COURT FILE NO.: FS-23-00034195-0000

DATE: 20241028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PRISCA SHARON IRVING

Applicant

– and –

IRA ANTHONY IRVING

Respondent

Enio Zeppieri, for the Applicant

Emily Banks, for the Respondent

HEARD: January 4 and 5, and April 19, 2024

a.p. ramsay j.

I. Introduction

1The parties, Prisca Sharon Irving, and Ira Irving were married in St. Lucia in July 2004. Both parties had been living in Canada. In the summer of 2004, they travelled to St. Lucia to introduce the respondent to the applicant’s family. The parties had been planning on getting married in Canada. On the way back from St. Lucia, the applicant encountered difficulties at immigration and was refused entrance back into Canada. The respondent returned to St. Lucia with her and the two got married in St. Lucia. Both parties agree they signed a marriage contract the day before the marriage.

2The parties dispute whether the respondent made any financial disclosure before the contract was signed. The applicant did not have independent legal advice before signing the contract.

3The applicant commenced this application seeking a divorce, support, equalization of net family property, exclusive possession of the matrimonial home, and various other claims relating to property. In her application, the applicant alleges that the marriage contract prepared by the lawyer in Saint Lucia is invalid and is not in accordance with the law of contract and Ontario laws and St. Lucia law. She further alleges that the terms of dispute with respect to the marriage contract were property, equalization, independent legal advice, and financial disclosure.

4The respondent delivered an Answer, which was amended, in which he sought a divorce and an equalization of net family properties.

5The applicant asked the court, on this focused trial, to set aside or deem invalid and unenforceable, the marriage contract.

6The parties both agree that the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) does not apply to the issues to be determined at this trial.

7The evidence before the court was by way of affidavits, oral evidence, and Statement of Agreed Facts (Exhibit 1).

II. Background

8The applicant and respondent are 52 and 56 years old, respectively. The respondent has four adult children from previous relationships, all of whom are independent.

9The applicant completed the equivalent of a grade six elementary level education in St. Lucia. She came to Canada in 1992. After coming to Canada, she attended high school at night school, but did not obtain a diploma.

10Before their marriage, the applicant was a babysitter and house cleaner. She had established a life for herself in Ontario.

11The respondent obtained a degree or diploma in Civil Engineering from George Brown College. Prior to their marriage, the respondent was a Civil Engineer, and had worked with numerous companies and the TTC. When the parties met, the respondent was employed with the Toronto Transit Commission (“TTC”) as a bus operator.

12The parties met in September 2000. At the time they met, the respondent was employed with the TTC, as a bus driver. He was living with is mother and brothers at 7618 Rockhill Road (“the Rockhill property”). The respondent co-owned the Rockhill property with his mother.

13The parties dispute whether they lived together before the marriage. They dated for about four years before they got married.

14Prior to the marriage, the applicant resided in Ontario, and had applied to immigration to become a resident of Canada. She withdrew the application. The parties disagree on whether she did so at the request of the respondent.

15In June 2004, the parties obtained a marriage license in Toronto. Thereafter, they travelled to St. Lucia for the respondent to meet the applicant’s mother and sister who resided there. Upon returning to Canada, the applicant was refused entry into Canada by immigration.

16Aside from the applicant, the respondent had no connection to St Lucia.

17The parties signed a marriage contract in Castries, Saint Lucia on July 20, 2004 (the “marriage contract”), the day before they got married. The marriage contract was prepared by Kenneth Allan Patrick Monplaisir (Mr. Monplaisir), a lawyer and notary in Saint Lucia.

18The parties married the following day, on July 21, 2004, at a Registrar’s Office in Saint Lucia. The parties intended to live in Ontario, Canada and have done so since they were married. After they married, the respondent sponsored the applicant to come to Canada.

19While the parties dispute how long it took after the marriage for the applicant to return to Canada, they agreed that her immigration was approved after the marriage.

20The parties separated on January 24, 2021. The respondent was charged with assaulting the applicant. The respondent accepted a plea deal with a conditional discharge. The respondent has moved out of the matrimonial home. The applicant continues to reside in the matrimonial home.

21The respondent owns real property, 48 Guestville Avenue in Toronto (the “Guestville property”), which was purchased in April 2007, after the marriage. The respondent is the sole owner of the Guestville property. The respondent’s Net Family Property Statement, sworn on December 14, 2023, indicates the value of the property as $750,000. There is no evidence before the court as to the source of the valuation.

22The respondent’s mother passed away on April 6, 2019. His evidence on this trial, is that his mother left her 50% share of the “Rockhill property” to his siblings. The respondent purchased his mother’s share of the property, which he was entitled to do under the Will, thereby increasing the mortgage on the property by that amount. His Net Family Property Statement does not indicate a value for the Guestville property, though under the heading “Nature & Type of Ownership,” the respondent indicates “Matrimonial Home – 100%.” He also notes it is “To be divided.”

III. The Marriage Contract

23The marriage contract before the court has five operative paragraphs. There is no signature page. The contract indicates that there shall be “no community of property,” which “now belongs” to the parties or to be acquired by the parties during the marriage. The contract essentially provides that the parties would keep their separate property, including property brought into the marriage or acquired during the marriage, and it specifically states, “in particular my pension from Toronto Transit Commission.” The contract also indicates that each party was responsible for their own debt and provides that the applicant would keep her personal property.

24The relevant clauses of the marriage contract read:

BETWEEN: IRA ANTHONY IRVING OF 7618 Rockhill Road Mississauga, Ontario L4T2Z7 CANADA but at present residing at Jackmel in the Island of St. Lucia, Bus Conductor (hereinafter referred to as THE FUTURE HUSBAND) of the one part.

AND: PRISCA SHARON POLIUS of Jacmel in the Island of St. Lucia, Supervisor (hereinafter referred to as THE FUTURE WIFE) of the other part.

WITNESS that the said FUTURE CONSORTS in and with the intention of uniting themselves in the holy bond of matrimony have covenanted and stipulated and agree with each other as follows:-

1. There shall be no community of property between the said future or immovable which now belongs to them or which may be acquired by them or either of them during the said intended marriage

2. The said future consorts shall be separate as to property having during the said intended marriage the entire administration and enjoyment of his or her property and of the revenues therefrom in particular my pension from Toronto Transit Commission

3. The said future consorts shall not be responsible for each other’s debts contracted previous to or during the said intended marriage by such debts if any shall be born (sic) and paid by the consorts who shall have contracted the same without the other or his or her property being in any way responsible therefore

4. THE FUTURE HUSBAND shall of himself bear and pay all household expenses including the necessary personal expenses of THE FUTURE WIFE and the maintenance and education of any child or children that may be born to them

5. In order to establish what shall constitute the property of THE FUTURE WIFE shall consist of her bedroom furniture, cutlery, linen, jewelry and other articles of a personal nature which were marked with her name or initials of which she can prove by vouchers or otherwise to be hers

25The marriage contract did not deal with spousal support or the equalization of net family property. It dealt with support of the children. The court will only focus on the issues raised by the application, especially since the Ontario Court of Appeal has established that there is no legal basis for setting aside an agreement dealing with property on the basis that it does not also deal with support: Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760, at para. 21.

IV. The issues to be determined

26The following issues are raised to be determined in this trial:

i. Does the law of Ontario apply to the marriage contract made in St. Lucia?

ii. If the law of Ontario applies, does the marriage contract comply with formal requirements of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”)?

iii. Are there grounds to set aside the marriage contract?

iv. If there are grounds to set aside the marriage contract, should the court exercise its discretion and set it aside?

V. Position of the Parties

a) The applicant

27The applicant agrees that the parties executed the marriage contract in St. Lucia on July 20, 2004. She says the marriage contract is not valid and is unenforceable. She asserts that the contract is neither in accordance with Saint Lucia contract law nor Ontario contract law. She also asserts that the marriage contract is not in accordance with St. Lucia family law nor Ontario family law. The applicant submits that there are numerous vitiating factors rendering the contract null and void. The applicant alleges in her application that the marriage contract should be deemed invalid and unenforceable for the following reasons.

28In her closing submissions, the applicant asserted that she was not given the opportunity to request financial disclosure, nor did she have independent legal advice. She relies on the same factors that would vitiate a contract at common law.

29Further, the applicant’s position is that the marriage contract did not refer to either party having financial disclosure, it did not waive financial disclosure, it did not reference the value of the TTC Pension, and it made no reference to specific property. The applicant submits that the marriage contract makes no reference to any releases for financial information from the parties.

30The applicant submits that the Ontario courts have jurisdiction to set aside the marriage contract.

b) The respondent

31The respondent submits that the marriage contract should be deemed valid and enforceable. He argues that the court has jurisdiction over this marriage contract but asserts that the applicant has not met the burden to set aside the marriage contract.

32The respondent says the parties entered into the marriage agreement freely and with knowledge of its contents. He says the applicant knew what she was signing, had organized the meetings with the lawyer in St. Lucia, and was not under any duress or coercion to sign the agreement, and he further denies that there was unconscionability. The respondent says the applicant had every opportunity to seek more information, disclosure, and independent legal advice and chose not to do so. He says the applicant had been in her own country and had knowledge of the options available to her to speak to someone other than Mr. Monplaisir.

33The respondent says the applicant understood that his two assets were his TTC pension and the Rockhill property and he says the marriage contract specifically set out the TTC pension and the Rockhill property as stated as his residence. He says that the agreement uses clear language that all property will belong to the party who owns the property. He argues that paragraph four of the agreement indicates that he was to “bear and pay all future household expense including the necessary expenses of the future wife and the maintenance and education of any child or children that may be born.”

34The respondent submits that even if the applicant establishes that a breach falls within one or more of the provisions under s. 56(4) of the Family Law Act, the agreement ought not to be set aide. In his Closing Submissions, the respondent submits that “the lack of disclosure was not neglectful, the agreement remained in place and not challenged until after the parties separated and Ms. Irving claimed it invalid.” He argues that the applicant “received the benefits of the marriage, immigration to Canada, and the maintenance of Mr. Irving providing for her.”

VI. Evidentiary issues

35During the trial, the applicant sought to rely on documents to prove in support of her evidence that the parties cohabited together before getting married. The applicant says the parties cohabited together for four years. The respondent disputes that the parties ever cohabited together before they were married. He says that he only ever resided at the Rockhill property in 2007.

