



COURT OF APPEAL FOR ONTARIO

CITATION: Stevens v. Stevens, 2013 ONCA 267

DATE: 20130429

DOCKET: C55152

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Joel M. Stevens

Applicant (Appellant)

and

Pamela Beverley Stevens
and Rosalyn Tsao

Respondents (Respondent in Appeal)

D. Smith, Lawrence E. Thacker and Yashoda Ranganathan,
    for the appellant

Stephen Grant and Gillian Kerr, for the respondent
    Pamela Beverley Stevens

W.E. Pepall, for the respondent Epstein Cole LLP and
    Roslyn Tsao

Heard: April 16, 2013

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated February 6, 2012, with reasons reported at
    2012 ONSC 706, 109 O.R. (3d) 421, and from his costs ruling, dated December 3,
    2012, with reasons reported at 2012 ONSC 6881.

By the
    Court:

[1]

This appeal arises from a matrimonial dispute as to the validity of a
    marriage contract. After a 16-year marriage that produced three children, the
    parties encountered difficulties when the respondent wife discovered that the
    appellant husband was having an affair. They attempted to reconcile and, in the
    process of reconciliation, a marriage contract was prepared by the solicitor
    for the respondent to provide for what would happen in the event that the
    reconciliation failed. The respondent had acquired substantial wealth from her
    father and had put a significant amount of money into the matrimonial home. In
    her covering letter, the solicitor stated that the agreement was that the
    appellant would receive one-half of the value of the matrimonial home. The
    appended written agreement provided that the appellant would receive 100 per cent
    of the value. The agreement was signed by the parties and, when the attempted
    reconciliation did not succeed, the appellant commenced this proceeding to
    enforce the written contract.

[2]

The appellant insisted at trial that the written contract, which gave
    him the full value of the matrimonial home, reflected the agreement between the
    parties. That was disputed by the respondent.

[3]

The central issue at trial was the validity of the written contract. In
    a lengthy judgment, the trial judge made detailed findings of fact leading him
    to conclude that there was no enforceable agreement. He reached that conclusion
    on a variety of grounds including:

1.

There was no
    meeting of the minds as to essential terms of the written agreement;

2.

The contract was
    unconscionable; and

3.

The contract
    should be set aside pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3,
    s. 56(4).

[4]

On the meeting of the minds issue, the trial judge found that the
    provision in the written agreement providing that the appellant would get the
    entire value of the parties matrimonial home was a drafting error. The trial
    judge found that there was no agreement that the appellant would receive the
    entire value. He further found that, in view of the discrepancy between the
    agreement and the cover letter, the appellant and his counsel had an obligation
    to seek clarification from the respondent as to her position before signing the
    agreement. They failed to do so.

[5]

The trial judge also found that the parties were not
ad idem
as
    to the way the contract affected a loan of approximately $1 million that the
    respondent had made to the family trust. According to the respondent and the
    terms of the note, the loan was repayable on demand. According to the
    appellant, the respondent had agreed to forbear calling the loan until all of
    the children had finished school so that the loan could be used to fund the
    childrens education.

Issues

[6]

In oral argument, the appellant focused on two issues, namely, the
    remedy of rectification and the contention that the trial judge placed undue
    reliance on the appellants matrimonial misconduct.

Analysis

Issue 1. Is the appellant entitled to rectification?

[7]

Before this court, the appellant seeks rectification of the written
    contract. While the respondent advanced rectification as an alternative
    position at trial, the appellant resisted that remedy and insisted that he was
    entitled to enforce the agreement as written and to receive the entire value of
    the matrimonial home.

[8]

In our view, on this record and in the light of the position he took at
    trial, the remedy of rectification is not open to the appellant on appeal. If
    accepted, it would permit the appellant to take a fundamentally different
    position on appeal, one that is completely inconsistent with the position he
    took and the evidence he led at trial. To do so would be fundamentally unfair
    to the respondent.

[9]

We do not accept the appellant's submission that as the respondent was
    prepared to enter into the agreement on the basis that the value of the
    matrimonial home would be shared equally, and as the trial judge rejected his evidence
    as to the bargain between the parties, it must follow that had the written
    contract provided for an equal division of the value of the matrimonial home,
    it would accurately reflect the parties agreement and that rectification is
    therefore the appropriate disposition. The trial judge found as fact that the
    appellant was aware of the drafting error and that he knew that it needed to be
    clarified. The appellant refused to take steps to make the clarification and
    continued to insist that the agreement should be enforced as written. Simply
    put, he cannot ask this court to rectify an agreement to reflect terms he swore
    he did not agree to.

[10]

Nor
    is there any basis for interfering with the trial judges findings regarding
    the appellant's loan to the family trust.

Issue 2. Did the trial judge place undue reliance on
    the appellants matrimonial misconduct?

[11]

We
    do not accept the submission that in coming to the conclusion that there was no
    meeting of the minds, the trial judge placed undue reliance upon the
    appellant's matrimonial misconduct. This case revolved around the fact that the
    marriage was falling apart and any discussion of the context and the process of
    the attempt to reconcile inevitably included some reference to the conduct of
    the parties and the prospects of achieving a reconciliation. However, in the
    end, the trial judge clearly stated at para. 179 of his judgment that he found
    that the appellant's conduct could not be connected to the issue of whether the
    marriage contract should be set aside. In our view, the trial judges findings
    on the meeting of the minds point did not rest upon any misuse of evidence of
    matrimonial misconduct.

Other issues

[12]

Given
    our conclusion with respect to the meeting of the minds point, we do not find
    it necessary to address the issues raised with respect to the alternative
    grounds for refusing to enforce the marriage contract.

[13]

We
    see no error in the trial judge's valuation of the matrimonial home or in his
    finding that the cottage and chalet are not matrimonial homes. These were
    factual determinations entitled to deference on appeal and there was ample
    evidence to support the findings.

[14]

With
    respect to the issue of support, the trial judge made no error in principle and
    did not misapprehend the evidence. Specifically, he did not err in attributing
    PC Outlets pre-tax earnings to the appellant. The appellant repeatedly
    misrepresented his income to limit his liability.

Costs

[15]

While
    the costs awarded by the trial judge are certainly very high, we are not
    persuaded that the appellant has demonstrated grounds for appellate
    intervention. It is well-established that appellate courts are reluctant to
    interfere with a trial judges exercise of discretion concerning costs and, for
    the following reasons, we decline to intervene in this case.

[16]

First,
    there can be no doubt that the high costs are largely attributable to the
    appellants behaviour in this litigation. The trial judge was clearly entitled
    to consider the appellant's behaviour before and at trial with regard to
    disclosure and requests to admit and the fact that the appellant had refused a
    very reasonable offer of settlement.

[17]

Second,
    neither before this court not before the trial judge was there any serious
    challenge to the hours spent and the rates claimed by counsel for the respondent
    and the added party.

[18]

While
    this costs award pushes reasonableness and proportionality to their limits, in
    the end, we see no error in the trial judges careful analysis and disposition
    of costs that would justify intervention.

Disposition

[19]

Accordingly
    the appeal is dismissed with costs to the respondent fixed at $25,000 and to
    the added party fixed at $3,500, both amounts inclusive of disbursements and
    applicable taxes.

K.M. Weiler J.A.

Robert J. Sharpe
    J.A

Paul Rouleau J.A.

Released: April 29, 2013


