The appellant wife appealed an order setting aside a separation agreement under s. 56(4)(b) of the Family Law Act.
The hearing judge had set aside the agreement based on a theory he raised himself, finding the wife engaged in trickery by altering the agreement without the husband's knowledge.
The Court of Appeal allowed the appeal, holding that the hearing judge's finding of trickery was procedurally unfair as it was never pleaded or put to the wife in cross-examination.
Absent this finding, there was no basis to conclude the sophisticated husband, who chose not to obtain independent legal advice, failed to understand the nature or consequences of the agreement.
