The applicant sought to set aside or vary a separation agreement executed in 2006, along with claims for spousal support and equalization.
The court determined the parties separated on February 28, 2006 and found no duress, non‑disclosure, or inequality of bargaining power in the formation of the agreement.
However, both parties mistakenly believed the husband’s OMERS pension had no divisible value at separation, resulting in a significant imbalance contrary to the statutory equalization scheme under the Family Law Act.
Applying s. 56(4) and the principles from LeVan and Rick v. Brandsema, the court held the agreement was premised on a fundamental mutual mistake and partially set it aside.
The husband was ordered to transfer $80,126.75 from his pension to effect equalization with prejudgment interest, while spousal support was ordered at a nominal amount due to the applicant’s lack of present need.
