



COURT OF APPEAL FOR ONTARIO

CITATION: Dembo v. Hannas, 2020 ONCA 564

DATE: 20200910

DOCKET: C67829

van Rensburg, Pardu and Huscroft
    JJ.A.

BETWEEN

Ron Samuel Dembo

Applicant (Respondent)

and

Alyson Marie Hannas

Respondent
    (Appellant)

Paul J.
    Pape and Brodie Noga, for the appellant

Linda R. Rothstein
    and Michael Zalev, for the respondent

Heard:
    September 3, 2020 by video conference

On appeal
    from the order of Justice
E. Llana

Nakonechny of the
    Superior Court of Justice, dated November 29, 2019, with reasons at 2019 ONSC
    6938.

REASONS FOR DECISION

[1]

This is an appeal from the order of the motion
    judge declaring that the agreement signed by the parties on September 28, 2015
    constitutes a binding Separation Agreement pursuant to ss. 54 and 55 of the
Family
    Law Act
, R.S.O. 1990, c. F.3.

[2]

The appeal is dismissed for the reasons that
    follow.

Background

[3]

The parties married in 1996. They had one child
     a daughter, E, who was born in 1996. She has developmental delays, cognitive
    impairments, and learning disabilities, and the parties agree that she will be their
    dependant for life.

[4]

The parties separated in 2003.

[5]

Following several years of litigation, the
    parties signed an agreement in 2008 resolving all issues including child
    support. That agreement contemplated a review of the child support arrangements
    in 2013, but this review did not proceed and in 2014 the respondent commenced
    an application seeking a reduction in the support payable. In 2015, prior to
    trial, the parties signed an agreement that governed all issues and barred them
    from making further claims against each other for Es support (the Settlement
    Agreement). Counsel for the appellant informed the court that the parties
    have settled all issues in this case and that a trial was no longer necessary.

[6]

The Settlement Agreement was not made into a final
    order. However, the parties complied with its terms and governed their
    relationship in accordance with it over the next several years. Paragraph 22 of
    the Settlement Agreement required expert review of the provisions made to take
    care of E:

The parties will jointly retain an expert to
    review the terms set out in this Order at paragraphs 1-15 to ensure that they
    do not compromise [Es] ability to receive ODSP [Ontario Disability Support
    Program] or other government funding and either partys ability to set up a
    Henson Trust.

[7]

In accordance with this provision, the parties
    jointly retained an expert in disability law. She provided several opinions
    from 2015-2017 as to how the parties could address the risk that Es ability to
    receive ODSP benefits would be compromised and made a number of specific
    recommendations for amendments to the Settlement Agreement to address this
    issue. The parties negotiated but ultimately did not reach agreement on
    amendments. Instead, in May 2018 the appellant took the position that the
    Settlement Agreement was not binding.

The motion judges decision

[8]

The respondent brought a motion for judgment
    declaring that the Settlement Agreement constituted a binding separation
    agreement. The appellant opposed that motion and sought an order declaring that
    the application had not been settled and fixing a date for a trial management
    conference.

[9]

The motion judge declared that the Settlement
    Agreement constitutes a binding separation agreement. She found that there was
    a meeting of the minds on the essential terms of the agreement and that the
    agreement was intended to settle all issues outstanding between the parties.
    She found, further, that there was no common mistake that rendered the agreement
    voidable or void. Nor did para. 22 specify that the validity of the
    Settlement Agreement was conditional on the outcome of the review it
    prescribes. The appellant took a risk that the terms of the agreement would
    compromise Es entitlement to ODSP benefits, but any mistake was hers alone and
    did not change the subject matter of the contract to something essentially
    different from what the parties believed it to be.

Discussion

[10]

The appellant concedes that there was no common
    mistake, that para. 22 is not a true condition precedent, and that the
    Settlement Agreement was binding at the time that it was made. She challenges
    the agreement on two bases. First, the appellant argues that the motion judge
    erred in failing to interpret para. 22 as a simple condition that created an
    implied right to terminate the agreement if Es continued ODSP eligibility were
    to be found to be at risk. Second, the appellant says that the motion judge
    erred in failing to exercise her discretion to refuse to enforce the Settlement
    Agreement, given the appellants mistake concerning Es eligibility for ODSP
    and the prejudice to E caused by the risk to her ODSP eligibility.

[11]

These arguments reflect a novel theory of the
    case. Neither argument was made before the motion judge.

[12]

Both arguments must be rejected.

[13]

In general, appellants are not permitted to raise new issues on
    appeal: see
e.g.
,
Kaiman v.
    Graham
, 2009 ONCA 77,
245 O.A.C. 130,
at para.
    18;
Petersoo v. Petersoo
,
2019 ONCA 624,
29 R.F.L. (8th) 309,
at para. 48
,
leave to appeal to S.C.C. refused, 38843
    (January 16, 2020)
.

We
    are not satisfied that it is in the interests of justice to allow the appellant
    to do so in this case.

[14]

First, the argument made before the motion judge
     that there was a condition precedent to the agreement  is very different
    from the argument that para. 22 of the Settlement Agreement includes an implied
    term permitting the appellant to terminate it. A right to terminate the
    agreement would not lightly be implied from para. 22, especially to address a
    speculative risk, and even if there were a right to terminate the agreement
    there was no evidence that the appellant purported to exercise it in any event.
    The matter was not raised before the motion judge and as a result no relevant
    findings were made.

[15]

It is clear, however, that the 2015 Settlement Agreement,
    made with the advice of counsel, resulted in significant funds being set aside
    for Es future care, and that the agreement was honoured by the parties for
    several years. Throughout, the appellant has acted as though the agreement was
    in effect. It should not be undermined in this court on the basis of an
    argument not made before the motion judge.

[16]

Second, the motion judge cannot be said to have
    erred in failing to exercise a discretion that the appellant did not ask her to
    exercise. Although the respondent raised the courts discretion in his factum
    before the motion judge, he did so in the context of a submission that
    emphasized the limited nature of the discretion, and that the appellant should
    not be permitted to resile from the agreement. Thus, it was not necessary for
    the motion judge to make findings on the exercise of the discretion and no
    findings were made.

[17]

The courts discretion not to enforce a
    settlement is a limited one given the importance of certainty in the resolution
    of family disputes: see
Van Delst v. Hronowsky
, 2020 ONCA 329, 318
    A.C.W.S. (3d) 504, at para. 1. There is no basis to exercise it in this case.
In the absence of a factual record there is no basis for this court
    to find that the agreement is not in Es best interests, or that
it would be in her best interests to set aside the agreement
    and to litigate the issues because there was a
risk to her continued
    eligibility to receive ODSP benefits. The appellant offered no reason to
    suppose that any better result would be achieved to provide for Es support if
    the Settlement Agreement were set aside and the matter proceeded to trial.

[18]

The appeal is dismissed.

[19]

The respondent is entitled to costs in the
    agreed amount of $15,000, inclusive of taxes and disbursements.

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Grant
    Huscroft J.A.


