Court File and Parties

COURT FILE NO.: FS-21-23982 DATE: 20231107 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Naween Vikash Singh, Applicant AND: Rakiun Khalill, Respondent

BEFORE: W.D. Black J.

COUNSEL: Supriya Joshi, for the Applicant Efua Cobbina, for the Respondent

HEARD: October 31, 2023

Endorsement

Overview

[1] The motion and cross-motion before me relate to a marriage contract (the “Marriage Contract”) signed by the parties on March 3, 2017.

[2] The applicant’s motion seeks an Order that the Marriage Contract is invalid and should be set aside.

[3] The respondent seeks a dismissal of the applicant’s motion and a declaration that the Marriage Contract is valid and enforceable.

[4] A determination of the validity or otherwise of the Marriage Contract requires a consideration of provisions of the Family Law Act, R.S.O. 1990, c.F.3. (“FLA”), including in particular section 56(4), which in turn requires an assessment of the circumstances in which the contract was signed, the disclosure by the parties to one another, their respective understanding of the agreement, and whether or not the agreement conforms with the law of contract.

[5] I retain a discretion, after having considered these various factors, to determine whether or not, in the circumstances, it is appropriate to set the contract aside.

[6] The burden of proof to set aside a marriage contract (or any domestic contract - as defined in s. 51 of the FLA) is on the party seeking to have the agreement set aside, so in this case on the applicant.

Conclusion: The Marriage Contract is Valid

[7] Having considered these factors, I conclude that the Marriage Contract is valid and enforceable, and that there is no basis on which to set it aside.

Relevant Background

A. The Parties Met in 2016

[8] The parties met on an online dating website for Muslims in February of 2016.

[9] The applicant told the respondent that he worked as a successful roofer and lived in Mississauga with his uncle and aunt (his aunt was a lawyer). He said that he had been married once before and that he had three children. He maintained that he was religious.

[10] At the time of their meeting and subsequent marriage, Ms. Khalill was 55 years old and Mr. Singh was 44 years old. Ms. Khalill lived at 52 Festival Drive in North York with her adult daughters, who were 22 and 28 years old at that time.

B. The Marriage

[11] Within approximately four weeks of meeting, Mr. Singh proposed to Ms. Khalill, and they were married six weeks later, on March 20, 2016.

[12] It is noteworthy that this was neither party’s first marriage. As noted, Ms. Khalill had adult children from a previous marriage living with her. The number and nature of Mr. Singh’s past marriages is less certain. At various different points he says he has not been married before, or that he was married once before, or that he was married twice before.

[13] Whatever the correct number, what is clear is that Mr. Singh had a number of children from those past relationships. While at one point he said he had three children, it emerged that he in fact has six children (from three different partners), and for one or more of those children has an obligation to pay outstanding child support arrears in British Columbia in an amount in excess of $78,000.00.

[14] Given their ages and stages, both parties entered the relationship with life experience and, at least in the case of Ms. Khalill, with assets. It is not clear as to whether, at the time of the marriage, the intention was that the assets would merge into a single family enterprise. It may well be, that if things were harmonious, that would ultimately have been the case.

C. Early Problems in Marriage

[15] However, it is clear that, within a short time after the marriage, Ms. Khalill became concerned, and then disillusioned, about Mr. Singh’s lack of contribution to the household, and about his expectation that Ms. Khalill would cater to him and clean up after him. She also deposes that she paid for all of the couple’s living expenses, including the carrying costs and utilities for their house.

[16] She says that Mr. Singh kept money to himself and did not share his funds. At one point, a few months after the marriage, with a view to encouraging the notion of sharing within the marriage, Ms. Khalill opened a joint account for the couple, and deposited money into that joint account.

[17] Her evidence is that not only did Mr. Singh not likewise deposit money into the joint account, but that he took a trip to B.C. during which he withdrew approximately $1,000.00 from the account (which only she had funded) without discussing with or disclosing to Ms. Khalill his intention to do so.

[18] Given this conduct, and Ms. Khalill’s frustration with Mr. Singh’s actions, she suggested and he agreed that they should close the joint account.

D. Origins of the Marriage Contract

[19] She also raised with Mr. Singh at that time the idea of a marriage contract. She told him that she wished to protect her assets in case there was a breakdown of the relationship.

[20] During the timeframe after Mr. Singh’s return from his B.C. trip, Ms. Khalill also began to discover troubling information about Mr. Singh that he had not disclosed to her.

