Canadian Journal of Family Law


Mark Cornish

First Page


Document Type

Case Comment


This case comment explores the tension between principles that guide domestic contractual bargaining and interpretation in Ontario with reference to two recent trial-level decisions. The courts’ analyses in McCain and Barton suggest a way to reconcile the apparent tension between principles of autonomy and fairness. In light of these decisions, and drawing on the literature in this area, the paper suggests a two-pronged approach for courts to adopt when deciding whether to set aside a domestic contract. This approach attempts to ensure that courts only uphold domestic contracts that are negotiated by truly autonomous parties.