Boechler v Boechler, 2019 SKCA 120

Court of Appeal for Saskatchewan Docket: CACV3418 Citation: Boechler v Boechler , 2019 SKCA 120 Date: 2019-11-18 Between: Joanne Ruth Boechler Appellant (Petitioner) And Anthony Jerome Boechler Respondent (Respondent) Before: Richards, C.J.S, Caldwell and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On Appeal From: FLD No. 32 of 2014, Saskatoon Appeal Heard: October 10, 2019 Counsel: Deryk Kendall for the Appellant Sean Sinclair for the Respondent Tholl, J.A. I.

Introduction [ 1 ] Joanne Boechler and Anthony Boechler separated in 2013 after 19 years of marriage. A petition was issued in early 2014 and the litigation progressed over the next four years. On the eve of trial in 2018, the parties reached an agreement resolving all of the outstanding property and spousal support issues. Two weeks later, Ms. Boechler’s counsel sent a letter to Mr. Boechler’s counsel asserting that a $310,000 asset in Mr. Boechler’s possession had not been accounted for in the settlement as a result of Mr. Boechler’s alleged misrepresentation. Ms.

Boechler claimed the agreement was vitiated and sought to reopen negotiations. [ 2 ] Mr. Boechler refused to further negotiate and applied in Chambers for an order reflecting the terms of the settlement. In response, Ms. Boechler applied for an order setting the matter down for trial. The Chambers judge determined there was a binding settlement agreement and granted an order reflecting its terms. Ms. Boechler appeals against the order. [ 3 ] I find the Chambers judge did not err in granting an order on the terms of the settlement agreement and would dismiss the appeal. II. Background [ 4 ] Mr.

Boechler was operating two businesses when the petition was issued on January 28, 2014: a corporation, Eldorado Developments Ltd. [Eldorado], and a sole proprietorship, VacDaddy.com [VacDaddy]. The parties agreed to use the petition date of January 28, 2014 to value the business assets for the purposes of division of family property. [ 5 ] Each year, VacDaddy would pay management fees to Eldorado. VacDaddy’s fiscal year-end was December 31, but Eldorado’s fiscal year-end was June 30.

There was generally a delay between VacDaddy accruing the management fees owed to Eldorado and paying those fees, but the fees had always been accounted for in both businesses’ financial statements. Historically, the fees were categorized as an account payable for VacDaddy and an account receivable for Eldorado. However, for the fiscal year ending June 30, 2014, Mr. Boechler’s accountant had changed the manner in which he accounted for the management fees owing from VacDaddy to Eldorado.

Instead of categorizing the unpaid management fees as an account receivable in Eldorado’s financial statements as was done in the past, the accountant decreased the “Due to Shareholders” liability account by $310,000 to account for the management fee that was owing from VacDaddy to Eldorado. As a result, Eldorado’s accounts receivable asset account was set out as $310,000 less than it would have been if the same accounting method had been used for the 2014 financial statement as had been used in previous years.

The Due to Shareholders debt account was decreased by a corresponding amount, leading to no net effect on Eldorado’s financial statements. However, this difference in presentation created some confusion when it came to valuing Eldorado and the associated shareholder’s loan. I shall refer to the disputed asset as the “shareholder’s loan” throughout this decision because, even though Ms. Boechler and the Chambers judge refer to the issue as being related to the value of Eldorado, it is actually the shareholder’s loan to Eldorado that is alleged to have been undervalued. [ 6 ] Ms.

Boechler retained Nadine Wightman as a business valuator at some point well before the settlement agreement was reached. Ms. Wightman is a highly experienced business valuator who has provided valuation analysis in numerous family law matters. Ms. Boechler deposed that she retained Ms. Wightman to provide an opinion of the value of VacDaddy and not to provide a valuation of Eldorado or any shareholder’s loans. Ms. Wightman confirmed this arrangement in her affidavit. Mr. Boechler retained Neil Weber as his business valuator. Ms. Wightman and Mr.

Weber disagreed significantly with regard to the value of VacDaddy, but both Ms. Wightman and Mr. Weber valued VacDaddy on the common understanding that one of its debts was the $310,000 owed to Eldorado, and they both decreased VacDaddy’s value accordingly.

