2012 NBCA 71, 2012 NBCA 71

COURT OF APPEAL OF NEW BRUNSWICK 116-11-CA C.M.H. (Applicant) APPELLANT - and - J.R.H. (Respondent) RESPONDENT C.M.H. (Requérante) APPELANTE - et - J.R.H. (Intimé) INTIMÉ C.M.H. v. J.R.H., 2012 NBCA 71 C.M.H. c.

J.R.H., 2012 NBCA 71 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: August 17, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 17 août 2011 History of the Case: Historique de la cause : Decision under appeal: Decision – August 17, 2011 (Unreported) Décision frappée d’appel : Décision – Le 17 août 2011 (inédite) Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 316 (QL) Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 316 (QL) Appeal heard: February 21, 2012 Appel entendu : Le 21 février 2012 Judgment rendered August 9, 2012 Jugement rendu : Le 9 août 2012

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at the hearing: For the appellant: Mary Ann G. Holland For the respondent: James K. O’Connell, Q.C. Avocats à l’audience : Pour l’appelante : Mary Ann G. Holland Pour l’intimé : James K. O’Connell, c.r. THE COURT The appeal is dismissed with costs of $1,000. LA COUR Déboute l’appelante et ordonne le versement de dépens de 1 000 $.

The judgment of the Court was delivered by QUIGG J.A. I. Introduction [ 1 ] C.M.H. (the wife) appeals the decision of a judge of the Court of Queen’s Bench, Family Division, who denied her claims for spousal support, on an interim basis, pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2 nd supp.). The question before us is how to approach a request for spousal support on an interim basis when there is a comprehensive marriage contract in place which precludes such a request. II. Factual and Procedural Background [ 2 ] The parties commenced cohabitating in March 1999.

They have one child who is presently 13 years of age. On March 15, 2002, the parties executed a marriage contract in anticipation of their marriage. The terms of this contract provided that neither party would be entitled to support from the other upon separation regardless of any changes in either party’s

respective financial circumstances. It also provided that each party would own assets in his or her own name free from any claim of the other and that each would be solely responsible for debt incurred in his or her own name. The parties married on April 16, 2002. [ 3 ] Early in the relationship the wife worked in a laundry, a cafeteria, a dental office and trained to become an esthetician. The parties differ regarding the extent to which the wife was involved in the maintenance and management of apartments owned by the husband in his name alone.

From the date of the marriage, until 2005, the wife worked full time outside the home. [ 4 ] In 2007, the wife developed fibromyalgia, which the husband acknowledges. The husband disputes the wife’s family doctor’s conclusion that she “may eventually be able to work but she has much to improve before she will be able to withstand the physical regimen of working outside the home”. He believes the wife is capable of undertaking some form of employment at this point. At the time the parties met, the husband was a loans officer. He became a financial advisor and, since 2005, has been employed as a stock broker.

The parties separated on November 24, 2010, after 11 years of cohabitation. [ 5 ] On March 4, 2011, the wife filed a Notice of Application and Notice of Motion seeking spousal support, among other things. Pursuant to an interim order dated March 22, 2011, the parties have joint custody of their son, and his primary care and residence is with his mother. The portion of the interim motion pertaining to spousal support was heard on July 28, 2011.

At the time of the motion regarding spousal support, it was determined that the wife receives a monthly Canada Pension Plan allowance of $526 as well as child support, the child tax credit and GST payments. The motion judge determined the husband’s income to be $59,550 for child support purposes. [ 6 ] The wife’s recollection of the situation surrounding the execution of the contract with independent counsel differed from the testimony offered by the solicitor who provided the independent legal advice. The motion judge rejected the wife’s argument that she believed the contract only pertained to the marital home.

The husband testified the domestic agreement had been entered into by the parties in contemplation of their marriage, and that the agreement was designed to protect each party from liability for the financial well-being of the other. Furthermore, the husband testified that the wife has difficulty managing finances, which was the main motivation for the contract.

