



COURT OF APPEAL FOR ONTARIO

CITATION: Ramdial v. Davis, 2015 ONCA 726

DATE: 20151029

DOCKET: C59917

Gillese, van Rensburg and Miller JJ.A.

BETWEEN

Chandra
    Ramdial

Applicant (Appellant)

and

John Frederick Davis, by his Litigation Guardian
    Richard John Davis

Respondent (Respondent)

Uma Kancharla, for the appellant

Erin Melnyck, for the respondent

Heard: October 6, 2015

On appeal from the order of Justice J. Christopher Corkery
    of the Superior Court of Justice, dated December 15, 2014.

Gillese J.A.:

[1]

Parties enter into a negotiated settlement agreement to resolve all
    claims arising from the breakdown of a marriage. Both sides are represented by
    legal counsel throughout. Financial disclosure precedes the negotiation process
    but without formal valuations of certain properties. In the absence of formal valuations,
    could the motions judge determine whether the settlement agreement was in
    substantial compliance with the general objectives of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.)? That is the critical question raised on this
    appeal.

[2]

In my view, the answer to that question is yes. As a result, I would
    dismiss this appeal.

BACKGROUND

[3]

Ms. Ramdial (the appellant or Ms. Ramdial) and John Frederick Davis
    (the respondent) were married on September 3, 1995. They separated in early 2012.
[1]
At the time of separation, Ms. Ramdial was 67 years of age and the respondent
    was 81. Both were retired. Based on their financial statements, it appears that
    the appellants annual income was approximately $22,000 and the respondents
    annual income was approximately $40,000. They have no children together, although
    each has adult children from prior marriages. The parties jointly own the
    matrimonial home, which is located in Newcastle, Ontario.

[4]

Since the time of separation, Ms. Ramdial alone has lived in the
    matrimonial home. The respondent has continued to pay the monthly mortgage,
    property taxes and house insurance premiums on the matrimonial home. Since
    April 2012, the respondent has lived in a full-care nursing home, the cost of
    which has exceeded his annual income. He has borne full financial
    responsibility for the expenses of the nursing home.

[5]

In 2010, the respondent had triple bypass surgery and was very ill. After
    he was discharged from the hospital until January 14, 2012, Ms. Ramdial had
    complete control over the respondents pension income, personal savings and
    other assets that he had acquired prior to the marriage (the asset control period).

[6]

In August 2012, the respondent was declared incapable of managing his
    property pursuant to s. 6 of the
Substitute Decisions Act
, S.O. 1992,
    c. 30.

[7]

Ms. Ramdial subsequently commenced matrimonial proceedings related to
    the breakdown of her marriage to the respondent. In those proceedings, she
    sought spousal support and other financial relief.

[8]

Richard John Davis (Mr. Davis) is the respondents son. In August
    2013, the court ordered Mr. Davis to be his fathers litigation guardian. The court
    order also required the parties to make certain financial disclosure.

[9]

In addition to being his fathers litigation guardian, Mr. Davis is the
    designated continuing power of attorney for his father.

[10]

Prior
    to being designated as his fathers attorney, Mr. Davis had concerns about
    whether Ms. Ramdial mismanaged his fathers income and assets during the asset
    control period. After being so designated, Mr. Davis investigated his fathers
    finances and concluded that his concerns were well-founded.

[11]

For
    approximately two years after separation, attempts were made to resolve the
    outstanding issues arising from the parties separation and the breakdown of
    their marriage. All such attempts failed.

[12]

On
    February 14, 2014, the parties participated in a day-long mediation. Ms. Ramdial
    attended with her former legal counsel. Mr. Davis attended with the
    respondents legal counsel. The mediator was a retired Superior Court judge
    with extensive experience in the field of family law. The choice of mediator
    was that of Ms. Ramdial and her lawyer, to which Mr. Davis and the respondents
    counsel agreed.

[13]

Before
    the mediation was undertaken, the parties made financial disclosure. All of the
    appellants requests for financial disclosure were satisfied. However, there
    were no formal valuations of the matrimonial home or of the parties jointly-owned
    properties in Trinidad. Mr. Davis took the position at the mediation that Ms.
    Ramdial had misappropriated significant sums of money from the parties joint
    bank accounts during the asset control period. Ms. Ramdial steadfastly denied
    these allegations.