[ 7 ] The trial was set to commence on April 2, 2018. Ms. Wightman and Mr. Weber were expected to testify at trial. The parties had exchanged formal offers to settle. In her formal offer to settle, Ms. Boechler had included a

schedule with her position on the value of individual assets. Some of her values were higher than the values Mr. Boechler used in his formal offer to settle. For example, Ms. Boechler valued VacDaddy at $440,000, whereas Mr. Boechler valued it at only $138,000; she valued Eldorado at $784,675, but Mr. Boechler valued it at $584,656. However, in each of their formal offers to settle, both parties presented the shareholder’s loan asset in Mr. Boechler’s possession as being valued at $374,145. Ms.

Boechler now asserts this was a mistake because the value for the shareholder’s loan should have been $310,000 higher to reflect the management fees that were still owing as of the petition date. [ 8 ] The parties further discussed settlement after the formal offers were exchanged in February and March 2018. On March 27, 2018, the parties reached a settlement and exchanged emails setting out the terms of the settlement: [March 27, 2018, at 1:10 p.m., from counsel for Mr. Boechler to counsel for Ms.

Boechler] Subject: Terms of Agreement … As discussed with [you] this morning, I believe that the parties have discussed matters and worked out the final terms of the agreement. This is what I understand is being agreed upon. Please confirm so that we can cancel the trial dates. My understanding of the agreement is: 1. Our client retains the family home. 2. Your client obtains the cabin and contents. It will be transferred into her name in such a manner that it will not trigger a capital gain.

It is subject to a right to buy in that, if your client wishes to sell in the next three years, our client will have the first opportunity to buy it for $265,000; 3. Our client will retain Eldorado. Your client transfers her shares to our client (again on a rollover basis); 4. Eldorado will pay to your client’s corporation the sum of $350,000 by way of a rollover; 5. Our client will rollover $145,000 of RRSPs to your client; 6. Our client will pay cash to your client of $208,500; 7. Except as otherwise stated, each party retains whatever is in their own name/possession; 8.

Commencing April 1, 2018 and continuing for 6 years, our client will pay spousal support of $5,000 per month; 9. Your client will remove any liens or encumbrances that she has placed upon any of the assets of our client or Eldorado; 10. Our client maintains the sea can; 11. Any debts in either party’s name shall remain the responsibility of the party holding such debt. The parties have agreed upon a timeline of 30 days for these items. … [March 27, 2018, at 2:29 p.m., from counsel for Mr. Boechler to counsel for Ms.

Boechler] Subject: RE: Terms of Agreement … I think that this likely goes without saying, but the spousal support, as you discussed with me yesterday on the phone, would not be subject to change during the 6 year term and would terminate absolutely after the 6 years. … [March 27, 2018, at 2:48 p.m., from counsel for Ms. Boechler to counsel for Mr. Boechler] Subject: RE: Terms of Agreement … I have spoken with [Ms. Boechler] and can confirm that we have a deal. Can you please prepare Minutes of Settlement or an Interspousal Agreement for our review?

We will also need a court order to remove the [certificates of pending litigation]. …

[ 9 ] The trial dates were cancelled and the parties exchanged further correspondence related to the implementation of the settlement. However, on April 10, 2018, Ms. Boechler’s counsel sent the following letter to Mr. Boechler’s counsel: Upon a thorough review of this file, it has come to our attention that a significant asset was left out of consideration during our negotiations. In particular, on the date of application there was an account receivable due from VacDaddy to Eldorado which does not appear in the June 30, 2014 corporate Financial Statements.

The sum was reflected in the 2013 and 2015 Financial Statements, but was not reflected in the 2014 document, as we now believe that it was paid out between the date of application and the corporate yearend. Your client was aware that the value used for Eldorado was based on the assets less debts as reflected in the June 30, 2014 Financial Statements, with adjustments only to the cash and inventory; however, he neglected to advise that the “due from” which exceeded $300,000 on the date of application had not formed part of our calculations.

In our view, this significant omission represents a “mutual mistake” caused by your client’s misrepresentation, and which vitiates the agreement reached between the parties on March 27, 2018. We are seeking to reopen negotiations in order to take the correct value of Eldorado, including the “due from” amounts from VacDaddy, into account. Kindly confirm. As this is a pressing matter, we request your immediate response. [ 10 ] In her affidavit material, Ms. Boechler does not provide any explanation of how she came to her realization regarding the value of the asset other than to state in her first affidavit: 6.

