Brusco v. Brusco et al, 2026 ONSC 3300

Court File and Parties

Citation: Brusco v. Brusco et al, 2026 ONSC 3300 Newmarket Court File No.: FC-23-06-00 Date: 2026-06-05 Ontario Superior Court of Justice

Between: Patrizia Brusco Applicant

– and –

Fabio Salvatore Brusco Respondent (1)

– and –

Ivory Hills Homes Inc. Respondent (2)

Counsel: E. Birnboim, Counsel for the Applicant L. Yates, Counsel for the Respondent (1) K. Normandin, Counsel for the Respondent (2)

Heard: May 19, 20, 21, 25, 26, 27, 28, 29 and June 1, 2026

Reasons for Decision

G.A. MacPherson J.

General Overview of the Issue and Decision

1This is a bifurcated trial of an issue. Should the marriage contract signed by the Applicant and Respondent on August 17, 2006 be set aside?

2The Applicant, Patrizia Brusco, advances the position that the marriage contract should be set aside.

3The Respondent, Fabio Brusco ("F. Brusco"), advances the position that the marriage contract should not be set aside.

4The Respondent, Ivory Hills Homes Inc., did not participate in the bifurcated trial.

5For the reasons that follow, the marriage contract executed August 17, 2006 is set aside.

Background Facts

6The Applicant was born April 24, 1977 and is 49 years old.

7The Respondent, F. Brusco, was born July 24, 1975 and is 50 years old.

8The Applicant and F. Brusco are referred to as 'the parties.'

9The added Respondent, Ivory Hills Homes Inc., is owned and operated by F. Brusco's father, Virgilio Brusco. This Respondent is referred to as 'Ivory Hills.'

10The parties were married August 19, 2006 and separated July 1, 2019 (Applicant) or July 31, 2019 (Respondent).

11There are two children of the marriage namely, M.B. born in 2008, and A.B. born in 2010. It is noteworthy that the children are 18 years old (M.B.) and 16 years old (A.B.).

12M.B. completed grade 12 at Canisius High School in New York State. His graduation ceremony occurred during the trial on May 21, 2026.

13A.B. is completing grade 10 at St. Jean de Brebeuf Catholic High School in Vaughan.

14A.B. resides primarily with the Applicant. M.B. is residing with the Applicant for the summer.

15The Applicant works as a flyer production coordinator at Sobeys.

16The Respondent, F. Brusco, is a teacher working at the York Catholic District School Board.

17Ivory Hills is the titled owner of the property known municipally as 120 Lookout Point. The residence at 120 Lookout Point is the matrimonial home. The parties moved into 120 Lookout Point after it finished construction in August 2010.

18On August 3, 2006, 13 days before their wedding, the parties closed on a residential property on Wallace Street. Title to the Wallace Street property was held by the parties as tenants in common.

19In the evening of August 3, 2006, after the parties closed on Wallace Street, the Respondents proposed that the Applicant execute a marriage contract.

20Gerard Borean, counsel at Parente Borean, represented F. Brusco during the negotiation of the marriage contract.

21John Sestito and Santo Veltri of Bianchi Presta represented the Applicant during the negotiation of the marriage contract.

22The first draft of the marriage contract was not signed. It was prepared by Mr. Borean and sent to the Applicant, via counsel, on August 6, 2006. It included the following terms:

a) neither party would acquire an interest in and neither party would be entitled to: i) the property of the party opposite with respect to the properties described in Schedules A and B (the 'excluded properties'); ii) any property acquired by the party opposite before and after the execution of the marriage contract; and iii) any increases in value of the excluded properties during the marriage and all property into which the excluded properties can be traced. b) that the presumption of a resulting trust would not apply between the parties in questions of ownership of the excluded property;

c) that neither party would be obliged to pay spousal support; and d) that the matrimonial home would be deemed held as tenants in common regardless of legal title.

23The second draft of the marriage contract was not signed. It was prepared by the Applicant's counsel and it included the following terms:

(a) the Applicant waived all property rights, including any increases during the marriage, to F. Brusco's interest in 1440978 Ontario Limited; 783049 Ontario Limited; and 807326 Ontario Limited (also referred to as the 'excluded properties');

(b) the presumption of a resulting trust would not apply between the parties in questions of ownership of the excluded property; and

(c) spousal support was permitted, but F. Brusco's dividend income from the corporations was excluded.

