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Application to vary spousal support under a separation agreement dismissed because no unanticipated material change in either partyâs finances was proven.
The court granted divorce, upheld the separation agreementâs spousal support quantum, but reduced the support duration on review and awarded costs to the respondent.
Although the respondent may have been vulnerable at times, the evidence showed he had time, legal consultation, housing and employment, and actively pressured for and accepted the agreement; there was no convincing evidence of oppression, undue exploitation or unconscionability and the respondent failed to meet his burden to vitiate the agreement, therefore the Separation Agreement dated November 28, 2013 is valid and enforceable.
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The court found the separation agreement merited little weight because it was negotiated without professional assistance, reflected a power imbalance and a fundamental misapprehension about the security of the applicant's income; consequently the agreement did not substantially comply with the Divorce Act and did not bar the applicant's spousal support claim, and the respondent was ordered to pay monthly spousal support of $1,100 commencing immediately.
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The court granted the divorce, kept joint custody, denied most retroactive child support, and awarded spousal support despite the separation agreement, with offsets from property proceeds.
The Court of Appeal allowed the appeal and set aside the trial judge's orders for retroactive and future spousal support because the trial judge erred in implying a term requiring the husband to disclose material income increases that contradicted the explicit spousal support release in the separation agreement; the agreement's express language provided a clear release of spousal support and the alleged implied disclosure obligation was inconsistent with express terms, so the release stood and the awards were set aside (without prejudice to the wife's right to seek support under an appropriatâŚ
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The court dismissed applications to vary spousal and child support, giving weight to the separation agreement under Miglin and finding no material change.
Summary judgment was improperly granted; the motions judge erred by failing to apply the full Miglin analysis and by resolving credibility and onus issues reserved for trial, and by reversing the burden under s.2(8); the claims for spousal support and an extension of time raise genuine issues for trial and summary dismissal was set aside.
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