Saskatchewan family law act canlii

This appeal asks how a judge should evaluate an agreement that does not meet the formal requirements of a presumptively enforceable agreement under provincial family property legislation. The specific question is whether the Miglin framework ought to apply to agreements that are not presumptively binding under the Saskatchewan Family Property Act (“FPA”). It is inappropriate to import the Miglin framework without modification in light of the structure of the FPA and the nature of family property division. Still, principles from Miglin and other cases dealing with domestic contracts help inform judges’ exercise of discretion under s. 40 of the FPA. The unique context out of which these agreements arise requires courts to approach them with keen awareness of their potential frailties to ensure fairness, having regard for the integrity of the bargaining process and the substance of the agreement. If a court is satisfied of the agreement’s validity and procedural integrity, it then may consider the agreement in determining the appropriate order for the distribution of property. Given the considerable value placed on spousal autonomy to contract in the legislation and the jurisprudence, the substance of an agreement that represents the parties’ subjective understanding of what property division was appropriate in the context of their relationship at the time of separation merits serious consideration. The trial judge erred in failing to consider the terms of the agreement in dividing the family property: there was nothing to suggest the agreement was not binding, that one party took advantage of the other or did not understand the bargain; as a result, the agreement was a relevant factor meriting serious consideration and the trial judge should have determined whether the substance of the agreement was fair and equitable by reference to the legislative scheme. The trial judge also erred in finding this was not a binding agreement. Consensus on all essential terms does not mean that the parties cannot defer the final resolution of an issue where the parties, as here, have included in the agreement a detailed and objective method by which to resolve it later. Neither the lack of disclosure nor the lack of legal advice was a reason to discount the agreement. Disclosure is not a statutory precondition to the enforceability of an agreement under the FPA, even for an interspousal contract. Rather, s. 27(1) provides that a court may order disclosure between spouses upon the commencement of an application under the FPA. The agreement here reflects an intention to split the family home and household goods equally, in line with the special rules for the treatment of the family home in the FPA and essentially keeps separate the rest of the family property (including the investments, businesses, pensions, and debts of each of the parties). In this context, allowing each party to keep their own property and abandon claims to the other’s property is fair and equitable.

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