Varney v. Varney,

• Jurisdiction: New Brunswick
• Judge: French, J.
• Neutral Citation: 2008 NBQB 389
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Citation: (2008), 341 N.B.R.(2d) 97 (FD),2008 NBQB 389
• Date: 07 May 2008

Varney v. Varney (2008), 341 N.B.R.(2d) 97 (FD);

    341 R.N.-B.(2e) 97; 876 A.P.R. 97

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. DE.018

Renvoi temp.: [2008] N.B.R.(2d) TBEd. DE.018

J. Leslie Varney (petitioner) v. David Faxter (Tim) Varney (respondent)

(Court File No. FDW/207/06; Registrar's File No. 1301-56447; 2008 NBQB 389; 2008 NBBR 389)

Indexed As: Varney v. Varney

Répertorié: Varney v. Varney

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Woodstock

French, J.

November 27, 2008.

Summary:

Résumé:

Spouses lived together from November 1991 until August 1996, when they married. Both had been married before. In January 1992, the husband presented the wife with a cohabitation agreement, which she executed after obtaining independent legal advice. The agreement provided that upon separation, neither spouse would seek spousal support from the other or make a marital property claim against any property in the name of the other party. At the time of execution, the husband owned his own business and the wife was a recent bankrupt. The spouses separated in October 2006. During the cohabitation and marriage, the spouses kept separate bank accounts. The husband paid for all living expenses and the wife was free to use her income as she pleased. The marital home was in the husband's name and the wife made no financial contribution to it. The now 51 year old wife, disabled from employment for the past 13 years, claimed a division of marital property and spousal support. No claim was made to the husband's business. She sought to set aside the cohabitation agreement on the basis of unconscionability and misrepresentation. Alternatively, the wife claimed that if the cohabitation agreement was valid, it did not bar a claim for spousal support (Miglin v. Miglin).

The New Brunswick Court of Queen's Bench, Family Division, held that there was no basis to set aside the cohabitation agreement. Accordingly, the wife's claim to a division of marital property was barred by the provisions of the agreement. In the circumstances, the agreement did not bar a spousal support claim and, in fact, carried "no weight" at all.

Family Law - Topic 854

Husband and wife - Marital property - Distribution orders - Contracting out - Enforceable agreements - [See Family Law - Topic 3353 and Family Law - Topic 3382 ].

Family Law - Topic 3353

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In divorce actions - Corollary relief - Spouses lived together from November 1991 until August 1996, when they married - Both had been married before - In January 1992, the husband presented the wife with a cohabitation agreement, which she executed after obtaining independent legal advice - The agreement provided that upon separation, neither spouse would seek spousal support from the other or make a marital property claim against any property in the name of the other party - At the time of execution, the husband owned his own business and the wife was a recent bankrupt - The spouses separated in October 2006 - During the cohabitation and marriage, the spouses kept separate bank accounts - The husband paid for all living expenses and the wife was free to use her income as she pleased - The marital home was in the husband's name and the wife made no financial contribution to it - The now 51 year old wife initially worked for the husband's business, but had been disabled from employment for the past 13 years - She claimed spousal support notwithstanding the validity of the agreement - The New Brunswick Court of Queen's Bench, Family Division, held that the agreement did not bar the spousal support claim - Courts were loathe to interfere with a pre-existing agreement unless it did not substantially comply with the overall objectives of the Divorce Act - The court applied the two stage analysis in Miglin v. Miglin - At the time of execution, the agreement, even though it precluded spousal support, substantially complied with the objectives of the Act based on circumstances then existing - However, given the wife's uncontemplated disability, the agreement was no longer consistent with the original intention of the parties and the objectives of the Act - The court stated that in the circumstances, the agreement precluding spousal support "should carry no weight at all" - See paragraphs 23 to 45.

Family Law - Topic 3382

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Material nondisclosure and misrepresentation - Spouses lived together from November 1991 until August 1996, when they married - Both had been married before - In January 1992, the husband presented the wife with a cohabitation agreement, which she executed after obtaining independent legal advice - The agreement provided that upon separation, neither spouse would seek spousal support from the other or make a marital property claim against any property in the name of the other party - At the time of execution, the husband owned his own business and the wife was a recent bankrupt - The spouses separated in October 2006 - During the cohabitation and marriage, the spouses kept separate bank accounts - The husband paid for all living expenses and the wife was free to use her income as she pleased - The marital home was in the husband's name and the wife made no financial contribution to it - The now 51 year old wife initially worked for the husband's business, but had been disabled from employment for the past 13 years - She claimed a division of marital property - No claim was made to the husband's business - The husband relied on the agreement - The wife sought to set it aside on the basis of unconscionability and misrepresentation - The New Brunswick Court of Queen's Bench, Family Division, held that there was no basis to set aside the agreement - The agreement was not unconscionable - At the time of execution the wife was not a weaker party in need, subjecting her to the power of the husband - Given the independence of the parties and their financial circumstances, the agreement was not improvident - The husband was not estopped from relying on the agreement - The conduct of the spouses, including separate bank accounts and property ownership, was consistent with the agreement - No specific misrepresentations were identified or supported by evidence - See paragraphs 16 to 22.

Family Law - Topic 3385

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Improvident bargain - [See Family Law - Topic 3382 ].

Family Law - Topic 3386

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Unconscionable bargain - [See Family Law - Topic 3382 ].

Droit de la famille - Cote 854

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Renonciation contractuelle - Ententes exécutoires - [Voir Family Law - Topic 854 ].

Droit de la famille - Cote 3353

Ententes de séparation, contrats domestiques et contrats de mariage - Effet de l'entente - Procédures de divorce - Mesures accessoires - [Voir Family Law - Topic 3353 ].

Droit de la famille - Cote 3382

Ententes de séparation, contrats domestiques et contrats de mariage - Motifs d'annulation - Défaut de divulgation sur un point essentiel et assertion inexacte - [Voir Family Law - Topic 3382 ].

Droit de la famille - Cote 3385

Ententes de séparation, contrats domestiques et contrats de mariage - Motifs d'annulation - Entente imprévoyante - [Voir Family Law - Topic 3385 ].

Droit de la famille - Cote 3386

Ententes de séparation, contrats domestiques et contrats de mariage - Motifs d'annulation - Entente exorbitante - [Voir Family Law - Topic 3386 ].

Cases Noticed:

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201, refd to. [para. 2].

Richard v. Richard (1993), 137 N.B.R.(2d) 271; 351 A.P.R. 271 (C.A.), refd to. [para. 18].

Kay v. Kay (1999), 215 N.B.R.(2d) 291; 551 A.P.R. 291 (C.A.), refd to. [para. 18].

Toussaint v. Toussaint (1982), 40 N.B.R.(2d) 541; 105 A.P.R. 541 (C.A.), refd to. [para. 18].

Plourde v. Plourde (1994), 151 N.B.R.(2d) 20; 387 A.P.R. 20 (Fam. Div.), refd to. [para. 20].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161, refd to. [para. 31].

Carrier v. Carrier (2007), 312 N.B.R.(2d) 285; 806 A.P.R. 285; 2007 CarswellNB 155 (C.A.), refd to. [para. 32].

Authors and Works Noticed:

Stark, Hugh G., and MacLise, Kirstie J., Domestic Contracts (2nd Ed.), generally [para. 25].

Counsel:

Avocats:

Allison Whitehead and Alicia Bennett, for the petitioner;

Brian McLean, for the respondent.

This matter was heard on January 18, March 18 and May 7, 2008, before French, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Woodstock, who delivered the following judgment on November 27, 2008.