“Parties are entitled to enter into contracts to arrange their affairs as they see fit. Courts are to respect the abilities of parties to make their own decisions and organize their own affairs: Hartshorne, at para. 36. Domestic contracts should generally be encouraged by the courts: Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4th) 1, at para. 33. There are, of course, circumstances in which a court will not enforce a contract. Courts must be alive to the particular vulnerabilities that that can undermine the fairness of a domestic contract negotiated during a separation: Anderson, at paras. 3, 34.
The concept of unconscionability in family law is broader than in the commercial context. The question is whether there are any circumstances of oppression, pressure, or vulnerabilities being exploited during the negotiation process that resulted in an agreement that deviates substantially from legislation: Rick v. Brandzema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 44. The courts have used the language of taking advantage of or preying on a weaker party’s vulnerability when assessing unconscionability in a family law context: Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 18 O.R. (3d) 641 (C.A.), at p. 645; Toscano, at paras. 63-68.”