Court File and Parties

COURT FILE NO.: FS-22-080 SUPERIOR COURT OF JUSTICE – ONTARIO 207 Cayley Street, Walkerton ON N0G 2V0

RE: Robert Van der Ende v. Rene Dool

BEFORE: Justice Chown

COUNSEL: E. Winterburn, for the applicant D. Barker, for the respondent

HEARD: May 26, 2023 RELEASED: July 25, 2023

Endorsement

[1] The applicant Robert Van der Ende brings this motion for vacant possession of his property. A more accurate description of what he wants is an order requiring the respondent Rene Dool, his common law wife of 13 years, to leave the property. Ms. Dool opposes the motion on the basis that she cannot afford alternate accommodations, but what she would prefer is enough interim spousal support to allow her to obtain her own accommodations. Mr. Van der Ende denies that Ms. Dool is entitled to support and points to the parties’ cohabitation agreement to support his position. Ms. Dool says the agreement is void or unenforceable.

[2] Ms. Dool has not brought a separate motion for support but takes the position that it can be ordered as a term of any relief granted in Mr. Van der Ende’s motion. This position is not a surprise to Mr. Van der Ende.

Background

[3] The parties began cohabiting in July of 2008 and separated on November 21, 2021. They have no children together. They lived, and although they are separated, they still live, at a residence on Bruce Road 15 in Tiverton. The residence is owned by Mr. Van der Ende. It was his before the parties started cohabiting. He solely paid all household bills and funded any improvements that have been done to the property.

[4] Before cohabitation, the parties signed a professionally prepared cohabitation agreement waiving rights to support and to the property of each other. They each had independent legal advice (ILA), although Ms. Dool disputes the quality of the ILA she received.

[5] Since the separation, Mr. Van der Ende has been living in an apartment in the garage. Mr. Van der Ende is on probation from an assault charge and one of the terms is that he cannot go into the main part of the house, where Ms. Dool stays.

Legal Framework

Three Avenues to Dispute Cohabitation Agreement

[6] There are three avenues open to Ms. Dool to argue that the cohabitation agreement is void or unenforceable or should be set aside. The first avenue is the common law test for unconscionability of contracts. The second avenue is s. 56(4) of the Family Law Act:

(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.

[7] The third avenue is s. 33(4) of the Family Law Act, which deals only with support:

(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;

[8] In Scheel v. Henkelman, 2001 ONCA 1, 52 O.R. (3d) 1 (C.A.), at para. 15, the Court of Appeal referred to this section and stated:

The use of the phrase “results in” in s. 33(4)(a) means that the subsection is not directed to unconscionable agreements, but to unconscionable results of a provision waiving support. An agreement which was fair and reasonable when it was signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application. As for an unconscionable agreement, it may be set aside under s. 56(4) of the FLA, which is a codification of the general law of contract applicable to unconscionable agreements. It differs from s. 33(4), which operates in respect of valid and subsisting domestic contracts and enables the court to set aside a support provision, or a waiver of a right to support, in the contract where such provision “results in unconscionable circumstances.” In other words, s. 33(4) concerns unconscionable circumstances and not unconscionable agreements. [Citations omitted.]

[9] Scheel was an appeal of a trial decision. Bearing this in mind, the next question that arises is: how should the court analyze these issues in an interim motion?

Triable Issue

[10] A recent Superior Court of Justice case that dealt with a similar issue on an interim motion is Gordon v. Zuckerman, 2021 ONSC 4576. That case dealt with a marriage contract and involved application of the Divorce Act as well as s. 33(4) of the FLA. Monahan J. said:

Interim support pursuant to the Divorce Act is not necessarily barred by the waiver of spousal support in an agreement if, on the evidence filed on the motion for temporary support, there is a triable issue as to the enforceability of the waiver.

Monahan J. cited two cases for this proposition: Salzmann v. Salzmann, 2004 ONSC 5009, and Chaitas v. Christopoulos, 2004 ONSC 66352. In Salzmann, at para. 19, MacDougall J. said that “where there is a triable issue as to the enforceability of the agreement” courts have not found the agreement to be an impediment to awarding interim spousal support. He awarded interim support.

[11] In Chaitas, Sachs J. referred to several other cases that allowed support where there was a triable issue over whether a domestic contract barred support, and she awarded interim support. One of the cases Sachs J. relied on was an interim motion in Scheel v. Henkelman, [1999] O.J. No. 1372 (Ont. Ct. (Gen. Div.)) (an earlier decision in the same Scheel case I referenced above) which was an unsuccessful appeal of a master’s order granting interim support pending trial.

