



COURT OF APPEAL FOR ONTARIO

CITATION: Freire v. Freire, 2017 ONCA 853

DATE: 20171106

DOCKET: C63500

Sharpe, Rouleau and Pardu JJ.A.

BETWEEN

Philip Freire

Appellant (Applicant)

and

Adalaura Testani Freire

Respondent on Appeal (Respondent)

Murray E. Lightman, for the appellant

Philip Viater, for the respondent

Heard and released orally: November 1, 2017

On appeal from the order of Justice S. Stevenson of the Superior
    Court of Justice, dated February 21, 2017.

REASONS FOR DECISION

[1]

We do not agree that the motion judge erred in refusing to extend the
    time to bring a claim for equalization of net family property. The parties
    separated in February 2005 after nearly 16 years of married cohabitation. In
    October 2007, the appellant signed a separation agreement and gave up any right
    to require the wife to pay any equalization payment. He attacks this agreement
    on numerous grounds including the absence of independent legal advice, the
    absence of any provision for equalization of net family property and says that
    he signed it to provide stability for the children who continued to reside with
    the respondent in a home owned by her. He says he signed it because he felt
    guilty because he had an affair which led to the breakup of the marriage.

[2]

The appellant brought an application for equalization of net family
    property in January 2016, some 11 years after separation and nine years after
    the execution of the separation agreement.

[3]

The parties had however signed a marriage contract before marriage in
    1989. At that time the respondent was the sole owner of an unencumbered home.
    Her parents assisted her financially to acquire that home and acquire and
    improve a subsequent home. The marriage contract barred a claim for
    equalization of net family property.

[4]

The appellant concedes that he did not contribute financially to the
    acquisition of the homes occupied by the parties during cohabitation.

[5]

The motion judge considered and applied the appropriate statutory test.
    She analyzed the grounds advanced by the appellant to invalidate the separation
    agreement and rejected each of them, concluding, therefore, that there were no apparent
    grounds for relief within the meaning of s. 2(8)(a) of the
Family Law Act
.

[6]

In any event, the motion judge also refused the extension on the ground
    that the appellant did not meet the second branch of the test specified in s. 2(8)(b)
    of the
Family Law Act
that relief is unavailable because of delay
    that has been incurred in good faith. This was a finding reasonably open to
    the motion judge on the evidence before her, in view of the lengthy delay. There
    is no basis for this court to intervene.

[7]

We express no opinion as to the proper interpretation of any contractual
    entitlement arising out of the separation agreement, in particular, s. 10. This
    remains an open question.

[8]

The appeal is dismissed with costs to the respondent fixed at $12,000,
    inclusive of taxes and disbursements.

Robert J. Sharpe J.A.

Paul
    Rouleau J.A.

G. Pardu
    J.A.


