Quinn v. Quinn, 2026 ONSC 3748

minicounsel

COURT FILE NO.: FS-18-00092386-0000

DATE: 2026 06 26

Applicant

and -

Respondent

Julie Hannaford and Charu Chande, for the Applicant

Jaret Moldaver and Jesse Rosenberg, for the Respondent

HEARD: March 30, 2026

REASONS FOR DECISON

McGee J.

Overview

1The Applicant, Anthony Quinn (“Anthony”), brings this non-suit motion to dismiss the claim of the Respondent, Christina Quinn (“Christina”)¹, to set aside the parties’ separation agreement dated April 26, 2018 (“the Agreement”) in whole, or in the alternative, to only set aside the Miglin style spousal support release incorporated into the Agreement.

2Anthony elected to call no evidence following the close of Christina’s case. He now moves for a dismissal of Christina’s claim and her alternative claim because he asserts that the totality of the evidence adduced at trial discloses no prima facie case to answer. Only Christina gave oral evidence at trial. No other evidence was called but for read-ins from Anthony’s questioning on April 24, 2023.

3In Ontario, a non-suit motion is available at common law. Its criminal equivalent is a directed verdict. Non-suit motions requesting the immediate dismissal of a case in either a civil jury or non-jury trial may be brought after the party bringing forth the claim (here Christina) finishes presenting her evidence. Her case may be dismissed without hearing any response if she has failed to make out a prima facie case.

4If the case is not dismissed, in whole or in part, the court must then decide the surviving claim(s) only on the evidence that has been presented thus far. Given this very real possibility, and the costs already incurred by midtrial, non-suit motions are rarely brought in civil jury and non-jury trials. They have had almost no treatment in family law.

5In the reasons set out below, I explore the history of the non-suit motion, the test for its application in a family law matter, and I briefly review the well-established tests necessary to set aside a separation agreement and/or a spousal support release. I grant Anthony’s motion for a non-suit dismissal of Christina’s claim to set aside the Agreement pursuant to section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, and I do not grant his motion for a non-suit dismissal of Christina’s claim to set aside the spousal support release attached as a schedule to the Agreement.

6Having not granted the non-suit motion of Christina’s alternative claim, I then go on to determine whether Christina has established on a balance of probabilities that the spousal support release should be set aside. For the reasons set out below, I find that she has not.

Factual Background

7The following is a summary of the facts which underpin my findings and application of the law. Although I do not reference every point, much of the background for this dispute is set out in the parties’ Amended Agreed Statement of Facts. I have relied on all of these uncontested facts and have additionally considered Christina’s oral evidence at trial whether or not specifically cited in these reasons. In doing so, I give her evidence the most favourable interpretation available.

1996 Marriage and Family

8The parties were 29 and almost 26 when they married on November 9, 1996. Anthony, who has only a high school education, was working as a purchasing manager for a company. Christina, a professional engineer, was already working full-time in the heavy construction, water, and wastewater industry.

9Anthony had a two-year-old son from a prior relationship that the parties raised together. The family was later blessed with twins born to them in 2003. Their blended family, Anthony’s business interests and Christina’s career flourished, thanks in large measure to Christina’s relentless commitment to excellence in all aspects of their lives.

10The parties jointly and individually have always enjoyed a well earned, opulent lifestyle. They have held recreational properties, owned horses, had ski memberships, and engaged in extensive travel. The children want for nothing and have had the benefits of language lessons, tutoring, extra curricular activities and post secondary education.

11The children are all now adults and there are no parenting issues before the court. The oldest is independent and the twins live with their father. Since each twin moved in with his/her father (the first in 2020 and the second in 2021), Christina has declined to pay child support or to make direct contributions to their counselling or post secondary education, despite holding a RESP intended for that purpose.

12As of the release of this decision, none of the three adult children are eligible for ongoing child support. Anthony makes no claim in this application issued on June 5, 2018, but for a claim for a divorce. The divorce was ultimately granted on November 18, 2022, and Anthony has since remarried.

Christina Managed the Family Finances

13Christina managed the family's finances during the marriage. She styled herself as the "Chief Financial Officer" of the family, which she referred to as "Quinn-Co". The parties’ respective pay cheques were deposited into a joint account which was used to pay for all personal and family expenses, including the mortgage. Christina prepared all of the family’s tax returns and managed their real property and financial investments, including “off-book” monies received from Anthony’s business.

14While managing the family’s financial affairs, Christina enjoyed a busy and successful career. From August 1998 to September 2001, she was employed by Allstream (now AT&T) as “Senior Manager, Productivity Tools”. In September of 2001, she advanced to “Senior Manager, Partner Relations” and she continued to work fulltime until just before the twins were born in August of 2003. In that role, she negotiated and documented Service Level Agreements, Operational Level Agreements and Statements of Work which are documents defining a project's legally binding scope, deliverables, timelines, and payment terms.

15Christina took an extended maternity leave from August 2003 until October 2004, after which she worked on a flexible basis by taking on contract work. From April 2005 to January 2006, she transitioned to work at CGI in “Outsourcing Transformation, Infrastructure Technology Management”. From February 2006 to May 2006, she worked at the Ministry of Government Services as a “Business Architect, MGS, iServ Branch”.

16In August of 2006, Christina launched her own company: Corporate Minders Inc. (“CMI”) which provides services in Information Technology, specifically infrastructure management projects, process and performance management. She is the company’s only shareholder.

17From October 2006 to June 2010, Christina provided Information Technology Services to the Ministry of Transportation and other government departments, while also providing periodic administrative support to Anthony’s company, Bennett Mechanical Installations (2001) Ltd. (“BMI”).

18In or around 2010, Christina wrote and published a personal finance book entitled “Wake Up or Die Poor: We're all running a business. Who's managing yours?” The book is a personal and household finances guide that gives a number of anonymized examples from her own life to show readers how individuals can become the “CFO of their household.” An overview of the book from Indigo.ca states:

Quinn-Co is the best systematic method of managing your personal finances. Based on twenty years of one woman’s successful revenue management it has led to a noteworthy collection of holdings in real estate, mutual funds, stocks, RESP’s and other investments. The initial “we’re mortgage free” moniker was applied at the age of 36 on a home worth well into 7-figures. Not ten years prior, the value of the mortgage was greater than that of the house itself. Most incredible of all, it was accomplished on a fairly modest revenue stream and with a spouse whose spending profile fit that of the Abysmal Black Hole. You can do it too.

19In October 2011, Christina returned to work full-time, joining Manulife in the same month in which the parties purchased their matrimonial home in Mississauga for $2,000,000. Title to the home was taken in Christina’s name alone to protect it from potential business liabilities that might be incurred by Anthony. Christina continues to reside in the home which has a current market value of $4,500,000 to $5,000,000. In 2022, the home generated income as a movie set for the second season of the Reacher series.

20Christina has held a number of high-profile roles with Manulife where she continues to be employed at a high level. For example, from October 2011 to December 2012, Christina worked as part of the “Canadian Network Services Modernization Program”, creating a network services role for herself from January 2013 to February 2015. In this role, she negotiated international contracts worth up to $150 million. She is currently a large project manager at Manulife's Global Cybersecurity Program, engaged in upgrading aspects of the court system, on contract to the Ministry of the Attorney General.

21The monies earned through these contracts are paid to CMI. Her company’s retained earnings are recorded in the Amended Agreed Statement of Facts to have grown from $426,000 in 2015 to $906,555 in 2022, $949,889 in 2023 and $942,731 in 2024. During this same period, CMI has paid almost all of her personal expenses. Christina - as does Anthony - decides prior to calculating retained earnings how much the company directly pays on her behalf and how much she draws as income for tax purposes.

22Christina made decisions not just about the reporting of her own income during the marriage, but also with respect to the tax reporting of Anthony’s income, harmonizing their tax returns for maximum benefit. She prepared and filed Anthony’s tax returns until 2016, when she completed his 2015 return.

23Christina continued to give Anthony financial and tax advice until the end of 2016. I offer one email excerpt sent on November 8, 2016 (within the midst of their separation agreement negotiations) as an emblematic example of Christina’s financial dominance in the relationship:

Anthony, I recommend you keep your salary under $125k because of the tax burden. Also I will setup a bank account for you and have $2k monthly withdrawal w Janette for RRSPs. Tell Lori Ann to adjust your monthly deductions to a net of $100k accordingly. You will need $25k for mid-Feb 2017 for your RRSPs and you also have $31,500 in TFSA room - I am happy to invest this on your behalf in your current TFSA account. I will do your taxes in March pls - that way I’ll do the RRSP deposits and deductions. You are also of course welcome to the $1.7Mil in LOC if you want to build on Meaford - I would love to do that for you. It would at least justify the $87k for a year.

