2023 MBKB 67, 2023 MBKB 67

Date: 20230412 Docket: FD 21-02-09202 (Brandon Centre) Indexed as: Debra Louise Vanbeselaere v. Daniel Gerard Vanbeselaere Cited as: 2023 MBKB 67 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: DEBRA LOUISE VANBESELAERE, ) petitioner, ) Suzette Golden-Greenwood ) for the petitioner - and - ) ) ) DANIEL GERARD VANBESELAERE, ) Glen Harasymchuk respondent. ) for the respondent ) ) ) Decision pronounced (written) ) Judgment Delivered: ) April 12, 2023 MENZIES J.

I NTRODUCTION [ 1 ] This is an application concerning the validity of a premarital agreement executed between the Petitioner (the “wife”) and the Respondent (the “husband”) on July 3 rd , 1997. The husband takes the position that the agreement provides that the wife cannot claim spousal support, nor is she entitled to share in the majority of the assets accumulated during the marriage. The wife acknowledges that the husband had certain assets prior to their marriage but argues that considerable assets were acquired during the marriage to which she contributed.

The wife asked the court to declare the agreement to be invalid and allow her to pursue her rights under the Family Property Act and the Divorce Act . B ACKGROUND [ 2 ] The husband and wife met in 1993. They began cohabiting on Halloween, 1994. The wife was 18 years old and attending high school. She moved in with the husband with her clothing and little or no money. The husband was 26 years of age and already engaged in farming.

He paid all of the couple’s expenses including buying the wife a car so she could attend high school from the farm. [ 3 ] The husband proposed on Christmas Eve, 1995 and a wedding was planned for July 5, 1997. In the early spring of 1997, the husband retained the services of a lawyer to draft a premarital agreement. The husband testified he brought a copy of the agreement to their home and left it on the counter for the wife to read.

The husband told the wife there would be no marriage if the agreement was not signed. [ 4 ] On July 3, 1997, two days before the impending wedding ceremony, the husband and wife attended the lawyer’s office and

signed the agreement. The wife did not request nor did she receive any independent legal advice. [ 5 ] The parties were married for 23 years with one short period of separation. They were blessed with two children. The oldest was born May 12, 2000. The second was born November 15, 2004. [ 6 ] During the marriage, the wife worked extensively on the farm. She performed manual labour, helped with the bookkeeping, maintained the home and was primarily responsible for raising the children. At times the wife kept track of hours worked and was paid a wage based on those hours.

However, the wife’s testimony was unchallenged that her wages were used to buy groceries for the family, clothing for the children and pay for the children’s extracurricular activities. Both the husband and wife agreed the payment of wages was an accounting strategy to lower the income tax payable by the farm operation. [ 7 ] Between 2012 and 2020, the husband and wife filed income tax returns declaring the farm was being operated as a partnership. The husband testified that there was no partnership and this was another strategy to reduce the taxes payable by the farming operation.

The wife testified she did not receive her share of the partnership income. T HE A GREEMENT [ 8 ] In order to understand the rationale for this decision, it is necessary to include portions of the premarital contract. While the entire agreement is not set out in this decision, I have considered the individual provisions as well as the contract as a whole. [ 9 ] The agreement includes the following in the

preamble: … 2. The Husband owns substantial farming assets consisting of land, buildings, farm machinery, and cattle and the parties wish to ensure that these assets are not considered to be marital property and will not be subject to division with the Wife in the event death, separation, or termination of the marriage. [ 10 ] The provisions of the agreement itself: 2. PURPOSE OF THE CONTRACT The parties wish, by this agreement, to confirm that the property owned by the Husband and listed in the attached

Schedule A, (the “husband’s separate property”) shall not be considered to be marital property pursuant to the provisions of the Marital Property Act and it shall not be subject to division with the Wife in the event of death, separation or termination of the marriage. … 6. CALCULATING MARITAL PROPERTY The husband’s separate property, or any property purchased in substitution for it will be excluded from his marital property.

Even if legislation changes as to alter the technique whereby assets owned by a separated or deceased spouse are to be shared or divided, this property (or other property acquired with the proceeds of the sale of this property) will not be subject to division or sharing. For greater certainty, the parties agree that the husband shall continue to be the sole and exclusive owner of the following:

a) The husband’s separate property

b) All appreciation in value of the husband’s separate property;

c) All assets purchased or otherwise acquired, the purchase price whereof as paid, either in whole or in part, with money derived from the sale or pledge of the husband’s separate property;

d) All property substituted for any property described in subparagraph in a, b, and c, of this paragraph; 7. MATRIMONIAL HOME

The parties will be entitled to share equally in the value of any matrimonial home owned by either spouse. The matrimonial home shall be deemed to be owned by the parties as joint tenants regardless of legal title. 8.

JOINT ASSETS The parties further acknowledge that they may, from time to time, chose to operate a joint bank account or accounts, to borrow jointly, to hold real or other property jointly, or to acquire other assets, incur other liabilities, or carry on other businesses or matters jointly, and upon an accounting of the marital property for any reason, all such assets liabilities and activity, or the value thereof, shall be shared evenly between the parties, but on the death of one party, all such assets, liabilities and activities shall become the assets, liabilities, and activities of the survivor. … 10.

SUPPORT: NO OBLIGATION 1. The parties acknowledge that they wish to remain completely independent of each other and each will be deemed to be self- supporting and not in need of support from the other. 2. Both parties accept the terms hereof in full satisfaction of all claims and causes of action which he or she now has or may hereafter acquire against the other for support, whether under the Family Maintenance Act (Manitoba), the Divorce Act (Canada) , or otherwise, under presently existing legislation or future legislation whether in this jurisdiction or any other jurisdiction.

This agreement and this paragraph in particular may be pleaded as a complete defence to any claim brought by either spouse to asset a claim for support. 3. The parties realize that there may be future changes in their financial circumstance by reason of their health, the cost of living, their employment, financial mismanagement, financial reversals, in heritance or otherwise.

No change whatsoever, whether causally connected to the marriage or not and even if it be material, profound catastrophic or otherwise, will give either party the right to claim or obtain support from the other pursuant to the Family Maintenance Act, the Divorce Act or any other statute or law. … 14. SEVERABILITY OF TERMS Except as otherwise provided, all of the terms of this agreement are severable from each other and will survive the invalidity of any other term of this agreement. … 17. INDEPENDENT LEGAL ADVICE AND FINANCIAL DISCLOSURE a. the Wife acknowledges that M.

W. is the solicitor for the Husband and not the solicitor for the Wife, and not the solicitor for the Husband and Wife together; b. the Wife acknowledges and declares M. W. has recommended to her that she seek independent legal advice with respect to the terms of this agreement, and that she has been given the opportunity to seek such legal advice; c. notwithstanding the recommendations of M. W., the Wife acknowledges and declares she wishes to enter into this agreement

without the benefit of independent legal advice and acknowledges and declares that the terms of this agreement correctly set out herwishes and intentions.

The Husband and the Wife each acknowledge that he or she; a. has read the agreement in its entirety and has full knowledge of the contents; b. understands his or her respective rights and obligations under this agreement, the nature of this agreement and the consequences ofthis agreement; c. has made full and complete disclosure of his or her financial circumstances to the other, including but not limited to his or herincome, assets, debts or other liabilities; d. acknowledges that the terms of this agreement are fair and reasonable; e. is entering into this agreement without any undue influence, fraud or coercion whatsoever; and f. is signing this agreement voluntarily. … UNCONSCIONABLE CONTRACT [11] The nature of the agreement in this case is relevant.

The agreement under attack is not a separation agreement negotiated at thebreakdown of a marriage, but rather a premarital agreement executed days before the marriage ceremony. Accordingly, I am mindful ofthe comments of Bastarache J. found in Hartshorne. v. Hartshorne, 2004 SCC 22 at para. 39: This Court has not established, and in my opinion should not establish, a “hard and fast” rule regarding the deference to be afforded tomarriage agreements as compared to separation agreements. In some cases, marriage agreements ought to be accorded a greater degreeof deference than separation agreements.

Marriage agreements define the parties’ expectations from the outset, usually before any rightsare vested and before any entitlement arises. Often, perhaps most often, a desire to protect pre-acquired assets or an anticipatedinheritance for children of a previous marriage will be the impetus for such an agreement. Separation agreements, by contrast, purport todeal with existing or vested rights and obligations, with the aggrieved party claiming he or she had given up something to which he orshe was already entitled with an unfair result.

In other cases, however, marriage agreements may be accorded less deference thanseparation agreements. The reason for this is that marriage agreements are anticipatory and may not fairly take into account thefinancial means, needs or other circumstances of the parties at the time of the 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. [12] However, courts should not lightly disregard an agreement negotiated between parties whether it be in the commercial realm orwithin the context of the anticipation of marriage. As was articulated by Wilson J. in Pelech v.

Pelech, (SCC), [1987] 1S.C.R. 801: [851] It seems to me that where parties have negotiated their own agreement, freely and on the advice of independent legal counsel, asto how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in thesubstantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their decisions. This should be the overriding policy consideration. [13] The issue of unconscionability of contract in the domestic context was considered by Yard J. in Melnyk v.

Melnyk, 2010 MBQB121 at para. 66-68: [66] Parties entering into agreements domestic or otherwise should in the absence of vitiating circumstances or a statutory regime whichprovides otherwise, expect that the provisions of their agreement can and will be enforced both for and against them. The vitiatingcircumstance here relied upon is the petitioner’s plea of unconscionability. The doctrine of unconscionability was described in Morrisonv. Coast Finance Ltd. et al. (1965), (BC CA), 55 D. L. R. (2d) 710 at 713 as follows:

…[A] plea that a bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientious use of power by astronger party against a weaker. On such a claim the material ingredients are proof of inequality in the position of the parties arising outof the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of a substantial unfairness of thebargain obtained by the stronger.

On proof of those circumstances, it creates a presumption of fraud which the stronger must repel byproving that the bargain was fair, just and reasonable. [67] This statement of the principle has been approved by the Manitoba Court of Appeal in Natuk v. Kawula (1979), (MB CA) 104 D. L. R. (3d) 288. In addition, the Manitoba Court of Appeal said this on the subject in Williams v. Downey-Waterbury(1994), (MB CA), 11 R. F. L. 106 at paras. 21-22: Unconscionable transaction are grossly uneven bargains which result out of an inequality of bargaining positions arising throughignorance, need or distress.

In Zabolotney v. Szyjak (1980), (MB KB), 5 Man. R. (2d) 107 (Q. B.), Kroft J. (as hethen was) explained that to find an unconscionable transaction the court must answer two questions (at p. 120): First of all, has the plaintiff proved that there was an inequality in the position of the parties arising out of some ignorance, distress orincapacity, which left him subject to the stronger party, and if so, has there been proof of the substantial unfairness of the benefitobtained by the defendant? In the subsequent case of Lindsay v. Lindsay (1989), (MB KB), 21 R.F.L. (3d) 34 (Man.

Q.B.), a case also involvingan application to set aside a separation agreement, Kroft J. elaborated on his earlier remarks and set forth a list of criteria for the court todetermine whether the circumstances established an unconscionable bargain. After noting that the court should generally give effect tosuch agreements, especially if the parties acted after consultation with independent legal advice, he observed (at p. 42): 4. The fact that an agreement is unwise or one-sided is not tantamount to unconscionability.

No court should relieve a person fromresponsibility for a contract entered into willingly and knowingly, even where the contract is

an act of folly. [14] Recently the Supreme Court of Canada has considered the issue of unconscionability of contracts in the decision of UberTechnologies Inc. v. Heller, 2020 SCC 16 (“Uber”): [64] In Norberg, La forest J. described proving the elements of unconscionability as a “two step process”, involving “(1) proof ofinequality in the positions of the parties, and (2) proof of an improvident bargain” (p. 256).

The concurring judgment in Douez v.Facebook Inc., 2017 SCC 33 , [2017] 1 S.C.R. 751, followed a similar approach in a case involving a standard form consumercontract: Two elements are required for the doctrine of unconscionability to apply: inequality of bargaining and unfairness. Prof. McCamusdescribes them as follows: …one must establish both inequality of bargaining power in the sense that one party is incapable of adequately protecting his or herinterests and undue advantage or benefit secured as a result of that inequality of the stronger party.

INEQUALITY OF BARGAINING POWER [15] In Uber, the Supreme Court explained as follows: [66] An inequality of bargaining power exists when one party cannot adequately protect their interests in the contracting process (seeMcCamus, at pp. 426-7 and 429; Crawford, at p. 143; Chen-Wishart (1989) at p. 31; Morrison, at p. 713; Gustafson, at para. 45; Hess v. Thomas Estate, 2019 SKCA 26, 433 D.L.R. (4th) 60, at para. 77; Blomley v. Ryan (1956), 99 C.L.R. 362 (H.C.A.), at p. 392;Commercial Bank of Australia, at pp. 462-63, and 477-78; Bartle v.