As a result of the exchange of these [March 27, 2018] e-mails, the trial dates were abandoned, and [Mr. Boechler], through his lawyer, sent me a written set of Minutes of Settlement. 7. By this time, myself and my solicitor … recognized that the 2014 Financial Statement as provided to us by [Mr. Boechler] was a misrepresentation of the true value of Eldorado. Other than this affidavit evidence and the April 10, 2018 letter from Ms. Boechler’s counsel to Mr. Boechler’s counsel, Ms.

Boechler chose to not provide the Chambers judge with any other evidence setting out the circumstances leading to her discovery of this issue. [ 11 ] The April 10, 2018 letter references “a thorough review” of the file material already in Ms. Boechler’s possession that resulted in the new position on Eldorado’s value. It is uncontroverted that Mr. Boechler did not provide any further disclosure or information of any kind that resulted in Ms. Boechler determining she had undervalued the shareholder loan by $310,000. Ms.

Boechler arrived at this new determination of value based solely on information that was already in her possession when she agreed to the settlement. [ 12 ] The valuation of the shareholder’s loan related to Eldorado is the issue at the heart of this appeal. Ms. Boechler asserts that it was undervalued by $310,000 because of the accounting change that had been made in 2014. She submits Mr. Boechler failed to provide adequate disclosure with regard to the $310,000 and failed to point out to her that she was undervaluing the shareholder’s loan during the negotiations.

During her submissions at the appeal hearing, she asked that the agreement be set aside or, alternatively, that this Court determine she is entitled to an additional $155,000, representing an equal sharing of the $310,000. [ 13 ] Mr. Boechler does not appear to dispute that Ms. Boechler undervalued the shareholder’s loan by $310,000 when determining her position on the total value of the property, but asserts that he was cooperative and provided more than adequate disclosure to permit her to determine the values on her own.

He points to the settlement as being a global settlement in which the parties did not agree on the individual components of how they arrived at the terms of the settlement but, instead, agreed on the overall amount he would pay to Ms. Boechler. III. Chambers decision [ 14 ] In his unreported decision, the Chambers judge identified the nature of the asset in question and then comprehensively set out the history of the related disclosure that occurred over the course of the litigation.

The Chambers judge found the disclosure process “got off to a wobbly start” (at 2) in 2014, but had been substantially completed by January 2015. He then reviewed the disclosure that occurred after that point in response to Ms. Boechler’s continuing and evolving requests and concluded that all the documents sought over the years by Ms. Boechler had been provided by Mr.

Boechler through his counsel or his accountant, Tom McKenzie. [ 15 ] The Chambers judge reviewed the jurisprudence relating to the duty of disclosure in a family law matter and his authority to set aside an agreement on the basis of non-disclosure, including: Miglin v Miglin , 2003 SCC 24 , [2003] 1 SCR 303 [ Miglin ]; Gordon v Nielson , 2018 SKQB 207 [ Gordon ]; Rick v Brandsema , 2009 SCC 10 , [2009] 1 SCR 295 [ Brandsema ]; Tremblay v Tremblay , 2018 SKQB 47 [ Tremblay ]; and Gamble v Longpre , 2016 ONSC 3499 , 79 RFL (7th) 337 [ Gamble ].

After doing so, he observed (at 6): The ultimate question is whether the disclosure provided to [Ms. Boechler] was incomplete, inadequate or misleading such that she did not have the ability to genuinely decide for herself that which constituted an acceptable bargain. [ 16 ] The Chambers judge noted Ms. Boechler’s complaint was very focused, concerning only the $310,000 issue related to the one asset.

In Chambers, she had asserted the discrepancy was not apparent to her because of the different presentation of Eldorado’s 2014 financial statement combined with the alleged inadequate disclosure and, as a result, she had been misled and had accepted a settlement that was less than what she was entitled to receive. [ 17 ] The Chambers judge examined the disclosure specifically related to Eldorado and the accounts receivable/shareholder’s loan issue in detail. While numerous items of disclosure were discussed by the Chambers judge, an email exchange between Ms. Boechler’s business valuator, Ms. Wightman, and Mr.