[12] A review of these authorities and the cases cited in them shows that a request for interim support will not be barred by the terms in a domestic contract if there is a triable issue over whether the domestic contract is enforceable. The onus is on the support claimant to show there is a triable issue.

Entitlement

[13] Another hurdle Ms. Dool must overcome is entitlement to support. The support claimant must show a prima facie case for entitlement. The principles are set out succinctly in Politis v. Politis, 2015 ONSC 5997, at para. 15, followed in Robson v. Pellerin, 2019 ONSC 6729, and also described in Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at paras. 65, 67 & 68.

A Difficult Problem Until Trial

[14] The Court of Appeal has noted that interim orders may be more prone to error given that they tend to arise from motions rather than trials. But it has also noted that “interim orders are intended to cover a short period of time between the making of the order and trial … the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial”: Sypher v. Sypher [emphasis added]. The parties have a difficult problem here and need an acceptable interim solution. The current circumstance is intolerable in that the parties are living in the same residence while there is a no contact order in place. The available solutions are limited because Ms. Dool will likely find it difficult to secure alternate living arrangements that she can afford. Mr. Van der Ende will potentially be able to get this case on the November 2023 trial list if he presses it forward. If not, then it should be ready for the March 2024 trial list. A final resolution is therefore possible without a great deal of delay.

Evidence on the Motion

[15] The parties have provided succinct affidavits. Some of the facts are highly contested. However, it is not controversial that:

• The parties began living together in the house owned by Mr. Van der Ende in the summer of 2008 and separated on November 21, 2021.

• The parties signed a cohabitation agreement on July 18, 2008. The cohabitation agreement includes a certificate and affidavit of a solicitor for each party indicating that each party received ILA when signing the cohabitation agreement.

• The cohabitation agreement contains the following clauses:

  SPOUSAL SUPPORT WAIVED

  10. Neither party will ever have to pay spousal support to the other. The parties acknowledge that each will be deemed to be self-supporting and not in need of support from the other. Both parties accept the terms of this agreement in full satisfaction of all claims and causes of action which he or she now has or may hereafter acquire against the other for support, whether under the Family Law Act, the Divorce Act, the Succession Law Reform Act, R.S.O. 1990, c. S.26, or otherwise, and whether under presently existing legislation or future legislation whether in this jurisdiction or any other jurisdiction.

  11. Both parties acknowledge that the agreement herein is a fair arrangement and that they have given consideration to their individual financial histories and their present individual financial status. The parties realize that there will be changes in their financial circumstances by reason of their health, the cost of living, their employment, financial mismanagement, financial reversals, windfalls, inheritance or otherwise. No change whatsoever, even if it be catastrophic (and whether or not it is causally connected to cohabitation), will give either party the right to claim or obtain support from the other pursuant to the Family Law Act, the Divorce Act, or any other statute or law or to bring a claim to have the agreement set aside in order to pursue a claim for spousal support from the other party.

• Since 2008, extensive work has been done to the house including an addition of a laundry room.

• The parties kept separate bank accounts throughout their relationship.

• Since separation, Ms. Dool has remained at the property and lives in the main body of the house. Mr. Van der Ende has been staying in a garage apartment on the property.

• Mr. Van der Ende is not permitted in the main body of the house due to the terms of probation for an assault charge for which he received a conditional discharge.

[16] Controversies in the evidence include the following:

• The applicant asserts that there was no financial disclosure when the agreement was signed, and Mr. Van der Ende says there was and that this is expressly acknowledged in the agreement.
• The applicant asserts that the ILA she received was inadequate because the lawyer who provided it does not practice family law. Mr. Van der Ende points out that the lawyer was and is a fully qualified lawyer and was more than capable of providing Ms. Dool with an understanding of the nature and consequences of the cohabitation agreement.
• Ms. Dool says Mr. Van der Ende has harassed her while she has been living on the property “by reducing the heat, playing loud music, screaming, banging on the walls and so on.” Mr. Van der Ende denies this and says he has heard Ms. Dool bang pots and yell and that she “verbally attacked” Mr. Van der Ende and his current girlfriend as they were leaving the property.
• The parties dispute the extent of work done by Ms. Dool in connection with improvements to and maintenance of the house and the parties’ lifestyle. Ms. Dool describes extensive contributions. She describes improving the value of the property and improving Mr. Van der Ende’s financial circumstances. Mr. Van der Ende minimizes Ms. Dool’s contributions.
• The parties disagree over whether Ms. Dool has anywhere to live if she is ordered to leave the property. Ms. Dool says she has nowhere to go and rent in the area is such that she could not afford an apartment. Mr. Van der Ende says she has two children who live in the area with spare bedrooms. However, there is no evidence that the children would be willing or reasonably able to take Ms. Dool in or on what terms.

