Docket: 1904 Deborah Lynne Evashenko Appellant (Petitioner) - v. -, 2011 SKCA 22

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 22 Date: 20110218 Between: Docket: 1904 Deborah Lynne Evashenko Appellant (Petitioner) - and - Craig Walter Evashenko Respondent (Respondent) Coram: Lane, Smith and Ottenbreit JJ.A. Counsel: Deidre Aldcorn for the Appellant Lynne Greenhorn for the Respondent

Appeal: From: 2010 SKQB 45 Heard: September 17, 2010 Disposition: Allowed Written Reasons: February 18, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Ottenbreit J.A. I. Introduction [ 1 ] Deborah Evashenko (the “wife”) appeals the decision of the Chambers judge dismissing an application for an interim spousal support order against Craig Walter Evashenko (the “husband”) pending trial of her variation of spousal support application.

The wife also appeals the order of the Chambers judge which ordered only limited property disclosure be provided by the husband to the wife on the variation application. II. Evidence and Background [ 2 ] The parties were married on October 17, 1989 and have three children. The oldest is now 20 years old and the youngest is now 14 years old.

The wife, during the marriage, was a stay-at-home mother and the husband supported the family by operating a trucking company called Evashenko Trucking Ltd. (the “Company”). [ 3 ] The husband claimed that the wife had a serious alcohol problem which led to their initial separation on August 13, 2003 after nearly 14 years of cohabitation.

Court proceedings ensued and the husband was ordered to pay $1,200 per month to the wife as interim spousal support on October 15, 2003. [ 4 ] The parties eventually negotiated minutes of settlement of their matrimonial issues (the “2004 settlement”) at a pre-trial conference on January 9, 2004 where the husband agreed to continue to pay $1,200 per month in spousal support until December 1, 2008 at which time the support was reviewable. The children were to live with the wife and the husband was to pay $1,550 per month maintenance for them.

The wife was to transfer title to the family home in Hanley, Saskatchewan and the Company shares to the husband and the husband was to pay her $35,000 and roll over to the wife 50 percent of his RRSPs. The 2004 settlement also required the husband to pay an additional $65,000 to the wife by January 9, 2005. There was a mutual release of all claims arising out of the marriage. The 2004 settlement did not contemplate reconciliation. [ 5 ] When the 2004 settlement was signed, both parties were represented by experienced family law lawyers.

The wife had agreed to a settlement of the property based on a mid-point of the difference of the property valuation between the parties. The husband also agreed to assume the family debts except the wife’s business loan of $34,000 and a debt to Canada Trust in an unspecified amount. The wife received a portion of the cash settlement, approximately $30,000, the required rollover of the RRSPs and a Yukon vehicle. [ 6 ] The parties did not complete the rest of property division as contemplated in the 2004 settlement. The wife did not transfer the title to the family home or her Company shares to the husband.

The husband did not make the $65,000 payment to the wife. Instead, he purchased a house for $65,000 for the wife but the title to the house remained in his name. The husband continued to pay spousal support until January 2005. [ 7 ] The parties continued to live separate and apart in 2004. The children continued to reside with the wife. The wife had a history of alcoholism and mental illness and at Christmas in December 2004, after experiencing extreme emotional stress and depression, she asked the husband to allow the children to move back into the family home temporarily.

She also wanted to reconcile with the husband.

[ 8 ] The husband’s evidence was that he was prepared to consider reconciliation for the children’s sake and that the wife suggested executing another interspousal agreement. The wife’s evidence was that the husband refused to entertain the idea of reconciliation unless he had some assurance he was not going “to be the loser again” and unless she signed an agreement. She swore that she did not want to sign the agreement but believed that she had no choice and that if she did everything that the husband demanded of her that they would reconcile.

The husband swore that he did not bully or induce the wife into signing the agreement and that she was sober when she signed it. The wife, in any event, acknowledged that the husband was not prepared to reconcile unless the agreement was in hand. [ 9 ] On January 5, 2005 the husband met with his lawyer for two hours while the wife waited in his truck and his lawyer then drafted a new interspousal agreement (the 2005 Agreement, hereinafter the “Agreement”).

That day, the husband told the wife that she had to sign over her shares in the Company and he later drove her to the office of his corporate lawyer where she transferred these shares to him. The husband’s lawyer gave her a list of three or four lawyers who could give her independent legal advice. She picked a lawyer and on January 7, 2005 she met with the lawyer for 15 to 20 minutes. The lawyer read the Agreement to her, asked her if she understood it. She acknowledged that she did. She then executed the Agreement.

That lawyer had no financial information about the parties, nor did she have a copy of the 2004 settlement. [ 10 ] In January 2005, after the Agreement was signed, the children moved in with the husband and he assumed sole responsibility for their support. The wife states that he stopped treating her well and told her that he would make all the decisions from then on and she could do nothing about it. He would not let her move back into the home but he did not rule out the possibility. The wife thereafter went to the family home every day to look after their daughters.

In May 2005, the wife attempted suicide and was hospitalized for a week. She was not allowed to move back into the home permanently until July 1, 2005. Thereafter, she was a stay-at-home mom. She assisted the husband in his business from time to time and they had a sporadic sexual relationship. They took holidays as a family. The wife was financially supported by the husband. They cohabited for four years. In the latter stages of the four year period, the wife was actively placed on the payroll of the Company and received a salary of $36,000 a year.

The wife filed for bankruptcy in June 2005 wherein she declared that she had no assets other than exempt assets, namely joint ownership of the family home and some minor personal effects. [ 11 ] At some point, the wife confronted the husband with her suspicions that he was seeing other women. She was hurt when he was dismissive of her. She commenced drinking again in September 2008 and spiralled downward. She was involved in a motor vehicle accident in the spring of 2009 and lost her licence in the process. The parties finally separated in the summer of 2009.

The husband says the precipitating event was the wife’s assault on him when she got drunk and tried to hit him with a baseball bat. Although there is a dispute as to what happened, she was removed from the home by the police and charged and convicted of assault. She received a conditional discharge but the terms of sentence required her to have no contact with the husband and to refrain from attending at the family home. [ 12 ] Since the final separation in 2009, the wife has concentrated on her treatment and recovery and has been residing with her parents in their house in Hanley.

Her parents are in no financial position to support her. She continues to seek the help of medical professionals. She is on social assistance for the time being. She attempted to work in a store that sold meat products but found it too difficult to work and concentrate on her recovery at the same time.

The only property the wife owned at the date of the application was the 2003 Yukon vehicle which she intended to sell. [ 13 ] Although the evidence is unclear, there are indications that the Company has blossomed between the first and final separation and he has generated significant personal and corporate income as a result. As of June 2009, the Company owned assets valued at nearly $1 million dollars. The husband did not dispute that he has the ability to pay maintenance. [ 14 ] The terms of the Agreement voided the 2004 settlement. Pursuant to the Agreement the children would reside with the husband.

He would be fully responsible for their support without any contribution from the wife. The wife waived spousal support and gave up her remaining property rights acquired in the 2004 settlement in lieu of her paying child support to the husband. The Agreement established a separate property regime and, in the event of reconciliation and subsequent separation, all property would be retained by the party who acquired it. The relinquishment of any claim to spousal support in the Agreement was drafted in the widest and most comprehensive terminology with reference to the decision in Miglin v.

Miglin , 2003 SCC 24 , [2003] 1 S.C.R. 303. The Agreement also stated in various clauses that the parties had considered the objectives of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.) (the “ Act ”) and addressed them by virtue of the Agreement. The Agreement was to be a final agreement. [ 15 ] The Agreement included provisions that: (

a) the spousal support waiver acknowledged that the parties addressed the economic advantages and disadvantages experienced through the marriage and its breakdown that the Agreement was to be a final agreement and break between them, (

b) if a court orders spousal support, the party receiving the order or award would become liable to the other for an equal amount under the property provisions of the Agreement, and (

c) the Agreement would be binding in the event of a reconciliation and that no term of the Agreement would be declared void in the event of the parties resuming cohabitation.

[ 16 ] When the wife commenced an application for interim spousal support, she also served a notice to disclose and a notice of motion seeking an order for financial disclosure. The notice to disclose and the motion seeking disclosure sought the husband’s personal and corporate financial disclosure in the widest possible terms. The husband did not file any financial statements as required by the rules or any financial information at all. III.

The Chambers Decision [ 17 ] The Chambers judge correctly observed that the analytical framework for determining whether a spousal support obligation should be imposed in the face of an agreement to the contrary is governed by Miglin , supra . She also held, citing Palmer v. Palmer , 2003 SKQB 438 , 240 Sask. R. 25 with approval, that although the Court had the ability to make an interim award where a triable issue exists with respect to enforceability or impact of an agreement waiving support, caution was called for and the Court should only do so in rare or exceptional cases.

She determined that the distinctive feature in this case which did not arise in either of those cases was the forgiveness by the wife of her right to spousal support to pave the way towards reconciliation. The Chambers judge stated one of the issues before her was whether the Court could vary the interim order given the release of claims for support where the Agreement was itself the consideration for the parties’ reconciliation. [ 18 ] The Chambers judge found that there was clear evidence of the wife’s need.

She conceived her task to be to determine “whether this is one of the rare cases justifying interim support due to clear need on the wife’s part and clear evidence pointing to a likelihood of success at trial” (at para. 22).

She indicated that a cautious approach was required given the limitation of the affidavit evidence, the requirement to make credibility assessments where the parties differed in their account of the relevant facts, the extensive evidence required to satisfy both stages of the Miglin inquiry, the potential prejudice to where the recipient of interim support cannot repay any sums and the court’s ability to make a retroactive order to compensate for the interim period.

She concluded that agreements should generally be respected until the matter can be fully canvassed at trial. [ 19 ] The Chambers judge observed that, after reconciliation, the husband met all of the obligations he had assumed under the spousal agreement. The Chambers judge also observed that the wife received benefits as a result of the Agreement such as the discharge from her debts without any outlay of money; this because she had no property as a result of the relinquishment of her unsatisfied claims pursuant to the 2004 settlement.

Additionally she received support by the husband during reconciliation and a job in the husband’s Company and freedom from the financial responsibility for the children. She found that both the husband’s and wife’s conduct subsequent to the Agreement manifested an intention to be bound by it. [ 20 ] The Chambers judge determined that the evidence was not sufficiently clear or convincing to overcome the presumptively dispositive effect of the Agreement relinquishing support.

She also stated that the Agreement may be the result of a well intentioned motive to preserve property from dissipation by a financially irresponsible spouse and may be an anticipatory contract similar to a prenuptial agreement and therefore entitled to higher deference.

She stated that the triable issue respecting the Agreement would condense into a question of the adequacy of the wife’s legal advice but that this area remained to be explored. [ 21 ] With respect to financial disclosure, she determined that the husband was only required to file financial information necessary for the court to do a Miglin analysis and as the husband did not claim that he could not pay spousal support, the wife was not entitled to information related to the husband’s assets.

She accordingly ordered that the husband produce his financial statement and his personal income tax returns for the years 2004 and 2009 as well as corporate returns for those same taxation years. IV. Position of the Parties [ 22 ] The wife argues that the Chambers judge erred in law when she found that the Agreement was consideration for reconciliation and that this finding resulted in a lack of analysis of whether the substance of the Agreement met the statutory requirements and objectives of the Act .

The wife also argues that the Chambers judge erred by disregarding the required factors of s. 15.2 of the Act . Lastly, she argues the Chambers judge erred in finding that financial disclosure related to the assets and property owned by the husband between the first and second separations was not relevant in a claim for spousal support. [ 23 ] The husband argues that this Court should be reluctant to interfere on appeal with interim orders and instead should encourage the parties to proceed as rapidly as possible to trial.

The husband further argues that the Agreement was a comprehensive settlement of all issues related to the termination of the marriage and should not be interfered with. Alternatively, he argues that there was insufficient evidence to do a Miglin analysis and, even if there was, the Agreement complies with the provisions of the Act . Lastly, the husband argues that the disclosure must relate to the pleadings and, since the notice to disclose dealt with broad property issues and no property claim was advanced by the wife, the Chambers judge was correct not to order broad disclosure.

V. The Standard of Review [24] The standard of review for support orders generally was stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518: [10] When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors,and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise ofconsiderable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial supportstatutes with an appreciation of the particular facts of the case.

