“Where a married or formerly married spouse seeks spousal support in the face of a separation agreement waiving such support, either or both of two statutes may be engaged: the provincial FLA (Family Law Act), which addresses domestic contracts as a provincial property and civil rights matter; and the federal DA (Divorce Act), which confers authority on the court to award support as corollary relief to a divorce: Myers v. Hawco, 2005 NLCA 74, 252 Nfld & PEIR 121, at para. 15; Zimmerman v. Shannon, 2006 BCCA 499, 62 B.C.L.R. (4th) 255, at para. 36.
Where a spouse seeks to set aside provisions in a separation agreement regarding the spouses’ property, s. 56(4) of the FLA is engaged. Section 56(4) of the FLA provides that,
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.
Section 33(4) of the FLA, which was neither argued nor considered by the trial judge in this case, provides additional circumstances under which the court may set aside a provision for, or waiver of, support: where the waiver leads to unconscionable circumstances, the waiver is by or on behalf of a dependant who qualifies for support out of a public allowance, or if there is a default in a payment under the contract at the time the application is made.
The DA, for its part, does not confer authority to set aside agreements per se, but does confer authority to make spousal support orders as corollary relief to a divorce. Under s. 15.2 of the DA, as interpreted in Miglin, a valid separation agreement is but one factor to consider in determining whether the court should exercise its authority 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.
Section 56(4) of the FLA deals with intrinsic flaws in the formation of a contract that nullify the apparent consent between the parties and invalidate the agreement, allowing a court to set aside the contract. Section 15.2 of the DA permits a court, looking at both the formation of the contract and all the circumstances at the time of the application, to override the support provisions of an agreement and order support contrary to the agreement: see James McLeod’s annotation on Murray v. Murray (2003), 2003 CanLII 64299 (ON SC), 66 O.R. (3d) 540 (S.C.) (W.L.), rev’d (2005) 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147 (C.A.).
In this case, since the father sought relief under both the FLA and the DA, the trial judge appropriately conducted both analyses.”