Financial Circumstances of the Parties

[17] The parties did not file updated financial statements. These were later provided at my request.

[18] Mr. Van der Ende’s financial statement dated February 9, 2023 indicates he is retired since 2013 but his pension income including CPP and OAS for 2021 was $77,000. His current financial statement shows his 2022 income was $80,505. He claims the Bruce Road 15 property is worth $283,000 and a property on Normandy Road is worth $30,000. With other assets, he says the total value of all of his property is $450,000. He states he owes $166,000 on a mortgage and therefore has a net worth of $284,000.

[19] Ms. Dool’s affidavit says her income from employment in 2022 was $19,000. Her financial statement dated August 30, 2022 indicates she is employed at No Frills and earned $700 per month. Her current financial statement and her 2022 notice of assessment says her 2022 income was $17,856. Ms. Dool values the Bruce Road 15 home at $650,000 and claims 100% of its value as a constructive trust claim. Apart from the home, Ms. Dool lists assets totalling $14,085 and debts of $1,700.

Analysis

[20] Based on the evidence available to me on the current record, there currently is a wide discrepancy between the parties’ financial circumstances. Ms. Dool’s current financial circumstances appear strained. I say this based on her income in 2022 of $17,856. I was told at the hearing that she would not be able to afford any accommodation that might be available in this area on that income. It would have been helpful to have some evidence detailing market rent or Ms. Dool’s intentions if she is ordered to move out. Although I don’t have such evidence, I can say based on her low income and limited assets that she has a strong need for support.

[21] “In determining whether unconscionable circumstances have resulted, the test is whether the circumstances are ‘shocking to the conscience.’ This requires a consideration of the circumstances surrounding the execution of the agreement; the results of the support provisions of the agreement, including any hardship visited upon a party; and the parties’ circumstances at the time of the hearing, including their health, employability and ability to maintain their lifestyle”: Gordon, at para. 22, citing Scheel (2001).

[22] Based on the available evidence, Ms. Dool has a strong need for support. Without it, she potentially may require government assistance of some kind. In contrast, Mr. Van der Ende has a considerably higher income and significant assets.

[23] The evidence indicates that around the time the parties moved in together, Ms. Dool gave away some of the proceeds from the sale of her former residence to her grandchildren to support their post secondary education. This is a factor that cuts against her current claimed need, but that gift was given long ago, the parties’ relationship lasted 13 years, and Ms. Dool’s presence in the residence likely supported Mr. Van der Ende’s lifestyle to some extent for those 13 years.

[24] Ms. Dool has established that there is a triable issue over whether the cohabitation agreement is enforceable.

[25] Ms. Dool has also shown a prima facie entitlement to support based on need. Ms. Dool seeks $1,500 to $2,000 per month in support. By my calculation using the parties’ financial statements, Ms. Dool’s entitlement to support under the SSAG would be $1,057 at the low end of the range, $1,233 mid-range, and $1,401 at the high end of the range. Ms. Dool has a compelling case for support based on need, so I would order an amount higher than mid-range. I order $1,300 in interim spousal support.

[26] Ms. Dool asks for a lump sum payment to assist her with paying first and last month’s rent and with moving expenses. This would be credited against any award of past spousal support that may be found to be owing. I agree that this is appropriate as part of “reasonably acceptable solution to a difficult problem until trial.” I order payment of $5,000 on this basis.

Disposition

[27] This court orders on an interim and without prejudice basis:

1. Ms. Dool is to move out by October 1, 2023.
2. Mr. Van der Ende shall, within 14 days, pay Ms. Dool $5,000 towards past spousal support.
3. Mr. Van der Ende shall, commencing August 1, 2023, pay Ms. Dool monthly spousal support of $1,300.
4. FRO enforcement and annual disclosure orders shall apply.
5. The parties may address costs in writing with submissions of not more than two pages plus applicable costs outlines, bills of costs, offers, dockets, etc. Ms. Dool shall file her submissions by August 18, 2024. Mr. Van der Ende by August 30, 2024. No reply.

Chown J.