Dickieson v. Dickieson, 2011 ABQB 202

Court of Queen ’ s Bench of Alberta Citation: Dickieson v. Dickieson, 2011 ABQB 202 Date: 20110329 Docket: 4803 138914 Registry: Edmonton Between: Patricia Dickieson also known as Patricia Hamel Plaintiff - and - Jeremy James Dickieson Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.A. Browne _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff, Patricia Hamel, hereinafter called “the wife” brings this action to set aside a Minutes of Settlement Agreement, hereinafter called “the Agreement” entered into by the parties, dated June 13, 2005. The Defendant, Jeremy James Dickieson, hereinafter called “the husband” defends the action and confirms the terms of the Agreement.

The wife asks for a Declaration and Order that the Agreement be set aside on the grounds of undue influence, unconscionability, and failure by the husband to make full and frank financial disclosure to her. [ 2 ] At the close of the wife’s case, the husband brought a non-suit application that was partially successful. The wife’s claim that the husband failed to make full disclosure was dismissed, leaving the other two causes of action, undue influence and

unconscionability. The husband then called evidence to address the outstanding issues and the validity of the Agreement. II. Facts i. The Marriage [ 3 ] The parties married on August 4, 1996, having lived together for two years before the marriage. There are two children of the marriage, who were approximately 12 years old and 8 years old at the date of the trial. Before the children were born, both parties were employed. However, the older child has some chronic health problems, and after his birth in 1998 the parties decided that the wife would stay home to care for him.

Thereafter the parties’ ingenuity prevailed and the wife ran a home day care and took in children during the day so she could remain at home as the primary caregiver for their children. [ 4 ] In their evidence, the parties described some of the challenges of the marriage, but it continued without serious incident until early March 2005. The parties separated when the wife confessed to having a relationship with a good friend of the husband.

The parties were unable to reconcile, and the wife moved out of the matrimonial home. [ 5 ] The circumstances of the months between separation and the signing of the Agreement were described in detail by both the husband and the wife and will be discussed later in this Judgment. [ 6 ] A Divorce Judgment and Corollary Relief Order dealing with the issues of custody and child support was granted on December 13, 2007.

In spite of the hotly contested issues surrounding the signing of the Agreement and the terms of the Agreement itself, the parties have been, since their separation, dedicated to the shared parenting of their children. They have maintained the ability to communicate, cooperate, and be involved in the medical and day to day decisions required of them as joint parents. I commend them for their commitment in that regard and hope that will continue long into the future. ii. The Agreement [ 7 ] The Minutes of Settlement Agreement (“the Agreement”) is dated June 13, 2005.

A first draft of the Agreement (“the April draft”) was prepared by the husband’s lawyer, who was also the Dickieson family lawyer. The wife reviewed this draft Agreement with an independent lawyer. [ 8 ] The draft and final Agreement dealt with the usual issues arising from a marriage breakup, including children and child support, spousal support, real and personal property, pensions, RRSP’s, and debt. [ 9 ] The wife saw her lawyer on two or three occasions.

She indicates that the first time she went to his law office, she only saw the lawyer’s assistant, but that she did see the lawyer on two other occasions, which appear to be May 20, 2005 and June 13, 2005. [ 10 ] The lawyer did not testify, but we have the benefit of the notes he made at one of the interviews. Some discussions took place between either the clients or the lawyers after the April draft was reviewed, and a second draft was prepared (“the May draft”). There were some significant changes made from the April draft to the May draft: a.

The amount of child support was changed from $320.00 per month in the April draft to $468.00 per month in the May draft. b. The wife’s income was adjusted from $21,000.00 annually in the April draft to $12,000.00 in the May draft and the resulting calculation of

section 7 expenses was adjusted.

c. In the April draft, the parties agreed that the wife would transfer her interest in the home to the husband for $2,918.50. The following calculation of the wife’s share of the equity in the Glencoe home was included in the Agreement: Fair Market Value: $230,000.00 Less Mortgage: $212,000.00 Less Real Estate Commissions: $ 11,663.00 Less approximate legal fees: $ 500.00 APPROXIMATE EQUITY: $ 5,837.00 Wife’s approximate share of equity: $ 2,918.50 The May draft contained a clause indicating that the wife would give up any interest she had in the Glencoe home without further payment. e.