24The third, and final draft, was executed by the parties on August 17, 2026. The terms included:

(a) the Applicant waived all property rights, including any increase during the marriage, to F. Brusco's interest in 1440978 Ontario Limited; 783049 Ontario Limited; and 807326 Ontario Limited;

(b) the presumption of a resulting trust would not apply between the parties in questions of ownership of the excluded property; and

(c) spousal support was permitted, but F. Brusco's income from the excluded properties would not be included in income for the purpose of determining his obligation to pay support.

25On the date of execution, both parties acknowledged receiving Independent Legal Advice, acknowledged that they were signing voluntarily, and acknowledged that they understood their respective rights.

26A Certificate of Solicitor was executed by counsels John Sestito and Gerard Borean. Schedules 'A' and 'B' to the marriage contract were financial information statements for each of the parties.

27Mr. Sestito executed a Certificate of Solicitor on August 17, 2006 indicating:

(a) that he was the solicitor for the Applicant;

(b) that he witnessed the Applicant sign the agreement in his presence;

(c) that he believed she understood the nature and consequences of the agreement; and

(d) that he believed the Applicant was signing the agreement voluntarily.

28Mr. Borean executed a Certificate of Solicitor on August 17, 2006 indicating:

(a) that he was the solicitor for the Respondent;

(b) that he witnessed the Respondent, F. Brusco, sign the agreement in his presence;

(c) that he believed he understood the nature and consequences of the agreement; and

(d) that he believed the Respondent, F. Brusco, was signing the agreement voluntarily.

29Schedule 'A' to the agreement is titled 'Financial Information Statement.' It disclosed that F. Brusco was 100% owner of 1440978 Ontario Limited, 783049 Ontario Limited and 807326 Ontario Limited. There is nothing in F. Brusco's disclosure nor in his Schedule 'A' to suggest that the beneficial owner of 1440978 Ontario Limited, 783049 Ontario Limited and 807326 Ontario Limited was someone else.

30Schedule 'A' to the agreement also included income disclosure for F. Brusco. The disclosure indicated that F. Brusco's income for 2005 included $43,577 from teaching as well as 'approximately $200,000 from corporate/business interests.' The disclosure indicated that F. Brusco's income for 2006 included $45,000 from teaching as well as 'approximately $100,000 from corporate/business interests.'

31Schedule 'B' to the agreement set out the Applicant's disclosure.

32F. Brusco's line 150 income at the relevant time was:

a) 2003 - $45,661.20;

b) 2004 - $53,618.11; and

c) 2005 - $48,004.45.

33On August 19, 2006, the parties were married. Over 400 guests attended the wedding.

34In 2010, the parties moved into the matrimonial home, 120 Lookout Point, where they continued to reside until Mr. F. Brusco left the matrimonial home in January 2025. The Applicant and the children continue to reside in the matrimonial home.

35In 2011, the Wallace Street property the parties shared was sold to Nadine Brusco.

Position of the Parties

36The Applicant advances the position that the marriage contract must be set aside for the reasons that follow:

The Respondent Failed to Disclose Significant Assets, Debts or Other Liabilities:

(a) the financial disclosure produced by F. Brusco omitted certain assets;

(b) the financial disclosure produced by F. Brusco was grossly false and misleading as to F. Brusco's income; and

(c) the excluded properties contained in the agreement were not adequately valued;

The Applicant Did Not Understand the Nature or Consequences of the Domestic Contract:

(d) the Independent Legal Advice provided to the Applicant was wholly inadequate;

In Accordance With the Law of Contract:

(e) the marriage contract was presented to the Applicant for the first time 13 days before the marriage and signed two days before the marriage;

(f) the marriage contract was presented to the Applicant on the day her life savings of $30,000 were used to purchase the Wallace property jointly with Mr. F. Brusco;

(g) the lawyer who acted for the Applicant and F. Brusco in the purchase of the Wallace property, Mr. Parente, did not advise the Applicant that their firm was preparing a marriage contract on the instruction of F. Brusco;

(h) these circumstances existing at the time of the execution of the agreement resulted in the Applicant signing under duress; and

(i) the result of the marriage contract is unconscionable leaving the Applicant with nothing.

