Law Times

Law Times • November 13, 2017 Page 13 www.lawtimesnews.com ing self-supporting," requiring "no financial assistance from the other." Even in the event of "drastic changes in health, income, assets and debts" or other unforeseen factors, they agreed that "under no circumstances, however cata- strophic or unconscionable, will any change, direct or indirect, or unforeseen, give either the right to claim any support or mainte- nance from the other." At trial, the wife sought spou- sal support and to have the co- habitation agreement set aside, arguing that it did not meet the provisions of the Divorce Act. But after applying the test set out in the Supreme Court's 2003 decision Miglin v. Miglin, the judge found the agreement was in "substantial compliance" with the act. In any case, he found that she wouldn't have been en- titled to spousal support even without the agreement in place. The first stage of the two-step Miglin test requires judges to consider the circumstances sur- rounding the negotiation and execution of the agreement and whether it met the objectives of the Divorce Act at the time of its signature. At the second stage, judges must decide whether the agreement still ref lects parties' original intention and remains in compliance. On appeal, the wife claimed that the trial judge failed to con- sider crucial facts in applying the test, such as the power imbalance between the parties, and that the couple had never discussed spousal support. In addition, she argued that a few glimpses at her partner's pension state- ment in the mail did not amount to complete financial disclosure and that the trial judge had mis- stated her income at the time of the agreement's signature. She also claimed the agree- ment could not align with the objectives of the Divorce Act ei- ther at the time of signing or at present because she had borne primary responsibility for the couple's children during their 18-year relationship and had a smaller income than his. But the appeal court rejected her submissions, noting that the trial judge was within his rights to find, among other things, that the wife knew of her husband's desire to have a cohabitation agreement, that she knew his sources of income and failed to pursue further financial dis- closure and that she declined to search out legal advice despite having at least six weeks to do so. "She has shown no error of law or misapprehension of fact on the part of the trial judge. If the trial judge misstated the wife's income at the date of the agreement, the error was not material. There is no suggestion that the income of the parties at the date of the agreement im- pacted her decision to sign the agreement," the panel wrote in its Oct. 2 decision. Jennifer Klotz, who acted for Johnny Smith on the appeal, tells Law Times that her client was "ecstatic" to have a degree of finality after a four-year fight. "His ex-wife's position was essentially that she hadn't read the document she signed and didn't know what was in it," says Toronto-based Klotz. "The les- son here is that you can't really plead ignorance in terms of this kind of contract." Despite the appeal court deci- sion upholding the cohabitation agreement in this case, David Frenkel, a lawyer with family law boutique Gelman & Associates, says lawyers should still take care to inform clients that there are no guarantees when it comes to domestic contracts. "It's not a sure deal that every- thing in the agreement will be upheld. When a marriage con- tract is disputed, the contract it- self becomes just one factor that the judge considers," he says. "People can lose sight of that and think that, once they've entered the contract, that becomes the be-all and end-all. But the over- riding principle is fairness, and if the contract results in an unfair situation, it will be looked at very carefully." Cheryl Goldhart, president of family law firm Goldhart & As- sociates, says it's relatively com- mon for people who sign co- habitation or marriage contracts to have second thoughts further down the road. "I tell every one of my clients entering a contract that it's not something they can give f leeting thought to and then just forget about," she says. "The problem is that people don't think anything can go wrong when they're at the beginning of a relationship. "When people treat it like a business deal and view the agree- ment as an important document that will protect both themselves and their partner, that's when you get a contract that will stand the test of time," she adds. Goldhart says that drafting standards have helped improve the fairness of contracts when at least one side is represented by a lawyer, making courts less likely to intervene. "You don't get so many agree- ments where all the property is excluded and one side is com- pletely released from any obliga- tions," Goldhart says. She says she has even turned down retainers from potential clients who wanted to give their spouses an unfair deal. "If you sense there's some pressure or someone says they will sign anything, that sets off warning bells for me," Goldhart says. "It will only end in a giant fight." LT FAMILY LAW BOUTIQUES Russell Alexander says when it comes to family law matters, the 'pendulum appears to have swung toward holding people to their contracts.' Move to get support could be blocked Childview_LT_Nov6_17.indd 1 2017-10-31 12:05 PM Tim Boland Darcy Romaine Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS Thornhill v Shadid, 2008 ONSC 3404 Silveira v. Regional Municipality of York, 2014 ONSC 65 Roycroft v Kyte, 1999 OJNO 296 (Sup Ct.) For further liability verdicts, ask for our Trial Report Card MUNICIPAL LIABILITY? Consider referring your client to us Untitled-2 1 2017-09-27 2:05 PM

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