Anderson v. Anderson: Autonomy and Fairness in Family Law

The Supreme Court’s recent decision in Anderson v. Anderson, 2023 SCC 13 provides useful guidance for Ontario family lawyers regarding the principles courts should apply when considering domestic contracts that do not meet statutory requirements for presumptive enforceability.

In Anderson, the Court declined to apply the analytical framework from Miglin v. Miglin, 2003 SCC 24, to interpret a separation agreement governed by Saskatchewan’s family property legislation. The Court held that while Miglin provides useful general principles, the interpretive exercise must be statute-specific. This has implications for how such agreements should be approached under Ontario’s Family Law Act (FLA).

Some key principles from Anderson

Autonomy and Certainty vs. Fairness

• The decision affirms that domestic contracts should generally be encouraged to support autonomy and finality. Parties are often better positioned than courts to arrange their affairs.
• However, it also stresses that contracting in family law is unlike arm’s length transactions. Emotional complexities mean courts must approach agreements cautiously to ensure fairness.

Assessment of Agreement Validity

• Before considering an agreement for property division, courts must verify its validity under contract law and examine its procedural integrity for undue pressure or exploitation of vulnerabilities.
• Lack of disclosure or legal advice does not necessarily impugn fairness, provided the bargaining process was fair.

Substantive Fairness and Property Division

• In property division, substantive fairness depends on alignment with the governing legislation’s policy goals. Courts cannot just enforce agreements without considering statutory entitlements.

Federal vs. Provincial Jurisdiction

• Anderson highlights the differing federal/provincial jurisdiction over spousal support and property division. This affects how courts interpret agreements and requires a tailored, statute-specific approach.

Vulnerabilities in Domestic Contracts

• Courts must be attuned to the emotional turmoil and vulnerabilities that can undermine fairness in domestic bargains. Procedural protections are crucial to ensure a fair deal.

Balancing Contractual Autonomy with Public Policy

• While respecting parties’ autonomy, courts must balance this with adherence to public policy objectives in family law statutes. Agreements cannot thwart legislative goals.

Statute-Specific Interpretation

• The Miglin framework does not apply universally to domestic contracts under different statutes. The analysis must be tailored to the distinct legislative scheme.

Evaluation of Agreement Fairness

• For non-presumptively binding contracts, courts should verify validity, examine the bargaining process, and evaluate substantive fairness against the governing statute’s provisions.

Key Takeaways for Ontario Family Lawyers

Overall, Anderson reinforces that Miglin does not provide a universal analytical framework that can be reflexively applied to domestic contracts under different legislative regimes. However, it affirms courts should approach such agreements cautiously, with an eye to balancing autonomy and fairness. Ontario family lawyers should be mindful of the unique provisions of the FLA when advising clients on potential domestic agreements. In particular,

• When advising clients on domestic contracts, be aware these agreements are not like regular commercial deals. Ensure proper procedural protections are in place given the emotional context.
• Caution clients that lack of disclosure or legal advice could render an agreement unfair under the FLA, even if it’s valid on its face. However, their absence doesn’t necessarily mean unfairness.
• Explain that courts will measure substantive fairness against the FLA’s equal division presumption and other statutory entitlements, not just the parties’ intentions. Agreements must align with legislative policy objectives.
• Highlight that unenforceable contracts can still be considered by courts, but validity, bargaining process, and substance will be scrutinized. Presumptive enforceability has advantages.
• Emphasize that despite parties’ autonomy, agreements cannot wholly ignore statutory property division scheme. Some customization is possible but wholesale opting out is unlikely.
• Advise that courts will take a tailored, statute-specific approach focused on the FLA’s provisions. Don’t assume Miglin’s analytical framework will be applied.
• Recognize the emotional turmoil divorcing couples experience and how this can impact perception of fairness. Caution against rushed negotiations without advice.
• Ensure clients understand that passage of time may alter fairness assessment if circumstances change significantly post-agreement. Set proper expectations.

The overarching takeaway is that context matters in family law contracting. Lawyers should help clients balance autonomy and fairness when crafting agreements.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.