It is a difficult but important determination, which is critical to the livesof the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deferenceby appellate courts when such decisions are reviewed. [11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an errorin principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. [citations omitted] This court in Yaholnitsky v. Yaholnitsky, (SK CA), 105 Sask.

R. 255 in respect of interim orders said the following perTallis J.A.: Furthermore, this is a discretionary order and that being so, the Court should not substitute its opinion for that of the chambers judgeunless the judge has misapprehended the law or the evidence. Since no such error has been demonstrated, we decline to interfere. Thefollowing passage from the reasons of Gerwing J.A. in Foss v. Foss, (SK CA), 31 R.F.L. (3d) 367 at 368 is apposite: “Two general comments should be made with respect to this type of application.

First, this Court is extremely reluctant tointerfere with the discretion of a chamber or trial judge with respect to the question of interim maintenance. Second, the most desirablething in almost every instance is to proceed as rapidly as possible to trial so that the matter can be fully determined finally after fullexamination of all the relevant evidence. VI. Analysis [25] The issues on this appeal are as follows: (

a) Did the Chambers judge err in finding that the Agreement was consideration for reconciliation? (

b) Did the Chambers judge err in her application of the Divorce Act? (

c) Did the Chambers judge err in refusing to order broad disclosure of assets and property owned by the Respondent? (

a) Consideration for Reconciliation [26] The Chambers judge stated this issue as follows at para. 20 of her decision:

(1) Should the Court vary an order for interim spousal support in the face of an interspousal agreement that releases all claims forsupport, and where the agreement itself was the consideration for parties' reconciliation? Later in her decision she states: [37] Further, where the interspousal agreement is, itself, the quid pro quo for the promise of reconciliation, valuable consideration hasbeen exchanged. For example, in Horner v. Horner, [2004] O.J. No. 3173 (Ont. S.C.J.) (QL) a situation occurred which was the reverseof the present case. The wife had waived support under a marriage contract.

The parties separated, but the husband made a promise tosupport her if they reconciled. They reconciled for a period of six years, then separated again. In that case, the Court found that thehusband's promise of support was valuable consideration for the reconciliation, and that bargain should be respected. Therefore, thewife's agreement to waive support was set aside. [27] The terms of the Agreement do not contemplate imminent reconciliation but merely purport to create a separate property regime inthe event of reconciliation and later separation.

Substantial portions of the Agreement also serve to claw back and nullify the wife’sproperty and support entitlements negotiated in the 2004 settlement regardless of whether there would be a reconciliation. [28] However, the Agreement, from at least the wife’s perspective, was signed in the hope of a possible reconciliation. This is supportedby the wife’s uncontroverted evidence that she believed that if she did what the husband wanted he would eventually allow her to moveback into the matrimonial home.

Whether one accepts the evidence of the wife or the husband, the signing of the Agreement was only aprecondition to the possibility of the parties cohabiting as a family. But the wife was in complete reliance on the good will of thehusband rather than on the terms of the Agreement with respect to reconciliation and cohabitation coming to fruition. [29] In the Agreement, the husband promises nothing with respect to future reconciliation or cohabitation. The Agreement expressly

prohibits either party from compelling the other party to reconcile whether by court order or otherwise. Pointedly, cohabitation did not occur immediately after the signing of the Agreement. Indeed, the husband eschewed cohabitation until after the wife had attempted suicide and spent some time in recovery, six months after the Agreement was signed.

Reconciliation, when it happened, appears to have had more to do with the inclination of the husband at that time than the provisions of the Agreement. [ 30 ] Although a promise of reconciliation could, in some circumstances, be consideration for entering into an agreement, in this case the execution of the Agreement by the wife was merely a precondition of the possibility of the husband taking the wife back without any obligation on him to do so. The execution of the Agreement was a mere chance for reconciliation and nothing more.

It is difficult to see how the Agreement could be the quid pro quo for something the husband neither promised to do nor could be compelled to do. [ 31 ] Although the Chambers judge did not at this interim stage make an explicit finding that the husband’s promise of reconciliation was consideration for the wife entering into the Agreement, she clearly proceeded on that basis.

I agree with the wife that this misapprehends the evidence and consequently places an undue emphasis on the other principles germane to a s. 15.2 and Miglin analysis such as certainty, finality and autonomy and resulted in the Chambers judge making an error in principle by failing to adequately consider whether the Agreement survived the Miglin analysis and met the statutory objectives of the Act . (

b) The Application of the Divorce Act (

i) Introduction [ 32 ] This was a case where need had been established to the satisfaction of the Chambers judge and ability to pay had not been disputed. Given that these two factors had been established, the substantial issue before the Chambers judge was whether deference should be accorded the Agreement pending trial. The Chambers judge focused on a number of issues and concepts which, in my view, resulted in an ineffective Miglin analysis in the context of a s. 15.2 application.

These issues and concepts included a view that the Agreement was consideration for reconciliation (as discussed earlier), an overly cautious approach to these kinds of applications, a characterization of the Agreement as anticipatory, an overstatement of the threshold an applicant must cross to impeach an agreement at the interim stage and a failure to undertake a full stage one Miglin analysis.

The approach of the Chambers judge in these respects resulted in the Agreement receiving more deference than was appropriate at the interim stage, given the strong evidence of need and the virtual admission of an ability to pay. In this respect she erred in principle. For the reasons hereinafter set forth the wife has raised, on all the circumstances of this case at the interim stage, a reasonable prospect of successfully impeaching the Agreement. (ii) The Divorce Act [ 33 ] The relevant provisions of the Act which set out the considerations in all applications for interim spousal support are as follows: 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). …

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. …

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [34]

Section 15.2(4) of the Act requires a court to take into consideration the condition, means, needs and other circumstances of eachspouse including any agreement or arrangement relating to the support of the spouse.

Section 15.2(6) succinctly sets out the objectiveswhich an order for support should achieve. [35] The responsibility to support financially-needy spouses was described in as follows Bracklow v. Bracklow, (SCC),[1999] 1 S.C.R. 420: 31 The mutual obligation view of marriage also serves certain policy ends and social values.

First, it recognizes the reality that whenpeople cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, itrecognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to theabsolute independence status of single life, indicating the potential necessity to continue support, even after the marital "break".

