Globe and Mail

B.C. appeal court finds marriage contract unfair

By BRENT JANG
Friday, November 1, 2002 – Print Edition, Page A12
The Globe and Mail

VICTORIA -- If you can't bear the thought of relinquishing half the family assets in a divorce, don't count on a marriage contract to be worth the paper it's written on if the agreement is unfair.

The British Columbia Court of Appeal has ruled that a lopsided marriage agreement should not be followed, finding there should be a near-equal split of family assets between a Vancouver couple.

Robert Hartshorne, a 56-year-old Vancouver lawyer, had hoped that a 1989 marriage contract would allow him to receive 80 per cent of the family assets when he divorced another lawyer, Kathleen Baldwin, in July, 1999.

But Ms. Baldwin, 49, is entitled to family assets valued at $654,000, or a 46-per-cent portion of $1.42-million in total, the appeal court said, upholding a B.C. Supreme Court judgment.

Two of the three judges on the appeal panel, Madam Justice Anne Rowles and Madam Justice Carol Huddart, sided with the trial judge, Madam Justice Alison Beames. One judge dissented.

After their afternoon wedding in March, 1989, but before the evening banquet, Ms. Baldwin signed a marriage contract drafted by Mr. Hartshorne. Ms. Baldwin had previously worked as a lawyer in the same law firm as Mr. Hartshorne. They began cohabiting in 1985; their first child was born in 1987.

Judge Rowles and Judge Huddart wrote that after a relationship breaks down, courts generally should respect private arrangements governing asset dispersal.

However, "common sense tells us a marriage agreement is different. What the parties view as fair at the time of executing the agreement may become unfair as the relationship evolves, and as circumstances change."

The marriage agreement would have provided Ms. Baldwin with assets valued at $280,000, which "would not provide even a modest home for her and the children in Vancouver" and "does not come within any generous range of fairness."

The appeal court said calculating fairness is a tricky balancing act, recognizing that Ms. Baldwin sacrificed her legal career to raise the couple's two children while acknowledging Mr. Hartshorne's role as the breadwinner.

In dissenting reasons for judgment, Mr. Justice Allan Thackray said his reading of the trial judge's decision led him to conclude that "two highly educated, mature adults negotiated an agreement with legal advice."

While Judge Thackray agreed it would be unfair to leave Ms. Baldwin with only 20 per cent of the family assets, he suggested that she receive 37 per cent, or assets valued at $525,000.

Ms. Baldwin, who stayed at home for almost 14 years to care for the children, resumed practising law last year at an annual starting salary of $52,000.

Mr. Hartshorne continued to work and earned $267,000 in 2000, the judges pointed out.

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