Bustin v. Vandenberg, 2025 ONSC 1219

COURT FILE NO.: FS-23-38896
DATE: 2025-02-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Virginia Louise Bustin, Applicant/Moving Party
AND: Rick Hendricus Vandenberg, Respondent/Responding Party
BEFORE: J. R. Presser
COUNSEL: Alyssa Warias, for the Applicant/Moving Party
Areesha Zubair, for the Respondent/Responding Party
HEARD: January 23, 2025

ENDORSEMENT

INTRODUCTION

1The applicant, Ms. Bustin, brings a motion seeking temporary without prejudice spousal support, retroactive to the date of separation, and asks the court to impute income to the respondent, Mr. Vandenberg, for the purpose of calculating support. The respondent opposes the motion on the basis that the parties executed a separation agreement in which they agreed not to claim spousal support.

2Ms. Bustin and Mr. Vandenberg were married for 22 years. It was a traditional marriage in which Mr. Vandenberg was the primary breadwinner and financial provider. Ms. Bustin was a homemaker and primary caregiver to the children. Ms. Bustin worked, but never earned a substantial income. She relied on Mr. Vandenberg to financially support the family.

3The parties separated in early 2018. There are two children of the marriage, both of whom are now independent adults. There are no child support or parenting issues to address.

4The parties signed a separation agreement in mid-April 2018. The agreement aimed to settle equalization and spousal support issues. It provided that Mr. Vandenberg would buy out Ms. Bustin’s interest in the jointly-owned matrimonial home, and provide her with a credit of $900 per month for five years toward the rent she paid him for a unit in the former matrimonial home (a triplex). No other debts or assets were equalized. Both parties agreed not to claim spousal support.

5Ms. Bustin commenced these proceedings in October 2023, after the five years of rent support ended. Among other claims in her application, she seeks a divorce, spousal support under the Divorce Act, and the Family Law Act (“FLA”), and equalization of net family property. She now seeks temporary spousal support. She claims that she is entitled to this support and needs it to meet her day-to-day expenses. She asks the court to impute income to the respondent for support purposes. In the applicant’s submission, income should be imputed because the respondent’s deductions from income for rental expenses and businesses losses have not been substantiated and are a colourable attempt by the respondent to reduce his taxable income.

6Mr. Vandenberg’s position is that the separation agreement’s waiver of spousal support is binding. He submits that the court should honour the agreement between the parties. He argues that the court should not exercise its discretion to order temporary without prejudice spousal support until the validity of the separation agreement can be determined at trial. In the event that the court determines that temporary spousal support should be ordered, the respondent asks the court to impute income to the applicant on the basis of the undeclared benefit of $2200/month she is receiving from living rent-free in a unit in the former matrimonial home, and on the basis of contributions to rent and household expenses from her roommates and rental income from her property in the Dominican Republic. In determining the applicant’s needs, the respondent asks me to consider that her income is sufficient to meet the expenses she has listed in her financial statement, and that he has effectively been paying spousal support since she unilaterally decided to stop paying rent in May of 2024 (approximately $2200/month).

7The issues for my determination on this motion are as follows:

A. Does the court have discretion to order temporary spousal support even though there is a separation agreement between the parties in which they agreed not to claim spousal support? If so, should that discretion be exercised here?

If the answer to A is yes, then the following further issue arises:

B. Has Ms. Bustin demonstrated entitlement to temporary spousal support?

If the answer to B is yes, then the following further issues arise:

C. What is Mr. Vandenberg’s income for temporary support purposes? Should income be imputed to him? What is Ms. Bustin’s income for temporary support purposes? Should income be imputed to her?

D. What quantum of support should be paid to Ms. Bustin as temporary support, in light of the condition, means and needs of both parties and considering the Spousal Support Advisory Guidelines (Ottawa, Department of Justice Canada, 2008) (“SSAG”)?

E. Should support be retroactive? And, if so, to what date?

8For the following reasons, I find that the court has discretion to order temporary spousal support even though there is a separation agreement, and I have decided to exercise that discretion in this case. I find that Ms. Bustin has demonstrated entitlement to temporary support; that Mr. Vandenberg’s income for temporary support purposes on a without prejudice basis is the income he reported on his tax return, with no imputation of income; that Ms. Bustin’s income for temporary support purposes on a without prejudice basis is the income she reported on her tax return, with no imputation of income; that the quantum of support should be $5,300 per month payable by Mr. Vandenberg to Ms. Bustin; and that retroactive support will not be ordered at this time. Either party may pursue their claims as to entitlement at trial, including retroactive adjustment of amounts ordered.

