“The appellant argues that the trial judge erred by placing an onus on her to inquire as to the existence and value of the respondent’s assets. While incomplete disclosure rightfully attracts the risk that an agreement might be set aside, s. 56(4) [of the Family Law Act] makes it clear that failure to disclose even a significant asset does not necessarily attract that consequence.
The appellant also argues that the trial judge erred in determining whether the non-disclosed assets were “significant”.
The trial judge is said to have answered the wrong question – whether the non-disclosure was significant – instead of whether the non-disclosed assets were themselves significant. But this seems to be a purely semantic distinction. It is the significance of the non-disclosed assets that makes the non-disclosure itself significant. Determining the significance of non-disclosed assets is not, as the appellant argued, the purely mathematical exercise of comparing the value of the non-disclosed assets against the value of the disclosed assets. Rather, the trial judge appropriately relied on case law finding that “the term significant must refer and be measured in the context of the entire relationship between the parties” (see Currey v. Currey (2002), 2002 CanLII 49561 (ON SC), 26 R.F.L. (5th) 28 (Ont. S.C.), at para. 17), and that significance “should not be considered in isolation of all of the surrounding circumstances” (see Bruni v. Bruni, 2010 ONSC 6568 (CanLII), 104 O.R. (3d) 254, at para. 102).
…
Furthermore, the finding of significance, as the trial judge correctly stated, is only the first step in a s. 56(4) analysis: Virc v. Blair, 2014 ONCA 392 (CanLII), 119 O.R. (3d) 721, at para. 52. Once a party seeking to set aside a separation agreement has established that s. 56(4) applies, the court must still determine whether it should exercise its discretion to set aside the agreement. The criteria set out in Dochuk v. Dochuk (1999), 1999 CanLII 14971 (ON SC), 44 R.F.L. (4th) 97 (Ont. Gen. Div.), at paras. 18-19, provide a useful guide for this exercise of discretion.”