Turk v. Turk 2018 ONCA 993: Court Refuses to Set Aside Separation Agreement
The parties were married for nearly nineteen years and have two children together. In April 2010, the parties entered into a Separation Agreement and divorce six months later. Per the terms of the Separation Agreement, the respondent husband would pay the appellant wife $10,000 in child and spousal support, in addition to all the children’s’ section 7 expenses. The wife agreed to pay the husband an equalization payment of $181,578. Four years later, the wife sought to set aside the agreement based on the husband’s failure to disclose significant assets.
Under section 56(4) of the Family Law Act, the court has the power to set aside a domestic contract if one party failed to disclose significant assets when the contract was originally created. The trial judge agreed that the husband failed to disclose his interests in certain family businesses that he acquired during the marriage, and that the non-disclosure was blame-worthy. However, the trial judge dismissed the wife’s application because the non-disclosed assets, though large, were not “significant” in the sense referred to in s. 56(4).
This was the judge’s finding for two reasons:
- The wife had obtained a very favorable settlement would not have done any better had the disclosure been made.
- The husband had made several large concessions during mediation, rendering it unreasonable to simply input the value of the non-disclosed assets just to see their impact on the equalization payment.
The Court of Appeal upheld this finding, stating that the trial judge’s ruling was accurate according to section 56(4) and Virc v. Blair 2014 ONCA 392, which established the test for setting aside a domestic contract.
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