The April draft contained a clause requiring the tent trailer to be sold, the debts to be paid from the sale proceeds, and that any shortfall of that debt be split equally. In the May draft. The husband assumed the debt against the tent trailer and took the tent trailer as part of his property settlement. Ultimately, the tent trailer was sold for $10,500.00, leaving a debt of $7,000.00 which the husband assumed.

He also assumed all of the family’s other debts. [ 11 ] Once changes were made and the Agreement was reviewed by the wife and her lawyer, the wife signed the Agreement including a Transfer of Land and a Matrimonial Property Act Acknowledgement by Spouse. The lawyer signed a Certificate of Independent Advice and a Certificate of Acknowledgment. III. Analysis i. General Principles Relating to Separation Agreements [ 12 ] Agreements made by separating spouses are governed by ss. 37 and 38 of the Matrimonial Property Act , R.S.A. 2000, c. M-8.

Section 38 is relevant to this matter and is reproduced below: 38(1) An agreement referred to in

section 37 is enforceable if each spouse or each person, in the case of persons referred to in section 37(2), has acknowledged, in writing, apart from the other spouse or person (

a) that the spouse or person is aware of the nature and the effect of the agreement, (

b) that the spouse or person is aware of the possible future claims to property the spouse or person may have under this Act and that the spouse or person intends to give up these claims to the extent necessary to give effect to the agreement, and (

c) that the spouse or person is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse or person.

(2) The acknowledgement referred to in subsection (1) shall be made before a lawyer other than the lawyer acting for the other spouse or person or before whom the acknowledgement is made by the other spouse or person. [ 13 ] In Tardif v. Campbell , 2008 ABQB 776 , 63 R.F.L. (6 th ) 220, Erb J. stated at para. 26:

... Generally speaking, the right of contracting parties to make agreements whether advantageous or not is well established. Unless it canbe shown that one party took advantage of the other by duress or undue influence or concealed facts which would have made a differenceto the decision, private agreements are generally upheld. [14] In Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, the Supreme Court dealt with the issue of whether a divorced wifecould apply for spousal support under s. 15(2) of the Divorce Act, after she had earlier released all claims to spousal support in aseparation agreement.

Miglin offers general guidance on the negotiation of separation agreements, including those involving the divisionof matrimonial property (Rick v.

Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295 at para. 39). [15] At para. 4 of Miglin, the Court stated that “a fairly negotiated agreement that represents the intention and expectations of theparties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight.” [16] However, the Court also recognized at para. 74 that negotiations between spouses that take place in the context of separationor divorce are conducted in a unique environment: Both academics and practitioners have acknowledged that this is a time of intense personal and emotional turmoil, in which one or bothof the parties may be particularly vulnerable.

Unlike emotionally-neutral economic factors negotiating in the commercial context,divorcing couples inevitably bring to the table a host of emotions and concerns that do not obviously accord with the making of rationaleconomic decisions. [17] This unique dynamic must be considered when applying contract law principles to the setting aside of these types ofagreements. [18] A useful quote is found in the case of Grant v. Jovic, 2005 ABQB 323, 53 Alta. L.R. (4th) 332 at paras. 47-48, whereinMadam Justice Coutu commented: Justice affects both parties and requires a balancing of their interests.

The fact that the settlement agreement may not have been adesirable one from the point of view of the defaulting party, or the fact that they may have received poor advice from their lawyer, or thefact that they later changed their minds, cannot provide grounds for setting aside the settlement agreement, or a refusal to enforce it. ii. Duress / Undue Influence [19] The facts must be examined carefully to determine if the wife signed the Agreement voluntarily. Did she truly consent to theterms of the Agreement when she signed? a. The Law [20] In Orcheski v.

Hynes, 2007 ABQB 194, 156 A.C.W.S. (3d) 867, Moen J., at paras. 23-24 discussed the issue of duress, as itapplies to agreements negotiated in the family law context: 23 When determining whether a contract was entered into under duress, the test in the family law context is less onerous than thetest for “unconscionability” as required in the common law of contract, and no evidence of a power imbalance is required: Miglin v.Miglin 2003 SCC 24 , [2003] 1 S.C.R. 303.

