“In determining Sharon’s entitlement to interim spousal support, this Court must first consider whether the Marriage Contract is a bar to the relief sought?
The Court of Appeal has made it clear that courts should strive to uphold domestic contracts. Courts should treat the parties’ reasonable best efforts to deal with their affairs as reflected in an agreement as presumptively dispositive. This is particularly so where the agreement at issue was negotiated with independent legal advice (see Dougherty v. Dougherty, 2008 ONCA 302, paras 9-10; Butty v. Butty, 2009 ONCA 852 at para 50).
Notwithstanding the direction of the Court of Appeal, Justice Fryer notes in Balsmeier v Balsmeier that
.. there are still too many cases brought before the court wherein one party attempts to set aside an otherwise valid contract in the hopes of shaking loose a more favourable resolution from the wealthier party (2016 ONSC 3485, at para 37).
Having said that, as noted by Justice Monahan in her recent 2021 decision in Gordon v. Zuckerman,
Interim support pursuant to the Divorce Act is not necessarily barred by the waiver of spousal support in an agreement if, on the evidence filed on the motion for temporary support, there is a triable issue as to the enforceability of the waiver. This is particularly the case in circumstances where, if the enforceability of the contract were to be upheld at trial there are assets in the recipient’s name that can be used to compensate the payor for any overpayment of support (2021 ONSC 4576 at para. 19).
In their argument both counsel for Sharon and James agree that in order for Sharon to be awarded temporary spousal support in the face of the Marriage Contract, she must address the two-stage analysis stipulated by the Supreme Court of Canada in Miglin v Miglin, 2003 SCC 24 (CanLII), [2003] 1 SCR 303.
In Gordon, Justice Monahan succinctly describes the two stage Miglin analysis as follows:
Stage one requires a consideration of the circumstances in which the agreement was negotiated and executed, in order to determine whether there is any reason to discount it on that basis. This first stage also considers the substance of the agreement to determine whether its terms are in substantial compliance with the objectives of the Divorce Act.
Assuming the contract satisfies the analysis at stage one, stage two of the Miglin test considers the current circumstances of the parties to determine whether the agreement still reflects their original intentions, as well as the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act (at para. 21).
Where counsel for Sharon and James disagree, however, is the appropriate burden that Sharon must meet before an award of interim spousal support is to be granted.
Counsel for Sharon submits that she need only demonstrate on this interim motion that there is triable issue respecting:
a) the circumstances in which the agreement was negotiated and executed;
b) whether the Marriage Contract is in substantial compliance with the DivorceAct; or
c) whether 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 DivorceAct.
In support of his submission, counsel relies on the decisions of this Court including Chaitas v. Christopoulos, 2004 CanLII 66352, LaFrance v. Charbonneau, 2011 ONSC 6462, Pate v. Pate, 2015 ONSC 2024, Schulman v. Ganz, 2015 ONSC 3254 and Gordon v. Zuckerman. In all of these decisions the Court found that the contract between the parties did not constitute a bar to an order for temporary spousal support pending trial on the basis of a triable issue as to the enforceability of the limitation on spousal support.
On the other hand, James’ counsel argues that if the two-stage analysis as set out in Miglin is to have any meaning and the direction of this province’s Court of Appeal regarding the presumptively dispositive nature of agreements is to be respected, Sharon’s burden must be significantly greater than the establishment of a triable issue.
Counsel relies on the 2005 decision of this Court in Jones v. Murray in which Justice Wood found that interim relief should be granted in the face of a separation agreement only where the moving party can successfully demonstrate:
a) a substantial likelihood of success at trail with respect to one or more of the factors stipulated in the Miglintwo stage analysis;
b) that the failure to grant interim relief will cause irreparable harm to the party seeking the relief; and
c) that granting the relief will not cause harm to the other party which cannot be compensated (2005 CanLII 23318 at paras 9-10).
Counsel for James did not, however, direct me to any subsequent decision that imposed the “substantial likelihood of success” test where interim spousal or child support (as in the case of Jones) was sought in the face of a contract limiting support.
For this reason, I am not prepared to require that Sharon demonstrate a substantial likelihood that she can meet the Miglin test at trial. I prefer to follow the “triable issue” test imposed in Chaitas and consistently followed since 2004 and as recently as last year by Justice Monahan in Gordon.
Having said that, I do note that in each of the above referenced decisions where the Court applied the “triable issue” test, the Court found there was a triable issue of some significance. In both Chaitas and Gordon, for example, Justices Sachs and Monahan specifically found that there was a “serious issue” as to whether the limitation on spousal support should be set aside on the basis of the Miglin analysis (see Chaitas at para 25 and Gordon at para 30). Therefore, I am of the view that not any triable issue will open the door for interim relief to be granted in the face of an agreement limiting support but rather interim relief is to be granted in those circumstances only where there is a significant or serious issue as to whether the agreement would pass the Miglin test.”