Husband and wife separated 19 months after marriage. Mr. Zimmer was a doctor whereas the wife operated a daycare. Upon separation, the wife sought legal counsel and the husband signed a separation agreement giving her exclusive possession of the matrimonial home and to convey his interest in the property to her. The wife was to retain most of the furniture and effects from the house. The husband agreed to maintain his insurance policies and to name the wife as the beneficiary for as long as he was required to pay maintenance for her or the child. The wife was to receive maintenance equal to $5,000 per month. Husband requests that the separation agreement be set aside and that an unequal division of the assets in favour of the husband be granted pursuant to s. 29 of the Matrimonial Property Act.
- Should the separation be set aside under s. 29 of the Matrimonial Property Act?
Judgement for the respondent.
Davison believes that the "slight, bespectacled physician" was smitten by his "very attractive, vivacious wife", and that when he signed the agreement, he truly believed it would only be temporary and that he and his wife would reconcile. Although he agrees with the principle that people should take responsibility for their decisions, the agreement was unduly harsh on the husband. Dr. Zimmer was emotionally dependent on his wife and likely signed the agreement only because he thought it was a means to reconciliation. As such there was unequal bargaining power when the matrimonial agreement was made, not to mention the fact that only one party to the agreement had legal counsel. The court held it is not necessary to decide whether the imbalance amounting to the husband having been "preyed upon" or having acted in "ignorance, need or distress"; [s. 29 was enacted in recognition of this – agreements between spouses are often fraught with emotional stress, and negotiations take place in circumstances not conducive to the exercise of sound judgment.
A separation agreement can be set aside when the agreement is so severely unjust as to show on its face disregard for the rights of one party.