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Kennedy v Bowden 2017 ONSC 3977


Prior to marriage, the parties agreed, on the insistence of the husband, the couple would enter into a Marriage Contract. Each party retained experienced family counsel. After several months of negotiations, and several drafts of the Agreement, the parties’ entered into the final Marriage Contract. The final version of the Marriage Contract provided that the parties’ property would remain separate and in the event of separation, the husband would pay the wife time-limited spousal support which depended on the number of years the parties were married. Under the Marriage Contract, the husband was obliged to pay a month of spousal support for each month the parties were married. The parties separated after nine (9) years of marriage. As such, the husband was required to pay the wife spousal support for 112 months.

The wife moved to set aside the Marriage Contract on the basis that it was signed under duress, that there was inadequate financial disclosure, and that the wife did not understand the negotiation process. The wife brought a motion for interim spousal support.


A marriage contract is not a bar for requesting interim spousal support. However, Justice Horkins explained that in determining whether a court should uphold an agreement that limits or waives a spouse’s support rights, the moving party, must show that there is a serious issue to be tried.  Justice Horkins cited Miglin v Miglin, 2003 SCC 24, holding that the there is a two-stage test for determining if there is a serious issued to be tried:

STAGE 1: The Court must consider circumstances under which the agreement was negotiated and executed. That is, the Court must determine if either party negotiated or executed the agreement under duress, pressure, or other circumstances of oppression.

STAGE 2: The Court must consider whether the agreement still reflects the original intentions of the parties and if the agreement reflects an equitable sharing of the economic consequences of the marriage and its breakdown in accordance with the objectives of the Divorce Act.

The Court noted that the Miglin analysis applies to Marriage Contracts and Separation Agreements and “must be applied on a motion for interim spousal support where there are contractual limitations to a party’s support rights”.

In the case at hand, the wife was unable to overcome stage 1 of the Miglin test.  Specifically, Justice Horkins did not find that there was a serious issue to be tried concerning the circumstances in which the Marriage Contract was negotiated and executed. That is to say, the Contract was negotiated over several months, the negotiations benefited the wife, and the husband made the necessary disclosure revealing the extent of his wealth.

The Court goes on to add, that in the event that the wife was able to overcome stage 1 of the Miglin test, she would be unsuccessful in establishing stage 2 of the test as the Marriage Contract continued to reflect the original intentions of the parties and the Contract remained in compliance with the objectives of the Divorce Act.

As such, Justice Horkins deferred to the wishes of the parties and afforded the Marriage Contract Great weight.