Finally,it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to therelationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistancerolls. (iii) Miglin Overview [36] The Miglin test, developed in the context of an initial application under s. 15.2 of the Act, is equally applicable to a variationapplication under s. 17(4.1) of the Act (Miglin at para. 91). [37] Where one party applies for support and the other alleges in defence that there is a prior agreement which governs support, Miglinmandates a two-stage analysis to determine the degree of deference to be given to an agreement.

This two-stage approach has beenrecently affirmed, although in the context of property issues, in Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295. The Court inMiglin at para. 64 states: [64] An initial application for spousal support inconsistent with a pre-existing agreement requires an investigation into all thecircumstances surrounding that agreement, first, at the time of its formation, and second, at the time of the application.

In our view, thistwo-stage analysis provides the court with a principled way of balancing the competing objectives underlying the Divorce Act and oflocating the potentially problematic aspects of spousal support arrangements in their appropriate temporal context. .... Although Miglin dealt with a final application, the Miglin analysis is apt for the purposes of an interim application.

An agreement is onlyone factor among others in s. 15.2 analyses stated in Miglin: [77] In our view, Parliament's recognition of the potential complications in the process of contracting spousal support is reflected inthe Divorce Act itself. We see this in the direction to the court to consider an agreement as only one factor among others, rather than totreat it as binding, subject merely to remedies in contract law.

Accordingly, contract law principles are not only better suited to thecommercial context, but it is implicit in s. 15 of the 1985 Act that they were not intended to govern the applicability of private contractualarrangements for spousal support. [78] Therefore, in searching for a proper balance between consensus and finality on the one hand, and sensitivity to the uniqueconcerns that arise in the post-divorce context on the other, a court should be guided by the objectives of spousal support listed in theAct.

In doing so, however, the court should treat the parties' reasonable best efforts to [page 348] meet those objectives as presumptivelydispositive of the spousal support issue. The court should set aside the wishes of the parties as expressed in a pre-existing agreementonly where the applicant shows that the agreement fails to be in substantial compliance with the overall objectives of the Act.

Theseinclude not only those apparent in s. 15.2 but also, as noted above, certainty, finality and autonomy. [38] An agreement is therefore presumptively dispositive of the spousal support issue where the reasonable best efforts of the parties tomeet the objectives of the Act have been met.

Put another way, an agreement is not presumptively dispositive where it fails to be insubstantial compliance with the overall objectives of the Act. [39] Stage one of the Miglin analysis includes two steps which look at whether the agreement is procedurally and substantively flawed.Step one involves a consideration of “the circumstances in which the agreement was negotiated and executed to determine whether thereis any reason to discount it” (para. 80).

While the majority of the Supreme Court in Miglin declined to provide a definitive list of factorsfor consideration, they suggested that the court at step one should look for “circumstances of oppression, pressure or othervulnerabilities, taking into account all of the circumstances ...” (para. 81). A court “should be loath to interfere” (para. 83) where novulnerabilities are present or are compensated for by the advice of counsel.

[ 40 ] Respecting the circumstances of negotiation and execution, the Court in Miglin said: [81] It is difficult to provide a definitive list of factors to consider in assessing the circumstances of negotiation and execution of an agreement. We simply state that the court should be alive to the conditions of the parties, including whether there were any circumstances of oppression, pressure, or other vulnerabilities, taking 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. [82] We pause here to note three important points. First, we are not suggesting that courts must necessarily look for "unconscionability" as it is understood in the common law of contract. There is a danger in borrowing terminology rooted in other branches of the law and transposing it into what all agree is a unique legal context.

There may be persuasive evidence brought before the court that one party took advantage of the vulnerability of the other party in separation or divorce negotiations that would fall short of evidence of the power imbalance necessary to demonstrate unconscionability in a commercial context between, say, a consumer and a large financial institution. Next, the court should not presume an imbalance of power in the relationship or a vulnerability on the part of one party, nor should it presume that the apparently stronger party took advantage of any vulnerability on the part of the other.

Rather, there must be evidence to warrant the court's finding that the agreement should not stand on the basis of a fundamental flaw in the negotiation process. Recognition of the emotional stress of separation or divorce should not be taken as giving rise to a presumption that parties in such circumstances are incapable of assenting to a binding agreement. If separating or divorcing parties were generally incapable of making agreements it would be fair to enforce, it would be difficult to see why Parliament included "agreement or arrangement" in s. 15.2(4) (c).

Finally, we stress that the mere presence of vulnerabilities will not, in and of itself, justify the court's intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties. [83] Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties' separation and as indicative of their substantive intentions.

Accordingly, the court should be loathe to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties' notion of equitable sharing in their circumstances and the agreement will merit little weight. [ 41 ] If a court is satisfied with the circumstances in which the separation agreement was negotiated and executed, then step two of stage one dictates that a review the substance of the agreement be done.

Here, a court must decide if there is substantial compliance with the spousal support considerations of s. 15.2 of the Act and the Act generally, as well as the factors of finality, certainty and the desirability for the parties to determine their own affairs. [ 42 ] Respecting this stage, the court in Miglin stated: [84] Where the court is satisfied that the conditions under which the agreement was negotiated are satisfactory, it must then turn its attention to the [page 350] substance of the agreement.

The court must determine the extent to which the agreement takes into account the factors and objectives listed in the Act , thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the general objectives of the Act will warrant the court's intervention on the basis that there is not substantial compliance with the Act.

The court must not view spousal support arrangements in a vacuum, however; 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. [85] When examining the substance of the agreement, the court should ask itself whether the agreement is in substantial compliance with the Divorce Act .

As just noted, this "substantial compliance" should be determined by considering whether the agreement represents a significant departure from the general objectives of the Act, which necessarily include, as well as the spousal support considerations in s. 15.2, finality, certainty, and the invitation in the Act for parties to determine their own affairs. The greater the vulnerabilities present at the time of formation, the more searching the court's review at this stage. [86] Two comments are necessary here.

First, assessment of an agreement's substantial compliance with the entire Act will necessarily permit a broader gamut of arrangements than would be the case if testing agreements narrowly against the support order objectives in s. 15.2(6) . Second, a determination that an agreement fails to comply substantially with the Act does not necessarily mean that the entire agreement must be set aside and ignored.