37The Respondent, F. Brusco, advances the argument that the parties each received Independent Legal Advice, disclosed all materials assets, debts and other liabilities, and that the marriage contract should be enforced.

38The Respondent, Ivory Hills, did not advance a position or participate in the bifurcated trial on the issue of enforceability of the marriage contract.

Law

39The Family Law Act, R.S.O. 1990, c. F.3 ("the FLA") provides for the orderly and equitable settlement of the affairs of spouses following the breakdown of the relationship.

40A marriage contract permits parties to opt out of the property and/or support provisions of the FLA. An informed choice to waive statutory rights requires transparent financial disclosure and an understanding of the rights and obligations contained in the FLA.

41Section 56(4) of the FLA, provides:

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.

42Section 33(4) of the FLA, provides:

The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made.

43Considerable deference is due to a domestic contract. In Rosen v. Rosen¹ and in the context of a Separation Agreement, the court explained the rationale for this principle, at para. 6:

I start with the proposition that it is desirable that the parties should settle their own affairs if possible. I think that they are more likely to accept their own solution to their problem than one imposed upon them. A more pedestrian reason for encouraging parties to settle their own affairs is that the courts may simply be incapable of dealing with the ever-increasing mass of matrimonial disputes.

It is, I think, obvious that the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts. In my respectful view, as a general rule in the determination of what is fit and just, courts should enforce the agreement arrived at between the parties.

44While deference is afforded to a domestic contract, that deference is subject to the provisions of section 56 (4) of the FLA. In Rick v. Brandsema,² the court noted:

An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as a result, an agreement that courts are more likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.

45Financial disclosure prior to the execution of a marriage contract is critical. In LeVan v. LeVan,³ the court explained the rationale:

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.

46In Virc v. Blair,⁴ the court expressed:

Timely and meaningful disclosure is 'the most basic obligation in family law': Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6. Parties in family law cases have an immediate, ongoing and positive duty to disclose not merely the existence of significant assets, debts or other liabilities, but also their extent and, just as importantly, their value.

47In LeVan, the court dealt with a challenge to a marriage contract involving s. 56 (4) of the FLA:

50Section 56 (4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses.⁵ It has been characterized as the "judicial oversight" provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, at para. 14. The provision is of such significance that, in accordance with s. 56 (7), it cannot be waived by the parties.

51The analysis undertaken under s. 56 (4) is essentially comprised of a two-part process: Demchuk v. Demchuk, [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case.

48A two stage analysis is required:

(a) can the party seeking to set aside the agreement demonstrate that one or more of the s. 56 (4) circumstances are engaged?

(b) if so, is it appropriate for the court to exercise its discretion to set aside the agreement?

49The Applicant bears the onus of persuading the court that one or more of the subsections of s. 56(4) apply.

50If the Applicant persuades the court that one or more of the subsections of s. 56 (4) applies, the parties must convince the court to exercise its discretion to set aside the marriage contract or to exercise its discretion to leave the marriage contract intact. In guiding the exercise of the court's discretion, there is no exhaustive set of factors, but the following have been consistently considered, as first identified in Demchuk v. Demchuk:⁶

(a) whether there had been concealment of the asset or material misrepresentation;

(b) whether there had been duress or unconscionable circumstances;

(c) whether the petitioning party neglected to pursue full legal disclosures;

(d) whether he/she moved expeditiously to have the agreement set aside;

(e) whether he/she received substantial benefits under the agreement;

(f) whether the other party had fulfilled his/her obligations under the agreement; and

(g) whether the non-disclosure was a material inducement to the aggrieved party entering into the agreement.

Discussion

Did F. Brusco Fail to Disclose Significant Assets, Significant Debts or Other Liabilities?

51The marriage contract includes disclosure set out in Schedule 'A' and Schedule 'B.' The attached schedules are sworn statements purporting to disclose the parties' income, assets, debts and other liabilities.

52In Schedule 'A', the Respondent, F. Brusco, swore the following statement to be true:

"The particulars of my financial situation are accurately set out below to the best of my knowledge and belief having made diligent efforts to verify the accuracy of this information:...."

