Butty v. Butty, 2009 ONCA 852

• Judge: Gillese, Blair and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 17, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 852;(2009), 256 O.A.C. 258 (CA)

Butty v. Butty (2009), 256 O.A.C. 258 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.044

Julius Jeffrey Butty (applicant/appellant) v. Dusica Deedee Butty (respondent/respondent on appeal)

(C49168; 2009 ONCA 852)

Indexed As: Butty v. Butty

Ontario Court of Appeal

Gillese, Blair and MacFarland, JJ.A.

December 3, 2009.

Summary:

A husband and wife had executed a marriage contract, primarily to protect the husband's farm property. The wife petitioned for a divorce and sought to have the marriage contract set aside on the basis of duress and unconsionability.

The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. A50, set aside the contract because of disclosure issues on the part of the husband (Family Law Act, s. 56(4)), and ordered that the farm property be included for purposes of equalization. The husband appealed.

The Ontario Court of Appeal allowed the appeal.

Family Law - Topic 3382

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Material nondisclosure - A husband and wife had executed a marriage contract, primarily to protect the husband's farm property - The wife sought to have the marriage contract set aside on the basis of duress and unconsionability - The trial judge found that the wife knew and understood what she was signing, was not under duress and had received independent legal advice at her husband's urging before signing - However, the trial judge found that the husband had failed to make proper disclosure at the time the contract was signed - The trial judge, therefore, set aside the contract (Family Law Act, s. 56(4)) and ordered that the farm property be included for equalization purposes - The husband appealed - The Ontario Court of Appeal allowed the appeal - The trial judge erred in concluding that the husband failed to disclose significant assets or debts and in exercising his discretion to set aside the contract - Here, there had been an innocent and common mistake as to the nature of the property (i.e., that it consisted of two parcels rather than one) but that did not result in a misstatement of the size of the property or of the husband's interest in the property - The wife was aware of other shortcomings in disclosure when she entered the contract - The court stated that a party could not enter a contract knowing of shortcomings in disclosure and then rely on those shortcomings as the basis to have the contract set aside.

Cases Noticed:

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), refd to. [para. 47, footnote 1].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 50].

Raaymakers v. Green, [2006] O.A.C. Uned. 16; 25 R.F.L.(6th) 54 (C.A.), refd to. [para. 54].

LeVan v. LeVan (2008), 239 O.A.C. 1; 2008 CarswellOnt 3713 (C.A.), dist. [para. 59].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 56(4)(a) [para. 42].

Counsel:

D. Smith and Patricia Robinson, for the appellant;

Melinda Graham and Victoria Loh, for the respondent;

Philip M. Epstein, Q.C. and Aaron M. Franks, for the intervener, Stanley Jaskot.

This appeal was heard on November 17, 2009, before Gillese, Blair and MacFarland, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on December 3, 2009.