36The respondent challenged the admissibility of certain documentary evidence or the weight to be given to the following documents:

i. A statutory declaration made by the respondent’s late mother, Alaima Irving

ii. Rental Application for 402-102 Trethewey Drive dated August 15, 2003

iii. Record of Solemnization of Marriage dated June 28, 2004

iv. Letter from Pastor Samuel McKenzie dated November 16, 2006.

v. Letter from Tony Castro Owner/Landlord dated October 31, 2006,

37Hearsay is an out of court statement which is admitted for the truth of its contents: R v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 158. Hearsay evidence is presumptively inadmissible as a matter of law unless it falls under a traditional exception to the hearsay rule. Hearsay evidence is admissible if it meets the tests of necessity and reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Starr; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.Whether the hearsay evidence meets the test of reliability must be established on a voir dire: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34.

38Absent consent, hearsay can only be admitted under a statutory exception, a common law exception, or in accordance with the principled approach to the admissibility of hearsay: Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (Ont. C.A.); Children’s Aid Society of Ottawa-Carleton v. L.(L.) (2001), 2001 CanLII 28153 (ON SC), 22 R.F.L. (5th) 24 (Ont. S.C.J.).

39The respondent’s mother, Alaima Irving, now deceased, provided a Statutory Declaration sworn on November 6, 2006. Mrs. Irving swore that the respondent and the applicant lived at an address on Dupont Avenue in Toronto from 2001 to 2003, and at 102 Trethewey from 2003 to 2006. The applicant submits that the statutory declaration is an exception to the hearsay rule, and relies on s. 45(3) of the Canada Evidence Act, R.S.C., 1985, c. C-5 for this position. The Ontario Evidence Act, R.S.O. 1990, c. E.23, also addresses statutory declarations. The court agrees with the respondent that neither the federal nor provincial statutes would render the content of the statutory declaration admissible for the truth of its content. In any event, especially as is the case here, where the evidence sought to be adduced is to impeach the credibility of the respondent, and the deponent is now deceased, fairness requires that the evidence not be admitted, in the absence of a consent by the parties.

40The respondent raises the admissibility of the Rental Application for 402-102 Trethewey Drive, dated August 15, 2003 (Exhibit 4), and the Record of Solemnization of Marriage, dated June 28, 2004 (Exhibit 5). The court rejects the respondent’s attempt to relitigate rulings already made by the court, which resulted in these two documents being made numbered exhibits. The respondent admitted on cross-examination that he and the applicant had applied for a marriage licence before they went to St. Lucia. The Rental Application, identified at trial, was signed by the parties.

41The applicant annexed, as an exhibit to her affidavit, a letter from Tony Castro Owner/Landlord, dated October 31, 2006, regarding her tenancy with that landlord. The letter indicates that the parties resided together at one of the properties between 2001 to 2003. The respondent objected to the document on the basis that the content was hearsay. The court agrees with the respondent; the document is hearsay. There is no consent by the parties as to the authenticity or content of the document. The court will give no weight to the document. Furthermore, for the same reasons herein, the letter from Pastor McKenzie, which the applicant sought to introduce at trial, is hearsay and the court will give no weight to the content.

VII. Evidence of the Witnesses

a) The applicant

42The applicant says that she came to Canada in 1992. She was a babysitter and started a cleaning business in 2007. When she met the respondent, she was cleaning houses and obtained clients through word of mouth.

43She met the respondent in 2000 and was aware that he had three children from another relationship. She and the respondent started to live together on September 11, 2000. They cohabited together for four years before they got married. She had been living on her own when she met the respondent. She met him as a driver of the TTC bus. On cross-examination, she testified that she was not aware that TTC was unionized. Before signing the marriage contract, she was not aware that the respondent had a pension with the TTC. Before she left for St. Lucia, they never had any discussion about his pension. The respondent was very secretive.

44It was always their intention to live in Ontario, establish themselves in Ontario, and raise their family there. The parties had been living in Canada before the wedding. They had obtained the marriage licence in Canada before going to St. Lucia. The applicant returned to St. Lucia to introduce the respondent to her mother.

45The respondent was the main/sole source of income for the family. The applicant was a newcomer to Canada, was a homemaker, and cleaned houses after the marriage. She was dependent on the respondent.

46The applicant testified that she brought the respondent to St. Lucia to meet her family. She and the respondent planned to get married in Canada. She was refused entry back into Ontario when they returned from St. Lucia. The respondent went back with her on the same plane. She was not involved in finding Mr. Monplaisir in St. Lucia.

47The parties never discussed entering a marriage contract. The applicant did not even know what a “pre-nup” was. She was not aware that they would be signing marriage a contract the day before the wedding. She did go with the respondent to the lawyer’s office before signing, but she did not participate in the meeting. She did not meet Mr. Monplaisir on that day. She does not know what took place in the respondent’s meeting with Mr. Monplaisir.

48On cross-examination, the applicant denied that the respondent had been living on the Rockhill Road property with his family. She denied having any knowledge that he was a part owner of the property. The applicant says the respondent lived with her for four years before they got married.

49On the day the applicant signed the document, the respondent collected her at her residence in Castries, St. Lucia and transported her to Mr. Monplaisir’s office. She met with Mr. Monplaisir for the first time on the day she signed the document. She had no knowledge of the respondent’s pension until after the marriage contract was signed. She did not receive a copy of the marriage contract. She discovered a copy of it in the matrimonial home in 2021.

50The applicant came back to Canada in October 2005, and her immigration application was already in process in Trinidad. The immigration lawyer in Canada encountered some legal difficulties and the applicant missed her interview in Trinidad. After she came back to Canada, she restarted the process. She returned in 2007 to do the interview.

51The respondent sponsored the applicant’s immigration to Canada. She obtained her residency status in April 2007.

b) The respondent

52The respondent says he immigrated from Jamaica in April 1988. When he met the applicant in October 2000, he was living at the Rockhill property with his mother and two brothers.

53The parties started dating in October 2000. They met when she got on the bus that he was operating. When they met, the applicant was in another relationship with a fellow name “Vic.” She was a house cleaner, supported herself, and had been in Canada for ten years. When he met the applicant, he was living at the Rockhill property, which he had 50% ownership of with his mother.

54His evidence is that the parties had never lived together until April 2007. At one point, the applicant was living in apartment at Trethewey, and she was living there up until 2004. When the respondent spoke to her about his vacation time, she said: “Let’s go to St. Lucia.” He had never been to St. Lucia before and did not know anyone in St. Lucia. When his vacation came up in 2004, the applicant proposed going to St. Lucia, and he agreed.

55Before going to St. Lucia, they had discussed marriage, but no wedding date had been set.

56He met her mother while he was there and stayed with the applicant’s mother. They were in St. Lucia for about two weeks. On their way back from St. Lucia, “they” held on to the applicant at the Toronto Pearson Airport and he realized then that there was problem with her immigration status. He says she had “lied to him about everything.” She had told him St. Lucians did not need a visa to come to Canada.

57He says that while they were engaged, the applicant was in St. Lucia, and he was in Canada. He says she organized the wedding ceremony and obtained all documents for the marriage, got the lawyer, and provided him with the information for the agreement. On cross-examination, the respondent indicated that the applicant had a plan. He says that “because she knew he loved her; her plan was that he would help her and not allow her to be deported by marrying her.” He agreed she never discussed it with him.

58He says the applicant took a copy of the marriage contract after it was signed at Mr. Monplaisir’s office. He says his wife registered the document or the lawyer.

59He says he had no discussions with her about whether she had a lawyer working for her with Immigration Canada. He denied having any discussions with her about whether she was going to apply for residency status.

60On cross-examination, he agreed he was aware that she could come and go but that she could only stay for a period. He conceded he understood that if she went out of the country, she would have to be out of the country for a period of months before she could come back. He admitted he was aware that she was having immigration problems. He admitted that he was aware that in 2003 and 2004, if she went to St. Lucia, she would have to stay in St. Lucia for a certain period of time.

61The respondent purchased the Guestville property after the applicant arrived in Canada in 2007.

62The parties separated on January 24, 2021. The applicant has remained in the Guestville property since the separation.

c) Mr. Monplaisir

63Mr. Monplaisir has been a lawyer in St. Lucia since 1967. He initially had a general practice before focusing on civil and matrimonial law. He had no prior dealings with either party before his involvement with the marriage contract.

64The respondent contacted one of Mr. Monplaisir’s clerks and was introduced to him by a clerk. He met the respondent on two occasions. At the first meeting, he received instructions from the respondent. He understood from his clerk that the applicant was in the office, but he did not see her on that occasion. The first time he met the applicant was when she signed the agreement.

65The respondent told him that he was getting married to a lady, but Mr. Monplaisir did not see her. The respondent told him that he understood that in St. Lucia, they could prepare documents to keep the parties separate in their business and their existence. He did not have any discussion with the respondent before he came to his office about what would be in the agreement. He had no discussion with the respondent regarding financial disclosure. He did not ask the respondent about his assets or his work. Mr. Monplaisir has never requested financial disclosure before drafting a marriage contract. That is not the practice in St. Lucia. He did not have any recollection of discussing the TTC pension with the respondent or his financial situation.

66On the second occasion, Mr. Monplaisir met with both parties. He read the document to the parties. He also gave it to them to read themselves. He identified his own signature on the signing page. Mr. Monplaisir says the applicant was aware of what she was signing.

67The parties signed the document. The meeting did not last long.

68He made notes when he met with the respondent. He no longer has a copy of any portion of this file. He did not give the parties the original contract; the original was sent to the Registry for registration.

69Mr. Monplaisir had the impression and assumed that the respondent wanted to live in St. Lucia. His impression was that they had property in St. Lucia. He says the document related to their business arrangements and was about separate property in St. Lucia. Mr. Monplaisir testified that the matrimonial aspect of their existence had to be maintained in accordance with the laws of St. Lucia and any other matrimonial law.

70He did not know they were going to move to Canada, nor did they disclose that information to him.

71He did not refer the applicant to seek independent legal advice.

72It was his impression that the respondent was in charge of trying to get the agreement prepared by Mr. Monplaisir and then signed. The respondent paid his invoice.

73Mr. Monplaisir’s evidence is that he did not give either party a copy of the signed contract. He says it was sent to the Registry for registration. He gave them a copy after the document was registered and stored by the notary. The original document is kept by the Registry and a copy is provided for the client. He should have a copy of the original signed document. He no longer has his file.

VIII. Credibility of Witnesses

74The facts giving rise to the claims in the Application arose almost two decades ago. It is therefore understandable that memories would fade with the passage of time for all three witnesses. This was evident in the testimony of all three witnesses.

75For the most part, the applicant was a credible witness. Her resistance to answering questions at times, or the lengthy explanations which sometimes preceded her answers do not undermine this fact. On the significant points, her evidence was corroborated by Mr. Monplasir and, at times, by the respondent’s own evidence or other admissible documentary evidence adduced at the trial.

