Court Cases & Orders

Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?


Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?

In 2001, the parties separated after 15 years’ marriage. At that time, they entered into a separation agreement under which they agreed not to claim spousal support from each other. Almost 10 years after their separation, in 2010, the husband applied for what he likely envisioned would be an uncontested divorce.

However, there was a bit of a wrinkle: since separation the wife had experienced numerous health-related challenges, including a heart attack, a motor vehicle accident, anxiety and diabetes. She was currently on Ontario Works and had recently applied for a disability pension; the motor vehicle accident left her unable to work.

In answer to the husband’s divorce application, the wife continued to disclaim any right to monetary spousal support payments. Instead, she simply asked that the husband maintain extended health coverage (available to him through his work) for her benefit, which would effectively amount to a different kind of “support” for her.

The husband wanted the divorce but without this added imposition – he was engaged to someone else and wanted to be able to cover his new wife if necessary. Covering his soon-to-be-ex-wife for her medical coverage would prevent him from doing so. He pointed to the 2001 separation agreement in which they both agreed to forego spousal support; although that agreement expressly acknowledged there may be changes to their financial circumstances for a variety of reasons (including health-related ones), it did not envision either of them claiming either traditional monetary spousal support or the extended health coverage the wife was suggesting.

The question for the judge, therefore, was whether the separation agreement should be “opened up” in these circumstances, in light of the wife’s many post-separation health concerns.

The judge began by confirming that, in law, a court can stray from the terms of a pre-existing separation agreement reached by the parties, but it required a two-step process: 1) analyzing the agreement; and 2) considering the parties’ current circumstances.

In this case, the agreement was valid at the time it was entered into. It had been drafted by the wife’s lawyer (the husband was unrepresented at the time), and they had both reviewed the agreement line-by-line in the lawyer’s office. The wife understood the agreement’s terms and what she was giving up.

Nonetheless, in looking at the parties’ current circumstances, it was clear that at the time of the agreement neither of them the wife would suffer a heart attack, anxiety, a motor vehicle accident, and be diagnosed with diabetes – all within a short time-period. The judge was therefore prepared to open up the agreement, but only to the extent necessary to address the wife’s predicament. Moreover, the judge was still mindful that there had to be some finality to allow the parties to move on.
To this end, the divorce was ordered to be delayed for one year, and in the meantime the husband was to maintain for the wife’s benefit the medical, dental and drug coverage that was available through his employment. The benefits to the wife would cease when the divorce was issued.

Wilbur v. Laevens, 2012 ONSC 5858 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.