Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.
Hi, here’s what you need to know about the Supreme Court of Canada this week in 4 minutes.
- The SCC is releasing Anderson v. Anderson on Friday, May 12, 2023. At issue is the analysis to be applied to non-binding separation agreements.
- On April 28, 2023, the SCC released its decision in R. v. Haevischer, 2023 SCC 11 (previously referred to as R. v. Johnston). The Court unanimously dismissed the appeal, holding that an application in a criminal proceeding, like a stay of proceedings for abuse of process, should only be summarily dismissed if it’s manifestly frivolous.
Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.
Non-Binding Separation Agreements
Appeal from Anderson v Anderson, 2021 SKCA 117
View the SCC webcast & read the factums
What Happened?
At trial: The parties were married for three years. Both parties came into the marriage with considerable assets, including houses, vehicles, items of personal property, RRSPs, savings and pensions. Shortly after the parties separated, the respondent invited the applicant to a reconciliation meeting with mutual friends. At the end of the meeting, the respondent presented the appellant with a separation agreement she had drawn up. Neither party received independent legal advice, but they both signed the agreement. The agreement did not deal with all the family property issues as the family home was not specifically dealt with in a final way. Shortly thereafter, the respondent’s counsel drafted a formal separation agreement, but the appellant refused to sign it or engage in any discussion with the respondent. The respondent issued a petition seeking a divorce and costs in December 2015, and the applicant issued a counter petition in May 2017 claiming for the first time a family property division as well as occupational rent.
The trial judge found that the signed separation agreement was not binding and gave it nominal weight. This turned out to greatly disadvantage the respondent.
At the Court of Appeal: The Court of Appeal found that the trial judge had erred in his interpretation of the separation agreement and therefore it could re-weigh the agreement. It gave the agreement significant weight. It proceeded to set aside the trial judgment and directed that the appellant pay the respondent to equalize the distribution of their family property.
What Was Argued at the SCC?
The appellant argued that since the separation agreement was non-binding, it became a discretionary determination for the trial judge as to how much weight to give to it. The Court of Appeal should have been much more deferential.
The respondent argued that the Court of Appeal properly applied the Miglin framework to a non-binding agreement. This has the effect of increasing rather than decreasing protections afforded to separating spouses.
What Else Should You Know Before Making a Prediction?
This case turns on the interpretation of the particular provincial family law legislation at issue. I’m leaning towards appeal dismissed, with the SCC providing some clarification on trial judges working with non-binding agreements.
Last Week at the SCC
On April 28, 2023, the SCC released its decision in R. v. Haevischer, 2023 SCC 11 (previously referred to as R. v. Johnston). The Court unanimously dismissed the appeal.
Held: An application in a criminal proceeding, like a stay of proceedings for abuse of process, should only be summarily dismissed if it’s manifestly frivolous.
Key Points:
- Manifestly frivolous is a rigorous standard that allows trial judges to weed out the sort of applications that the summary dismissal power is designed to exclude but permits most applications to be decided on their merits in proportionate proceedings.
- The underlying values of trial fairness and trial efficiency mandate the conclusion that a rigorous threshold should be applied to summary dismissal motions in criminal trials.
- In the case at bar, the judge erred by failing to take the alleged facts and inferences as true, applying a more merits-based threshold for summary dismissal, which was not sufficiently rigorous, and by focussing on the merits and on the ultimate outcome rather than on whether the applications were manifestly frivolous.
- 84% correctly predicted the result.
-Tom Slade
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