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Spousal support waivers should have a time limit

Ottawa lawyer Timothy Sullivan on spousal support waivers

Time limits can reduce the changes of a cohabitation agreement challenge

Putting a time limit on spousal support waivers could reduce the chances of a cohabitation agreement challenge, says Ottawa family law lawyer Timothy N. Sullivan.

In a recent case, the Court of Appeal for Ontario upheld a two-decade-old cohabitation agreement that barred either party from making a claim for spousal support.

The pair signed the agreement in 1997 when they moved in together, but by the time they split 16 years later, they were married with two children. In court, the wife sought to have the contract set aside, claiming it did not meet the objectives of the Divorce Act.

But the unanimous three-judge panel of the province’s top court found no errors in the trial judge’s decision declaring the agreement in “substantial compliance” with the Act.

“[The wife] has shown no error of law or misapprehension of fact on the part of the trial judge,” the panel wrote in their Oct. 2 decision. “The findings and conclusions of the trial judge were open to him on the evidence and are entitled to deference from this court.”

The woman declined an opportunity to seek independent legal advice before signing the agreement, but Sullivan, principal of SullivanLaw, tells AdvocateDaily.com that if she had come to him, one of the options he would have suggested was putting a time limit on the spousal support waiver.

“It’s hard to anticipate what’s going to happen 16 years down the road. During the course of the relationship, things can change significantly from the time you entered the relationship, so to say you’re never going to need support at any point in the future, I think is naïve and reckless,” he says.

“But if you waive the right to support for a period of time, and give the relationship a chance, then there’s an opportunity to return to the status quo ante once you’re established, but when health or finances go south,” Sullivan adds.

He says marriage and cohabitation agreements such as the one upheld by the appeal court are often popular among people entering a second marriage. Indeed, the husband in that case had just come out of a messy separation and was hoping to avoid a repeat occurrence, the judgment says.

Sullivan says there are two common reasons for cohabitation agreements: one is to protect a down payment on the matrimonial home if it came entirely from one party or their extended family.

“If a parent helps their child to buy a house, often they will insist on an agreement that carves out that value and protects it from equalization,” he says.

“A second purpose I see is to deal with property, which is often the matrimonial home,” Sullivan adds. “If there is a waiver of spousal support — which is uncommon but I’ve seen them — I would ordinarily recommend that the waiver expire after a reasonable time unless there is extra consideration, like a lump sum, grant of property or insurance.”