Best* Vancouver Separation Agreement Lawyers such as Lorne N. MacLean, QC at MacLean Law protect and ensure that Vancouver separation agreements are aggressively and fairly negotiated so their medium to high net worth family law clients are winners. In a recent case upholding a separation agreement Lorne N. Maclean QC’s sage advice paid off big time for a client whose former spouse tried to get more than she was legally entitled to. To see another case where Lorne MacLean QC’s excellent counsel was endorsed in favour of a wife, read the Bayne v Bayne case.
Vancouver Separation Agreement Lawyers 1-877-602-9900
In today’s blog an experienced Justice of the BC Supreme Court has upheld a challenge to the spousal support provisions of a separation agreement 17 years later. The reasons of the Court are an excellent example of the Court’s approach to spousal support agreements of this type, and contain an important reference to Lorne MacLean QC at MacLean Law for his superb negotiations on behalf of the husband that ensured his client maintained a termination of spousal support at age 65.
Madam Justice Dardi in Canning v Canning 2017 BCSC 2082 carefully analyzed the case, including the following:
[65] In addressing the first component to the first stage of the analysis as set out in Miglin, Ms. Canning concedes that there was nothing in the circumstances of the bargaining process that provides any basis to impugn the Agreement. She does not rely on unconscionability, undue influence, or oppression, nor does she otherwise allege a fundamental flaw in the negotiation process. Both parties sought out and obtained legal assistance and advice. There is no issue raised in this proceeding about the adequacy of either party’s financial disclosure. On the totality of the evidence, I find that the Agreement expresses the parties’ genuine and mutual intention to finalize the terms of their separation and that it reflects the considered choices that each of the parties made at the time it was executed.
Lorne MacLean, QC
Vancouver Separation Agreement Lawyers understand how to fairly negotiate spousal support agreements so they stand the test of time. In Canning the court reviewed the terms of the deal MacLean helped successfully craft:
[66] The second component to the first stage of the Miglin analysis entails an examination of whether the Agreement at the time it was entered into comported with the goals of the Divorce Act. The jurisprudence is clear that only a significant departure from the general objectives of the Divorce Act will warrant the Court’s intervention: Miglin, para. 84.
The second stage of the Miglin test has two components. They are answered as follows:
[75] $2000 in monthly spousal support appears to be on the low side given the disparity in the parties’ income. However, in assessing the Agreement’s substantial compliance with the Divorce Act, it is important to recognize that the Agreement provided a review provision for the quantum of spousal support. Ms. Canning did not want to hire a lawyer due to cost concerns and chose not to avail herself of the review provision. However, that was her choice and was not a circumstance created by Mr. Canning.
And:
[68] I turn to consider whether the spousal support provisions in the Agreement comported with the general objectives of the Divorce Act.
[79] In all the circumstances, the terms for spousal support in the Agreement, including termination of spousal support on Mr. Canning turning 65, substantially complied with the legislative objectives and factors set out in the Divorce Act. Put another way and to the same effect, Ms. Canning has not demonstrated that there was a significant departure from the general objectives of the Act.
[80] I next address the second stage of the Miglin inquiry which is concerned with the events that occur after an agreement is executed. Even if an agreement is fair at its inception, the” vicissitudes of life” can result in the parties’ circumstances being different that that they had contemplated: Miglin, at para. 87.
She concluded:
[94] Upon a balanced consideration of the overall objectives of the Divorce Act, including certainty, finality and autonomy, and, in light of Ms. Canning’s delay in challenging the spousal support provisions, I conclude that the Agreement which was fairly negotiated is entitled to considerable weight. Ms. Canning has not demonstrated that the Agreement failed to substantially comply with the objectives of the Divorce Act at the time it was executed, nor has she demonstrated that any uncontemplated events rendered the Agreement non-compliant with the Divorce Act. All things considered, the Agreement should continue to govern the parties’ post-divorce obligations to each other.
MacLean Reference that led to success
A key factor in the spousal support termination agreement being upheld was the successful negotiation by Lorne N. MacLean, QC on behalf of the husband.
[23] On September 23, 1999, Mr. Canning’s lawyer, Lorne MacLean, [QC] wrote a letter to Mr. Martin seeking changes to the draft agreement. Mr. MacLean requested that the agreement be amended to reflect the fact that Mr. Canning’s gross income was $150,000. Additionally, he sought a revision to the cash amount for the buy-out of certain shares owned by Mr. Canning (“the Shares”). Finally, and most significantly for purposes of this proceeding, Mr. Canning required that the spousal support provision in the mediation summary and draft agreement be modified to delete the words “during the joint lives of the parties” and the following wording inserted:
“until the husband attains the age of 65 years or the husband ceases to be employed, whichever shall first occur, subject to the conditions of termination and review set out below.”
[24] Mr. Martin sent a copy of Mr. MacLean’s letter to Ms. Canning. He subsequently wrote to Mr. MacLean, advising that Ms. Canning was prepared to agree to Mr. Canning’s proposal for termination of spousal support.
Vancouver Separation Agreement Lawyers need to be involved at the start to ensure fairness and certainty
Having skilled legal advice setting out the conditions in which support will end contractually can be a significant benefit to your future self. Don’t leave money on the table or overpay spousal support to your detriment.
Tax Alert On Spousal Support In Separation Agreements
- Remember, Periodic payments are taxable in the hands of the supported spouse and lump sum payments generally are not.
- Supported spouse is required to pay income tax on spousal support payments, and supporting spouse can claim a tax deduction for the payments (Income Tax Act, ss. 56(1)(b) and 60(b)).
- Consider tax effect if payor spouse is non-resident in Canada.
- In order for payments to third parties to be deemed to be received by the supported spouse, the agreement must provide that Income Tax Act, ss. 56.1(2) and 60.1(2) will apply to such payments.