Anthony’s Business Interests Expand in 2013

24Anthony’s business partner died in August of 2013, and he acted as the Estate Trustee with a Will. Christina described the following period as one in which the marital estrangement grew. Anthony spent lengthy hours at the business, often staying there overnight. Christina asserts that throughout this period and for a significant time after their separation, she understood Anthony’s business “inside and out”.

25Anthony eventually acquired an 80 percent ownership in BMI, and he has since incorporated other companies to hold real property and investments. Throughout, BMI has provided consistent services in the construction field and operated out of the same premises.

A Rolling End to the Marriage

26It is unclear when the parties separated. The marital status reported on their income tax returns does not assist. Christina testified at trial that she began filing their tax returns as "separated" as early as 2004, so that she could qualify for government contracts without the need for Anthony (i.e. a spouse) to go through a security check. It is agreed that each recorded their marital status as separated from the 2006 tax return onward.

27Christina continued her strategic use of marital status in 2011 when applying for the Home Equity Line of Credit (“HELOC”) that was to be secured on the matrimonial home, which, as set out above, was purchased in her name alone. In the credit application for the HELOC, she represented that she was separated from her spouse in 2011 and that the matrimonial home was not ordinarily occupied as a family residence. Neither statement was true.

28Email exchanges tendered at trial show alternating periods of emotional and/or physical estrangement, as well as concurrent periods of ongoing affection and joint activity from April 18, 2014, until November 3, 2016. Each party made asynchronous statements that the marriage was over, interspersed with statements of fondness and regret. The only constant was their mutual commitment to cooperating for the sake of the children.

29Negotiations on the formal terms for their separation, including the date of separation for Family Law Act purposes, did not begin in earnest until November 2016. A number of emails were exchanged with respect to the date of separation. Christina initially instructed her counsel, Richard Buck, that their date of separation was in June 2016. Ultimately, the parties landed on July 1, 2015 as the official date of separation in the Agreement because all their issues had been resolved to their mutual satisfaction and nothing turned on it.

Separation Agreement Negotiations: November 2016 to April 2018

Summary

30Ten drafts of a separation agreement were exchanged from November 2016 to April 2018. As set out below, the first draft was prepared by the parties’ joint corporate lawyer. Thereafter, he declined further involvement and pressed each of the parties to retain their own specialized family law counsel. Christina retained Richard Buck in April 2017, and Anthony retained Sheila Holmes in June 2017.

31The essential terms of the parties’ separation agreement remained consistent throughout the period of negotiation. There would be no spousal support, each would keep properties in his or her own name and Christina would receive an equalization payment of $444,000 in two parts. In these reasons, I will only address the release of spousal support and the equalization payment because Christina does not seek to set aside the parenting and child support claims in the Agreement.

Context

32From November 2016 onward, the parties conducted themselves as financially separated. Christina moved quickly. On November 12, 2016, she entered into an Agreement of Purchase and Sale for her own recreational property in Clarksburg because the family ski chalet was owned by Anthony. Earnings within her company, CMI, provided the cash downpayment of $213,500. The property closed in April 2017 for $727,000. Title was taken in the name of CMI.

33Immediately upon closing, Christina conducted extensive renovations, effectively rebuilding the home from its foundations to her personal aesthetic. Her new partner, who now resided with her in the Mississauga home, used the ski chalet as his legal address. Her partner’s adult son later occupied the condominium that she closed in March 2019, the downpayment for which had been jointly made by the parties in 2014.

34Anthony was not as quick to financially separate. He continued to deposit his pay from BMI into the joint TD chequing account until February 28, 2017.

First Draft: March 1, 2017

35This first draft was prepared by the parties’ corporate counsel using the terms agreed to within a series of emails sent starting on November 8, 2016.

36On November 13, 2016, Christina requested Anthony’s secret code for his CRA account. She confirmed his security words and passwords and that she had made scans of his Notices of Assessment. She stated that she used these and her own records to create a “roll up” chart of Anthony’s gross income and “What Quinn-Co Received” in each calendar year from 2004 to 2015.

37In this first draft, Christina proposed that Anthony keep the chalet and that her company invoice his company $550,000 plus $87,000 per annum for five years in lieu of child support. Christina had counselled Anthony in a November 8, 2016 email to keep his salary under $125k because of the tax burden and “[r]ather than CRA fuckery, you earn whatever you want, and CMI will bill Bennet [BMI] $87k a year in consulting over the next 5 years until the twins are out.”

38Christina also suggested that November 9, 2016 be used as their date of separation in the Agreement, writing “[w]hatever works… today would be classic… our 20th wedding anniversary and the day Donald Trump got elected president… but whatever works.”

39In an email sent the day prior, she set out the values and proposed dispositions for each of their five properties, and that the jointly owned condo (later made available to her partner’s son) be excluded from the property division and be given to their oldest child. In that email, she corrected Anthony’s valuations of his properties, citing comparable sales, rental income and renovations. She calculated what Anthony owed her and directed him as to how to handle the properties remaining to him. She commented on how he might not have had any savings but for her efforts.

40Christina then asked Anthony to have their corporate lawyer prepare an agreement based on her proposal, which he did.

41The corporate lawyer prepared that first draft on their joint behalf. This first draft provided that Christina would receive half of the ski chalet proceeds, would retain the matrimonial home and the condo, and that Anthony would pay $50,000 per year in child support for five years invoiced through their respective companies. The parties would otherwise retain the properties, including shares in their respective corporations in their own names, free of claims by the other.

Second draft: July 1, 2017

42Christina marked up the first draft that the corporate lawyer had prepared and sent it to her freshly retained counsel, Mr. Buck. Mr. Buck had been recommended to her by her new partner who was an Executive Director at a large financial services corporation, specializing in IT Mergers and Acquisitions. After meeting with Mr. Buck and explaining that she only “needed to get clauses into a settlement agreement to protect the children”, a second draft was prepared and sent to Anthony’s counsel, Sheila Holmes, who had also just been retained.

43On Christina’s direction, the second draft included a release of spousal support with which Mr. Buck was exceedingly uncomfortable.

44Mr. Buck asked Christina to read the Supreme Court of Canada decision in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, to supplement his advice that she ought not to sign a spousal support release. Christina read the decision, and at their April 20, 2017 meeting, she indicated her understanding of it and her determined rejection of any claim for spousal support.

45Mr. Buck recorded Christina’s advice in his April 26, 2017 statement of account, describing within his docket (adopted as a true statement during Christina’s evidence at trial):

Apr-20-17 to review of file preparatory to meeting with client; to review of client's email of April 19th at (10:46) p.m. and attachments (8) pages; to conduct interview with client; to advise client we need Miglin disclosure; she acknowledges and says she has read Miglin case that we directed her; does not want financial disclosure; does not want us to write to Brown and request husband's Financial Statement - says she will speak to husband directly re his disclosure-she says she does not care whether husband is worth "gazillions" of dollars only concerned about financial provisions for the children-only wants her one-half of matrimonial home and $100,000 equalization payment -nothing more-doesn't care-explain to client we should have husband's sworn financial statement-repeats her instructions to NOT request same from Brown-she will get documents from husband directly and provide to us she says; wants us to amend separation agreement as per our discussions and my notes-she will sign Financial Statement – Monica to work with her.

46From June to August 2017, Christina had a number of email exchanges and teleconferences with her counsel, who insisted that financial statements be prepared for both parties, even though Christina felt it to be an unnecessary expense. Throughout, Christina had side conversations with Anthony, referring to her counsel as “the penguin”, and sharing her growing frustration with in her view, the additional, unnecessary communications passing between their counsels.

47In undated notes made by Mr. Buck during this period, he records his client’s views that “Anthony is weak and fragile”, that she was inventing a platform and “believed that she could sell it to Amazon for $546 million”, and that “she didn’t want any alimony.” Christina did not contest these views when put to her on cross-examination during the trial.

Third Draft: Dated July 1, 2017, sent August 28, 2017

48This draft contained the provision for $50,000 to be paid annually for child support, continued the comprehensive spousal support release, provided that Christina would retain the home, and that Anthony would pay to her an equalization payment of $444,000 in two parts: $344,000 on September 1, 2017, and the balance by June 15, 2020. These financial terms remained almost exactly the same throughout the balance of drafts:

a. Anthony would release his trust claims in the matrimonial home, valued by Christina at approximately $3 million;

b. Anthony would release claims to Christina's other properties, including the Craftsman condo and her RRSP;

c. Anthony would pay Christina a lump sum of $444,000 (half the chalet sale proceeds plus $100,000) and $6,438 to reimburse her for the children's expenses;

d. Anthony would pay $50,000 per year in child support for five years, billed intercorporately by CMI to BMI; and

e. Extracurricular and s. 7 expenses would be shared equally, with Christina's share of post secondary expenses covered by a RESP not considered in the parties' valuation analysis.