76In general, the respondent was not a credible witness. On the controversial matters, such as who retained the lawyer, the number of meetings with the lawyer, and the instructions given, the respondent’s evidence was contradicted by Mr. Monplaisir. At times, his evidence at trial contradicted his own evidence in his affidavit. Like the applicant, he too resisted answering questions. However, his unscripted answers to questions not posed were delivered to clarify and expand on this evidence, and at times, to offer evidence that appeared inconsistent with his affidavit evidence before the court. The most cogent examples pertained to his amplification of his evidence on financial disclosure, how the marriage contract came to be, and which party retained the lawyer in St. Lucia. His memory of what conversations occurred at one point in time on these issues appeared, so it would seem, incredibly intact. In contrast, his memory on other significant points, which were less controversial, was poor – for example, what month he was in St. Lucia, when the applicant returned to Canada, and when they started living together, among other things. While his poor memory on some of the details for events which occurred almost 20 years ago is not surprising, the changing narrative and minute detail on controversial issues puts into doubt the veracity of the changing narratives.

77The respondent challenged all documents which includes information that would support the applicant’s version of events that they were living together. The Rental Application for 1002 Trethewey and the marriage license supports the applicant’s version of events. With respect to the dispute between the parties about whether the parties cohabited together before the marriage contract was signed, the court agrees with the respondent that it is not relevant to the issues which the court must determine at this focused trial.

78The parties applied for a marriage license on June 28, 2024. The marriage license, that is license number E247727, was issued by the Registrar General, and indicates the address for both parties as 102 Trethewey Drive. Neither party disputed that it was a government document. The respondent has not provided any explanation for why the address would be the same as in the rental application. The information is consistent with the applicant’s testimony that they had been cohabiting before they married. However, the court agrees with respondent that nothing turns on that fact in respect of the issues to be determined by the court.

79Mr. Monplaisir, the lawyer, was an independent witness. He was a credible witness, and his evidence, for the most part, corroborated the applicant’s evidence.

IX. Analysis

a) General principles on freedom to contract

80In Gallacher v. Friesen, 2014 ONCA 399, 371 D.L.R. (4th) 522, the Ontario Court of Appeal indicated that Part IV of the Family Law Act allows individuals to formalize their financial and familial relationships to resolve differences and avoid disputes. That court has noted in several cases that the legislation encourages parties to a marriage or a similar relationship to make their own arrangements regarding the treatment of property: see Bosch v. Bosch (1991), 1991 CanLII 7177 (ON CA), 6 O.R. (3d) 168 (Ont. C.A.), at p. 174; Gallacher, at para. 21.

81In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, the Supreme Court of Canada held that courts should respect private agreements reached between spouses. At para. 9, Bastarache J., speaking for the majority, acknowledged that the authority establishes this principle. He noted:

The authorities generally agree that courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship. This is particularly so where the agreement in question was negotiated with independent legal advice.

82Canada’s highest court has acknowledged that some weight should be given to marriage agreements: Hartshorne, at para. 40, citing Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303. There is no “hard and fast” rule with respect to the deference to be given to marriage agreements compared to separation agreements: Hartshorne, at para. 39.

83In some cases, less deference may be given to marriage agreements because they are anticipatory and may not consider the financial means, needs, or other circumstances of the parties at the time of marriage breakdown: Hartshorne, at para. 39.

84A court should be loathe to interfere with a pre‑existing agreement unless it is satisfied that the agreement does not comply substantially with the overall objectives of the Divorce Act: Hartshorne, at para. 46, citing the general principles articulated in Miglin.

85The parties agree that the analytical framework set out in Miglin, which involved a separation agreement and dealt with spousal support under a different statutory framework, was not applicable to the circumstances of this case. This court agrees, but notes that there are general principles articulated in Miglin which the Supreme Court of Canada has repeatedly indicated should govern domestic contracts in family law proceedings. That said, the Supreme Court of Canada has cautioned that the analytical structure provided in the Family Law Act should not be distorted by following Miglin. In Anderson v. Anderson, 2023 SCC 13, 86 R.F.L. (8th) 1, at para. 7, the Court indicated that Miglin had some “useful general principles…to guide courts in approaching domestic contracts.”

86Some of the general principles which the court has gleaned from the jurisprudence, said to be taken from Miglin, include the following:

i. The court should be loathe to interfere with a pre‑existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives” of the Act in question: Miglin, at para. 46; Hartshorne, at para. 42.

ii. Spousal support arrangements should not be viewed in a vacuum. The court must look at the agreement as a whole, bearing in mind that all aspects of the agreement are inextricably linked, and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin, at para. 84; Hartshorne, at para. 42.

iii. As a result of the uniqueness of this negotiating environment, bargains entered into between parties on marriage breakdown are not, and should not, be subject to the same rules applicable to commercial contracts: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 40.

iv. Parties have a duty to make full and honest disclosure of all relevant financial information. This is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances. Deliberate failure to make disclosure may render the agreement vulnerable to judicial intervention: Rick, at para. 47

v. Miglin represented a reformulation and tailoring of the common law test for unconscionability to reflect the uniqueness of matrimonial bargains.

vi. The commercial standard for unconscionability is not applicable to domestic contracts. As noted in Anderson, resorting to ideas articulated in Miglin, in its subsequent decision in Rick, the Supreme Court reformulated the common law doctrine of unconscionability “to reflect the uniqueness of matrimonial bargains”: Anderson, at para. 32; Rick, at para. 43. As noted in Miglin, at para. 82:

There may be persuasive evidence brought before the court that one party took advantage of the vulnerability of the other party in separation or divorce negotiations that would fall short of evidence of the power imbalance necessary to demonstrate unconscionability in a commercial context between, say, a consumer and a large financial institution.

87In this case, the parties have not addressed the issue of spousal support and have not addressed the issue of equalization of family property in the context of the objectives of the Family Law Act.

b) Does the law of Ontario apply to the marriage contract made in St. Lucia?

88A fundamental question raised by the fact that the marriage contract was executed in St. Lucia is whether this court has jurisdiction over the contract. Neither party called any expert evidence on the law of St. Lucia, though the applicant, in her originating process (the Application), alleged that the contract did not comply with the law of St. Lucia.

89The applicant submits that this court has jurisdiction with respect to the marriage contract. She says the respondent has not produced any expert evidence to uphold the foreign requirements of the marriage contract and therefore, the findings of the court must be based on the law of Ontario, Canada.

90The respondent submits that expert evidence on the law of St. Lucia is not required, as the court can exercise jurisdiction under s. 58(a) of the Family Law Act.

91Section 58(a) of the Family Law Act states that the manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that a contract where the proper law is from another jurisdiction is also valid and enforceable in Ontario if the contract was entered into in accordance with Ontario’s internal law. The relevant provision reads:

58 The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that,

(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law.

92In Jasen v. Karassik, 2009 ONCA 245, 95 O.R. (3d) 430, at para. 30, the Ontario Court of Appeal indicated that s. 58 of the Family Law Act is a choice of law provision for contracts made outside Ontario.

93At common law, the proper law of the contract is ascertained by determining the express or implied choice of law by the parties to the contract. This law will normally govern the contract and legal rights and obligations generated by the contract: Drew Brown Ltd. v. The “Orient Trader,” 1972 CanLII 194 (SCC), [1974] S.C.R. 1286, at pp. 1288, 1314, and 1318. In the absence of expressed intent of the parties, it must be inferred from the circumstances: Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, [2002] 2 S.C.R. 695, at para. 17; (Re) Pope & Talbot Ltd., 2009 BCSC 1552, 2 B.C.L.R. (5th) 132, at para. 33; Imperial Life Assurance Co. of Canada v. Colmenares, 1967 CanLII 7 (SCC), [1967] S.C.R. 443, at p. 448; and Jean-Gabriel Castel, Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997) at p. 593.

94This marriage contract is silent as to the proper law of the contract. In Vien Estate v. Vien Estate, (Lecler c v. St. Louis) (1988), 1988 CanLII 4690 (ON CA), 64 O.R. (2d) 230 (Ont. C.A.), Lacourciere J.A. noted:

In this context, I understand the proper law to mean the system of law with which the contract is most closely related, regardless of the parties’ intention.

95Mr. Monplaisir testified that it was a proper contract in line with their laws and customs in St. Lucia. This court is unable to determine validity of the marriage contract under the law of St. Lucia. Since the contract does not indicate what law applies to the contract, the question is whether the court can consider whether the contract was enforceable in St. Lucia in the absence of expert evidence.

96Mr. Monplaisir was not qualified as an expert to provide opinion evidence to the court on the law of St. Lucia. In the result, the court must resort to s. 58(a) of the FLA and take jurisdiction of the marriage contract, regardless of whether there is evidence on the law of St. Lucia or expert testimony. For the reasons above, it is not clear to the court that the marriage contract is governed by the laws of St. Lucia. Although the applicant alleged that the marriage contract was not in accordance with St. Lucia contract law, there is no expert evidence before the court about contract law in that jurisdiction, nor any opinion on whether the agreement is valid and enforceable under St. Lucia contract law. Neither party has addressed whether the court has jurisdiction over the contract if the marriage contract is not governed by the law of St. Lucia and found to be invalid or unenforceable.

97In Jasen, the Court of Appeal noted, at para. 45:

The second interpretation of s. 58(a), which is arguably more consistent with the language and purpose of s. 58, is that it provides an alternative ground for upholding a domestic contract that is governed by foreign law. On this view, resort to s. 58(a) is only necessary if the contract is invalid or unenforceable under the foreign law. In that situation, a domestic contract is nonetheless valid and enforceable in Ontario if it is entered into in accordance with Ontario’s internal law: see Mittler v. Mittler, 1988 CanLII 8645 (ON SC), [1988] O.J. No. 1741, 17 R.F.L. (3d) 113 (H.C.J.), at pp. 129-31 R.F.L.; Ghavamshirazi v. Amirsadeghi, [2007] O.J. No. 5359, 2007 CanLII 62844 (S.C.J.), at paras. 11-13; James G. McLeod, The Conflict of Laws (Calgary: Carswell Legal Publications, 1983), at p. 386.

98Leaving aside the question of whether the court is first required to determine the validity or enforceability of a marriage contract under the foreign law, for the reasons stated above, it is not necessary for this court to first determine that issue in order to determine if the marriage contract is valid and enforceable in Ontario.

99The applicant’s unchallenged evidence is that prior to the execution of the marriage contract and wedding, the parties intended to live in Ontario, Canada. She says they intended to raise their family in Ontario. The respondent’s own evidence is that he had no connection to St. Lucia. On the evidence, at the time the parties signed the marriage contract, their intention was to live in Ontario where they had been living and had jobs.

