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Family - Domestic Agreements - Set Aside (2). Ataei v. Kalantari
In Ataei v. Kalantari (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against the dismissal of a motion "to set aside a separation agreement (the “Agreement”) on the basis that it was obtained by duress, pursuant to s. 56(4)(c) of the Family Law Act".
Here the court considers the appellate SOR for such matters:[5] The application judge’s findings with respect to duress were findings of fact that were open to her on the record. A determination under s. 56(4) of the Family Law Act is discretionary and is entitled to deference: Davies v. Jane, 2025 ONCA 752, at para. 28. .... . Scott v. Kwong
In Scott v. Kwong (Ont CA, 2026) the Ontario Court of Appeal allows a family law appeal respecting the setting aside of a domestic (here, separation) agreement, here on the basis that the adult children should have received notice of the Application:[7] On the first return date of this appeal, the panel ordered that the appeal be adjourned so that the parties’ now adult children could be given notice of the appeal and an opportunity to make submissions concerning their interests. The adult children were not served with any notice of the application, nor did they participate in the hearing before the trial judge. We have admitted the fresh evidence submitted by the parties and the adult children.
[8] In our view, the adult children should have been given notice and full participation rights because they had a clear interest in the outcome of the application and this appeal. If the gift provisions in the separation agreement and divorce order are found to be valid, the adult children have a right to share in the net sale proceeds from the matrimonial home.
[9] The adult children’s proffered fresh evidence includes that the respondent told them in around 2006 after she moved out of the matrimonial home that she was gifting them her share of the matrimonial home so that they would be taken care of. The respondent denies having this conversation. However, if accepted, the adult children’s fresh evidence could potentially serve to undermine the respondent’s evidence that she did not understand the separation agreement and did not agree to gift her share of the value of the matrimonial home to the parties’ children. This evidence and other evidence on these issues, as well as submissions that the adult children could have made, which the trial judge noted were absent, could have affected the outcome.
[10] As a result, the trial judge’s orders, including the costs order, cannot stand. We set them aside and, as requested by the appellant and the adult children, as interveners, direct a new trial before a different judge of the Superior Court of Justice. The parties, including the adult children, should seek case management to address the manner in which the new proceedings will be conducted. The net proceeds from the sale of the matrimonial home will remain in the real estate lawyer’s trust account pending the disposition of this matter or further order of the Superior Court.
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