Final separation deals may not be: ruling

in a way it makes sense, but will they uphold it when the gender roles are reversed? probably not, in most cases, since the man is still traditionally viewed as a primary bread winner, whether he actually is or not. The mentality is "men can take care of themselves".
-ax

Prenup!

Evan AKA X-TRNL
Real Men Don't Take Abuse!

A prenup can be over-turned in exactly the same way if the court finds it is unconscionable.

In my case, the trial judge refused to rule on the validity of a post-nuptial agreement that was signed and notarized. That means no finding on whether it was valid or not for two years.

The problem with our judicial system is that judges interpret, rather than apply law. To paraphrase Voltaire: "to interpret laws is almost always to corrupt them".

The case of Rick v. Brandsema, 2009 SCC 10 includes all the trappings of our feminist jurisprudence. The very fact that the ultra radical Women’s Legal Education and Action Fund (LEAF) was allowed to act as an intervener alone brings the justice into disrepute.

The mandatory, though unsubstantiated, childhood and/or spousal abuse, leading to mental instability, became an integral part of this case.

In order to see a clearer, and more factual, picture we need to compare the Supreme Court ruling with the 2007 ruling by the B.C. Court of Appeal (Rick v. Brandsema, 2007 BCCA 217). Let’s allow Mr. Justice Chiasson explain the reasons for his order:

“[47] In my opinion, the extent to which there was a power imbalance in this case is questionable. The judge considered the husband an astute businessman and the wife as less knowledgeable, but it was acknowledged that each made vital contributions to their success as dairy farmers. (Para. 1.)”

One can only assume that the wife, being the manager of the operation, would have been more knowledgeable about the family finances.

The judge continued: “The wife consulted lawyers and accountants and she arranged for two mediations. She determined that $750,000 was an appropriate amount to be paid to her based on her assessment of the milk quota (paras. 99-100) and after there had been financial disclosure she presented her position to the husband on a take-it-or-leave-it basis. It was her plan to obtain sufficient funds to meet her needs through a separation agreement and to pursue the husband for more money subsequently. Within a month of signing the agreement, which resulted in her obtaining approximately $1,000,000, the wife was cohabiting with another man. [48] Although the judge was somewhat critical of the husband’s acceptance of the benefit of the tax arrangement insofar as it affected the value of the shares, there was a benefit to the wife in that the arrangement allowed her to receive the $750,000 tax free. (Para. 66.)” [52] “This was not a case of mental incapacity, undue influence or duress. The wife was a troubled woman, but it is clear that she knew what she was doing.” [53] “The wife adduced evidence alleging abuse by the husband to support the wife’s vulnerability, but this was rejected by the judge. He said that the wife’s case “does not rest on a finding that the [wife] sustained abuse at the hands of the [husband]” (para. 29)

Read further: [56] “… no finding of unconscionability was made because the evidence failed to show that the husband gained an unfair advantage through inequality of bargaining power.” [58] “In the context of this case, it is difficult to know what the judge believed the husband was obliged to do to not offend the conscience. He and the wife were participating in mediation. Part of that process involved the recommendation that the parties obtain legal advice. The wife had done so and did so again. Accountants were involved. Should the husband have been obliged to tell the wife that her proposal was not enough and that she should demand more?” [60] “By equating the wife’s mental instability with a vulnerability to the husband and by concluding that his acceptance of her take-it-or-leave-it offer offends the conscience, the judge deprived the negotiation process of any content.”

"The mandatory, though unsubstantiated, childhood and/or spousal abuse, leading to mental instability.."

??
Is this legalese or just a fu**-up?
-ax