Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
Contracts - Validity - Remedies - Unconscionable transactions - Family law - Separation - Family assets - Separation agreements - Does mere access to legal advice fully compensate for a weakened mental state - What is the duty on a spouse, if any, to provide accurate values of assets within his or her control both in the mediation process and the finalization of the agreements - Does it matter that the mediation and the minutes arising from it refer to an equalization payment and that the final agreements makes the accuracy of a sworn financial statement a condition precedent - What constitutes res judicata where statutory rights are involved - Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24.
The Applicant and Respondent separated after a 27 year marriage. They had five children, and they had established a dairy farm business, of which they were equal shareholders. They had acquired land, vehicles, RRSPs and real property as family assets. The wife retained a lawyer to commence divorce proceedings, but twice terminated his services. First one mediator was retained and then another, and a memorandum of agreement was drawn up providing that the husband could keep the farm and another dairy farm business, while the wife would retain a house purchased with farm funds and receive an equalization payment of $750,000. The amount was proposed by the wife before information on the value of the assets was final. There was a $100,000 lump sum payment to the wife for child support, but no provision for spousal support. Although a second lawyer advised the wife that the $750,000 amount could be low and that she should not give up spousal support, the separation agreement was signed. The parties were divorced and a consent order was entered dismissing the wife’s claims against the husband. Later the wife initiated a court action seeking rescission of the separation agreement on the basis of misrepresentation and unconscionability. She alleged misrepresentations on the value of disclosed assets and a failure to disclose some assets, and asked in the alternative for a variation pursuant to s. 65 of the the Family Relations Act, R.S.B.C. 1996, c. 128. She also brought claims for physical and sexual assaults alleged to have been committed by her husband throughout the course of their marriage.
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