Provided that demonstrated vulnerability and exploitation did not vitiate negotiation, even a negotiated agreement that it would be wrong to enforce in its totality may nevertheless indicate the parties' understanding of their marriage and, at least in a general sense, their intentions for the future. Consideration of such an agreement would continue to be mandatory under s. 15.2(4) .

For example, if it appeared inappropriate to enforce a time limit in a support agreement, [page 351] the quantum of support agreed upon might still be appropriate, and the agreement might then simply be extended, indefinitely or for a different fixed term. [ 43 ] If a court concludes that the particular agreement satisfies both steps of the first stage, then: [87] . . . [T]he Court should defer to the wishes of the parties and afford the agreement great weight.

Nevertheless, the vicissitudes of life mean that, in some circumstances, parties may find themselves down the road of their post-divorce life in circumstances not contemplated. Accordingly, on the bringing of an application under s. 15.2, the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the

objectives of the Act. It is in the stage two analysis that a court is required to consider whether the agreement “still reflects the original intention of the partiesand again the extent to which it is still in substantial compliance with the objectives of the Act”. The Court strikes a cautionary note withrespect to stage two as follows: [91] . . . Parties must take responsibility for the contract they execute as well as for their own lives.

It is only where the currentcircumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that putsthem at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. [44] The Ontario Court of Appeal in Kelly v.

Kelly (2004), (ON CA), 72 O.R. (3d) 108 succinctly summarized thetwo steps of the first stage of the Miglin analysis as follows: [18] Stage one has two components: the circumstances of the execution of the agreement and the substance of the agreement. [19] The court must assess whether there is any reason to discount the agreement because of the circumstances under which it wasnegotiated and executed. In doing so, the court must consider whether "there were any circumstances of oppression, pressure or othervulnerabilities" that flawed the negotiations (para. 81).

Professional assistance — the advice of a lawyer — may compensate for orovercome any vulnerability or power imbalance but will not automatically do so. If the power imbalance vitiates the bargaining process,the court should give the agreement little weight. [20] If the conditions under which the agreement was negotiated cannot be impeached, the court must assess the substance of theagreement. It must decide whether the agreement substantially complies with the objectives of the DA.

These objectives include thoseexpressly listed in s. 15.2(6)2 as well as those of certainty, finality and autonomy. (iv) The Cautionary Approach [45] The Chambers judge accepted the proposition that while a court can order interim spousal support where there is an agreement, itshould be hesitant to do so, and only in exceptional or rare circumstances. The Chambers judge expressed the reasons for this approachas follows: [44] As earlier noted, the Saskatchewan cases urge caution before awarding interim support in these circumstances.

They hold that theagreement is presumptively dispositive of the spousal support issue until the applicant tenders the evidence required to temper orneutralize its effect.

In most circumstances, given the limitations of affidavit evidence, the requirement to make credibility assessmentswhere the parties differ in their account of the relevant facts, the extensive evidence required to satisfy both stages of the Miglin inquiry,the potential prejudice to a payor where the recipient of interim support cannot repay any sums, and the Court's ability to make aretroactive order to compensate for the interim period, agreements should be respected until the matter can be fully canvassed at trial (seePalmer v. Palmer, supra; Kriese v. Verhelst, 2006 SKQB 382, [2006] S.J.

No. 551 (QL); Leedahl v. Leedahl, 2006 SKQB 14, 282 Sask.R. 130; Spencer v. Spencer, 2005 SKQB 116, 261 Sask. R. 150). [46] Many of these cautions are not specific to Miglin situations, but are ubiquitous in all applications for interim maintenance made onaffidavit evidence. Interim orders are nonetheless granted routinely despite the problem of contradictory affidavit material, barelysufficient evidence on material issues, difficulty in making findings of credibility and the temporary nature of orders. It is inherent inmatrimonial disputes that parties have inconsistent versions of underlying events.

Nevertheless, a judge on an interim application makespreliminary findings based on the material before the court with full knowledge that at trial and with the benefit of a more extensiveevidence, only then can the issues in play be definitively determined.

These concerns, including the weight to be given to specificevidence, such as an agreement, should not normally prevent a Miglin analysis at the interim stage unless the evidence is so bereft ofuncontroverted material facts that no decision can be made and the matter must await trial. [47] In this case, although the affidavit material was in some respects contradictory, a substantial portion of it was not, and on crucialfacts germane to the stage one Miglin analysis, the parties were not in basic disagreement respecting what happened. [48] The Chambers judge stated that the Agreement would be presumptively dispositive of spousal support until the applicant were totender the evidence required to temper or neutralize its effect.

On an interim basis, for the purpose of a Miglin analysis, an applicant neednot necessarily tender evidence to neutralize the effect of the Agreement. The quality and cogency of the evidence on an interimapplication may not definitively neutralize the Agreement, and given the threshold that an applicant must meet on an interim basis, theevidence need not be as extensive as would be required at trial. As further explained below, it is enough if the evidence tempers theagreement to the extent that the burden of challenging the presumption on an interim basis has been met.

[ 49 ] The other cautionary concerns raised by the Chambers judge include a reluctance to prejudge the issue and usurp the role of the trial judge, the possible unfairness of varying an agreement on which the parties have relied, apparent unfairness of the interim order if the agreement is upheld at trial, prejudice to the payor if the payee cannot repay the sums and the court’s ability to make retroactive orders in any event.

These additional factors, although germane to an interim determination, are also not an impediment to doing a Miglin analysis and making an interim award if it is warranted. [ 50 ] Concern about usurping the role of the trial judge is mitigated when the context of any interim Miglin findings is properly understood. They are preliminary only, made on a somewhat limited record, and not meant to fetter the trial judge, who will give the matter a full hearing and who may after hearing all the evidence come to a conclusion different than at the interim stage.

As well, although it may, at first glance, be unfair to vary an agreement on which the parties have relied, it may be the case (which will be fully explored at trial) that the parties have relied on an agreement which has a reasonable prospect of being impeached at trial, thus attenuating the apparent unfairness. In the present case, the evidence before the Chambers judge was sufficient to raise substantial questions as to the enforceability of the Agreement, as I will explain below. Likewise, any prejudice to the payor can be met with an order to repay all or part of the maintenance as the court may require.

