What is a Separation Agreement?
A separation agreement is a legally binding contract created between two partners, subsequent to their separation. It sets out each party’s rights on issues such as:
It’s possible for parties to draw up a separation agreement on their own, but to be sure that the agreement is valid and enforceable, it’s best to seek independent legal advice.
In What Circumstances are Separation Agreements Set Aside?
In Miglin v. Miglin, the Supreme Court of Canada set out the principles courts should use to determine whether separation agreements should be set aside:
Doucet v. Doucet – Portions of the Separation Agreement Were Not Enforceable
In Doucet v. Doucet, a 2016 decision of the Ontario Superior Court of Justice, the Court concluded that the spousal and child support provisions of the parties’ separation agreement were unenforceable. The factors leading the Court to its conclusion were as follows:
First, the process by which the agreement was negotiated was unsatisfactory:
Second, the agreement did not take into account the factors and objectives for spousal support as set out in the Divorce Act in some fundamental respects:
Third, the agreement did not provide an adequate level of child support in accordance with shared care under the Child Support Guidelines, nor did it require the husband to pay any of the children’s s. 7 expenses.
Finally, the agreement specified that child support would not be varied without the written consent of both parties, contrary to the objectives of the Federal Child Support Guidelines. It effectively gave the husband a veto over increases in child support, even if his income increased. It gave the 2 children in their mother’s care a lower standard of living than the child in his father’s care.
Process, Substance, and Unanticipated Changes in Circumstances
Courts will look at the factors set out in Miglin in evaluating whether a separation agreement (or portions thereof) should stand if challenged. If you are concerned about the enforceability of your separation agreement, it is best for you to obtain legal advice, and encourage your ex to do the same. This could save you both many headaches in the future.
For advice on separation agreements or any other family law matter, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.
© 2019 by Gelman & Associates Family Law Lawyers. All rights reserved. Website designed and managed by Umbrella Legal Marketing