We Signed an Agreement — Now What? Lessons from Miglin and Anderson

If separating spouses sign an agreement, will a court actually enforce it years later? Two Supreme Court of Canada decisions provide important guidance.

Miglin v Miglin, 2003 SCC 24

In Miglin v Miglin, the Court considered a formal separation agreement involving property, support, and a waiver of future spousal support. The Court set out a two-stage approach: first, looking at the circumstances in which the agreement was negotiated and whether its terms substantially complied with the objectives of the Divorce Act when made; and second, whether, at the time of the application, the agreement still reflects the parties' original intentions and remains in substantial compliance with the Act.

Anderson v Anderson, 2023 SCC 13

In Anderson v Anderson, the Court considered something very different: an informal agreement about property made without the same level of legal formality, such as independent legal advice. The Court emphasized respect for the autonomy of parties to resolve their own affairs, while confirming that the agreement must still be examined under the governing legislation.

The common principle

Canadian courts generally respect agreements reached between adults — but the circumstances surrounding the agreement matter. Courts may consider issues including:

• Whether the agreement was voluntary;
• Whether there was meaningful financial disclosure;
• Whether the parties understood their rights;
• Whether independent legal advice was obtained; and
• Whether enforcing the agreement remains consistent with the governing legislation.

Formal vs. informal

Formal agreements generally provide greater certainty. Informal agreements are not necessarily worthless — but they may create considerably more uncertainty if challenged later. In Alberta, property agreements under the Family Property Act also have specific formal requirements, including acknowledgments of independent legal advice.

Speak with our team about making an agreement that is more likely to withstand future scrutiny.