100The marriage contract was closely related to Ontario, where the parties intended to live, work, and raise a family. In the result, as the parties failed to specify the proper law of the marriage contract, and accounting for all the circumstances, the proper law of the contract is Ontario. That is to say, “Ontario’s internal law,” referred to in s. 58(a), as identified in Jasen at para. 48, would apply. The Court of Appeal commented:

In addition, the reference to “Ontario's internal law” in s. 58(a) may well include matters going to the essential validity of the contract, such as consent and capacity. It may also be that it includes various provisions of the FLA governing the validity and enforceability of certain terms in a domestic contract: see, e.g., s. 52(2) (provisions limiting spouse's rights to matrimonial home are unenforceable).

c) Is the agreement a domestic contract under the Family Law Act?

101For the reasons below, the court finds that the agreement between the parties would constitutes a “domestic contract” within the meaning of s. 51 of the Family Law Act, and a “marriage contract” within the meaning of s. 52 of the Act.

102Part IV of the Family Law Act deals with domestic contracts. A marriage contract is a “domestic contract” under the Act. Under s. 51 of the Act, the following definition is provided:

“domestic contract” means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or a family law arbitration agreement.

103Section 52 of the Family Law Act governs “marriage contract” provisions as follows:

52 (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

(d) any other matter in the settlement of their affairs.

Rights re matrimonial home excepted

(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.

104The matters dealt with in this marriage contract related to ownership of property, division of property, and child support.

d) Does the contract meet the statutory requirement of s. 55(1) of the Act?

105The threshold question is whether the marriage contract meets the statutory requirements under the Family Law Act. The Ontario Court of Appeal has stated that contracts made outside of Ontario must be “entered into in accordance with Ontario's internal law” to be enforceable. The agreement must at least meet the formal requirements set out in s. 55(1) of the Family Law Act: Jasen, at para. 47.

106I am satisfied, on a balance of probabilities, that the marriage contract complied with the formal requirements of s. 55(1) of the Family Law Act, for the reasons below.

107Under s. 55(1) of the Family Law Act, a domestic contract is unenforceable unless it is in writing, signed by the parties, and witnessed. The provision reads:

A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties, and witnessed.

108The signing page of the marriage contract at issue is not before the court. None of the witnesses who testified have a copy of this page. The respondent says it meets the validity test because it is in writing, it is witnessed, and it is signed.

109On cross-examination, the applicant said that she does not know what she signed. She says she was not given a copy of the document. The respondent says that the applicant took the original copy of the marriage contract with her after their last meeting, which is contradicted by the evidence of the lawyer himself. Mr. Monplaisir testified the original was sent to be registered; he then forwarded a copy to the parties.

110The applicant was asked on cross-examination if she was resiling from her evidence in her affidavit. Her evidence in her affidavit indicates that the marriage contract appended to the affidavit is the document that she signed. At paragraph 13 of her affidavit, the applicant deposed as follows:

Ira and I executed a marriage contract in Castries, Saint Lucia on July 20, 2004.

Attached hereto as Exhibit "C" is a copy of said Marriage Contract.

111Mr. Monplaisir testified that he read the document to the parties, he had the parties themselves read it, and he witnessed their signatures. He also explained the practice in St. Lucia whereby the original signed agreement is sent to be registered with the Registrar, and he would have sent a copy of the original to the parties. It was not clear from his evidence whether he sent a copy to both parties. The applicant denies that she received a copy of the contract. The respondent says it was the applicant that took the marriage contract after the signing meeting with Mr. Monplaisir. Mr. Monplaisir says he did not give the client a copy but that his office sent the original document to be registered, and he later sent a stamped copy to the client. It was not clear from his evidence whether Mr. Monplaisir sent the marriage contract to the client, which would have been to the respondent, or to both parties. The court infers from the balance of his evidence, that since the respondent was the person who gave him instructions and paid his account, the document would have been sent to the respondent.

112The marriage contract before the court was stamped by the Registrar of the “Office of Deeds & Mortgages” on September 21, 2004. From Mr. Monplasir’s evidence, this ought to be a copy of the original, which presumably would include the signing page. There is no signing page. On cross-examination, the applicant said she does not know what she signed. The applicant did not acknowledge that the document before the court was the document that she signed, although her affidavit refers to the same document as the marriage contract which she signed. She did admit to signing a contract in St. Lucia. As stated above, Mr. Monplaisir says he witnessed their signatures.

113Accordingly, the court finds that the marriage contract met the formal statutory requirements: it is in writing; it was signed by the parties (by their own admissions); and the signatures were witnessed by Mr. Monplasir, a fact implicitly acknowledged by both parties in their testimony, but in any event, not disputed by either party. Mr. Monplaisir identified his signature on the document. The applicant refers to that document as being signed, even though the signature page is not before the court. In her affidavit, the applicant admits to signing the marriage contract, and she annexed, as an Exhibit to her affidavit, the marriage contract before the court without the signature page.

114The jurisprudence establishes that the strict requirements within s. 55(1) may be relaxed if the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable, and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract: El Rassi-Wight v. Arnold, 2024 ONCA 2, 170 O.R. (3d) 687, at para. 17 ; Gallacher, at para. 27 ; Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (Ont. C.A.). Even where domestic contracts meet the formal statutory requirements set out in s. 55(1), the court still has discretion as to whether the contract should be enforced if the party seeking to set it aside comes within s. 56(4) of the Family Law Act.

115For reasons below, had the court not determined that the marriage contract met the formal statutory requirements under s. 55(1) of the Act, there are circumstances that would vitiate the marriage contract. The law is settled that the purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed: see Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721, at para. 78, citing Angela Swan & Jakub Adamski, Canadian Contract Law, 3rd ed. (Markham, Ont.: LexisNexis, 2012), at para. 5.50. The Ontario Court of Appeal has also indicated that the purpose of s. 55(1) is to ensure a measure of formality in the execution of a domestic contract, to provide proof that it was in fact signed by the parties, and to ensure that it is free from undue influence, coercion, or duress: Gallacher, at para. 24. There is no evidence that there was any discussion, let alone any negotiations between the parties, with respect to the terms of the contract, and there are factors which would otherwise vitiate the contract. Those same factors support setting aside the agreement under s. 56(4) of the Family Law Act, and they are discussed below.

A. Are there grounds to set aside the marriage contract?

i. Setting aside a domestic contract

116The parties dispute whether there had been any financial disclosure before the marriage contract was signed.

117Under s. 56(4), on application, a court may set aside a domestic contract or a provision in the contract if a party did not disclose significant assets, debts, or other liabilities when the domestic contract was made, if a party did not understand the nature or consequences of the contract, or otherwise in accordance with the law of contract: see Virc, at para. 30. The provision reads:

Setting aside domestic contract

(4) A court may, on application, 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.

ii. Onus

118The burden is on the party seeking to avoid the effect of the agreement to show that there are grounds for setting it aside: Hartshorne, at para. 9. The Ontario Court of Appeal has articulated a two-pronged framework which must guide the court. First, a party must persuade the court that one or more of the circumstances enumerated within s. 56(4) have been engaged. Second, if so, the court must determine whether it is appropriate to exercise discretion in favour of setting aside the agreement: Virc, at paras. 31, 52; Moses Estate v. Metzer, 2017 ONCA 767, 10 R.F.L. (8th) 271, at para. 9; LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 51; and Dougherty.

iii. Retainer of lawyer

119The parties dispute who retained Mr. Monplaisir. The lawyer’s retainer is relevant to the court’s consideration of whether the agreement should stand.

120The applicant says the respondent retained the lawyer without her involvement. She says that the day before the wedding, she was not aware that the parties would be executing a marriage contract. She says they never discussed the need for a marriage contract, nor was it made an issue prior to the wedding day. The respondent collected her from home and took her to Mr. Monplaisir’s office. She says she signed the marriage contract on the same day. The applicant says she was not sure when it was prepared or what terms the respondent discussed with Mr. Monplaisir. She says she was not made aware of any costs and did not receive a copy of the domestic contract or reporting letter.

121According to the respondent, it was the applicant who was living in St. Lucia and found the lawyer, Mr. Monplaisir. He says that it was the applicant who alone met with Mr. Monplaisir and told him what to put in the contract. The respondent says that he had no contact with him prior to their meetings. He testified repeatedly that it as the applicant who “got the lawyer and had everything prepared.” At one point, as noted below, he testified that after the document was ready the applicant called him to let him know the document was ready to be signed. However, Mr. Monplaisir corroborates the applicant’s evidence that it was the respondent who contacted his office, and with whom he dealt in drafting the agreement.

122The respondent’s evidence is that after he arrived in St. Lucia, he and the applicant met with Mr. Monplaisir “at least twice to discuss our goals together in the marriage contract.” The respondent says that Mr. Monplaisir used those meetings to draft the agreement. The respondent says they had a third meeting on July 20, 2004, to sign the marriage contract, and that Mr. Monplaisir witnessed and notarized their signatures.

123The applicant says the respondent provided all instructions to Mr. Monplaisir regarding the preparation of the marriage contract terms, without any involvement or input from her. Mr. Monplasir confirms the applicant’s evidence that there were two attendances at his office, not three, as the respondent claims. Mr. Monplaisir was adamant that it was the respondent who contacted his office. He says that it was the respondent from whom he received instructions, and the respondent was in charge. Mr. Monplaisir testified that it was the respondent who paid his account. The respondent admits that he paid, in full, the costs of the marriage contract, but says the applicant was aware of the costs. On that score, Mr. Monplaisir was clear that there was no financial disclosure.

124Mr. Monplaisir’s testimony also corroborates the applicant’s evidence about the number of times she met him and when she met him, and that she attended with the respondent the first time but did not participate in the meeting.

125Mr. Monplaisir corroborates the applicant’s evidence. Mr. Monplaisir testified that he first met with the respondent who gave him instructions. He corroborates the applicant’s evidence that at the initial meeting, he only met with the respondent. His evidence was clear that while his clerk had made him aware that she was on the premises, he did not meet with her. He was clear that he only met her once, and that was at the time of signing. The next meeting was with both parties to sign the contract. From Mr. Monplaisir’s evidence, the applicant was “unusually quiet” at that meeting. The court therefore rejects the respondent’s evidence that he and the applicant met with Mr. Monplaisir twice, together, to discuss the marriage contract.

126The court prefers the applicant’s corroborated evidence over that of the respondent. The court finds that it was the respondent who retained the lawyer, Mr. Monplaisir, in St. Lucia, and the respondent alone provided instructions to him, including the terms of the marriage contract. It was the respondent who paid the lawyer’s fees. Mr. Monplaisir acted only for the respondent.

B. Has one or more of the s. 56(4) circumstances been engaged?

127For the reason below, the court finds that the applicant has adduced evidence to prove, on a balance of probabilities, that the provisions in all three subparagraphs have been engaged.

i. Failure to disclosure of significant assets and liabilities

128The parties agree that the marriage contract does not refer to any releases for financial disclosure from either party.