[21] She learned from Mr. Singh’s cousin and uncle that Mr. Singh had been married more than once in the past, a fact that Mr. Singh did not deny, notwithstanding that he had only told Ms. Khalill about one previous marriage, and had actually represented for purposes of the marriage license with Ms. Khalill that he had never been married before.

[22] Ms. Khalill’s evidence is that she decided at this point that she had to obtain a marriage contract. She had acquired multiple properties in her life prior to her marriage with Mr. Singh, and she became increasingly concerned that she had to take steps to protect her interests and those of her children. She says that since this was less than a year into the marriage, she did not wish at that stage to give up on the relationship, but that nonetheless she was sufficiently concerned that she felt she needed to protect her assets.

[23] To that end, she approached a family friend who was a lawyer, and explained that the objective of the proposed marriage contract was to protect the assets that each of Ms. Khalill and Mr. Singh had (and would acquire in future) and to ensure that neither of them would have an obligation to support the other in the future.

[24] After reviewing the draft marriage contract that her friend had prepared, Ms. Khalill’s evidence is that she brought it home and provided a copy to Mr. Singh for his review in late January of 2017.

E. Competing Versions of When Ms. Khalill Gave Mr. Singh the Proposed Marriage Contract

[25] This timing is contentious. Mr. Singh maintains that Ms. Khalill only gave him the agreement the night before she insisted he sign it. While the precise timing would not be dispositive, especially having regard to other evidence about the details of the execution of the agreement, Ms. Khalill presents two affidavits, from her brother and her daughter, both of whom depose that they witnessed Ms. Khalill giving the agreement to Mr. Singh in late January of 2017.

[26] While there could be room for skepticism about this evidence given the relationship between the deponents and Ms. Khalill, the affidavits are in each case clear and specific about the circumstances in which they witnessed Ms. Khalill giving Mr. Singh the agreement. Ms. Khalill’s brother, in particular, deposes about other events on the day in question which allow him to pinpoint the date.

[27] Moreover, there was no attempt by Mr. Singh to cross-examine either of these two witnesses. These facts and circumstances, combined with concerns about Mr. Singh’s credibility – about which more below – cause me to accept Ms. Khalill’s evidence about the timing of giving Mr. Singh the marriage contract for his review. I also accept that Ms. Khalill asked Mr. Singh to review the contract, and to let her know his views, and that she suggested that he may wish to contact his aunt Wendy, who was a lawyer, for her advice or referral.

[28] Ms. Khalill’s evidence is that Mr. Singh responded with words to the effect that he did not want anything from Ms. Khalill and that he had assets in his own right that exceeded those held by Ms. Khalill and all her siblings combined.

F. Mr. Singh Did Not Review the Document

[29] Consistent with the cavalier attitude reflected by this response, it appears that Mr. Singh, despite as I have found having had several weeks to review the document, at no time reviewed the agreement before signing it.

G. Arrangements for and Details of the Signing of the Marriage Contract

[30] Nonetheless, some weeks later, on March 3, 2017, Mr. Singh told Ms. Khalill that he was ready to sign the agreement, and in fact made an appointment with the office of a local lawyer, Victor Opara, for lunch time that day, and asked Ms. Khalill to meet him at that office at lunchtime to sign the document.

[31] The evidence indicates that Mr. Singh had already signed the Marriage Contract by the time Ms. Khalill arrived at Mr. Opara’s office, and that he had not requested nor made any changes to the draft before signing.

[32] Mr. Opara signed a Certificate of Acknowledgement (the “Certificate”) confirming that Mr. Singh understood the contents of the agreement he was signing, and that he was signing freely and voluntarily and without any compulsion by Ms. Khalill. Mr. Singh also specifically acknowledged to Mr. Opara, as recorded in the Certificate, that he was aware that, in signing the agreement, he was giving up any possible claims that he might have under existing provincial legislation and that he intended to do so.

[33] Also attached to the Marriage Contract, in Ms. Khalill’s evidence, was a schedule entitled “Financial Disclosure” listing all assets and properties owned by Ms. Khalill. Importantly, that schedule of assets and property bears the signature and notarial seal of Mr. Opara, as does the Certificate.

[34] There is some uncertainty in the evidence about the extent to which Mr. Opara provided any advice to Mr. Singh, or did anything beyond witnessing and notarizing Mr. Singh’s signature. The contents of the Certificate suggest that Mr. Opara was at least open to answering any questions. However, Mr. Singh does not claim to have asked any questions and, again, did not bother even to read the document at that time (or at any time before commencing this litigation).

