Date: 20 May, 2021| Author: Fred Streiman

Our firm takes great pride in the accomplishments of a former partner, now the Honourable Justice Mr. Marvin Kurz of the Ontario Superior Court of Justice.

Marvin as he will be eternally known to us rendered a decision in the Dowdall case in November 2020.

The fact situation was one in which the wife after separation made a formal offer to settle the issue of her support in the amount of $3,800.00 per month for an eight-year period. The amount would not be subject to change regardless of any changes in the parties’ circumstances.

However, Ms. Dowdall had made her offer based upon the husband’s representation of his income.

Mr. Dowdall told his wife that his salary had been reduced by virtue of COVID-19 reductions at work to $150,000.00 per year. What he failed to tell his wife was that actually he had been offered a new position and that his income had increased in all likelihood to in excess of $300,000.00 per year. Mr. Dowdall took advantage of the outstanding offer to settle by the wife and accepted it. However, when he attempted to formalize this settlement acceptance, the wife objected.

She had not been told of the actual increase of Mr. Dowdall’s income in contrast to his representation to her that his income had been reduced. In essence, Mr. Dowdall was earning in all likelihood double that which he had told his wife.

Justice Kurz was not impressed and felt that the non-disclosure by Mr. Dowdall of his true income deprived her of the opportunity to withdraw her offer.

Pursuant to the spousal support advisory guidelines, Mr. Dowdall’s true income would have suggested support of double the amount that Mrs. Dowdall offered to settle her claim for.

Mr. Dowdall was not content to live by Justice Kurz’s decision and appealed to the Ontario Court of Appeal.

The Court of Appeal was not impressed and dismissed Mr. Dowdall’s application despite the fact that he was represented by prominent family law counsel.

The Court agreed that enforcing the settlement would be unfair and unreasonable and that Mr. Dowdall’s failure to disclose his true income sabotaged his motion. Courts are not inclined to interfere with settlements reached between parties so long as there has been full and frank disclosure and the opportunity to obtain independent legal advice. However in contrast, if there has been intentional and material non-disclosure, the Court is more than ready, willing and able to jump in and set aside the results of such disclosure.

Justice Kurz’s trial decision on the motion was vindicated by the Ontario Court of Appeal as it very well should have been.

Sad but true, the spouse whom no doubt you described as “my best friend and soul mate” at your wedding now has no monetary value to you.

Clearly the moral is disclosure is mandatory if you want the Court to help you even in the face of a lack of a corresponding effort.

Now my Machiavellian theory for a motion and appeal that seemed like a loser from day one. This is complete conjecture.

If the husband had been successful either at the motion or appeal he would potentially have saved himself 8 years of alimony at $7,600.00 per month vs. $3,800.00. The after tax spread roughly speaking might have been $182,000.00. He gambled and lost a guess of $75,000.00 in legal fees and costs.

Not certain those odds and the potential gain made sense. On the other hand, if after the offer had been accepted and the deal reached, and then for the first time the husband earned a significant salary increase, he would have been in the clear.