Case information

Family law — Division of property — Agreements — Whether an analysis under Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, should be applied when considering a non binding agreement — If the Miglin analysis is applied to a non binding agreement, whether it is open to the court to find the agreement is enforceable but depart from the terms of the agreement —Whether an appellate court must apply the correct standard of review.

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The parties were married for three years. Both parties came into the marriage with considerable assets, including houses, vehicles, items of personal property, RRSPs, savings and pensions. Shortly after the parties separated, the respondent invited the applicant to a reconciliation meeting with mutual friends. At the end of the meeting, the respondent presented the applicant with a separation agreement she had drawn up. Neither party received independent legal advice, but they both signed the agreement. The agreement did not deal with all the family property issues as the family home was not specifically dealt with in a final way. Shortly thereafter, the respondent’s counsel drafted a formal interspousal agreement but the applicant refused to sign it or engage in any discussion with the respondent. The respondent issued a petition seeking a divorce and costs in December 2015 and the applicant issued a counter petition in May 2017 claiming for the first time a family property division as well as occupational rent.

The trial judge ordered that the respondent pay to the applicant the sum of $62,646.98 (this being the sum of the $70,646.98 equalization of non-taxable assets less the $8,000 equitable factor regarding the agreement), and either an RRSP rollover of $37,089.69 or a further cash payment of an additional $27,817.27. The Court of Appeal set aside the trial judgment and directed that the division of the family property should be made in accordance with the December 2015 values. The applicant was thus ordered to pay the sum of $4,914.95 to the respondent to equalize the distribution of their family property.