H. Parties Acted in Accordance with the Marriage Contract

[35] Ms. Khalill’s evidence, not really contested by Mr. Singh, is that after they had signed the Marriage Contract, the parties acted consistently with its contents.

[36] That is, they kept their respective finances and assets separately from one another. As an example, in 2018 Ms. Khalill purchased a property with one of her daughters, into which the parties moved and which became the matrimonial home. Ms. Khalill funded the purchase entirely from her own resources, and Mr. Singh made no financial contribution to the acquisition.

[37] Mr. Singh did some renovation work on the property, but Ms. Khalill paid for all supplies and materials, and specifically compensated Mr. Singh for his work.

I. The Problems in the Marriage Continued

[38] By July 5, 2019, Ms. Khalill’s frustrations with Mr. Singh had accumulated to the point that she wrote him a letter (by e-mail) that day listing numerous concerns that she had developed regarding Mr. Singh’s behaviour and regarding their marriage generally. These concerns related to Mr. Singh’s “demanding, dominating and often aggressive” conduct and his continued non‑contribution to the upkeep of the matrimonial home.

[39] Matters came to a head in February of 2020, when Mr. Singh left the matrimonial home after allegedly threatening to physically harm Ms. Khalill.

J. The Divorce

[40] Ms. Khalill commenced an application for a divorce later in 2020, leading to a Court Order granting the divorce on May 25, 2021.

The Application

[41] Mr. Singh then commenced this application on June 17, 2021, seeking to equalize the parties’ net family property. Ms. Khalill points out that Mr. Singh made no mention of the Marriage Contract in his application, and specifically ticked “no” in response to the question in the application materials as to whether or not any written agreement existed that dealt with matters involved in the case.

[42] Mr. Singh’s position, as reflected in his notice of motion and supporting affidavit, right up to shortly before the hearing of the motion before me, was that the Marriage Contract should be set aside. Not surprisingly, given that this was his motion, his materials did not suggest that, since his motion effectively sought summary judgment, and since there were discrepancies and therefore significant credibility issues, the motion (and the cross-motion) was not appropriate to be determined in the absence of viva voce evidence at a trial (or focused trial) setting.

Applicant’s Last Minute Position that Both (His) Motion and the Cross-Motion Should Be Dismissed

[43] However, in the factum delivered at the last minute – literally handed up to me and simultaneously uploaded to Caselines at the outset of the motion – Mr. Singh’s primary argument was that, given the documentary discrepancies and the resulting credibility issues, both his own motion and Ms. Khalill’s cross-motion should be dismissed and the matter sent on to trial.

[44] I should note that Mr. Singh’s alternative argument was that the Court should set aside the Marriage Contract as invalid, but the main thrust of the able argument that Ms. Joshi made on behalf of Mr. Singh was that the matter was not ripe for determination by summary judgment.

Alleged Discrepancies in Versions of Marriage Contract

[45] The primary basis of that argument related to the schedule of assets and properties attached to the Marriage Contract in Ms. Khalill’s material behind the Marriage Contract and the Certificate.

[46] Ms. Joshi asserted that the version of the Marriage Contract provided by Mr. Opara pursuant to a request made in the lead-up to this motion does not contain this list of assets and properties, and moreover does not contain the parties’ initials on certain important pages, which initials do appear in the version of the Marriage Contract provided by Ms. Khalill.

[47] Ms. Joshi argued that this creates uncertainty as to whether or not Mr. Singh ever received or saw the list of assets and properties. She maintained that this discrepancy means that either the parties signed two different versions of the Marriage Contract, or that the list of assets and properties was added to the bundle after Mr. Singh signed the Marriage Contract. She submitted that this raises a credibility issue that cannot be decided solely on the basis of the written record before me.

[48] Emphasizing the alleged discrepancy and uncertainty, Ms. Joshi then sought to situate the purported evidentiary imbroglio into a line of cases confirming the notion that where the disclosure relative to an agreement is insufficient or misleading, the validity of the agreement cannot be upheld or saved by the presence of other markers (such as access to legal advice).

