



COURT OF APPEAL FOR ONTARIO

CITATION: Hillman v. Letchford, 2017 ONCA 117

DATE: 20170213

DOCKET: C60839

Weiler, Benotto and Roberts JJ.A.

BETWEEN

Dawn Hillman

Applicant

(Appellant)

and

Ian Letchford

Respondent

(Respondent in Appeal)

Dawn Hillman, in person

Ian Letchford, in person

Heard: January 24, 2017

On appeal from the judgment of Justice C.D. Braid of the Superior
    Court of Justice, dated June 30, 2015.

ENDORSEMENT

[1]

Ms. Hillman appeals the dismissal of her
    application to set aside minutes of settlement in her matrimonial proceedings.

Background

[2]

The parties were in a common-law relationship from 1985 to 1999. They
    have two adult children. They moved from Canada to England in 1991 and then to
    Ireland in 1997. The appellant worked at various jobs while the parties lived
    in Canada. After they left Canada, she did not work outside the home. The
    respondent worked as a Managing Director at CIBC. He was terminated from CIBC
    in 2002 and later began receiving pension pay, as well as income from a new
    job.

[3]

When the parties separated, Irish law did not recognize common-law
    relationships. The appellant was not entitled to spousal support and was only
    entitled to the share of the jointly held property for which she had made a
    direct financial contribution. On August 25, 1999, the parties entered into a
    consent agreement that included terms for custody and access, temporary child
    support (until an action could be brought in Canada), a share in the property
    and money. The agreement was incorporated into a consent order.

[4]

The appellant then moved to Canada and issued a statement of claim
    seeking custody, child support, spousal support and interests in the
    respondents property based on unjust enrichment, implied trust and
    constructive trust. The respondent paid child support in the interim. In 2002,
    a judge ruled that the property claims had been settled in the Irish consent
    order; this ruling was
overturned on appeal
and the litigation continued.

[5]

In 2006, the appellant sought and obtained an order allowing her to
    question a CIBC representative regarding the respondents remuneration. Despite
    obtaining the order, the appellant did not conduct the questioning.

[6]

The matter was scheduled for trial in 2007. On February 6, 2006, the
    parties entered into final Minutes of Settlement which provided that the
    respondent would pay the appellant $201,814 as a lump sum child support for the
    children who were then 17 and almost 15. In addition, the respondent would pay
    the appellant $200,000 in settlement of all other claims, including the
    property claims.

[7]

Both parties were represented by counsel throughout the proceedings, up
    until and including the 2006 agreement and order. The total sum paid by the
    respondent to the appellant in the two proceedings was approximately $1.14
    million Canadian.

[8]

On December 19, 2011, nearly six years later, the appellant brought an
    application to set aside the 2006 agreement and resulting consent order. She
    sought a new trial on the statement of claim that would have gone to trial in
    2007.

The Application

[9]

The application resulted in a 13-day trial. Both parties represented
    themselves. The trial judge found that:

1.

The respondent had concealed the fact that he owned a property in Spain
    and failed to disclose some of his stock options and shares.

2.

Neither party was under duress or unconscionable circumstances at the
    time of the minutes of settlement.

3.

The appellant neglected to pursue disclosure from the CIBC although she
    obtained an order permitting her to do so.

4.

The application was brought almost six years after the agreement and
    there was a lack of reasonable diligence on the part of the appellant.

5.

The appellant received substantial benefits under the agreement.

6.

The respondent fulfilled his obligations under the agreement.

7.

The non-disclosure was not a material inducement to entering the
    agreement and the non-disclosure would not have materially affected the
    negotiations.

Issues

[10]

The appellant submits that the trial judges conclusions on points 2
    (duress), 3 (CIBC questioning), 4 (reasonable diligence) and 7 (materially
    affecting settlement) were in error. She further submits generally that the
    trial judge erred in her determination of the fairness of the agreement.

Analysis

[11]

The
Family Law Act
, R.S.O. 1990, c. F.3, s. 56(4)(a) provides
    as follows:

Setting aside domestic contract

(4) A court may,
    on application, set aside a domestic contract or a provision in it,

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

[12]

The procedure to be followed in applying s. 56(4) was set out by this
    court in
LeVan v. LeVan
, 2008 ONCA 388, 90 O.R. (3d) 1. There, a two-stage
    analysis was described. The first stage involves a consideration of whether the
    provisions of s. 56(4) have been engaged. At the second stage, the court
    considers whether it is appropriate to exercise discretion in favour of setting
    aside the agreement.

[13]

In the present case, the trial judge concluded at stage one that the
    respondent had failed to disclose assets. However, at the second stage, she
    concluded that the agreement was fair and that the failure to disclose was
    immaterial to the appellants decision to accept the settlement.

[14]

The appellant submits that the trial judge erred in concluding that she
    was not under duress at the time of the agreement. She relies on the theory
    that women are generally at a disadvantage when they are at a bargaining table
    in part due to economic disparity. Further, she submits that, having lived in
    Ireland for part of the time, she was unclear on the law with respect to common
    law spouses.

[15]

We reject this submission. The appellant was represented by counsel and
    had been provided with a report from PricewaterhouseCoopers which outlined the
    financial affairs of the respondent. There was no evidence that she was under
    duress and the trial judges conclusions in this regard are entitled to
    deference.

[16]

The appellant submits that she did not follow up with the CIBC for
    several reasons: she did not expect the bank to give accurate information; she
    was concerned about collusion between the bank and the respondent; and she had
    no obligation to establish the respondents financial circumstances, rather he
    had to prove the value of his assets. While it is correct that the respondent
    must prove the value of his assets, the appellant did apply for an order to
    question a representative of the CIBC and then failed to follow through with
    it. This factor was correctly taken into account by the trial judge. We note,
    in any event that the trial judge acknowledged that [t]his factor carries less
    weight than the others.

[17]

The appellant objects to the finding that there was a lack of reasonable
    diligence. There was no explanation on the record as to why she did not seek to
    inquire into the respondents assets and bring the application earlier. There
    was no basis to find collusion. It was therefore open to the trial judge to
    find a lack of reasonable diligence.

[18]

The appellant submits that non-disclosure of the Spanish property and
    the stock options entitles her to a new trial. The trial judge, however
    determined that the Spanish property was irrelevant because it was purchased
    after separation.  The respondents interest in the property could only be
    relevant to his income for child and spousal support purposes. However, there
    was no evidence that the respondent ever received any rental income from the
    property, so it could not have impacted the settlement. Similarly, the trial
    judge was not satisfied that the appellant would not have settled had the stock
    options been disclosed. Her conclusion that  notwithstanding the
    non-disclosure  the agreement was fair to the appellant was based on a
    combination of twenty articulated factors. They included the benefits of
    pre-paid child support, the risks of proceeding in the face of cross-jurisdictional
    issues, the fact that it was not clear that stock options would be treated as
    income for support purposes and the overall benefits received by the appellant.
    The detailed and thorough analysis of the fairness of the agreement by the trial
    judge reflects no error.

[19]

In summary, the appellants grounds of appeal consist of attacks on the
    factual findings of the trial judge. These findings are detailed, reasonable
    and grounded in the evidence. They are entitled to deference. We do not see any
    palpable and overriding error of fact.

Disposition

[20]

The appeal is dismissed with no costs payable to the respondent.

K.M. Weiler J.A.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


