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Digest of the Week | Obvious Unfairness

Separation agreement set aside due to obvious unfairness in Ontario Superior Court of Justice decision


Butler v. Butler

2015 CarswellOnt 19859

Ontario Superior Court of Justice



Family law --- Domestic contracts and settlements — Validity — Essential validity and capacity — Duress, fraud, undue influence and unconscionability

Throughout marriage, husband worked on automotive assembly line — Wife had had no substantial paid employment for at least 26 years — Parties separated — Wife brought motion seeking summary judgment setting aside separation agreement and various forms of interim relief — Separation agreement had to be set aside — Wife had requisite general awareness of couple's finances — Husband exerted his will over wife and was in demonstrably stronger position, which had result of real disadvantage to wife — Lack of independent legal advice created insurmountable obstacle for wife in assuming anything like effective bargaining stance in her dealings with husband — Without her appreciating statutory scheme dealing with spousal support, joint property and process of equalization, agreement arrived at was unconscionable — Any consideration of "fairness" of contract from perspective of wife showed it to be grossly improvident — When obvious unfairness of contract was viewed against backdrop of her lack of legal advice, her unsophistication and fact that, even without malicious intent, husband was acting very much in self-preservation as he took advantage of wife, it was clear that agreement had to be set aside.
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