Law Times

Law Times • march 2, 2009 NEWS PAGE 3 stern reminder last week of just how important it is to ensure clients off er full and honest dis- closure when putting together separation agreements. "It reaffi rms that, for family law cases, courts want everybody to come in with wide open eyes," says family law practitioner Grant Gold, of McCague Peacock Borlack Mc- Innis & Lloyd LLP. "Yes, you can make a decision that might give you less than you might oth- erwise get, if that's what you choose to do, but you have to know the facts com- ing in." Th e court's 7-0 ruling in Rick v. Brandsema orders Berend Brandsema to pay his for- mer wife Nancy Rick $649,680 because their separation agree- ment was "unconscionable." Th e pair married in 1973 and separat- ed in 2000, and had fi ve children together. During the marriage, they acquired a dairy farm, real property, vehicles, and RRSPs, noted the court. Rick was origi- nally set to receive a $750,000 equalization payment through the separation agreement. But the court found that Brandsema failed to make full and honest disclosure, knew the contract negotiations were based on fl awed fi nancial data, and was aware of his wife's fragile mental state during the talks. Th e decision overturns an Al- berta Court of Appeal decision, which ruled that professional as- sistance Rick received during the negotiations compensated for her mental instability. SCC: make full disclosure in separation agreements T BY ROBERT TODD Law Times he Supreme Court of Canada gave fam- ily law practitioners a Heenan Blaikie LLP law- yer Nitya Iyer, who worked the case pro bono for the intervener Women's Legal Education and Action Fund, says the decision is groundbreaking in terms of the development of common law principles. Iyer says it "takes into account specifi c the vulnerabilities that Nitya Iyer exist between separated spouses. We've had the principle of uncon- scionability for some time, but it's a pretty minimal idea. Th e notion that it has more weight and takes on a par- ticular content in the context of family law contract negotiations, I think is an interest- ing and new develop- ment." Gold notes that, unlike many other Canadian jurisdic- tions, Ontario's fam- ily law legislation spe- cifi cally talks about fi nancial disclosure. Th e Fam- ily Law Act says that a court can set aside a domestic contract if a party fails to disclose signifi cant assets or debts or other liabilities existing when the contract was made, notes Gold. Moreover, says Gold, the deci- sion signals the court's intention of protecting vulnerable parties. "It's the Supreme Court of Canada saying, 'We're not going to let people take advantage of, in this case, a wife in a vulnerable position,'" says Gold. Th e decision also asserts the fact that family law contracts are dealt with diff erently than com- mercial contracts, he says. Th e SCC's rejection of the Alberta Court of Appeal's stance in ruling that the wife's vulnerabilities were not compensated for by advisers demonstrates that, says Gold. For family law lawyers who already learned haven't that it's best to err on the side of Appeal grounds limited Continued from page 1 do everything we can to establish or facilitate renewable energy projects; we're not going to subject developers of those projects to the myriad of whims and wishes of municipalities,'" King says in an interview. "I expect there will be some municipalities that will say, 'How horrible this is to upload this responsibility that really was ours, we are local govern- ments, this is a local issue,'" King adds. "I expect there will be others that say, 'You know what, thank God that it's out of my hair.'" Powell says the biggest battles could take place over the limited grounds of appeal citizens or municipal authorities would have if they want to block or control the placement of large wind farms, solar pan- els, or transmission lines. Th e bill's s.141.1 says appeal hearings can only take place "on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause serious and irreversible harm to plant life, animal life, human health, or safety of the natural environment." Dennis Mahony, head of the Torys LLP environmental, health, and safety group, argues that while the grounds appear restrictive, an appeal hearing is guaranteed. Th e existing environmental process that has a leave- to-appeal process before opponents can get a hearing at the province's en- vironmental review panel. He notes the initial notice of request for an appeal could be a short brief, including little detail before the hearings take place. Sleep deprivation and its resulting impact on human health could be cited. George Vegh, an energy specialist at McCarthy Tétrault LLP, points out the provincial government already has the power to exempt energy projects from local control under the Planning Act, but it has been reluctant to use it for political reasons. "Th ey had the power to exempt projects, but that might have looked too heavy-handed as opposed to taking a more proac- tive approach," he says. Municipalities that engage the provincial government in a legal battle over the arbitrary meddling won't have many legs to stand on. "Th ey are completely under the control of the provinces," says Queen's University professor Th omas Courchesne. LT www.lawtimesnews.com JONES_Administrative Oversight (LT 1-4x3).indd 1 2/25/09 2:57:55 PM Conducting Administrative, Oversight and Ombudsman Investigations providing too much disclosure, this case should hammer that need home, says Gold. "If you're a family law lawyer doing a contract, if you want to make a mistake, make a mistake by erring on the side of excess disclosure," he says. "Give some- N SMART PAPER CHOICES Making small changes in your organization can help take steps toward a greener tomorrow. Choose recycled or FSC approved paper for all your printing needs today. IMPROVED! D&D Juraplus Paper Recycled paper, 50% post consumer content. This 20lb. high quality multi-purpose paper is ideal for copiers, fax machines, laser and inkjet printers. 94 bright white. 500 sheets per package. Also available in a carton of 10 pkgs. 01001190 8-1/2" x 11" Visit dyedurham.ca for our March Special Promotion EPP DD LT C QtrA-07 OP Ppr ad 2 2/20/09 10:10 AM Page 1 body too much and let them sort it out, as opposed to giving them too little." Th at can sometimes be a hard pill to swallow for clients, he notes. Some clients tell him they're hap- py with the deal they've struck and don't care what their spouse's true LT fi nancial holdings are. "You've got to be careful with those, because even though the clients are giving you instruc- tions, as a lawyer, you've got to tell them that they can't enter into that agreement unless they go in with open eyes," says Gold. Rolland ENVIRO100 Copy Paper 20lb., 3.8 mil, 90 TAPPI bright paper is made from 100% post-consumer recycled materials. FSC certified. Acid-free. 500 sheets per package. Also available in a carton of 5 packages. 51992-00 8-1/2" x 11" What is FSC? – FSC certification of papers goes beyond recycled content issues to the greater issue of forest management and sustainability. Products that have been FSC certified have been made from trees harvested according to sound forest management policies by a company that has demonstrated environmental responsibility throughout the manufacturing cycle. Learn more atwww.fsc.org. 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