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Agreement waiving spousal support upheld despite lack of legal advice

The Canadian Press   Oct-03-2017

bloomsberries via Flickr


TORONTO — A woman who signed a deal without legal advice decades ago in which she agreed her spouse would never have to pay support if their relationship broke down has lost her bid to have the agreement set aside.

In upholding a judge's decision, the Ontario Court of Appeal said it found no error that would warrant overturning the cohabitation agreement Denise Boyda Smith inked 20 years ago.

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"She acknowledges that she was not coerced," the Appeal Court said. "There is no suggestion that the income of the parties at the date of the agreement impacted her decision to sign the agreement."

Court documents show Boyda Smith and Johnny Smith began living together in March 1997. He had already been through one acrimonious separation and, in an effort at avoiding a repetition, he presented her with the agreement as a condition of continuing the relationship and buying a home, documents show.

Boyda Smith signed without going to a lawyer, even though she had ample time to do so. The couple later had two children and got married, but their relationship fell apart in 2013 and she turned to the courts to have the agreement waiving spousal support set aside.

Superior Court Justice Antonio Skarica ruled against her in March last year, prompting Boyda Smith to appeal. She argued Skarica's ruling was in error because the agreement in which she waived support did not meet the provisions of the Divorce Act, which attempts to put separating spouses on substantially equal financial footing.

Among other things, Boyda Smith argued a "power imbalance" existed between her and her spouse, that she had not discussed spousal support with him, and that he had failed to be fully upfront about his financial position.

She also maintained the cohabitation agreement did not square with the Divorce Act because she bore primary responsibility for their children and he made more money than she did.

In rejecting her arguments, the Appeal Court cited Supreme Court of Canada case law that mandates a judge look at the circumstances at the time a deal was signed, whether the agreement complies with the law on divorce, and whether it reflects the original intentions of the parties.

Skarica found the couple had discussed the cohabitation agreement beforehand, that Boyda Smith did know his sources of income and assets, and that she opted to skim the document rather than read it all carefully, the Appeal Court said. It was also her choice not to consult a lawyer, and she thought the agreement fair when she signed it, the court noted.

"There was no fraud, coercion, or duress," the Appeal Court wrote. "The agreement is in substantial compliance with the Divorce Act. Both parties suffered economic disadvantages arising from the marriage."


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