24 Conversely, however, the existence of any power imbalance or vulnerability on the part of one of the parties must not always leadto a finding of duress under the Miglin test. There is always a certain amount of economic pressure involved in negotiating an agreement,and often times one party is in a stronger bargaining position than the other, but this does not necessarily affect the enforceability of theagreement: Hearn v. Hearn (2004), 352 A.R. 260, 2004 ABQB 75 at paras. 43 to 47. [21] This finding must be acknowledged when applying the general test for duress set out in Roenisch v.

Bangs (1993), (AB KB), 8 Alta. L.R. (3d) 148 at 160-161, 138 A.R. 15 (Alta. Q.B.): In Pao On et al. v. Lau Yiu et al., [1979] 3 All E.R. 65 (P.C.), the Privy Council set out the modern test for economic duress. This testhas found favour in Canadian courts (see for example Gordon v. Roebuck (1992), (ON CA), 9 O.R. (3d) 1 (C.A.)).

Atpage 78 of the Pao On case, Lord Scarman said: In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the personalleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or didnot have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether afterentering the contract he took steps to avoid it. All these matters are, as was recognized in Maskell v.

Horner, relevant in determiningwhether he acted voluntarily or not. [22] The test, then, as set out in Roenisch v. Bangs is as follows: a. Whether the person alleged to have been coerced, protested; b. Whether, at the time he or she was allegedly coerced into making the contract, he or she had an alternative course open to himsuch as an adequate legal remedy; c. Whether he or she was independently advised; and d. Whether after entering the contract, he or she took steps to avoid it. [23] A power imbalance or vulnerability does not necessarily lead to a finding of duress.

There is always economic pressureinvolved in negotiating a contract and often the person holding the property is in a better bargaining position. However, again, that doesnot necessarily affect the validity of the contract. The negotiation of a contract in the context of family law is governed by the sameprinciples, but is complicated by the power relationship and the emotional vulnerability of the parties. b.

Wife’s Arguments [24] The wife argues strenuously that she had no choice but to sign the proposed Agreement. [25] The separation occurred quickly and the wife was asked to leave the matrimonial home upon her admission of infidelity. Shewas given short notice to move her belongings out of the home. Having been asked to leave, she had no place to go except to stay withfriends, and she was concerned that she would be unable to care for the children.

She had no money and no place of her own to stay. [26] For a short time she tried to maintain the day home in the matrimonial home, but arriving in the morning to look after her own,as well as the day home children, did not work. She also tried to maintain the day home at her new partner’s residence, but the day homeparents were concerned with the instability of her situation and eventually cancelled the arrangement. [27] For a time in May, the wife, her new partner, and the children stayed with her aunt. The aunt testified that the wife was nother usual fun loving self; she was sad, stressed, and cried often.

I find that the aunt was a good, independent witness.

[ 28 ] The wife argues that the husband, with his computer expertise, broke into the computer system she was using and created e- mail messages that appeared to be from her on March 17 and April 5. Some messages were to the husband and some were to or from her partner. [ 29 ] The wife indicated in her evidence that from the date of the separation, the husband continually called her to ask if she had seen a lawyer and if she had signed the agreement. When they had discussions about the house valuation, the husband would say “don’t go there” or words to that effect.

He continually claimed poverty and, on at least one occasion, threatened that if she asked for money, she and kids would be out on the street. Additionally, she claims he refused to pay child support until the agreement was signed. [ 30 ] The wife argues further that the lawyer did not advise her thoroughly, or in her best interests. [ 31 ] The wife argues that the above factors affected her ability to make a sound decision and meant that she did not voluntarily enter into this Agreement. c.

Husband’s Arguments [ 32 ] The husband argues that the Agreement was negotiated in good faith and that no undue influence was exercised on the wife to induce her to sign it. During the course of examinations for discovery the wife acknowledged that she was not afraid, she had not been threatened, and was not under compulsion to sign the Agreement. The Certificate of Independent Advice confirms that the wife had appropriate advice. [ 33 ] The husband admitted to making some phone calls, but denied harassing the wife. He indicated that most of the phone calls were about the children.