53Schedule 'A' included the following disclosure that F. Brusco now states was untrue:

(a) that his disclosed annual income for 2005 of $200,000 in corporate/business income and $43,577 in income from teaching was incorrect. F. Brusco now advances the position that his 2005 income was $43,577;

(b) that his disclosed annual income for 2006 which he anticipated to include $100,000 in corporate/business income and $45,000 in income from teaching was incorrect. He now advances the position that his 2006 income was $45,000;

(c) that his disclosed 100% interest in 1440978 Ontario Inc. with an estimated value of $1,500,000 was incorrect. He now advances the position that 1440978 Ontario Inc. was held in trust for his father, V. Brusco;

(d) that his disclosed 100% interest in 783049 Ontario Inc. with an estimated value of $2,000,000 was incorrect. He now advances the position that 783049 Ontario Inc. was held in trust for his father, V. Brusco; and

(e) that his disclosed 100% interest in 807326 Ontario Inc. with an estimated value of $500,000 was incorrect. He now advances the position that he never had an interest in 807326 Ontario Inc.

54In addition to the disclosure that F. Brusco testified was untrue, Schedule 'A' did not include the following:

(a) that if 783049 Ontario Inc. was held in trust for V. Brusco, this should have been disclosed as a liability (on account of it also being listed as an asset). The trust agreement, dated July 30, 1993, includes a provision that F. Brusco would, upon written demand, transfer the property to the beneficiary, V. Brusco. There is nothing in the disclosure provided that alludes to the corporation having a beneficial owner and there is nothing in the disclosure provided that identified the future financial obligation owing pursuant to the trust agreement and that is the transfer of 783049 Ontario Inc on demand;

(b) that if 1440978 Ontario Inc. was held in trust for V. Brusco, this should have been disclosed as a contingent liability (on account of it also being listed as an asset). Although no trust agreement was produced, if the corporation was held in trust, the potential future financial obligation to transfer the property to the beneficial owner was not disclosed;

(c) the November 10, 2005 charge registered as instrument # PR961426 was placed on PIN 13213-2834 for the property known municipally as Brass Winds with F. Brusco as the chargee in the amount of $270,000; and

(d) the November 10, 2005 charge registered as instrument # PR961427 was placed on PIN 14095-0207 for the property known as 2 Loggers Lane with F. Brusco as the chargee in the amount of $270,000.

55807326 Ontario Inc. was incorporated November 28, 1988 and revived November 27, 1996. The registered head office address was 116 Lookout Point and V. Brusco was the President and Secretary.

56783049 Ontario Inc. was incorporated June 23, 1988 and revived July 24, 1995. The registered head office address was 116 Lookout Point and V. Brusco was the President, Secretary and Treasurer.

57Both Mr. V. Brusco and F. Brusco received Requests to Admit that they were parties to unwritten trust agreements between themselves concerning their assets or assets owned by their corporations during the marriage. Both parties did not admit to unwritten trust agreements indicating that was a legal question.

58F. Brusco testified that the purpose of the marriage contract was to protect the assets of V. Brusco. This may well explain why F. Brusco failed to disclose $540,000 in registered mortgages as assets.

59F. Brusco testified that the disclosure provided to the Applicant was given to him by his father and his father's accountants. F. Brusco testified that he had some knowledge of 1440978 Ontario Inc. He also testified that he had no knowledge of 783049 Ontario Inc. nor 807326 Ontario Inc. Without any knowledge of 783049 Ontario Inc. and 807326 Ontario Inc. F. Brusco's statement that he made diligent efforts to verify the accuracy of his financial disclosure is inaccurate.

60F. Brusco argued that despite the marriage contract not specifically stating that the excluded properties were beneficially owned by V. Brusco, the Applicant had been previously advised. The evidence of the parties was contradictory on the point. I do not have to determine if there was a previous discussion as s. 33 of the marriage contract includes a provision that the written agreement contained the entire agreement between the parties. This provision incorporates into the agreement the parole evidence rule which precludes any oral declarations being imported into the marriage contract.

61The Respondent also states that he simply overstated his assets and the Applicant made no requests for further information or particulars based on the disclosure provided. No formal valuations of assets were obtained prior to the execution of the marriage contract.

62If I accept the evidence of F. Brusco that the excluded companies are beneficially held by V. Brusco, then he failed to disclose this to the Applicant at the time the marriage contract was executed, and it was material.

