What is the test for setting aside a domestic contract for non-disclosure?

The case law indicates that a court should employ a two- stage analysis when considering a claim to set aside a domestic contract for non-disclosure: [page197] (i) First, the party seeking to set aside the agreement must demonstrate that the other party failed to discharge its duty to disclose significant assets. [See Note 12 below] The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets, [See Note 13 below] and the failure to disclose changes in income. [See Note 14 below] The significance of an asset is assessed by measuring the value of the asset against a party's disclosed net assets. [See Note 15 below] To conclude that a party has failed to disclose a significant asset, there must be some evidence to verify the value or extent of the party's assets either at the date of marriage or the date of the agreement; [See Note 16 below] (ii) If a court finds that a party has failed to disclose a significant asset, the court must determine, in light of the facts of each case, whether it should exercise its discretion to rescind the domestic contract. [See Note 17 below] The burden of proof lies on the party seeking to set aside the contract to persuade the court to exercise its discretion in its favour. [See Note 18 below] The court will take into account a variety of factors in exercising its discretion: i. whether the party who did not make full disclosure was asked or refused to do so; whether that party misrepresented or concealed financial facts; whether the other party had full financial information in any event; and, whether the other party would have signed the contract even if the disclosure had occurred; [See Note 19 below] ii. whether the party relied on the non-disclosure or misrepresentations in entering into the separation [page198] agreement in the sense that the party would not have entered the agreement had she known the true value of the assets; [See Note 20 below] iii. whether a party consented to incomplete disclosure, [See Note 21 below] or was otherwise aware of the asset and had the means to ascertain its value; [See Note 22 below] iv. whether one party took benefits under the contract and then moved to set it aside; [See Note 23 below] and v. whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosure; whether she moved expeditiously to have the agreement set aside; and whether the other party had fulfilled his obligations under the agreement. [See Note 24 below] In considering these factors, a court should not narrowly construe the obligation of spouses to make full disclosure because the Family Law Act imposes a positive duty on both parties to disclose. [See Note 25 below]