Court Refuses to Set Aside Separation Agreement After Father Claims He Regretted Signing It

May 30, 2019

Mark Feigenbaum

An Ontario court recently refused to set aside minutes of settlement between two parents after the father claimed he regretted signing them.

What Happened?

The parents began cohabiting in 1995 and separated in 2008. They had two children together, now aged 21 and 18, who attend university. 

The parents had signed their first separation agreement in 2011. In 2018, the mother brought a motion to change and the parents later consented to a temporary order in which the father agreed to pay child support and s. 7 expenses. 

Both parents were represented by lawyers for the order and, as part of the order, the father acknowledged that he was not proceeding with a claim for “undue hardship”. Additionally, the parents agreed that “neither party shall be required, at any future time, to disclose the income or asset position of their new partners with whom they cohabit”. Finally, the parents agreed to proceed by mediation/arbitration if they were not able to settle all issues.

Then, in November 2018, the parents proceeded to mediation. As a result of mediation, the parents agreed to the settlement of all issues by way of minutes of settlement in January 2019. The minutes of settlement dealt with the father’s support arrears and provided a formula to calculate the parents’ proportionate contributions to the children’s post-secondary educational expenses. In the event of a material change in circumstances related to tuition and fee costs, the parents contributions could be varied by way of submissions to the mediator. The parents agreed that they would not be liable to contribute to the children’s post-secondary education costs beyond a first degree or 5 years of post-secondary education, whichever came first.

However, in April 2019, the father brought a motion for summary judgment to the court for various relief on the basis of “undue hardship”. He requested a reduction of his s. 7 expenses obligations, full disclosure of the financial records of the mother’s new spouse, and retroactive repayment of s. 7 expenses already paid.

The father argued that, even though he signed the minutes of settlement and was represented by counsel, he regretted signing the minutes. He claimed he was suffering from depression at the time and only agreed to the minutes because he planned to take his own life and never really expected to be bound by the terms of the agreement. He also alleged that the mediator “intimidated and berated” him, and that he signed the minutes under duress. He stated that he signed the minutes of settlement even though his lawyer advised him not to sign them. 

The mother took the position that the father’s motion for summary judgment was an abuse of process and should be dismissed.

The Law

Section 56(4) of the Family Law Act (“FLA”) allows a court to set aside a domestic contract, which includes a separation agreement, or a provision in it:

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.


At the outset, the court stated that the onus was on the father, who was seeking to have the minutes of settlement set aside, to prove that he fell within one of the criteria set out in s. 56(4) of the FLA. Additionally, because the motion was for summary judgment, he had to persuade the court that there was no genuine issue requiring a trial. 

The court then stated:

“A domestic agreement cannot be set aside simply because one of the parties to the agreement now regrets having signed it.” 

The court reviewed the evidence and found that none of the father’s arguments fell within the criteria of the FLA. With regard to his argument that he signed the minutes under duress, the court stated:

“The economic and personal pressures described by the [father] are the types of pressures commonly felt by one or both parties involved in the negotiation and settlement of domestic financial disputes. Such negotiations are almost always stressful; parties are forced to make difficult financial decisions with long-term implications for themselves and their children. The costs consequences of litigation are an inherent pressure faced by all litigants. The threat of potential increased legal costs if a settlement is not reached is intended to put pressure on both parties to arrive at a negotiated settlement. These inherent pressures cannot be used as a basis for setting aside a negotiated agreement.”

Finally, the court found that while the father said that he was suffering from depression and addiction issues when he signed the minutes of settlement, there was no suggestion that he lacked legal capacity to enter into an agreement at that time.

As a result, the court found that the father had not met his initial evidentiary onus to show that the minutes of settlement should be set aside under any of the criteria set out in the FLA and dismissed his motion. 

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.


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