CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
Unconscionable Circumstances In addition to the above-mentioned criteria, the court has jurisdiction to set aside all or part of a domestic contract if the contract results in an unconscionable circumstances. The lead case in respect of this analysis comes from the Supreme Court of Canada in Miglin v Miglin (2003). One example of unconscionable circumstances would be if the parties entered into a domes - tic contract containing a full spousal support release and then were subsequently married for 45 years in a traditional marriage. In this case, the court may set aside the spousal support release because the outcome of the contract is inconsistent with the terms and entitlement that the spouse would have otherwise received without the contract. Given the severity of the circumstances in this case, a court would likely set the spousal support release aside because its results would be unconscionable and/or inconsistent with the intentions of the parties at the time that the contract was signed. 2.6 Cohabitation In Ontario, Alberta, New Brunswick, Nova Sco - tia, and Quebec, unmarried spouses have no automatic right or statutory right to share in their partner’s property unless they hold legal title to the property. In these jurisdictions, unmarried spouses’ property rights are limited to common law rights and equitable claims (ie, claims that anyone may advance). The Supreme Court of Canada in Walsh v Bona (2002) confirmed that the different treatment of married and unmarried spouses when it came to property rights aris - ing from their relationships was not discrimina - tory under the Canadian Charter of Rights and Freedoms. Conversely, in Saskatchewan, Mani - toba, and British Columbia, unmarried couples who are living together in a conjugal relationship have statutory property rights and are entitled to
or words of the other contracting spouse. Exter - nal stress, discomfort or stressful circumstances do not rise to the level of duress necessary to set aside a domestic contract that was otherwise
validly entered into. Financial disclosure
The complete absence of disclosure leading up to the execution of a domestic contract is almost always a basis for setting aside a domestic con - tract. More often, however, there is a question about the sufficiency of the disclosure provid - ed. A material misrepresentation or omission, whether intentional or inadvertent, will likely be considered a basis for setting aside an agree - ment. For a misrepresentation or omission to be material, it must directly connect to the substan - tive content of the contract and will depend on the facts of the case. Independent legal advice The absence of independent legal advice does not automatically result in a contract being unenforceable, but the presence of independ - ent legal advice is a powerful indicator that the contract should be enforced. A certificate con - firming independent legal advice was given is commonly attached as a schedule to domestic contracts to confirm the nature and extent of the legal advice given. The presence of independent legal advice leading up to and during the execu - tion of the agreement is often, but not always, a mitigating factor against a duress allegation. Independent legal advice may not be sufficient if there was an absence of full financial disclosure. Put another way, the presence of independent legal advice may be useless if the lawyer did not have appropriate disclosure in order to adminis - ter the appropriate advice.
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