“When a married or formerly married spouse seeks spousal support where a separation agreement provides otherwise, two (2) statutes may be implicated. The Family Law Act addresses domestic contracts as a provincial property and civil rights matter; and the Divorce Act confers authority on the court to award support as corollary relief to a divorce: Faiello v. Faiello, 2019 ONCA 710 at para 14.
A spouse seeking to set aside provisions in a separation agreement has the onus to show that the court should exercise its discretion to set aside the agreement under ss. 56(4) of the Family Law Act, which provides:
Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract
A material non-disclosure of financial assets, debts, or income may implicate ss. 56(4) of the Family Law Act: Carvalho v. Couto, 2023 ONSC 4975 at para 19; Virc v. Blair, 2014 ONCA 393 at para 52, LeVan v. LeVan, 2008 ONCA 505 at paras 51 and 183; Dochuk v. Dochuk, 1999 CanLII 14971 (ONSC) at para 17. However, even where a ground to set aside under ss. 56(4) is shown, the court must still decide whether it would be appropriate to do so: Faiello v. Faiello, 2019 ONCA 710 at paras 45-47.
The Divorce Act does not confer the authority to set aside an agreement per se, but a valid separation agreement is a factor for the court to consider in deciding whether to exercise its authority under s. 15.2 of the Divorce Act to award corollary spousal support:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[…]
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
The analysis in Miglin v. Miglin, 2003 SCC 24 articulates a two-stage inquiry in the face of a claim for spousal support that is inconsistent with a pre-existing agreement by the parties.
At the first stage, the court considers when the agreement was made and the circumstances in which it was negotiated and signed in determining whether there is any reason to discount it: Miglin at para 80. Where there is no reason to discount an agreement due to the conditions in which it was made, the court then considers whether the agreement substantially complies with the overall objectives of the Divorce Act by considering the agreement as a whole, bearing in mind that all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin at para 84. Where the circumstances under which the agreement was negotiated were satisfactory and the agreement when made substantially complied with the general objectives of the Divorce Act, the court is to defer to the parties’ wishes and give the agreement great weight: Miglin at para 87; Faiello at paras 45-46.
At the second stage, the court may be persuaded to give the agreement little weight if, and only if, the circumstances at the time of the application raise 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 Divorce Act: Miglin at para 91; Faiello at para 47.”