49By the summer of 2017, Christina had grown impatient with the process. She testified that she had only hired Mr. Buck to put together the terms that she had already negotiated into a separation agreement and to add “eight clauses to protect the children”, such as parenting terms and life insurance. She resented the legal fees being charged to her. Nonetheless, her counsel continued to set out his concerns about the draft agreement. For example, in his letter to Christina dated June 14, 2017, he detailed the following:

The lack of financial disclosure.
The lack of valuation of assets.
The lack of evidence of debts.
The quantum of the equalization payment which is just “out of the sky.”
The release of spousal support when she had advised his law clerk in a telephone conference that Anthony made $42 million the year prior.
The quantum of child support.

50Christina answered all of his concerns at some length and testified at trial: "I had all the financial statements. I was the one that sent the financial statements to both [of the lawyers], I was the one that sent these financial statements to him." As for the equalization payment, Christina testified that "the equalization was not out of the sky. … We both had a balance sheet of approximately $3 million."

51As to the $42 million figure, Christina testified: "That's the top revenue line. If you look at the, if you look at the net income on a $36 million top revenue line, the company net income was $42,000."

52After Mr. Buck expressed his concerns about the "deal," and after Christina said, “[l]et’s see what his financials look like coming back from Sheila”, Christina and Mr. Buck received Anthony's financial statement and supporting brief. Christina reviewed this material and wrote to Mr. Buck, stating that:

a) she had reviewed Anthony's financial statement; and she

b) described Anthony's "Section 19" (business interests) as "erroneous";

c) described Anthony as having "issues understanding company financials" and relying "heavily on his accountants”;

d) stated that she had "gone thru [Anthony's] accounting files for 2015 and 2016 in order to sum up his actual holdings”;

e) attached her own valuation of Anthony's business interests;

f) acknowledged that "it is difficult to put a price on a construction company" and that "there are many valuation techniques that involve future revenue projections, capitalizing annual net earnings or cash flows, and then applying base multipliers to same”;

g) estimated the "net amount" of Anthony's business interests at $8.6 million;

h) instructed Richard Buck: "Pls explain to Ms. Holmes that my proposed settlement will not change based on any of these financials";

i) and stated: "The last thing I want to do is cause HUSBAND financial hardship which will, in the end, impact our children's wellbeing.”

Fourth through Seventh Drafts: September 2017 to March 2018

53These drafts took the form of offers to settle with a comprehensive spousal support release attached as a schedule. The financial terms remained unchanged. The disputes during this period focused on parenting schedules, Christina’s requests for a reimbursement of her legal fees, provisions of life insurance, and the release of the net proceeds of sale for the chalet.

54By the end of 2017, Christina pulled back control of the negotiations and dealt with Anthony directly, trying to break the impasse caused by his insistence that an agreement be signed before the chalet sale proceeds be released. She declined separating the parenting and financial terms into two separate agreements. She declined attempting mediation.

55Christina made various assertions throughout the fall of 2017 that she knew that she was entitled to more money, but at trial, she described this as "chirping" to pressure Anthony into releasing the chalet proceeds.

56The parties made progress in early 2018 and by the end of March, it appeared that everything was resolved but for life insurance policies. Christina wrote to Anthony telling him to have "[his] lesbian hag send [her] midget penguin the proposal."

Eighth Draft: Offer to Settle Dated March 23, 2018

57Christina marked up her changes to the seventh offer to settle and asked Mr. Buck to send them to opposing counsel, which was done on April 19, 2018. This eighth version contained the only substantive difference across all ten drafts: that Anthony would be fully responsible for the children's dental care and the one-time payment for their section 7 expenses was increased from $15,000 to $20,000.

58Counsel spoke and it appeared that the matter was resolved.

Ninth Draft: Dated April 24, 2018

59Ms. Holmes sent the resulting separation agreement attaching the offer to settle with Christina's amendments approved by Anthony. The formal separation agreement had already been signed by Anthony.

Tenth Draft: Signed by Christina April 26, 2018

60I treat this final version as a tenth draft, being the final version sent by Mr. Buck to Ms. Holmes on May 29, 2018, because Christina declined to come into her counsel’s office to sign it. Instead, she had her signature witnessed by a neighbour. As a result, Mr. Buck amended his ILA Certificate to remove the sentence stating that Christina had signed in front of him.

61This final draft, signed by the parties, provided for parenting terms, child support, and the exact same terms set out in the third draft, but for the increase in the $15,000 payment to $20,000. The Agreement itself contained a general release clause and incorporated the same comprehensive Miglin style spousal support release as a schedule to the Agreement as had been attached to the offers to settle sent by each party to the other, constituting the fourth through seventh drafts.

Form 13.1 Financial Statements

62Throughout the course of the negotiations, the parties only ever completed one financial statement each, and they only did so because their respective counsels insisted that they had to.

63In Anthony’s Form 13.1 financial statement, dated June 29, 2017, he deposed annual income of $175,793 being his line 150 income on his 2016 tax return. His Net Family Property as of the date of separation (July 1, 2015) came in at $2,450,927, inclusive of the chalet and his business which was identified as having a value of $1,914,000. He did not complete the expenses portion of his financial statement.

64In Christina’s Form 13.1 financial statement, dated August 9, 2017, she showed her annual income as $38,542 plus Child Tax Benefit (which would have been considerably reduced had she reported her actual income). Her expenses totalled $173,144 per year. She calculated her Net Family Property at $2,935,639, inclusive of the value of CMI, stated to be $277,500 as of the date of separation, which she asserted to be July 2016.

65Each party signed the separation agreement with a comprehensive spousal support release that was attached as a schedule. Each party acknowledged receiving, or having had the opportunity to obtain, financial disclosure. No formal valuation had ever been prepared or even requested by either party as to the value of Christina’s shares in CMI or Anthony’s shares in BMI, or their respective self-employment incomes. A Net Family Property Statement was never prepared.

Divorce Only Application Issued June 5, 2018 and Christina’s Answer

66After April 26, 2018, both parties moved forward with their lives, relying on and acting upon the terms within the Agreement. On May 7, 2018, the chalet sale proceeds were released. Anthony asked that the HELOC registered on the Mississauga home be discharged or at a minimum, that his name be removed from it. Christina took steps to do so at the end of May 2018. On June 5, 2018, Anthony issued this simple application for divorce at his own expense, based on the agreed separation date of July 1, 2015.

67Ms. Holmes’s office contacted Mr. Buck to accept service of the divorce only application and learned that Christina would prefer to be served personally, so as not to incur any additional legal fees. A time was arranged for the process server to meet with her.

68At trial, Christina testified that just after being served, she discovered - by way of a happenstance conversation - that Anthony was in a committed relationship with a former caregiver for the children. She was shocked by the news and:

“it caused me to rip my house inside out, because the disturbing news led me to start hunting and pecking. And it was that weekend that I uncovered [Anthony’s former business partner’s] will, and in the will, I learned, amongst other things, that Anthony did not purchase the group of companies for $3.5 million. He purchased 45 percent of the group of companies for that $3.5 million. So, I sent a note to [Mr. Buck’s] office, and I said, I want to stop this divorce. So, Monica drew up paper, paperwork to fill out, and she asked what I wanted to do. And as always, the last thing I want to do is cause financial hardship to anyone, or anything. And so, I plucked of the three properties that I knew had nothing to do with the business, and the business would function just fine without them and the answer that I had Monica put in had me agreeing to the divorce if he put those properties in a trust for the kids, and because the children were under age it would have been the eldest child who was an adult who would be responsible for the trust.

69Christina instructed her counsel to file an Answer and to block the divorce. Under “Important Facts Supporting My Claim(s)”, the section following the statement of claims, Christina asserts that had she known that Anthony would repartner, she would have insisted on a Family Trust Agreement. She writes that she knew that she was entitled to more monies during the period of negotiation, but that she now required additional terms to protect the children “from [Anthony’s] poor judgment and choices” given her concern “that Anthony is squandering money on other women and that he will diminish or deplete his assets and there will be nothing left to meet his financial obligations as set out in the Agreement and for his children’s financial future” (as pled at paragraph 8 of the “Important Facts Supporting My Claim(s)” section).

70The Answer does not ask to set aside the Agreement. Instead, it seeks additional terms to be added. In the section of her Answer dealing with the statement of her claims (later amended), Christina asks for Orders preserving all of Anthony’s assets, that he create an irrevocable trust for their children, and that terms within the Agreement for the structured payments of $200,000, $100,000 and $20,000 be accelerated. She also seeks security for ongoing child support and section 7 expenses.

July 2018 to June 24, 2021 – Christina Removes Over a Million Dollars from the HELOC After October 31, 2018

71Anthony paid the accelerated amounts and attempted to resolve the situation, but by mid-summer, there was an additional pressing concern. Christina was refusing to discharge the joint HELOC that was registered on her home, and she continued to draw on it.

