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Article written by Ron Shulman
In a case called Sabo v. Sabo, 2013 ONCJ 545 (Ont. C.J.), the spouses were married for more than 35 years when they separated. At that time, and with the assistance of lawyers, they reached and signed a separation agreement that provided the husband was to pay $1000 per month in support for the wife.
Later however the husband asked the court to terminate his obligation to pay support because he claimed the wife was intentionally under-employed and was living in a spousal relationship with another man. The wife, on the other hand, asked to have the support increased, since she was no longer working as a hairdresser as she had been.
In considering each party’s request, the court confirmed a basic principle in Ontario family law: if a separation agreement is to be changed, it must be in response to changed circumstances which – had they be known or existed at the time of the agreement – would have resulted in different terms being reached at that time.
That rule results in a court having a very narrow groove, in terms of when it has the authority to vary an agreement. As the court explained:
It is difficult for parties to change the terms of a valid separation agreement, and with good reason. Courts protect the right of separating spouses to enter into their own arrangements. Courts believe that their decision to do so should be respected. There is a very narrow ambit within which a court can change the terms of a valid separation agreement. If the parties cannot fit their request into this narrow ambit, the court has no jurisdiction to examine or change the agreement, and there will be no changes made to the terms of the agreement.
In this case – and aside from the husband’s suspicions – there was no real evidence that the wife was actually living or had lived with another man (though it was clear that she had had a relationship with one). As for the wife’s alleged under-employment, the court pointed out that the separation agreement as drafted had not obliged her to earn any income at all, nor to contribute to her own support. She did continue to work as a hairdresser after the separation, but had retired at age 60 (just as the husband had) due to deteriorating health. The court concluded that the wife was not under-employed. On the other hand, there was no basis on which to increase her support, on these particular facts.
In short, and having found there was no material change in circumstances here, the court left the separation agreement as-is.
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