The parties cohabited for thirteen years and separated in 2008. They entered into a separation agreement in 2011 regarding the custody and support of two children, now 19 and 21. In 2018, the mother brought a Motion to Change and the parties went to mediation, each represented by counsel. The mediation concluded with Minutes of Settlement which included provisions that stated the father would not pursue a claim of hardship and neither party would be required to disclose income or assets of a new partner.
The father brought a motion for summary judgment seeking to set the Minutes of Settlement aside 3 months later. Specifically, he sought to retroactively reduce his obligation to contribute to s. 7 expenses on the basis of hardship and receive financial disclosure from the mother's new partner.
The father’s basis for setting aside the Minutes of Settlement was that the mediator “intimidated and berated” him, and that he signed the Minutes under duress, against the advice of counsel. Section 56(4) of the Family Law Act, permits a court, on application, to set aside a domestic contract or a provision in it, (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.
Typically, courts try to respect agreements entered into by private parties. The legal onus was on the father to show that one of the circumstances set out in section 56(4) applied to this case. The father’s claim that the agreement was invalid because he had not received the mother’s partner’s new disclosure was found invalid. He had specifically contracted out of any entitlement he had to that information in the Minutes of Settlement themselves.
The father then claimed that he signed the Minutes of Settlement under duress; namely, he had been pressured to do so by the mediator. In fact, the mediator said that “it may get worse for you” if the father did not agree to the Minutes of Settlement. The father faced additional concerns that he would incur thousands of dollars in legal costs if the matter proceeded to arbitration.
Justice Charney found that this was the nature of mediation; cost consequences and warnings to promote settlement are common practice within mediation. Often, these warnings are true, and it is important for the mediator to bring relevant considerations to the parties’ attention. These factors, though they may have influenced the father’s decision, did not rise to the level of duress. Finally, the father claimed that he was suffering from depression and addiction issues when he signed the Minutes of Settlement, however there was no evidence to suggest that he lacked legal capacity to enter into an agreement at the time. Accordingly, the father’s motion for summary judgment was dismissed, along with his claim to set aside the Minutes of Settlement.
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