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:

  • child custody and access;
  • division of property;
  • debts;
  • child support; and
  • spousal support

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:

  • Where there is a separation agreement in place, and a spouse is applying to the court for spousal support, the court must look to the negotiation and signing of the agreement to determine whether there is any reason to discount it;
  • The court will consider whether there was any oppression, pressure or other vulnerabilities considering all of the circumstances, including the factors set out in s. 15.2(4)(a) and (b) of the Divorce Act.  The court must also look at the conditions under which negotiations were held, and whether there was legal advice;
  • If there are no vulnerabilities (or they are compensated for by the assistance of counsel), the court should accept the agreement as made.  Where there is  a power imbalance, the agreement may be given little weight;
  • If the process by which the agreement was made was satisfactory, the court must then look to the substance of the agreement, ensuring it satisfies the objectives of the Divorce Act as to spousal support;
  • Even if the process by which the agreement was made and the substance of the agreement are satisfactory, the court can still intervene if the circumstances of the parties have changed in a way that was not contemplated such that the agreement doesn’t reflect the parties’ original intentions and/or the objectives of the Divorce Act.

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:

  1. It was prepared and executed in haste and it was unclear whether there was proper financial disclosure before the agreement was signed;
  2. The husband pressured the wife to sign the agreement in return for his consent to allow her to move to a different city with the children;
  3. The wife was in a vulnerable state of mind when she signed the agreement as she had recently lost her father and had been hospitalized; and
  4. The wife did not consult a lawyer before signing the agreement.

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:

  1. The agreement made no provision for spousal support in spite of the fact that the wife was economically disadvantaged by the role she assumed during the marriage (homemaker and primary caregiver of the 3 children) and by the breakdown of the marriage;
  2. The agreement didn’t relieve the economic hardship experienced by the wife in trying to establish her own home, to become self-supporting, and caring for 2 or 3 children;
  3. The agreement did nothing to promote the wife’s economic self-sufficiency.

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.