Baxter v. Baxter [2003] O.J. No. 3672, (Ont. S.C.J.).

The parties separated after 24 year of marriage. Minutes of settlement were incorporated in an order. At negotiations H provided a valuation of shares as of the date of separation which were viewed by W’s evaluator. H didn’t disclose that shares had recently been sold for $2.95 million. When information became known, W sought to set aside agreement. She submitted she wouldn’t have entered into the minutes if she’d been aware of sale of shares and their price.

Court set agreement aside stating that recent court decisions make it clear that a domestic contract may be set aside if a party fails to disclose significant assets existing when the domestic contract was made. Case reiterates that there is an obligation to make ongoing disclosure during settlement negotiations and that the husband’s failure to disclose sale of the shares and sale price constituted a material non-disclosure.

Lesson: Being sneaky only pays if you’re never caught.

Query: How could H figure no one would notice he’d received almost $3 million? What did he realistically figure at the time of the negotiations?

Jardine v. Jardine (2002) WL 1865123 (Ont. S.C.J.)

Parties cohabited for 15 years, never married. Throughout, property was placed in joint names. H’s contributions were greater. After separation, W applied for declaration of gift of one half of monies having taken place. Presumption of advancement does not apply to non-married parties. W was able to rebut presumption of resulting trust as H’s intention from dealings throughout relationship and understanding between the parties was to share assets with wife and provide for her financial security.

Lesson: Don’t give someone you live with common law property unless you mean it. Courts are going to try to minimize differences between gifts to married and common law spouses.