IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Canning v. Canning,
	2017 BCSC 2082

Date: 20171116

Docket: E161623

Registry: Vancouver

Between:

Barbara Anne Canning

Claimant

And

Steven Keith Canning

Respondent

Before: The Honourable Madam Justice Dardi

Reasons for Judgment

Counsel for Claimant:	R.P. Hamilton
Counsel for Respondent:	G. Sherman
Place and Date of Trial:	Vancouver, B.C. March 20 to 23, 2017
Written Submission:	April 6, 2017
Place and Date of Judgment:	Vancouver, B.C. November 16, 2017

INTRODUCTION

[1] The sole issue for determination in this case is whether this Court should make a spousal support order that is inconsistent with a pre-existing agreement. The issue turns on the proper weight to be given to the spousal support provisions in the final separation agreement (the “Agreement”) the parties executed some 17 years ago.

[2] The parties married on June 7, 1975. The parties separated over 23 years later on February 3rd, 1999 .They executed the Agreement in the fall of 1999. It sought to settle all financial matters respecting the breakdown of their marriage, including property division and spousal support. The Agreement provided that spousal support would terminate when the respondent, Mr. Canning, ceased to be employed or attained the age of 65 years, whichever occurred first. He turned 65 in February 2016 and ceased paying spousal support thereafter.

[3] The parties were both represented by lawyers when they signed the Agreement, and both acknowledged that they received independent legal advice and entered into the Agreement voluntarily, fully understanding its terms.

[4] The claimant, Ms. Canning, now seeks an order that she be entitled to $2,000 per month in spousal support, retroactive to February 15, 2016. She submits that the order should be of indefinite duration and subject to a material change of circumstances.

[5] Ms. Canning brings her claim pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Mr. Canning’s counsel confirmed that his client would not raise any technical objections regarding the form of the application. The parties sensibly agreed that Ms. Canning’s claim should be decided on the merits.

POSITION OF THE PARTIES

[6] Ms. Canning argues that the Agreement should not disentitle her to support. She asserts that the provisions in the Agreement pertaining to spousal support were substantively unfair at the time of the execution of the Agreement. In the alternative, she submits that, even if the Agreement was fair at the time, it should be found to be substantially unfair in light of current circumstances.

[7] Mr. Canning takes the position that Ms. Canning is not entitled to an order for spousal support. Mr. Canning’s primary contention is that the action should be dismissed on account of Ms. Canning’s inordinate and unexplained delay in bringing her claim. He maintains that he has made decisions and arranged his affairs based on the Agreement. He also asserts that Ms. Canning’s claim should be dismissed as the provisions for spousal support in the Agreement were substantially in compliance with the objectives of the Divorce Act at the time they were negotiated and were not rendered non-compliant because of an uncontemplated event.

FACTS

[8] I found both of the parties to be credible. They each endeavoured to provide a forthright account of pertinent events. However, they were recalling material events more than 17 years after the events occurred. Each readily and candidly acknowledged what they did not know or could not recall.

[9] Ms. Canning was 45 years old at the time of separation and 64 years old at trial. Mr. Canning was 47years old at the time of separation and 66 years old at trial.

[10] The parties began dating in high school and were married in Ontario in June 1975. The parties moved to British Columbia in 1976.

[11] The parties had two children, a son, born in 1976, and a daughter, born in 1978. Both of the children were independent adults as of the separation date.

[12] During the course of the parties’ 24 year marriage, they moved 11 times in order to accommodate Mr. Canning's career.

[13] Ms. Canning attended Ryerson University for two years but has no formal post-secondary degree or diploma. For the most part, she worked on a part-time basis throughout the marriage. At the time of separation, she was earning approximately $12,000 per year.

[14] At the time of separation, Mr. Canning was a business development director with the North Shore Credit Union (“NSCU”) and he was earning in the range of $120,000 per year. He assumed this new role in 1998. He formerly had been an area manager with a focus on growing the NSCU’s portfolio of mortgages. In his new role, Mr. Canning’s employer offered him a commission and bonus compensation structure and the potential for higher compensation.

[15] As previously stated the parties separated on February 3, 1999. Following the separation, Mr. Canning moved out of the family home in North Vancouver. Ms. Canning remained living there until the home was sold at the end of September 1999.

