“The wife alleges that the trial judge erred in upholding the cohabitation agreement because the release of support does not meet the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) She also submits that he erred in calculating income for child support.
In Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, the Supreme Court of Canada set out a two-stage analysis to be applied in dealing with initial applications for spousal support in the face of a release. The first stage considers the circumstances at the time the agreement was created. This stage of the analysis is subdivided into two parts:
(1) A consideration of the circumstances surrounding negotiation and execution of the agreement to determine whether there is any reason to discount it.
(2) A consideration of the substance of the agreement to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time of its formation.
The second stage of Miglin requires the court to consider, at the time of the application for spousal support, whether the applicant has established that the agreement no longer reflects the original intention of the parties, and whether the agreement is still in substantial compliance with the objectives of the Divorce Act.
The objectives of the Divorce Act include “certainty, finality and autonomy”: Miglin at para. 4. Subsection 15.2(6) of the Divorce Act states that a spousal support order should:
(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.