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MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income - Spousal support - Considerations - Agreement - Circumstances where order refused

Monday, October 23, 2017 @ 8:40 AM  


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Appeal by the wife from denial of spousal support and imputation of income. The parties married in 2003 and separated in 2013. They had two children. In 1997, prior to their marriage, the parties signed a cohabitation agreement in which the wife released her claim to spousal support. The husband had experienced a prior acrimonious separation and sought to avoid a similar situation. He presented the wife with the agreement and she declined to obtain independent legal advice, despite an opportunity to do so. Following separation, the wife sought, among other things, spousal support. The trial judge upheld the cohabitation agreement, dismissed the claim for spousal support, and determined the parties’ income for child support based on imputation of a $40,000 income to the wife due to under-employment. The wife appealed the refusal of spousal support and the determination of income.

HELD: Appeal dismissed. The wife failed to establish an error of law or misapprehension of fact by the trial judge. The wife was aware of the husband's desire for a cohabitation agreement. The husband's income and assets were disclosed. The wife read parts of the agreement and declined to obtain independent legal advice in the six weeks she considered the agreement. There was no fraud, coercion or duress. The wife thought the agreement was fair when she signed it. The agreement was in substantial compliance with the Divorce Act. In any event, in the absence of the cohabitation agreement, the wife was not likely entitled to spousal support. The findings and conclusions regarding the imputation of income were available to the trial judge on the evidence, and were entitled to deference.

J.S. v. D.B.S., [2017] O.J. No. 5115, J.L. MacFarland, D. Watt and M.L. Benotto JJ.A., October 2, 2017. Digest No. TLD-October232017001