[16] Following the separation, the parties attended mediation. The pertinent records indicate that commencing in May 1999, the parties attended several sessions together with a mediator Louise Johnson. After five hours of mediation sessions, Ms. Johnson, who was a lawyer, summarized the terms of a settlement in a letter dated June 3, 1999. The summary included a full list of the assets and liabilities of the parties and how they were to be divided. On the question of spousal support, the mediator’s summary provided as follows:

Spousal support of $2,000.00 monthly will be paid to Barb by Steve, with the amount subject to variation in the event of future changes in the circumstances of either or both of them. Maintenance will cease upon the death of either party or Barb remarrying, whichever first occurs. This should provide Barb with approximately $2,294.00 net per month from employment and support (less her CPP and EI deductions). If Steve earns no further bonuses this year, he will gross $80,245.00. He should retain about $3,157.00 per month after paying support, tax, CPP and EI; after his other deductions for Group Insurance and Pension, the net amount becomes about $3,380.00.

[Emphasis added.]

[17] The mediator’s summary indicated that Mr. Canning’s gross income in 1998 was $92,000. However, Mr. Canning was income-splitting with Ms. Canning at that time. His total income in 1998 was, in fact, in the range of $120,000. In 1999, he declared $128,822 in employment income plus $7500 in RRSP income. Mr. Canning maintains that he told the mediator that, with bonuses and commissions, his employer had told him he could earn up to $150,000 in the new position as a business development manager. In any event, as referenced later in these Reasons the final form of the Agreement refers to Mr. Canning’s income as $150,000.

[18] Ms. Johnson drafted a settlement agreement which was not tendered in evidence.

[19] Mr. Canning paid Ms. Johnson’s account with respect to the mediation and preparation of the draft agreement.

[20] Following receipt of the mediation summary, each of the parties obtained independent legal advice.

[21] Upon reviewing the draft agreement, Ms. Canning's lawyer, James Martin, wrote a letter, dated June 16, 1999, to the mediator. He requested two revisions to the mediation summary: a further lump sum payment to Ms. Canning for division of family assets, and a request that Mr. Canning be responsible for any resulting tax liability which flowed from the payment of spousal maintenance. The letter included the following:

In discussing the proposed settlement with Ms. Canning, I was drawn to the fact that we have a 24 year marriage with a woman who is 46 years old, and, realistically, has no training, regular job history and an inability to ever be able to match the salary and position of Mr. Canning. Further, the standard of living between the two parties will, in reality, be unequal with Ms. Canning having little or no ability to match the circumstances of Mr. Canning as a consequence of the breakdown of the marriage.

[22] Mr. Martin did not receive any response to his letter.

[23] On September 23, 1999, Mr. Canning's lawyer, Lorne MacLean, wrote a letter to Mr. Martin seeking changes to the draft agreement. Mr. MacLean requested that the agreement be amended to reflect the fact that Mr. Canning's gross income was $150,000. Additionally, he sought a revision to the cash amount for the buy-out of certain shares owned by Mr. Canning (“the Shares”). Finally, and most significantly for purposes of this proceeding, Mr. Canning required that the spousal support provision in the mediation summary and draft agreement be modified to delete the words “during the joint lives of the parties” and the following wording inserted:

“until the husband attains the age of 65 years or the husband ceases to be employed, whichever shall first occur, subject to the conditions of termination and review set out below."

[24] Mr. Martin sent a copy of Mr. MacLean’s letter to Ms. Canning. He subsequently wrote to Mr. MacLean, advising that Ms. Canning was prepared to agree to Mr. Canning’s proposal for termination of spousal support.

[25] The mediator amended the agreement accordingly in November 1999. Mr. Canning’s income was declared as $150,000 per annum.

Terms of the Agreement

[26] The Agreement purports to resolve all the issues between the parties that were outstanding in 1999.

[27] The parties agreed that the net sale proceeds of the matrimonial home, which was encumbered with two mortgages totalling $222,800, would be divided equally. The home sold for $483,500 in late September, 1999 and after payment of the mortgages and other liabilities the net sale proceeds were divided. The parties further agreed that there would be an equalization of their Canada Pension Plan (“CPP”) credits. In addition to the rollover to equalize their RRSP holdings, Mr. Canning agreed to pay Ms. Canning $20,000 in full and final satisfaction of her rights to the Shares. Mr. Canning assumed a greater share of the family debt. Based on my calculations, Ms. Canning received approximately $187,000, or 56% of the family assets, and Mr. Canning received approximately $149,500, or 44% of the family assets.

