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MAINTENANCE AND SUPPORT - Child support – Spousal Support - Considerations - Agreement - Variation or termination of obligation - Economic disadvantage of marriage

Tuesday, September 26, 2017 @ 8:51 AM  


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Appeal by the husband from an order for retroactive child and spousal support in favour of the wife. The parties married in 1987 and separated in 2006. They had four children, born between 1987 and 1995. The husband supported the family financially while the wife looked after the household and the children. In 2007, the wife re-entered the workforce as a teacher's assistant. In 2010, a separation agreement purported to resolve property and support. The husband complied with the agreement until 2014, when he stopped making regular payments following an interruption to his employment. The husband drafted an amending agreement to reflect his lower income. He reduced his child support payments and adjusted the schedule for spousal support while maintaining the overall amount payable. The wife signed the agreement. The husband ceased all payments in April 2015. The wife applied for retroactive support based on the initial and amended agreements. The chambers judge refused to enforce the 2014 amending agreement due to uncertainty surrounding its execution. The judge awarded the wife retroactive support in accordance with the 2010 agreement. The husband appealed.

HELD: Appeal dismissed. The chambers judge properly considered the presence of unfairness in the negotiation process and the absence of legal advice prior to execution of the 2014 agreement. Any inequity in bargaining position favoured the husband, as he was the primary income earner and he had drafted the agreement. The judge was aware of the husband's employment difficulties and his corresponding drop in income. The husband's 2016 income was not substantially different from his income stated in the 2010 agreement. During periods of higher earnings, the husband did not adjust his support payments to reflect his higher income. The wife continued to experience the consequences of the breakdown of the marriage. Her earning capacity was unlikely to change. She remained entitled to spousal support. There was no error in enforcing the 2010 agreement.

Masson v. Twerd, [2017] A.J. No. 933, Alberta Court of Appeal, J.D.B. McDonald, B.K. O'Ferrall and M.G. Crighton JJ.A., September 12, 2017. Digest No. TLD-Sept252017005