Inability to repay any sums, any prejudice that might cause, and who will bear the risk of that, must be looked at in the context of the whole circumstances. Where need and ability to pay have been established, and the applicant has successfully raised the question as to the enforceability of the Agreement at an interim stage, this factor should not be an impediment unless there is substantial prejudice to the payor and he is not able to bear the risk of failure to repay in the particular case or there is some gross unfairness to the payor in making an order.

Although the court also has the power to make retroactive orders, this should not colour the Miglin analysis where the need is great and the ability to pay has been clearly established and the applicant has met her burden of challenging the agreement. [ 51 ] In this case, the wife appears to have little ability to repay sums if an interim order is granted. Her inability to do so certainly results from her execution of the Agreement which strips her of her remaining matrimonial assets, and her health issues which prevent her from working.

The husband was obviously aware that she had few if any assets in her possession at the execution of the Agreement. Given this context, the husband was obviously prepared to take the risk of recovering any future maintenance paid to her contrary to the Agreement. The husband will suffer no undue financial prejudice and is positioned to bear the risk of failure to repay. The hope of a retroactive order to the wife would be of little benefit to her, given her destitute state and clear need at this juncture. (

v) Anticipatory Contract [ 52 ] The Chambers judge observed that anticipatory contracts such as prenuptial agreements are accorded a higher degree of deference and that this principle may have a bearing on the Miglin analysis. The Chambers judge adopted this approach from Hartshorne v. Hartshorne , 2004 SCC 22 , [2004] 1 S.C.R. 550. The Court in Hartshorne stated the following: 39 This Court has not established, and in my opinion should not establish, a "hard and fast" rule regarding the deference to be afforded to marriage agreements as compared to separation agreements.

In some cases, marriage agreements ought to be accorded a greater degree of deference than separation agreements. Marriage agreements define the parties' expectations from the outset, usually before any rights are vested and before any entitlement arises. Often, perhaps most often, a desire to protect pre-acquired assets or an anticipated inheritance for children of a previous marriage will be the impetus for such an agreement.

Separation agreements, by contrast, purport to deal with existing or vested rights and obligations, with the aggrieved party claiming he or she had given up something to which he or she was already entitled with an unfair result. In other cases, however, marriage agreements may be accorded less deference than separation agreements. The reason for this is that marriage agreements are anticipatory and may not fairly take into account the financial means, needs or other circumstances of the parties at the time of marriage breakdown. See M. Shaffer and D. S.

Melamed, "Separation Agreements Post- Moge , Willick and L.G. v. G.B .: A New Trilogy?" (1999), 16 Can. J. Fam. L. 51, at pp. 67-68; Payne on Divorce (4th ed. 1996), at pp. 307-8. [ 53 ] The Chambers judge determined that the Agreement was more akin to an anticipatory contract. The basis for that determination was the possibility that the Agreement was a desire to preserve property from dissipation at the hands of an incapable or financially irresponsible spouse.

Although the husband believes the wife “blew” the property settlement, there is nothing in the evidence that indicates that the husband’s motive for the terms of the Agreement was to “preserve property from dissipation at the hands of an incapable or financially irresponsible spouse.” [ 54 ] The Agreement is partially anticipatory in the sense that it establishes a separate property regime in the event of reconciliation and subsequent separation and in that sense it is like a prenuptial agreement. However, a substantial part of it deals with vested or existing rights of the wife respecting property and support.

This is therefore a case where the wife is claiming that she has given up her existing entitlement to support with an unfair result in all the circumstances. [ 55 ] In any event, the Court in Hartshorne determined that there is no hard and fast rule regarding the deference to be afforded to various

kinds of agreements. It has not been established that this principle bears on a Miglin analysis for the purposes of support at all. (vi) The Threshold to Challenge the Presumption [56] The burden of challenging the presumption that the Agreement is dispositive of the spousal support issue lies on the party seekingto impeach the Agreement.

That said, to require a party at an interim stage with affidavit evidence to definitively rebut that presumptionwould result in setting the bar so high few applicants could clear it. [57] The Court in Miglin had this to say about determining the weight to be given to an agreement: [67] Having said this, we are of the view that there is nevertheless a significant public interest in ensuring that the goal of negotiatedsettlements not be pursued, through judicial approbation of agreements, with such a vengeance that individual autonomy becomes astraitjacket.

Therefore, assessment of the appropriate weight to be accorded a pre-existing agreement requires a balancing of the parties'interest in determining their own affairs with an appreciation of the peculiar aspects of separation agreements generally and spousalsupport in particular. The extent of the deference or weight to be accorded in a specific case is answered by doing a Miglin analysis. [58] In Turpin v.

Clark, 2009 BCCA 530, 313 D.L.R. (4th) 452, although in the context of a final application, the court said as follows: [59] Deference to an agreement should give way where the integrity of an agreement is successfully challenged or where it is patentlyunfair in the context of the objectives of the Divorce Act at the time of execution (stage one), or where an agreement becomes patentlyunfair as a result of changed and unanticipated circumstances (stage two). [59] The threshold that a party must cross to challenge the dispositive effect of the agreement has been variously described.

In Kelly,supra, in the context of a

summary judgment dismissing a wife’s claim for spousal support, the Court said: [28] Mrs. Kelly's evidence raises genuine issues for trial on the first component of the stage one Miglin analysis.

A trial judge shoulddecide whether the cursory legal advice that she received in 1991 and the more extensive legal advice that she received in 1997sufficiently overcame her vulnerability on either or both occasions, a vulnerability brought on largely by her depression, her hysteroiddysphoria and her approval-seeking behaviour; or whether her vulnerability so flawed the negotiations that both the agreement and theaddendum should be given little weight. [29] The motions judge did not specifically consider the second component of stage one of the Miglin analysis: the substance of theagreement and the addendum and whether they substantially complied with the objectives of the DA.

It seems to me that even if it canbe said that the original agreement and the addendum were executed under "unimpeachable" circumstances, whether their substancecomplies with the overall objectives of the DA raises a triable issue. Mrs. Kelly had a long term marriage in which she had the majorresponsibility for raising the children. When she and her husband separated in 1991 she had no job and no work skills. When she signedthe addendum in 1997 she had no income and was well on the way to becoming destitute. Yet, neither the agreement nor the addendumprovided for ongoing spousal support.