[28] Recital H in the Agreement states that:

The Husband and Wife separately

a) intend this Agreement to be the final settlement of their respective rights in or to the property of the other and the property held by them jointly, a full release of any right, interest or claim that either party may have upon the other’s property, and a settlement with respect to spousal maintenance;

b) have been fully advised as to their entitlement to discovery and other legal means by which they may obtain further information with respect to the other’s financial affairs; and

c) acknowledge that it is a condition precedent to this Agreement that the representations set out in the recitals and Schedules to this Agreement are accurate.

[Emphasis added.]

[29] Paragraph 28 of the Agreement provided that Mr. Canning pay Ms. Canning $2400 per month from February to November 1999. It states:

28. The Wife acknowledges that the Husband has provided to her for her support an allowance of Two Thousand Four Hundred Dollars ($2,400.00) per month commencing February, 1999 and continuing every month until November 1, 1999. The parties agree that such maintenance shall be part of the Wife’s taxable income for 1999 and a corresponding deduction for the Husband, pursuant to the Income Tax Act. The Husband shall indemnify the Wife for any income tax payable by her for the maintenance payments made by him prior to November 1, 1999. If the Wife fails to include the said amounts in her 1999 income tax return, she shall indemnify the Husband for any income tax, including related penalties and interest, that he is required to pay as a result of her failure to comply with this provision.

[Emphasis in Original]

[30] The key provision in the Agreement for the purposes of this proceeding is found at paragraph 26:

The Husband shall pay to the Wife for her maintenance the sum of Two Thousand Dollars ($2000.00) per month, commencing on the first day of November, 1999 and continuing on the first day of each and every month thereafter until the Husband attains the age of 65 years or ceases to be employed, whichever shall first occur, subject to the conditions of termination and review set out herein. [sic] the Wife remarries, her entitlement to maintenance shall terminate. The amount of maintenance payable shall be reviewed by the parties upon the expiry of three years [sic] the date of this Agreement.

This paragraph is key as it includes both the review provision and termination provision for the support payments.

[31] The Agreement also provides at paragraph 27:

In the event that the parties are unable to reach agreement as to a proposed variation in the maintenance payments, the parties will attend mediation regarding that issue. Either party will be at liberty to apply to a Court of competent jurisdiction to determine the issue if mediation is unsuccessful.

[32] The Agreement also addresses health benefits and insurance at paragraphs 24 and 25:

24. For as long as the Husband is obliged to pay maintenance to the Wife for her support, the Husband shall maintain such medical, dental and extended health insurance plans as are available to him through his employment for the benefit of the Wife until she ceases to be eligible for such coverage.

25. For as long as the Husband is obligated to pay maintenance to the Wife for her support, the Husband shall maintain the Wife as irrevocable, sole beneficiary of the Mutual Life term policy of insurance on his life with a face value of $100,000.00 and pay the premiums thereon. The Husband shall also name the Wife as irrevocable beneficiary of $300,000.00 under the group policy of insurance on his life so long as such policy is available to him through his employment and his support obligation to the Wife has not terminated.

[33] The Agreement provides as follows at paragraphs 30 and 31:

30. Each party hereby forever discharges and releases the other from all claims at law, in equity or by statute, including (without restricting the generality of the foregoing) the Divorce Act, 1985, the Family Relations Act, the Wills Variation Act, and the Estate Administration Act, and amending statutes thereto, with respect to spousal maintenance, property, succession rights, and any other matter arising from their marriage.

31. The Husband and Wife separately acknowledge that

a) his or her present and future needs have been adequately provided for by this Agreement;

b) all matters in dispute between them, including those pertaining to real and personal property interests and to family assets, have been settled to his or her satisfaction;

c) he or she has received independent legal advice as to his or her rights against and obligations to the other;

d) he or she has made full disclosure to the other, in the recitals and Schedules hereto, of his or her financial position, and is fully aware of the effect, purpose and intent of this Agreement;

e) he or she has read the entire Agreement carefully, knows and understands its contents, and has executed it voluntarily, without any undue influence or coercion by the other; and

f) if either party makes or pursues a claim against the other, this Agreement shall be raised as full defence and answer to such claim and shall form the basis of a consent order in those proceedings, so as to maintain the full force and effect of this Agreement.

[Emphasis in Original]

[34] The Agreement was dated for reference September 8, 1999 and was executed by both parties. Mr. Martin executed a certificate of independent legal advice and Ms. Canning signed a confirmation of having received independent legal advice. The evidence supports a finding that Ms. Canning signed the Agreement and the confirmation of having received independent legal advice on December 15, 1999. Mr. Canning signed his own certificate of independent legal advice on December 6, 1999.

