family law lawyer who would act for her to negotiate terms of a cohabitation agreement as compared to family law lawyers who represented people in divorce proceedings. She did not think her lawyer from her first proceeding was a lawyer who would do a “prenup.” As Ms. Dhir graduated from law school, I am somewhat surprised by her explanation and find that it lacks the ring of truth.

[99] These inconsistencies do not, however, lead me to reject the entirety of Ms. Dhir’s evidence on this motion.

[100] If the only issue were whether there was sufficient financial disclosure exchanged during the negotiation process, the evidentiary record would have likely been much more concise with less conflicting evidence, making summary judgment an appropriate process to achieve a just and expeditious resolution.

[101] Ms. Dhir’s position is that there was insufficient financial disclosure provided before she signed the Agreement, as she did not receive the complete Shareholder’s Agreement from Mr. Malaviya. There is no dispute that Ms. Dhir did not request that Mr. Malaviya have his shares in the company valued, nor about the fact that she did not ask him for any other supporting documentation. There is a dispute, however, with respect to whether she asked Mr. Malaviya for a copy of the Shareholder’s Agreement and whether he refused to produce it. Ms. Dhir’s evidence is that Mr. Malaviya would not give her a copy, while his evidence is that he never refused to produce it and would have given her a copy if she insisted upon seeing it before signing the Agreement.

[102] There is no dispute, however, that Ms. Dhir’s lawyer, Ms. Barreto, did not see a copy of the Shareholder’s Agreement. This is confirmed in the Acknowledgement Ms. Dhir signed and in the reporting letter from Ms. Barreto. In both documents, Ms. Barreto confirms her recommendation that the Shareholder’s Agreement be obtained for Ms. Barreto to review but that Ms. Dhir instructed her to proceed without reviewing that document.

[103] Based on the totality of the evidence, If Ms. Dhir’s claim to set aside the Agreement were based only on insufficient financial disclosure, and there was no claim based on duress and undue influence, I would be more inclined to find that there was no genuine issue for trial and grant summary judgment in favour of Mr. Malaviya on the basis of the following uncontested evidence: 1) Ms. Dhir had a lawyer who specialized in family law represent her during the negotiations, 2) Ms. Barreto made specific recommendations regarding the production of the Shareholder’s Agreement, and 3) Ms. Dhir specifically instructed Ms. Barreto to proceed in the absence of that document.

[104] Ms. Dhir chose to sign the Agreement without her lawyer receiving and reviewing the full Shareholder’s Agreement. Ms. Barreto obviously considered that a key document, as according to her reporting letter to Ms. Dhir, a significant reason for the Agreement was Ms. Dhir’s understanding that Mr. Malaviya was obligated by the Shareholder’s Agreement to protect his interest in the company. Despite this recommendation and Ms. Barreto’s opinion, Ms. Dhir signed the Agreement.

[105] If there were no issue of duress, undue influence, or unconscionability, I would find that Ms. Dhir cannot now rely on not receiving the Shareholder’s Agreement to set aside the Agreement based on lack of disclosure. Against the advice of her lawyer, Ms. Dhir made the decision to proceed. Regret and hindsight recognition of a bad decision is not a basis to set aside a domestic contract.

[106] This was not a situation where an Agreement was presented to Ms. Dhir that she signed without any input or changes. According to the reporting letter from her lawyer, Ms. Dhir met her lawyer numerous times on the phone and in person on a few occasions. Based on the Acknowledgement Ms. Dhir signed, she consented to incomplete disclosure, against the specific advice of her lawyer.

[107] Another factor to consider is Ms. Dhir’s failure to act expeditiously to set aside the Agreement. That is a factor the trial judge will have to consider when determining if the court should exercise its discretion and set aside the Agreement. In my view, that factor is of more significance when dealing with a separation agreement rather than a cohabitation agreement. I would not expect a party who signed a cohabitation agreement and is in an ongoing relationship with their spouse to be expected to move expeditiously to set it aside, particularly if one spouse is exerting ongoing coercive control over the other.

[108] Ms. Dhir has also raised an issue about when Mr. Malaviya secured a controlling interest in the company. According to his Statement of Net Worth, he held 33.3% of the shares in the company that he said were worth $970,000 when the parties signed the Agreement in 2005. When he sold the company in 2018, approximately 13 years later, for $115 million, he held a controlling interest. When he was cross-examined on his affidavit, he refused to answer when he secured that controlling interest. Ms. Dhir argues that for Mr. Malaviya to meet his onus on this summary judgment motion, he ought to have provided supporting documentation that he held a minority position in the company in 2005.

[109] In my view, Ms. Dhir’s claim of insufficient financial disclosure is connected to her claim of duress, unconscionability, and undue influence. Ms. Dhir asserts that the reason she did not press Mr. Malaviya for a complete copy of the Shareholder’s Agreement and signed the Agreement against her lawyer’s recommendation given the disclosure issues was because of the coercive control he exercised over her prior to and after the Agreement was executed.

[110] While the Acknowledgment states that Ms. Dhir reviewed the Shareholder’s Agreement and was comfortable with the financial disclosure she received, Ms. Dhir’s evidence is that when she raised the request for disclosure with Mr. Malaviya, he became very upset and said he would leave her forever if she did not sign the Agreement, and he told her that she would never have the chance to have a family with him. Within this context, Ms. Dhir’s evidence is that she felt she had no choice but to sign the Agreement without the disclosure, against her lawyer’s advice.

[111] If Ms. Dhir’s evidence is accepted, the trial judge may conclude that there is a basis to set aside the Agreement based on insufficient disclosure.

[112] Ms. Dhir argues that as a result of the nature of her relationship with Mr. Malaviya, there was inequality between them and that Mr. Malaviya took advantage of her vulnerabilities and insecurities surrounding her divorce and three terminated pregnancies. She also alleges there was a cultural component to the relationship, with both parties being South Asian and Ms. Dhir being from a lower caste. She alleges that Mr. Malaviya made negative comments to her about being from a lower caste, which, if accepted as true, may be another basis to argue an inequality of bargaining positions.

[113] To be clear, Mr. Malaviya denies these allegations.

[114] While the Agreement specifically states that Ms. Dhir was not under duress or undue influence when she signed the Agreement, that is not conclusive evidence that she was not under duress. It is a factor to consider but certainly not determinative of the issue. Furthermore, if the court finds that there was duress or undue influence, the fact that Ms. Dhir was represented by counsel is also not determinative that the Agreement should be found to be enforceable.

[115] I am being asked to make findings about the nature of the parties’ relationship, over a number of years, and whether the nature of that relationship resulted in Ms. Dhir being under duress when she executed the Agreement and if there was an inequality in their bargaining positions that Mr. Malaviya took advantage of to secure an agreement that was to his benefit.

[116] There is no dispute that Mr. Malaviya was seeking to protect his interest in the company: that is why he asked Ms. Dhir to sign an Agreement releasing any claim to it. The changes her lawyer proposed dealt with other issues but not her release in that asset, which was Mr. Malaviya’s goal.

[117] Ms. Dhir is a successful and highly educated businessperson. She and Mr. Malaviya were both sophisticated parties. Mr. Malaviya relies on that to argue that Ms. Dhir would not be the sort of person who could be taken advantage of or be someone who could be subject to coercive control. While her education and successful career are factors to consider in this analysis, it is not determinative.

[118] While a person may be sophisticated, highly educated, and professionally successful, that does not mean that their interpersonal relationships are impervious or immune from unhealthy and coercive dynamics. Specifically, the fact that Ms. Dhir is clearly very intelligent and business-savvy does not preclude a finding that in her relationship with Mr. Malaviya, she was demeaned and emotionally controlled by Mr. Malaviya to the point that she was unable to exert autonomy over her own decision-making process when the Agreement was negotiated.

[119] Mr. Malaviya also argues that Ms. Dhir has only made bald assertions in her affidavit that are not supported by any corroborative or third-party evidence. He argues that bald allegations are insufficient to displace her burden to establish that there is a genuine issue for trial. For example, she has not produced counselling records and he urges me to draw an adverse inference from that.

[120] Often, the only witnesses who can give direct evidence about the nature of a spousal relationship are the parties themselves. I am not persuaded that Ms. Dhir’s evidence on its own is insufficient for her to meet her burden in this summary judgment motion. A couple may present in a certain way in public and yet have a very different relationship “behind closed doors.” This is one of the reasons that credibility and reliability assessments are critical. A paper record with significant conflicting evidence is an insufficient means to make findings about the true nature of the parties’ interpersonal relationship.

[121] I am not troubled by the lack of third-party evidence of Ms. Dhir’s claims of abuse and control during the relationship. That does not mean I accept Ms. Dhir’s evidence, but only that the lack of corroborative evidence is not fatal to her obligation to put her best foot forward on this motion to establish that there is a genuine issue requiring a trial to resolve.

[122] While r. 16(6.1) of the FLR’s specifically provides authority to make credibility assessments on a summary judgment motion, given the nature and extent of the conflicting evidence, in my view, it is in the interest of justice that the dispute be resolved at trial. Viva voce evidence and cross-examinations will be key to resolving this dispute. While factual conflicts do not necessarily mean that a trial is warranted, given the nature and extent of the dispute, I am not prepared to resolve the conflicting evidence on this paper evidentiary record.

