We Signed an Agreement — Now What?

When couples separate, one of the most common and understandable concerns is this: If we sign an agreement now, will it actually hold up in court later? The Supreme Court of Canada has addressed this question in important ways in two leading decisions: Miglin v. Miglin and Anderson v. Anderson. Although these cases deal with different legal issues — one about spousal support and the other about property division — together they offer clear guidance about how courts treat formal and informal domestic agreements.

A Formal Separation Agreement

In Miglin, the Court dealt with a carefully negotiated separation agreement between former spouses who had been married for many years and had built a business together. Their written agreement covered property division, child support, and included a mutual waiver of future spousal support. Both parties had independent legal advice, and there was full financial disclosure. The agreement was structured and comprehensive. Years later, one spouse returned to court seeking spousal support despite having waived it. The key question was whether a court could override that waiver under the federal Divorce Act.

The Supreme Court recognized two important principles. First, courts should respect private agreements. When spouses negotiate with proper legal advice and full information, their decisions deserve deference. Second, however, courts cannot ignore the objectives of the Divorce Act, which include fairness, recognition of economic disadvantage from the marriage, and encouraging self-sufficiency. To balance these principles, the Court created a two-stage analysis.

At the first stage, courts examine the circumstances when the agreement was signed. Was it negotiated voluntarily? Did both parties understand their rights? Was there meaningful disclosure? Did the agreement reasonably reflect the objectives of the Divorce Act at that time? If the agreement was fair and informed when made, it receives significant weight.

At the second stage, the court looks at the present situation. Have circumstances changed in a way that was not reasonably foreseeable at the time of signing? Would enforcing the agreement now undermine the fairness objectives of the Divorce Act? Only if there has been a serious and unforeseen change that makes enforcement inconsistent with statutory purposes should a court intervene. Applying this framework, the Supreme Court upheld the agreement in Miglin. Although circumstances had changed, they were not so unexpected or unfair as to justify setting aside the spousal support waiver.

Informal (Kitchen Table) Agreements

Twenty years later, the Court addressed a very different scenario in Anderson. Instead of a formal, lawyer-drafted separation agreement, the spouses had signed a short, informal document stating that each would keep their own property and waive claims against the other. There were no lawyers involved, no formal disclosure, and no strict compliance with statutory formalities under Saskatchewan’s Family Property Act. When the relationship ended, one spouse sought to ignore that agreement and claim property division under the statute.

The Supreme Court clarified that informal domestic agreements are not automatically invalid simply because they lack formal legal advice or technical compliance with statutory requirements. Instead, courts must look at general contract law principles — whether there was a valid agreement with offer, acceptance, and consideration — and then consider whether enforcing that agreement would be consistent with the objectives of the governing property legislation. Importantly, the Court emphasized that the Miglin test does not automatically apply to property cases. Spousal support under the Divorce Act and property division under provincial statutes are governed by different legal frameworks, with different purposes.

In Anderson, the Court ultimately enforced the informal agreement. It concluded that although the document was simple and lacked formalities, it was still a valid contract and did not undermine the purpose of the Family Property Act. This outcome surprised some observers, but it reinforces a broader principle: Canadian courts respect agreements between adults, even informal ones, provided they do not defeat statutory objectives or result from unfairness.

Lessons to Learn

When we compare these two cases from a client’s perspective, several practical lessons emerge. First, formal agreements provide greater certainty. In Miglin, the presence of independent legal advice, financial disclosure, and detailed drafting gave the agreement a strong foundation. Courts are much more likely to uphold agreements that demonstrate careful consideration and procedural fairness. Formality creates predictability.

Second, informal agreements are not useless — but they are riskier. Anderson shows that courts will not automatically dismiss a do-it-yourself arrangement. However, the absence of legal advice and disclosure increases the likelihood of challenge. Informal agreements are more vulnerable to claims of misunderstanding, unfairness, or inconsistency with statutory rights. While they may survive scrutiny, the outcome is less predictable.

Third, the governing law matters. Spousal support is analyzed under the Divorce Act, which gives courts ongoing authority to ensure fairness. Property division is governed by provincial legislation, which may treat agreements differently. The same document may be assessed differently depending on whether it deals with support or property. This is why tailored legal advice is critical.

Finally, both decisions emphasize fairness and statutory purpose over rigid formalism. Courts will not enforce agreements that are fundamentally inconsistent with the law’s objectives. At the same time, they will not lightly disturb agreements simply because one party later regrets the bargain. The question is not whether circumstances have changed at all — life always changes — but whether those changes were truly unforeseeable and whether enforcement would now produce an unjust result under the governing statute.

Take-Away

For clients considering a separation agreement, these cases send a clear message. If your goal is durability and certainty, invest the time to do it properly. Obtain independent legal advice. Exchange full financial disclosure. Think carefully about foreseeable future events such as employment changes, illness, or retirement. A well-drafted agreement significantly reduces the risk of later litigation.

If you already have an informal agreement, do not assume it is worthless — but also do not assume it is bulletproof. Its enforceability will depend on the circumstances in which it was made and whether enforcing it aligns with statutory objectives. Each case is fact-specific.

In the end, Miglin and Anderson together reflect a mature and balanced approach by the Supreme Court of Canada. The Court respects autonomy and encourages negotiated settlements, but it preserves judicial oversight to protect fairness and legislative intent. For separating couples, the takeaway is not that agreements are fragile — it is that thoughtful, informed agreements are powerful. Taking the proper steps at the time of separation can provide clarity, stability, and peace of mind for years to come.

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