BC Separation Agreement Spousal Support lawyers review BC and Calgary separation agreements for fairness in negotiation and operation. Parties are encouraged to enter into BC Separation Agreement Spousal Support contracts. Fairly negotiated BC Separation Agreement Spousal Support Disputes contracts will be respected but unfair ones can be varied or ignored. Call our award winning family lawyers across BC and in Calgary Alberta at 1-877-602-9900. Click here to meet with us at any of our 6 offices.
BC Separation Agreement Spousal Support Dispute Law
A recent Saskatchewan Court of Appeal case determined a husband with mental health issues was able to enter into a separation agreement given his representation by counsel. The husband’s argument negotiations were unfair and he was unduly influenced by the wife was rejected. The husband did succeed on his appeal in having the ex wife’s spousal reduced for her lack of diligence in finding herself a full time job.
The case set out a cogent analysis for how a separation agreement impacts the court’s own ability to make a support order when someone says the agreement was unfairly negotiated or operated unfairly after it was signed.
In Radu v Radu the Saskatchewan Court of Appeal set out the legal test to be applied in BC Separation Agreement Spousal Support Disputes.
VII. ANALYSIS
[48] Section 15.2(4) of the Divorce Act sets out the factors a court should consider when determining initial applications for spousal support, being the condition, means, needs and other circumstances of each of the spouses, including: (i) the length of time they cohabited; (ii) the functions performed by each during cohabitation; and (iii) any order, agreement or arrangement relating to spousal support. Thus, Parliament has indicated the existence of a spousal support agreement is but one factor bearing upon the outcome of an initial application for spousal support (Miglin at para 33).
[49] In Miglin, the Supreme Court of Canada dealt with the question of how spousal support agreements should impact a court’s determination of spousal support pursuant to s. 15.2 of the Divorce Act. Justices Bastarache and Arbour, writing for the majority, envisioned a balancing of the objectives set out in s. 15.2(6) of the Divorce Act which seek an equitable apportionment of the economic consequences of the marriage and its breakdown between spouses, with the objectives, which flow from s. 9 of the Divorce Act, being finality, certainty and the autonomy of spouses to make their own agreement (Miglin at para 67).
[50] Justices Bastarache and Arbour concluded spousal support agreements should be given considerable weight, except: (i) where the circumstances under which such an agreement was negotiated and executed are unsatisfactory; (ii) where there is substantial unfairness (non-compliance with the objectives of the Divorce Act) when the agreement was entered into; or (iii) where at the time an application to determine spousal support is commenced there has been a change in circumstances not reasonably anticipated by the parties which renders the agreement unfair (i.e., no longer in compliance with the objectives of the Divorce Act). They set out a two-stage analysis applicable to claims for spousal support pursuant to s. 15.2(1) of the Divorce Act in the face of a pre-existing spousal support agreement.
BC Separation Agreement Spousal Support Stage 1
[51] Stage one of the Miglin analysis involves two steps. First, the court must look at the circumstances surrounding the negotiation and execution of the agreement to determine whether there is any reason to discount it, for example, where there are circumstances of “oppression, pressure or other vulnerabilities”, which “fundamentally flawed the negotiation process” (Miglin at paras 81 and 82). The mere presence of vulnerability will not in and of itself justify a court’s intervention. There must also be evidence that vulnerability was taken advantage of by the other spouse and that the vulnerability was not effectively compensated for by the assistance of legal counsel or other professionals (Miglin at para 83).
[52] Only if the court finds the circumstances under which the agreement was negotiated and executed are satisfactory will it go on to step two of the stage one analysis, which involves an assessment of the agreement as a whole to determine whether it was in substantial compliance with the objectives of the Divorce Act at the time it was entered into. As indicated, those objectives relate not only to an equitable sharing of the economic consequences of the marriage or its breakdown as envisioned by s. 15.2(6) of the Divorce Act, but also include the objectives of certainty, finality and spousal autonomy to fashion agreements which meet the specific needs of those involved (Miglin at paras 78 and 84).
[53] In Miglin, the court determined that just because one portion of a separation agreement fails to substantively comply with the objectives of the Divorce Act does not necessarily mean the entire agreement must be set aside: “[f]or example, if it appeared inappropriate to enforce a time limit in a support agreement, the quantum of support agreed upon might still be appropriate …” (Miglin at para 86).
[54] Where the court finds the circumstances surrounding the negotiation and execution of the agreement are satisfactory, and that the agreement was in substantial compliance with the objectives of the Divorce Act at the time it was entered into, the court should “defer to the wishes of the parties and afford the agreement great weight” (Miglin at para 87).
BC Separation Agreement Spousal Support Stage 2
[55] Stage two of the Miglin analysis is only engaged where it is alleged the parties’ circumstances have changed since the execution of the agreement such that the agreement no longer reflects the original intentions of the parties and is no longer in substantial compliance with the objectives of the Divorce Act. The test is whether the change of circumstances was “reasonably anticipated” by the parties.
[88] Although the change contemplated by stage two need not be “radically unforeseen”, and the applicant need not demonstrate a casual connection to the marriage, the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned.
(Emphasis added)
[56] As further stated by Bastarache and Arbour JJ. in Miglin:
[89] … The test here is not strict foreseeability; a thorough review of case law leaves virtually no change entirely unforeseeable. The question, rather, is the extent to which the unimpeachably negotiated agreement can be said to have contemplated the situation before the court at the time of the application.
[91] … It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. …
[57] As with step two of stage one of the analysis, the court may determine only certain parts of the agreement no longer reflect the parties’ intentions and fail to comply with the objectives of the Divorce Act. In such circumstances, those provisions will be given no weight, while other provisions that are not affected will be given considerable weight.
[58] The onus of impeaching the agreement rests with the spouse who challenges it (Miglin at para 78).
[59] It is important to recognize that Miglin is a stepped analysis. A judge only gets to the second step of stage one if the circumstances surrounding the negotiation and execution of the agreement are “unimpeachable”. Obviously, if those circumstances are not acceptable, the matter is at an end and the agreement is to be given no weight. In a similar fashion, a judge will only enter into stage two of the Miglin analysis if there is no basis for impeaching the agreement pursuant to stage one, that is, both the circumstances surrounding the negotiation and execution of the agreement are acceptable and the substance of the agreement was in whole or in part in substantial compliance with the objectives of the Divorce Act at the time it was entered into. In addition, there must be a change in the parties’ circumstance as identified in Miglin since the execution of the agreement.
[60] There is the possibility that part of the agreement will pass stage one of the Miglin analysis and part will be disregarded; for example, where the circumstances surrounding the negotiation and execution of the agreement are acceptable but a provision, such as duration, is not in substantial compliance with the Act. In my view, in such circumstances, stage two of the Miglin analysis is only concerned with those provisions which pass stage one of the analysis. It is not necessary for the court to consider those provisions which have already been discounted.
BC Separation Agreement Spousal Support cases are tricky. If you think an agreement was unfairly negotiated or that it no longer operated fairly you need to call us immediately. call us toll free across BC and Alberta at 1-877-602-9900.