There was also testimony to the effect that the husband had advised the wife he would not marry without a contract in place, that he had hired a lawyer on a previous occasion to prepare a contract, which was never executed, and the parties had consequently not married at that time. The motion judge denied the wife’s claim for interim spousal support on the basis that it was precluded by the terms of the existing marriage contract. III Issues on Appeal [ 7 ] The wife alleges the motion judge erred in law by: (

a) Failing to properly determine whether the marriage contract complied with the objectives set out in s. 15 of the Divorce Act ; (

b) Failing to consider whether the marriage contract substantially complied with the objectives of the Divorce Act , in light of the wife’s illness; (

c) Concluding there were no vulnerabilities on the part of the wife notwithstanding the standard of review has changed since the date of the execution of the marriage contract; (

d) Failing to consider whether the exclusion of spousal support in the marriage contract was unconscionable within the meaning of s. 115 (5) (

a) of the Family Services Act , S.N.B. 1980, c. F-2.2; (

e) Determining that a Canada Pension disability pension of $526 per month was income sufficient to disqualify the wife from interim spousal support;

(

f) Failing to consider whether the husband is estopped from relying upon the marriage contract due to his payment of debts in thewife’s name during the marriage; (

g) Misinterpreting the motion as claiming relief for the division of assets and debts; (

h) Failing to determine whether the wife should be maintained on the husband’s health and dental plan; and, (

i) Making a statement that he would have a discussion with a witness following the hearing, which, if made, was not open toexamination by the wife. IV. Standard of Review [8] This Court set out the standard of review generally applicable in family cases in Smith v. Smith,2011 NBCA 66, 375 N.B.R. (2d) 208: In family cases, trial judges' decisions are given considerable deference. In MacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d)179, Larlee J.A. says: The standard of review that applies to family matters generally is that the judge's decision must be given considerable deference.

Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R.518, [1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87,338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v.

V.B., 2007 NBCA 69,321 N.B.R. (2d) 314, para. 2). [para. 7] The standard of review in spousal support cases is discussed in Milton v. Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, where LarleeJ.A. stated: [...] In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension of theevidence, or the award is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL),at para. 11 and Pollock v. Rioux (2004), 278 N.B.R. (2d) 351, [2004] N.B.J.

No. 467 (QL), 2004 NBCA 98, para. 27). [para. 14] Richard J.A. discusses the standard of review respecting findings of fact in Lang v. Lang, [2007] N.B.J. No. 348 (C.A.) (QL): The law is equally clear that the Court of Appeal cannot re-try a case. The Court of Appeal may only overturn a trial judge's finding offact [if] it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded upon an errorof law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (seeHousen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 S.C.C. 33 and H.L. v. Canada(Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings of fact, and British Columbia(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J.

No. 76 (QL), 2003 S.C.C. 71,at para. 43, with regard to discretionary orders). [para. 3] Therefore, in New Brunswick, although this deferential standard of review has been applied in spousal support cases, appellate courts caninterfere when a trial judge's key findings rest upon palpable and overriding errors of fact. [paras. 10-12]

[9] With respect to decisions on motions, in Bourque v. Bourque, 2004 NBCA 60, 274 N.B.R. (2d)72, Larlee J.A. says: The law establishes that appellate courts owe deference to a motion judge's decision in family law cases. In order to overturn supportorders, we must find that the motion judge's reasons disclose an error in principle, a significant misapprehension of the evidence, or thatthe award is clearly wrong: see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 at 525-526 as applied in Fletcher v.Keilty, 2004 NBCA 3 , [2004] N.B.J. No. 152 (C.A.) (Q.L.) at para. 50; Adams v.

Adams (2003), 2003 NBCA 10 , 256N.B.R. (2d) 136 (C.A.) at para. 4; and Arsenault at para. 10. [para. 10] [10] The decision appealed from is interim. The final application is yet to be heard. In Wellman v.Gillcash, 2003 NBCA 36, [2003] N.B.J. No. 214 (QL), this Court dismissed an appeal of an interm order for spousal support. In sodoing, this Court discussed Sypher v. Sypher, (ON CA), [1986] O.J. No. 536 (C.A.) (QL): At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the orderand trial.

I further observe that interim orders are more susceptible of error than orders made later; but the purpose of the interim order issimply to provide a reasonably acceptable solution to a difficult problem until trial. At trial after a full investigation of the facts a trial judge may well come to the conclusion that a substantially different order should bemade. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat theterms after trial. This is not so.