[49] Ms. Joshi started from the same premise to advance Mr. Singh’s related argument regarding alleged unconscionability and duress, maintaining that the imbalance and incompleteness of relevant information (about the assets and properties in particular) meant that Mr. Singh was vulnerable in the circumstances in which he signed the Marriage Contract, leading to palpable unfairness and undercutting any notion of equality of bargaining power.

Factual Basis for Mr. Singh’s Main Argument Not Made Out

[50] The difficulty with these various arguments, despite the vigour and creativity with which they were delivered, is that in my view the factual premise is not made out in the record before me.

[51] Ms. Cobbina for Ms. Khalill pointed out that there appears to have been a photocopying misadventure in the version of the Marriage Contract provided by Mr. Opara, which explains the alleged discrepancies.

[52] She showed, by way of example, that on the Certificate included in the bundle from Mr. Opara, the contents of the bottom of the page are clearly omitted from the copy, as evidenced by the fact that the bottom half of Mr. Opara’s notarial seal, appearing near the bottom of the Certificate page, is cut off.

[53] The missing initials, present on the version provided by Ms. Khalill but absent from that provided by Mr. Opara, themselves are situated near the bottom of the page on the version from Ms. Khalill. As such, suboptimal copying also explains their absence on the Opara version. Like the bottom half of Mr. Opara’s seal on his version of the Certificate, the initials seem to have been the victims of imprecise and incomplete photocopying.

[54] Mr. Opara’s seal also features in the purported issue about the missing list of assets and properties from the version produced by Mr. Opara. That is, the copy of that list provided by Ms. Khalill includes Mr. Opara’s signature and seal. Ms. Khalill argues, and I accept, that this means that it is highly likely that Mr. Opara signed and sealed the list at the same time as signing and sealing the Certificate, likely in the presence of Mr. Singh. Again, it seems likely that the list, in the version produced to the parties by Mr. Opara, was again a casualty of careless copying (in this case omitting a page altogether).

Excerpts from Relevant Law

[57] Within Ms. Cobbina’s helpful summary of the relevant law applying to s. 56(4) and attempts to set aside domestic agreements (virtually all of which is apt and most of which I will not repeat here), she cites McGee J.’s insightful and helpful summary of the principles guiding the analysis in Harnett v. Harnett, 2014 ONSC 359 (at paras 87-94).

[58] Citing various authorities, Her Honour notes:

(a) As a general rule, courts will uphold the terms of a valid enforceable domestic contract; (b) It is desirable that parties settle their own affairs…and courts are generally loathe to set aside domestic contracts; (c) Parties are expected to use due diligence in ascertaining the facts underlying their agreements. A party cannot fail to ask the correct questions and then rely on a lack of disclosure; (d) 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; (e) 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 … says that the court will step in to “protect him, not against his own folly or carelessness, but against being taken advantage of by those in a position to do so because of their position”; (f) The court must not look 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; (g) 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; (h) 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 courts discretion in favour of setting aside the contract. It is a discretionary exercise.

[59] I find that Mr. Singh falls short at every turn.

[60] Significantly, his evidence is that, whenever he received the draft of the Marriage Contract, he did not read it. He declined to read it notwithstanding his awareness that it could have the effect of foreclosing his potential access to properties or assets.

[61] Mr. Singh, as it turns out, had significant pre-existing experience with various legal proceedings, including extensive experience with family law in B.C. His evidence on questioning was that he understood the various provisions of the agreement when he first read them – well into this proceeding – but that he had not bothered to read them at the time he signed the Marriage Contract, or at any point before recently.

[62] Mr. Singh testified on questioning that he is capable of understanding contracts, and had read many contracts (at one point he said “thousands”, which is hard to believe) during his working life (and in previous experiences in family law). Nonetheless, he did not read the Marriage Contract because Ms. Khalill had given him the ultimatum to “sign or get out” and because he felt that signing was the way to save the marriage.

[63] Mr. Singh also testified that he had substantial assets and income of his own at the time, and that, in effect, he was not concerned about the financial consequences of signing the agreement, and was more concerned about preserving the marriage. This purported lack of concern about financial consequences is consistent with what Mr. Singh was alleged to have said when the agreement was first presented to him, that his assets exceeded those of Ms. Khalill and her siblings together.

Further Analysis of Case Law Applied to Facts

[64] In any event, by reference to the various considerations set out in summary by McGee J. in Harnett, the Marriage Contract does not appear to be unfair or the product of unequal bargaining power. On its face it seems to be a valid domestic contract, signed by both parties. I start from the proposition that the court should be loathe to interfere where parties are settling their own affairs.