129The applicant says that they never discussed the need for a marriage contract, nor was it made an issue prior to the wedding day. She denies that she was aware that the respondent had a pension or that he owned the Rockhill property with his mother.

130The respondent submits that the assets themselves were known, the applicant signed the agreement to get married, and it can be “extrapolated that she would have signed, even if the value was disclosed or not.” The respondent says there was no misrepresentation on a value of any of the assets. In his Closing Submissions, the respondent says that the applicant “knew that there was not full financial disclosure at the time of signing and signed anyways.”

131The respondent asserts that the applicant “cannot now rely on that shortcoming.” The respondent provides no specific date on when the applicant would have known about him co-owning the Guestville house with his mother. He claimed that in January 2001, after they were intimate, the applicant asked him who owned the house, and he told her, that she asked how much he made, and he told her, and that when asked about his pension at TTC, he told her that he would get an “extra” pension when he retired from the TTC. The testimony was offered out of turn with the question asked. The information was offered up to a question not asked and is not plausible. The applicant still had a boyfriend at the time, according to him, and he claimed she broke up with the boyfriend a week later.

132At trial, the respondent testified that he told the applicant he owned the house with his mother almost three and a half years before the agreement. He contends she was in a relationship with another man at the time. His story shifted as he sought to explain how the marriage contract came about. He intimated that he disclosed his pension and the Rockhill property to the applicant in exchange for her agreeing to sign the marriage contract, and for him assisting her with her immigration dilemma. The court rejects the last two explanations, which do not bear truth for reasons previously stated. Moreover, s. 56(4) requires financial disclosure at the time the domestic contract is made.

133For the reasons below, the court finds this is not a case of some disclosure, but rather one of no disclosure. The applicant has established, on a balance of probabilities, that the respondent had not disclosed significant assets and liabilities at the time the marriage contract was signed. The applicant has also met the onus of showing that the respondent did not provide any information to her to value his assets and liabilities at the time the marriage contract was signed. The following are the reasons for arriving at these conclusions.

134The Act requires that disclosure of significant assets, debts, or liabilities, “existing when the domestic contract was made.” [Emphasis added.] Even if the conversation between the parties took place in 2001, which the court rejects, that disclosure would not satisfy the disclosure requirement. The respondent also testified that when the applicant was being deported, he told her about his TTC pension and ownership of the property with his mother.

135For a contract to exist, there must be a meeting of minds, commonly referred to as consensus ad idem. The test as to whether there has been a meeting of the minds is an objective one: would an objective, reasonable bystander conclude that, in all the circumstances, the parties intended to contract: UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., 2009 ONCA 328, 95 O.R. (3d) 93, at para. 47.

136In Faiello v. Faiello, 2019 ONCA 710, 30 R.F.L. (8th) 1, Hoy A.C.J.O, speaking for the court noted, at para. 17, that s. 56(4) of the Family Law Act “deals with intrinsic flaws in the formation of a contract that nullify the apparent consent between the parties and invalidate the agreement, allowing a court to set aside the contract.”

137The applicant says that there was no financial disclosure before the marriage contract was executed. She had no understanding of the respondent’s income, assets, liabilities or debts, the value of his properties, or pension with TTC. She says they never discussed their financial affairs. She says she did not understand the marriage contract would prohibit her from seeking an equalization and/or spousal support. Further, the applicant said she was not offered the opportunity to review the marriage contract to understand her rights in any release of same.

138The respondent deposed in his affidavit, “We discussed a marriage contract as I had assets that I wanted to make sure were left for my children.” The respondent does not indicate when the discussion took place. Elsewhere in his affidavit, the respondent stated:

Prisca had full knowledge that I owned the Rockhill property with my mother, that I worked for the Toronto Transit Commission and that I had a pension with my employment.

139Absent from the respondent’s affidavit is any date upon which she would have had “full knowledge” of this information.

140While the authority establishes that, in general, the court will show deference to a pre-existing agreement made by spouses or individuals in similar positions, Canada’s highest court has made it clear that the failure to make “full and honest disclosure of all relevant information” undermines the integrity of the results of negotiations “in these uniquely vulnerable circumstances: Rick, at para. 47; Leskun v. LeskunIn, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34. This makes the domestic contract vulnerable to court intervention.

141In Rick, Abella J. underlined the importance of the integrity of the bargaining process. Parties can only make informed decisions and consider what concessions or offers to make if they possess the requisite information, and a lack of information impairs a party’s ability to do so: at para. 46.

142As indicated above, in Rick, the Supreme Court reiterated the principle articulated in Miglin on the parties’ duties to make “full” and “honest disclosure.” In negotiating a domestic contract, each party owes a duty of utmost good faith to the other: Couzens v. Couzens (1981), 1981 CanLII 1880 (ON CA), 34 O.R. (2d) 87 (Ont. C.A.); Montreuil v. Montreuil, [1999] O.J. No. 4450 (Ont. S.C.J.), at para. 114. The Court of Appeal quoted the trial judge’s explanation for the importance of ensuring that parties have a full understanding of their rights before entering domestic contracts, which the court noted was reinforced by another decision. At para. 52 of LeVan, the court quoted the following from Mesbur J.:

Marriage contracts are a device by which parties can opt out of most or part of the Family Law Act, its property provisions, its support provisions, or both. Fundamental to a choice to opt out of the legislative scheme is a clear understanding of what one's rights and obligations might be if there were no marriage contract. It is in this context that financial disclosure is critical. [Emphasis added.]

143As noted above, the applicant says that the parties never discussed their financial affairs. She says that neither of them provided financial disclosure to each other or exchanged financial disclosure in respect of the respondent’s income, assets, or liabilities/debts, and that she had no knowledge of the value of his properties or pension with the TTC. She says that the respondent was aware of her limited income from babysitting and housekeeping. Although the pension is referred to in the marriage contract, Mr. Monplaisir did not remember the pension being discussed. On the whole, the applicant’s evidence regarding financial disclosure was corroborated by parts of the testimony of Mr. Monplaisir.

144The respondent’s evidence that he made financial disclosure after the applicant was deported from Canada, which is what he understood the refusal of entry into Canada to be, does not seem plausible. He says that after this occurred, he realized she had been “lying” to him all along. During his testimony, as he explained the reason for the marriage contract, the respondent made several negative comments about the applicant’s motives and honesty. He said he realized it was her “plan all along.” He was of the view that the applicant had orchestrated the entire thing to get him to marry her and to sponsor her. It is difficult to reconcile his evidence that he would have been straightforward and disclosed his assets given his admitted suspicions of being duped by her. He thought it was a “scam” and thought she was a “scammer.” He made it clear that he wanted to protect his assets.

145The court accepts the applicant’s evidence, which is more credible than the respondent’s evidence. As stated, the applicant’s evidence that she had no input is corroborated in parts by Mr. Monplaisir, who prepared the marriage contract, received instructions only from the respondent, never met with the applicant before the agreement was signed, and only reviewed the marriage contract with the applicant at the short meeting. Mr. Monplaisir testified that, in accordance with the practice in St. Lucia, there was no financial disclosure made by the respondent.

146In Rick, the Supreme Court of Canada made it clear that “contractual autonomy…depends on the integrity of the bargaining process.” The Court underlined that “[d]ecisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse's ability to do so”: at para. 46.

147Mr. Monplaisir’s evidence is that he did not ask the respondent about his assets and his work.

(a) Disclosure of Income from TTC

148The applicant has discharged the onus of showing that the respondent failed to disclose the existence and value of significant assets, in breach of s. 56(4)(a) of the Family Law Act.

149This is not a case where there has been some disclosure by the respondent or inaccurate disclosure; rather, this is a case of no disclosure. An individual cannot be faulted for the failure of the other party to fulfil their obligation to make proper financial disclosure: Tadayon v. Mohtashami, 2015 ONCA 777, 341 O.A.C. 153, at para. 25.

150The respondent testified that the applicant was aware that he was employed with the TTC, and the applicant admits she was aware of the nature of the respondent’s employment. While the respondent maintains that the applicant was aware that he was employed at the TTC, the applicant’s evidence that she had no disclosure of his income is uncontested. He has not indicated at any stage that he disclosed the income he was making from his employment prior to or when the marriage contract was signed. The Court of Appeal has indicated that the right to an income stream is an “asset,” within the meaning of s. 56(4)(a) of the Family Law Act and must be disclosed: see Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561 (Ont. C.A.), at para. 77; Tadayon.

151The court finds that in failing to disclose his income to the applicant leading up to and at the time that the marriage contract was signed, the respondent failed to disclose a significant asset.

(b) Disclosure of Rockhill property

152The respondent’s sworn affidavit evidence is that the applicant was aware of the Rockhill property because it was referred to as his residence in the marriage contract. The applicant argues that the marriage contract makes no reference to the house which he co-owned with his mother. The respondent conceded during cross-examination that he did not tell the applicant the value of the Rockhill property. There is also documentary evidence, as mentioned above, to corroborate the applicant’s testimony that the parties had cohabited together before getting married. On the evidence, the court finds that they had been cohabiting together for at least three years before they were married.

153The court rejects the respondent’s argument that the applicant should have made such a connection. Moreover, from the respondent’s own evidence, his mother and his two brothers were all living at the house. The court also rejects the respondent’s evidence at trial, in which he attempted to tailor his affidavit evidence, which is his evidence-i- chief, as to what the applicant knew about the Rockhill property and when she knew it.

154In any event, there was no disclosure of the value of the Rockhill property leading up to or at the time the marriage contract was signed. The respondent also asserts that the marriage contract did not hinge on the value of his assets in the same way that separation agreements solely rely on disclosure of the values of assets and debts to meet the goal of equalization in the legislation. The respondent cites no authority for this proposition. As indicated above, the Supreme Court has commented that there is no “hard and fast” rule regarding the deference to be afforded to marriage agreements as compared to separation agreements: Hartshorne, at para. 39.

155The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets as at the date of the contract, not simply the existence of a significant asset as at the date of the contract: see Quinn v. Epstein Cole LLP (2007), 2007 CanLII 45714 (ON SC), 87 O.R. (3d) 184 (Ont. S.C.J.), at para. 47; Giffin v. Giffin, 2018 ONSC 4104, 12 R.F.L. (8th) 360, at para. 42. In this case, the respondent has provided conflicting evidence as to whether he disclosed to the applicant, either before the marriage contract or at the time of agreement, that he co-owned the Rockhill property with his mother.

156On the evidence, the court finds that the respondent had not disclosed that he co-owned the Rockhill property with his mother at the time the parties entered into the marriage contract. Moreover, on the respondent’s evidence and in his closing statement, he acknowledges that he had not provided valuations to the applicant. This is contrary to the Court of Appeal’s direction. In Virc, at para. 59, the court indicated that inherent in the duty to disclose is the duty of the titled spouse to fairly value the asset.

