Endorsement

Introduction

It is now trite to say that full disclosure is the lifeblood of family law and that the absence of disclosure is its cancer. However, such statements occasionally need to be repeated. This is one such case.

On September 9, 2023, the parties entered into a form of “kitchen table” separation agreement without independent legal advice or financial disclosure. Each party talked of what they wanted, and the Respondent Husband drafted an agreement that looks like it came from the internet, using terms not currently found in Ontario matrimonial law. Both parties had their signatures on the agreement witnessed by the same notary.

The Applicant Mother now moves to set that separation agreement aside, primarily on the basis of non-disclosure. My colleague, Mills J., ordered that there be a focussed hearing regarding the validity of the separation agreement. She did not deal with the issue of disclosure. That hearing is scheduled to take place on April 22, 2025.

The Applicant served two Form 20 Requests for Information on the Respondent after commencing this proceeding, one on November 29, 2024, and a second one on March 12, 2025. Neither elicited any disclosure. The only disclosure that the Applicant has received from the Respondent was the receipt of his 2021–2023 tax returns. From them, she learned of income properties that the Respondent had owned at the time of the separation agreement, which he failed to disclose to her before the agreement was signed. She also learned that he held RRSPs, but he refused to state their value in his sworn financial statements.

The March 12, 2025 Request for Information contains an abbreviated form of the Request for Information served on November 29, 2024. The Applicant asks that the court order the Respondent to provide that disclosure before the focussed hearing on the validity of the separation agreement takes place and that the hearing scheduled for April 22, 2025 be adjourned to allow for the disclosure and her review of it.

For the reasons that follow, I grant the Applicant’s motion.

Background

The parties married on June 17, 2009. They have two children, now aged 14 and 9. They began to live separately in the matrimonial home in 2019 and remained living together in that home until the Respondent moved out in September 2023. The home was sold, with the closing taking place in February 2024. On April 26, 2024, the parties were divorced. In their divorce pleadings, they used the date of separation of September 1, 2019.

Arguments

The Applicant argues that she never obtained financial disclosure from the Respondent before entering into the separation agreement. However, she believes that the Respondent withheld vital financial information from her before signing the agreement. When she received the sworn financial statement and three income tax returns from the Respondent (2021–2023), she learned that he had income and assets at the time of the signing of the separation agreement to which she was unaware. He had purchased three income properties. While he claimed a loss on them in his tax returns, she wishes to argue that the losses were paper ones only and that income should be attributed to him for support purposes. Further, she says that she knows nothing about his RRSPs other than the fact that he collapsed about $100,000 worth of them since the separation agreement was signed.

The Respondent argues that the Requests for Information are improper, irrelevant, and overbroad.

In arguing that the Applicant’s requests for disclosure are improper, the Respondent points to the fact that Mills J. bifurcated the issue of the validity of the separation agreement as one to be decided in advance of the various other relief that the Applicant seeks in this proceeding. In doing so, Mills J. did not order any disclosure (although she neither refused to order it nor foreclosed a motion such as this one).

The Respondent’s counsel refers to Singh v. Khalill, 2023 ONSC 6324, paras. 57-58, where Black J. refers to Harnett v. Harnett, 2014 ONSC 359, paras. 87-94. There, citing various authorities, McGee J. noted the following propositions:

• As a general rule, courts will uphold the terms of a valid enforceable domestic contract;
• It is desirable that parties settle their own affairs...and courts are generally loathe to set aside domestic contracts;
• 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;
• 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;
• 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";
• 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;
• 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;
• 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.

In short, the Respondent argues that the remedy of setting aside a separation agreement is a rare one and that parties who wish to skip the legal niceties should bear the consequences of their actions.

The Respondent also argues that some of the disclosure requested is for periods after the September 1, 2019 date relied upon by the parties to obtain a divorce.

Analysis

The Applicant contends that she entered into the separation agreement without the benefit of legal advice. Arguably, she was unaware of the definition of the term, “valuation date” set out at para. 4 of the Family Law Act, RSO 1990, c F.3, including “[t]he date the spouses separate and there is no reasonable prospect that they will resume cohabitation”. Nor was she aware of the technical requirements of a domestic agreement under that statute or the caselaw requirements regarding disclosure. The same appears to be true of the Respondent.