GE Custodians, [2010] NZCA 174, [2010] 3 N.Z.L.R. 601, at para166). … [68] In many cases where inequality of bargaining power has been demonstrated, the relevant disadvantages impaired a party’s ability to

freely enter or negotiate a contract, compromised a party’s ability to understand or appreciate the meaning and significance of the contractual terms, or both (see Stephen A. Smith, Contract Theory (2004), at pp. 343-44; John R.

Peden, The Law of Unjust Contracts: Including the Contracts Review Act 1980 (NSW) With Detailed Annotations Procedure and Pleadings (1982) at p. 36; Andrew Burrows, A Restatement of the English Law of Contract (2016), at p. 210; Downer , at para. 54; McInnes, at p. 525). [69] One common example of inequality of bargaining power comes in the “necessity” cases, where the weaker party is so dependent on the stronger that serious consequences would flow from not agreeing to a contract. This imbalance can impair the weaker party’s ability to contract freely and autonomously.

When the weaker party would accept almost any terms, because the consequences of failing to agree are so dire, equity intervenes to prevent a contracting party from gaining too great an advantage from the weaker party’s unfortunate situation. As the Privy Council has said, “as a matter of common fairness, ‘it [is] not right that the strong should be allowed to push the weak to the wall’” ( Janet Boustaney v. George Pigott Co. ( Antigua and Baebuda ), [1993] UKPC 17 , at p. 6 (BAILII) , quoting Alec Lobb (Garages) Ltd. v.

Total Oil (Great Britain) Ltd. , [1985] 1 W.L.R. 173 , at p. 183 ; see also Lloyds Bank Ltd. v. Bundy , [1975] 1 Q.B. 326 (C.A.) , at pp. 336-37) . [70] … Other situations of dependence also fit this mould, including those where a party is vulnerable due to financial desperation, or where there is “a special relationship in which trust and confidence has been reposed in the other party” ( Norberg , at p. 250, quoting Christine Boyle and David R. Percy, Contracts: Cases and Commentaries (4 th ed. 1989), at pp. 637-38).

Unequal bargaining power can be established in these scenarios even if duress and undue influence have not been demonstrated (see Norberg , at pp. 247-48; see also McInnes, at p. 543). [71] The second common example of an inequality of bargaining power is where, as a practical matter, only one party could understand and appreciate the full import of the contractual terms, creating a type of “cognitive asymmetry” (see Smith, at pp. 343-44).

This may occur because of personal vulnerability or because of disadvantages specific to the contracting process, such as the presence of dense or difficult to understand terms in the parties’ agreement. … [72] … Regardless of the type of impairment involved, what matters is the presence of a bargaining context “where the law’s normal assumptions about free bargaining either no longer hold substantially true or are incapable of being fairly applied” (Bigwood, at p. 185; see also Benson, at pp. 189-90).

In these circumstances, courts can provide relief from a bargain that is improvident for the weaker party in the contracting relationship. [ 16 ] In assessing the issue of inequality of bargaining power, it is necessary to consider the circumstances of each of the parties at the time of the agreement. The parties started cohabitating at a time when the husband was already an established farmer with considerable assets of his own. The list of pre-acquired assets attached to the marital agreement was of a value of over $500,000.00. He had a post- secondary education and was 8-10 years older than the wife.

By contrast, the wife was 18 years of age and attending high school when they began cohabitating at the end of October 1994. The husband proposed to the wife some 18 months prior to the subsequent wedding with no mention to her of a marital agreement. [ 17 ] A few weeks before the wedding was to take place, the husband retained a lawyer to draft up the marital agreement and advised the wife there would be no wedding if the agreement was not signed.

The husband maintains he brought a copy of the agreement to their home and left it on the counter for the wife to review, but agrees that the contract was not discussed between the two of them. [ 18 ] The proposed agreement was not negotiated between the husband and wife. Rather, the terms were dictated by the husband to the wife. [ 19 ] Two days before the wedding, the parties attended the lawyer’s office to sign the agreement. The husband indicates he attended alone and the wife attended with her mother. The wife says she attended the lawyer’s office with the husband.

The wife indicated she spent a short period of time at the lawyer’s office and willingly signed the agreement. She indicated that she understood the agreement was to protect the assets already owned by the husband. The wife indicated she had no money to consult a lawyer. There is no evidence the husband offered to pay for the wife to obtain independent legal advice. [ 20 ] The wife was in a difficult position. The wife was living with the husband who paid their living expenses and owned the home she lived in.