72Although not explicitly stated in the Agreement, it had been anticipated that Christina would discharge the joint debt with the monies payable to her pursuant to the Agreement. Anthony had placed his 2015 tax refund of $12,023 against the HELOC in May 2016. $301,072 from the sale proceeds of the family chalet (owned by Anthony) that had been released upon the signing of the Agreement was also paid against the HELOC, bringing the balance down to $254,968 by the end of May 2018. On October 31, 2018, Christina had paid the HELOC down to $161,045.

73But by January 4, 2021, the outstanding balance on the HELOC had increased to $491,630.74. Anthony was concerned enough by the increase to re-engage with his counsel.

74Anthony’s file moved to a junior lawyer in his counsel’s office. By letter dated January 21, 2021, the junior lawyer wrote to Christina asking her to withdraw her Answer so that the divorce could proceed uncontested, and to remove Anthony from the joint HELOC.

75On the same day that the letter was received, Christina withdrew $740,000 from the HELOC, taking the balance up to $1,231,851 and she answered the lawyer’s letter with a lengthy, intemperate response in which she – in her own words – gave the junior lawyer “a history lesson.”

76In her most recent Form 13.1 financial statement dated April 17, 2023, the balance owing on the joint HELOC stands at $1,356,732. This is an amount secured on Christina’s home alone but is enforceable wholly and severably against both parties.

Amended Application June 24, 2021

77The claim to set aside this Agreement, or alternatively the spousal support release, was first pled in Christina’s Amended Answer issued June 24, 2021. For the first time, Christina sought orders for child support, spousal support and an equalization payment.

78In June of 2021, the parties’ oldest child was living independently, one of the twins had been living with Anthony for a full year, and the second twin had just moved in with his father. The previous Christmas, Christina had become engaged to her new partner. She is presently estranged from all three children.

79It took a further four and a half years for Christina’s claim to set aside the Agreement to come to trial. A review of the endorsements during this period shows that the delay was caused by a combination of a) aggressive disclosure requests by Christina, b) the completion of expert reports as to Anthony’s income for support purposes and the value of each party’s corporate interests, and c) limited court resources.

80The ongoing focus on financial disclosure eliminated any opportunity for a threshold adjudication on whether Christina met the tests necessary to set aside the Agreement, or in the alternative, the spousal support release. For example, Anthony’s legal team could not attempt a motion for summary judgment or attempt a motion to bifurcate the claim to set aside the Agreement in the face of Christina’s intractable position that Anthony had not yet fully satisfied his disclosure obligations.

81The first opportunity for a final adjudication prior to the end of trial came at the end of Christina’s case, when Anthony moved for a non-suit. He made his election not to call any evidence, and the trial was adjourned for closing submissions.

Issues to be Decided on this Motion

82The issues to be determined in this motion are:

What is the test to dismiss an action by non-suit motion in a family law proceeding?
Having set out the test, has Christina presented a prima facie case that the Agreement ought to be set aside?
In the alternative, has Christina presented a prima facie case that the spousal support release ought to be set aside?
If so, on the evidence that Christina has presented in her case, has she demonstrated on a balance of probabilities that the spousal support release should be set aside?

Issue One: What is the Test to Dismiss an Action by Non-Suit Motion in a Family Law Proceeding?

83There are almost no reported decisions on a non-suit motion in a family law trial, so I begin with a historical overview.

84Whether it is proper to grant a non-suit motion in a civil or criminal matter is strictly a question of law. In Ontario, it is an exclusively common law determination. We are only one of three provinces and territories with no codified rule governing non-suit motions.² Ontario is the only jurisdiction in Canada that requires a party bringing a non-suit motion to first make an election of whether or not to call evidence.

85In criminal cases, a non-suit motion takes the form of a request for a directed verdict. There is no election, and a trial judge must neither weigh nor consider the quality of the evidence with some exception for circumstantial evidence. Instead, the question to be asked by a trial judge considering a defence motion for a directed verdict is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” See para. 21 of R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

86The test builds on the common law rule earlier set out at p. 161 of R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, cited in Arcuri, at para. 26, which provides that judges must determine whether “there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction.”

87The test for a directed verdict in criminal law helps to inform the development of the far less common (if not vanishing) test for a non-suit motion in Canadian civil law and the somewhat outlier status of these motions in Ontario. In the criminal context, no evidence capable of supporting a conviction speaks to the higher standard of proof beyond a reasonable doubt, which in hindsight, created some confusion as to whether the civil test applies the prima facie standard to the evidence as a whole, or the balance of probabilities standard.

88The question was answered at paragraph 34 of Ontario v. O.P.S.E.U. (1990), 37 O.A.C. 218 (Gen. Div.) (Div. Ct.), where the court stated that in a civil claim, a prima facie case is no more than a case for the defendant to answer.

89Any lingering confusion was resolved by Justice Laskin in the Ontario Court of Appeal decision of FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561. Justice Laskin succinctly set out the test for a non-suit motion at paras. 35 and 36:

35On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign "the most favourable meaning" to evidence capable of giving rise to competing inferences....

36In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff's prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion.

90Prima facie is the Latin term for “at first face” or “at first appearance.” Prima facie evidence as set out in the FL Receivables test does not need to be conclusive or irrefutable. It need only be sufficient at first appearance to support the claim. Specifically, at paragraph 15, Justice Laskin writes that:

15First, as my discussion above signals, Prudential’s burden on the non-suit motion differed from and was less onerous than its burden to obtain judgment on its claim. To defeat the non-suit motion, Prudential had to satisfy the trial judge that it had put forward a prima facie case – that it had put forward evidence, which, if believed, would allow the trial judge to decide in its favour. To obtain judgment, Prudential, of course, had to establish its claim on a balance of probabilities. [Emphasis added.]

91In FL Receivables, at para. 34, the appellate court agreed with the submission that the trial judge should not have weighed the competing inferences available from the evidence to determine whether fraud had been established on a balance of probabilities. The court also agreed that the trial judge should have simply determined whether Prudential’s evidence, assuming it was believed, made out a prima facie case, being a case for the responding party to answer.

92Over time, the test in FL Receivables has been consistently applied in the civil jury and non-jury caselaw. Justice Quinn pens at para. 33 of Flying Saucer Restaurant Ltd. v. Lick’s Leasing et al., 2011 ONSC 718, that:

“The term ‘non-suit’ refers to a motion brought by the defendant at the close of the plaintiff’s evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer.” [Emphasis added.]

93 Chandra v. Canadian Broadcasting Corp., 2015 ONSC 5303, 24 C.C.L.T. (4th) 330, sets out a helpful procedure for conducting jury and non-jury civil non-suit motions in Ontario, explaining the steps involved and the test being “whether there is any evidence upon which a jury, acting judicially, could find in favour of the plaintiff”: see paras. 21-22.

94In 2018, the Ontario Court of Appeal in D’Addario v. Smith, 2018 ONCA 163, reaffirmed the FL Receivables test on an unsuccessful appeal of a judge alone non-suit dismissal of an action for malicious prosecution. Later the same year, also in a non-jury case, the court in Shelley v. Shelley, 2018 ONSC 4516, at para. 230, followed the test as articulated at paras. 21-22 of Chandra:

In civil cases, with or without a jury, the established practice is that the defendant must elect whether or not to call evidence: Ontario v. O.P.S.E.U. (1990), 37 O.A.C. 218 (Ont. Div. Ct.), at p. 226. If the defendant elects to call evidence, the judge reserves on the nonsuit motion until the end of the case.
The test for nonsuit is whether there is any evidence upon which a jury, acting judicially, could find in favour of the plaintiff: Michelle Fuerst & Mary Anne Sanderson, Ontario Courtroom Procedures, 3rd ed. (Markham: LexisNexis Canada Inc., 2012) at p. 490. In jury cases, whether a defendant elects to call evidence or not, the trial judge should receive the jury's verdict before ruling on the motion: Lederman et al., at para. 5.18.

95I pause her to observe that the family law practitioner can be assured that the test for a non-suit motion is the same in non-jury and jury cases. Although statutory family law claims pursuant to the Divorce Act, the Family Law Act, the Children’s Law Reform Act, and the Child, Youth and Family Services Act, 2017 cannot be determined by a jury, tort claims involving a family that are not pled within a Form 8 Application and that are not consolidated with an Application can be heard before a jury.

96In Mundenchira Inc. et al. v. Punnasseril et al., 2022 ONSC 311, Justice Fowler Byrne of this court allowed the appeal of a Small Claims Court decision, finding that the wrong test was applied on the motion for non-suit. In setting out the test, Justice Fowler Byrne wrote, at paras. 34 to 35:

34… A motion for “non-suit” refers to a motion brought by the Defendant at the close of the Plaintiff’s evidence to dismiss the action on the ground that the Plaintiff has failed to make out a case for the Defendant to answer. In responding, the Plaintiff must show on this motion that it put forward a prima facie case which, if believed, would allow the trial judge to decide in its favour: FL Receivables Trust 2002-A, at para. 12, 15.