(c) Disclosure of TTC Pension

157The marriage contract appears to have been hastily prepared. The document refers to “my pension.” The applicant says she did not know about the existence of the pension before she signed the marriage contract. She has denied that she received any valuation of the pension.

158In his testimony, the respondent maintained that he told her about his pension when she was being refused entry to Canada, and he agreed to marry her to help her. The respondent testified that he did not know how much his pension was worth until recently. In his closing submission, the respondent appears to minimize the importance of disclosure of the value of his assets. On the evidence, he did not provide a valuation of his pension before the marriage contract was signed. As noted, lack of financial disclosure includes not simply noting “the existence of a significant asset” but also the “true value,” and if a party fails to disclose these specifics, then there are grounds to set the agreement aside per 56(4)(a): Giffin; Rick, at paras. 46-47; and Virc, at para. 28-31.

159The court finds that the respondent failed to disclose the existence and value of a significant asset – the pension – to the applicant before the agreement was signed, and to provide meaningful information to her so that she could make an informed decision in considering her options.

(d) Disclosure of debts/liabilities

160The applicant’s evidence that the respondent did not disclose his debts or liabilities is uncontested. On cross-examination, the respondent admitted he had not told the applicant about the mortgage on the Rockhill property.

161There is no evidence before the court as to whether there was a mortgage on the house which he co-owned with his mother.

162For the reasons above, the court finds that the respondent failed to disclose significant assets, valuation of his assets and liabilities. At the time of the marriage contract, the respondent co-owned real estate with his mother. There is no evidence of the valuation of any assets which the respondent admitted to owning at the time the agreement was made, nor any evidence of what liabilities he had at the time they signed marriage contract.

163In Rick, the Supreme Court noted, at para. 48, that “an agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties.” The Court went on to state that an agreement that is based on misinformation cannot be said to be a true bargain.

164On the evidence before the court, there was no disclosure, no negotiation, and no consensus ad idem with respect to these assets. There was significant information asymmetry. There could be no informed consent by the applicant. In short, there was no true bargain.

ii. Lack of understanding

165Under s. 56(4)(b) of the Family Law Act, a court may set aside a domestic contract when “a party did not understand the nature or consequences of the domestic contract.” The jurisprudence establishes that at common law, the failure of a party to understand the nature of the contract would also be a basis for setting aside the contract: Dougherty, at para 26.

166The applicant argues that she did not understand the consequences of the terms of the marriage contract, and she points to her education and occupational experience to explain this lack of understanding. She says that she did not have the advice of any professional to assist her.

167The respondent says that Mr. Monplaisir jointly advised them of the contents of the agreement. This was confirmed by Mr. Monplaisir, who testified that he read the document to the parties. The applicant’s evidence is that she was directed to the page to sign. The court finds it more plausible, on the evidence, that Mr. Monplaisir reviewed the contents of the agreement with both parties. This appeared to be his practice.

168On the evidence before the court, it appears that all parties involved with the marriage contract, including Mr. Monplaisir, the lawyer who drafted it, had different views about the purpose of the agreement, what property it would apply to, and what the proper law of the contract would be.

169At trial, the respondent indicated that when he read Mr. Monplaisir’s handwriting, he wanted an explanation on what “community of property” meant. He says that Mr. Monplaisir told him that the phrase meant that whatever property he had would remain his, and whatever property she had would remain hers, anywhere in the world. He was asked if Mr. Monplaisir was wrong when he testified that “community of property” was discussed with respect to the law of St. Lucia. The respondent stated: “How he deals with his law and stuff, I don’t know. What he said to me is what I am telling you. He says to me that whatever property I have stays mine, whatever property she has stays hers anywhere in the world. That’s what he said to me in 2004.”

170At the trial, the respondent explained how his pension worked with the TTC: if he were to die, the applicant would get his pension, but if they divorced, he wanted the pension to stay with him. There is absolutely no evidence before the court from the respondent that he disclosed that information to the applicant before she signed the marriage contract.

171There is overwhelming evidence which supports the applicant’s position. Even Mr. Monplaisir, who drafted the agreement, was under an impression that the parties intended to live in St. Lucia, and that the agreement related to property in St. Lucia. His evidence was that the respondent provided him with the basis for the agreement and what the respondent understood the law to be in St. Lucia. Since the conversation was not put to the respondent in cross- examination, the court will give little weight to this aspect of Mr. Monplaisir’s evidence to impeach the credibility of the respondent, or to presume that the content of the conversation is true.

172However, Mr. Monplaisir’s evidence below suggests that even the lawyer did not understand why the parties had signed the document in the first place. The following exchange took place:

Q. Did you have any discussion with him about the assets themselves? That is financial disclosure from him?

A. No. That document is for, to keep each party separate from their business arrangement. The matrimonial aspect of their existence with his wife has to be maintained in accordance with the law of St. Lucia and in fact any other law associated with matrimonial things. He has to keep his wife. He has to do, all that is involved. The separateness is separation from acquiring property in St. Lucia.

173Mr. Monplaisir denied that he had any knowledge of Ontario family law. From his impression, his assumption was that the respondent wanted the agreement to live in St. Lucia. He did not know that they intended to live in Canada, nor did the respondent disclose that information.

174Moreover, it is clear there was an asymmetry of education and work experience between the parties. The applicant had limited education and had worked as a babysitter and house cleaner before the marriage. The respondent had a Civil Engineer Diploma and had worked at several companies.

175The applicant’s unchallenged evidence is that she did not know what a “pre-nup” was. She argues that she was not afforded the opportunity to review the marriage contract to understand her rights and any releases. She says that even if she had been given an opportunity to review it, she would not have understood it on her own. She says that she did not understand that this marriage contract would prevent her from seeking any claims for equalization and/or spousal support as a result of this marriage. Before the court, neither party addressed whether the marriage contract would preclude the applicant for making a claim for equalization of the net family property.

176On cross-examination, the applicant stated that she met with Mr. Monplaisir only once, the day of signing the agreement. She says she only met him for five minutes at his office. She says the first time the respondent went to meet with his lawyer, she stayed outside. She says she has no idea what they spoke about. The second time she went to the lawyer’s office was the day she signed the agreement. She says the respondent told her if she did not sign the document, there would be no marriage. She says there was no time to speak to another lawyer.

177The applicant says this was a “kitchen table” agreement. The respondent rejects this argument. The term suggests that the agreement is not formally agreed to. The respondent distinguishes the case relied upon by the applicant, Sagl v. Sagl (1997), 1997 CanLII 12248 (ON SC), 31 R.F.L. (4th) 405 (Ont. C.J – Gen. Div.), on the basis that, in that case, the husband witnessed the wife’s signature, the son witnessed the husband’s signature, and there was no involvement of counsel of any sort and the husband was not yet divorced from his former spouse.

178The concept of what constitutes a “kitchen table” agreement may not be limited to a “homemade agreement,” to borrow the term used by Mackinnon J. in Zheng v. Jiang, 2012 ONSC 6043, at para. 35. The hallmark of “kitchen table” agreement appears to be a that the parties “are not properly informed as to the facts and law surrounding their circumstances,” Zheng v. Jiang, at para. 35. In the case before the court, while the agreement is not “homemade,” the applicant was not “properly informed” when she signed the agreement. In fact, there was no negotiation between the parties and there was no disclosure, as addressed above. The marriage contract was signed in the absence of the lawyer, who prepared the agreement, not having an understanding of the intention of the parties and where they intended to live and, under the circumstances in which the agreement was signed, it is evident that the applicant did not understand the consequences of signing the agreement.

179The Ontario Court of Appeal has underlined that “the purpose of the formal requirements in s. 55(1) of the FLA is not just to “provide proof that [a document] was in fact signed by the parties,” but also to “ensure a measure of formality in the execution of a domestic contract,” and to “avoid ‘kitchen table’ agreements”: see, ” El Rassi-Wight, at para. 14; Gallacher, at para. 21. As Pepall J.A. explained in Virc, at para. 78:

The purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed. [Internal citation omitted.]

180As noted, the marriage contract appeared to have been drafted in haste. It was signed on the eve of the wedding. The respondent says that the marriage contract uses “clear language.” The court disagrees. At the trial, counsel for the respondent asked Mr. Monplaisir to explain various legal terminology in the contract. The agreement includes legal terminology particular to St. Lucia. The applicant had a very limited education. There is absolutely no evidence that Mr. Monplaisir explained any of the terminology to the parties at the signing meeting; on his own unchallenged evidence, Mr. Monplaisir testified that the meeting was a “[n]ot long” meeting.

181There is ample evidence for the court to conclude that the marriage contract is a “kitchen table” agreement. The applicant was not armed with fundamental knowledge, namely financial disclosure, to ensure that that she was “deliberate” in reaching an agreement; in the absence of financial disclosure, the court cannot find that she “understood” her rights, or the obligations imposed. Even if she had an opportunity to hear and know what was in the document, the court accepts that she would not have understood the consequences of signing the agreement, given her educational background. The legal terminology is technical, and the applicant had a grade six education and had possibly completed only some high school.

182Whether she read the marriage contract or not, there would not have been time at that short meeting to appreciate the consequences of what she would be giving up upon signing. On cross-examination, the applicant stated that she did not read the document and that she only signed “a document that was opened.” She says she did not see all the pages on the day of signing. Her evidence is that “the page that I signed was opened, and I just signed, and then I was out.” Mr. Monplaisir testified that he read the document to the parties, and they also read the document themselves. Thus, the applicant’s testimony that her meeting with Mr. Monplaisir and the respondent to sign the marriage contract was only five minutes, is not plausible.

183However, the court accepts that it was a short meeting. As noted, when asked how long the meeting was, Mr. Monplaisir responded that it was “not long.” What is evident is that the applicant may have been operating under a great deal of stress. The meeting occurred almost 20 years ago, and not surprisingly, memories fade. On the key points, Mr. Monplaisir’s testimony corroborates the applicant’s evidence that she was not involved in the drafting of the agreement. On the evidence, the court accepts that the extent of the applicant’s involvement with the marriage contract before the wedding day was to read the document over after Mr. Monplaisir had read it to the parties (according to his evidence) and to sign the document (according to her evidence and Mr. Monplaisir’s evidence).

184Mr. Monplaisir’s evidence about the applicant’s demeanour is also telling. He described her to be “very quiet” and “unusually quiet.” While he stated, in a rather blasé fashion, that she understood what she was signing, he was not asked during his testimony, nor did he indicate then, that the legal terms were explained to her. Beyond that, Mr. Monplaisir has no knowledge of the statutory family law regime in Ontario. He provided no legal advice to the applicant.