Post -Agreement Circumstances

[35] The parties divorced on May 6, 2005. There was no evidence that either party has remarried.

[36] Mr. Canning complied with his financial obligations under the Agreement. He has paid spousal support for 17 years without fail. Mr. Canning paid the spousal support payments prescribed under the Agreement on the 15th day of each month. Mr. Canning turned 65 on February 6, 2016. His last spousal support payment was in January, 2016. Mr. Canning also kept Ms. Canning on his employment benefits program for over ten years until the insurer terminated her coverage. Mr. Canning has also complied with his life insurance obligations.

[37] I turn to consider the financial circumstances of each of the parties after separation.

[38] On September 27, 1999 Ms. Canning purchased a condominium in North Vancouver with her share of the net proceeds of the sale of the family home ($102,383.07) and mortgage financing of approximately $105,000.

[39] Ms. Canning eventually obtained full-time work in 2000 at a clothing store. From 2004 to 2008, Ms. Canning worked full-time as an assistant operations manager with a school uniform company.

[40] From 2008 to the present, Ms. Canning has worked in customer service as a medical equipment specialist. She clearly derives satisfaction from her position. She is entitled to medical benefits and some RRSP matching. Her current income is $42,982 per year. There is little possibility of advancement in her current position.

[41] Her employment income, without accounting for the spousal support payments she received , prior to 2016 was as follows:

2000	$19,555.00
2003	$20,634.00
2004	$19,503.92
2005	$26,647.63
2006	$26,752.06
2007	$29,513.98
2008	$29,394.24
2009	$32,630.91
2010	$34,435.51
2011	$35,565.00
2012	$37,337.26
2013	$36,335.30
2014	$39,434.40
2015	$40,982.40

[42] Ms. Canning refinanced her mortgage in order to renovate and update her condominium. Her current mortgage is approximately $90,000. According to Ms. Canning, the current assessed value of the condominium is in the range of $550,000. She owns a model year 2001 vehicle and holds RRSP’s valued at $181,429.00. She has borrowed funds to finance this litigation. According to Ms. Canning, without any spousal support and based on a modest budget, she currently incurs a monthly shortfall of $470.00 per month ($5,677.40 annual shortfall).

[43] After separation, Mr. Canning continued working for the NSCU (now Blue Shore Financial Credit Union) until he retired effective December 31, 2014. He does not have a pension other than CPP.

[44] His line 150 income after separation was as follows:

2000	$119,444.00
2001	$146,389.00 (including $3,533.00 of RRSP income)
2002	$135,554.00
2003	$135,000 - $140,000.00 (Mr. Canning’s estimate)
2004	$154,200.00
2005	$158,831.00 (including $4,500.00 of RRSP income)
2006	$192,180.00
2007	$197,306.00

[45] From 2008 through 2014, Mr. Canning earned well in excess of $200,000 per year.

[46] In 2015, after his retirement from Blue Shore Financial Credit Union, Mr. Canning incorporated and launched his own mortgage brokerage business. He is currently self-employed as a mortgage broker doing business as Capital West (Canning) Inc. In 2015, his line 150 income was $106,077.17. He estimated his 2016 income as approximately $85,000.

[47] After separation, Mr. Canning purchased a home in Vancouver and renovated it on nights and weekends while residing in it. He sold it for a profit a few years later. He carried on a pattern of purchasing and renovating or building residences, residing in them for a period of time and then successfully selling the residences for a profit. As of trial, he had amassed net assets of at least $2.9 million dollars, including $800,000 in RRSP’s. He is also the sole shareholder of Rycour Holdings Inc. and Capital West Mortgage (Canning Inc.). There was no valuation of his shareholdings tendered at trial. Notably the 2016 financial statements for Rycour Holdings show a shareholder’s loan of $321,468 due to Mr. Canning. The 2016 financial statements for Capital West Mortgage (Canning Inc.) show retained earnings of $465,807.

Review

[48] As set out above, paragraph 26 of the Agreement provided that the amount of spousal support “shall be reviewed by the parties upon the expiry of three years” from the execution date of the Agreement.

[49] Although Ms. Canning was aware of the review provision in the Agreement, she did not avail herself of the review that she was entitled to. At no time after the execution of the Agreement did Ms. Canning make any inquiries regarding Mr. Canning’s income.