The trial judge's discretion is unfettered and his judgment will be rendered on a full investigation of thefacts. Having those principles in mind then, an appellate court should not interfere with an interim order unless it is demonstrated that theinterim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a

summary interim proceeding. Inmy view the appellant in this case has not demonstrated that this order falls outside of that ambit and the appeal must be dismissed. [paras. 2-4] [11] In New Brunswick, this deferential standard of review has generally been applied in spousalsupport situations. The decision may only be overturned if the motion judge’s decision is clearly wrong or if he made a palpable andoverriding error in his assessment of the evidence. V. Analysis A.

Alleged error in the application of the Miglin test [12] The wife submits the motion judge erred in law by failing to consider the circumstances underwhich the marriage contract was negotiated, or by failing to refer to the correct standard, and by not referring to or applying theobjectives of the Divorce Act at the time the marriage contract was negotiated, and subsequently applied. [13] The husband contends the motion judge correctly identified and applied the appropriate test asset out in Miglin v.

Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 in determining that the wife was precluded from claiming spousal supportand that no error of law was committed. [14] In Miglin, the Supreme Court established a two-stage test to determine the effect of an existingsupport agreement on a subsequent application for support. In Carrier v. Carrier, 2007 NBCA 23, 312 N.B.R. (2d) 285, Larlee J.A.stated:

Miglin stands for the proposition that any agreement that deals with spousal support is open to subsequent review by a court. The grounds under which an agreement can be reviewed are narrow, but Miglin does give a court the jurisdiction to examine the agreement in determining whether spousal support should be granted. There are two steps to the first stage of a Miglin analysis. First, a court must look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.

That will entail looking at the conditions of the parties, including the existence of any circumstances of oppression, pressure, or other vulnerabilities. A court must also take into account all of the circumstances, including those set out in s. 15.2(4)(

a) and ( b ), and the conditions under which the negotiations were held, such as their duration and whether there was professional assistance. The Supreme Court points out that the mere presence of vulnerabilities will not, in and of itself, justify the court's intervention, as the professional assistance received by the parties will often overcome any systemic imbalances between the parties.

Secondly, if a court comes to the conclusion that the agreement should not be discounted as a result of the circumstances under which it was negotiated and executed, then it must look at the substance of the agreement, including the extent to which the agreement takes into account the factors and objectives listed in the Act . These factors and objectives reflect an equitable sharing of the economic consequences of marriage and its breakdown.

If the agreement shows a significant departure from the general objectives of the Act the court's intervention will be warranted on the basis that there is not substantial compliance with the Act . The court must examine the spousal support considerations in s. 15.2, as well as the finality and certainty of an agreement, and the emphasis in the Act on parties settling their own affairs. [paras. 10-12] [ 15 ] In Miglin , the Supreme Court determined the weight to be given to existing spousal support agreements where a party attempts to modify the agreement.

In that case, the agreement contained a full and final release of any future claims for spousal support. The Court says: Nevertheless, the language and purpose of the 1985 Act militate in favour of a contextual assessment of all the circumstances. This includes the content of the agreement, in order to determine the proper weight it should be accorded in a s. 15.2 application. In exercising their discretion, trial judges must balance Parliament's objective of equitable sharing of the consequences of marriage and its breakdown with the parties' freedom to arrange their affairs as they see fit.

Accordingly, a court should be loathe to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act . This is particularly so when the pre-existing spousal support agreement is part of a comprehensive settlement of all issues related to the termination of the marriage.

Since the issues, as well as their settlement, are likely interrelated, the support part of the agreement would at times be difficult to modify without putting into question the entire arrangement. [para. 46] [ 16 ] The Court goes on to discuss effects of the objectives of the Divorce Act upon existing agreements: It is settled that Parliament has vested in courts the discretion to review and reject the terms of a pre-existing agreement: Pelech , at p. 827. Nevertheless, this discretion should not be exercised lightly.

A purported inequality in asset distribution is not necessarily a sufficient basis to disregard the parties' declared intention to be bound by the terms of the agreement they reached. In fact, here there was no such inequality, as properly admitted by counsel for the respondent during the hearing of this appeal. Further, we do not accept that the weight to be afforded a pre-existing agreement should be determined solely by the extent to which that agreement is consistent with the specific objectives of spousal support orders listed in s. 15.2(6) of the Act . Such an

interpretation is not consistent with the language and objectives of the Divorce Act more generally. […] Furthermore, exclusive focus on the s. 15.2(6) objectives leaves no room for the parties to apply their own values and pursue their own objectives in reaching a settlement. The objectives in s. 15.2(6) may not sufficiently account for the many ways in which couples structure their marital relationship and face its dissolution.