The wife testified she had quit her employment before the wedding because the plan was that she was going to work on the farm with the husband. The wife indicated she would have been devastated if the wedding were to be cancelled. [ 21 ] Absent other factors, a mere threat not to follow through on a promise to marry is insufficient to constitute duress or oppression.

However, the whole of the circumstances surrounding the execution of the agreement must be considered. [ 22 ] I have little hesitation on these facts in finding that there existed a marked inequality in bargaining power between the husband and the wife at the time of the execution of this agreement. The parties had already cohabitated for two and one-half years. The husband controlled the parties’ finances and had title to all the property. The wife had little life experience to fall back on. She had quit her employment to work on the farm with the husband.

She had invested into a conjugal relationship with him. [ 23 ] I am mindful of the comments of M. Shaffer in her

article “ Domestic Contracts, Pat II: Supreme Court’s Decision in Hartshorne v. Hartshorne ”, 2004, 20 Can. J. Fam. L. 261 at 286: Under the court’s approach to contracting, a rationale actor would simply refuse to sign a marriage contract if she (or he) did not like its terms, just as in the commercial arena, a party who does not like the terms of a business proposal would simply walk away from the bargaining table. There are, however, crucial differences between the commercial and family contexts.

Most people do not regard their intimate relationships as fungible commodities to be negotiated with the most favourable bidder. By the time people reach the stage of negotiating a marriage contract, they are already emotionally invested in their relationship. Refusing to sign a marriage agreement may mean more than walking away from the bargaining table-it may mean walking away from the relationship. The more deeply committed a person is to the relationship, the more difficult this will be to do.

[ 24 ] The effect of cancelling the marriage would have meant the end of a relationship for the husband, but his farm life would have continued unimpeded. For the wife, not only was she to lose her relationship with the husband but also her means of employment and financial support. Her entire life would have changed for the worse. [ 25 ] The evidence also discloses the wife had a compromised ability to appreciate the meaning and significance of the agreement but proceeded on the basis of the trust she had in the husband.

The wife testified that she agreed with the aims of the contract to protect the husband’s assets owned prior to the marriage. The husband denies that was ever said to the wife and that the agreement was meant to protect pre-existing and future acquired assets. However, the contract lends credence to the wife’s understanding of what the contract was meant to do. [ 26 ] Both in the

preamble and in “Clause 2” of the contract, the stated purpose of the contract was to ensure that the husband’s pre- acquired assets were not to be considered marital property or to be shareable with the wife in the future. I accept her testimony that if she had understood that she would never benefit from the increase in the value of the farm, she would not have spent her entire married life working on the farm. Her unsophistication in the world of business, lack of independent legal advice and misplaced trust in the husband put her in a disadvantaged bargaining position.

Conversely, despite believing the agreement would prevent the wife from sharing in the profits of her labour on the farm, the husband continued to use her as a source of labor and in his strategies to reduce tax payable by the farming operation. I am persuaded that the law’s normal assumptions about free bargaining between parties cannot be fairly applied in this matter. [ 27 ] I am persuaded on the evidence that there was a marked inequality of bargaining power between the husband and the wife at the time of the execution of the marital agreement.

I MPROVIDENT B ARGAIN [ 28 ] In the Uber decision, supra at para. 74, the Supreme Court explained that a bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable party. The Supreme Court stated: [75] Improvidence must be assessed contextually (McInnes, at p. 528).

In essence, the question is whether the potential for undue advantage or disadvantage created by the inequality of bargaining power has been realized. … … [77] Where the weaker party did not understand or appreciate the meaning and significance of important contractual terms, the focus is on whether they have been unduly disadvantaged by the terms they did not understand or appreciate.

These terms are unfair when, given the context, they flout the “reasonable expectation” of the weaker party (see Swan Adamski and Na, at pp.993-94) or cause an “unfair surprise” (American Law Institute and National Conference of Commissioners of Uniform State Laws, Proposed Amendments to Uniform Commercial Code

Article 2-Sales: With prefatory Note and Proposed Comments (2002), at p. 40). This is an objective standard, albeit one that has regard to the context. [78] Because improvidence can take so many forms, this exercise cannot be reduced to an exact science. When judges apply equitable concepts, they are trusted to “mete out situationally and doctrinally appropriate justice” (Rotman, at. 535).

Fairness, the foundation premise and goal of equity, is inherently contextual, not easily framed by formulae or enhanced by adjectives, and necessarily dependent on the circumstances. [ 29 ] Mere advantage accruing to one party or another in a contract does not constitute an improvident agreement. There must be the potential for undue advantage in favour of one of the parties.