[50] Mr. Canning telephoned Ms. Canning sometime prior to the divorce and asked her: “Well, are you going to do anything?” She asked him what he meant and he replied,” Oh, well, maybe you might get more”. He did not respond when she asked him whether she would have to retain a lawyer. The parties did not have any further discussion about the review or spousal support.

[51] Ms. Canning’s only explanation for not availing herself of the review provision was that she did not want to retain a lawyer because of the expense. She took no steps after the execution of the Agreement to consult or make any inquiries of a lawyer. Ms. Canning effectively chose not to challenge the amount of her spousal support entitlement and to abide by the spousal support terms in the Agreement.

[52] Clearly, Mr. Canning's income increased over the years. Notably, however, Mr. Canning’s income did not exceed the $150,000 referenced in the Agreement until 2005 (five years after the execution of the Agreement). In the absence of any provision in the Agreement requiring the parties to exchange annual financial information, Mr. Canning was not obligated to provide Ms. Canning with information regarding his income. Unlike child support, after the determination of all matters, there is no obligation for a payor spouse to provide his or her former spouse with evidence of his ongoing income. Spouses, in general, are not under any legal obligation to look out for their separated spouse’s legal interests: Biggs v. Biggs, 2016 BCSC 1731 at paras. 67-68 citing Kerr v. Baranow, 2011 SCC 10 at para. 208.

ANALYSIS

Legal Framework

[53] Ms. Canning’s application for spousal support is brought pursuant to section 15.2(1) the Divorce Act.

[54] The authorities establish that the existence of a pre-existing agreement between the parties with respect to spousal support does not bar an application for spousal support under the Divorce Act. Section 15.2(4)(c) of the Divorce Act mandates that the existence of such an agreement is one factor to be considered in determining whether spousal support should be awarded: Halliday v. Halliday, 2015 BCCA 82 at para. 35.

[55] Section 9 of the Divorce Act imposes on counsel a duty to advise their clients of alternatives to litigation. This clearly demonstrates Parliament’s intention to promote parties settling their disputes privately: Miglin v. Miglin, 2003 SCC 24 at paras. 54 and 66.

[56] The operative provisions of the Divorce Act state:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

…

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

[57] Subsection (6) sets out the objectives of a spousal support order:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[58] The court does not have jurisdiction under the Divorce Act to set aside or vary the terms of a domestic contract that is not incorporated into a consent order unless it can be vitiated at common law on the basis of unconscionability, duress or undue influence. However, the court may make an order for spousal support that is inconsistent with a pre-existing domestic agreement: Zimmerman v. Shannon, 2006 BCCA 499 at paras. 52-61; Newman v. La Porta, 2008 BCSC 522 at para. 93.

[59] In circumstances where a claimant applies for a spousal support order inconsistent with a pre-existing agreement, the court must apply the analytical framework formulated by the Supreme Court of Canada in Miglin at para. 64. Miglin addresses the weight to be accorded to the earlier agreement on such an application.

[60] The Court in Miglin expounded the general judicial approach in analysing applications for spousal support where parties have executed a final agreement purporting to settle that issue. In formulating a two-stage analytical framework, the Court stated that the Divorce Act advances not only an equitable sharing of the consequences of the breakdown of the marriage but also the general objectives of certainty, finality and negotiated settlements, Miglin at paras. 46, 57. The Court underscored the importance of balancing of the objectives of spousal support under the Divorce Act with societal interests in finality and having parties resolve their matrimonial affairs by agreement, Miglin at para. 45.

[61] The Court mandated a broad-ranging examination of the circumstances of the parties, both at the time the agreement was entered into and at the time of the application. The Court approached the inquiry in two stages. The first step in the first stage of the Miglin analysis examines the process leading to the execution of the agreement and whether one party may have exploited an unfair negotiating advantage, Reid v. Reid, 2017 BCCA 73 at para. 56. The second step within the first stage of the Miglin analysis entails an examination of the substance of the agreement. The critical inquiry is whether the agreement at the time it was entered into comported with the goals of the underlying legislation: Reid, at para. 57.