63However, I do not have to determine if F. Brusco is the beneficial owner of the excluded companies to set aside the agreement. There must be full, open and honest disclosure permitting the Applicant to make an informed decision. The opaqueness surrounding the ownership of the three excluded companies is sufficient to preclude the Applicant from assessing the extent to which the marriage contract is consistent with the objectives of the FLA and her appetite for diverging from them. After several days of trial, there is much ambiguity and contradictory evidence over the ownership interests in the excluded companies. For example, in 2006, the Respondent, F. Brusco, executed the marriage contract and Schedule 'A,' indicating he was the 100% owner of the companies. He advanced the position throughout the trial that V. Brusco was the beneficial owner. However, a Financial Statement sworn October 10, 2014 by V. Brusco in a divorce proceeding from his estranged wife, Nadine Brusco, lists his business interests as 100% ownership in 130849 Ontario Inc., 807326 Ontario Limited and 807323 Ontario Limited. He did not list 783049 Ontario Limited nor 1440978 Ontario Limited as companies within which he had an ownership interest. Although a party to the proceedings, Mr. V. Brusco was not called as a witness. He was available to testify as he sat throughout the trial. The court is unable to reconcile this evidence.

64Regardless, F. Brusco did not disclose $540,000 of assets that were registered in his name at the time the marriage contract was executed. These assets were significant and material, particularly when viewed relative to the Applicant's net worth. Those undisclosed assets were a mortgage on 2 Loggers Lane and a mortgage on 874 Brass Winds Drive, both receivables as F. Brusco was the chargee.

65The Applicant was ill equipped to make an informed decision to opt out of her statutorily protected FLA rights when the assets and liabilities of F. Brusco were opaque and perhaps misleading and when the income of F. Brusco was unknown and perhaps misleading. Transparency is required. Parties are required to provide the true value of assets, debts and other liabilities. Overstating assets runs the real risk that a marriage contract might be set aside.

66Schedule 'A' to the marriage contract is fundamentally unreliable as to the income, assets, debts and liabilities of the Respondent, F. Brusco. His disclosed income is unreliable, his ownership interests in the excluded companies questionable, his disclosed assets were incomplete, and his liabilities understated if a court determines that V. Brusco is the beneficial owner of the excluded companies.

67This court finds that F. Brusco failed to disclose significant assets, significant debts or other liabilities existing on August 17, 2006.

Did the Applicant Understand the Nature or Consequences of the Marriage Contract?

68The Applicant advanced the argument that the marriage contract should be set aside because she did not receive Independent Legal Advice and/or she received inadequate Independent Legal Advice.

69The marriage contract was signed and witnessed. Each of the parties acknowledged:

(a) receiving Independent Legal Advice;

(b) understanding their obligations and rights under the agreement; and

(c) that the agreement was signed voluntary.

70The Applicant provided evidence that the Independent Legal Advice she received was inadequate. She testified that she met with Mr. Sestito two times for less than 60 minutes. She testified that counsel did not review most of the marriage contract with her including the Respondent's asset disclosure. In particular, the Applicant indicated that the following portions of the marriage contract were not reviewed with her:

a) Paragraph 1 (d); b) Schedule A; c) Schedule B; d) Section 3 (b); e) Section 3 (c); f) Section 8; g) Section 9; h) Section 10; i) Section 11; j) Section 12; k) Section 14; l) Section 15 (1), (2) (3) (4); m) Section 16; n) Section 17; o) Section 18; p) Section 19; q) Section 20; r) Section 23; s) Section 24; t) Section 26; u) Section 27; v) Section 28; w) Section 29; x) Section 30; y) Section 32; z) Section 33; and aa) Section 34.

71The Applicant testified in her affidavit, sworn October 14, 2025, that Mr. Sestito advised her that if she executed the marriage contract and the Respondent left her, she would be "collecting food stamps." In her testimony, the Applicant indicated that it was Mr. Veltri who provided that advice.

72The Applicant provided evidence that the first draft of the marriage contract was unacceptable. The Applicant testified that the marriage contract was re-drafted by Mr. Sestito or Mr. Veltri.