PROCEDURAL HISTORY OF THIS MOTION

9On November 27, 2024, the applicant filed a notice of motion seeking various forms of relief. The relief sought included:

A. An order striking the respondent’s answer for failure to comply with a disclosure order of Horkins J., dated June 26, 2024.

B. An order permitting the applicant to proceed by way of an uncontested trial.

C. In the alternative to B, an order requiring the respondent to comply with the disclosure orders of Horkins J., dated June 26, 2024 within 14 days, failing which his pleadings would be struck and a date set for an uncontested trial.

D. An order requiring the respondent to pay temporary spousal support on a without prejudice basis based on an imputed income retroactive to the date of separation, and costs of the motion on a full recovery basis.

The motion was returnable as a short motion to be heard on January 23, 2025.

10On January 20, 2025, the respondent filed a notice of cross-motion, returnable the same day, January 23, 2025. The respondent’s cross-motion sought:

A. An order abridging time for service and filing of his notice of cross-motion.

B. An order that the applicant’s former family lawyer produce the entire unredacted file for the applicant to the respondent.

C. An order that the applicant’s former family lawyer attend for questioning.

D. An order that the paralegal who witnessed the parties’ signing of the separation agreement attend for questioning.

E. An order that the applicant’s current family lawyer produce her correspondence with the paralegal.

F. An order adjourning the applicant’s motion for temporary spousal support until after the respondent has received and reviewed her former family lawyer’s entire unredacted file and had the opportunity to question the lawyer.

G. In the alternative to the above items, an order dismissing the applicant’s motion.

H. An order for the applicant to pay costs on a substantial indemnity basis.

11At the hearing of the motion on January 23, 2025, I indicated to the parties that, in the time available to the court on this short motion, I could not hear the applicant’s motion in its entirety, or the late-served cross-motion. The applicant elected to proceed with the hearing of her motion for temporary spousal support. I declined to adjourn the applicant’s motion for temporary spousal support pending determination of the respondent’s short motion.

12The applicant’s short motion for remedies under rule 1(8) of the FLR and disclosure was adjourned to March 4, 2025, at 10:00 a.m. by Zoom.

13The respondent’s cross-motion was adjourned to March 11, 2025, at 10:00 a.m. to be heard as a short motion by Zoom.

SUMMARY OF EVIDENCE

A. Background

14The parties began living together in December of 1995. They were married on January 8, 1996. They jointly owned the matrimonial home, a triplex, in Scarborough. They had two children together, Victoria and Robyn, now aged 29 and 24 years respectively.

15After 22 years of marriage, the parties separated. The date of separation is in dispute. The respondent says the parties separated in January 2018. The applicant says they separated on April 1, 2018. Both parties continued to live in different units of the matrimonial home triplex after separation.

B. Circumstances Leading Up to the Signing of the Separation Agreement

16Ms. Bustin’s affidavit on this motion indicates that when she and the respondent first contemplated separating, she retained a family lawyer, Nirlep Chahal. Ms. Chahal sent a letter to Mr. Vandenberg dated February 26, 2018, in which she indicated that Ms. Bustin was prepared to discuss possible settlement of outstanding issues without the need for litigation. She suggested that equalization and spousal support would need to be addressed in any negotiated settlement and indicated that this would require financial disclosure to be exchanged between the parties. She asked Mr. Vandenberg to provide such disclosure, recommended that he retain counsel, and asked him to have his counsel contact her.

17Mr. Vandenberg never responded to Ms. Chahal’s letter. Ms. Chahal took no further action.

18In her affidavit on this motion, Ms. Bustin deposes that Mr. Vandenberg threatened that if she continued to be represented by counsel, he would make her regret her actions and it would end badly for her. Ms. Bustin indicates that she terminated Ms. Chahal’s retainer as a result.

19Ms. Bustin says that Mr. Vandenberg was adamant that they resolve their separation without lawyers. She deposes that the respondent drafted a separation agreement in his home office while she sat nearby. According to the applicant, the respondent drafted the agreement without any negotiation, or input from her, and did not allow her to make any revisions.

20The applicant maintains that there was a power imbalance between her and the respondent. Her annual income was $30,000 per year, while the respondent’s was $175,000 per year. She was not receiving any financial support from the respondent. While the applicant has only a high school education, the respondent is a university educated software engineer. He was the family’s primary breadwinner and she had always been financially dependent on him. The applicant deposes that the respondent was financially controlling during the marriage, and that this behaviour continued in their separation. She indicates that the respondent wanted them to continue living in different units in the matrimonial home after their separation. She felt she had to do so because she could not afford to live elsewhere. Ms. Bustin says that this power imbalance made her vulnerable.

