May 01, 2018
Schrager, Mainville, Hogue
Appeal from a judgment of the Superior Court granting the parties’ divorce and homologating in part their agreement on corollary relief. Allowed in part.
Following their separation, the parties began discussions that led to an agreement on corollary relief to their divorce in 2011. In particular, they agreed that the husband would not be required to make spousal support payments to the wife as long as his annual income did not exceed $320,000. The trial judge refused to homologate certain provisions of the agreement, including the clause concerning spousal support, finding that she was not bound by it. Relying on the analysis in Miglin v. Miglin (S.C. Can., 2003-04-17), 2003 SCC 24, SOQUIJ AZ-50171042, J.E. 2003-790,  1 S.C.R. 303, she first held that the financial situation of the wife, who had focussed on her family rather than a career, was a consequence of the marriage or its breakdown. She then noted that a significant change – a cancer diagnosis – had occurred since the agreement was signed, and concluded that the agreement no longer reflected the initial intentions of the parties.
Because the question of spousal support is one of public order, it was open to the judge to inquire as to the fairness of the process that led to the agreement. She could also question whether the provision itself was fair. She could not, however, decide unilaterally, and without advising the parties, not to homologate the clause despite their request that she do so. In proceeding in such manner, she set aside a provision of a freely negotiated agreement concluded between informed and represented parties, without giving them an opportunity to be heard. The parties and their counsel must be able to take for granted that a court will decide the debate before it according to the judicial contract they have agreed to and that they will be explicitly advised if, for one reason or another, the court decides to do otherwise.
The judge erred in applying the Miglin test, which was established in a context where one of the spouses explicitly asked the court to set aside or amend an agreement. After having concluded that the process was fair and had given rise to an acceptable agreement, the judge should have determined whether the wife’s partial waiver of spousal support was contrary to public order or if, given the new circumstances, it would render her situation intolerable in the event of homologation. For one, the waiver was not definitive. Moreover, it was essentially because of the consequences of the wife’s illness on her situation that the judge decided not to homologate the clause. The wife’s health had greatly improved, however, as had her financial situation. In these circumstances, the parties’ intentions expressed in the agreement and reiterated during the homologation proceedings, should be respected.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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