[62] The second stage of the analysis requires an examination of events that occur after the execution of the agreement and whether there was a “significant change in the parties’ circumstances from what could reasonably be anticipated at the time of negotiation”: Miglin, at para. 88. The crucial question is the extent to which the agreement can be said to have contemplated the situation before the court at the time of the application. In Reid, the Court of Appeal described the second stage of the analysis as follows:

58 The second stage of the Miglin inquiry is concerned with events that occur after the agreement is entered into. Even if the agreement was entirely proper at its inception, unforeseen circumstances may lead a court to award spousal support notwithstanding a separation agreement that purported to finally determine the issue:

[87] Where negotiation of the agreement is not impugned on the basis set out above and the agreement was in substantial compliance with the general objectives of the Act at its time of creation, the court should defer to the wishes of the parties and afford the agreement great weight. Nevertheless, the vicissitudes of life mean that, in some circumstances, parties may find themselves down the road of their post-divorce life in circumstances not contemplated. Accordingly, on the bringing of an application under s. 15.2, the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.

[Emphasis added.]

Discussion

[63] As previously stated, Ms. Canning seeks an order that she be entitled to $2,000 per month in spousal support retroactive to February 15, 2016. She submits that the order should be of indefinite duration subject to a material change of circumstances. She is not seeking any increase in the $2,000 monthly spousal amount as originally stipulated in the Agreement, just a change to the duration of support.

[64] It is common ground that Miglin establishes the analytical framework for assessing whether Ms. Canning is entitled to an order for spousal support.

[65] In addressing the first component to the first stage of the analysis as set out in Miglin, Ms. Canning concedes that there was nothing in the circumstances of the bargaining process that provides any basis to impugn the Agreement. She does not rely on unconscionability, undue influence, or oppression, nor does she otherwise allege a fundamental flaw in the negotiation process. Both parties sought out and obtained legal assistance and advice. There is no issue raised in this proceeding about the adequacy of either party’s financial disclosure. On the totality of the evidence, I find that the Agreement expresses the parties’ genuine and mutual intention to finalize the terms of their separation and that it reflects the considered choices that each of the parties made at the time it was executed.

[66] The second component to the first stage of the Miglin analysis entails an examination of whether the Agreement at the time it was entered into comported with the goals of the Divorce Act. The jurisprudence is clear that only a significant departure from the general objectives of the Divorce Act will warrant the Court's intervention: Miglin, para. 84.

[67] As aptly observed by Mr. Justice Barrow in Jubinville v. Jubinville, 2013 BCSC 2262 at para. 37:

What is required is "substantial compliance" not perfect compliance; put another way, what is important is whether there was a "significant departure from the general objectives of the Act", bearing in mind that those objectives include finality, certainty and contractual autonomy.

[68] I turn to consider whether the spousal support provisions in the Agreement comported with the general objectives of the Divorce Act.

[69] Addressing the factors in s. 15.2(4), in addition to the Agreement, this Court must take into account the fact that the parties were married for 24 years. Although she worked part time, Ms. Canning was the primary caregiver for the parties’ two children throughout the duration of the marriage. Her assumption of the primary child-rearing responsibilities permitted Mr. Canning to develop his career and enhance his income-earning capacity. As I stated earlier, the family moved frequently in order to accommodate his career. Ms. Canning’s efforts undoubtedly conferred an economic advantage on Mr. Canning.

[70] Moving to the specific factors in s. 15.2(6), the essential question is whether the spousal support provisions in the Agreement recognized the economic disadvantages Ms. Canning suffered, relieved her economic hardship, and, in so far as practicable, promoted her self-sufficiency within a reasonable period of time. Section 15.2 (6)(b) is not applicable in this case as the parties’ children were independent adults at the time of separation.

[71] Ms. Canning clearly suffered an economic disadvantage from the marriage and its breakdown. The Court in Moge v. Moge, [1992] 3 S.C.R. 813 recognized that a fair distribution of the economic consequences of the marriage and its breakdown may be achieved either by spousal support, by the division of property, or both: S.E. v. J.E., 2013 BCCA 540 at para. 26.

[72] In order to share the economic consequences of the marriage. Mr. Canning was required to compensate Ms. Canning for her role in the marriage and to help relieve her financial hardship as she pursued economic self-sufficiency. As compensation for the economic disadvantage she suffered as a result of the marriage and its breakdown. Ms. Canning received a somewhat greater share of the family assets. For his part, Mr. Canning shouldered the greater responsibility for the family debt.

[73] In 1999, Ms. Canning was also entitled to spousal support on both a compensatory and non-compensatory basis. The Agreement provided for long-term support underwritten by a commitment to maintain appropriate life insurance with Ms. Canning as beneficiary. The Agreement also provided that Mr. Canning maintain such medical, dental and extended health benefits for Ms. Canning as available through his employment.

