This Month In Nova Scotia Family Law ' May 2023

• Published date: 30 June 2023
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Cox & Palmer
• Author: Courtney Losier, Jocelyn Campbell and Michelle Axworthy

Anderson v. Anderson, 2023 SCC 13

Judge: Justice Karakatsanis

Subject Matter: Absence of Legal Advice when Entering Domestic Agreements

The parties were married for three years. They had both been married previously, and each entered the marriage with significant assets. They separated and signed a domestic agreement without disclosing their individual finances or seeking independent legal advice. The domestic agreement provided that each party would keep the property in their names, release all rights to each other's property, and divide the family home and household goods evenly. Two friends present at the meeting acted as witnesses.

Ms. Anderson filed for divorce. Mr. Anderson filed an answer 17 months later, requesting the division of property, and arguing that the domestic agreement was signed under duress and without legal advice.

The trial judge held that the lack of independent legal advice meant the agreement was not binding. He instead ordered an equal division of property. Ms. Anderson appealed.

On appeal, the court accepted Ms. Anderson's argument that the agreement should have been considered in light of Miglin v Miglin, 2003 SCC 24. In Miglin, the Supreme Court of Canada held that courts should defer to the parties in separation agreements, and to consider whether procedural protections were present when deciding whether to uphold the agreement. The court of appeal found that the agreement should have been given great weight, and ordered Mr. Anderson to pay Ms. Anderson approximately $5,000. Mr. Anderson appealed.

The Supreme Court of Canada allowed the appeal. Justice Karakatsanis for a unanimous court wrote that the agreement was short, uncomplicated, and demonstrated the intention of the parties to have a clean break from their partnership. While Miglin provided guiding principles for family law cases, it concerned the federal Divorce Act. Justice Karakatsanis held that when determining the weight to give a domestic contract, the judge must consider the appropriate legislation. As the agreement concerned the division of property, Saskatchewan's Family Property Act applied.

The agreement had not satisfied the requirements of the Family Property Act to be enforceable, but Mr. Anderson could not demonstrate any prejudice arising from his lack of legal counsel. The Supreme Court set aside the SKCA's decision and enforced the domestic agreement. The family home and domestic goods were divided evenly, and Ms. Anderson was ordered to pay approximately $43,000 difference.

Green v Green, 2023 NSCA 38

Judge: Justice Farrar, Justice Van den Eynden, Justice Beaton

Subject Matter: Parenting; Evidence

This matter concerns an appeal of an order regarding parenting time as well as a motion by the appellant to admit fresh evidence.

The Court of Appeal held that most of the appellant's submissions attacked the decision in K.G. v. H.G., 2021 NSSC 43 and that the appellant had already attempted unsuccessfully to appeal that decision in Green v. Green, 2021 NSCA 61. The Court reiterated that rehearing and reweighing evidence does not fall within the appellate court's role.

The Court also denied the appellant's motion to admit fresh evidence, as it was not in admissible form. The appellant did not sufficiently show that the evidence was relevant to the matter at hand, nor that it could have changed the outcome of the Order. The...