



COURT OF APPEAL FOR ONTARIO

CITATION: Tozer v. Tassone, 2019 ONCA 285

DATE: 20190410

DOCKET: C65683

van Rensburg, Hourigan and Huscroft JJ.A.

BETWEEN

Gordon Tozer

Applicant (Appellant)

and

Rita Tassone

Respondent (Respondent)

Julie K. Hannaford and Melvyn Solomon, for the appellant

Ken H. Nathens, for the respondent

Heard: March 29, 2019

On appeal from the
    order of Justice Irving André of the Superior Court of Justice, dated June 15,
    2018, with reasons reported at 2018 ONSC 3726.

REASONS FOR DECISION

[1]

The appellant, Mr. Tozer, argues
    that the motion judge erred in granting summary judgment to the respondent, Ms.
    Tassone, enforcing a Separation Agreement (the Agreement) the parties signed in
    October 2012. He says that the motion judge made palpable and overriding errors
    in his findings of fact, that he had no jurisdiction to grant summary judgment
    on the mortgage securing the debt under the Agreement, and that he denied the
    appellant procedural fairness and natural justice.

[2]

We see no error and dismiss
    the appeal for the following reasons.

[3]

The motion judge found that
    the following facts were not in dispute:

1.

The parties entered into a Separation Agreement on October 30, 2012.

2.

The Agreement was in full and final settlement of all outstanding claims
    between the two.

3.

Under the Agreement, Mr. Tozer undertook to pay Ms. Tassone the sum of
    $3,500,000 by December 31, 2015. The amount was secured [by a mortgage] against
    an asset known as the Caledon property.

4.

To date, Mr. Tozer has only paid Ms. Tassone $378,491.

5.

Mr. Tozer, pursuant to the terms of the Agreement, owes Ms. Tassone the
    sum of $3,121,509 plus interest.

[4]

The motion judge set out the
    appropriate test and found that there was no basis to set aside the Agreement.

[5]

He properly applied section 56(4) of the
Family
    Law Act
,
R.S.O.
    1990, c. F.3, which provides that 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.

[6]

The appellant submits that
    the motion judge misapprehended the evidence of Ms. Tassone in failing to find
    that she had not disclosed all of her assets, including land purchases and cash
    upgrades, prior to signing the agreement, and that there was a genuine issue as
    to the significance of the assets.

[7]

We do not agree.

[8]

The motion judges findings
    must be put into the appropriate context. The motion judge viewed the
    appellants claim about non-disclosure with great skepticism, noting that
    neither party had complied with requests that the other had made for disclosure
    of additional financial information. In other words, the parties were not
    relying on full financial disclosure, and it was disingenuous for Mr. Tozer to
    now seek to justify setting aside the Agreement because of Ms. Tassones non-disclosure
    of her assets when he similarly failed to disclose the full value of his own
    assets prior to mediation on June 26, 2012.

[9]

The court is reluctant to
    interfere in a situation where the parties have purported to conclusively
    settle their financial issues: see
Quinn v. Epstein Cole LLP
, 2008
    ONCA 662, 92 O.R. (3d) 1 at paras. 3-4. In this case, the parties Agreement specifically
    states in para. 7 that it is in full and final satisfaction of all outstanding
    claims between the parties, and acknowledges in para. 10.10 that the appellant
    and respondent have sufficiently disclosed their income, assets and other
    liabilities existing at separation and the date of this Agreement. In these
    circumstances, even if there was non-disclosure it was not material.

[10]

The
    motion judge also found that there was no evidentiary basis to support a
    finding that Mr. Tozer did not understand the nature or consequences of the Agreement.
    There is no allegation of duress or other misconduct. This was a situation in
    which two sophisticated parties with complex financial and business interests
    signed an agreement after having received independent legal advice. In all of
    the circumstances, the motion judge found no basis to exercise his discretion
    to set aside the Agreement.

[11]

In
    summary, the motion judge applied the proper test and made findings that were
    open to him. The motion judge also properly articulated the test for summary
    judgment, and it was open to him properly to conclude that there was no genuine
    issue requiring a trial. There is no basis to for this court to interfere with
    his conclusions.

[12]

Before this court, the appellant
    argued that the respondent was not entitled to judgment on the Agreement. There
    is no merit to this submission. T
he
    appellant brought an application to set aside the Agreement.
The
    respondent sought summary judgment and the motion judge concluded that there
    was no basis to set aside the Agreement.
The decision not to set aside the Agreement meant that the respondent is
    entitled to the full amount of what is due under the Agreement, subject to any
    payments that might have been made.

[13]

Lastly,
    the issue of consolidation was properly found to be moot and there was no
    denial of procedural fairness or natural justice to the appellant. The judgment
    does not enforce the mortgage, which is subject to another proceeding. Counsel
    for the appellant acknowledged that the decision in this case resolves claims
    1(a), (b), (c), and (f) of his statement of claim in the other proceeding, and
    we express no views on any other issues concerning the mortgage.

[14]

The
    appeal is dismissed.

[15]

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

K. van Rensburg J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


