Supreme Court of Canada Case Recap: Anderson v. Anderson

On May 12, 2023, the Supreme Court of Canada rendered judgement that clarified when courts must consider certain domestic agreements when dividing family property under Saskatchewan’s Family Property Act. This blog post will outline the events in this family case and will also comment on how the Anderson v. Anderson, 2023 SCC 13 judgement will impact how the courts in BC treat agreements between spouses moving forward.

If you have questions about separation agreements in BC after reading this post, our team of Vancouver family lawyers would be happy to assist you. Contact our team (here) to book a consult appointment.

Facts of the Case:

James and Diane Anderson married in May 2012 in Saskatchewan and later separated in May 2015. They both brought considerable assets into the marriage, and they jointly owned a home in Saskatchewan. About one month after their separation, the parties signed an agreement, which was drafted by Ms. Anderson herself, that stated that each of them would keep their own property and give up their rights to the other party’s property – except for the family home and household goods, which they acknowledged were jointly owned. The parties signed the agreement before two friends as witnesses without any financial disclosure and neither party sought independent legal advice before signing the agreement.

When Ms. Anderson later filed for a divorce, Mr. Anderson counter-filed to ask that the court divide their family property and that the parties’ prior agreement should not be binding because it was signed without independent legal advice and under duress.

Main Issue:

Was the agreement executed by the Andersons binding under The Family Property Act (FPA) of Saskatchewan? Or could Mr. Anderson successfully dispute the agreement?

Similar to legal regimes in other Canadian provinces, the FPA in Saskatchewan provides a presumption that family property is to be divided equally unless, through an interspousal or domestic contract, the spouses agree otherwise. It’s important to note that there are requirements for an agreement to be considered a binding “interspousal contract” under the FPA, including a formal acknowledgement that the parties understand the nature and effect of their agreement in the presence of different lawyers (see section 38 of the FPA, linked here). But agreements that do not meet this requirement, though they are not considered “interspousal contracts”, may still be considered by a court and given whatever weight the court considers reasonable (see section 40 of the FPA).

The Decision:

The trial judge found that the parties’ agreement was not binding, did not give the agreement any weight, and instead divided family property under the FPA—which resulted in a net equalization payment of about $90,000 from Ms. Anderson to Mr. Anderson. Ms. Anderson appealed this finding.

At the Saskatchewan Court of Appeal, the trial judge’s order was set aside. The appeal judge found that the agreement was binding, and it should have been taken into consideration during the Anderson’s property division when applying the framework for agreements for spousal support created in Miglin v. Miglin, 2003 SCC 24. This resulted in an order that instead Mr. Anderson must pay Ms. Anderson around $5,000. Mr. Anderson appealed to the Supreme Court of Canada (SCC).

The SCC allowed the appeal in part and ruled that the parties’ agreement was binding. In their unanimous judgement, the court noted that domestic contracts “should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement” (at para 33). The court found that the Anderson’s agreement was fair and equitable, given the criteria and objectives of the FPA. In line with the parties’ agreement, the family home and household goods were ordered to be divided as of the date of trial, which resulted in a payment from Ms. Anderson to Mr. Anderson in the amount of $43,382.63.

The Implications for Agreements Between Spouses in BC:

The Anderson v. Anderson judgement clarified that the courts must consider domestic contracts within the bounds of relevant legislation, so long as there is no compelling reason to discount the weight of the agreement. Family law disputes in BC are governed by our version of the Family Law Act (“FLABC”) (linked here) which provides that spouses may make agreements respecting the division of family property and debt (as per section 92 of the FLABC). The BC Supreme Court has jurisdiction in BC for family disputes involving property or debt division. Pursuant to section 93 of the FLABC, the BC Supreme Court may set aside or replace with an order all or part of an agreement respecting property or debt division if:

 (a)    a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b)    a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c)     a spouse did not understand the nature or consequences of the agreement;

(d)    other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The Anderson v. Anderson judgement did not modify the way that courts in BC will treat agreements between spouses respecting property and debt division; however, it did reinforce the principles of self-sufficiency, autonomy, and finality as important objectives in the context of family law. This potentially opens the door for parties to argue that their agreements should be enforceable when challenged in court, even if they did not exchange full financial disclosure or receive independent legal advice before executing the agreement.

On the other hand, courts in BC have discretion to set aside or replace with an order all or part of an agreement if it is found that the agreement is significantly unfair. For this analysis, the court may consider: (1) the length of time that has passed since the agreement was made, (2) the intention of the spouses to achieve certainty when making the agreement, and (3) the degree to which the spouses relied on the terms of the agreement.

If you are considering coming to an agreement with your spouse to determine family property or debt division, our team of Vancouver family lawyers would be happy to answer your questions relating to enforceability of terms, financial disclosure, independent legal advice, and more.

If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.