Court Cases & Orders

Word Nerd Alert: Was it “Nature-or-Consequences” or Else “Nature” and “Consequences”?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Word Nerd Alert: Was it “Nature-or-Consequences” or Else “Nature” and “Consequences”?

Lawyers are known for mincing words, and hanging on legal technicalities.   For those of you who like precision in language, here’s a little Family Law “word puzzle” around the interpretation of the Ontario Family Law Act (FLA) that might leave some people nodding in agreement, while others may be left scratching their heads.

Under section 56(4) of the FLA, a court has the potential authority to set aside a domestic contract (or a provision in it) only if it finds one of three conditions are met.  The first two are where: 1) the general laws of contract call for the agreement to be set aside (for example where one party was under a legal incapacity); or 2) where one party fails to disclose significant assets or debts that were in place when the domestic contract was formed.

The third possibility found in the FLA’s section 56(4)(b):  It’s where a party “did not understand the nature or consequences of the domestic contract”.  Importantly, this provision uses the word “or” between “nature” and “consequences”.

That word “or” was the crux of one of the Appeal arguments in a case called Faiello v. Faiello. The spouses had been together 26 years, and formally married for 18 of them.  Under their separation agreement, which had been reached with the help of a lawyer partly chosen by the father, the parties had negotiated a give-and-take on various issues.   However, within a year of separating the father stopped abiding by his obligations under the separation agreement, and instead went to court to challenge its essential validity as a whole. Among other things, he asked that the court set the entire contract aside pursuant to the authority granted under s. 56(4) of the Family Law Act.  At trial, the judge declined to do so.

On later appeal, the father argued that the trial judge had applied the wrong test:   Rather than assess whether the husband did not understand the “nature or consequences” of the agreement (i.e. a disjunctive test), the trial judge’s reasons had referred in a few spots to the phrase “nature and consequences” (i.e. an apparently conjunctive test).  In other words, according to the father, the FLA stated that the agreement could be set aside if it was found that he had not understood either the “nature” of the agreement or the “consequences” of the agreement (not both), but the trial judge had erred by assessing the facts as if there was an “and”.

This semantic argument did not persuade the Court of Appeal.

As that Court conceded, the trial judge’s reasons did contain passages that included the word “and” rather than “or” between the two words – but so did the husband’s own materials that he filed with the trial court.   While “nature and consequences” was technically incorrect, the insertion of “and” had been a casual misnomer; it was not truly substantive in nature.   Indeed, the trial judge was clearly alive to the different meanings inherent in the words “nature” and “consequences”, and the upshot of the resulting ruling showed that the judge’s substantive focus was on the husband’s mental or emotional state at the time the agreement was signed.  In the judge’s own words, there had been an evaluation of whether the father understood the “fundamental nature of the Agreement and the effect or impact of the terms of the Agreement”.

The Appeal Court added:

 In this paragraph, the trial judge explicitly articulates the very definitions the father now argues must be considered. The trial judge’s use of the phrase “nature and consequences” conjunctively was entirely understandable in articulating that he was not persuaded that the father failed to understand either of these.

I see no merit in the father’s argument on this point.

For the full text of the decision, see:

Faiello v. Faiello, 2019 ONCA 710

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.