To impose on all separating or divorcing persons an obligation to adhere strictly and exclusively to the statutory spousal support objectives denies them the autonomy to organize their lives as they see fit and to pursue their own sense of what is mutually acceptable in their individual circumstances. Accordingly, the spousal support objectives should not operate so as to preclude parties from bringing their own concerns, desires and objectives to the table in negotiating what they view as a mutually acceptable agreement, an agreement they consider to comply substantially with the objectives of the Act .

In that way, the policy goals of autonomy and certainty will be rendered consistent with Parliament's recognition of "the diverse dynamics of the many [page338] unique marital relationships" ( Bracklow, supra , at para. 35).

[…] We are of the view that, rather than trying to measure whether the terms of a comprehensive agreement advance the objectives of support set out in s. 15.2(6), trial judges must consider the agreement more broadly in light of all the objectives of the Divorce Act . These objectives of the Act as a whole, as compared with the objectives set out in s. 15.2(6), include the compelling policy goals of certainty, autonomy and finality.

These legislative objectives require the trial judge to consider the extent to which the agreement represents a final settlement of the issues, negotiated under unimpeachable conditions, to which both parties agreed and on which each of them intended to rely.

It is only then that the judge will consider whether the agreement must nevertheless be set aside in full or in part because it is not in substantial compliance with the broader objectives of the Act . [paras. 51, 55 and 57] [ 17 ] In Miglin , the Supreme Court further discusses the emphasis the Divorce Act places upon the autonomy of parties to reach their own agreements: The role that these objectives was intended to play, however, must be understood in the proper statutory context.

Whether by way of an initial application or an application to vary, the criteria listed in s. 15.2(6) and s. 17(7) pertain to spousal support orders imposed by the court. Nowhere in the Divorce Act is it expressed that parties must adhere strictly, or at all, to these objectives in reaching a mutually acceptable agreement. Rather, the listed objectives relate only to orders for spousal support, that is, to circumstances where the parties have been unable to reach an agreement.

Moreover, the positive obligation that the Act places on counsel to advise their clients of alternatives to litigation, noted above, indicates Parliament's clear conception of the new divorce regime as one that places a high premium on private settlement. Parliament's preference appears to be that parties settle their dispute, without asking a court to apply s. 15.2(6) to make an order. This is not to suggest that the objectives are irrelevant in the context of a negotiated agreement. The parties, or at least their counsel, will be conscious of the likely outcome of litigation in the event that negotiation fails.

Consideration of the statutory entitlements will undoubtedly influence negotiations. But the mutually acceptable agreement negotiated by the parties will not necessarily mirror the spousal support that a judge would have awarded. Holding that any agreement that deviates from the objectives listed in s. 15.2(6) be given little or no weight would seriously undermine the significant policy goal of negotiated settlement. It would also undermine the parties' autonomy and freedom to structure their post-divorce lives in a manner that reflects their own objectives and concerns.

Such a position would leave little room to recognize the terms that the parties determined were mutually acceptable to them and in substantial compliance with the objectives of the Divorce Act . [para. 66] [Emphasis added.] [ 18 ] The Court also discusses the following: The parties' intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight.

We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties' circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be "radically unforeseen", and the applicant need not demonstrate a causal connection to the marriage, the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties' intentions at the time of execution and the objectives of the Act .

Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. We stress that a certain degree of change is foreseeable most of the time. The prospective nature of these agreements cannot be lost on the parties and they must be presumed to be aware that the future is, to a greater or lesser extent, uncertain.

It will be unconvincing, for example, to tell a judge that an agreement never contemplated that the job market might change, or that parenting responsibilities under an agreement might be somewhat more onerous than imagined, or that a transition into the workforce might be challenging. Negotiating parties should know that each person's health cannot be guaranteed as a constant. […] Although we recognize the unique nature of separation agreements and their differences from commercial contracts, they are contracts nonetheless.

Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act , that the court may be persuaded to give the agreement little weight [...]. [paras. 88, 89 and

91] [Emphasis added.] Recently in L.M.P. v.

L.S. , 2011 SCC 64 , [2011] 3 S.C.R. 775 , the Court, dealing with a variation application under s. 17 of the Divorce Act seeking a reduction and, ultimately, a cancellation of spousal support, examined the question of what weight should be given to a separation agreement when its provisions are incorporated into a court order. (For a discussion regarding Miglin , see paras. 20 and 64 in particular.) [ 19 ] A review of the decision under appeal demonstrates the motion judge considered the circumstances which existed at the time of the signing of the marriage contract and made a finding of fact that the marriage contract was executed with the assistance of independent legal advice : I understand how, in desperate circumstances, a person may well stretch a point to support his/her position.

In this case, Ms. [H.] denied she had any meaningful legal advice from a lawyer independent of her prospective husband. This is not stretching a point. In the circumstances, this is a fabrication. The viva voce evidence before me, supported by such correspondence as was submitted, establishes Ms. [H.] had excellent service from her legal counsel, Mr. Bishop. There is no basis to argue she signed the document ignorant of its purpose or the consequences of her signature. Her assertions Mr.

Bishop provided anything less than good and valuable service are, in this case, an unfair slur upon a good lawyer to try to create a challenge where none exists. I wholly reject her allegation she did not receive good, independent legal advice with respect to this prenuptial agreement. [para. 15] [ 20 ] The motion judge correctly undertook part one of the Miglin test. He considered the position of the parties at the time they entered into the marriage contract, their respective financial situations as well as the fact that each party had obtained independent legal advice prior to signing the contract.

A review of the record reveals the parties understood the terms of the marriage contract and conducted their affairs in accordance with its terms.

For example, the husband refinanced his residential property on more than one occasion after the marriage and on each occasion the wife signed the mortgages as a spouse who had no proprietary interest in the property due to the contract. [ 21 ] The wife submits that even if the motion judge was correct in determining there were no vulnerabilities at the time the marriage contract was executed, he erred in failing to consider the second requirement of part one of the test.

That is, whether the substance of the contract met the objectives of equitable sharing of the economic consequences of the marriage and its breakdown. [ 22 ] In Miglin it is clear the Court considered policy objectives as well as the objectives of the Act .

In the case before us, the parties specifically contemplated changes in health and expressly contracted that “change[s] in their respective financial circumstances, whether by reason of health, employment, cost of living change or otherwise” would not entitle either party to spousal support: SPOUSAL SUPPORT The parties acknowledge that they are each self-supporting and that each agree that neither shall, at any time in the future seek, ask, demand or, in any manner, require or make any claim for monies for their own support or maintenance from the other.

Regardless of any change in their respective financial circumstances, whether by reason of health, employment, cost of living change or otherwise, neither party shall be entitled to receive spousal support from the other in the event of separation or divorce pursuant to any legislative provision or the operation of common law. This acknowledgement is made with full knowledge and consideration of the provisions of the Divorce Act and the Family Services Act . [Marriage Contract, para. 9] [ 23 ] In Hartshorne v. Hartshorne , 2004 SCC 22 , [2004] 1 S.C.R. 550 , the Court states:

The appellant seeks to rely on Miglin , supra , suggesting that the same process be followed in assessing the fairness of marriage agreements under the FRA .

I agree that Miglin is helpful for its general propositions that "a court should be loathe to interfere with a pre- existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives" of the Act in question (para. 46), and that "[t]he court must not view spousal support arrangements in a vacuum, ... it must look at the agreement or arrangement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves" (para. 84).

However, in my opinion, adopting Miglin without qualification would distort the analytical structure already provided in the British Columbia legislation. [para. 42] [ 24 ] The Court further comments: Once an agreement has been reached, albeit a marriage agreement, the parties thereto are expected to fulfill the obligations that they have undertaken. A party cannot simply later state that he or she did not intend to live up to his or her end of the bargain.

It is true that, in some cases, agreements that appear to be fair at the time of execution may become unfair at the time of the triggering event, depending on how the lives of the parties have unfolded. It is also clear that the FRA permits a court, upon application, to find that an agreement or the statutory regime is unfair and to reapportion the assets.