[74] I note that the Spousal Support Advisory Guidelines (“SSAG”) were not in place in 1999. In any event, parties can legitimately negotiate valid agreements that depart from the SSAG: S.E., at para. 42. The authorities establish that the Court is not to compare the provisions in a negotiated agreement with what a court may have ordered in 1999 in the absence of an agreement: Reid, at para. 72. More must be shown than mere deviation from what a trial judge would have ordered before it is appropriate for a court to disregard the parties’ pre-existing agreement. To do so would undermine the parties’ autonomy to structure their post-divorce lives in a manner that reflects their own objectives and concerns: Miglin, at para. 66. The authorities are clear that the Court’s assessment of the appropriate spousal support provisions must be balanced with respect for the parties’ own assessment of a fair outcome as reflected in the agreement or the value they may have placed on reaching an agreement and not litigating: Turpin v. Clark, 2009 BCCA 530 at para. 48, referring to Stones v. Stones, 2004 BCCA 99.

[75] $2000 in monthly spousal support appears to be on the low side given the disparity in the parties’ income. However, in assessing the Agreement’s substantial compliance with the Divorce Act, it is important to recognise that the Agreement provided a review provision for the quantum of spousal support. Ms. Canning did not want to hire a lawyer due to cost concerns and chose not to avail herself of the review provision. However, that was her choice and was not a circumstance created by Mr. Canning.

[76] I am not persuaded that, in light of the review provision, $2000 per month in spousal support until Mr. Canning turned 65 represented a significant departure from the objectives of the Divorce Act.

[77] Turning to the duration of spousal support, the Agreement was executed by the parties in 1999. Their children were adults. Ms. Canning was working outside the home, albeit on a part-time basis. Mr. Canning was working at NSCU in a new position which offered the opportunity for increased compensation. The Agreement contemplated that Ms. Canning’s economic hardship arising from the breakdown of the marriage would be alleviated and that she would attain some level of self-sufficiency by the time Mr. Canning ceased to be employed or reached age 65. The absence of any complaint by Ms. Canning until 2016 fortifies my view that the spousal support Ms. Canning received adequately offset any economic hardship that she would have otherwise suffered.

[78] The general objectives of the Divorce Act include finality, certainty, and the ability for estranged spouses to determine their own affairs. It is clear from Recital H and paragraphs 30 and 31 of the Agreement that the parties placed considerable emphasis on certainty and finality in entering into the Agreement. The inclusion of a term for indefinite spousal support would have been contrary to those objectives.

[79] In all the circumstances, the terms for spousal support in the Agreement, including termination of spousal support on Mr. Canning turning 65, substantially complied with the legislative objectives and factors set out in the Divorce Act. Put another way and to the same effect, Ms. Canning has not demonstrated that there was a significant departure from the general objectives of the Act.

[80] I next address the second stage of the Miglin inquiry which is concerned with the events that occur after an agreement is executed. Even if an agreement is fair at its inception, the” vicissitudes of life” can result in the parties’ circumstances being different that that they had contemplated: Miglin, at para. 87.

[81] Stage two of the Miglin inquiry examines the range of outcomes that reasonably could have been within the contemplation of the parties when the agreement was executed. The onus is on the party seeking spousal support to show that the new or changed circumstances were a significant departure from the range of reasonable outcomes anticipated when the parties executed the agreement: Turpin at para. 58. The task of this Court is to “assess the extent to which enforcement of the Agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”. Miglin, at para. 87. It bears emphasis that this inquiry under Miglin is only triggered by “circumstances not contemplated" at the time of the agreement or as described in Reid, by "unforeseen events".

[82] I am not persuaded in the circumstances of this case that such circumstances have been established.

[83] It was clearly contemplated that Ms. Canning would never achieve a salary commensurate with that of Mr. Canning. That is discussed in the passage from Mr. Martin’s June 16, 1999 letter to Mr. MacLean cited earlier in these Reasons.

[84] As it turned out, Ms. Canning has been consistently employed since separation. Ms. Canning eventually transitioned from a $1,000 per month position at separation to a position where she earns approximately $43,000 per year with benefits and RRSP contributions from her employer. She owns a condominium and has RRSP’s valued at $181,429.00. While she claims a modest monthly shortfall, she has achieved a relative degree of self-sufficiency.

