“In Anderson v. Anderson, 2023 SCC 13, the parties signed a simple Separation Agreement, which essentially provided that each party would keep the property held in their name and gave up all rights to the other’s property, except for the family home and household goods. The agreement had been prepared by the wife, and signed at a meeting with two friends as witnesses. There was no financial disclosure between the parties, and neither had the benefit of independent legal advice before signing it. Nearly 17 months after the wife petitioned for divorce, the husband counter-petitioned and sought corollary relief, arguing that the agreement was signed without legal advice and under duress.
Although this case was dealt with under Saskatchewan’s legislation, and although one of the issues before the Court was whether the framework in Miglin v. Miglin, 2003 SCC 24 applied (it did not strictly apply), the Supreme Court articulated the following principles, or policy objectives behind paying deference to domestic contracts, at ¶ 33:
(a) The proper interpretive framework for assessing a domestic contract is statute-specific;
(b) Useful principles still emerge from Miglin and subsequent jurisprudence;
(c) Domestic contract should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement;
(d) Deference flows from the recognition that self-sufficiency, autonomy and finality are important objectives in the family law context;
(e) The parties are better placed than courts to understand what is fair within the context of their relationship; and
(f) The private resolution of family affairs outside the adversarial process avoid the costs and tumult of protracted litigation.
The Supreme Court went on to find at ¶ 34 that balanced against those principles, courts should recognize that negotiations take place in a “singularly challenging environment, often at a time of acute emotional stress, in which one or both of the parties may be particularly vulnerable”. Judges should balance contractual autonomy and certainty, with concerns of fairness, sensitive to the vulnerabilities that can arise in the family law context, but without presuming that spouses lack agency because of the stressful context in which negotiations occur.
At ¶ 35-37, and 42 the Supreme Court wrote that concerns about vulnerabilities may be countered by the presence of procedural safeguards, including full and frank disclosure and professional assistance. The rigor of a court’s review of a domestic contract though, depends on the statute. Under Ontario’s legislation, there are minimum requirements that a domestic contract must be in writing, signed by the parties and witnessed: see section 55(1) of the Family Law Act. Beyond that, in general a court will look at the circumstances surrounding the contract’s execution and the substance of the agreement, where authorized by the legislation, and by reference to the governing legislative regime. The purposes and criteria of the governing statute provide an objective yardstick against which to assess the parties’ subjective understanding of what is fair, and they limit the risk that parties will depart significantly from public policy goals expressed by the legislature.”