However, in a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess their initiative and arrangement, particularly where independent legal advice has been obtained. They should not conclude that unfairness is proven simply by demonstrating that the marriage agreement deviates from the statutory matrimonial property regime.

Fairness must first take into account what was within the realistic contemplation of the parties, what attention they gave to changes in circumstances or unrealized implications, then what are their true circumstances, and whether the discrepancy is such, given the s. 65 factors, that a different apportionment should be made. [para. 67] [ 25 ] In this case, it is apparent the motion judge reviewed the substance of the agreement and decided there was compliance with the overall objectives of the Divorce Act which include finality, certainty and the ability of the parties to determine their own affairs. B.

The second stage of the Miglin test [ 26 ] The second stage of the Miglin test is directed toward the present circumstances of the parties. The judge must assess whether the parties’ current circumstances were contemplated at the time the agreement was executed. In the decision, the motion judge stated: “the couple executed a domestic contract in contemplation of their marriage”. The judge considered the wife’s claims of being economically disadvantaged as well as her financial circumstances. He recognized the wife suffers from a disability but she receives a disability pension.

It is clear that the motion judge considered the current financial situations of both parties in light of their intentions when the marriage contract was executed in 2002. He found the marriage contract clearly considered the possibility of the present situation concerning the wife’s health in paragraph nine of the marriage contract. [ 27 ] There has been no change in circumstances beyond what was contemplated and provided for, and the marriage contract continues to reflect the parties’ original intentions and circumstances.

The motion judge assessed whether the contract continued to mirror the parties’ intentions (that is that the parties are self–supporting and, by virtue of the marriage contract, would not request spousal support from each other regardless of any change in their finances, due to health problems or otherwise), and found the changes were not sufficient to overturn the marriage contract. In his decision, the motion judge considered the objectives of the Divorce Act at the time the contract was executed as well as at the time of the hearing of the motion.

The judge properly applied the test as set out in Miglin and made no error of law. C. Failure to consider the Family Services Act [ 28 ] The wife applied for interim spousal support pursuant to s. 115(5) (

a) of the Family Services Act . She submits the review process in Miglin also applies to parties applying for support under the Family Services Act . The husband argues the wife has not met the onus upon her to establish the marriage contract creates circumstances which are unconscionable as required by s. 115(5)(

a) of the Family Services Act . Although the motion judge did not specifically address s. 115 of the Family Services Act , he did find there was no pressure upon the wife to execute the contract and she knew exactly what the contents of the contract were at the time she signed it. The judge reviewed the circumstances of the parties presently and found the wife to be suffering from a disability for which she is receiving a Canada Pension. He addressed the circumstances that existed at the time of the creation of the contract and determined there was no inequality of bargaining power and the contract was not improvident. I therefore find the motion

judge did not err in law in deciding the contract is not unconscionable. D. Estoppel [29] The wife submits the motion judge erred in not considering whether payments by the husbandof debt in the wife’s name, during the marriage, prevent the husband from relying on the contract. A review of the record indicatesestoppel was not pled in the Notice of Motion nor at the hearing of the motion; thus, it cannot be entertained at this level. In R. v.Langlais, 2008 NBCA 20, 328 N.B.R. (2d) 201, Larlee J.A. instructs: Through his third ground for appeal, Mr.

Langlais asks us to make a determination on a constitutional issue which was not raised at trial.However, the factual context requires compliance with the general rule "that appellate courts do not allow a question to be raised for thefirst time on an appeal" (see R. v. Thibodeau (C.) (2005), 291 N.B.R. (2d) 162, [2005] N.B.J. No. 346, 2005 NBCA 81, at para. 19, R. v.Brown, (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82 (QL), at para. 20, and R. v. Doan (T.T.) (2007), 321 N.B.R.(2d) 282, [2007] N.B.J. No. 396, 2007 NBCA 70). [para.5] Therefore, this ground cannot be considered. E.

Replacement Income [30] The wife submits the motion judge erred in determining that her disability pension wasreplacement income sufficient to preclude an order for interim spousal support. The husband says this ground of appeal is based upon amisinterpretation of the motion judge’s decision which states: As to the circumstances of the parties at this time, I have a situation where Ms. [H.] is suffering a disability and is receiving financialcompensation for this from the Canada Pension Plan.