35When considering a motion for non-suit, a judge must take into consideration the Plaintiff’s most favourable facts from the evidence led at trial, as well as all supporting inferences. The judge must then decide whether the inferences that the Plaintiff seeks in their favour can be drawn from the evidence adduced if the trier of fact chose to accept it. In order to set aside the granting of a non-suit, the Appellant must show that there is evidence which, if believed, would form the basis for a prima facie case: Calvin Forest Products v. Tembec Inc., 2006 CanLII 12291 (ON CA), 208 O.A.C. 336 (C.A.) at para. 13-14, citing Sopinka, Lederman, and Bryant in The Law of Evidence (2nd ed.).

97Most recently, Justice Pollak in Chuhan v. Soundrarajan, 2025 ONSC 3288, stated the test for a non-suit motion at paras. 24 to 26:

24The question for this court on the Defendants’ motion for a non-suit is:

a. Have the Plaintiffs put forward evidence on all elements of each cause of action alleged sufficient to establish a prima facie case?

25The burden is on the Defendant to show that the Plaintiffs failed to establish a prima facie case that some evidence has been led on all elements of each claim. I can consider the pleadings, agreed statement of facts, the evidence of the witnesses and trial exhibits.

Conclusion

98The test for a non-suit motion in a family law proceeding has been well developed within the civil jury and non-jury jurisprudence, beginning with FL Receivables. The test is a limited inquiry that requires the court to assign the most favourable interpretation to a claimant’s evidence when determining whether the claimant has presented a prima facie case for the responding party to answer. At the non-suit stage, the finder of fact cannot consider inferences available to the party moving to dismiss the claim that might rebut the claimant's prima facie case. The trial judge can only consider such inferences at the end of the trial.

99As a general premise, I do not promote the use of non-suit motions in family law. There will be some cases in which there is no earlier opportunity for a less expensive determination, but the risk to the party seeking to dismiss the claim is high and the savings are low. Some time and expense will be saved by ending the trial at the conclusion of the claimant’s case, but when one views the proceeding as a whole, the costs saved are likely to be minor compared to the costs already incurred.

100Neither is a non-suit motion in keeping with the culture shift called for by the Supreme Court of Canada in paras. 2 and 27 of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Hryniak speaks to a litigation environment that promotes timely and affordable access to the justice system, in part, by moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case, and ideally, by promoting earlier, non-trial models of adjudication.

Issue Two: Has Christina Presented a Prima Facie case that the Agreement should be Set Aside?

Limited Inquiry

101Anthony urges me to find that Christina's attack on the parties' Agreement falls squarely within the category of cases for which Justice Fryer issued a caution at para. 37 of Balsmeier v. Balsmeier, 2016 ONSC 3485, 80 R.F.L. (7th) 274, being claims that are a transparent “attempt to set aside an otherwise valid contract in the hopes of shaking loose a more favourable resolution from the wealthier party."

102In a motion for a non-suit, it is not appropriate to speculate as to any wrongful intention underlaying a course of litigation. As set out at para. 35 of FL Receivables, the trial judge undertakes a limited inquiry on the non-suit motion. While I may examine aspects of Christina’s evidence that are internally inconsistent, I must assess her evidence, including any ambiguity in her evidence, in the most favourable light.

Statutory Basis permitting the Setting Aside of a Separation Agreement

103To answer whether Christina has led a prima facie case in support of her claim to set aside a duly executed agreement, I must first set out the legal tests governing a claim to set aside a separation agreement. The tests as set out in the statute and the caselaw are not in dispute, so I offer only a brief overview.

104 Section 54 of the Family Law Act permits separated spouses to enter into an enforceable domestic contract (a separation agreement) dealing with a) ownership in or division of their property, b) support obligations for their children and for each other, c) the right to direct the education and moral training of their children, and d) the right to decision-making responsibility or parenting time with respect to their children.

105Separation agreements that are fairly negotiated and properly executed are to be respected and enforced. As stated by the Court of Appeal in Ramdial v. Davis, 2015 ONCA 726, 68 R.F.L. (7th) 287, at para. 51, "[t]he court should treat the parties' reasonable best efforts, as reflected in their negotiated agreement, as presumptively dispositive." This approach was confirmed by the Supreme Court of Canada in Anderson v. Anderson, 2023 SCC 13, [2023] 1 S.C.R. 473, at para. 33: “[a]s a starting point, domestic contracts should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement.”

106The legislative basis upon which a separation agreement can be set aside is found at section 56(4) of the Family Law Act:

a. if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the 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.

107The court in LeVan v. LeVan, 2008 ONCA 388, 51 R.F.L. (6th) 237, at para. 51, sets out a two-step approach to the application of s. 56(4). First, the party challenging the domestic contract or a term within it must demonstrate that s. 56(4)(a), (b), or (c) are engaged; and second, the court must then determine whether it is appropriate to exercise its discretion to set the contract aside.

108Section 56(4) does not operate to require a state of perfection, but rather to recognize fundamental principles within the law of contract, the special nature of the family and personal autonomy. The fact that the property division differs from what might have been achieved through a formal equalization calculation is not a ground to set aside the agreement: see J.L.S. v. D.B.S., 2016 ONSC 1704, 79 R.F.L. (7th) 409, at para. 32.

109In Harnett v. Harnett, 2014 ONSC 359, 43 R.F.L. (7th) 464, at paras. 87-96, affirmed in Singh v. Khalill, 2024 ONCA 909, 20 R.F.L. (9th) 119, I set out the principles applicable to a claim to set aside a domestic contract (in that case, a cohabitation agreement, but confirmed to be equally applicable to a test to set aside a separation agreement):

As a general rule, courts will uphold the terms of a valid enforceable domestic contract: Hartshorne v. Hartshorne, 2004 SCC 22, 2004 CarswellBC 603 (S.C.C.)
It is desirable that parties settle their own affairs: Farquar v. Farquar (1983), 1983 CanLII 1946 (ON CA), 35 R.F.L. (2d) 287 (Ont. C.A.) and courts are generally loathe to set aside domestic contracts. See page 297:

the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts ... as a general rule ... courts should enforce the agreement arrived at between the parties.... The parties to the agreement need to be able to rely on [them] as final in the planning and arranging of their own future affairs

89 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: Clayton v. Clayton, 1998 CanLII 14840 (ON CTGD), 1998 CarswellOnt 2088 (Ont. Gen. Div.).

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), 1968 CanLII 250 (ON CA), [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), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (Ont. C.A.).

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), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 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 (Ont. C.A.).

95 A finding that a party violated a provision of s. 56(4) of the FLA does not automatically render the contract a nullity. Rather, a trial judge must determine whether it is appropriate, in the circumstances, to order that the contract be set aside. It is a discretionary exercise: LeVan paragraph 33.

96 The lack of independent legal advice is not by itself determinative. It is only one factor: Dougherty v. Dougherty, 2008 ONCA 302, 2008 CarswellOnt 2203 (Ont. C.A.); Raaymakers v. Green, 2004 CarswellOnt 2712 (Ont. S.C.J.)

110The court must consider whether the party alleging non-disclosure had just as much ability to value the assets in question as the other party. A general awareness of the other party's assets may be sufficient to avoid setting aside the contract: see J.L.S. v. D.B.S., at para. 35, citing Lambert v. Lambert, 2008 CanLII 22131 (Ont. S.C.), at para. 29.

111Moreover, a finding of non-disclosure does not automatically invalidate the contract. The court considers a range of factors, including: whether the non-disclosure was an oversight; whether the petitioning party had just as much ability to value the assets; whether the petitioning party was generally aware of the other party's financial affairs and neglected to pursue full disclosure with due diligence; and whether the petitioning party received substantial benefits under the agreement. See Saulnier v. Postma, 2025 ONSC 3569, at para. 76.

112Even if a court finds that there are non-disclosed assets, their significance must be considered within the broader context of the relationship and the surrounding circumstances — it is not a purely mathematical exercise. In Turk v. Turk, 2018 ONCA 993, 20 R.F.L. (8th) 257, at para. 12, the Ontario Court of Appeal upheld the trial judge’s determination that “more disclosure would not have ‘changed the outcome’” because the non-disclosed assets had no bearing on equalization and were also irrelevant to the amount of support agreed to between the parties.

No Prima Facie Evidence that Christina did not Understand the Contract

113The party seeking to set aside the domestic contract must establish either that they did not understand the “nature” of the domestic contract or that they did not understand its “consequences”. Failure to understand the nature of the domestic contract refers to the failure to understand either the type of contract being entered into, or specific terms of that contract.

