As you may already know, separating or divorcing spouses are entitled to negotiate for themselves the amount, duration and structure of support that one spouse must pay to the other. Any such agreement which is reached must be reduced to writing in a formal contract; it is then approved by a court as part of divorce proceedings.
My family law clients often ask me how, and under what circumstances, such spousal support agreements can be overturned. Usually this arises because – due to unforeseen circumstances – the agreement as initially negotiated turns out to be unfair, either to the paying spouse or to the recipient.
Although this remains a bit of a fuzzy area, in 2003 the Supreme Court of Canada provided some guidelines on this issue in a landmark case called Miglin v. Miglin. The Court crafted a two-stage test which is quite complex from a legal standpoint (and remains the subject of a good deal of legal commentary and interpretation), but which nonetheless provides some much-needed certainty in answering the question of when a freely-negotiated spousal support agreement should nonetheless be varied by a court or set aside entirely.
First of all, as an over-arching principle, the Court in Miglin stated that when evaluating a freely-negotiated spousal support agreement, judges must achieve a balance between two competing values: 1) the need for a sense of finality in negotiated spousal agreements; and 2) fairness.
Next, the Court emphasized that situations calling for spousal support agreement to be overturned will be relatively rare, and will always involve a wide variety of considerations, including the circumstances in which the agreement was negotiated an executed, and whether each spouse had independent legal advice. It will also involve a review of the provisions of the agreement itself, to see whether it takes into account the objectives set out by the Divorce Act.
Although the following list is not exhaustive (and some of the factors may be given greater or lesser weight depending on the circumstances), some of the more common scenarios favouring overturning an agreement will include one or more elements of the following:
• Where the agreement was “procedurally and substantively flawed”;
• Where the negotiations between the parties were fundamentally irregular and unfair – beyond the point of mere unconscionability, and taking into account factors such as coercion and vulnerability by one of the parties;
• Where there has been a lack of full and honest disclosure by one of the parties (including consideration of the degree and extent to which such lack of disclosure was deliberate);
• Where the resulting agreement fails to comply with statutory requirements (such as the provisions of the Divorce Act, or the Family Law Act); or
• Where there are signficant unforeseen circumstances that are inconsistent with what the spouses expected and contemplated when negotiating the agreement, and which later render their contract unfair.
It is important to know that the Miglin decision offers no precise or definitive guidelines as to when spousal support agreements may be re-opened, and certainly does not offer a handy checklist to be used. Rather, each case must be decided on its own particular facts, so it is important to get competent legal advice that addresses each individual scenario.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.