[14]

By
    the end of the mediation, the parties and their solicitors had mutually
    negotiated and drafted a written agreement that resolved, on a final basis, all
    outstanding matters in the matrimonial litigation (the Settlement Agreement).
    The parties then met separately with their respective lawyers to review and execute
    the Settlement Agreement.

[15]

Under
    the terms of the Settlement Agreement, the respondent was to:

i.

pay the appellant $40,000 in full satisfaction of spousal support (past,
    present and future) by May 3, 2014;

ii.

transfer his half-interest in the parties jointly owned properties in
    Trinidad to the appellant;

iii.

secure a discharge of all registered encumbrances on the matrimonial
    home against the appellant by May 3, 2014;

iv.

take all steps forthwith to ensure that the appellant is the beneficiary
    of the proceeds and investments held with Manulife and MacKenzie, and of the
    respondents British military pension and his British government pension and
    forthwith provide proof of same;

v.

transfer registration of the Honda vehicle registered in the
    respondents name to the appellant; and

vi.

be responsible for the house insurance on the matrimonial home.

The appellant was to:

i.

assume the cost of the transfer of the Trinidad properties;

ii.

transfer her interest in the matrimonial home to the respondent by May
    3, 2014;

iii.

permit the respondents designate to attend at the matrimonial home to
    pick up his possessions on March 1, 2014; and,

iv.

be responsible for the cost of utilities of the matrimonial home to the
    time of closing.

[16]

Approximately
    a month after the Settlement Agreement was executed, Ms. Ramdial discharged her
    counsel and notified Mr. Davis that she intended to resile from it.

[17]

Mr.
    Davis then moved for summary judgment pursuant to rules 16(1) and 16(6) of the
Family
    Law Rules
, O. Reg. 114/99, to enforce the terms of the Settlement
    Agreement. Ms. Ramdial, with the assistance of new counsel, brought a
    cross-motion to have the Settlement Agreement set aside on the basis of duress,
    unconscionability, undue influence, and ineffective assistance of counsel.

[18]

The
    two motions were heard together. Before the motions judge, Mr. Davis indicated
    that he would not rely on the allegation of misappropriation of funds by Ms.
    Ramdial and she indicated, in reply, that she would not rely on undue influence
    as a ground to set aside the Settlement Agreement.

[19]

By
    order dated December 15, 2014 (the Order), the motions judge granted Mr.
    Davis motion and dismissed Ms. Ramdials motion. He found there was
    insufficient evidence of duress, unconscionability, and/or an improvident
    bargain to warrant setting aside the Settlement Agreement.

[20]

Ms.
    Ramdial appeals.

THE ISSUES

[21]

The
    appellant raises two issues on appeal. She submits that the motions judge erred
    by: (i) failing to order a trial of the issues raised on the motions, and (ii) failing
    to consider whether the substance of the Settlement Agreement complied with the
    objectives of the
Divorce Act
.

ANALYSIS

Issue #1  Did the motions judge err by failing to order a trial
    of the issues raised on the motions?

[22]

The
    appellant argues that there are gaps in the record relating to the matters in
    issue and those gaps created an uncertainty which could not be resolved without
    the benefit of a trial. Thus, she contends, the motions judge erred in failing
    to order a trial of the issues raised on the motions.

[23]

In
    my view, this submission reflects a misunderstanding of the operation of rule
    16(6) of the
Family Law Rules
.

[24]

Rule
    16(6) provides that if there is no genuine issue requiring a trial of a claim
    or defence, the court shall make a final order for summary judgment.

[25]

As
    the party bringing the motion for summary judgment, the respondent had the
    burden of showing no genuine issue requiring a trial. As the responding party,
    the appellant had to comply with the dictates of rule 16(4.1), which required
    that she tender evidence of specific facts showing a genuine issue requiring a trial.
    The responding party may not rest solely on mere allegations or denials, but
    must set out, in an affidavit or other evidence, specific facts showing that
    there is a genuine issue requiring a trial.

[26]

Rule
    16 (4.1) reads as follows:

In response to the affidavit or other evidence served by the
    party making the motion, the party responding to the motion may not rest on
    mere allegations or denials but shall set out, in an affidavit or other
    evidence, specific facts showing that there is a genuine issue for trial.

[27]

Each
    party had to put its best foot forward with respect to the existence or
    non-existence of material issues to be tried:
Papaschase Indian Band No.
    136 v. Canada (A.G.)
, 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing
Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.
(1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434;
Goudie v. Ottawa (City)
,
    2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

[28]

Further,
    in
Corchis v. KPMG Peat Marwick Thorne
, [2002] O.J. No. 1437 (C.A.),
    at para. 6, this court affirmed that the responding party to a motion for summary
    judgment has an obligation to lead trump or risk losing.

