Separation Agreements

Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

Written by Russell Alexander / (905) 655-6335

Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

The couple had been married in 1969 when the woman was 15 years old, and the man was 21 years old.  They had no children.

They decided to divorce in 1985.  A year earlier they had executed a separation agreement, witnessed by their respective lawyers, in which they divided up their matrimonial property and agreed to release their spousal support obligations towards each other.   On that latter issue, they each attested to the fact that: 1) neither of them required spousal support from the other, and 2) they had both considered their present and future financial prospects, and thought the agreement was fair.  It also contained a clause confirming that they each understood their rights and had obtained Independent Legal Advice (ILA) before signing.

All the agreement’s provisions were incorporated into the divorce order they obtained from a court a year later.

Fast forward to 2015, almost 30 years later. The wife brought a motion to have the separation agreement set aside, particularly as it related to her waiver of spousal support.  While she did not recall much about the circumstances all these years later, she claimed that she did not understand the nature of what she was signing at the time.

The court’s first task was to determine which version of the provincial Family Law legislation to apply to that assessment.  The one that had been in force 30 years ago required the wife to show that she had agreed to waive her support right in “circumstances that [were] unconscionable.”   The present-day equivalent, which was the Family Law Act, required only that she show that she did not “understand the nature of the consequences” of the separation agreement.

The court concluded that – using either threshold – the wife had failed to meet the test.

Looking at the evidence that could be provided from both parties, it fell short of showing the wife – who worked as a legal secretary at the time – did not understand the agreement, or appreciate the effect of signing away her support rights.   The rest of the clauses gave her the matrimonial home, the car, and most of the furniture, in a scenario where both of them were working at the time and had no children.   Even looking only at what was in writing, the court noted the spouses had specifically agreed on the fairness and lack of unconscionability of the circumstances.  Both acknowledged receiving ILA in advance.

In fact, the court noted that the wife had actually adhered to the agreement in other respects:   It contained an unusual clause stating that if within stipulated time-frames the wife were to either remarry, sell the home, or die, she would owe the husband $40,000 with interest.  When she did marry another man 7 years after the divorce, she called the husband to tell him she was prepared to honour her obligation under the agreement to pay him the $40,000 and did so during a meeting at a local restaurant.  This helped show that she appreciated the nature of what she had signed overall.

The court concluded:

Based on all of the evidence, I conclude that the parties intended to divide all of their assets, and live separate lives.  Indeed, the parties did just that.  The agreement was not unfair …

Both parties lead lives very separate and apart from each other.  They lived their lives and organized their affairs on the assumption that everything had been divided and resolved.  This understanding survived for decades.

Concluding that it would be unfair to allow either spouse to re-open the terms of this long-ago agreement now, the court dismissed the wife’s motion.

For the full text of the decision, see:

Pipitone v. D’Amelio

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About the author

Russell Alexander

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