He did however, admit to saying, once in anger, that she and the kids would be out on the street. This was in response to a request from the wife for a lump sum payment of $400,000.00 as a settlement. He denied withholding child support, and says he did not pressure her to sign. He further argued that the wife went to a lawyer, and thereafter changes were made to the Agreement. Moreover, he argued that she had time to think both before she signed the Agreement, and after signing it before she handed it over to the husband or his lawyer. d.

Was there Duress or Undue Influence exerted on the wife? [ 34 ] This separation occurred at the beginning of March 2005 and the Agreement was signed on or about June 13, 2005, two and a half months later. Let us begin by discussing the alleged problems or irregularities with the Agreement. [ 35 ] The Agreement and attached Certificates were signed by the lawyer acting on behalf of the wife; this is strong evidence that he complied with his statutory duties. He saw the wife twice, and his notes exhibit a reasonably thorough interview.

The lawyers also corresponded about the file. [ 36 ] Further, there were significant amendments made to the Agreement as a result of discussions between the lawyers or between the clients, or some combination. Some changes were in favour of the wife and some were not. I assume that these were discussed with the wife and were proposed to the husband with her agreement. The payout of the equity in the property was mentioned in the first draft of the Agreement, so the wife and her lawyer were alerted to the proposed values and the possibility of a payout.

The wife did not turn over the Agreement to the husband or his lawyer for a number of days after signing. She had time to reflect. [ 37 ] The wife’s lawyer was not called as a witness, and the parties argued about who should be required to call him. I agree with the husband’s lawyer that the wife had the obligation to waive privilege and call the lawyer if she wished to avoid the agreement. She did not. At the commencement of the husband’s case, the wife, on the record, waived her privilege regarding her dealings with the lawyer and invited the husband to call the lawyer.

The wife’s present lawyer wished to have the opportunity to cross-examine the lawyer who signed the agreement rather than calling him as a witness in-chief. In my view, the documents signed by the lawyer speak for themselves and the onus was on the wife to rebut them. It was not up to the husband to do so.

[ 38 ] The wife also raises issues about the pressure or influence exerted upon her by the husband by way of phone calls and threats to sign the Agreement. This raises the question of the parties’ credibility. [ 39 ] The wife is intelligent and well-spoken in English (although her first language is very definitely French.) She has good comprehension of conversational English but has some difficulty with complex or technical words. Only occasionally in the trial did she hesitate with her understanding of questions or answers.

She had signed house documents previously, perhaps 5 or 6 times, with the Dickieson family lawyer, and apparently understood them, as was confirmed by that lawyer in his evidence. She had also taken a foreclosure course prior to the difficulties in the marriage and the ultimate separation.

She was aware of house values and there is evidence that she had, before the separation, done some internet investigation with her new partner about house values. [ 40 ] Throughout the marriage she worked hard maintaining and improving the homes they lived in or owned, caring for the children, and often working part or full time. [ 41 ] The time after the separation and before the agreement was signed was difficult for her. She moved out of the matrimonial home, and her day home business closed, at least partially, as a result of the marriage breakdown and having to leave the matrimonial home.

This was a highly charged, emotional time involving the breakdown of the relationship with her husband, negotiating an appropriate shared parenting schedule, supporting the children as they adjusted to the separation, and embarking on a new relationship. [ 42 ] However, by June of 2005 she had moved into a home with her new partner. Their residence was registered in their joint names. At the request of her new partner, she did not work outside the home, but stayed home to care for his three children, two of whom lived with him full time, as well as her two children. The fact that she had started a new

chapter of her life does not go to her entitlements, but does go to her state of mind at the signing of the Agreement. [ 43 ] The husband has been a good provider to the family, working in the field of computers. For a time, well before the separation, he returned to school to increase his job related skills and was successful in the courses he took.

