“In her application, Ms. Kennedy has put her state of mind in issue by claiming duress, undue influence and unconscionability as a reason to set aside the Marriage Contract. In her application and affidavit on this motion, she alleges that:
-
-
-
-
- She signed the Marriage Contract under duress.
- Mr. Bowen exerted undue influence on her.
- The circumstances surrounding the negotiation and signing of the Marriage Contract were unconscionable.
- She had limited contact with Ms. Klukach during negotiations because she was travelling with Mr. Bowen and often had no internet access.
- She “did not understand the process of negotiating a marriage contract”.
- She “had limited opportunity to discuss the proposed contract” with Ms. Klukach, and she “believed she had no choice but to sign the contract”.
- She had no opportunity to read the Marriage Contract before signing.
- She received inadequate disclosure from Mr. Bowen during negotiations.
- There was no independent legal advice document signed. The Affidavit and Certificate of Solicitor that was attached to the Marriage Contract was not signed. She implies that because the certificate was not signed, she did not receive independent legal advice from Ms. Klukach.
-
-
-
Mr. Franks wrote to Ms. Klukach in November 2016 asking her to preserve her file. Ms. Klukach advised that she had left the file with Cassels Brock when she departed that firm in 2013. When Cassels Brock was asked to preserve the file, Mr. Franks learned that that file had been delivered to Ms. Kennedy in the spring of 2016 (before the date of separation).
Ms. Kennedy’s current counsel have had the Klukach file since February 2017. Since at least May 2017, Mr. Franks has been asking for Mr. Niman’s firm to produce the Klukach file. On June 20, 2017, the day before the hearing of the motion, Mr. Niman finally replied. He sent a brief letter to Mr. Franks stating that the file would not be produced because there is “no foundation” for the request “at this time”. The letter did not assert privilege as a reason for refusing to produce the file.
Stating that there was no foundation for requesting the file is contrary to the law. Ms. Kennedy’s application puts her state in issue and does lay the foundation for the request. The law in this area is well known. When a party places her state of mind in issue with respect to her claim and has received legal advice to help form the state of mind, privilege will be deemed to be waived with respect to such legal advice (Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 at para. 26).”