Stevens v. Stevens – An unsuccessful appeal

This Court of Appeal decision affirms a 2012 finding and pays homage to the idea of justice served. The Applicant was wholly unsuccessful in his appeal of Justice Harper’s earlier decision and failed to allay the significant debt, support payments and legal costs owed to the Respondent.

Superior Court of Justice Decision

In the 2012 lower court decision, Justice Harper set aside the marriage contract of Joel Stevens (Applicant) and Pamela Stevens (Respondent). The contract had been formalized during the parties’ brief attempt at reconciliation. The Applicant aimed to uphold the validity of the contract that garnered him a $2,000,000 portion of the net family property compared to the $700,000 equalization payment he would have received without a contract in place. The marriage contract also released both parties from any future spousal support obligations, which proved to be a significant amount to be paid to the Respondent.

The most contentious issue for the parties involved a drafting error made by the Respondent’s counsel. The cover letter from counsel clearly expressed the Respondent’s desire to award only half the value of the matrimonial home to the Applicant. Unfortunately, the contract itself was incorrectly drafted and awarded the Applicant the entire value of the matrimonial home. Though the Applicant was well aware of the drafting error, he (and his counsel) failed to inform the Respondent of the error in an attempt to secure a larger share of the matrimonial property.

Justice Harper set aside the contract by reason of mistake, unconscionability, and because at the time of entering into the contract, the Respondent lacked legal capacity (she was suffering from severe depression). Without a marriage contract, the property division and support obligations were determined under the Family Law Act and Divorce Act, and Justice Harper disposed of the matter as follows:

  1. Pamela shall pay Joel $798,453.10 as an equalization payment, subject to the deductions set out below.
  2. Joel shall pay to Pamela lump sum spousal support in the amount of $136,182. This amount is in satisfaction of any retroactive and future spousal support.
  3. Joel shall pay to Pamela retroactive child support in the amount of $317,333.
  4. The amounts set out in paragraphs 2 and 3 above shall be a deduction from the equalization payment set out in paragraph 1.
  5. Joel shall pay ongoing child support in the amount of $8,505 per month for the three children of the marriage.
  6. Joel shall sign any documentation that is required to cause the Stevens Family Trust to pay to Pamela the sum of $912,000 in satisfaction of the promissory note signed by Pamela and Joel and dated December 23, 2005.
  7. Joel shall pay to Pamela one-half of all of the children’s education costs since separation. This amount totals $75,000 for a period of 60 months.
  8. Both Joel and Pamela shall pay the children’s education costs in accordance with the ratio of the expenses in relation to their respective incomes as set out in the Child Support Guidelines.

A rough calculation shows that the Applicant was left with a substantial debt owed to the Respondent in addition to ongoing support.

Court of Appeal

On appeal, the Applicant attempted for the first time to argue his marriage contract should have been rectified and enforced. In a last-ditch attempt to secure a bigger portion of the matrimonial property, he stated the trial judge erred in not upholding the contract as the Respondent intended it to be written: as awarding Applicant one half the value of the matrimonial home. The Court once again rejected the Applicant’s position, stating:

In our view, on this record and in the light of the position he took at trial, the remedy of rectification is not open to the appellant on appeal. If accepted, it would permit the appellant to take a fundamentally different position on appeal, one that is completely inconsistent with the position he took and the evidence he led at trial.… Simply put, he cannot ask this court to rectify an agreement to reflect terms he swore he did not agree to.

The next argument the Applicant put forth was that the trial judge had placed undue weight on his marital misconduct, essentially penalizing him for having an affair, a fact that is not relevant to the validity of the contract. The Ontario Court of Appeal rejected that argument. At trial, it was noted that the Applicant had engaged in an affair and that the termination of the relationship was a condition put forth by the Respondent prior to entering into a marriage contract. The relationship in question continued during the contract negotiation process and was deemed to be reprehensible behaviour. Nevertheless, Justice Harper expressly excluded this conduct in considering the validity of the marriage contract. The Court of Appeal held that Justice Harper was not unduly prejudiced by the Applicant’s behaviour.

Finally, the Applicant sought to overturn the costs award against him. The trial judge had ordered him to pay over $900,000 of the Respondent’s legal costs, and another $400,000 of costs to the Respondent’s former counsel (who had been added as a party to the case). The Court of Appeal upheld the lower court costs, and then added to it appeal costs fixed at $25,000 for the Respondent and $3,500 for the Respondent’s former counsel.

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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