Disclosure in Interspousal Agreements

In Saskatchewan when two individuals become spouses, either by way of marriage or residing together in a common-law relationship, those individuals acquire rights and obligations with respect to family property and potentially financial support, as a result of their spousal relationship.

Should the parties choose they may contract out of these rights and obligations through the use of an Interspousal Agreement.  This is a document which allows the parties to settle family law issues outside the court process. This agreement complies with the requirements under legislation and common law. It is important to note that each party must have independent legal advice in order for an Interspousal Agreement to be legal. An Interspousal Agreement may be created before or during the spousal relationship, or after the parties have separated.

In order to ensure the Interspousal Agreement is binding and final in nature, certain steps must be taken by the parties. As indicated above, both parties must obtain independent legal advice prior to executing the Interspousal Agreement. Another important step is the disclosure of assets and income by both parties prior to the execution of the agreement.

The Supreme Court of Canada considered the issue of disclosure in the cases of Rick v. Brandsema (2009 SCC 10) and Miglin v. Miglin (2003 SCC 24) and established that spouses have an obligation to make full and honest disclosure to one another prior to executing an Interspousal Agreement made at the time of the parties separation.

In order to make an informed decision regarding the division of property and entitlement to financial support, honest and full disclosure of assets and financial information is necessary by both parties. This can include:

• information regarding income
• non-registered and registered investments
• pensions
• bank accounts
• debts
• any other relevant information

This is necessary for the spouse who may be less knowledgeable about the financial circumstances, or who may have a lower income and few assets in their possession. Failure to provide full and frank disclosure could result in the Court interfering with the agreement reached between the parties.

In order to ensure each spouse is able to make an informed decision regarding the settlement of matters related to their relationship, and avoid the Court interfering with the terms of the agreement it is critical that each spouse provides sufficient disclosure of assets and income, whether the agreement is made before or during the relationship, or after the parties’ separation.

Lawyers at McDougall Gauley LLP are able to provide advice on and assist in all aspects of the preparation and execution of Interspousal Agreements, including how to best ensure you are providing and receiving important and necessary disclosure prior to executing an Interspousal Agreement.