114Christina takes no issue with the formalities of the final, executed separation agreement or the attached spousal support release. She makes no complaint that she received inadequate legal advice. She agrees that she read the Agreement, understood its terms, that she was aware of each of the parties’ respective rights and obligations under the Agreement, its nature and consequences and that she signed it voluntarily. The reader is referred to lines 167 to 175 of the Amended Agreed Statement of Facts.

No Prima Facie Evidence of Unconscionability or Duress

115Unconscionability is an objective standard that requires a member of the public, fully informed, to be shocked by the result, in a manner that if left to stand, might bring the administration of justice into disrepute. Duress is a subjective standard that speaks to an individual’s vulnerability. Duress exists when a party has been preyed upon in a manner that has deprived them of the ability to understand the nature and consequences of the agreement.

116The court is less likely to interfere when the party seeking to set aside the agreement is the victim of his or her own failure to self-protect. The test is not which party made the better bargain, but whether one party exploited the unequal positions of the parties: see Harnett, at paras. 90-93. A party who declines to take proactive measures or who chooses to sign a domestic contract despite awareness of flaws, may be unable to later resile from the contract: Butty v. Butty, 2009 ONCA 852, 99 O.R. (3d) 228, at paras. 57, 60.

117Here, Christina does not assert that she was preyed upon or rendered unable to understand the Agreement. She was under no pressure to sign the agreement and she fully participated in every one of the ten drafts. The essential terms of that Agreement did not change. There was to be no spousal support, and the equalization payment was $440,000. She carefully read each draft, directing counsel as to the next step while chiding him for the delay and the cost arising from what she viewed to be his excessive and unnecessary due diligence.

118Christina suffered from no language barriers, emotional or health challenges, and she was the more financially sophisticated of the two parties. She admits that she never communicated any fear of Anthony to her counsel. To the contrary, in her book, “Wake Up or Die Poor: We’re all running a business. Who’s managing yours?” as well as in the book’s promotional YouTube videos, she tags Anthony with the moniker of ABH: “the Abysmal Black Hole.” She denigrates his spending habits and uses his lack of personal discipline as a warning to others, while championing her heads-up approach. She credits her efforts as having single handedly advanced the family finances. Christina was more charitable at trial, describing Anthony as a "big, loving, caring, wonderful man.”

119In her evidence at trial, she denied ever having felt harassed or annoyed. She shared, “honestly, it was another project for me to tackle. And we have had many projects across 20 years.” She only addresses the objective standard of unconscionability through her own lens of what she would have done had she known that Anthony was in a committed relationship.

120Even giving this evidence the most favourable interpretation, I find that it does not establish a prima facie case to set aside the Agreement as a whole. Christina was not in denial about the end of her marriage, nor did she labour under the false hope of reconciliation. She had already repartnered, built her dream home using equity within her company, integrated into her partner’s family and moved forward in her career.

No Prima Facie Evidence that Anthony Failed to Disclose Significant Assets, Debts or other Liabilities

121Christina primarily rests her case on this statutory ground: that significant information respecting the value of Anthony’s assets and his income was withheld from her during the negotiation process. With the benefit at trial of comprehensive valuations of her and Anthony’s companies on each alleged date of separation, her counsel points to an agreed, mid-point equalization payment of $1,035,898.36 payable to Christina on a July 1, 2015 date of separation, and $1,939,984.53 payable to her on a November 3, 2016 date of separation.³

122As set out above, the law is well settled that the result that “might have been” is not the measure of whether a domestic contract ought to be set aside when the party alleging non-disclosure had as much ability to value the assets in question as the other party.

123Christina had access to Anthony’s company accountant, and she corresponded directly with her in March 2017 about the 2015 Summary of Holdings. Christina gave no evidence at trial that she was unable to access information or that a document was withheld from her. The email communications and Anthony’s evidence that was read in from his April 24, 2023 questioning amply demonstrates that he produced whatever Christina could not directly access herself. His instructions to everyone regarding disclosure was to share everything.

124Christina’s counsel asserts that the read-ins show that Anthony knew that Christina should have been given a copy of the general ledger and he failed to do so. Even giving the read-ins the interpretation most favourable to Christina’s case, I cannot accept that the interpretation advanced by her counsel has been made out. When read in the full context of his line of questioning, it is clear that Anthony was agreeing with the examiner on every point of disclosure that he proposed should be shared. Anthony answered that certain items were provided and that he didn’t know if other items were requested or available to Christina. When asked what information he thought had to be disclosed to her, he said “[e]verything…Everything related to my business and/or personal finances… Everything from my bank account personally, to investments that I have, to the financial statements for all companies I am involved with”.

125In the read-ins, Anthony spoke about not truly realizing that the marriage was over until he learned that Christina’s new partner had moved into the former matrimonial home. He talked about how Christina spoke directly with the business valuator whom he had used during the process of buying out his former partner’s sons’ interest in the business. He was deferential to Christina’s expertise and negotiated with her on the basis that she knew and understood more of the process than he did. He agreed with her assessments not for any ulterior motive, but because he genuinely believed that she knew more about these things than did he.

126Anthony was highly deferential to Christina throughout the questioning, stating at line 690 that she was “a better accountant than any I have ever worked with.” He confirmed that he gave her an open door to all his financials and to his staff and professional advisors. He trusted her to tell him what was fair. When asked by the examiner, “[s]o, did you think it was her obligation to figure out your finances?” He answered that “I thought it was my obligation to provide everything that I had available.” The examiner pursues this line:

Q. Well, is there any reason why you didn't figure it out for her? Is there any reason why you did not provide a valuation of your business interests by a chartered business valuator?

A. I had only assumed had it been asked for, it would have been provided.

Q. And you did not engage anybody at the time? You did not engage...

A. Apart ... sorry.

Q. ... a chartered business valuator, at the time, to do a valuation of your business?

A. Apart from Vincero, no.

127I do not assess Anthony’s evidence within Christina’s case to support in any manner a transfer in his obligation to provide financial disclosure to Christina. At all times, Anthony was responsible to evidence his Net Family Property and his income for support purposes.

128Instead, I find that Christina does not present a prima facie case to set aside the separation agreement on the basis of significant non-disclosure because she refused further disclosure.

129The evidence at trial shows that Mr. Buck pressed Christina on multiple occasions to obtain a valuation of Anthony’s company and of his income. In March of 2017, she told her counsel that she had conducted her own valuation of Anthony’s business, setting BMI’s value at $5-6 million and that she was content to rely on that assessment. (Ironically, with the benefit of the subsequent valuations, Christina’s own valuation turned out to be reasonably accurate.)

130Mr. Buck’s statement of account dated April 26, 2017, speaks to her acknowledgment during their meeting of April 20, 2017, that she had read the Miglin case, that she did not want financial disclosure, that she did not care whether Anthony was “worth gazillions of dollars” and that she was only concerned about financial provisions for the children. She is recorded as repeating her instructions to Mr. Buck that he was not to seek further financial disclosure.

131Anthony offered to provide supporting documents for Bear Holdings in April 2017 directly to Christina. He offered to have the company financial documents audited at her expense if she was not satisfied by them. She did not make that request.

132By May 2017, Christina knew that BMI's 2016 revenue was $42 million, which she described as a "huge amount of money”, and by July 2017, she had calculated the gross value of Anthony's business interests at $7.5 million after liabilities. Throughout, Christina was acutely aware of the relationship between earnings and equity over the history of the company. None of that knowledge dissuaded her from the terms that she insisted from the beginning of the negotiations be placed into the separation agreement.

133The contents of Mr. Buck’s file and Christina’s own correspondence with Anthony during the spring of 2017 highlight her ongoing and escalating frustration with both lawyers’ efforts to obtain more information.

134When she had discussed disclosure with Mr. Buck in April 2017, she told him she "did not want financial disclosure." In May 2017, after forwarding Anthony's 2016 corporate financial statements to Mr. Buck, she spoke with Monica Suley of his office to discuss the numbers. By June 2017, Christina told her counsel, in reply to his concerns that she needed to obtain more disclosure and valuations, that she was “satisfied that [she] had Anthony’s financials” and she declined further disclosure.

135She instructed Mr. Buck in July 2017: "Pls explain to Ms. Holmes that my proposed settlement will not change based on any of these financials." She sent this instruction after having received financial statements for 2014–2016, the corporate organizational hierarchy, and having produced her own business valuations that identified the gross value of Anthony's business interests at over $8.6 million — later revised to approximately $7.4 million after accounting for liabilities. (Again, these values were not significantly different from those prepared by the valuators eight years later.)

136In September 2017, Christina received a disclosure brief with Anthony’s Form 13.1 financial statement. The brief set out all of his holdings in a corporate chart, with an invitation to obtain more information about Lucius Holdings and about the Turks and Caicos company. She declined that request.