This is not a situation where her health has been injured and she has no replacementincome. [para. 34] [31] The husband submits this paragraph must be read in the context of the entire decision andagainst the background of the wife’s challenge to the marriage contract. It appears to me that paragraph 34 merely discusses one of manyfactors the motion judge considered in declining the wife’s motion for spousal support. Once the motion judge decided that, because ofthe marriage contract, the wife was not entitled to spousal support, there was no requirement for him to undertake an analysis of theparties’ needs. F.

Claim for division of assets and debts [32] The wife purports the motion judge erred in his conclusion the Notice of Motion contained aclaim for relief for a division of assets and debts. The husband suggests it was the wife who brought this issue forward by mentioning inan affidavit that she questioned whether she was solely responsible for certain debts. The motion judge states: Ms. [H.] now wishes to challenge the prenuptial agreement.

In her Supplemental Affidavit in support of Interim Motion filed April 6,2011, Ms. [H.] made several allegations to support her position that, despite the agreement, there should be an amount due for spousalsupport and an equalization of marital assets: She alleges her signature on a prenuptial contract was not based on informed consent or with any true or independent legal information.

She claims her economic circumstances have changed because of a physical disability that will keep her from work in the future. She claims to have incurred debts in her name for a student loan she took out during the period the parties resided together and for assetsthat are consumer items and depreciating assets. There does not seem to be a claim these are marital debts although Ms. [H.] does refer tothem as such. She asserts she will have insufficient income to pay her debts unless she has some form of support or an equalization of assets from Mr.[H.].

She seeks to receive spousal support beyond the recommended guideline amount under the Spousal Support Advisory Guidelinesbecause of the extent of her physical disability. [para. 7] [33] This can be interpreted to mean the wife was attempting to circumvent the marriage contract byattempting to establish a division of debts under the guise of spousal support. Although the motion judge may have considered herrequest, he did not make a determination and thus did not err in law. G.

Health and Dental Coverage [34] The wife argues the motion judge erred in failing to consider her request that the husbandmaintain her on his life insurance and health and dental plans for as long as the plan will allow. The husband submits that he had agreedto continue this coverage at a previous hearing. In the husband’s written submission he confirms that he has been maintaining, and willcontinue to maintain, the wife on his health and dental plan through his employment as long as it is allowed.

With respect to the lifeinsurance, there is nothing before us to indicate whether the husband had agreed to name the wife as beneficiary. As such, this issue willhave to be dealt with at the final hearing. H. Allegations of Post-Hearing Inquiries [35] The wife submits the motion judge erred by stating that he would be making an inquiry after thehearing concluded respecting evidence given by a witness, which, if made, was not open to examination by the wife.

A review of therecord shows the comments in question were made with respect to an apology to the husband’s lawyer for assuming the witness inquestion had permission to reveal solicitor/client information. The motion judge merely said he should have apologized when the witnesswas present and that he would mention it to the witness, who is now an employee of the Department of Justice working in the samebuilding as the motion judge, subsequently.

Although it would have been preferable for the judge not to have made such a statement, Iam of the opinion that it did not demonstrate any indication of bias. [36] In Miglin, the appropriate test for reasonable apprehension of bias is discussed: The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether a reasonable andinformed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude thatthe judge's conduct gives rise to a reasonable apprehension of bias: R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, atpara. 111, per Cory J.; Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369, at pp.394-95, per de Grandpré J. A finding of real or perceived bias requires more than the allegation. The onus rests with the person who isalleging its existence (S. (R.D.), at para. 114). As stated by Abella J.A., the assessment is difficult and requires a careful and thoroughexamination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions orimproprieties.

We see no reason to interfere with the Court of Appeal's assessment of the record, nor with its conclusion that although thetrial judge's comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish areasonable apprehension of bias. [para. 26]

In my view, a reasonable and informed person, with knowledge of the circumstances, would not conclude the comments made by the motion judge demonstrated bias or a reasonable apprehension of bias. VI. Disposition [ 37 ] For these reasons, I would dismiss the appeal with costs of $1,000. _________________________________ KATHELEEN A. QUIGG, J.A. WE CONCUR: _________________________________ M.E.L. LARLEE, J.A. _________________________________ BRADLEY V. GREEN, J.A.