“As I noted in Gibbons v. Mulock, considerable deference is due to a domestic contract. In Rosen v. Rosen, the Ontario Court of Appeal explained the rationale for this principle, at p. 644.
I start with the proposition that it is desirable that the parties should settle their own affairs if possible. I think that they are more likely to accept their own solution to their problem than one imposed upon them. A more pedestrian reason for encouraging parties to settle their own affairs is that the courts may simply be incapable of dealing with the ever-increasing mass of matrimonial disputes.
It is, I think, obvious that the settlement of matrimonial disputes can only be encouraged if the parties can expect that the terms of such settlement will be binding and will be recognized by the courts. In my respectful view, as a general rule in the determination of what is fit and just, courts should enforce the agreement arrived at between the parties.
In LeVan v. LeVan, another decision of the Ontario Court of Appeal, the court dealt with a challenge to a marriage contract involving section 56(4) of the Act.
[50] Section 56 (4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses. It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, at para. 14. The provision is of such significance that, in accordance with s. 56 (7), it cannot be waived by the parties.
[51] The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk, 1986 CanLII 6295 (ON SC), [1986] O.J. No. 1500, 1 R.F.L. (3d) 176 (H.C.J.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement…
The husband bears the onus of persuading the court that one or more of the subsections of section 56(4) apply and, if so, whether the court should exercise its discretion to set aside the marriage contract. In guiding the exercise of that discretion, there is no exhaustive set of factors but the following have been consistently considered, as first identified in Demchuk:
(a) whether there had been concealment of the asset or material misrepresentation;
(b) whether there had been duress, or unconscionable circumstances;
(c) whether the petitioning party neglected to pursue full legal disclosures;
(d) whether he/she moved expeditiously to have the agreement set aside;
(e) whether he/she received substantial benefits under the agreement;
(f) whether the other party had fulfilled his/her obligations under the agreement; and
(g) whether the non-disclosure was a material inducement to the aggrieved party entering into the agreement.”