137Neither did she ever value her shares in CMI or obtain a certified valuation of the Mississauga home on either of the two proposed dates of separation.

138Throughout the negotiations for the separation agreement, Christina relied on her own professional acumen, which she considered superior to that of Anthony and his advisors. She testified at trial that she analysed BMI’s revenue streams, multiples, and fully considered methods for valuing a construction company. She confirmed that she fully understood all aspects of Anthony’s finances, including asset depreciation, debt load, interest payments, and tax obligations. She was not prevented, dissuaded or misdirected in her inquiries.

139Even if I accept Christina’s evidence at trial that her reason for contesting the divorce application was the discovery of previously unknown 2013 estate documents from Anthony’s former business partner, and I place it into its best light, such documents bear no temporal connection to Anthony’s net worth at the time of separation.⁴ They are immaterial because Christina used the correct ownership interest in BMI when calculating Anthony’s equity in BMI during the November 2016 to April 2018 negotiations.

140I find that there is no prima facie evidence that Anthony failed to disclose significant assets, debts or other liabilities relevant to the parties’ respective Net Family Properties in the period leading up to the execution of the Agreement pursuant to section 56(4)(a) of the Family Law Act.

141Neither am I persuaded that Christina has offered a prima facie case that the chosen date of separation would have made any difference to the outcome. She considered both counsels’ insistence on sworn financial statements to be a troublesome formality. She remained committed to the same essential terms of the Agreement throughout the period of negotiation, irrespective of each party’s Net Family Property for Family Law Act purposes. She did so fully aware of the importance of the date of separation, valuations and how equalization is calculated as one half of the difference between the parties’ respective Net Family Properties.

Conclusion

142Christina has not provided a prima facie case that the Agreement as a whole should be set aside.

Issue Three: In the alternative, has Christina Presented a Prima Facie case that the Spousal Support Release Ought to be Set Aside?

Test to Set Aside a Spousal Support Release

143 Section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), confers authority on a court to order spousal support corollary to a divorce application. The objectives of spousal support set out in the Divorce Act recognize both compensatory and non-compensatory considerations. Under s.15.2(6) of the Divorce Act, spousal support should:

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

144Section 15.2, as interpreted by the Supreme Court of Canada in Miglin and as noted by the Ontario Court of Appeal in Faiello v. Faiello, 2019 ONCA 710, 438 D.L.R. (4th) 91, at para. 16, does not grant authority to "set aside" a separation agreement but establishes that the existence of a valid separation agreement is one factor for the court to consider when determining whether to award spousal support. Support terms under an otherwise valid agreement may in some circumstances be "overridden": Faiello, at para. 17.

145The decision of the Supreme Court of Canada in Miglin establishes a two-stage inquiry where, as here, a support application is made in the face of a valid release between the parties. At the first stage, the court considers whether the agreement was negotiated in an unimpeachable fashion, that is, in a manner that was procedurally fair. Circumstances of negotiation that do not amount to unconscionability may be relevant, but the court is not to presume an imbalance of power: Miglin, at para. 82.

146Most successful applications arise at stage one, where the court examines the negotiation and execution of the agreement. Findings regarding duress, unconscionability, and undue influence apply equally to the Miglin analysis. The court then focuses on whether any vulnerabilities existed — economic, emotional, or relating to mental health, failure to disclose, or understanding the terms — and whether the waiving spouse was adequately represented. Where vulnerabilities are absent or compensated for by the presence of counsel, the court should treat the agreement as a genuine mutual desire to finalise the separation and indicative of the parties' substantive intentions. See Kinsella v. Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, at paras. 411, 478.

147If the agreement "passes" the first stage of the Miglin analysis, the inquiry next considers the circumstances at the time of the application for spousal support and whether the substance of the agreement substantially complies with the four objectives of the Divorce Act: a) to recognize economic advantage/disadvantage, b) to apportion child-care consequences, c) to relieve economic hardship, and d) to promote economic self-sufficiency. In doing so, I must consider the agreement in its totality, bearing in mind that all aspects of the agreement are linked and that parties have broad discretion to set goals and priorities for themselves: Miglin, at para. 84; Faiello, at para. 46.

148Stage two of the Miglin analysis balances the policy considerations of respecting parties’ autonomy to create their own agreements - provided that the negotiation leading to the agreement is procedurally fair - with the broader public policy interest in ensuring that such agreements remain consistent with the principles of fairness and justice over time.

149In the second stage, the court can consider significant, unforeseen changes in circumstances that have rendered the agreement unfair or unworkable. From this wider lens, the court must also question whether the agreement continues to uphold the four objectives of spousal support under the Divorce Act.

150However, as stated in Miglin, at para 91, "[i]t is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight."

Stage One Analysis

151From the parties’ initial discussions in April 2014, to the active negotiation period from November 2016 to when they signed the Agreement on April 26, 2018, it is uncontested that Christina did not seek and often strenuously rejected any payment of spousal support. Neither party engaged a valuator to determine their income for support purposes and neither party asked that the other value his income because they had already settled child support and there was to be no payment of spousal support.

152Christina was the driver and organizing mind in the party’s family, financial and professional lives. At the time of separation, she did not conceive of herself as a spousal support recipient. She boasted at trial about her circle of professional female friends with whom she explores opportunities to ‘scale up’ innovative entrepreneurial projects. Within that circle, she saw her earning potential to be well in excess of that of Anthony’s.

153Her view was supported by her filing of the parties’ taxes. The income information available to each of them at the time was the taxable income that she prepared and reported to Canada Revenue Agency (Line 150) for the years of 2013, 2014 and 2015. In her calculations, she minimized her own income for tax and credit benefits, while having a full appreciation of her actual income. The taxable amounts for each party were:

Taxation year Christina Anthony

2013 $52,000 $1,777,996

2014 $45,068 $197,155

2015 $39,478 $175,752

154At trial, Christina testified that she waived spousal support “because on paper, [she earned] more than he [did],” which, therefore, led her to believe that “there’s no spousal support to be paid to me” and that “there was no spousal support to discuss.”

155Even when her counsel recommended further financial disclosure, and required her to read the Miglin case, Christina remained steadfast in her refusal to claim spousal support. She understood that Anthony’s earnings had increased between 2015 and 2016, and she discussed with her counsel the “tens of millions of dollars in revenue” reflected in the financial statements for Anthony's businesses. Despite all of this, the parties released each other from spousal support within a comprehensive Miglin style release that was attached to the Agreement as a schedule.

156I cannot find that Christina has led a prima facie case that she was vulnerable during the negotiation process, did not understand the release or that there were any flaws in the negotiation process which led to the execution of the spousal support release. She received legal advice that she ought to ask for an income valuation, further disclosure and ought not sign a spousal support release. She chose not to accept that advice.

Stage Two Analysis

157Christina was 25 years old when she married Anthony. Over the next 20 years, they raised three children together, built equity in their respective businesses, and acquired savings and property. It is undisputed that Christina, with domestic assistance, was all three children’s primary caregiver.

158In the course of this litigation, BMI’s General Ledger became available for the period of April 1, 2017, to March 31, 2018. Under the account entitled “Employee Bonus”, it shows that one week before Anthony sent Christina his March 23, 2018 offer to settle, he was paid a bonus of $930,344.47. The General Ledger also shows that the home that Anthony purchased on July 4, 2017 through a holding company was financed by funds of $1,218,565 borrowed from BMI.

159In the Amended Agreed Statement of Facts, Anthony’s valuator calculates his income for support purposes in the italics below, and Christina’s valuator sets his annual income in the amounts in the second column:

Year Anthony Christina

2013 $1,800,000

2014 $243,000

2015 $737,000 $1,106,000

2016 $208,000 $128,000

2017 $1,997,000 $3,446,000

2018 $4,350,000 $3,816,000

2019 $2,771,000 $3,346,000

2020 $5,048,000 $4,076,000

2021 $5,029,000 $3,786,000

2022 $1,094,000 $1,756,000

2023 $2,641,000 $2,416,000

160I find that Christina has established a prima facie basis to set aside the spousal support release under part two of the Miglin test because she was not aware of the growing disparities in their income. This is some evidence of economic disadvantage. Anthony’s non-suit motion to dismiss the alternative relief sought is dismissed.

Issue 4: Has Christina Established on a Balance of Probabilities that the Spousal Support Release Should be Set Aside?

161Having dismissed the non-suit motion on this issue, I must now proceed on the record before me to determine whether the spousal support release should be set aside. In doing so, I am able to consider the competing inferences available to Anthony.

Stage One Analysis

162For the same reasons that I have found that Christina did not establish a prima facie case on stage one of the Miglin analysis, I must also find that she has failed to do so on a balance of probabilities.