[65] By his own admission, Mr. Singh failed to undertake due diligence is relation to the Marriage Contract. Despite being reasonably educated and sophisticated, despite having worked with multiple contracts over the course of his adult life, and despite having had, as I have found, ample time to review the draft, Mr. Singh did not read the document, at all, before signing it. As McGee J. wrote, a party cannot fail to ask the correct questions and then rely on a lack of disclosure. Here, having not even read the agreement, Mr. Singh exercised no diligence whatsoever.

[66] There is no credible evidence that Ms. Khalill had or exploited any financial or other advantage over Mr. Singh, or took advantage of any inequality of bargaining power between them. Mr. Singh’s own evidence is that at the time he was at least as financially well-off as Ms. Khalill. His purported vulnerability was that he had to sign whatever Ms. Khalill wanted in order to save their marriage. This alleged basis of vulnerability has been considered and rejected by at least one court in the past and has been found not to amount to duress (Campbell v. Campbell, 1990 NLSC 7150). I find that there is no evidence of duress here.

Concerns About Mr. Singh’s Credibility

[67] There are also a number of items in the record before me that give me concern about Mr. Singh’s credibility.

[68] As noted above there are a number of inconsistencies within Mr. Singh’s evidence about such basic things as how many times he had been married before marrying Ms. Khalill, and how many children he had.

[69] There are also a number of inconsistencies between Mr. Singh’s purported income at various points as compared to income that he reported to Revenue Canada for taxation purposes.

[70] He also represented himself at times as a “Structural Engineer” when in fact he had no such designation nor training.

[71] There are other concerns about Mr. Singh’s credibility, but those suffice as representative examples.

The Marriage Contract is Valid

[72] For all of these reasons, and based on my assessment of the evidence as a whole, I can find no reasonable basis on which to find the Marriage Contract invalid, or to set it aside.

Discussion of Mr. Singh’s Alleged Subsequent Inquiry

[73] I should address one other item, which is Mr. Singh’s allegation that he has, since the end of the marriage, suffered a significant traumatic injury that has led to him being now unable to work or earn income.

[74] Again, there are a couple of problems with this allegation. First, the evidence to support this claim is very thin, and for example there is virtually no medical evidence in the record to confirm Mr. Singh’s alleged disability. The only evidence along these lines comes from Mr. Singh himself, and I cannot conclude from that evidence anything about the precise nature, prognosis, or alleged impairment associated with Mr. Singh’s purported injury.

[75] Second, as noted, the alleged trauma occurred well after the parties had separated and their marriage had ended, and there is no suggestion that Mr. Singh’s claimed impediments had anything to do with the relationship between the parties.

[76] As was the case in Oliver v. Coderre, 2021 ONSC 4102, there is no suggestion that Mr. Singh’s alleged disability and inability to work is associated with Ms. Khalill, and there were no roles adopted during the relationship that resulted in financial dependence. Also, like Oliver v. Coderre, the relationship here was of relatively short duration and the parties earned similar salaries (while uncertain, Mr. Singh in fact claimed to earn about $40,000.00 per year more than what Ms. Khalill earned).

[77] Accordingly, no relief is appropriately due to Mr. Singh from Ms. Khalill relative to his alleged trauma and loss of income.

Costs

[78] As the successful party, Ms. Khalill is entitled to her costs. In addition to the costs for the motion before me, Ms. Khalill seeks costs totalling $14,911.49 on a full indemnity basis for attendances before four of my colleagues for conferences and motions. In my view, while Ms. Khalill is entitled to costs on a scale higher than partial indemnity, something approaching substantial indemnity is appropriate here (rather than full indemnity). While Ms. Khalill has been ultimately successful, and while some of Mr. Singh’s positions have drawn out the litigation – including in particular his adjournment of this motion on its original return date – Mr. Singh’s conduct does not go so far as to require full indemnity costs. For the costs of the four attendances sought by Ms. Khalill (before the attendance on this motion), I award costs of $10,000.00.

[79] For the motion before me, I do not see any bill of costs uploaded to Caselines. In my view, a further costs award of $5,000.00 is appropriate for the motion before me.

[80] As such, Mr. Singh is to pay costs to Ms. Khalill totalling $15,000.00 within 30 days of the date of release of this endorsement.

W.D Black J. Date: November 7, 2023

Singh v. Khalill, 2023 ONSC 6324

Case Summary