He is a keen father, evidenced by the shared parenting schedule. [ 44 ] When the wife confessed her involvement with another man, the husband remained in the matrimonial home. [ 45 ] The husband was put under intense cross-examination during the course of his evidence. He was sometimes defensive and not always cooperative in providing information felt to be relevant to the case to be decided. It is difficult to measure his emotional condition at the time of the separation, which by all accounts was a surprise to him. The new man in the wife’s life had been one of his best friends.

He had wanted to try counselling to save the marriage early in the separation. [ 46 ] I accept that the husband made some phone calls to the wife about getting in to see a lawyer and getting the agreement signed. I do not find that those calls were oppressive, repeated, or generally threatening. Many of the calls between the husband and the wife dealt with the children.

The husband may have been firm as he encouraged the wife to have the proposed Agreement reviewed by a lawyer, but the calls were not harassing or threatening. [ 47 ] In her Certificate of Acknowledgement signed in the lawyer’s office, the wife acknowledged that she was signing the Agreement freely and voluntarily and without compulsion.

She also made several admissions in the Examinations for Discovery that she signed without fear, without threats and without compulsion from her husband. [ 48 ] The husband acknowledged making the following comments “don’t go there” and “you and the kids will be out on the street” when discussing the value of the matrimonial home and a request for spousal support. I find that those words were spoken out of anger and frustration. The husband says that the latter comment was made in response to the wife’s request for a settlement of $400,000.00.

He acknowledged taking some firm stands with the wife regarding the house. The Agreement does not reflect that attitude. His comments are a response to his emotional vulnerabilities, discussed in the context of duress, and demonstrate the importance of lawyers being involved in reviewing and providing calm and rational advice on these types of agreements.

[ 49 ] I am not satisfied that the husband broke into the wife’s e-mail system and created e-mails which appeared to be from the wife. I am satisfied that the March 17 th e-mail and the April 5 th e-mails were in fact written by the wife and sent to the husband. The emails reiterate the wife’s intention not to continue or work on her relationship with the husband, which has been her position in this trial. The husband was anxious for a reconciliation at that stage of the separation. It, therefore, makes no sense whatsoever that he drafted those detailed e-mails indicating that the relationship was over.

The dates are also significant in assessing the progression of the wife’s relationship with her new partner. [ 50 ] With regard to the child support payment cheques, it is not clear from the evidence when those cheques were provided to the wife, nor is it clear when it was determined that they would be used for child support. The $468.00 cheque was, in all likelihood, provided after the changes were made to the Agreement, as it is the amount of child support specified in the final Agreement.

Further, the wife had access to the bank accounts during the period of time between the separation and the signing of the Agreement and could have accessed any funds that she required during that period of time. Therefore, the date when the child support cheques were actually tendered by the husband to the wife are not particularly relevant to the issues before me. e. Conclusion [ 51 ] The first months of separation were emotionally difficult for both the husband and the wife. The wife was working out a new relationship and concluding with the old.

The husband was dealing with the sudden and surprising breakdown of his marriage. There were strong emotions and vulnerabilities on both sides. [ 52 ] I am mindful that the wife left the matrimonial home, was required to give up her day home, and, for a time, had little financial security. On the other hand, the husband continued at his job and had possession of the matrimonial home. The wife’s lawyer would have been aware of those circumstances when the Agreement was signed.

I also note that by the time the Agreement was signed, the economic pressure on the wife had been alleviated as she was, by then, living with her new partner in their home. [ 53 ] The wife signed the Agreement with the benefit of independent legal advice. The evidence was that she did nothing to avoid the contract for a year. The Agreement was signed in June 2005 and the Statement of Claim was filed in June 2006. [ 54 ] Under all of the circumstances, the wife has not made out a case of duress or undue influence.

Further, she has not established that she was unaware of what she was signing or that she signed involuntarily. She was not forced or compelled by any actions of the husband. I am satisfied that she knew what she was signing and had a fundamental understanding of the rights she was giving up and the responsibilities she was accepting when she signed the Agreement. iii. Unconscionability a. The Law [ 55 ] In Rick v. Brandsema , the Supreme Court, referencing its earlier decision in Miglin , set out the common law test of unconscionability that should be applied to matrimonial agreements.