Stage Two Analysis

163The court should set aside the wishes of the parties as expressed in a pre-existing agreement only where that agreement fails to be in substantial compliance with the overall objectives of the Divorce Act, including certainty, finality and autonomy: see para. 78 of Miglin.

164I start with an analysis of the third and fourth objectives: to relieve any economic hardship of a spouse arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. These two objectives are interrelated on these facts.

165I do not have a sufficient evidentiary basis to find that Christina has suffered any economic hardship as a result of the spousal support release. She led no evidence at trial as to any economic hardship since separation or that she has failed to achieve self-sufficiency.

166I have only her valuator’s assessment of annual income in the range of $150,000 to $270,000, her July 9, 2018 financial statement in which she shows $110,539 of annual expenses net-of-tax that are not paid by her corporation, and her August 7, 2025 financial statement in which she shows $199,371.12 in net-of-tax expenses that are not paid by her company.

167In the face of taxable income consistently reported to CRA to be under $52,000, her income for support purposes as valued by Marmer Penner is:

Year

2015 $ 240,000

2016 $ 220,000

2017 $ 190,000

2018 $ 270,000

2019 $ 150,000

2020 $ 230,000

2021 $ 260,000

2022 $ 510,000 (which includes $310,000 of capital gains)

2023 $ 210,000

2024 projected $ 120,000

168The two financial statements show that Christina’s net equity has increased since 2016 even without the payment of spousal support. Some of that increase has been in the market value of her home and the value of her investments, but it also includes a significant increase in CMI’s retained earnings.

169When I turn to the first and second objectives as set out in the Divorce Act, I acknowledge that a release of spousal support in these circumstances on a purely objective basis might not adequately recognize the potential economic disadvantage to Christina of this 20-to-22-year marriage. When she returned to work on a modified, flexible basis after an extended maternity leave, she was selective with her contracts so that she could be available for the children at home. She single-handedly cared for them during the challenging years of 2013 to 2014 when Anthony acquired control of the company, after the death of his partner.

170Additionally, Christina invested significant time and expertise into the development of BMI which now generates income as much as ten-fold more than it generated in the final years of the marriage. As outlined above, in the Amended Agreed Statement of Facts, Anthony’s valuator calculates his income for support purposes in amounts significantly greater than those reported for tax purposes.

171Christina was intimately aware of Anthony’s sources of income, having extensively advised both BMI and Anthony personally as to how to organize and report his finances. In the face of this knowledge, she resolutely declined any entitlement to spousal support.

172In 2017 she had the benefit of legal advice from a senior counsel who pushed back on her refusal to seek financial disclosure and her intention to sign a spousal support release. He required her to read Miglin v Miglin which she acknowledged having done in their meeting of April 20, 2017. When she still refused financial disclosure and spousal support, her counsel continued to raise his concerns, creating tension in their solicitor-client relationship. She chose to ignore her lawyer’s advice.

173I accept as findings of fact that Christine was unaware that Anthony had drawn $930,344.47 from BMI in March of 2018 and that she had no knowledge of the scope of his subsequent increases in income. Her involvement in Anthony’s personal finances and those of BMI had ended with her 2016 filing of his 2015 Income Tax Return. But this lack of knowledge must be viewed from the perspective of her steadfast intention throughout to eliminate spousal support as an issue in their separation irrespective of Anthony being worth "gazillions" of dollars.

174She had reason to do so. She believed that her income earning potential was well in excess of Anthony’s. She had built her brand around being the CEO of “Quinn-Co” who had financially thrived while being married to the Abysmal Black Hole.

175On the record before me, I find that Christina has tendered some evidence of economic disadvantage as a result of the marriage, but not enough evidence to meet the balance of probabilities standard. Her actions after being served with the simple Application for Divorce taken at their highest demonstrate that her concern was not for any disadvantage to her own financial or economic well-being, but instead, that their children would now have to compete with their stepmother for their father’s resources.

176Christina did not pursue spousal support until three years after the Divorce was served, and only after Anthony asked through counsel that she release him from the HELOC and withdraw her Answer. Her reasons for removing $740,000 from the HELOC on January 21, 2021 remain a mystery.

177The second stage of the Miglin analysis speaks to the failure of an agreement to be in substantial compliance with the objectives of the Divorce Act. In Smith v. Smith, 2017 ONCA 759, the Ontario Court of Appeal dismissed a support claimant’s appeal of a trial judge’s decision not to set aside a spousal support release in a cohabitation agreement. The appellant had acknowledged that she had not been coerced into signing it, asserting instead that there had been a power imbalance and a lack of disclosure at the time of signing the release.

178In their reasons for dismissal, the Court of Appeal cited the trial judge’s findings that the wife was aware of all of the husband’s sources of income and assets and did not pursue further disclosure, that she had “skimmed over the cohabitation agreement and read some parts of it and not others,” that there had been no fraud, coercion, or duress, that she had declined independent legal advice and that the agreement was in substantial compliance with the Divorce Act.

179Such are the circumstances in this case. Christina made a tremendous contribution to this marriage and an informed, deliberate decision at its conclusion not to seek spousal support. She maintained that position throughout the negotiations that started in earnest in November of 2016, to the execution of the Agreement on April 26, 2018, and for over three years thereafter. Christina was unaware of the extent of Anthony’s income after 2016, but at all times, she knew that he made more money during the marriage than did she. She believed that despite his higher income, her earning potential exceeded his.

180A spousal support release in these circumstances cannot be said to fail to be in substantial compliance with the four overall objectives of the Divorce Act which include certainty, finality and autonomy, see para 78 Miglin above. The children are now adults, and their father is assisting them with their education expenses. Christina does not put forward a case on a balance of probabilities that she has suffered economic disadvantage, economic hardship or an inability to be self-sufficient as a result of the breakdown of the marriage.

181Instead, her counsel relies on the post separation income disparity speaking for itself. Income disparity alone is not a sufficient basis for an award of spousal support, see Farrar v. Farrar (2003), 2003 CanLII 15943 (ON CA), 222 D.L.R. (4th) 19 (Ont. C.A.), at para. 60.

182I find that Christina has failed to establish on a balance of probabilities that the Spousal Support Release should be set aside.

Disposition

183Orders to issue as follows:

Anthony’s non-suit motion to dismiss Christina’s claim to set aside the separation agreement dated April 2018 is granted.
Anthony’s non-suit motion to dismiss Christina’s alternative claim to set aside the spousal support release attached as a schedule to the separation agreement dated April 2018 is not granted.
Christina’s claim to set aside the spousal support release attached as a schedule to the separation agreement dated April 2018 is not granted.

Costs

184If the parties are unable to resolve the issue of costs, written submissions not exceeding eight pages, exclusive of Offers to Settle and a Bill of Costs may be emailed to my attention at SCJ.CSJ.General.Brampton@ontario.ca on a timetable to be agreed by counsel. A statement of the timetable is to be included in the applicant’s submissions which shall proceed first, followed by the respondent’s response and then the applicant’s reply (unless it is agreed that there shall be no reply.) Caselaw is to by hyperlinked within the body of the submissions.

Footnotes

I will refer to the parties by their first names to avoid confusion as to whom I am speaking about. I mean no disrespect.
The other two being Manitoba and New Brunswick.
For a complete record of the differences between the equalization amounts generated from the valuations of CMI and BMI, see para. 223 of the Amended Agreed Statement of Facts. For example, Anthony’s financial statement dated June 29, 2017, states BMI’s value at $1,914,000 on July 1, 2015. In their report dated November 22, 2023, Marmer Penner Inc. sets the net value of Anthony Quinn Holdings Inc. (inclusive of BMI, a shareholder’s loan, property held in a holding company: Lucius Holdings, less contingent income tax) at $4,218,592 on July 1, 2015, and $6,446,148 on November 3, 2016.
This is an example of an internal inconsistency. In her oral evidence Christina asserts the discovery of the estate documents as her reason for contesting the divorce, but states elsewhere that her reason was to protect the children from Anthony’s remarriage.

Footnotes

I will refer to the parties by their first names to avoid confusion as to whom I am speaking about. I mean no disrespect.
The other two being Manitoba and New Brunswick.
For a complete record of the differences between the equalization amounts generated from the valuations of CMI and BMI, see para. 223 of the Amended Agreed Statement of Facts. For example, Anthony’s financial statement dated June 29, 2017, states BMI’s value at $1,914,000 on July 1, 2015. In their report dated November 22, 2023, Marmer Penner Inc. sets the net value of Anthony Quinn Holdings Inc. (inclusive of BMI, a shareholder’s loan, property held in a holding company: Lucius Holdings, less contingent income tax) at $4,218,592 on July 1, 2015, and $6,446,148 on November 3, 2016.
This is an example of an internal inconsistency. In her oral evidence Christina asserts the discovery of the estate documents as her reason for contesting the divorce, but states elsewhere that her reason was to protect the children from Anthony’s remarriage.