DATE: 20031007

DOCKET: C38834

COURT OF APPEAL FOR ONTARIO

RE: NEIL WALLACE McGEACHY (Appellant (Applicant in Superior Court of Justice)) v. LAURAL DAWN McGEACHY (Respondent (Respondent in Superior Court of Justice)

BEFORE: ABELLA, MOLDAVER and SHARPE JJ.A.

COUNSEL: Daniel S. Melamed and Tami Moscoe for the appellant

Laural Dawn McGeachy in person

HEARD: September 25, 2003

On appeal from the final order of Justice Alfred J. Stong of the Superior Court of Justice dated August 22, 2002.

E N D O R S E M E N T

[1] We agree with the appellant that under the Supreme Court of Canada’s test in Miglin, and given the evidence of the circumstances surrounding the signing of the agreement, there is no basis for requiring the appellant to pay spousal support.

[2] We see no reason to discount the agreement, in view of the following:

• the respondent had independent legal advice;

• she was aware of her right to seek spousal support;

• she provided a full and final release of that support; and

• the original agreement was, at the time, in general compliance with the objectives of the Divorce Act.

[3] In our view, the agreement remains in compliance with the objectives under the Act, and we are of the view that there has been no significant change in the parties’ circumstances from what could reasonably have been anticipated at the time they negotiated the agreement.

[4] For these reasons, the order of Stong J. for spousal support is set aside, and the funds paid into court pursuant to the order of Charron J.A. are to be paid out of court to the appellant.

[5] In addition, an order will go requiring the respondent to pay back the spousal support that has been paid to her pursuant to the order of Stong J., without interest.

[6] In all of the circumstances, and in view of the relative means of the parties, we are of the view that the respondent’s child support arrears should be rescinded as per Stong J.’s order and that there should be no order under s. 7 of the Guidelines for post-secondary educational expenses.

[7] Accordingly, the appeal is allowed in part, the order of Stong J. varied in accordance with these reasons, with each party to bear his or her own costs of the appeal.

Signed: “R.S. Abella J.A.”

“M.J. Moldaver J.A.”

“Robert J. Sharpe J.A.”