Can you Vary Your Separation Agreement and Obtain Retroactive Spousal Support?

Spousal support refers to payments made to a former spouse after separation. In some cases, a party may claim retroactive spousal support to recoup support that should have been paid by a payor spouse back to the date of separation.  

Prior to obtaining retroactive spousal support, you will have to first satisfy the court that you were entitled to spousal support.  Entitlement may be on the basis of need, or it may be to compensate a spouse for the role they gave up during the marriage.   The Spousal Support Advisory Guidelines (the SSAGs) are usually considered by the courts when considering entitlement and duration of support.

When considering whether to award a claim for retroactive spousal support, the court’s will consider a number of factor’s including:

• Why the support was not sought earlier;
• The conduct of the payor spouse;
• The circumstances of the recipient (both past and current); and
• Potential hardship on the payor flowing from a retroactive award.

What if I signed a separation agreement waiving my right to spousal support?

In Leach v Leach 2019 1664, the parties had signed a separation agreement waiving each other’s right to claim spousal support from the other. Twelve years later, the wife applied to set this term of the agreement aside and obtain retroactive spousal support from her ex-husband.  In attempting to do so, the wife argued that she did not understand the agreement and that she felt pressured by her ex-husband to sign the agreement waiving her right to spousal support. 

In considering whether to vary the separation agreement to award retroactive spousal support, the court considered the decision in  Miglin v. Miglin, 2003 SCC 24 [Miglin] at para. 4 where the court stated:

The court will consider the agreement first

[4]  a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement.

The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s. 15.2, but also certainty, finality and autonomy.

Factors considered by the court – retroactive spousal support

In Leach, the court declined to vary the separation agreement and award retroactive spousal support, despite the wife’s need and the husband’s increased salary. The court weighed the following factors in refusing to vary the separation agreement and make an award a claim for retroactive support:

1. The parties had both received independent legal advice when the separation agreement was signed waiving spousal support and the separation agreement had been drafted by counsel;
2. The separation agreement provided for an unequal distribution of family property in favour of the wife (i.e. she got more money from the sale of the family home than her husband in recognition of her weaker position) ;
3. There was no material change in circumstance, the circumstances of the wife were foreseeable at the time the agreement was signed (the wife had a disability when the separation agreement was signed, it was foreseeable that she would continue to suffer from that disability in the future);
4. The parties had clearly intended the separation agreement to be a final resolution of all of their issues and both parties had relied on it – twelve years had passed since the separation agreement was signed.

To learn more about the importance of family law agreements, click here.

Take away points from Leach v Leach:

1. The courts will consider in a holistic manner the context in which your separation agreement was signed.
2. Delay will hurt your case, if you’ve signed a separation agreement waiving your right to spousal support that you think is unfair, contact a family law lawyer as soon as possible.
3. If you received independent legal advice prior to signing the agreement it is unlikely the courts will agree that you didn’t know what you were signing or what the effect of the agreement was.
4. Any hardship the payor might suffer if forced to pay a retroactive support order will be taken into account.
5. The courts will consider whether the payor has engaged in misconduct of some sort (i.e. improper disclosure at the time the agreement was signed).

If you are in a situation where you need to receive or pay spousal support, contact Laura Allan of Nasser Allan LLP.  Laura deals with all aspects of spousal support including retroactive spousal support payments and agreements dealing with spousal support payments.  Call us now on 604 620 8682.