Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure
Although the recent Ontario Court of Appeal decision in Tadayon v. Mohtashami is not all that exceptional, it serves as an excellent illustration about how even many years later, one spouse’s past misdeeds can still come back to haunt him or her, in the context of the obligation to provide full disclosure in family law litigation.
The parents of three children had separated in 1999. They entered into a separation agreement as part of their divorce in 2005.
At that time, the husband had reported that he anticipated earning $80,000 that year, and the agreement was reached with that figure in mind. Its terms required the husband to pay a relatively modest amount for combined spousal and child support and allocated him certain levels of financial responsibility for the purchase of a home for the wife and children. All of these commitments and obligations were made on the strength of the husband’s reported income of $80,000 for 2005.
In reality, his income for the prior year was already much higher than that (at $147,000), and it turned out that for 2005 he actually earned an income of $344,000, comprised of income from his own general contracting company, together with undisclosed amounts he also earned from a home building venture. All of this information was kept from the wife at the time, and none of it was taken into account when the 2005 agreement was reached between them.
Fast-forward 10 years, when the wife discovered that the husband had concealed these income amounts from her. She applied to the court to have the 2005 agreement set aside, and to have both child and spousal supports for several sequential years recalculated with the correct figures in mind.
That application was allowed by the lower court, and the husband’s subsequent appeal was dismissed. Even viewed a full decade later, both courts confirmed that the husband’s then-failure to disclose these significant income amounts undermined the validity of the 2005 agreement. Had the wife known the correct financial information, she would never have signed it.
(Moreover, the court pointed out that the husband could not claim that he would be prejudiced by the wife’s late-breaking objection to the non-disclosure; they had jointly retained an expert income valuator, so it could have come as no surprise to him that the accuracy of his figures would soon become an issue).
The bottom line was that the husband had an obligation to make full and proper financial disclosure in 2005 when the agreement with the wife was made in the first place; the agreement was accordingly unconscionable and even despite the passage of time the court was justified in overturning it now.
For the full text of the decision, see:
Tadayon v. Mohtashami, 2015 ONCA 777
