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Property Settlement Error

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  • Property Settlement Error

    I have just found an error in the Property Settlement from 2004. It came to light after a Privacy Act request and reply received yesterday. The Privacy Act request was on another subject but the reply included severance pay information.

    It is regarding the way severance pay is/was calculated. The estimate used in the Property Settlement resulted in a severance pay estimate that was way too high. As a result, the ex was paid about $6k too much.

    The property settlement was without legal advice. Can I recover this amount or has it been too long?


  • #2
    If an order was obtained by fraud ; The Family Law Rules has this to say:

    Rule 14


    (14) The court may, on motion, change an order that,

    (a) was obtained by fraud;

    (b) contains a mistake;

    (c) needs to be changed to deal with a matter that was before the court but that it did not decide;

    (d) was made on a motion without notice; or

    (e) was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion. O. Reg. 114/99, r. 15 (14).


    (15) Rule 14 applies with necessary modifications to a motion to change a final order or agreement. O. Reg. 89/04, s. 7 (5).


    (16) A motion under rule 14 may be made on a motion to change a final order or agreement. O. Reg. 89/04, s. 7 (5).


    • #3

      As GGG has mentioned Rule 14 of the Family Law Rules may cover your circumstance if an order from the court is in effect.

      For situations where separation agreements are prevailing, the Family Law Act will apply.

      See Part IV of the Family Law Act R.S.O. 1990 c.F3

      Section 56

      Provisions that may be set aside or disregarded

      Contracts subject to best interests of child

      56.(1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1).

      Contracts subject to child support guidelines

      (1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement. 1997, c. 20, s. 10 (2).

      Setting aside domestic contract

      (4) A court may, on application, set aside a domestic contract or a provision in it,
      (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

      (b) if a party did not understand the nature or consequences of the domestic contract; or

      (c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

      If full and frank disclosure did not occur between the parties, a provision of aforesaid or the whole separation agreement can be set aside at the courts discretion.

      I believe you would have to demonstrate on the balance of probabilities that the other party acted in bad faith in regards in previous disclosed information. Once this threshold is met, the court may at their discretion set aside a provision or the whole separation agreement.

      6K is significant, however you have to do a cost analysis on the litigation. Costs can be awarded if successful, but its not absolute guarantee.

      When you say " Privacy Act" - do you mean this:

      Freedom of Information and Protection of Privacy Act
      R.S.O. 1990, CHAPTER F.31

      Always keep in mind that if the "Family Law Rules" do not adequately cover a situation, a party may make application to have the "Rules of Civil Procedure" apply. Ultimately it is the discretion of the court whether or not to apply the latter.

      Last edited by logicalvelocity; 03-10-2007, 07:35 AM.


      • #4
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