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Final separation deals may not be: ruling PDF Print E-mail
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Written by Janice Tibbetts, Canwest News Service   

Separation agreements between divorcing couples are not necessarily final if one spouse gets a bad deal, the Supreme Court of Canada said Thursday in a ruling that ordered a B. C. dairy farmer to pay his former wife $650,000.

The Supreme Court unanimously concluded that Ben Brandsema exploited his wife's fragile mental state by allowing her to sign her name to an "unconscionable"agreement in which he failed to disclose all his assets.

The ruling is a reminder that if you try to "pull a fast one"on your estranged spouse, a judge can rescind the agreement even years later, said Toronto family law expert Phil Epstein.

"This is an attack on final agreements," said Epstein. "It is the kind of thing that drives husbands crazy."

The decision is a victory for Nancy Rick of Abbotsford, B. C.,who convinced the court that her ex-husband took advantage of her mental instability when she signed a deal in 2001, following the collapse of a 27-year marriage that produced five children.

"Special care must be taken to ensure that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation," wrote Justice Rosalie Abella in the 7-0 decision.

"While parties are generally free to decide for themselves what bargain they are prepared to make, decisions about what constitutes an acceptable settlement can only authoritatively be made if both parties come to the negotiating table with the information they need to consider what concessions to accept or offer."

The decision restores the ruling of a trial judge, which was overturned in the British Columbia Court of Appeal.

The appeal court concluded in 2007 that a deal is a deal, particularly when Rick had hired a lawyer, who advised her against signing the deal.

When Rick and Brandsema split up in 2000, they were equal partners in a dairy farm, and they owned a home, vehicles, RRSPs and land.

Their separation agreement gave Brandsema the farm and another dairy business.

Rick retained the family home and received lump sums of $750,000 in equalization and $100,000 in child support.

 



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