Boechler’s accountant, Mr. McKenzie, was of particular note:

[November 10, 2016, at 5:53 p.m., from Ms. Wightman to Mr. McKenzie] Subject: further questions … I have spoken with [Ms. Boechler] and we are trying to reconcile the Due to Eldorado recorded in the VacDaddy.com financial statements to the Due from VacDaddy.com recorded on the Eldorado financial statements. I realize the year ends are different dates, but I am unsure where the Due from is recorded on the Eldorado financial statements? Can you provide [Ms. Boechler] with the following information: 1. Eldorado financial statements for 2015 and 2016, if available 2. Eldorado general ledger for 2014, 2015 and 2016, if available 3. A

summary of the Due to shareholders for the 2013, 2014, 2015 and 2016 years 4. I understand Eldorado used to own a property that was sold in 2013. What is included in inventory? 5. T5 Summaries and slips for the 2013, 2014, 2015 and 2016 fiscal year end Please let me know if you have any questions regarding the above list. … [December 4, 2016 at 2:13 p.m., from Mr. McKenzie to Ms. Wightman] Subject: RE: further questions … Sorry for the delay in getting this to you. We seem to get the work completed at the filing deadlines, so we are month ahead of schedule! Attached are all the items that you requested.

The property that was sold in 2013 was listed in capital assets and not in inventory. What is remaining in inventory is four vacant lots in Warman (1001, 1003, 1005 & 1007 6th Ave). All property tax and maintenance expenses are being added to inventory on a yearly basis. I know in previous statements we were grouping the shareholder loan account against the Due from VacDaddy account - which was causing some confusion, so for presentation purposes I have split them apart. Due to a T1 adjustment on [Mr.

Boechler’s] 2015 T1 return, I am attaching the amended 2015 VacDaddy.com financial statements and a copy of his 2015 Notice of Reassessment. Should you have any questions, please call me. … [ 18 ] After comprehensively reviewing the disclosure regarding Eldorado, the Chambers judge concluded disclosure was not incomplete (at 10): I do not accept [Ms. Boechler’s] assertion that the disclosure was incomplete. She has identified only two documents she said were not disclosed: one that had been disclosed and one that is of no moment. [ 19 ] The Chambers judge then turned to Ms.

Boechler’s assertion that the financial statements themselves were misleading or inadequate. He accepted that Eldorado’s 2014 financial statements were confusing and noted confusing statements may, in some circumstances, be “sufficient to support a finding that disclosure was misleading” or inadequate (at 10). He made the following observations in this regard (at 10–11): First, the 2014 Eldorado financial statement cannot be viewed in isolation. Rather it should be viewed in the context of the total, extensive disclosure regarding Eldorado and particularly the December 4, 2016 email from Mr. McKenzie.

Second, whether disclosure is misleading ought not to be viewed in the abstract. It must be viewed from the perspective of those who received it .… An assertion that disclosure was misleading imports the notion that the recipient of the disclosure was vulnerable to being misled. … Whether [Ms. Boechler] was vulnerable to being misled is properly assessed in the context of those who received and reviewed the disclosure: [Ms. Boechler], her lawyer … and a business valuator, [Ms. Wightman]. [ 20 ] With this as context, the Chambers judge then commented on the involvement of Ms.

Boechler’s counsel, to the limited extent he could based on the sparse affidavit evidence, and then examined Ms. Wightman’s involvement. He noted Ms. Boechler’s counsel’s conclusion in the April 10, 2018 letter and Ms. Wightman’s opinion regarding the $310,000 contained in an affidavit filed on the application were arrived at without Mr. Boechler providing any additional disclosure or information of any kind. This led the Chambers judge to conclude (at 13):

If the disclosure was truly misleading or inadequate or incomplete, they would not now be able to figure out what they say they did not figure out before the settlement agreement. [ 21 ] With regard to Ms. Boechler’s duty to inquire into the issue, the Chambers judge stated the following (at 13): [Mr. Boechler] had a duty to provide clear, understandable financial disclosure. I find that he did that but [Ms. Boechler] says she did not understand it. If she did not, then she should have inquired further. … Here [Ms.

Boechler] was well aware there was some confusion regarding the presentation of the 2014 Eldorado financial statement. She and Ms. Wightman discussed it and asked for more information. Mr. McKenzie provided it. [Ms. Boechler] averred very clearly, a number of times, that she did not retain Ms. Wightman to perform a valuation of Eldorado. She never, however, explained why not. There was nothing in the evidence to indicate that [Ms. Boechler] could not afford to retain someone to perform a valuation of Eldorado or that [Mr.