Such an undue advantage existed in the provisions of the marital agreement before the court. [ 30 ] While the stated aim of exempting the husband’s pre-acquired assets from shareability is a legitimate purpose for such an agreement, this contract attempts to shield the husband from any financial obligations to the wife no matter what contribution she may make to the marriage or farming operation. [ 31 ] Clause 6 of the agreement is far reaching in its purported effect.

Not only are the husband’s pre-acquired assets exempt from shareability, the contract provides that if a pre-acquired asset is used in partial payment of the acquisition of a new asset, then the new asset is exempt as well. In effect, if the husband buys a new piece of machinery for $500,000.00 and trades in a used piece of machinery for $10,000.00 of the purchase price, the entire value of the new machinery is exempt by the operation of this agreement.

Likewise, if the husband buys a new piece of machinery and pledges one of the pre-acquired assets as security for a loan for the purchase, the new machinery is exempt. This is so even if the whole or part of the purchase price is paid for by the income derived from the joint efforts of the husband and the wife. [ 32 ] The husband and wife do own some parcels of real property in joint tenancy, but the wife has been unable to realize the value of such property as they have been pledged as security for debt for the farming operation.

In other words, her assets have been used to secure debt for a farming operation in which she has no proprietary interest. [ 33 ] In addition, the agreement provides that not only is she not entitled to share in the farm property which has accumulated over the course of the marriage, she is also not entitled to claim support from the husband after all her years of working side by side with him on the farm.

She has not received a penny from the husband in almost three years since the separation in property equalization, rent from his continued use of the jointly held farmland, or spousal support. [ 34 ] I note as well that there was no consideration given by the husband to the wife for signing the marital agreement except a promise to live up to his previous promise to marry her.

[35] This agreement benefits the husband alone and deprives the wife of any benefit from the years of labour she has provided to helpthe husband build a farm business and a family. The agreement does not fairly take into account the financial means or needs of the wifeat the time of the marriage breakdown. It is an improvident agreement. [36] I would add that the improvident nature of the contract supports a finding of inequality of bargaining position. See Uber, supra,at para. 79: [79] Unconscionability, in sum, involves both inequality and improvidence (Crawford, at. P. 143; Swan Adamski and Na, at p. 986).

The nature of the flaw in the contracting process is part of the context in which improvidence is assessed. And proof of a manifestlyunfair bargain may support an inference that one party was unable adequately to protect their interests (see Chen-Wishart (1989), at pp.47-48; Portal Forest Industries Ltd. v. Saunders, (BC SC), [1978] 4 W.W.R. 658 (B.C.S.C.), at pp. 664-65.

It is amatter of common sense that parties do not often enter a substantively improvident bargain when they have equal bargaining power. [37] The agreement does provide for the severance of the clauses in the agreement if any portions of the agreement are found to beinvalid. In the case of this agreement, I find that the entire agreement is unconscionable and the entire agreement must fail.

SPOUSAL SUPPORT [38] A further commentary is required respecting the waiver of spousal support found in the marital contract. [39] Even if this clause were found to be valid, the clause would not operate, in and of itself, to prevent the court from making anorder of spousal support in favour of the husband or the wife. [40]

Section 15.2(4) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) provides that the existence of an agreement relating to spousalsupport is but one factor to be considered by the Court in making an order of support. As the Supreme Court said in Miglin v. Miglin,2003 SCC 24: [46] Nevertheless, the language and purpose of the 1985 Act militate in favour of a contextual assessment of all the circumstances. Thisincludes the content of the agreement, in order to determine the proper weight it should be accorded in a s. 15.2 application.

Inexercising their discretion, trial judges must balance Parliament’s objective of equitable sharing of the consequences of marriage and itsbreakdown 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 with the overall objectives of the Divorce Act. [52] The objectives listed in s. 15.2(6) are designed to guide trial judges in determining the quantum, if any, and duration of a spousalsupport award made in an order of the court.

Such an order is made either in the absence of an agreement between the parties or insubstitution for some unacceptable terms in a proposed agreement submitted to the court for approval. … [41] Accordingly, the waiver of spousal support in the marital agreement may be a factor in determining if a support order ought to bemade, but does not operate to oust the jurisdiction of the court to make such an order.

CONCLUSION [42] For the reasons provided in this decision, I would declare the marital agreement entered into between the husband and the wifeon July 3, 1997 to be an unconscionable transaction of no effect as between the husband and the wife. __________________J.