Tessema v. Hagos 2017 ONSC 2438

 This case reviewed some of the themes in Miglin v. Miglin in order to determine whether a separation agreement can or ought to be set aside. Ultimately it followed the tests and analyses set out therein.

Background

The parties separated after 19 years of marriage and two children, with the children moving in with their father after the separation. The spouses entered into a separation agreement which stated that he would waive any entitlement he had to the mother’s property in Ethiopia, and dis-entitled her to spousal support or any share in his pension. The mother would not have to pay child support.

The mother then sought to have the agreement set aside, seeking equalization and spousal support. The setting aside of a separation agreement invokes an analysis set out in Miglin v Miglin. The trial judge found that while there was no reason to hold the contract invalid on its face, he would not uphold her waiver of support. He cited a lack of compliance with the objectives of the Divorce Act. He therefore ordered that the mother pay child support, and that the father pay her spousal support. The two amounts would offset each other for a net amount payable by the father of $787 per month. The father appealed.

Analysis

The judge allowed the father’s appeal in this instance because the trial judge was required to determine whether the separation agreement as a whole was in substantial compliance with objectives of the Divorce Act. By focusing on the terms surrounding spousal support and whether they complied with the spousal support guidelines, the judge failed to take into account several factors that give context to the agreement. Such factors include other terms of the contract, her means at the time that the agreement was formed and whether or not there had been a change in circumstances since then.

In spite of waiving support, the mother was not in financial ruin, given that she was receiving benefit from two rental properties in Ethiopia and did not have to pay child support. Therefore, the way that the separation agreement was structured overall did appear to comply with the objectives of the Act. The appeal court found that the trial judge erred firstly in awarding spousal support in light of the mother’s contractual waiver of spousal support, and secondly in the implementation of child support payments that the father did not request.