Boechler] assured her it was not necessary or that she was otherwise vulnerable. (Emphasis in original) [ 22 ] In his conclusion, the Chambers judge set out a lengthy list of documents asked for and received by Ms. Boechler in relation to Eldorado. He completed his analysis with the following observations (at 14–15): Despite having all of those documents, [Ms. Boechler] says during the negotiations leading up to the settlement agreement she relied on only one – the 2014 Eldorado financial statement. She did not say why only that one and not all of the other documents including Mr.

McKenzie’s email of December 4, 2016 or why she did not take Mr. McKenzie up on his offer to ask him questions. … I return to first principles. The purpose of full disclosure in family law proceedings is to prevent a stronger party from exploiting weaknesses of the other party; to level the playing field; to ensure both parties have sufficient information to enable them to assess for themselves that which constitutes an acceptable bargain. … Here, insofar as I can see, [Mr. Boechler] made full disclosure of all material documents that related to Eldorado. I cannot detect so much as a whiff of exploitation.

Here, as in Mykytyshyn v Mykytyshyn , [2004] S.J. No. 25 (modified to use these parties’ names): The offer was accepted. There was no mistake on the part of [Mr. Boechler] nor any fault, nor deception, nor concealment. If there was a mistake as alleged by [Ms. Boechler] it was unilateral and [she] must look elsewhere for any remedy which [she] may have. In my view, it would not be consonant with any reasonable observer’s notion of justice to set aside the agreement in these circumstances. [ 23 ] The Chambers judge dismissed Ms.

Boechler’s application and granted an order that reflected the terms of the settlement agreement. IV. Issues and standard of review [ 24 ] Ms. Boechler appealed on several grounds, but the following issues encapsulate the grounds that were pursued in this matter: (

a) Did the Chambers judge err in determining Mr. Boechler had met his disclosure obligations and, consequently, err in not setting aside the settlement agreement? (

b) Did the Chambers judge err in refusing to set aside the settlement agreement on the basis of unilateral, mutual, or common mistake? [ 25 ] The standard of review for findings of fact that are based on affidavit evidence has been set out in two different manners in recent jurisprudence. One line of authority indicates an appellate court may not interfere with findings of facts absent palpable and overriding error: Archibald v Archibald , 2018 SKCA 86 at para 38 ; Nelson (City) v Mowatt , 2017 SCC 8 at para 36 , [2017] 1 SCR 138.

Another line of cases sets out the standard of review as reasonableness: Viczko v Choquette , 2016 SKCA 52 at para 25 , 396 DLR (4th) 449; Bachman v. Scheidt Estate , 2016 SKCA 150 at paras 11–12 , [2017] 2 WWR 301; and Farm Credit Corp. v Valley Beef Producers Co-operative Ltd. , 2002 SKCA 100 , 218 DLR (4th) 86. While there is arguably some uncertainty in the standard of review that applies to findings of fact based on affidavit evidence, the outcome in this matter would not be different regardless of which standard of review applies.

For questions of law, the standard of review is correctness: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235. V. Analysis A. Duty to Disclose [ 26 ] Ms. Boechler submits the Chambers judge erred by applying too low of a standard when he considered Mr. Boechler’s disclosure obligations in this matter. She points to the informational asymmetry between the parties in relation to the business assets and argues Mr. Boechler failed to properly disclose the documents and information required to address this inequality in positions. Mr. Boechler submits the Chambers judge properly determined he had not misled Ms.

Boechler and had fulfilled his duty to make full disclosure. 1. General principles

[27] When the division of family property is claimed in a family law matter, each party has a duty to provide full and honestdisclosure of all relevant information to the other party. The purpose of such disclosure is to ensure family property is distributed in amanner that is free from informational and psychological exploitation: Brandsema at para 1. [28]

Section 27 of The Family Property Act, SS 1997, c F-6.3 [FPA], provides authority for the court to order disclosure in a familylaw matter, but disclosure is not otherwise addressed in the FPA. Unlike some other jurisdictions, such as Ontario and British Columbiawhere the statutes governing the division of family property specifically address a failure to disclose financial assets, the FPA does notdirectly speak to the consequences of a failure to disclose. However, a court may set aside an interspousal contract under s. 24 of the FPA,if it was unconscionable or grossly unfair.

