In Sandy v. Sandy 2018 BCCA 182 the parties filed a consent order incorporating the terms of their settlement agreement which provided the wife with lump sum spousal support of $411,000. The wife later applied for and obtained a variation order awarding her monthly support of $5, 500 despite the language in their Minutes of Settlement that read: “The Plaintiff’s claim for spousal maintenance shall be dismissed as if tried on the merits.”
On the husband’s appeal the court considered two questions. The first was whether an order dismissing spousal support could be varied pursuant to section 17 of the Divorce Act. The second was whether an order dismissing spousal support could be reopened via a first instance application for spousal support pursuant to section 15. 2 of the Divorce Act. The court determined that an order dismissing spousal support could not be varied, but a first instance application could be brought.
The court provided this commentary about drafting and achieving finality and certainty in an order or agreement:
“In my view the message to drawn from Miglin and LMP is that certainty and finality cannot be achieved by drawing orders that dismiss claims for support. Nor do embellishments such as “as if after trial” or references to “future claims” assist. Rather, parties wishing to achieve finality should set out in an order or agreement the potential change in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations.”
The husband’s appeal was allowed with the court applying the Miglin test. They determined that at the time the agreement was entered into, it was unimpeachably negotiated and in compliance with the Divorce Act. With respect to the second branch of the Miglin test, they stated that Ms. Sandy had the burden of establishing a material change in circumstances not within the contemplation of the parties when they entered into their agreement. The court noted that Mr. Sandy’s financial statement contained the following statement: (income) “fluctuates year to year based on earnings of the partnership” which negated the notion that a change in income had not been expected or contemplated. The court reversed the order for monthly support .
Lawdiva aka Georgialee Lang