Ken McEwan, K.C. and Erin Kotz succeed in representing plaintiff in enforcing property division agreement

This case sought enforcement of an agreement resolving property division issues arising from the breakdown of a marriage. In the agreement, the defendant husband agreed to make capital payments totaling $2 million over ten years to his former wife, representing her share of his interest in his architectural business. The defendant ceased making payments after his former wife passed away and before all capital payments had fallen due. The deceased’s estate brought this claim to enforce the agreement.  The defendant took the position that the proper interpretation of the agreement was that the capital payments were to cease after his former wife’s death. The defendant also raised defences of mistake in respect of the value of the business and unfairness.

Ken and Erin argued that the agreement was clear that such capital payments were to continue and that no mistake or unfairness arose from the settled division of family property. Accepting their interpretation, the trial judge rejected each of the defendant’s defences. The trial judge concluded that the defendant’s interpretation of the agreement was “at odds with the plain meaning of the words of the agreement, the surrounding circumstances, and common sense.” The trial judge ordered the defendant to immediately pay the missed capital payments plus interest and to pay a lump sum payment for the future capital payments. The full reasons of the trial judge can be found here.