185The applicant has satisfied the court that she did not understand her legal rights and the consequences which flowed from entering the agreement. She had a grade six education, and though it is not clear from the evidence before the court when she went back to school to attempt to complete high school, her evidence is unchallenged that she did not know what a “pre-nup” was. Only the respondent had a lawyer. Mr. Monplaisir only read the document to the parties; he did not explain it to them.

186At trial, Mr. Monplaisir himself had a different understanding of why the parties had signed the contract. He did not know that they were intending to live in Canada. He was under the impression that the contract related to property in St. Lucia. The applicant had no access to any professional, legal, or other advice. There is no evidence before the court of the applicant receiving any information or advice on legal entitlements if the marriage were to break down. In addition to circumstances under which the marriage contract came about, as the court found above, there was a lack of financial disclosure by the respondent of significant assets and liabilities. The marriage contract was presented to the applicant as a fait accompli; while she may have read it and signed it, she was in the dark about her legal rights and the consequences which flowed from signing the agreement.

iii. Independent legal advice

187The applicant says that she was not afforded an opportunity to seek independent legal advice. She did not review the marriage contract with any independent lawyer, paralegal, law clerk, or other third party.

188The respondent says that Mr. Monplaisir advised them jointly of the contents of the marriage contract, which the respondent says was the practice in St. Lucia. He asserts that the applicant had every opportunity to seek more information, disclosure, and independent legal advice and chose not to do so.

189Mr. Monplaisir’s evidence is that he did not refer the applicant to another lawyer to receive independent legal advice. He testified that it was not the practice in St. Lucia for a party to obtain independent legal advice. Mr. Monplaisir does not recall if a reporting letter was prepared and sent to the client.

190The court agrees with the respondent that the Family Law Act does not require that the parties obtain independent legal advice. The court also agrees with the respondent’s argument that the lack of independent legal advice is not determinative in setting aside a domestic contract. Indeed, the jurisprudence establishes that the absence of legal advice will not automatically vitiate a marriage contract: see Dougherty, at para. 11. However, the lack of independent legal advice is a factor that the court may consider together with all the other circumstances: Hartshorne, at para. 11. It is apparent from the case law that the existence of independent legal advice provides some safeguard to the integrity of the bargaining process.

191In Hartshorne, at para. 60, Bastarache J., speaking for the majority, noted that the presence of independent legal advice at the time of negotiation is an important means of ensuring an informed decision to enter an agreement. At para. 9, Bastarache J., noted:

The authorities generally agree that courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship. This is particularly so where the agreement in question was negotiated with independent legal advice.

192In Anderson, at para. 42, Karakatsanis J., writing for a unanimous court, emphasized the importance of statutory formalities, noting that they “serve to impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements.” She explained further, at para. 35:

Concern about vulnerabilities may be countered by the presence of procedural safeguards. For example, full and frank disclosure of all relevant financial information between the parties can go far to assuage concerns of informational asymmetry …. Similarly, professional assistance, such as independent legal advice, can serve as a hallmark of a fair bargaining process … although the curative impact of legal advice in the negotiation of domestic contracts should not be taken as given [Emphasis added, and citations omitted.]

193The existence of independent legal advice also provides some indication that an individual appreciated the options before them and the consequences of making or not making a decision. In Hartshorne, at para. 60, Bastarache J. emphasized that “independent legal advice at the time of negotiation is an important means of ensuring an informed decision to enter an agreement.”

194As stated, there is no evidence before the court that Mr. Monplaisir provided any legal advice to the parties. In fact, from his own evidence, it is clear he was mistaken as to the reason the parties were entering into the agreement and as to their country of residence.

195On the evidence, the applicant received no legal advice from Mr. Monplaisir. She has also met the onus of proving that she did not receive any independent legal advice from any other sources.

196In the absence of independent legal advice, and given the circumstances of this case, the marriage contract is vulnerable to court intervention.

iv. Common Law: s. 56(4)

(a) Unconscionability and undue influence

197The Court of Appeal for Ontario has indicated that the common law grounds for setting aside a domestic contract under s. 56(4)(c) include unconscionability, undue influence, duress, uncertainty, mistake, misrepresentation, fraud, and repudiation of a term of the contract: Ward v. Ward, 2011 ONCA 178, 104 O.R. (3d) 401, at para. 21. In her closing submissions, the applicant raised “duress, undue influence, lack of bargaining power, lack of financial disclosure, et cetera.”

198The respondent submits that there was no clear claim for undue influence in the applicant’s affidavit-in-chief, nor in the opening, and submits that the claim arose in her closing submissions. The respondent says that the evidence does not support a finding of undue influence. The respondent also submits that unconscionability was never introduced in pleadings or evidence.

199The applicant asserts that she relied on all common law defences to vitiate the contract. She argues that she pleaded that the marriage contract was not in accordance with contract law in Ontario, Saint Lucia, or both common law jurisdictions. The applicant says unconscionability was introduced into the evidence “wherein it was clear Prisca was in an unequal bargaining position compared to Ira” and the applicant was denied entry to Ontario, Canada, married the respondent, and was compelled to sign an agreement that she could not say no to. In her closing, the applicant also relied on undue influence as a basis to set aside the marriage contract.

200Submissions and argument aside, fairness dictates that the respondent should have had some notice of the grounds upon which the applicant would be relying at common law, to set aside the contract. The Application does not set out any particulars. The respondent appeared to have had some notice that the applicant would be relying on duress and indeed, made submissions on whether she had proved she had signed the agreement under duress.

201The respondent ought to have been given some advance notice of the common law defences that the applicant would be relying on.

202The purpose of pleadings, even in family law proceedings, is to frame the issues to be determined, dictate the scope of disclosure, and outline the evidence to be adduced at trial. The only common law defence that the applicant appeared to have fleshed out, and to which the respondent had adequate notice, and indeed did respond to, was that of duress.

203As the court agrees with the respondent, the court will only consider the common law doctrine of duress, because it appears the respondent had notice that the applicant intended to rely on this doctrine.

(b) Duress

204The parties have both addressed the issue of duress and the failure of the applicant to understand the marriage contract.

205The respondent appears to focus on whether the applicant was under any physical duress. He asserts that she knew what she was signing. He says she was not under any duress or coercion to sign the agreement. The respondent says that the applicant signed the marriage contract freely.

206Under s. 56(4)(c) of the Family Law Act, a court may set aside a domestic contract for reasons “otherwise in accordance with the law of contract.” A finding of duress would fall within the ambit of s. 56(4)(c): El Rassi-Wight, at para. 30.

207In Anderson, at para. 1, Karakatsanis J. noted that “domestic contracts are particularly vulnerable to unfairness and exploitation, given the unique environment in which domestic contracts are negotiated and concluded.”

208The jurisprudence establishes that duress need not be actual or threatened physical violence; rather, a contract where there is “certain forms of non-physical pressure on the mind and ultimate consent of the party being influenced” can be avoided on the ground of duress: Hyldtoft v. Hyldtoft, 1991 CanLII 12868 (Ont. C.J – Gen. Div.), at para. 20, citing G.H.L. Fridman, The Law of Contract in Canada, 2d ed. (Scarborough, Ont.: Carswell, 1986), p. 301.

209Here, the parties provided different versions of when the respondent would have been aware of the applicant’s immigration status. There is ample evidence, from the respondent himself, that he was aware of the applicant’s immigration status as early as 2003.

210The respondent repeatedly stated at the trial that he wanted to protect his assets. He found away to do so, by taking advantage of her immigration predicament. The applicant says that before travelling to St. Lucia, she advised the respondent of her immigration status. At the trial, the applicant testified that she disclosed her immigration status to the respondent when he asked her to go to the United States. She told him her immigration status was in process. He told her to withdraw her application, and he promised to marry her. They applied for a license in Toronto. She withdrew her immigration application. The respondent denied having these discussions with the applicant or asking her to withdraw her application for refugee status.

211The Ontario Court of Appeal has noted that for pressure to amount to duress it must be “a coercion of the will,” or it must place the party on whom the pressure is directed in such a position as to have no “realistic alternative” but to submit to it: Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (Ont. C.A.). leave to appeal to S.C.C. refused (1988), 63 O.R. (2d) x; Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513 (Ont. C.A.), at para. 22, leave to appeal refused [1991] S.C.C.A. No. 306; Ramdial v. Davis (Litigation guardian of), 2015 ONCA 726, 68 R.F.L. (7th) 287, at para. 42.

212In Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, at para. 53, varied, in part on other grounds in 2014 ONCA 827, Penny J. fleshed out what evidence must be adduced by a party to establish duress. He stated:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

213The applicant says that she was forced to sign the agreement. During her cross-examination, the applicant conceded that she was not physically threatened. She agreed that she signed the agreement. When asked whether she could have cancelled the wedding, the manner in which she responded to the question made it clear that she thought the respondent was her way back to Canada. The following exchange took place during cross-examination:

Q. Do you agree you could have cancelled the wedding?

A. I love this man. Again, I am going to say Mam, I was already with him for four years. We were already making pre-wedding arrangements before we left Canada. Canceling the wedding? That was my only way to come back to Canada. That’s my only way.

214There is ample evidence to support the finding that the applicant was under duress when she signed the marriage contract. The court prefers the applicant’s evidence that she had no involvement in the preparation of the marriage contract. Her evidence on the key points were corroborated by Mr. Monplaisir. The court accepts her evidence and that of Mr. Monplaisir, that the only time the applicant met him was the day of the signing of the marriage contract. It is clear on the evidence that the respondent asked Mr. Monplaisir about the legal terminology in the draft. Since there were only two meetings, on the evidence, the court infers that the applicant was not present. At that time, the marriage contract was presented to her as a fait accompli.

215Moreover, the applicant’s immigration status had changed. As the respondent noted, the applicant had been “deported” from Canada. She had withdrawn her immigration application. It is immaterial to the court whether she had done so on her own volition, or on the strength of the respondent’s promise to marry her. If she did not sign, she may not have been able to return to Canada for the foreseeable future, despite having started to build a life.

