Motion for Summary Judgement When Setting Aside a Separation Agreement

Shinder v. Shinder, 2017 ONSC 4177

This case sets out the standard that ought to be met in order to determine whether to deny the setting aside of a separation agreement on summary motion.

Background

The parties were married for 13 years and had two children together. Over the course of their marriage, they developed several companies, valued at several million dollars by the separation date in 2009. The parties each held significant assets, and each retained a lawyer and accountants.

During the separation process, there were concerns regarding the husband’s disclosure, as well as his father’s disclosure. The father was resistant to making full disclosure in the absence of a confidentiality agreement so his disclosure was never offered.

The parties came to an agreement despite the lack of disclosure and signed a separation agreement. The wife brought an action to set the agreement aside completely because her husband had not disclosed that he was the beneficiary of a family trust. The husband and his father sought to have the wife’s claim dismissed by summary judgement.

Analysis

Rule 16(6) of the Family Law Rules states that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

The Respondents argued that there was no genuine issue requiring trial because the husband had given the wife a digital copy of several documents on a disk, and one of those documents included the family trust. The wife asserted that she didn’t originally ask for further disclosure regarding this trust because she had been given sworn financial statements and had been told by the husband that their children were the beneficiaries, not him.

In instances of a 16(6) claim, the burden of proof is on the party requesting summary judgement to illustrate that the there is no genuine issue requiring trial. The judge in this case concluded that the respondent failed to discharge this duty. As a result of his own non-disclosure there was no evidence on which the court could determine whether the non-disclosure was significant or material. This is something that therefore requires the more rigorous review of a trial.

Furthermore, if there is non-disclosure, the onus is on the party who didn’t disclose to prove that the other party had actual knowledge of the non-disclosure and chose to enter the separation agreement anyway. The judge stated that the husband also failed to prove this. In fact, the evidence seemed to clearly indicate that although she knew the trust existed, she had no knowledge that her husband was the beneficiary.

Therefore, the motion for summary judgement was denied and the matter will proceed to trial.

 

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.

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