Saskatchewanians can draft their own separation agreement, Supreme Court says

May 3, 2024

Marie-Hélène Haché

Blog

On May 12, 2023, the Supreme Court of Canada specified when courts must take certain marital agreements into account when distributing family property in Sasktachewan.

This decision does not apply to the rest of Canada, but could have broader impact over the next few years.

Until the Anderson decision, the validity of a spousal agreement was determined by the Miglin decision of the Supreme Court of Canada.

Facts
The parties were married for three years until their separation in 2015. Upon their separation, Ms. Anderson prepared an agreement that provided for the division of their property, with the exception of the family home and household goods, which belonged to them jointly. Both parties signed the agreement in front of two witnesses. Ms. Anderson then filed for divorce. 17 months later, Mr. Anderson petitioned the court to divide the family property, arguing that he had signed the agreement without consulting a lawyer and under duress.

The Supreme Court declared that the agreement had to be enforced despite the absence of independent legal advice. The family home and household goods were to be divided equally based on their value at the date of trial, and ordered Mrs. Anderson to pay Mr. Anderson a difference of approximately $43,000.

Criteria for a valid  hand written agreement

According to Anderson, a domestic contract must be : 

  • in writing; 
  • signed by both parties; 
  •  witnessed.

The Saskatchewan Act, allows the parties to make their own domestic contract without independent legal advice if there is no coercion and their intentions are clear and precise.

Following the Anderson decision, if the contract was made without duress and inequality but without independent legal advice, it could be argued that the provision in question as well as the entire domestic contract may, in some cases, still be valid.

  • without duress and inequality + without independent legal advice = valid

If a provision is binding and the parties have not received legal advice, the Court may decide to remove that provision and keep the rest of the domestic contract valid.

  • binding provision + no independent legal advice = invalid provision but contract may still be valid

What does this mean in New Brunswick?

In New Brunswick, the Matrimonial Property Act (Act), section 43(b), gives discretion to the Court to set aside provisions where there is inequality and a spouse has not received legal advice from an independent person.

Spouses and/or partners need to obtain legal advice before executing a domestic contract. It does not per say, mean that parties cannot draft their own, but require the parties to obtain legal advice.

Takeaways

A domestic contract is an agreement entered into by spouses to arrange certain aspects of their affairs, such as child support, child custody, spousal maintenance or division of family property. Such an agreement may be concluded at the beginning of the conjugal relationship, during it or at the time of separation. (Anderson v Anderson, 2023)

In New Brunswick, the Domestic Contract must not have been made under any pressure or coercion, and the parties must receive independent legal advice. (Matrimonial Property Act, LRN-B 2012, c 107)

A Domestic Constract, can include a marriage contract, a cohabitation agreement as well as a separation agreement as discussed in the Anderson decision.

Getting a lawyer to draft the agreement is the only way to ensure that the clauses and language will be recognized in Court.