Hill v. Ilnicki, (2000) 273 A.R. 131 (QB)

• Judge: Paperny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 06, 2000
• Jurisdiction: Alberta
• Citations: (2000), 273 A.R. 131 (QB)

Hill v. Ilnicki (2000), 273 A.R. 131 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. OC.097

David Jeremy Hill (plaintiff) v. Daleatta Ilnicki (defendant)

(Action No. 4801-101178)

Indexed As: Hill v. Ilnicki

Alberta Court of Queen's Bench

Judicial District of Calgary

Paperny, J.

October 6, 2000.

Summary:

Spouses separated in Ottawa in 1997 after a 16.5 year marriage and two children, now aged 15 and 17. Both were lawyers. The wife ceased practising in 1995 due to health reasons and currently received disability benefits. The husband agreed to pay $2,000 per month spousal and child support. The separation agreement also divided the marital property. Shortly after the separation agreement was executed, the wife and children moved to Alberta. In 1998, the separation agreement was amended. Child and spousal support remained the same, but the husband agreed to transfer all of the equity in the marital home to the wife, as well as other monies. The husband now challenged the enforceability of the separation agreement (lack of independent legal advice and misrepresentation) and the amending agreement (duress, lack of counsel and trouble exercising access).

The Alberta Court of Queen's Bench allowed the husband's action in part. The separation agreement (as amended) was fair and reasonable, amounting essentially to an equal division of marital property. The court reduced child support to the Guidelines amount. In light of the husband's current income, and the wife's receipt of disability benefits, no spousal support was awarded and future entitlement was reserved.

Family Law - Topic 660

Husband and wife - Marital property - Separation agreement - Effect of - [See Family Law - Topic 3354 ].

Family Law - Topic 3354

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In matrimonial property application - Spouses separated in Ottawa in 1997 after a 16.5 year marriage and two children - Both were lawyers - A 1997 Ontario separation agreement, amended in 1998, failed to comply with the execution formalities of s. 38 of the Matrimonial Property Act (re independent legal advice), but did effect an equal division of marital property - The Alberta Court of Queen's Bench stated that in dividing marital property, the noncomplying separation agreement was to be considered, the impact of the agreement on the circumstances of the spouses was relevant and reliance on the agreement was relevant (particularly if property had passed) - The negotiated agreement was reasonable and would approximate the result achieved if the court ordered an equal division - Assets were sold and transferred in reliance on the agreement - Accordingly, the court upheld the division of property under the agreement - See paragraphs 32 to 71.

Family Law - Topic 3388

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Duress or undue influence - Spouses separated after 16.5 years' marriage - The initial separation agreement provided for an equal division of the marital home equity - A subsequent amendment to the agreement provided for the wife to get all of the equity - The husband now challenged the validity of the agreement, claiming economic duress due to impending mortgage foreclosure and fear over his access rights (wife and children moved from Ontario to Alberta) - The Alberta Court of Queen's Bench held that the husband's stress did not constitute duress invalidating the separation agreement - The husband had options other than transferring all of the equity to the wife - See paragraphs 52 to 54.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - Spouses separated in Ottawa in 1997 after a 16.5 year marriage and two children, now aged 15 and 17 - Both spouses were lawyers - The wife ceased practising in 1995 for health reasons and currently received disability benefits - The husband agreed to pay $2,000 per month spousal and child support - Since then, the wife and children moved to Alberta, the husband's income decreased and the wife continued to receive disability benefits (the husband was led to believe that she had stopped getting benefits) - The Alberta Court of Queen's Bench varied child support to the Guideline's amount of $908 per month - In light of changed circumstances, the husband's current income and the wife's receipt of disability benefits, no spousal support was awarded and future entitlement was reserved - See paragraphs 72 to 84.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4017 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines - Changed circumstances - [See Family Law - Topic 4017 ].

Cases Noticed:

Corbeil v. Bebris (1993), 141 A.R. 215; 46 W.A.C. 215 (C.A.), refd to. [para. 33].

Morozuk v. Morozuk (1988), 84 A.R. 162; 13 R.F.L.(3d) 151 (Q.B.), affd. (1989), 97 A.R. 56; 21 R.F.L.(3d) 85 (C.A.), refd to. [para. 39].

Shortt v. Shortt (1985), 59 A.R. 129; 44 R.F.L.(2d) 379 (Q.B.), refd to. [para. 39].

Pao On v. Lau Yiu Long, [1979] 3 All E.R. 65 (P.C.), refd to. [para. 52].

Jackson v. Jackson (1989), 97 A.R. 153; 21 R.F.L.(3d) 442 (C.A.), refd to. [para. 64].

Laird v. Laird (2000), 250 A.R. 193; 213 W.A.C. 193; 3 R.F.L.(5th) 241 (C.A.), refd to. [para. 74].

Wang v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 39 R.F.L.(4th) 426 (C.A.), refd to. [para. 76].

Russo v. Russo (1988), 15 R.F.L.(3d) 343 (Ont. S.C.), refd to. [para. 80].

Vervoorst v. Vervoorst (1991), 122 A.R. 280; 37 R.F.L.(3d) 178 (Q.B.), refd to. [para. 80].

Fitzgerald v. Fitzgerald (1991), 123 A.R. 166; 36 R.F.L.(3d) 345 (Q.B.), refd to. [para. 80].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 81].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract (3rd Ed. 1994), p. 319 [para. 52].

Counsel:

Richard W. Bourassa, for the plaintiff;

Daleatta Ilnicki, on her own behalf.

This action was heard before Paperny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on October 6, 2000.