73Mr. Sestito executed a Certificate of Solicitor on August 17, 2006 indicating:

(a) that he was the solicitor for the Applicant;

(b) that he witnessed the Applicant sign the agreement in his presence;

(c) that he believed she understood the nature and consequences of the agreement; and

(d) that he believed the Applicant was signing the agreement voluntarily.

74Despite the Certificate of Solicitor, Mr. Sestito testified that his role in the preparation and signing of the marriage contract was purely administrative. Mr. Sestito testified that any substantive advice and decisions in terms of Independent Legal Advice was handled by Mr. Veltri. Mr. Sestito testified that he did not provide advice on the first draft of the marriage contract and does not recall any advice that he would have provided in terms of the second draft. Mr. Sestito did not have a recollection about having any conversations with the Applicant about options.

75Mr. Sestito testified that his practice, and the firm's practice, when providing Independent Legal Advice, is to record in the file any advice given. The file contained no record of legal advice provided to the Applicant by him or anyone else in the firm.

76In his testimony, Mr. Sestito testified that his administrative duties included receiving four copies of the first draft of a marriage contract as well as financial disclosure from Parente Borean on August 4, 2006. In addition, he sent an email to Mr. Borean on August 14, 2006 containing a fresh version of the marriage contract.

77Mr. Veltri testified that he provided the Applicant with Independent Legal Advice despite the Solicitor's Certificate being signed by Mr. Sestito. In an email from Mr. Veltri to Mr. Sestito dated August 11, 2006, he attached a memo that went through the first draft of the proposed marriage contract paragraph by paragraph, outlining what the Applicant agreed to and what her objections were. The Applicant agreed that some of the contents of that memo were consistent with her instructions. The Applicant also testified that there were parts of that memo that the Applicant did not recall receiving advice about.

78The August 11, 2006 memo is persuasive. This court concludes that there was a thorough review of the first draft of the marriage contract with the Applicant and that Mr. Veltri drafted a wholly new marriage contract on terms more favourable to the Applicant on her instructions.

79On August 14, 2006, Mr. Sestito received an email from the Applicant indicating the draft looked good and was much easier to understand. The Applicant also left Mr. Sestito a voicemail message on August 14, 2006 stating she hoped the marriage contract was sent to Mr. Borean because "I do know they are anxious to have this complete..."

80On August 15, 2006 at 4:20 p.m., Mr. Sestito sent an email to the Applicant with a proposed change to draft # 2 and requested instructions from the Applicant. That proposed change was incorporated into the marriage contract in section 9.

81On August 17, 2006, Mr. Sestito sent an email to Mr. Borean stating the proposed amendment was acceptable to the Applicant and providing an amended agreement for execution.

82On August 18, 2006, Mr. Borean sent the final signed copy to Mr. Sestito.

83The Applicant met with both Mr. Veltri and Mr. Sestito and had numerous communications over the negotiating period. Mr. Veltri's August 11, 2006 memo to Mr. Sestito is detailed and specific as to the concerns the Applicant had and her instructions to amend the marriage contract. The marriage contract was completely re-drafted to incorporate the Applicant's concerns, and the draft was forwarded to Mr. Borean. The fact that Mr. Veltri re-drafted the marriage contract consistent with his memo, and the Applicant's email confirming the draft was good and easier to understand persuades the court that the Applicant received Independent Legal Advice, was unhappy with the first draft of the marriage contract and instructed counsel to re-draft the agreement.

84The execution of the Certificate of Solicitor on August 17, 2006 is deficient as it should have stated that Mr. Veltri provided the Independent Legal Advice. However, this is not fatal. The memo from Mr. Veltri outlining the specific concerns and instructions is persuasive. I do not accept the Applicant's evidence that the vast majority of the marriage contract was not reviewed with her given the specificity of Mr. Veltri's August 11, 2006 memo, the modifications to the agreement, the Applicant's email to Mr. Sestito confirming the agreement looked good and was easier to understand and the Applicant's signature.

85This court accepts the Applicant's evidence that she did not understand the nature or consequences of excluding corporate income from the determination of income for support purposes pursuant to s. 9 of the marriage contract. The court comes to this conclusion as neither Mr. Sestito nor Mr. Veltri provided evidence that she received Independent Legal Advice on the matter, and the Applicant testified she did not receive any advice on this issue and did not understand it.