At paras. 42-45, the Court stated the following: 42 Based on these realities, the Court in Miglin stated that judicial intervention would be justified where agreements were found to be procedurally and substantively flawed: [W]here the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability.

The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. [para. 4] 43 Miglin represented a reformulation and tailoring of the common law test for unconscionability to reflect the uniqueness of

matrimonial bargains: [W]e are not suggesting that courts must necessarily look for "unconscionability" as it is understood in the common law of contract. There is a danger in borrowing terminology rooted in other branches of the law and transposing it into what all agree is a unique legal context.

There may be persuasive evidence brought before the court that one party took advantage of the vulnerability of the other party in separation or divorce negotiations that would fall short of evidence of the power imbalance necessary to demonstrate unconscionability in a commercial context between, say, a consumer and a large financial institution. [para. 82] 44 Where, therefore, "there were any circumstances of oppression, pressure, or other vulnerabilities", and if one party's exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin [page311] concluded that the agreement need not be enforced (paras. 81-83). 45 Notably, the Court also stressed the importance of respecting the "parties' right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing" (para. 73).

Parties should generally be free to decide for themselves what bargain they are prepared to make. And it is true that most separating spouses appear to determine their agreements without judicial participation (Craig Martin, "Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law" (1998), 56 U. T. Fac. L. Rev. 135 , at p. 137). [ 56 ] To put it another way, Shelley J. in Mastalerz v.

Mastalerz , 2007 ABQB 416 , 419 A.R. 323, a decision which predated Rick , summarized the test for unconscionability in the context of a prenuptial agreement this way (at para. 32): In determining the question of unconscionability, the Court must take into account all the circumstances and determine whether the bargain was so bad as to constitute a fraud perpetuated upon the party who is seeking the recission of the agreement. b. The Parties’ Submissions [ 57 ] The wife argues that the husband got everything and she got nothing and that the Agreement is unconscionable.

She alleges that she had a claim for spousal support, a significant claim for property settlement, and a claim to the husband’s pension. She also alleges that the personal property distribution was unfair and she did not receive her proper share. [ 58 ] The wife strenuously argues that, during the course of the marriage, she and the husband received numerous gifts from the husband’s parents that were not properly accounted for in the distribution of matrimonial property.

The ‘gifts’ amount to about $35,000.00, virtually all of which, the evidence shows, were invested in home renovations to the couple’s home on Parker Drive, which was purchased for the couple by his parents. The couple worked hard on renovations and general maintenance, and earned an interest in the house. [ 59 ] The husband argues that the Agreement is an appropriate distribution of matrimonial property and matrimonial debt including the husband’s RRSP, pursuant to the principles established in the Matrimonial Property Act . The husband also argues that the wife has failed to make a case for spousal support. c.

The Matrimonial Home [ 60 ] The Matrimonial Property Act provides for equal distribution of property acquired during the marriage, unless the property is a gift: 7(2) If the property is

(

a) property acquired by a spouse by gift from a third party, the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section. ...

(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections (2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8. [ 61 ] There is some history to the parties’ residences and home ownership. The parties first purchased a condominium in 1994, which was sold in 1996. They broke even on that purchase and sale except for the payment of the real estate commission, which was approximately $5,000.00. The husband’s parents then purchased a home at Parker Drive in Sherwood Park in 1996 for $115,000.00. The property was registered in the husband’s parents’ names with the expectation that the husband and wife would live in the property and pay the taxes, insurance, and ongoing utilities.

The evidence disclosed that in some years, the young couple was unable to pay the taxes and so the parents paid them. The parents did not require any rent be paid and no detailed accounting was kept. The senior Mr. Dickieson testified that they did this to help out their son and his young family. [ 62 ] A number of significant renovations were made to the Parker Drive house before it was sold in 2004. The payments from the elder Dickiesons for the renovations were often called gifts. There is no evidence that these were “cash gifts” to be used at the discretion of the husband or the couple.

Rather the “gifts” were to be invested in improving the Parker Drive property.

