Does the requirement of uberrima fides apply when the parties have entered into a separation agreement requiring the parties to pay support for the children of the marriage?

Ontario, Canada


The following excerpt is from D’Andrade v. Schrage, 2011 ONSC 1174 (CanLII):

In Saul v. Himel, supra, the parties had entered into a separation agreement requiring the husband to pay support for the four children of the marriage. Three years later a paternity test revealed that the husband was not the biological father of the youngest child. The husband sued the wife claiming damages for fraudulent and negligent misrepresentation. In dismissing the husband’s action, Greer J. found at para. 19 that “separation agreements are more akin to commercial contracts than they are to family settlements.” Thus, by implication, the requirement of uberrima fides would not apply. However, she also found that the action should be dismissed as offending public policy. In doing so she made the following comments, at para. 20: The former husband is effectively saying that every spouse has a duty to tell his or her spouse of any extramarital affair he or she may have had during the marriage. It is unclear whether the former husband thinks that this must be done when it occurs, immediately thereafter, or some time later. Marriage is still a private domain and the public, through the judicial system, should not be involved in scrutinizing the behaviour of spouses in private matters while they are not involved the judicial system.

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