86In conclusion, this court is of the view that the Applicant did receive Independent Legal Advice and that she understood the nature and consequences of excluding the businesses. The value of those businesses she did not question. The ownership of those businesses will be determined at the continuation of the trial in November 2026. The Applicant did not understand the nature or consequences of excluding corporate income from the determination of income for support purposes.

Should the Marriage Contract be Set Aside in Accordance with the Law of Contract?

87The negotiation of marriage contracts, particularly in close proximity to upcoming nuptials, is a unique environment often with extraordinary social and financial pressures. In Dubin, the court made the following comment at para. 35:

A fundamental difference, however, between these cases and the current situation is that here, the domestic contract is a cohabitation agreement, which by its terms and operation of law was deemed to be a marriage contract on the marriage of the parties. Unlike separation agreements, marriage contracts are contracts uberrimae fidei, contracts requiring the utmost fidelity and good faith between the parties. A greater duty of dealing in good faith is owed in marriage contracts. Because of the special relationship between the parties as intended spouses, they are not entirely at arm's length and thus owe one another duties of good faith and fair dealing.

88In Toscano v. Toscano, 2015 ONSC 487, the Court summarized the law related to unconscionability and commented at paras. 63 and 64:

In general the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. It is the circumstances at the time of drafting and signing the contract which must be examined, not the results, under this criterion. There is an exception for a spousal support waiver which can be set aside if it results in unconscionable circumstances, pursuant to s. 33(4) of the FLA.

Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context (Rick v. Brandsema, [2009] 1 S.C.R. at para. 43 [Brandsema]). The question to be asked is whether there were any circumstances of oppression, pressure, or other vulnerabilities, and if one party's exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation.

89In Rosen, the Ontario Court of Appeal stated at paras. 12 and 13:

The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon the husband of acting with scrupulous care for the welfare and interests of the wife.

We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability.

90The parties became engaged in or around December of 2025. Over the course of the next several months, while both parties were working, they purchased a home and organized their wedding.

9116 days before their marriage, on August 3, 2006, the Respondents attended the Applicant's home and proposed the execution of a marriage contract. Coincidentally, perhaps, the parties had executed documents earlier that day to close on the purchase of their first home (the 'Wallace property'). The Applicant testified that her life savings of $30,000 were used for the purchase of the Wallace property.

92Although F. Brusco testified that he first broached the idea of executing a marriage contract in July 2006, I accept the Applicant's evidence that it occurred on August 3, 2006. I accept the Applicant's evidence over that of F. Brusco as she testified with great specificity as to that date. She clearly recalled the date and circumstances the marriage contract was proposed to her as the event was so shocking to her that she considered calling off the wedding. F. Brusco, by contrast, was unable to articulate a date or circumstance the marriage contract was first broached and guessed that perhaps it might have been in July 2006.

93When the marriage contract was presented to her, the Applicant was actively involved in preparing for the parties' August 19, 2006 wedding. The invitations to the wedding had been sent and over 400 persons were to attend, including guests from out of town. The parties had booked the hall, caterers, and all the accoutrements necessary for a large Italian wedding. Financial commitments, including deposits, had already been made. The parties had already held their stag and stagette, their wedding shower and the rehearsal dinner.

94The Applicant testified that on August 13, 2006, only six days before the wedding, she received an angry visit from the Respondent, F. Brusco. The thrust of what he told her was that it would be a disaster if she did not sign the marriage contract. Although denied by F. Brusco, I accept the Applicant's evidence on this point as it is corroborated by the voicemail transcript she left to counsel, Mr. Sestito, on August 14, 2006 stating "they were quite anxious to have this complete."

95Marriage contracts that are presented in close in proximity to upcoming nuptials and that are accompanied by a significant volume of financial disclosure for multiple corporations with an assigned value of $5,000,000 run a risk that they will be set aside. Marriage contracts of this nature require time to consider the terms, examine disclosure, make appropriate requests for clarification, and to obtain Independent Legal Advice.

96F. Brusco controlled the timing of the presentation of the marriage contract, and he waited until 13 days before the wedding to do so. He broached the subject of the marriage contract the evening after the parties executed documents to close on the purchase of their first home. Unknown to the Applicant, the firm handling their real estate transaction, Parente Borean, was already drafting the marriage contract when she attended at their office to sign the closing documents. F. Brusco waited until the wedding plans were finalized and the financial commitments were made. He presented the marriage contract when the Applicant was most vulnerable to social and financial pressure. Six days before the wedding he threatened that it would be a disaster if she, the Applicant, did not sign the marriage contract.