The renovations to the property included: - roof replaced - $4,269.30 paid by husband’s parents - carpeting – $5,000.00 paid by husband’s parents - kids’ windows – $1,500.00 paid by husband and wife - windows – $5,000.00 paid by husband’s parents - front window - $1,500.00 paid by husband’s parents - new windows and doors – $3,000.00 paid by husband’s parents - oak floor – $1,000.00 paid by husband’s parents - kitchen cabinets - paid by husband - water softener and hot water tank – paid by husband’s parents - drapes - $500.00 paid by gift from husband’s parents to husband - garage door – $1,100.00 paid by husband’s parents - front door – $600.00 paid by husband’s parents - basement vanity – $450.00 paid by husband’s parents - insulation - paid by husband’s parents - garage insulation - $800.00 paid by husband’s parents - 3 x $5,000.00 paid to husband by cheque from husband’s parents as gift to be used for renovations - wife’s mother financed paint, flooring and some appliances but no receipts available – I accept that she did help with those items.

Many if not all of the renovations are fixtures and therefore part of the house and its ultimate value.

[ 63 ] The husband’s parents also bought motor vehicles for the young couple and took them on vacation with them. During the time the couple lived in the Parker Drive house, the parents often wrote cheques payable to their son as gifts. [ 64 ] In January of 2004, upon receipt of legal and accounting advice, the parents transferred the property into the young couple’s names at a declared value of $179,000.00. The house was sold in February of 2004 to a third party for the purchase price of $195,000.00 and there was approximately $6,000.00 net to the husband and wife jointly after expenses.

That money and other funds were used to purchase the Glencoe Blvd. house for $216,000.00 in February 2004. This property was put in the joint names of the husband and wife, while the husband’s parents held the mortgage against the property in the amount of $212,000.00. [ 65 ] I find that the Dickieson parents did not intend for the monies given to the couple to be a gift shared between them and spent at their discretion. The money was meant for renovations to improve the house that the senior Dickiesons had purchased.

The husband and wife enjoyed the luxury of those renovations, and the renovations improved the value of the house. The money from those improvements was included in the value of the Parker Drive home when it was sold, and was then subsequently invested in the Glencoe Blvd. home. Significantly, cheques were made payable to the husband alone and not jointly with the wife.

And further, the gift exemption of the Matrimonial Property Act would prevail in valuing those gifts, so that any increase in value over and above the initial value of the gift, if established, may be available for division and distribution. [ 66 ] The valuation of the Glencoe house at the time of separation was established by an appraiser, known to both parties, at a value of $230,000.00. The April draft sets out that value. At trial, the wife called an appraiser who did an historical evaluation to determine a value of the Glencoe property.

The appraiser’s opinion was a value in June 2005 of $251,000.00 in a rising market and a value in March 2005 of $239,000.00.The most accurate method of determining fair market value of the property would be to sell it on the open market. Failing that, the parties and the lawyers exercised due diligence and agreed upon an appropriate value. That valuation is complicated because of the significant monetary ‘gifts’ advanced to the husband by his parents for the renovations and the couple’s investment of sweat equity into the Parker Drive house.

However, the wife cannot have the valuation both ways, ie. the increased value of the house as well as the value of the gifts. Rather, one impacts the other – the gifts were used to pay for the renovations and are part of any potential increase in value of the house. The April draft of the agreement set out the valuation of the Glencoe Blvd property which includes the increase in value of the Parker Drive home. There may have been some room to negotiate on a lump sum payment for the matrimonial home that did not include the selling expenses, but there were other debts to consider. d.

Spousal Support [ 67 ] The wife did not call evidence on the issue of spousal support. There is no budget and no financial information that would assist with a determination of this issue. Very shortly after the separation the wife was involved in another relationship. That in itself does not affect her entitlement to spousal support. [ 68 ] A claim for spousal support in this case would rely on the compensatory aspect of spousal support, since the parties agreed that the wife would stay at home to care for the children.

Since the separation, and with her inability to run the day home, she might be able to put forward a claim for some minimal amount of spousal support for the period while she reestablished herself and the children. I say minimal, because she did not, and has not, looked for other work or tried to obtain other work. Neither she or her partner want her to work outside the home. I find that the wife’s claim for spousal support is not established on the evidence presented. e.

