Lindsay v. Lindsay, (1989) 59 Man.R.(2d) 186 (QB)

• Judge: Kroft, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 29, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 59 Man.R.(2d) 186 (QB)

Lindsay v. Lindsay (1989), 59 Man.R.(2d) 186 (QB)

MLB headnote and full text

Susan Elizabeth Lindsay (petitioner) v. Donald Robert Lindsay (respondent) and between Donald Robert Lindsay (petitioner by counter-petition) v. Susan Elizabeth Lindsay (respondent by counter-petition)

Susan Elizabeth Lindsay (plaintiff) v. Donald Robert Lindsay (defendant)

(Suit No. 1593 D.P.)

Indexed As: Lindsay v. Lindsay

Manitoba Court of Queen's Bench

Kroft, J.

May 29, 1989.

Summary:

A husband and wife divorced after almost 22 years of marriage. By agreement, the husband had custody of the children and the wife had access. In the agreement, the wife renounced any claim to a division of marital property. The wife sought to set aside the agreement, alleging duress and undue influence, and brought a claim for an equal share of the marital property.

The Manitoba Court of Queen's Bench held that the agreement was valid and dismissed the wife's claim.

Family Law - Topic 3388

Separation agreements - Setting aside - Grounds - Duress or undue influence - A separated wife initiated preparation of a separation agreement - Against her lawyer's advice, the agreement provided custody of children to the husband, liberal access to the wife and waived her rights in marital property - The wife subsequently filed for divorce and claimed an equal share of marital property, submitting that the agreement was unconscionable because it was made under threat of losing access - The Manitoba Court of Queen's Bench held that the agreement was valid where there was not inequality of positions or substantial unfairness.

Family Law - Topic 3388

Separation agreements - Setting aside - Grounds - Duress or undue influence - The Manitoba Court of Queen's Bench enumerated guidelines or criteria to be considered on an application to vary or set aside a separation agreement - See paragraphs 35 to 39.

Cases Noticed:

Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 (B.C.S.C.), refd to. [para. 37].

Gedak v. Gedak (1988), 18 R.F.L.(3d) 131 (B.C.S.C.), refd to. [para. 37].

Ross v. Ross (1984), 26 Man.R.(2d) 122; 39 R.F.L.(2d) 51 (Man. C.A.), refd to. [para. 37].

Lethbridge v. Lethbridge (1984), 28 Man.R.(2d) 105 (Q.B.), refd to. [para. 37].

Crouse v. Crouse (1988), 88 N.S.R.(2d) 199; 225 A.P.R. 199 (T.D.), refd to. [para. 37].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225; 14 B.C.L.R. 145; 38 D.L.R.(4th) 641, refd to. [para. 37].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699, refd to. [para. 37].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; [1987] 4 W.W.R. 522; 7 R.F.L.(3d) 274; 2 Y.R. 246; 38 D.L.R.(4th) 735, refd to. [para. 37].

Morrison v. Coast Fin. Ltd. (1965), 54 W.W.R.(N.S.) 257 (B.C.C.A.), refd to. [para. 39].

George v. George, [1983] 5 W.W.R. 606, refd to. [para. 58].

Counsel:

D.N. MacIver, for the petitioner/respondent by counter-petition/plaintiff;

N.J. Watkins, Q.C., for the respondent/petitioner by counter-petition/ defendant.

This case was heard before Kroft, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on May 29, 1989: