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DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS - Variation or amendment

Monday, July 27, 2020 @ 9:20 AM  


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Appeal by the wife from the dismissal of her application to set aside the child and spousal support provisions in the parties’ 2015 separation agreement. The parties were married for 22 years prior to their separation in 2012 and divorce in 2016. For 15 years of the marriage, the wife worked part time to be the primary caregiver for the parties’ children. The parties’ separation agreement, entered into when both parties were represented by counsel, provided the husband would pay $2,150 in monthly spousal support for six years and the parties would equally share all reasonable educational and living expenses of their three children until the children completed their post-secondary education. It further provided for an equal distribution of $16 million in marital property. The agreement indicated the husband’s income was $230,000 and the wife’s income was $130,000. The chambers judge found the agreement met the objectives of the Divorce Act at the time it was executed and was still in substantial compliance with those objectives. He concluded the agreement contained reasonable provisions for the children’s support.

HELD: Appeal allowed in part. The chambers judge erred in his approach to and application of the test in Miglin v. Miglin in refusing to set aside the provisions of the agreement that pertained to spousal support. He failed to conduct a comprehensive analysis of the parties’ incomes and standard of living on an ongoing basis. He failed to carry out the substantial compliance analysis at both stages of the Miglin test. Given the wife’s arguably strong claim to compensatory support and the length of the relationship, the chambers judge was required to analyze the extent to which the agreement provided for an equitable sharing by the parties of the economic consequences of the marriage and its breakdown. The matter was remitted back to reconsider the application to set aside the spousal support provisions of the agreement. There was no basis to interfere with the chambers judge’s exercise of discretion in deciding child support was to be determined under s. 3(2)(b) of the Federal Child Support Guidelines or his conclusion that the agreement contained reasonable provisions for the children’s support. There was no principled reason to set aside the child support provisions of the agreement.

Nicholl v. Nicholl, [2020] B.C.J. No. 1009, British Columbia Court of Appeal, G.J. Fitch, G.B. Butler and J. DeWitt-Van Oosten JJ.A., June 23, 2020. Digest No. TLD-July272020002