Can the courts set aside my spousal support agreement?

The Divorce Act and the Family Law Act both recognize that spouses may subsequently seek to set aside the spousal support agreements they have already negotiated domestically.

The Divorce Act states that a court is permitted to take the following approach, albeit a narrow one, in determining whether to set aside the domestic contract:

• The court will review the context and circumstance of the agreement. This should point towards whether the agreement was in substantial compliance with the objectives and spirit of the Divorce Act (i.e. finality, autonomy, and certainty); and,
• The court will also depict whether the agreement is still a reflection of the parties’ original intention and whether it still complies with the objectives of the Divorce Act.

Ultimately, as was evidenced in the leading case Miglin v. Miglin, if the terms were unimpeachably negotiated, the agreement is a comprehensive one, and it stands in compliance with the Divorce Act, the courts will predominantly uphold the terms of the agreement.

However, the Family Law Act states that a court has the jurisdiction to set aside an agreement entailing a waiver of spousal support if it was negotiated within unconscionable circumstances. That is, if the circumstances during the execution of the contract, the results of the support clause, and the parties' circumstances at the time of the hearing were unconscionable.

To learn more about setting aside spousal support agreements as well as the services provided by Krol & Krol, call 905.707.3370 today.