Challenging Separation Agreements

Bruni v. Bruni, 2010 CarswellOnt 8992, 2010 ONSC 6568

As noted by the Court, this case is a prime example of the acrimonious side of divorce. The parties in this case were married for 11 years and have two children together. The parties initially signed a Separation Agreement in 2007, however, neither party really followed the terms that they had agreed to. The mother filed the Agreement with the Court for enforcement because the father was not paying child support as per the terms of the Agreement. After the Agreement was filed with the Court, the mother brought a Motion to Change the terms of the Separation Agreement dealing with custody and access, spousal support and for the enforcement of child support. The father brought an Application to set aside the Separation Agreement in its entirety as he argued that the Agreement was not valid to begin with. In addition to the issues surrounding the Separation Agreement, the parties were also embroiled in a custody/access dispute framed as a parental alienation issue brought about by the mother.

The Separation Agreement and Legal Proceedings

The father had testified about various instances where the mother’s family had intervened during the parties separation and had threatened his safety and/or life should he not cooperate with the mother. In 2007 when the Separation Agreement was signed, the father stated that he received a call from the mother demanding he sign “the papers,” which he understood to be the Separation Agreement, that evening. He said that he did so only because he feared that something would “get damaged” should he not comply.

Custody and Access

Most notably, the Agreement states that the mother is to have sole custody of the children and that the father is to have “reasonable access to the children” which was to include two weeks of summer vacation with them. When the parties initially separated in 2006, the father had access with the children on alternating weekends, however, in 2007, the mother unilaterally decided to terminate the access visits. It was not until the father provided the mother with a cheque in the amount of $2,500.00 to purchase a new washing machine that the mother began to facilitate access again. In any event, the father’s access with the children was sporadic due to the difficulties that were brought about by the mother.

The mother brought a Motion to Change the terms of the Agreement regarding the access section. She argued that the parties had been unable to communicate regarding when the father was to have access with the children and therefore a defined access schedule was required.

There were temporary Orders put into place regarding access in September and December 2008 and again in June 2009. In addition, there was evidence that the parties’ daughter, the eldest child, would not stay with the father overnight like her younger brother would, and would tell her father that he was a “loser” and that her mother’s new partner was her real father. Beginning in January 2010, the father’s access to the children was cut off completely by the mother without reason or explanation.

Child Support and extraordinary expenses

The Agreement stipulated that from the period between April 1, 2006 and March 1, 2008, the father was to pay child support in the amount of $600.00 per month. After March 1, 2008, the amount of support to be paid by the father was to be determined based on his income and the child support Guidelines. Any special or extraordinary expenses incurred for the children were to be discussed and agreed upon by the parties first and the expense for same were to be shared in proportion to the parties’ incomes. In her Motion to Change, the mother was seeking the enforcement of the payment of child support as the father had not paid support pursuant to the terms of the Agreement since 2007.

In the father’s Application to set aside the Separation Agreement, he argued that the child support section obligated him to pay child support regardless of whether he was unemployed through no fault of his own, that he was to pay support for a period pre-dating the parties separation, and that he transferred his interest in the matrimonial home to the mother and this interest was significantly undervalued.

Spousal Support

Pursuant to the terms of the Agreement, the father was to pay the mother $1.00 per year in spousal support from July 1, 2007 to July 1, 2010. However, the mother had the opportunity to commence an Application for spousal support on or before July 1, 2010. As part of her Motion to change materials, the mother made a claim requesting spousal support as she argued that during the marriage she was unable to seek full-time employment because of her child care and household duties.

Setting aside the Separation Agreement

The father requested that the Separation Agreement be set aside for the following reasons:

  1. he did not understand the nature and effect of the agreement;
  2. the agreement is unconscionable, unfair and inequitable;
  3. the negotiation and execution of the agreement were not undertaken in an unimpeachable manner;
  4. he was operating under emotional stress and duress at the time of the execution of the agreement; and,
  5. he did not have independent legal advice.

Procedural Issues

Before making a determination on the issues, the Court held that the mother’s Motion to Change pleadings for a change in access and for a claim for spousal support should not be allowed as a Motion to Change is the incorrect manner in which to claim such issues. It was held that an amended Application should have been utilized instead.

The Court also held that the father’s Application to vary the Separation Agreement should have been brought pursuant to s. 56(4) and not under s. 33(4) and s. 35(3) of the Family Law Act, as was relied upon by the father. However, the Court decided that they would hear the father’s Application pursuant to s. 56(4) of the Family Law Act.

The Outcome

Setting Aside the Separation Agreement

Section 56(4) of the Family Law Act allows for the setting aside of a Separation Agreement if the party challenging the Separation Agreement can prove their case based on the following factors:

  1. if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
  2. if a party did not understand the nature or consequences of the domestic contract; or
  3. otherwise in accordance with the law of contract.

When looking into the above factors, the Court held that there was no evidence that the father had misunderstood the nature or the consequences of signing the Separation Agreement, that he was under any duress, or undue influence or that he was otherwise rushed into signing the Agreement, and that there was nothing in the Agreement which was unconscionable or unfair. Overall, when looking at these and other factors, the Court held that the evidence had not shown that the Separation Agreement should be invalidated.

Custody of the children

The Court held that because of the circumstances, the Separation Agreement was to be amended so that the mother continued to have sole custody of the children. The Court could not find a reason as to why it would be in the best interests of the children to have the parties have joint custody.

Access with the children

The Court held that the son wanted to see and have a relationship with his father and thus, ordered that the Separation Agreement be varied so as to define a specified access schedule which was to be followed regarding the father’s access with the son. As for the older daughter, it was held that this was a case of severe parental alienation and as the child was 13 years old, there was unfortunately, no benefit to the child to set out a similar or other access schedule with her father. While the Court encouraged the child and father to have a relationship if this is something that the child wanted in the future, it was held that the Separation Agreement should be varied so that it remained silent on any access with the daughter.

Child Support and special and extraordinary expenses

Pursuant to the Separation Agreement, the father was to provide the mother with a copy of his income tax return each year. Prior to these proceedings however, he did not do so. When looking at the evidence of his yearly income from the date the Agreement was signed, the Court determined that the father was in a position of arrears regarding child support and was ordered to pay a total of $19, 920.00 to the mother to bring his arrears into good standing.

With respect to the special and extraordinary expenses, part of the Separation Agreement stated that the parties were to discuss and agree upon any such expenses prior to them being incurred. This was something that the mother had failed to do, but she was still requesting to be paid for the father’s arrears for his contributions towards same. The Court held that this request was not consistent with the terms of the Separation Agreement, and as such, the father would not be required to pay any such arrears.

Spousal Support

Although the Court completed a full analysis of the issue of the mother’s entitlement to spousal support and made a preliminary determination that she should receive support from the father, it was held that her role in the parental alienation of the father from the children and the severe effect that this had on the relationship between the father and the daughter, ought to be condemned. Therefore, as a means of condemning her behaviour, the Court held that the spousal support obligations which would have been owed to her on a monthly basis be reduced to a payment of $1.00 per month.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. I agree with the Judge’s decision in this case. Often times parties will sign Agreements and later argue that it should not be enforced based on a number of reasons such as the ones noted above in this case. The father had every opportunity to obtain legal advice and quite frankly, if he found the agreement to be unfair, he did not have to sign same.

    While I do not believe that it was appropriate for the mother to use access time with the children as leverage to get what she wants, I do not believe that the Father should have initially signed the agreement if he did not feel comfortable with the terms stipulated therein. I commend the Court for acknowledging the mother’s alienation of the children and that the method of expressing that condemnation was by way of reduction in spousal support.

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