21In these circumstances, the applicant deposes that she felt extreme pressure and intimidation from the respondent not to seek independent legal advice nor to demand financial disclosure from the respondent. For this reason, according to the applicant, she did not receive financial disclosure from the respondent, nor did she get legal advice before signing the agreement. She maintains that she did not have a complete understanding as to the equalization payment or spousal support owing to her when she signed the separation agreement. She says she did not fully understand the terms of the agreement, its ramifications with respect to support, or what she might have been entitled to if she did not sign the agreement.

22In his affidavit on this motion, the respondent maintains that there was no duress, pressure, or intimidation of the applicant by him around the signing of the agreement. He deposes that the applicant was eager to close their deal so that she could purchase a property offshore with the proceeds. The respondent disagrees with the applicant’s claims that she was unaware of his finances at separation. He deposes that the parties did not have complicated finances and he did not hide his finances from the applicant at any time. The respondent indicates that after he received Ms. Chahal’s letter, he and the applicant engaged in negotiations about dividing their property and support. Ultimately, according to the respondent, he and the applicant agreed on terms. They signed a separation agreement on April 16, 2018 that reflected the terms of their agreement.

23The respondent’s affidavit evidence is that the applicant was encouraged to seek legal advice from her own counsel prior to entering the separation agreement. He says he assumed that she did obtain legal advice from Ms. Chahal prior to signing the agreement.

24An email from a lawyer at Ms. Chahal’s firm dated April 5, 2024, was attached as an exhibit to the applicant’s reply affidavit on this motion. The lawyer indicates that Ms. Chahal sent an initial letter to the respondent in February 2018. No response was received. A few months later, the firm was instructed by the applicant to close her file because she had decided to settle privately with the respondent. The lawyer notes that the applicant instructed the firm to close her file before any substantial work was done. As a result of this instruction, the documents the firm has in the applicant’s file are limited.

C. The Signing of the Separation Agreement

25Within hours of the separation agreement being drafted, the parties attended at the office of commissioner and paralegal Daniel Jenner. The respondent had retained Mr. Jenner.

26In her reply affidavit, the applicant indicates that she did not have time between the drafting of the agreement and signing it to review it with a lawyer or obtain legal advice.

27Mr. Jenner witnessed the parties’ signatures on the agreement. He also signed an acknowledgement that the document was acknowledged under oath to his satisfaction by each of the parties, and that each of the parties acknowledged to him that s/he was aware of the agreement and understood its provisions, that s/he was aware of possible claims to property s/he may have at law and that s/he intended to give up these claims to the extent necessary to give effect to the agreement, and that s/he was executing the agreement freely and voluntarily without any compulsion on the part of the other.

28An email from Mr. Jenner to counsel for the applicant dated April 3, 2024 was filed as an exhibit to the applicant’s affidavit on this motion. In it, Mr. Jenner indicated that his only role in relation to the separation agreement was as a commissioner. In that capacity, he did not provide legal advice. Rather, he identified the parties through government-issued ID, reviewed the acknowledgement with them, witnessed them signing the agreement, and commissioned it.

D. The Relevant Terms of the Separation Agreement

29The terms of the separation agreement that are relevant to this motion are as follows:

• The parties represented that they had made complete, fair, and accurate financial disclosure to one another;
• The parties represented that they had voluntarily entered into the agreement and were not forced by anyone to sign the agreement;
• Ms. Bustin agreed to transfer her 50% interest in the matrimonial home to Mr. Vandenberg upon payment to her of $200,000 by Mr. Vandenberg. Mr. Vandenberg assumed the mortgage on the home and all future financial responsibility for it;
• Mr. Vandenberg agreed to provide Ms. Bustin with a special reimbursement of $900 per month, which would be applied directly to her rent for unit 3 in the matrimonial home. Rent would start at $2000 per month less the $900 reimbursement. The rent deduction would continue for up to five years, or until the property was sold, or until Ms. Bustin moved out;
• Neither party would claim entitlement to spousal support. Both parties expressly waived any claim to spousal support at the time of the agreement and in the future, regardless of any change in circumstances experienced by either party; and
• Mr. Vandenberg agreed to maintain health benefits for Ms. Bustin until his coverage ended, five years had passed, or either party remarried.

