Toronto Star

Tuesday, September 7, 1999

Memories of abuse invalidate agreement

Man ordered by court to repay ex-wife $180,000

By Donovan Vincent
Toronto Star Staff Reporter

A judge has found that a woman signed a 1990 separation agreement under mental duress caused by memories of childhood sexual abuse, and has ordered her former husband to repay her $180,000.

In a divorce case in which repressed memory syndrome was used successfully to nullify a separation deal, Mr. Justice Donald Taliano found that the woman was ``so overcome by mental illness that she was incapable of dealing with even the simplest of life's demands, let alone the complexities of a separation agreement.''

In his judgment released on the weekend, Taliano of the Superior Court of Justice ruled that the woman's memories of abuse, which she suffered at the hand of her father, ``seeped into her thoughts.''

As a result, he said, she was ``incapable of sound and rational judgment at the critical time before the signing of the agreement, and cannot now be held legally responsible for acts for which she had no proper appreciation.''

Because of this, the couple was not bargaining from ``equal positions,'' Taliano said, noting that ``the wife gave up one half of what she owned with interest and the husband walked off with all of what he owned, plus interest.''

The memories of the abuse had a huge impact on the breakup of the couple's marriage and played a decisive role in the woman's acceptance of the terms of the July 30, 1990, separation agreement - a deal that left her `'virtually destitute,'' the judge said.

The $180,000 the husband was ordered to pay represents an ``overpayment'' the wife made to him as part of the separation deal. The husband has to repay the money, despite being retired and in the early stages of Alzheimer's disease.

The Toronto-area couple married Sept. 21, 1979, and the husband has a son from a previous marriage. At the time of their wedding, the husband was 42 and an accountant, and the wife, 36, was a successful real-estate agent. Together they had one child, a daughter, born July 6, 1981.

They agreed to separate in April, 1990, and a separation agreement was prepared. The husband started divorce proceedings Aug. 31, 1993, and almost a year later his wife sought to set the separation agreement aside.

The couple had purchased a home, which Taliano said was valued at $500,000 when they separated. The husband's assets comprised his accounting business, an office building and registered retirement savings, the judgment said.

The woman initially balked at finalizing the separation deal because her memories of childhood trauma gradually overwhelmed her ability to cope with the negotiations, Taliano said, adding that on the advice of her therapist, she told her lawyer to stop the discussions.

Wife `incapable of dealing with even the simplest of life's demands'

At the time, a doctor diagnosed her as being confused, severely depressed, and unable to concentrate, recall events or think logically - findings supported at the time by a psychiatrist, the judge said.

The demands the woman agreed to in the separation agreement had their genesis in four real-estate deals she had put together, with their closings dependent on the sale of a fifth property.

The judgment said for the deals to be completed and to earn the commissions, she had to guarantee the sale price of the fifth property.

This meant she needed to raise $209,000 to honour the guarantee on this property. She proposed to put a $225,000 mortgage on her and her husband's home but needed his consent to do this, the separation agreement said.

The husband refused to consent to the mortgage unless his wife signed the separation agreement.

Part of that agreement required her to buy her husband's interest in their home for $250,000.

The agreement, which she signed, also called for her to release interest she had in his accounting practice and any claim for spousal support.

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