Such a situation might arise from a failure to adequately disclose the relevant information. [29] The procedural requirements for disclosure in a family law matter are set out in Division 3 of

Part 15 of The Queen’s BenchRules. The nature of the duty to disclose is left to the common law. [30] An oft-quoted and stark description of the problems associated with non-disclosure in family law matters was repeated inLeskun v Leskun, 2006 SCC 25, [2006] 1 SCR 920: [34] … As Fraser J. commented in Cunha v. Cunha (1994), (BC SC), 99 B.C.L.R. (2d) 93, at para. 9: Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which areinadequate.

It increases the time and expense of litigation. … [31] Drawing on the foundation it set out in Miglin, the Supreme Court described family law disclosure obligations in Brandsema asfollows: [46] This contractual autonomy, however, depends on the integrity of the bargaining process. Decisions about what constitutes anacceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to considerwhat concessions to accept or offer.

Informational asymmetry compromises a spouse’s ability to do so [citations omitted]. [47] In my view, it flows from the observations and principles set out in Miglin that a duty to make full and honest disclosure of allrelevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerablecircumstances.

The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where theresult is a negotiated settlement that is substantially at variance from the objectives of the governing legislation. [48] Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves whatconstitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honestdisclosure is an agreement that, prima facie, is based on the informed consent of both parties.

It is, as a result, an agreement that courts aremore likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which isentitled to judicial deference. [32] In Tremblay, Megaw J. described the duty to disclose in the following terms: [47] … the discussion of resolution of family law matters demands, and expects, full, frank and complete disclosure of all informationrelevant to the issues between the parties. This obligation is absolute and uncompromising.

While these comments were made in the context of the disclosure of income information, the principle applies equally to disclosureobligations regarding family property. [33] In my view, the Chambers judge’s description of his task as involving a determination of “whether the disclosure provided to[Ms. Boechler] was incomplete, inadequate or misleading such that she did not have the ability to genuinely decide for herself that whichconstituted an acceptable bargain” (at 6) captures the purpose of disclosure in relation to a negotiated property settlement.

The duty tomake full and honest disclosure is imposed to protect the integrity of the bargaining process, to prevent informational and psychologicalexploitation by either party, and to permit the parties to determine to what extent they are willing to assert or give up their rights under theFPA. When disclosure is inadequate, the non-disclosing party opens up the possibility that any settlement agreement reached will becomepartially or totally unenforceable, or that the value of the undisclosed property will be subject to further division.

However, as noted byWilkinson J. in Gordon, “an agreement negotiated with full and honest disclosure and without exploitative tactics will likely survivejudicial scrutiny” (at para 89). [34] An inquiry into whether a party has met his or her disclosure obligations is case-specific and turns on the unique circumstancesof each matter. The onus is on the party asserting non-disclosure to establish the other party failed in his or her disclosure obligations:Gamble at para 7. [35] In the matter at hand, there is no allegation of vulnerability except to the extent that Mr.

Boechler had asymmetrical control ofthe information regarding Eldorado and the shareholder’s loan when the proceedings began. This vulnerability would have continued toexist only if Mr. Boechler had failed to make adequate disclosure. [36] In my view, the Chambers judge set out the correct standard for disclosure and then properly analyzed whether Mr. Boechlerhad met his obligations in the circumstances of the matter that was before him. The Chambers judge found, as a fact, that Mr. Boechlerhad met his disclosure obligations by providing full, frank, and complete disclosure.

I am unable to find any error in this determination. [37] While there may have been a failure on Ms. Boechler’s part to fully understand the disclosure regarding Eldorado and theshareholder’s loan, or to appreciate its significance, that does not equate to a failure to disclose by Mr. Boechler. He provided all of thedisclosure required for Ms. Boechler to evaluate the value of the businesses and the shareholder’s loan. The shareholder’s loan issue wasspecifically flagged by Ms. Boechler’s business valuator and an explanation was provided by Mr.

Boechler’s accountant with an invitationfrom him to ask any follow-up questions. Importantly, Ms. Boechler was able to discover the shareholder’s loan issue withoutMr. Boechler providing any additional documents or information. The documents she required to make her decisions regarding her rights

under the FPA were already in her possession. [38] Ms. Boechler submits that, given the exceptional nature of the issue, Mr. Boechler had a duty to highlight the issue with theEldorado financial statements and shareholder’s loan to her. I am skeptical that there is a duty for one party to a negotiated settlement topoint out to the other side that they have undervalued an asset, or to provide advice on how to value an asset when there has been full andfrank disclosure. However, I find that it is not necessary to decide whether such a duty existed in this case because Ms.