30There was no further provision for equalization of property or liabilities.

E. Events After the Separation Agreement was Signed

31The applicant continued living in unit #3 of the former matrimonial home. She deposes that she had no choice but to continue renting this unit because she could not afford alternative housing. She continued to receive credit of $900 per month toward her rent until five years had passed.

32The rent credit was not categorized as spousal support in the separation agreement. However, the respondent required the applicant to sign an acknowledgement each month that she received spousal support from him in the amount of $900 per month. According to the applicant’s affidavit evidence, the respondent told her that he would terminate her tenancy if she did not sign an acknowledgement that she had received the rent credit as “spousal support.”

33In 2019, 2020, and 2021 the respondent deducted $8,100 each year from his taxable income on account of “support payments.” He did not deduct any amount for support in 2022 or 2023, even though the rental credit of $900 to the applicant continued until April 2023 and the applicant continued to sign monthly acknowledgements of “support payments” until that time. In the taxation years of 2019-2022 inclusive, the applicant included $10,800 per year in her income ($900/month for 12 months) on account of the rent credit as spousal support, and paid tax on it.

34After separation, the applicant continued to earn between $30,000 and $40,000 per year. In 2023, she had employment income of $38,720. After separation, the respondent continued to earn more than $175,000 per year. In 2023, he had a reported income of $192,794 after he deducted rental and business expenses from his employment income of $206,643.

35The applicant has sought disclosure from the respondent in support of his self-employment and rental property expenses, such as receipts, invoices, bank statements, e-transfers, lease and rental agreements, and the like. He was ordered to disclose these items, among others, within 30 days of the June 26, 2024 order of Horkins J. The applicant says that the respondent has still not disclosed these items, or many of the other items he was ordered to disclose. In respect of the business and rental expenses, the respondent has indicated in comments he wrote into a chart of outstanding disclosure that was filed as an exhibit to his affidavit: “this is all part of the income tax and all after the separation. Rick does not have any paperwork for this.”

36The applicant lives with two roommates, her sister and her sister’s partner. She deposes that she lives with roommates because she cannot afford to live alone. She receives $2,600 per month from her roommates. The applicant deposes that this sum covers the roommates’ share of the rent, groceries, amenities, vet bills, and other household expenses. She advances the rent and pays for household expenses and her roommates reimburse her for their share.

37In her reply affidavit, the applicant’s evidence is that she purchased an apartment in the Dominican Republic with the proceeds of the sale of her interest in the matrimonial home. She maintains that she has disclosed all of the documents relating to the purchase of this property to the applicant. She also used some of the proceeds to lend her sister the funds to purchase the apartment next to hers. Title to the second apartment in the Dominican Republic is solely in the sister’s name. The applicant deposes that the disclosed purchase documents demonstrate that she only owns one apartment in the Dominican, not two as alleged by the respondent.

38The respondent suggests that the applicant receives rental income for the properties in the Dominican Republic. He submits that this is undeclared income that should be included in the applicant’s income for support purposes. The applicant’s affidavit evidence is that she has never rented out her Dominican apartment, and has no rental income from it. Although she notes that she does not think it relevant, the applicant’s evidence is that she does not believe her sister has ever rented out her Dominican apartment either.

39In April 2023, five years after the separation agreement was executed and in accordance with its terms, the monthly rent credit was terminated. At that point, the respondent was charging the applicant $2,200 per month in rent. The applicant stopped paying rent to the respondent in April 2024. Her affidavit evidence is that she could not afford the rent. She says that the money she receives from her sister that would have contributed to rent is now being applied to repay the loan her sister owes to her for the Dominican apartment.

40The applicant launched her claim in October 2023. She seeks equalization of net family property and spousal support under the Divorce Act and the FLA.

ANALYSIS

A. Does the Court Have Discretion to Order Temporary Spousal Support Notwithstanding the Separation Agreement? If So, Should that Discretion be Exercised Here?

(1) Governing legal principles

41The FLA establishes, in s. 30, that spouses have an obligation to provide support for themselves and for the other spouse “in accordance with need, to the extent that he or she is capable of doing so.”

42Section 33(8) of the FLA sets out the purposes of spousal support orders as follows:

An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support;

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

43Under s. 34 of the FLA, the court may order temporary spousal support where there is an application for spousal support under s. 33 of the Act.

