Court File and Parties
Court File No.: F205/14-1 (London) Date: 2018-06-19 Superior Court of Justice - Ontario
Re: Norma Lorraine Egan, Applicant And: Thomas Edward Egan, Respondent
Before: Carey J.
Counsel: B. Thomas Granger, Q.C., Counsel, for the Applicant Matthew Dupre, Counsel, for the Respondent
Heard: January 15, 2018
Endorsement on Summary Judgment Motion
[1] Mrs. Egan seeks to set aside the provisions of a separation agreement signed on January 15, 2014. She argues that the separation agreement did not reasonably provide for her and does not comply with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Mr. Egan relies on the seminal case in the Supreme Court of Canada of Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24. He says the parties knew what they were agreeing to and that any changes in the income of either of the two should have been anticipated. He seeks a judgment dismissing the application.
[2] For the reasons set out below, I agree with the respondent’s position that Miglin properly applied results in the application being dismissed and the separation agreement being confirmed.
[3] The applicant, Mrs. Egan, submits that this is not an appropriate case for summary judgment. She says that there are issues that require a trial that would not be likely – a mini trial. Mrs. Egan argues that there has been a change in the circumstances that was not anticipated by the parties and that the evidence shows she believed she was to receive approximately 50 percent of her husband’s pension. Instead, she received a lump sum of money that was transferred from Mr. Egan’s pension into a locked-in retirement plan in Mrs. Egan’s name which limits the amount that she can renew from it. As well, she is now limited to the work that she can do to earn income as a result of poor health. She is now receiving an ODSP (Ontario Disability Support Program) pension of $15,000 annually. Mrs. Egan proposes a “modest” lump sum payment to assist her with upgrading her trailer home from its current state of disrepair. Mrs. Egan gave evidence on this motion.
Analysis
[4] When a party brings an application to set aside the provisions of an existing separation agreement, courts are bound by the test set out in Miglin. That test requires courts to make a two-stage investigation into: first, the circumstances surrounding the agreement at the time of its formation; and second, at the time of the application where there is no evidence to impeach negotiations or to suspect that they did not represent the intentions and expectations of parties at the time and that they substantially comply with the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, the agreement should receive considerable weight. At the second stage a court must assess whether the agreement still reflects the original intentions of the parties and whether it is still in substantial compliance with the objectives of the Divorce Act. A party wishing to set aside the agreement will have to show new circumstances that were not reasonably anticipated by the parties at the time of the negotiation.
[5] In this case I am satisfied on the material presented and the evidence called that the parties were properly represented by competent counsel at the time of the making of the agreement and the objectives of the Divorce Act were complied with.
[6] In the second stage of the analysis I have not been satisfied that a change in the circumstances of the applicant’s health or the condition of her trailer home needing some renovations could not reasonably have been anticipated. The changes that she is relying on in this application in my view do not represent a significant departure from the range of reasonable outcomes that should have been anticipated by the parties at the time of the making of the separation agreement.
[7] The application is dismissed. Given the financial circumstances of both parties there will be no order as to costs.
Original signed by “Carey J.”
Thomas J. Carey
Justice
Date: June 19, 2018