[123] There is also evidence that may support Ms. Dhir’s claims of duress and undue influence. First, the letter she wrote to herself in 2008, which Mr. Malaviya does not dispute he asked her to do, is troubling and has a tone that suggests some power imbalance. While this was written after the Agreement was signed, it is evidence the court can consider regarding the nature of their relationship. Second, Ms. Dhir terminated three pregnancies, one within months of being asked to sign a cohabitation agreement. While there is a dispute about who decided to end the pregnancies, I accept that Ms. Dhir was likely in a vulnerable position, having just ended her third pregnancy months before Mr. Malaviya made the request. Third, Mr. Malaviya does not dispute that he told Ms. Dhir the relationship would be over if she did not sign the Agreement. In the context of having just ended a third pregnancy months earlier, this is also evidence that supports Ms. Dhir’s claim of signing the Agreement under duress, despite being represented by counsel.

[124] Ms. Dhir refused to answer questions about whether she spoke to her therapist, who she saw since 2010, about the nature of her relationship with Mr. Malaviya. I agree with Mr. Malaviya that such evidence, if it exists, may be relevant to the issues in dispute, depending on why Ms. Dhir may have seen a counsellor. For example, it may have been to deal with trauma from three terminated pregnancies. I am not prepared, however, to make an adverse inference on this motion from the failure to produce counselling records. I may have been more inclined to do so had Ms. Dhir been seeing a counsellor at the time she signed the Agreement.

[125] I agree with Mr. Malaviya that to prove duress, Ms. Dhir cannot rely upon the stress of the negotiations or her vulnerability alone, unless Mr. Malaviya took advantage of that vulnerability. While she had legal representation during the negotiations, that does not mean she was not a victim of duress, but it is evidence that suggests she was less likely to be a victim.

[126] I have placed no weight on the report of Dr. Bonomi in reaching my decision. I agree with the issues raised by Mr. Malaviya regarding her evidence. If this is expert evidence, it will be for the trial judge to make a determination if her opinion evidence is admissible in dealing with issues of coercive control in general and then specifically if such a dynamic was present in the parties’ relationship. I note that Ms. Dhir’s counsel did not rely to any great extent on this evidence during submissions but pointed out to the court that it was evidence that Ms. Dhir intends to rely upon at trial.

[127] Relationships are nuanced, complicated, and evolve over time. Our understanding of domestic violence has also evolved and is reflected in changes to legislation, including the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and Children’s Law Reform Act, R.S.O. 1990, c. C.12. We now understand that control is no longer just exerted with physical violence but also through the more insidious actions of coercive control. We no longer look to see if a party sustained physical injuries as corroboration of controlling behaviour or power imbalance in a relationship. Coercive control may include acts of emotional and psychological harm for which there may not be any objective evidence.

[128] I am therefore concerned with making findings, in the absence of oral evidence and in the face of very conflicting evidence about the nature of the parties’ relationship. As is often the case, Ms. Dhir and Mr. Malaviya view their relationship differently. Based on the evidentiary record before me, and the extent of the conflicting evidence about their relationship, while I have some credibility concerns regarding Ms. Dhir, I am unable to make the necessary findings of fact to reach a just and expeditious determination. I am not confident that I can make the necessary findings to resolve this matter in the absence of a trial. The credibility issues are too profound to make a determination based on a paper record.

[129] Based on the evidentiary record before me, I find that there is a genuine issue requiring a trial regarding the circumstances surrounding the negotiation and execution of the Agreement. Specifically, the issue to be determined at trial is whether the Agreement should be set aside on the basis of insufficient disclosure, duress, unconscionability, and undue influence. This will require the trial judge to make findings of fact regarding the nature of the parties’ relationship and whether coercive control was exerted to the extent that Mr. Malaviya took advantage of Ms. Dhir’s alleged vulnerability and the unequal bargaining position that arose as a result of that control.

[130] Based on the evidentiary record before me, I do not find that Ms. Dhir’s claim is manifestly devoid of merit. I do not find that that the outcome is a foregone conclusion or that that there is no realistic possibility of an outcome other than what is sought by Mr. Malaviya.

Conclusion

[131] Mr. Malaviya’s summary judgment motion is dismissed.

If the parties cannot agree on costs, any party seeking costs must serve and file costs submissions of no more than three pages, double spaced using 12 pt. font, and Bill of Costs and any relevant offers to settle by May 1, 2023. The responding party is to file a response of no more than three pages, doubled spaced using 12 pt. font, and any relevant offers to settle by May 15, 2023. Any reply, of no more than one page, shall be served and filed by May 29, 2023. This material should also be uploaded to CaseLines, once accepted for filing.

L. Shaw J Released: March 28, 2023