44Generally speaking, courts should be reluctant to second-guess domestic contracts. Private parties are permitted to take personal responsibility for their finances and structure their own affairs upon marriage break-down: Hartshorne v. Hartshorne, 2004 SCC 22. However, when domestic contracts or their provisions are challenged in family law litigation, courts must be mindful that negotiations over domestic contracts often occur at a time of extreme emotional stress, when one or both of the parties may be very vulnerable. For this reason, judges must approach the review of domestic contracts with an eye firmly on the particular vulnerabilities that can arise in the family law context, without assuming that parties lack the agency to contract simply because contract negotiations took place in a highly emotionally charged and stressful situation: Anderson v. Anderson, 2023 SCC 13, paras 34-38.

45Section 33(4)(a) of the FLA establishes that “[t]he 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 [for support] 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”.

46Section 56(4) of the FLA provides that a domestic contract, or a provision in it, may be set aside by a court:

(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.

47There is a difference in scope between ss. 33(4) and 56(4) of the FLA. Section 33(4) operates to set aside support provisions in a valid and subsisting domestic contract where those provisions result in “unconscionable circumstances”: Scheel v. Henkelman, paras 15, 19-20. It is a provision that is directed at the unconscionable results of spousal support provisions of a domestic contract at the time of the application, not at unconscionable agreements. An agreement regarding spousal support that was fair and reasonable at the time it was made may result in unconscionable circumstances within the meaning of s. 33(4) at the time of the support application.

48By contrast, s. 56(4) of the FLA “is a codification of the general law of contract applicable to unconscionable agreements”: Scheel, at para. 15. It is a provision that is directed at whether a domestic contract is invalid because it was unconscionable at the time of formation.

49To determine whether a provision waiving spousal support has resulted in unconscionable circumstances under s. 33(4), the court must consider whether the circumstances are “shocking to the conscience” or “shocking, oppressive, not in keeping with a caring society”: Scheel, at para. 19, citing Newby v. Newby. The factors for consideration in determining whether the results of a provision waiving spousal support are unconscionable within the meaning of s. 33(4) set out in Newby, at pp. 486-87 were cited with approval by the Court of Appeal in Scheel, at para. 20, and summarized there as follows:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b) the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c) the parties’ circumstances at the time of the hearing including their health, employability and ability to maintain their life-style.

50To determine whether a domestic contract or a provision within it was unconscionable at the time of formation under s. 56(4) of the FLA, the court must adopt a two-stage approach: Moses Estate v. Metzer, 2017 ONCA 767, para 9. First, the court must determine whether the party seeking to set the contract or provision aside has established that one of the listed circumstances within s. 56(4) has been engaged. If this precondition has been met, the court must then go on to consider whether it is appropriate in all the circumstances to exercise its discretion to set aside the agreement: Moses Estate, at para. 9. The exercise of discretion will involve a consideration of all relevant factors, including whether the established factors under s. 56(4) were material to the decision to sign the agreement by the party seeking to set it aside: LeVan v. LeVan, 2008 ONCA 388, paras 34-37.

51A court may exercise discretion to order temporary without prejudice spousal support notwithstanding the existence of a domestic contract waiving spousal support: LaFrance v. Charbonneau, 2011 ONSC 6462, paras 9, 14; Pitchforth v. Pitchforth; Salzman v. Salzman, para 19; Scheel v. Henkelman; Robertson v. Hotte.

52This discretion may be exercised where the moving party establishes that there is a triable issue as to whether the agreement is enforceable, either because it was unconscionable at the time of formation (under s. 56(4) of the FLA) or because it results in unconscionable circumstances (under s. 33(4) of the FLA): LaFrance, at paras. 9, 14; Scheel (G.D.), at paras. 12-16; Salzman, at para. 19; Robertson, at p. 454. It is a discretion that is to be exercised rarely, only where the parties’ means and needs and other relevant factors justify a temporary support order before the validity of the agreement can be determined at trial: LaFrance, at para. 14; Scheel (G.D.), at para. 13 citing Carlsen v. Carlsen, para 8; Trinchan v. Trinchan.

53It should be noted that the applicant claims spousal support under both the FLA and the Divorce Act. Domestic contracts waiving spousal support may also be set aside under the Divorce Act: Miglin v. Miglin, 2003 SCC 24. However, the applicant has chosen to ground her motion for temporary spousal support under the FLA. Given this position of the applicant and my conclusion that I should exercise my discretion to order temporary support under the FLA, as I will explain below, I need not also consider whether to grant it under the Divorce Act.

[The remainder of the decision continues with detailed analysis, findings, and the court's order, as set out in the original text above.]

J. R. Presser