97This court concludes that the marriage contract must be set aside on the basis of unconscionability for the reasons that follow:

(a) marriage contracts are contracts uberrimae fidei requiring utmost fidelity;

(b) the marriage contract was presented to the Applicant for the first time only 13 days before the nuptials and at a time of immense pressure when she was vulnerable;

(c) the marriage contract was presented to the Applicant after she invested her life savings into the purchase of a home with F. Brusco adding to the financial pressure and her vulnerability;

(d) the marriage contract was presented to the Applicant after over 400 guests confirmed their attendance at the wedding adding social pressure and vulnerability;

(e) the marriage contract was presented to the Applicant after financial commitments for the wedding were made including booking the hall, caterers and all the accoutrements necessary for a large Italian wedding;

(f) the marriage contract financial disclosure included financial documents for three corporations valued by F. Brusco at $5,000,000 giving her limited time to review or make inquiries;

(g) six days before the wedding F. Brusco pressured the Applicant into signing the agreement stating that failure to do so would be a disaster; and

(h) the marriage contract is replete with property and support rights the Applicant waived.

98The Applicant has met her onus by establishing two of the factors set out in section 56 (4) FLA have been engaged.

Discretionary Considerations

99After finding two of the enumerated factors set out in section 56 (4) FLA have been engaged, the permissive language requires the court to consider whether or not to exercise that discretion to set aside the marriage contract. Levan confirms that the court has the ultimate discretion in deciding whether or not to set aside the agreement.

100This court has decided to exercise that discretion for the reasons that follow:

(a) the Respondent, F. Brusco, failed to disclose to the Applicant $540,000 in collateral mortgages that he held as receivables;

(b) the Respondent, F. Brusco, has created much ambiguity over the ownership interest of the excluded companies by offering contradictory ownership statements;

(c) the Applicant did not receive Independent Legal Advice in respect of waiving F. Brusco's corporate income in determining spousal support, and she did not understand the consequences of waiving corporate income from any support determination; and

(d) the Applicant executed the agreement in circumstances that were unconscionable including financial pressure, social pressure and pressure from F. Brusco in the days leading up to its execution.

101The deficiencies noted above cannot be rectified without setting aside the marriage contract.

ORDER

1. This is a Final Order.

2. This Order is made pursuant to the Family Law Act.

3. These Reasons are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.

4. The marriage contract executed by the parties on August 17, 2006 is set aside.

5. If the parties cannot agree on the issue of costs, they may file written submissions, as follows. The Applicant shall serve written submissions on the other party and file them electronically, through the Trial Coordinator's office, within 15 days of this decision being released. The Respondents shall serve written submissions on the other party and file them electronically, through the Trial Coordinator's office, within 15 days of receiving the Applicant's submissions. Submissions shall be limited to five pages, double spaced and using 12-point font, exclusive of the Bill of Costs and Offers to Settle. All documents shall be uploaded to Case Center. There shall be no right of Reply.

6. The parties shall attend an exit pre-trial no later than the end of July 2026 with a view to resolving the remaining issues.

7. In the event the matter does not settle, the parties shall have a Case Conference with the case management judge, Justice Daurio, to address any issues related to the balance of the trial which shall proceed before me in November 2026.

The Honourable Justice G.A. MacPherson

Footnotes

1. 1(1994), 18 O.R. (3d) 641 (C.A.) [Rosen]
2. 22009 SCC 10, [2009] 1 S.C.R. 295, at para. 48
3. 32008 ONCA 388, 90 O.R. (3d) 1 ["LeVan"]
4. 42016 ONSC 49, 191 at para. 89, aff'd 2017 ONCA 394, 138 O.R. (3d)
5. 5H. Stark and K. MacLise, Domestic Contracts: A Comprehensive Guide to Marriage Cohabitation and Separation Agreements in British Columbia and Ontario, 2nd ed. (Toronto: Thomson Carswell, 2006), at p. 1-52
6. 6(1986), 1 R.F.L. (3d) 176 (Ont. H.C.)