By Jeff Jiehui Li<\/p>\n
Family Law Lawyer based in Toronto, Ontario<\/p>\n
If spouses entered into a separation agreement, or an order was issued on the parties\u2019 consent, can a party change the terms of spousal support later? The answer is positive. In so doing, however, the court needs to strike a fine balance between the presumed finality of the separation agreement or consent order on the one hand, and equitable sharing of the economic consequence of the relationship breakdown on the other.<\/span><\/p>\n \u5728 Miglin v. Miglin<\/i>, the Supreme Court of Canada laid out the framework in dealing with this type of application. In this 7-2 judgment, the majority held that the key in deciding the issue is not the existence of material change after the agreement or consent order was made, but whether, \u201cat the time of the application, all the circumstances render continued reliance on the pre\u2011existing agreement unacceptable.\u201d<\/p>\n To determine this, a two-stage investigation is required. At the first stage, the court \u201cshould look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it, including any circumstances of oppression, pressure or other vulnerabilities.\u201d While circumstances less than \u201cunconscionability\u201d in the commercial law context may be relevant, \u201ca court should not presume an imbalance of power.\u201d The imbalance of power between the parties may further be overcome by the professional assistance received by the parties. If this test is passed, the court must \u201cconsider the substance of the agreement to determine whether it is in substantial compliance with the Act.\u201d Even if an agreement does not comply substantially with the Divorce Act, it does not mean that the entire agreement must be set aside, as an agreement not fully enforceable may still reflect the original intentions of the parties and understanding of their marriage.<\/p>\n At the second stage, the court must assess \u201cwhether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the Divorce Act\u201d. Therefore, to successfully challenge or set aside a separation agreement or consent order, a party will need to show that the \u201cnew circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned.\u201d The court further explained that some degree of change is always foreseeable, and the court will only give the agreement little weight only if the \u201ccurrent circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act\u201d.<\/p>\n Thus, a reasonably negotiated and duly executed separation agreement will be given substantial weight in subsequent applications for spousal support, and the bar is quite high for a party to challenge the agreement later on.<\/span><\/p>\n In contrast, the court may give less weight to other types of domestic contracts, namely marriage contracts, pre-nuptial or cohabitation agreements. One reason for this is that when the parties negotiate a separation agreement, they already know the roles they played in their relationship and their situations at the end of it. But in the case of a marriage contract, the parties\u2019 roles in the relationship may be different from what was contemplated in the contract. However, marriage contracts and cohabitation agreements do carry weight in subsequent spousal support applications, especially those with a provision that it will automatically become a separation agreement upon the breakdown of relationship. Miglin<\/i> thus still applies to these types of domestic contracts, albeit with necessary modification. Among other things, the court must consider the circumstances under which these agreements were signed, even if they were before the separation, or even before the beginning of the parties\u2019 substantial relationship.<\/p>\n \u76f8\u5173\u6587\u7ae0<\/strong><\/p>\n \u914d\u5076\u8d61\u517b\u8d39\u548c\u5bb6\u5ead\u6cd5\uff08I\uff09\uff1a\u6cd5\u5b9a\u6761\u6b3e\u548c\u5224\u4f8b\u6cd5<\/a><\/p>\n Spousal Support and Family Law (II): Overarching Principle and the Advisory Guideline<\/a><\/p>\n \u5bb6\u5ead\u6cd5\u670d\u52a1<\/a><\/p>\n