J. 2003 SKQB 519 F.L.D. A.D. 2003 No. 366 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DAVID MICHAEL STOPANSKI and LUCINDA PERRA RESPONDENT W. Timothy Stodalka for the petitioner No one appeared for Ms. Perra nor did she appear JUDGMENT SANDOMIRSKY J. December 5, 2003 [1] Mr. Stopanski has and continues to be represented by capable legal counsel. Ms. Perra has chosen not to seek legal counsel and advice, despite being urged to do so. [2] The Court has been presented with a form of judgment bearing the consents of Mr. Stopanski and Ms. Perra. At first blush, one might assume the Court should grant the parties the relief they appear to jointly be seeking. However, the terms of the proposed judgment are, in the opinion of the Court, unconscionable. There has not been equality in the bargaining positions of the petitioner and respondent. Ms. Perra did not attend before the Court nor did she file any material on her own behalf from which might gauge the level of her knowledge of the law and the rights that she has thereunder. Second, the terms of the proposed consent judgment are clearly improvident. Ms. Perra seems content to receive assets, mainly in the value of her car, which represents her receiving about 13% of the net value of the family property estate, leaving the remaining 87% of the net value of the said property to be Mr. Stopanski’s share. Ms. Perra is prepared to forfeit her right to spousal support though she earns only $15,000.00 year while Mr. Stopanski earns $48,000.00 year. The proposed form of judgment confirms joint custody of the two children, who are ages 18 and 16, and that these children shall have their primary residence with Mr. Stopanski. Given the advanced ages of these children the proposed judgment seeks to have the parents respect the children’s wishes as to their choice of residence and the time that they might wish to spend with each parent. The proposed judgment also provides Ms. Perra is not obliged to pay child support in the foregoing circumstances. [3] By law, only the 15 year old qualifies as child within the meaning of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. Based upon the Federal Child Support Guidelines (SOR/97-175, as am.) (the “Guidelines”), Ms. Perra’s obligation to provide support for this child would calculate to be $88.00 per month. The child will be 18 years old in approximately 18 months time which means, that potentially, the economic value of releasing Ms. Perra from her obligation to pay child support may amount to less than $1,600.00 in all. [4] In my opinion, no reasonable person would conclude that the proposed judgment was anything but unconscionable and would speculate that at some point in the future, Ms. Perra will come to realize how patently unfair the proposed judgment was to her. [5] The parties do not need Court order nor judgment to attain their apparent goals. It is certainly open to them to proceed with this arrangement without the formality of judgment or contract. Another option is to reduce their understanding to writing, even if there is no lawyer prepared to sign certificate of independent advice for obvious reasons. However, today the parties have come to the Court requesting the proposed form of consent judgment. It is here that the Court must take its stance. [6] When, upon the evidence filed, the terms of a consent judgment appear to be patently unfair or unconscionable to one of the parties, it is my opinion that the Court must refuse the application. The Court must not been seen to legitimatize, condone, acquiesce nor approve of an unconscionable bargain. [7] Ms. Perra would clearly benefit from legal advice and guidance, but no one can force her to seek such help or assistance. Counsel for the petitioner tried as best he could to urge upon Ms. Perra her right and need for such guidance and he cannot be faulted. [8] The application is dismissed. In the circumstances, no costs are awarded.
The Court was presented with a consent judgment. The respondent was unrepresented. The Court found the terms of the consent judgment were so unfair as to be unconscionable. HELD: The Court refused to issue the order on the grounds that the Court must not be seen as legitimatizing, condoning, acquiescing or approving of an unconscionable bargain.