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Back in April we looked at a case where the courts refused to overturn a separation agreement entered into by two parents. Another recent decision, this time from the Ontario Superior Court of Justice, highlights just how important it is to carefully consider the details and implications of a separation agreement before signing it.

The separation history

The mother and father began living together in 1995 and separated in 2008. They did not every marry. They had two children, aged 21 and 19 at the time of the hearing. They both attend university. The couple signed their first separation agreement on January 12, 2011.

In 2018 the mother brought a motion to change, and it resulted in a temporary order where the father consented to paying child support and s.7 expenses. The order contained a clause where the father acknowledged he was not proceeding with a claim for “undue hardship” and that “neither party shall be required, at any future time, to disclose the income or asset position of their new partners with whom they cohabit.”

The couple entered into mediation, which resulted in a Minutes of Settlement dated January 14, 2019. The court describes the Minutes of Settlement as having “dealt with the (father’s) support arrears and provided a formula to calculate the parties’ proportionate contributions to the children’s post-secondary educational expenses. In the event of a material change in circumstances related to tuition and fee costs, the parties contributions could be varied by way of submissions to (the mediator). The parties agreed that they would not be liable to contribute to the children’s post-secondary education costs beyond a first degree or 5 years of post-secondary education, whichever came first.” The Minutes of Settlement also contained the clauses in the temporary order, restricting the father from pursuing claims of undue hardship or seeking disclosure of any new partners’ income or assets.

A change of heart

Just three months after signing the Minutes of Settlement, the father brought a motion for summary judgment. His request called for a retroactive reduction of s.7 expenses on the basis of undue hardship. He also sought to receive financial disclosure from the mother’s new partner.

The father listed a couple of reasons why he was pursuing the motion. The first was that while there had been no material change in circumstances since signing, he said he was suffering from depression when he signed the Minutes of Settlement, and signed only because he planned to take his own life. He did not expect to ever be bound by the agreement. He went on to add that the mediator “intimidated and berated” him, resulting to his signing the agreement under duress, and against his lawyer’s advice.

The court’s analysis

The court explained that in order to set aside a domestic contract, the Family Law Act states that a court can set aside a domestic contract in the following scenarios:

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

The court found that while the mediator may have warned the father about the potential financial consequences of not agreeing to sign the Minutes of Settlement, it should not have resulted in the father experiencing duress. The father also failed to provide any evidence that he had been suffering from depression, as he claimed to have been.

The court found the husband to have failed to show that the Minutes of Settlement should not be set aside.

This case serves as  a good example that separation and divorce should be handled with the assistance of experienced family law lawyers. The team at Gelman & Associates provides our clients with exceptional legal representation in all areas of family law. We help our clients make informed decisions while keeping an eye on what is most important to them and their family. We provide all of our prospective clients with a comprehensive family law kit during their initial consultation as well as our firm’s handbook on separation and divorce. We can be reached online or at 1-844-769-0737

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