[85] Mr. Canning continued with the same employer and his income increased over the years until his retirement. This was reasonably anticipated and within the contemplation of the parties when they executed the Agreement. Mr. Canning’s income increases associated with his position as a business development director cannot fairly be characterized as an unforeseen circumstance.

[86] After the division of family assets, Mr. Canning had an asset base slightly less than that of Ms. Canning. However, the value of Mr. Canning’s assets increased substantially after separation. Mr. Canning amassed his current assets, in part, by investing his capital. He expended much of his free time renovating and improving the real estate he acquired and then selling those properties at a profit. It cannot be said that Ms. Canning contributed to that enterprise.

[87] Mr. Canning’s substantial net worth is not, in and of itself, a basis for overriding the separation agreement. The authorities establish that Ms. Canning's level of self-sufficiency is not to be measured against Mr. Canning's economic growth: Roberts v. Beresford, 2006 BCCA 67 at paras. 19-21.

[88] On the evidence as a whole, I am not persuaded that there has been any change in the condition, means, needs or circumstances of either party that was not contemplated at the time of the Agreement such that it could be fairly characterized as an unforeseen event as that term is understood in the authorities.

[89] While I recognize that there continues to be a large income disparity between the parties, I am not persuaded that, in light of the 17 years she has been in receipt of spousal support payments, Ms. Canning has established a principled basis for entitlement to the spousal support continuing after the period set out in the Agreement.

[90] Ms. Canning’s lengthy delay in bringing any claim also informs the analysis of her entitlement to a spousal support order. Ms. Canning brought her claim in June 2016, 17 years after the Agreement was executed and 12 years after the divorce. There is no limitation period in advancing a claim for spousal support pursuant to the Divorce Act. Moreover, the equitable defence of laches has no application: Biggs v. Biggs, 2016 BCSC 1731 at para. 86. However, the Court of Appeal in K. (H.J.) v. B. (J.E.), [1997] 44 B.C.L.R. (3d) 77 at para. 17 observed that “it may be that evidence of an unexplained delay in the bringing of an application for support would be relevant for consideration under s. 15.2(4)”.

[91] A claim for spousal support will not necessarily be dismissed because of delay, unless the delay is unreasonable. The court will consider any explanation for the delay and examine what has transpired during the delay: Carreiro v. Carreiro, 2015 BCSC 714 at para. 205; Kripotos v. Kripotos, 2004 BCSC 37 at para. 102.

[92] Ms. Canning delayed in challenging the spousal support provisions of the Agreement. Ms. Canning’s inordinate and unreasonable delay in pursuing her claim bolsters the conclusion that the Agreement has not been rendered non-compliant with the objectives of the Divorce Act because of an uncontemplated event.

[93] Ms. Canning was content to rely on the provisions of the Agreement for 17 years. Following its execution, Ms. Canning never expressed to Mr. Canning any concerns or dissatisfaction with the Agreement. Mr. Canning has relied on the Agreement in planning for his retirement and in ordering his affairs. Although he retired from Blue Shore Credit Union on December 31, 2014, he continued to work as a self-employed broker. Thus, while he could not rely on the employment provision of the Agreement to terminate his spousal support obligations, he had every reason to believe that his obligation to pay spousal support would terminate when he reached age 65 in February 2016.

[94] Upon a balanced consideration of the overall objectives of the Divorce Act, including certainty, finality and autonomy, and, in light of Ms. Canning’s delay in challenging the spousal support provisions, I conclude that the Agreement which was fairly negotiated is entitled to considerable weight. Ms. Canning has not demonstrated that the Agreement failed to substantially comply with the objectives of the Divorce Act at the time it was executed, nor has she demonstrated that any uncontemplated events rendered the Agreement non-compliant with the Divorce Act. All things considered, the Agreement should continue to govern the parties’ post-divorce obligations to each other.

CONCLUSION

[95] Ms. Canning has not established that she is entitled to an order for spousal support. If counsel cannot agree on whether Mr. Canning owes another month of spousal support to Ms. Canning under the terms of the Agreement, they have leave to apply.

[96] Ms. Canning's claim for spousal support is dismissed.

COSTS

[97] Finally, there is the matter of costs. If the parties are unable to agree, they have leave to address the issue of costs following the release of these Reasons. The parties should estimate the length of time required to address the issue of costs and contact Supreme Court Scheduling to schedule a hearing.

“The Honourable Madam Justice Dardi”