216The respondent accused the applicant of putting this “plan” in motion. On the evidence, it is the respondent who took advantage of the applicant’s situation to exact the marriage contract. He admitted on cross-examination that he told her he would sponsor her “only if you agree to this.” The respondent himself expanded on how the contract came about. It is evident from his own evidence that the marriage contract was not initially contemplated, and that there would be no wedding without the marriage contract. It was evident from his testimony and the derogatory words he used, that the only way he would marry the applicant and sponsor her, which he thought had been her plan all along, was if she signed the marriage contract. On cross-examination, the respondent also added a further explanation as to when he told the applicant about the assets. He stated:

There was no contract then. How the contract ended up becoming into play is when we came back and she got held and got deported back to St. Lucia. When she got deported back to St. Lucia and I realized what was going on, I went back with her – the same plane that they, that immigration put her on, I paid a fare, went back down there with her. When I went down with her, I said to- she and I had a discussion. I said to her: “Listen, I have two assets -my mom and I own the Rockhill property, and I have my TTC pension. I will help you if you will agree to sign a prenup. She said, “Yes,” that’s not a problem. She said to me: “You go back to Canada and work, and I will go find a lawyer and set up the marriage, and set up the, and let him do the prenup. So, I said, Okay and I came back to Canada, and she went and found the lawyer, put everything together because I already told her the two things -assets, that I have that I would like to be protected, because she was lying so much to me and I didn’t know whether she was a scam – a scammer who just wanted to take me or not. So this is why I had these two assets protected under the prenup. She went and set it up with the lawyer. Right, so after she went and did that, and everything was ready, then she called me and said “Come down, let’s go and sign”. That’s when I went back to St. Lucia and I met with the lawyer and he showed us the document, and asked if it was okay. And, he let us read the document, and I said yes it’s fine, and what he did is that he said he was going to let his secretary write it up properly, type it up properly. And then, we went back the next day and we signed. So that is how the prenup came in. There was no prenup before planned. It was because of her immigration, because she got deported and I wanted to help her, because I love her very much.

217The respondent’s evidence about when he found out about the applicant’s immigration status is inconsistent. He has provided a shifting timeline. He says that he found out about her refugee status in 2004, “when she got caught at the airport” and was forced to return to St. Lucia. He claimed she had been lying to him all along. His evidence at trial belies his evidence in his affidavit, which is evidence that he was aware of the applicant’s immigration status in 2003. He stated:

In 2003 Prisca started to have immigration issues and she was forced to return to St. Lucia. We decided that we still wanted to be together and decided to get married and I would sponsor her to become a Canadian citizen as she always wanted.

218The respondent deposed that it took almost 3 years after the marriage for the applicant’s immigration approval to Canada. The first application was rejected as the immigration officials believe the marriage to be a sham.

219On cross-examination, when asked about the inconsistency, after initially resisting answering the question, the respondent provided an explanation related to what he claimed the applicant told him – that St. Lucians do not require visas to come to Canada – which avoided answering the question. The two issues are distinct. In his affidavit, the respondent also deposed, “I know she was not legally in Canada as a resident.”

220The court finds that the respondent was the dominating figure. As Mr. Monplaisir testified, it was the respondent who was in charge. Mr. Monplaisir was not aware of any immigration issues. When asked about his impression of the applicant during the meeting, he responded, “Ms. Irving was very quiet. She did not express anything. Very quiet.” He did not get the impression that she was being forced and did not have concerns that she was there on her own volition. Elsewhere during his testimony, when asked if he had concerns that she was there under duress, he responded that “She acted strangely in a quiet way.” He also stated, regarding whether he had concerns, “I should have, but I didn’t.” He was asked if he thought the applicant was being forced to sign the domestic contract, to which he responded, “No I did not get that impression. She was quiet. Very quiet.”

221Therefore, there is ample evidence to indicate that there was an “illegitimate pressure” on the applicant to sign the marriage contract, which amounted to a “coercion of the will” or a situation in which she had no “realistic alternative” but to sign. A court may set aside a contract if a person signs the contract because they believe they have no choice: Aly v. Nader Halal Meat Inc., 2013 ONSC 1314, 13 B.L.R. (5th) 209. Thus, this contract is vulnerable to court intervention.

C. Should the court exercise its discretion and set the agreement aside?

222The applicant has established that all three provisions under s. 56(4) of the Family Law Act are engaged. The court is satisfied that it ought to exercise its discretion in the circumstances to set aside the marriage contract, as there is evidence of overwhelming unfairness to the applicant in the bargaining process.

223In Hartshorne, at para. 36, the Supreme Court of Canada noted that to give effect to legislative intention, courts must encourage parties to enter into marriage agreements that are fair. The Court also stated that marital cases must reconcile respect for the parties’ intent, on the one hand, and the assurance of an equitable result, on the other: at para. 38.

224Courts must approach domestic agreements with caution and have regard to important procedural protections that help ensure the deal struck is fair: Anderson, at para. 3. As noted, in Anderson, parties to domestic contracts are particularly vulnerable to unfairness and exploitation, given the unique negotiating circumstances: at para. 1. Elsewhere in Anderson, the Court provided some guidance to the courts in balancing the freedom of parties to order their own affairs and public policy objectives enshrined in family law legislation. Karakatsanis J. stated:

Therefore, in deciding how much weight to give the agreement, a reviewing judge generally examines both the fairness of the bargaining process and the substance of the agreement, in accordance with the legislative scheme.

225Like Canada’s highest court, Ontario's highest court has considered the role of fairness of the bargaining process where a party seeks to escape the consequences of the domestic contract. The Ontario Court of Appeal has made it clear that the fairness of the agreement is an appropriate consideration by the court in the exercise of the court’s discretion at the second stage of the analysis under s. 56(4): see Moses, at para. 11; LeVan, at para. 60.

226On the evidence before the court, it is appropriate for the court to exercise its discretion to set aside the contract. There is overwhelming evidence before me that there was substantial unfairness to the applicant from the alleged formation of the marriage contract and the circumstances under which the agreement was obtained.

227At no time in his affidavit or during his oral testimony did the respondent indicate that the terms of the agreement were negotiated. He explained how the marriage contract came about, which leads the court to prefer the applicant’s evidence that the parties never discussed a marriage contract before the wedding and that she had no input into the contract.

228Nowhere in his affidavit or during oral evidence did the respondent indicate that the parties discussed the value of the assets that he owned or the extent of any liabilities that he had.

229On the evidence, the court concludes the agreement ought to be set aside, as it is unfair for the following reasons:

i. There was no negotiation between the parties of the terms of the contract.

ii. The respondent retained the lawyer who drafted the agreement.

iii. The respondent initially met with the lawyer by himself. The applicant was not a party to the meeting.

iv. The respondent alone provided instructions to the lawyer and dictated the terms of the agreement.

v. There was no discussion or even negotiation by the parties regarding the terms of the marriage contract.

vi. The respondent admitted he asked Mr. Monplaisir to explain the term “community of property” to him. There is no evidence that the same explanation was provided to the applicant.

vii. Mr. Monplaisir, the lawyer who drafted the agreement, had the wrong assumption about where the parties would be living and was under the impression the agreement related to property in St. Lucia.

viii. The respondent’s evidence on what he understood Mr. Monplaisir’s evidence to be about what property of the parties would be impacted and which law would apply, even after receiving an explanation from Mr. Monplaisir, makes it clear that the applicant would not have had any understanding of the nature of her rights, and the consequences of signing the document; she had received no explanation.

ix. There was no financial disclosure, which was confirmed by Mr. Monplaisir. The respondent has provided no evidence that there was any financial disclosure to the applicant in the months, weeks, or days leading up to the signing of the agreement. There is absolutely no evidence before the court by the respondent, in his affidavit or during his oral testimony, that he disclosed the value of his interest in the real property he co-owned with his mother, any mortgage or other liabilities, nor did he provide information about his pension with TTC, so that the applicant could make an informed decision as to what concessions or offers to make. In fact, there is no evidence, even from the respondent himself, that the applicant had any input in the terms of the domestic contract.

x. The applicant had no opportunity to review the marriage contract before the day of signing.

xi. The marriage contract was presented to the applicant one day before she was to marry the respondent. By his own admission, the respondent thought she was a scammer and had engineered the situation so that he would help her with her immigration status. His goal was to protect his assets.

xii. The applicant only met once with the lawyer who prepared the contract, in a short meeting that was on the day of signing.

xiii. The applicant signed the agreement in the face of emotional duress – she had pulled her immigration application, and the respondent was her pathway to return to Canada, to a life she had started to establish here.

xiv. The second meeting with the lawyer, where the parties signed the marriage contract, did not last long. Mr. Monplaisir did not indicate that he explained the contract to the parties or the legal terminology during the meeting. He said he read it to them and had them read it. In response to the question about how long the meeting lasted, he responded that it was “Not long.” At the trial, he was asked to explain some of the legal terminology in the domestic contract – the terminology pertains to St. Lucia.

xv. Though the applicant had gone back to school, she had a grade six education from St. Lucia and had not obtained her high school diploma in Canada. There is ample evidence to support that she did not know what a “pre-nup” was, nor did she understand the nature and consequences of the marriage contract.

xvi. The applicant did not have any independent legal advice or advice from other professionals before signing the marriage contract.

xvii. The applicant did not understand the nature and consequences which flowed from signing the marriage contract.

xviii. Neither party addressed whether the marriage contract addressed the objective of the Family Law Act to divide assets fairly, as a marriage is an equal partnership. On its face, the contract did not. The most the applicant was to be left with from any family property was her own personal property that she would be required to prove ownership of with a voucher, or otherwise.

X. Conclusion

230For the reasons above, the court makes the finding that the marriage contract is not binding on the applicant. The respondent failed to disclose significant assets and debts to the applicant. At the time the agreement was made, the applicant did not understand the nature or consequences of the signing the agreement, and she was under duress when the agreement was signed. There is ample evidence to indicate that the entire integrity of the bargaining process was severely compromised and there was substantial unfairness to the applicant. While the absence of independent legal advice, on its own, will not call for judicial intervention, in this case, the applicant’s limited education, the lack of any negotiation, the lack of disclosure and valuation by the respondent of significant assets, and the lack of independent legal advice further undermines the integrity of the bargaining process. Fairness requires that the agreement be set aside.

XI. Disposition

231In the result, the court makes the following disposition:

i. The marriage contract met the formal requirement under s. 55(1) of the Family Law Act.

ii. The marriage contract breached ss. 56(4)(a), (b), and (c) of the Family Law Act.

iii. In the circumstances, the marriage contract signed by the parties is unenforceable.

XII. Costs

232If the parties are not able to agree on costs, the court will consider written submissions based on the following schedule:

i. The applicant shall deliver costs submissions, including a Bill of Costs, Costs Outline, and dockets (or computer-generated dockets) no later than 30 days from the date of these Reasons.

ii. The respondent shall deliver his responding submissions and supporting materials within 30 days thereafter.

iii. There shall be no reply submissions.

233The costs submissions, excluding the Costs Outline, Bill of Costs, and any supporting case law, must be no longer than five pages, double-spaced.

234Any authority referred to may be hyperlinked to a free online source for decisions.

235The costs submissions should also be provided in Word format and emailed to my judicial assistant. All submissions and supporting materials on costs must also be uploaded to Case Center to the trial bundle.

A.P. Ramsay J.