Whether the waiver of support sits comfortably with the objectives in s. 15.2(6) of the DA –especially the objective of recognizing any hardship arising from the breakdown of the marriage and the objective of relieving anyeconomic disadvantage from the breakdown of the marriage – raises, at the very least, a genuine issue for trial. [Emphasis added] [60] In Bater v. Bater, 149 A.C.W.S. (3d) 629 (Ont. S.C.), an interim application, the Court described the threshold as a “triable issue”. In Pitchforth v. Pitchforth, 179 A.C.W.S. (3d) 867 (Ont.

S.C.), an interim application, the Court describes it as a “triable issue”. In Salzmann v. Salzmann (2004), (ON SC), 50 R.F.L. (5th) 181, 128 A.C.W.S. (3d) 344 (Ont. S.C.), an interimapplication, the court said as follows: [36] Again, as this is an interim application, the inquiry will be less detailed than at trial.

On the first stage, the Applicant has raisedan arguable case that raises doubts as to whether the agreement could be said to be an "unimpeachable negotiated agreement". . . . thereare circumstances in this case that raise serious concerns with respect to the provision regarding a "waiver of support for all time". . . .

Inmy view, the Applicant has more than "an arguable case" that the Applicant was "taken advantage of" by the Respondent and, it wouldappear, she did not have a proper understanding of what she was "waiving" or "releasing". [37] On the material before me there are also serious questions raised as to whether it could be said that the Applicant did receive anadequate degree of "professional assistance" prior to executing the agreement. [Emphasis added] In Chaitas v. Christopolous (2004), (ON SC), 12 R.F.L. (6th) 43 (Ont. S.C.), an interim application, the courtdescribed it as a “genuine issue.”

[ 61 ] Although at one part of her decision, the Chambers judge, echoing Palmer , described the burden as a “triable issue”, at para. 22 of her decision, the Chambers judge sets the bar at clear need and clear evidence pointing to a likelihood of success at trial. In my view, this puts the matter at too high a standard at the interim stage. Ultimately, the applicant must neutralize the effect of the Agreement to be successful at trial, but need not show at the interim stage she is more likely than not to be successful. The Chambers judge, at para. 41 in reference to the case of Hierath v.

Hierath , 2000 SKQB 459 , 200 Sask. R. 269, describes the burden as a “reasonable prospect of success”. This is closer to the mark regarding the threshold an applicant must cross on a Miglin analysis. In my view, the appropriate threshold is whether there is a reasonable prospect of success that the Agreement can be impeached at trial and therefore is entitled to little weight or deference. [ 62 ] The adoption of a higher threshold led the Chambers judge to discount the significance, in Miglin analysis, of the issue of the wife’s legal advice which she nevertheless had identified as a pivotal question.

The Chambers Judge focused primarily on the behaviour of the parties subsequent to signing the Agreement and whether it manifested an intention to be bound. At para. 49 she states: [49] In the bankruptcy process, the wife declared a state of affairs that reflected the arrangements in the interspousal agreement. This runs counter to her argument that the parties manifested an intention not to be bound by the interspousal agreement and placed no reliance on it.

Furthermore, the children moved back to the family home and the husband assumed full responsibility for the cost of their care, as the interspousal agreement also contemplated. After reconciliation, the husband met all the obligations he had assumed under the interspousal agreement. The wife, now freed in the bankruptcy process of the debts she assumed in the property division, was supported by the husband throughout the period of reconciliation and at some point placed directly on the company payroll. Accordingly, the evidence in its present state is contrary to the position suggested by the wife.

Although her observations are appropriate as far as they go, they beg the question whether the Agreement was procedurally or substantively flawed at its inception. The Chambers judge did not therefore do a fulsome stage one analysis. Based on the stage one analysis which follows, the wife has met the burden of challenging the Agreement at the interim stage. It is therefore unnecessary on the interim application to move to stage two of the Miglin test.

As a preface to this analysis it bears mentioning that the observations and determinations which follow are interim and preliminary and not intended to circumscribe the enquiries and determinations of the trial judge. (vii) The Circumstances of Execution [ 63 ] The first step of the stage one analysis requires the court to assess whether there is reason to discount the Agreement because of the circumstances of negotiation and execution.

What the wife must show are circumstances of oppression, pressure, power imbalance or other vulnerabilities which have flawed the negotiations and which have not been ameliorated by legal assistance. The Court in Miglin states that the power imbalance in the negotiations need not reach the level of unconscionability in contract law.

On the other hand vulnerability and power imbalance should not be presumed and the emotional stress of separation itself would not make a party incapable of entering a binding agreement. [ 64 ] The evidence before the Chambers judge was that the wife suffers from mental illness and alcoholism for which she has sought treatment since 2001. The husband did not dispute this. The undisputed evidence was that the wife was suffering from stress and depression over the Christmas season in 2004. The Agreement was “negotiated” (if that term can be used) and executed during or shortly after the Christmas season.

In this case, the parties negotiated the Agreement themselves. The wife did not appear to have the benefit of her own lawyer advising her during negotiations. The Agreement, as it finally reads, was produced as the result of a two-hour meeting between the husband and his lawyer. Even if one accepts that some kind of agreement was the wife’s suggestion and she was in full agreement with executing one, there is no evidence at this interim stage that she had input into the terms.

It may be inferred given her condition that she was prepared to sign almost anything to get her family back together. [ 65 ] Four months after executing the Agreement, the wife attempted suicide. After the final separation, the wife was in a residential treatment program for alcoholism. She has been under psychiatric care for many years. All this speaks to the wife’s ongoing personal vulnerability as a result of her illnesses during the crucial time when the Agreement was negotiated and executed.

Her mental instability manifested itself prior to the first separation, immediately prior to executing the Agreement, shortly after executing the Agreement and prior to the second separation. The vulnerability of the wife in this respect does not appear to be merely the normal emotional stress of separation but is consistent over a long period of time. [ 66 ] Miglin states that a party’s vulnerabilities can be overcome by effective representation. The learned Chambers judge herself identified that an issue at trial would be the effectiveness of legal counsel for the wife.