The Respondent may well ultimately argue, citing Singh v. Khalill and Harnett, that the separation agreement should not be set aside because the Applicant was no victim of the Respondent or the terms of the separation agreement she signed. But how is the court to know that? The Applicant’s argument is that she is in fact a victim of the Respondent’s non-disclosure. She claims that she would have been entitled to more in both property and support (and may not have waived spousal support) had she been aware of the true state of the Applicant’s finances at the time of the signing of the separation agreement.

I agree with the Applicant. There appears to be some financial information which the Respondent failed to disclose to her before the separation agreement was signed. There may be more. How can the Applicant attempt to demonstrate that the separation agreement should be set aside on the grounds of non-disclosure and the unfairness of its terms without the disclosure necessary to determine the truth of those allegations? She would be operating blindly. Or as McGee J. stated in another case, Dove v. Dove, 2016 ONSC 4091, para. 16:

How is the court to decide whether the 2010 agreement on support met the objectives of section 15.2 of the Divorce Act, or was signed under unimpeachable circumstances, without understanding the parties’ full financial positions at the time of separation, including the values of their assets?

The point was further made in Simioni v. Simioni, para. 33, where Quigley J. wrote:

The notion that there could be a trial on issues such as the validity of this Separation Agreement without financial disclosure is baseless. The suggestion in the motions materials that the validity of the Separation Agreement could be fully considered and justly determined in the absence of full disclosure by Denis is not only counter-intuitive, but frankly, contrary to the entire information providing foundation for family law litigation in this Province as set out in Rule 13 of the Family Law Rules, section 8 of the Family Law Act, and section 21(2) of the Federal Child Support Guidelines.

At para. 36 of Simioni, Quigley J. added:

While it may be appropriate in this case for an order to issue that no determinations are to be made on financial aspects of the parties' marital breakdown until the validity of the Separation Agreement has been determined at a first trial, it is inconceivable to me that the issue of validity could be determined in the absence of full financial disclosure by Denis, at least respecting his Separation Agreement date value. How could the Court determine whether Denis materially misrepresented his financial worth to Silvana at the time the Separation Agreement was concluded and whether he misrepresented to her the value of his interest, and whether he had an undisclosed further separate interest in the sale of Ojon Corporation to the Estee Lauder Corporation, in the absence of full disclosure of exactly what his true financial circumstances and legal entitlements were at that time? How would the adequacy of the financial disclosure in Schedule "B" be judged with no comparator being available because of the total absence of other financial disclosure by him? How could the Court determine whether Denis made incomplete and inaccurate financial disclosure to Silvana at the date of the Separation Agreement in the absence of full disclosure of exactly what his true financial circumstances were at that time?

I find that the comments of McGee J. in Dove and Quigley J. in Simioni offer a full answer to the arguments of the Respondent.

With regard to the argument regarding the overbreadth of the March 12, 2025 Request for Information, the Respondent has pointed to no specific portion of that document which he alleges to be overbroad. Thus, the Applicant has not been called upon to defend any particular request. For that reason, I will not parse the request but order that it be complied with.

Order

Accordingly, I order that:

1. The April 22, 2025 date for the focussed hearing in this matter is vacated.
2. The Respondent will provide his full answers to the March 12, 2025 Request for Information in 20 days.
3. The parties will attend at triage court to set a new date on May 22, 2025 at 9 by Zoom.

A Note about the Rhetoric used in the Respondent’s Affidavit

In his affidavit responding to this motion, the Respondent wrote of the “extramarital escapades of the Applicant” and of the Applicant marrying the person with whom she had “a longtime adulterous relationship since around 2015-2016”. Neither of these comments are relevant to the issues before the court and can only have been added to offer “colour” under the rubric of “context”.

As I wrote in Alsawwah v. Afifi, 2020 ONSC 2883, paras. 104-107:

104 Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.

105 Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents' struggle, can leave their field of battle scarred for life.

106 The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.

107 Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer's aphorism [1] that began these reasons, all too many, unfortunately, fail to do so.

I added the following practice notes at para. 108 of Alsawwah:

1. Evidence regarding a former spouse's moral failings is rarely relevant to the issues before the court.
2. Nor are we swayed by rhetoric against the other party that verges on agitprop.
3. Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for "context".

Costs

The parties have agreed that the costs of this motion be reserved to the judge hearing the focussed hearing. I so order.

Frederick L. Kurz

Date: April 15, 2025

[1] "[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself": see Alsawwah v. Afifi, 2020 ONSC 2883, para. 1.