On May 12, 2023, in the case of Anderson v. Anderson, the highest court in Canada reminded us that all people, including divorcing spouses, must be held to their agreements.
In this case, the spouses were married in 2012. They had both been previously married and came into this relationship with significant assets. In 2013, they purchased a new home together with equal contributions. The marriage did not work out and so they separated in 2015 – 3 years later.
One month after separation, the wife presented husband him with an agreement at a meeting with some friends. The agreement provided that they would each retain their own property and would divide the equity of their matrimonial home. They both signed this agreement, and their friends also signed it as witnesses. Lawyers were not involved and neither spouse had legal advice.
Afterwards, the husband sued the wife for a share of the rise in value of her property during marriage and argued that the agreement was not valid.
At trial, the judge found that the agreement was not valid and ordered the wife to pay the husband an equalization payment of ~$90,000.
The wife appealed.
The Court of Appeal set aside the decision, finding that the agreement was binding, but ordered the husband to pay the wife an equalization payment of $5,000.
The husband appealed to the Supreme Court of Canada.
The Supreme Court allowed the appeal. It stated that legal domestic contracts signed by separating spouses were to be upheld by judges as a matter of autonomy, self‑sufficiency and finality, unless there were compelling reasons not to. The highest court stated that separating adults in Canada have the right to settle their affairs between themselves where they understood the nature and effect of the agreement. Absent a power imbalance, vulnerability or unfair bargaining, an agreement signed by the spouses must be honoured. The absence of financial disclosure or independent legal advice on its own did not necessarily undermine an agreement.
Editorial Note: Originally published in 2023, this article explains a landmark Supreme Court of Canada decision affirming the enforceability of separation agreements. It’s a clear reminder that, absent clear unfairness or power imbalance, courts will uphold what spouses agree to—even without lawyers. A must-read for anyone involved in drafting or signing family law contracts.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.