Sydor v. Sydor, (2003) 178 O.A.C. 155 (CA)

• Judge: Feldman, Cronk and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 07, 2003
• Jurisdiction: Ontario
• Citations: (2003), 178 O.A.C. 155 (CA)

Sydor v. Sydor (2003), 178 O.A.C. 155 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. OC.006

Ana-Marie Sydor (plaintiff/appellant) v. Leon Paul Sydor (defendant/respondent)

(C37112)

Indexed As: Sydor v. Sydor

Ontario Court of Appeal

Feldman, Cronk and Armstrong, JJ.A.

October 2, 2003.

Summary:

The parties separated in October 1995. In February 1996, they entered into a separation agreement, which provided for the disposition of their respective interests in the matrimonial home and its contents. The parties continued a relationship and in February 1998 the husband moved in with the wife. The parties separated again in October 1998. A divorce was granted. A trial was held to determine the wife's claim for equalization.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. Uned. A88, found that the parties reconciled in February 1998 when the husband moved in with the wife, rather than in June 1996 as contended by the wife. The court held that the reconciliation vitiated the separation agreement from the date of reconciliation onwards, but did not have the effect of setting aside the releases or the transactions carried out under the agreement. Since the parties did not acquire any assets after the reconciliation date, no equalization payment was ordered. The wife appealed.

The Ontario Court of Appeal allowed the appeal. The trial judge was entitled to find that the parties intended the disposition of the matrimonial home under the separation agreement to be final and to survive reconciliation. However, there was no basis to find that the entire agreement was intended to survive a reconciliation. The parties' interests in the matrimonial home could not be the subject of further equalization, but any other property they owned on the valuation day was to be included. The court ordered that an equalization payment be made based on a Net Family Property Statement agreed to by the parties, as modified by removing all reference to the parties' investments in the matrimonial home and as modified after a trial on two issues left to be determined.

Family Law - Topic 660

Husband and wife - Marital property - Separation agreement - Effect of - The parties separated in October 1995 - In February 1996, they entered into a separation agreement, which provided for the disposition of their respective interests in the matrimonial home and its contents - The parties reconciled in February 1998 and separated in October 1998 - The wife made a claim for equalization - The trial judge held that the reconciliation vitiated the separation agreement from the date of reconciliation onwards, but did not have the effect of setting aside the releases or transactions carried out under the agreement - Since the parties did not acquire any assets after the reconciliation date, no equalization payment was ordered - The wife appealed - The Ontario Court of Appeal allowed the appeal - The trial judge was entitled to find that the parties intended the disposition of the matrimonial home under the separation agreement to be final and to survive reconciliation - However, there was no basis to find that the entire agreement was intended to survive a reconciliation - The parties' interests in the former matrimonial home could not be the subject of further equalization, but any other property they owned on the valuation day was to be included - See paragraphs 18 to 35.

Family Law - Topic 922

Husband and wife - Marital property - Contracts - Effect of - [See Family Law - Topic 660 ].

Family Law - Topic 3300

Separation agreements, domestic contracts and marriage contracts - Termination of - Resumption of cohabitation - [See Family Law - Topic 660 ].

Family Law - Topic 3300

Separation agreements, domestic contracts and marriage contracts - Termination of - Resumption of cohabitation - The Ontario Court of Appeal stated that the common law rule was that a separation agreement was void upon reconciliation, subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement would remain in place - See paragraph 22.

Family Law - Topic 3354

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In matrimonial property application - [See Family Law - Topic 660 ].

Family Law - Topic 3801

Divorce - Reconciliation - What constitutes - The parties separated in October 1995 - They continued a relationship and in February 1998 the husband moved in with the wife - The wife maintained that the parties reconciled in June 1996, from which time they travelled together, had sexual relations and lived as a couple at her residence, even though the husband also maintained a home - The trial judge found that until the husband sold his home and moved fully into the wife's home in February 1998, they had not reconciled in accordance with the tests set out in the case law - On appeal, the Ontario Court of Appeal held that although there was evidence that could indicate that the parties had reconciled as of an earlier point, the trial judge made no palpable and overriding error in his finding that they did not reconcile until February 1998 - See paragraphs 14 to 17.

Cases Noticed:

Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.), refd to. [para. 10].

Buller v. Buller (1979), 26 O.R.(2d) 92 (Co. Ct.), refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 16].

Bebenek v. Bebenek (1979), 24 O.R.(2d) 385 (C.A.), refd to. [para. 19].

Bailey v. Bailey (1982), 37 O.R.(2d) 117 (C.A.), refd to. [para. 19].

Smart v. Wiewior (1990), 28 R.F.L.(3d) 225 (B.C.C.A.), refd to. [para. 19].

Baron v. Baron (1990), 70 Man.R.(2d) 302; 29 R.F.L.(3d) 37, refd to. [para. 19].

Watson v. Watson (1988), 16 R.F.L.(3d) 457 (Ont. U.F.C.), consd. [para. 24].

Counsel:

Warren S. Fullerton and Jennifer Dietrich Suzor, for the appellant;

Deborah-Lynn Gibson, for the respondent.

This appeal was heard on February 7, 2003, before Feldman, Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Feldman, J.A., and was released on October 2, 2003.