This decision which was released by the Ontario Court of Appeal on February 7, 2012, affirms the long standing principle that appeal judges are not trial judges and, as such, they will rarely review and weigh fresh evidence or consider…
This case is a perfect illustration of the dangers of representing yourself in your matrimonial matter. It is also a message to all lawyers who know that if they are getting a deal that looks too good to be true for their client – that it probably is.
In the case at hand, the parties had two children and separated in early 2010. The husband moved to set aside a consent order based on an agreement alleging that he was under the influence of alcohol at the time he entered into the agreement, that he was suicidal, and additionally that he had no legal advice.
The wife purchased a self-help kit for separation from Chapters and drafted minutes of settlement which contained clauses that were completely in her favour, including a clause the gave her sole custody of the children and that the husband could have supervised access, but he had to be “clean and sober” for at least 30 days prior. The minutes were also looked over by the wife’s lawyer, however this was never told to the husband. The husband’s roommate acted as an intermediary between the husband and wife, and the roommate also witnessed the husband’s signature. The husband never brought the minutes to a lawyer.
The husband, who had been struggling with substance abuse for years, signed the minutes as he feared that the wife would take the children and move elsewhere in Canada or to Washington State, if he did not agree to the terms.
A transcript was available from the court hearing where the consent order was made, and it showed that the husband did not speak at all. When he was asked a question, the wife would interject and answer on his behalf. Also, the husband was never advised of by the wife’s counsel, to seek independent legal advice. Moreover, the husband was not aware duty counsel was available to him.
The court concluded that the husband was clearly taken advantage of and that the consent order should be set aside. The Court also noted that counsel for the wife had a professional obligation to ensure that the husband was advised that he only represented the wife and that the terms of the agreement were completely skewed towards the wife. The Court stated:
The manner in which the Minutes was carried out, and the manner in which the Consent Order was entered into, cannot withstand an analysis that such was conducted in a reasonable manner, free of duress, and free of unconscionability. Also troubling is that counsel for the Mother never took steps to advise the Father that he only represented the Mother or to recommend to the Father that he seek independent legal advice, or at the very minimum, the assistance of duty counsel on the day that the Consent Order was spoken to in Court, particularly given that the clauses contained therein are completely having full control of the conduct of the Father, including allowing a clause that the Mother may unilaterally move to Washington State with the Children should there merely be one dirty test. That is unconscionable and not acceptable.
Furthermore, the court stated that this case should “serve as guidance for parties, with or without counsel, that quick negotiations, quick return dates of Notices of Motion, all done in haste with quick turnaround dates, are patently unreasonable as against one party, have grave consequences and liabilities that cannot, or should not, be taken lightly.”