[29]

While
    these cases rely on the summary judgment rules in the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, they apply also to the summary judgment
    rules in the
Family Law Rules: Brusch v. Brusch
, 2007 ONCA 612, at
    para. 1.

[30]

Thus,
    once the respondent discharged his burden of showing that there was no genuine
    issue requiring a trial, the appellant bore an evidentiary burden to respond
    with evidence of specific facts showing that there was a genuine issue
    requiring a trial. The motions judge found that Ms. Ramdial failed to meet that
    evidentiary burden.

[31]

I
    agree with the motions judge.  Accordingly, he made no error in making an order
    for summary judgment.

Issue #2  Did the motions judge err by failing to consider
    whether the substance of the Settlement Agreement complied with the objectives
    of the
Divorce Act
?

[32]

Miglin
    v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, is the starting point for
    deciding this issue. While
Miglin

dealt with spousal support
    agreements in the context of a divorce, it offers guidance for the conduct of
    negotiations for separation agreements generally, including negotiations for
    the division of matrimonial assets:
Rick v. Brandsema
, 2009 SCC 10, [2009]
    1 S.C.R. 295, at para. 39.

[33]

In
Miglin
, the parties executed a final agreement that addressed all
    matters surrounding the breakdown of their marriage, including mutual releases
    from any future claims for spousal support. Some years later, the wife applied
    for spousal support under the
Divorce Act
. The trial judge ordered
    spousal support. That order was upheld on appeal (and varied to remove the
    five-year term) but reversed by a majority of the Supreme Court.

[34]

Justices
    Bastarache and Arbour, writing for the majority in
Miglin
, explained
    that where parties execute a negotiated agreement in the family law context and
    that agreement is called into question, the court should engage in a two-stage
    inquiry. The second stage is not relevant in the present case because it
    applies when there has been a change in the parties circumstances after the
    execution of the agreement. It will be recalled that in this case, the
    appellant sought to resile from the Settlement Agreement within a month of its
    execution. She did not argue a change in circumstances nor was there any
    evidence of such a change. Thus, I will address only the first stage of the
    inquiry.

[35]

The
    first stage of the inquiry consists of two steps.

[36]

In
    the first step, the court should look to the circumstances in which the
    agreement was negotiated and executed to determine whether the applicant has
    established a reason to discount the agreement:
Miglin
, at para. 80.

[37]

If
    the court is satisfied that the circumstances under which the agreement was
    negotiated were satisfactory, it must proceed to the second step. In the second
    step, the court considers the substance of the agreement. It must determine the
    extent to which the agreement takes into account the factors and objectives
    listed in the
Divorce Act
, thereby reflecting an equitable sharing of
    the economic consequences of marriage and its breakdown. Only a significant
    departure from the
Divorce Act
objectives will warrant the courts
    intervention. The court must not view spousal support arrangements in a vacuum,
    however. It must look at the agreement in its totality, bearing in mind that
    all aspects of the agreement are inextricably linked and that the parties have
    a large discretion in establishing priorities and goals for themselves:
Miglin
,
    at para. 84.

The Circumstances of Negotiation
    and Execution

[38]

Ms.
    Ramdials position on this matter is based on the circumstances in which the
    Settlement Agreement was negotiated. She alleges that she was vulnerable and
    under duress in the mediation process.

[39]

These
    allegations appear to be based on two matters. First, Ms. Ramdial has diabetes
    and says she was suffering from its effects during the mediation process. Second,
    she contends that both her counsel and the mediator failed in their obligations
    and pressured her into executing the Settlement Agreement.

[40]

The
    motions judge was aware that Ms. Ramdial is a diabetic and that she claimed to
    have been vulnerable at the mediation as a result of that condition. At pages
    2-3 of his reasons, the motions judge states:

As evidence of such vulnerability [Ms. Ramdial] provided an
    affidavit stating that she suffers from diabetes, the symptoms of which include
    dizziness, blurred vision and severe headaches. And she stated that while
    waiting for the mediator to arrive, as a result of her not eating for a
    substantial period of time, she was feeling dizzy and overwhelmed.

[41]

However,
    assuming that Ms. Ramdial was vulnerable despite being represented by counsel
    throughout, the motions judge found no objective evidence to suggest that Mr.
    Davis or his counsel took advantage of or exploited that vulnerability. That
    finding was fully open to the motions judge.

[42]

The
    motions judge also addressed the appellants contention that she executed the
    Settlement Agreement under duress. As the motions judge noted, vulnerability cannot
    be equated to duress. Duress is the coercion of a persons will through
    illegitimate pressure, with one party dominating the will of another at the
    time that a contract is executed:
Gordon v. Roebuck
(1992), 9 O.R.
    (3d) 1 (C.A.);
Stott v. Merit Investment Corp.

(1988), 63 O.R.
    (2d) 545 (C.A.), leave to appeal refused, [1988] S.C.C.A. No. 185.

[43]

The
    motions judge found no evidence of duress in the mediation process or execution
    of the Settlement Agreement.  On the record, that finding was virtually
    inescapable.

[44]

The
    motions judge was fully alive to the
Miglin
dictates in this step of
    stage one.  He considered all of the circumstances relating to the negotiation
    and execution of the Settlement Agreement, not limiting himself to the specific
    allegations based on vulnerability and duress.  He concluded that nothing in
    those circumstances gave rise to a basis on which to interfere with the Settlement
    Agreement.

[45]

I
    agree with the motions judge.  Prior to the mediation, the parties had
    exchanged sworn financial statements and draft net family property statements. All
    of the appellants requests for financial disclosure had been fulfilled. Both parties
    had prepared extensive mediation briefs. Both parties were represented by legal
    counsel prior to the mediation and throughout the mediation process. The
    mediation was conducted by an experienced mediator. Both parties were actively
    involved in the negotiations that took place during the mediation. Both parties
    met separately with their respective lawyers to review and execute the
    Settlement Agreement.

The Substance of the Settlement
    Agreement

[46]

The
    appellant submits that the motions judge failed to consider the substance of
    the Settlement Agreement, as required by the second step of the first stage of
    the
Miglin

test. Indeed, she says that the motions judge could
    not consider the substance of the impugned agreement because he did not have
    before him valuations of the matrimonial home and the Trinidad properties. Without
    that information, she contends, it was not possible for the motions judge to
    have determined whether the Settlement Agreement met the overall objectives of
    the
Divorce Act
.

[47]

I
    do not accept this submission.

[48]

As
    the party seeking to set aside the Settlement Agreement, the appellant bore the
    burden of proof to show some legitimate basis on which to set it aside. She
    offers no concrete suggestion as to how the Settlement Agreement fails to meet
    the objectives of the
Divorce Act
.

[49]

To
    the extent that the appellant contends that the Settlement Agreement results in
    some unfairness in the equalization of property, that submission is purely
    speculative. She adduced no evidence to support that contention. The appellant
    could have obtained formal valuations for the properties prior to the mediation
    or the summary judgment motion and chose not to. All requests that she made for
    financial disclosure were met. The motions judge was entitled to conclude that
    the appellant had put her best foot forward. He found nothing to suggest that
    the Settlement Agreement was unconscionable or unfair to the appellant.

[50]

Again,
    I agree with the motions judge.

[51]

The
    court should treat the parties reasonable best efforts, as reflected in their negotiated
    agreement, as presumptively dispositive. It should set aside the wishes of the
    parties as expressed in that agreement only where the applicant shows that the
    agreement fails to substantially comply with the overall objectives of the
Divorce
    Act
. Those objectives include certainty, finality and autonomy:
Miglin
,
at para. 78.

[52]

The
    Supreme Court reiterated the need for courts to respect private arrangements
    made for the division of property on marriage breakdown, particularly where the
    agreement was negotiated with independent legal advice, in
Hartshorne v.
    Hartshorne
, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 9. While such
    agreements are not immune to scrutiny, they are to be set aside only where
    there is evidence establishing that the circumstances in which the agreement
    was negotiated were not satisfactory or that the agreement was not in substantial
    compliance with the objectives of the
Divorce Act
. There is no such
    evidence in this case.

DISPOSITION

[53]

Accordingly,
    I would dismiss the appeal with costs to the respondent fixed at $13,000, all
    inclusive, deductible from the amount which the respondent is to pay the
    appellant pursuant to the Settlement Agreement.

Released: October 29, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. K. van Rensburg
    J.A.

I agree. B.W. Miller J.A.





[1]
The parties differ on whether the date of separation is before or after the
    appellants trip to Trinidad, which took place between mid-January 2012 and early
    February 2012.