Personal Property [ 69 ] Regarding the parties’ personal property, perhaps it is true that the husband received everything and the wife nothing, but the husband also took on all of the debts incurred in acquiring the personal property in the Agreement: - television secured by loan from future shop of $939.00 (March 4, 2005)– assumed by the husband - Bank of Montreal line of credit - $5,500.00 (February 11, 2005) assumed by the husband - Bank of Montreal Master Card – $1,200.00 (March 12, 2005) assumed by the husband - tent trailer secured by a $17,715.00 loan assumed by the husband (sold for $10,500.00 - loss of $7,200.00)

- Suzuki car secured by a $22,000.00 loan assumed by the husband. Each of the parties retained the vehicles they were driving. The wife’s vehicle had no debts against it. The total debt assumed by the husband amount to $15,700.00 not including the loan against his Suzuki motor vehicle. [ 70 ] If there are other pieces of personal property that the parties would like distributed differently then I invite them to sort those issues out on their own. f. Pensions and RRSP’s [ 71 ] The husband had a total of RSP and pensions valued at approximately $16,500.00. The wife had an RRSP of $2,000.00.

In the Agreement, the parties both gave up any entitlement they might have had to the other party’s RRSP. The parties also relinquished any entitlement they may have had to the pensions of the other through both Canada Pension Plan and private employer plans. g. Was the Agreement Unconscionable? [ 72 ] It is impossible to recreate the situation that existed between the parties leading up to the signing of the Agreement.

I am confident that the wife was upset and anxious as a result of the emotional and financial situation in which she found herself and I am confident that the husband had many emotional and financial concerns as well. Neither party’s situation was unusual for a difficult matrimonial split involving a third party and two delightful children. It was a difficult and emotional time for all. By the time the wife signed the Agreement, she was living with her new partner, the children were settling into their new reality, and her financial concerns had resolved. [ 73 ] The words of Coutu J. from Grant v.

Jovic are worth repeating. “Justice affects both parties and requires a balancing of their interests. The fact that the settlement agreement may not have been a desirable one from the point of view of the defaulting party, or the fact that they may have received poor advice from their lawyer, or the fact that they later changed their minds, cannot provide grounds for setting aside the settlement agreement, or a refusal to enforce it.” [ 74 ] The June 13, 2005 Agreement is valid.

The evidence does not satisfy me that the wife was unable to make proper decisions regarding the financial and other matters contained in the Agreement. She signed the Agreement with a lawyer and there are notes demonstrating that she was aware of the husband’s financial circumstances, as she had been throughout the marriage. [ 75 ] As indicated previously, the most accurate method of determining the actual value of matrimonial assets would be to liquidate them all, pay off the debts and divide what is left over.

The parties chose to negotiate the distribution of the assets and the debts based on information available at the time of the negotiation. [ 76 ] After a thorough review of the financial affairs of the parties at the time of separation, I find that although the Agreement may not be perfect, it certainly falls within the range contemplated by the legislation of entitlements to spousal support and distribution of matrimonial property.

In the absence of liquidating all of the assets that the parties held at the time of the separation, the parties have reached a settlement that is justifiable and fair under all of the circumstances. Although the wife received few assets she is, importantly, not required to pay any of the significant marital debts. [ 77 ] The husband has failed to meet the onus of proving unconscionability with regard to this Agreement. The Agreement is fair to both parties. The wife’s share has not been shown to be patently unfair.

I am satisfied that the Agreement adequately reflects the principles relevant to a calculation of spousal support, distribution of matrimonial property, and debts. There are no absolute calculations that create absolute equality for everyone. IV. Conclusion

[ 78 ] The wife’s application to set aside the Agreement is dismissed. I find that there was no duress or undue influence affecting her decision to sign the Agreement. Further, in all of the circumstances, the Agreement was not unconscionable, patently unfair or oppressive to the wife. Heard on November 22-26, 2010 and December 20 and 21, 2010. Dated at the City of Edmonton, Alberta this 25 th day of March, 2011. B.A. Browne J.C.Q.B.A. Appearances: Art Tralenberg for the Plaintiff Tina Huizinga for the Defendant