The material discloses that the counsel she consulted was not the same counsel who helped her negotiate the 2004 agreement. Although the wife chose her own counsel respecting the Agreement, this choice was circumscribed by the list the husband gave to her and the short time frame between when the wife reviewed the Agreement and when she consulted counsel. The meeting with her counsel took 15-20 minutes. Her counsel did not have

the 2004 settlement nor did she have any financial documents respecting the wife’s situation. The wife consulted counsel at a time when she was stressed and depressed. The course of her dealings with counsel stands in relief to her dealings with counsel on the 2004 settlement where her lawyer was an experienced counsel and participated in the negotiations. That said, the issue will be definitively explored at trial, where further evidence may shed a different light on the subject.

The wife has established, at this stage, an arguable case that the legal advice was ineffective. [ 67 ] The wife’s vulnerability due to her health issues, her palpable desperation to rejoin the family unit, the relative lack of negotiation of the Agreement, the absence of legal advice during negotiations and the appearance of perfunctory legal advice at signing, cumulatively point to a reasonable prospect of success at trial that the bargaining process has been vitiated by a power imbalance. This is so keeping in mind that the imbalance need not rise to the level of contractual unconscionability.

The wife, in my view, has on the first step of stage one of the Miglin analysis demonstrated a reasonable prospect of successfully impeaching the Agreement at trial and rebutting the presumed dispositive effect of the Agreement for the purposes of the interim application. However, the wife is also successful at the second step of stage one. (viii) The Substance of the Agreement [ 68 ] The second step of the stage one analysis requires the court to determine whether the Agreement substantially complies with the objectives of the Act .

Only a significant departure from the general objectives of the Act will warrant the court’s intervention. The whole Agreement must be looked at in its context. The greater the vulnerabilities present at the time of formation, the more searching the court’s review at this stage. The court has the option to defer to various aspects of the Agreement even if it fails to substantially comply with the Act . The whole Agreement need not be ignored. [ 69 ] The wife has established a reasonable prospect of success in terms of proving that the Agreement did not meet the objectives of the Act at the date of execution.

The Agreement uses verbiage in a number of places to suggest that it conforms to and attempts to meet the objectives of the Act .

Even if one assumes that the clawing back of the wife’s matrimonial property left to be paid was meant to prevent her from squandering it and to protect it for the family, as postulated by the Chambers judge, there seems to be little justification for the absolute waiver of future spousal support where there was no promise to reconcile in the Agreement and complete reliance on the husband’s good will. [ 70 ] It is difficult to see how economic self-sufficiency of the wife and financial independence and the other factors in s. 15.2(6) and the Act were promoted by the terms of the Agreement.

The net effect of the Agreement is that the wife received a chance but not a promise of reconciliation with the husband, and in return, the husband obtained freedom from the requirement to pay her the balance of the matrimonial property worth approximately $70,000, and his obligation of spousal support of $1,200 a month. Although she was temporarily employed at the time, the execution of the Agreement left her virtually destitute with only the prospect of financial dependency on the husband if he chose to reconcile.

The dependency of the wife on the husband during the period of cohabitation was inimical to the terms of the Agreement, which expressed that the parties were to be financially independent.

The reality was that during the reconciliation, the parties shared assets and money and the wife was totally dependent on the husband. [ 71 ] The learned Chambers judge correctly observed that it was not suggested the wife received an unfair division of property in the 2004 settlement, that she had an income of $1,200 a month for an indeterminate period and that she was in a position to insist on a full implementation of the 2004 settlement.

However, the net effect of the Agreement is that the husband had clawed back all of his remaining matrimonial property obligations and converted a legal obligation of support to one where that support was totally dependent on his good will. It stripped the wife of these resources giving her little or nothing in return other than the husband taking over the obligation for the children. The Chambers judge points to a possible advantage in that the wife was able to obtain a bankruptcy discharge without any outlay of money. Although this is true, the end result is that she still had no money or assets.

After signing the Agreement, she had nothing. Whether she might have done better by not signing the Agreement and still going bankrupt anyway would be pure speculation.

Certainly she could not have done worse. [ 72 ] It is an arguable issue that the Agreement required the wife to bear an inordinate amount of the economic consequences of the breakdown of the marriage by virtue of the fact that a year after the 2004 agreement which was not yet fully performed, in what might be characterized as a renegotiation of that agreement, she signed away all her remaining financial resources. [ 73 ] The Agreement met the requirements of certainty, finality and autonomy, but these goals cannot be viewed in isolation and a more full examination of them can await trial when their relationship in the context of the parties’ reliance on them can be explored.

In my view, as an initial determination without the advantage of further evidence which might be tendered at trial, there is a reasonable prospect that the Agreement does not meet the general objectives of recognizing the economic advantages or disadvantages of the wife

arising from the marriage, relieving the economic hardship of the wife from marital breakdown and promoting her economic self- sufficiency.

It arguably is a significant departure from the provisions of s. 15.2(4) and (6) and the general intent of the Act . [ 74 ] The wife has established that, at least as an interim proposition, there is a reasonable prospect of success at trial that the Agreement is impeachable on the basis that its substance does not accord with the provisions of the Act . (ix) Conclusion [ 75 ] The wife, in this case on the evidence before the Chambers judge, has established a reasonable prospect of success at trial that the Agreement is impeachable on the basis of the circumstances of its execution and its substance.

As such, on an interim basis, she has established that the Agreement, in the mix of s. 15.2 considerations, should not be given deference pending trial. Whether deference is ultimately warranted is the purview of the trial judge. (

c) Relevance of Assets and Property [ 76 ] The last issue raised by the wife is that the Chambers judge erred in finding that evidence related to assets and property was not relevant in a claim for spousal support. On this issue, I agree with the learned Chambers judge that the breadth of disclosure is determined by the issues. Unless the issues are broadened or particularized, the income information sufficient to perform the Miglin analysis in the context of a variation application is all the husband is required to produce.

This consists of a current financial statement and income tax returns, personal and corporate, for the taxation years 2004 and 2009, or such subsequent information as may be relevant at the date of the hearing. I agree that the broad disclosure sought by the wife does not require that the husband provide a property statement. Accordingly, this ground of appeal fails. [ 77 ] Accordingly, the appeal is allowed and the matter is referred back to the Chambers judge to determine the quantum of spousal maintenance based on the evidence before her.

The wife shall have her costs in this Court and the Court below in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 18 th day of February, A.D. 2011. “OTTENBREIT J.A.” OTTENBREIT J.A. I concur “LANE J.A.” LANE J.A. I concur “SMITH J.A.” SMITH J.A.