Here’s a Tale of a Mennonite Dairy Farm, a Blind Lawyer and a Last Minute Deletion ….
In this recent unusual case, the matter turned on a last-minute deletion of the wife’s name from an agreement of purchase and sale – and her decision to get independent legal advice from a lawyer who was effectively blind and could not see the domestic contract the wife had been asked to sign.
The couple had been married or living together for almost 20 years when they separated. About 10 years into the relationship, the husband’s Mennonite parents had offered them the chance to live on and manage the family dairy farm that the husband had grown up on (and that had been in the family for 180 years). The couple, the parents, and some community elders all participated in negotiating an agreement under which they couple would jointly purchase the farm from the parents for $500,000.
But unbeknownst to the wife, on the day before the farm sale was to close her name was deleted and title was put in the husband’s name alone. That same day the wife was told for the first time, while sitting at the lawyer’s office where they had arrived to execute the necessary documents, that she would have to sign a domestic contract in which she waived all her rights to the farm. She was told that the farm sale would not proceed unless she agreed to do so.
She was immediately sent to another lawyer for “independent legal advice”, but that lawyer was effectively blind and did not (and could not) read the domestic contract or review it with her. In fact, the entire session in the blind lawyer’s office (for which, incidentally, he did not charge her), consisted of the wife crying to herself. Ultimately she signed the document even though she knew it was not to her benefit.
The couple’s separation took place almost a decade later, triggered by their teenage daughter finding graphic sexual images of the husband and another woman on the husband’s computer. At this point, the husband sought to enforce the domestic contract that the wife had signed, in order to limit her entitlement to the family farm.
Not surprisingly, both the trial judge and the Court of Appeal found that the circumstances surrounding the wife’s signing of the domestic contract were unconscionable. The trial judge had found that the wife “had no clue about what the implications of such a significant document really meant,” and the Court of Appeal added that “[t]he fact that the [wife] appreciated that the domestic contract was not good for her does not mean that she understood either the nature or consequences of the domestic contract.”
The trial court had awarded the wife a one-half interest in the farm, but the appeal court overturned that portion of the judgment, ordering instead that the wife receive a large equalization payment, plus interest. (In the circumstances there were complex legal questions of whether the whole of the farm was a matrimonial home, and whether any of it was funded by gift or inheritance, which the Court took into account in making its award in the wife’s favour).
For the full text of the decision, see:
Martin v. Sansome, 2014 ONCA 14 (CanLII)