Boechler wasaware of the shareholder’s loan valuation problem. No further highlighting by Mr. Boechler was required, regardless of the presence orabsence of such a duty, because Ms. Boechler knew about the issue. This is not a situation where Mr. Boechler, as the knowledgeableparty, provided the necessary disclosure but hid a significant issue within voluminous documents leaving Ms. Boechler to go searching fora needle in the haystack. The potential issue was known to Ms.

Boechler well in advance of the settlement agreement being reached andwas not obscured in a manner that prevented her from assessing her rights and making an informed choice. [39] Lastly, under this ground, Ms. Boechler asserts the Chambers judge erred by finding that she had a duty to inquire further aftershe had the disclosure. I disagree. The Chambers judge’s comments on this subject simply pointed out that if Ms. Boechler did notunderstand the shareholder’s loan issue after full and frank disclosure had been provided, there was an onus on her to take steps to clarifyher understanding.

I can find no error in this determination. [40] The Chambers judge did not err in finding Ms. Boechler had failed to establish that Mr. Boechler had not fulfilled his disclosureobligations. This ground of appeal cannot succeed. B. Unilateral mistake, common mistake or mutual mistake [41] Ms. Boechler also asserts the Chambers judge erred by not finding there had been a unilateral mistake, common mistake or amutual mistake. 1. Unilateral mistake [42] A unilateral mistake occurs when one party to a contract has made a mistake of which the other party was aware or ought tohave been aware.

This most often occurs when there has been a drafting or mathematical error made on behalf of one party andrectification is sought. When the other party knows, or ought to have known, about the mistake, they cannot remain silent and takeadvantage of the error: Performance Industries Ltd. v Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para 31, [2002] 1 SCR 678;and Solle v Butcher, [1950] 1 KB 671 (CA). In the matter at hand, rectification is not being sought. Ms.

Boechler seeks to have theagreement set aside in its entirety or, in the alternative, to have the alleged undistributed asset divided equally. [43] In family law proceedings, unilateral mistake has usually been argued in the context of an inadvertent drafting error in asettlement offer or final agreement: see McCabe v Tissot, 2015 ONSC 2557, 59 RFL (7th) 493; Wilde v Wilde (2000), (ON SC), 9 RFL (5th) 442 (Ont Sup Ct); Bogue v Bogue (1999), (ON CA), 46 OR (3d) 1 (CA).

Typically, one partywill have made an obvious error with regard to an essential element, such as omitting the division of a large asset in the hands of the otherparty. In such cases, the other party is generally not entitled to “snap up” the offer or rely on the deficient agreement. If unilateral mistakeis established, the agreement might be rectified or set aside, although each case turns on its own specific circumstances. [44] In the matter at hand, the doctrine of unilateral mistake does not provide any assistance to Ms. Boechler.

There is no evidenceof an inadvertent drafting error, omission in the settlement agreement, or similar error. The alleged error consists of Ms. Boechlerbelatedly deciding she believes one asset is worth more than she did at the time she entered into the settlement agreement. There isinsufficient evidence that Mr. Boechler was aware of Ms. Boechler’s alleged mistake and she has not established Mr. Boechler ought tohave been aware of the alleged mistake. This matter involved a complex negotiation between two otherwise non-vulnerable parties whohad retained counsel and professional business valuators.

The agreement was reached on the eve of trial. As part of their negotiationpositions, as set out in their formal offers, the parties were more than $500,000 apart on the combined value of VacDaddy, Eldorado, andthe shareholder’s loan. In the end, the parties did not agree on the total value of the family property or the value of each asset, but theywere able to agree on a total payment that they were each willing to accept.

The settlement agreement resulted in a global settlement thattook all of the differences in valuation positions into account. [45] The alleged mistake is not the type of mistake that can be addressed through the principles of unilateral mistake. The Chambersjudge did not err in determining Ms. Boechler could not obtain any relief under this ground. 2. Common mistake and mutual mistake [46] Ms. Boechler argues that the Chambers judge erred by considering only unilateral mistake and failing to address the alternateforms of mistake – common mistake and mutual mistake.

She is correct in identifying that the Chambers judge did not address whethercommon mistake or mutual mistake apply to this matter. [47] A mutual mistake occurs when both parties are mistaken about an issue but in a different way: Cozart v Cozart, 2007 SKQB160 at para 48, [2007] 10 WWR 743. A common mistake occurs when both parties share a common mistaken belief: Williamson vWilliamson, 2004 SKCA 65, 240 DLR (4th) 456 [Williamson]. Ms.

