In its recent ruling in Stevens v. Stevens, 2013 ONCA 267, the
Ontario Court of Appeal refused to grant a party's
request that a document (a domestic contract) be rectified in his
favour. While the Court's decision may strike many as sensible
in the circumstances, the precise doctrinal basis for the
conclusion raises interesting questions.
The parties were husband and wife. The wife was considerably
wealthier than the husband. During an effort to save the marriage,
they had entered into a domestic contract. It appears that the
contract was intended to provide that, upon marriage
breakdown, the husband would receive 50% of the value of
the matrimonial home. Unfortunately, owing to an apparent drafting
error, the contract instead stated that the husband would receive
100% of the value of the home.
When the marriage broke down, the husband attempted — at
trial– to enforce the contract as drafted. Instead, the trial
judge ordered that the entire matrimonial contract
was void because it was unconsionable, did not represent a
true meeting of the minds, and should be set aside under the
provincial Family Law Act.
On appeal, the husband changed course entirely. Concluding that
"half a loaf" was better than none, he took the position
that the marriage contract should be saved by being re-written to
reflect what he now claimed was the parties' true agreement
— i.e., that he should received 50% of the value of
More specifically, the husband asked the Court of Appeal to
grant the extraordinary equitable remedy of rectification
(i.e., the judicially ordered, retroactively effective
rewriting of a document so that it reflects the parties' true
Perhaps not surprisingly, the Court of Appeal dismissed the
husband's request out-of-hand.
One might have expected the Court to explain that, as a
discretionary equitable remedy designed to achieve fairness and
justice, rectification was simply unavailable to a party who had
knowingly sought to take advantage of the drafting error.
Interestingly, while that may have been a factor in the Court's
thinking, that was not the focus of the Court's conclusion:
 In our view, on this record and in the light of the position
he took at trial, the remedy of rectification is not open to the
appellant on appeal. If accepted, it would permit the
appellant to take a fundamentally different position on appeal, one
that is completely inconsistent with the position he took and the
evidence he led at trial. To do so would be fundamentally
unfair to the respondent.
 ....The trial judge found as fact that the appellant was
aware of the drafting error and that he knew that it needed to be
clarified. The appellant refused to take steps to make the
clarification and continued to insist that the agreement should be
enforced as written. Simply put, he cannot ask this court
to rectify an agreement to reflect terms he swore he did not agree
Thus, in addition to providing an interesting (albeit implicit)
example of the maxim that a party who seeks equitable relief must
come to court with "clean hands," the case may
also be seen as representing an example of the estoppel
doctrine sometimes called "the principle of approbation and
reprobation" (i.e., a party with two inconsistent legal
options, who clearly elects to pursue one, will generally be
precluded from later resiling from that position, and seeking to
pursue the second, inconsistent alternative in a proceeding).
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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