Boechler argues both parties believed the shareholder’s loan wasworth $310,000 less than its actual value, so she is invoking the doctrine of common mistake. [48] Common mistake is a ground for rectifying or setting aside an agreement. This issue was addressed in Williamson. In that case,the parties were ranchers who did not include any value for leased grazing land in their property settlement because they both believed theleases were not family property and had no value. The party in possession of the ranch subsequently sold the ranch with a significant valuebeing received for the leases.

The Court of Appeal upheld the Court of Queen’s Bench decision that rectified the settlement agreement anddivided the value of the leases equally between the parties. Critical findings of fact were made that both parties were under the commonmisunderstanding that the leases were not family property and had no value and that it was their intention to divide the value of the ranchequally. There are no similar findings of fact in the matter at hand.

[ 49 ] A court will not lightly set aside or rectify agreements through the use of the doctrine of common mistake. In Zavarella v Zavarella , 2013 ONCA 720 , 369 DLR (4th) 247, the parties settled some issues in advance of trial, including agreeing that one spouse had brought a car worth $10,000 into the marriage and was entitled to an exemption for the car. In reality, the car was leased and had no value. The trial judge found both parties were labouring under a common mistake about the nature and value of the car during the negotiations and rectified the agreement to remove the exemption for the car.

The majority of the Court of Appeal overturned the trial judge’s determination, stating as follows: [47] Where the doctrine of common mistake applies, the court has the power to set aside an agreement. However, in ruling on the car, the trial judge did not consider the Agreement as a whole. Instead, he considered only that part of the Agreement which related to the car. In doing so, he erred.

If he were to consider the terms of the Agreement, he had to consider them all and not simply the one part of the Agreement that related to the car. [48] Similarly, it was not open to the respondent, during the course of the trial, to withdraw his consent to a single term of the Agreement. If he wished to challenge the validity of the concession he made about the car, he had to challenge the validity of the Agreement as a whole. He could not pick and choose among its terms, for the purposes of such a challenge.

It does not matter that the appellant could not point to any particular concession and say that she made it in response to the respondent’s concession about the car. The Agreement in this case reflected “give and take” by both parties on a number of matters. The appellant was entitled to rely on the Agreement in her conduct of the trial, unless the Agreement was properly set aside. [49] Further, while the trial judge said that he was alive to the important policy reasons for enforcing pre-trial settlements, in my view, he failed to respect them.

Fairness and finality considerations, along with the need to encourage parties to settle their affairs with the confidence that their settlement will not be interfered with lightly, favour enforcement of the Agreement. Agreements should not be interfered with, except in very narrowly circumscribed circumstances. And, to reiterate, if an agreement is to be considered by the court, it is the agreement as a whole that must be reviewed, not some isolated part of it. [ 50 ] In any event, in my view the respondent could not have successfully invoked the doctrine of common mistake.

I reach this conclusion for two reasons. [ 51 ] First, the mistake about the car did not go to the root of the Agreement. … [ 52 ] Second, for the doctrine of common mistake to apply, the respondent would have had to have shown that the mistake as to ownership of the car was not his fault. In the circumstances of this case, he could not have discharged that burden. [50] I cannot agree with Ms. Boechler’s argument that common mistake applies to this matter.

The evidence did not establish there was a common misapprehension about the combined value of the business assets when they are viewed as consisting of VacDaddy, Eldorado, and the shareholder’s loan. There is no common mistaken belief that goes to the root of the agreement. While both parties set out the same value for the shareholder’s loan in their formal offers to settle, the total amount they each asserted the family property was worth was significantly different. As noted above, Ms. Boechler’s formal offer set out a value for the business assets that exceeded the value in Mr.

Boechler’s formal offer by over $500,000. The parties then negotiated and reached a global settlement, on the eve of trial, for an amount that each was willing to settle for – which included the shareholder’s loan – having had the advantage of full disclosure, legal assistance, and professional valuation advice. This is not the type of situation where the Chambers judge could have set aside the settlement agreement on the basis of common mistake. VI. Conclusion [51] I would dismiss Ms. Boechler’s appeal with costs on Column 3. “Tholl J.A.” Tholl J.A. I concur. “Richards C.J.S.” Richards C.J.S.

I concur. “Caldwell J.A.” Caldwell J.A.