1. What Does It Mean to Waive Spousal Support?

2. Why Would Someone Waive Spousal Support?

3. Is a Spousal Support Waiver Automatically Enforceable?

4. Why Is Independent Legal Advice Important?

5. Why Is Financial Disclosure Important?

6. Can a Waiver Be Challenged Because It Was Unfair?

7. What Is the Miglin Test?

8. Does the SSAG Override a Spousal Support Waiver?

9. Can Spousal Support Be Waived in Exchange for More Property?

10. What About a Lump-Sum Spousal Support Settlement?

11. Can You Waive Spousal Support Before Separation?

12. Should You Agree to a Spousal Support Waiver?

13. How Bridgestone Law Can Help

14. Conclusion

Introduction

When spouses separate, they may decide that neither person wants to pay or receive spousal support. In other cases, one spouse may agree to give up a potential claim for support as part of an overall financial settlement.

This raises an important question: Can spousal support be waived in Alberta?

Generally, spouses can enter into an agreement in which one or both spouses waive claims for spousal support. However, a waiver should not be treated as a casual promise that someone will "never ask for support."

A spousal support waiver can have significant long-term financial consequences. The circumstances surrounding the agreement, the financial information available when it was signed, whether each spouse understood their rights, and the fairness of the agreement can all become important if the waiver is challenged later.

For married spouses proceeding under the Divorce Act, a court determining spousal support considers the spouses' condition, means, needs and other circumstances, including any agreement or arrangement relating to support. The Act also identifies objectives of spousal support, including recognizing economic advantages and disadvantages arising from the marriage or its breakdown and relieving economic hardship.

A properly negotiated waiver can provide significant certainty. However, whether a waiver will ultimately prevent a future claim depends on the circumstances.

What Does It Mean to Waive Spousal Support?

A spousal support waiver generally means that a spouse agrees not to pursue spousal support from the other spouse.

The waiver is often contained in a Separation Agreement, although support provisions may also appear in other domestic agreements.

For example, an agreement might provide that each spouse is financially independent and releases the other from present and future claims for spousal support.

This is different from an agreement where support is simply not being paid right now.

Suppose spouses separate and informally agree that neither will pay support. Five years later, one spouse brings a claim.

The absence of support payments does not necessarily mean that the spouse legally waived their entitlement.

A carefully drafted waiver is intended to provide much greater certainty by expressly addressing the parties' rights and future claims.

Why Would Someone Waive Spousal Support?

There are many reasons spouses may agree that support will not be payable.

For example, both spouses may have similar incomes and earning capacities and determine that neither requires support.

In another case, a spouse may have a potential support claim but prefer a different financial arrangement as part of the overall settlement.

The spouses may also want financial independence and certainty following separation.

Consider a couple who separate after eight years. Both have successful careers, similar incomes and substantial personal assets. Neither sacrificed their career to care for children or advance the other's employment.

After receiving legal advice, they may conclude that a mutual waiver of spousal support appropriately reflects their circumstances.

Compare that with a 25-year marriage where one spouse spent most of the relationship outside the workforce raising children while the other developed a high-income career.

A permanent waiver in the second situation may carry substantially greater consequences.

Is a Spousal Support Waiver Automatically Enforceable?

Not necessarily.

Courts generally place significant importance on agreements reached by separating spouses, particularly where the agreement was negotiated fairly and the parties understood its consequences.

However, an agreement is not necessarily immune from scrutiny simply because it contains a clause saying that spousal support has been permanently waived.

Justice Canada's guidance on the Spousal Support Advisory Guidelines (SSAG) explains that a final agreement waiving or limiting spousal support generally prevents the SSAG from simply being applied unless the agreement can first be set aside or overridden under the applicable legal framework.

For married spouses applying for support under the Divorce Act despite a final agreement, Canadian courts use the legal framework developed by the Supreme Court of Canada in when determining what effect should be given to the agreement.

The important point is that a waiver can be extremely significant, but simply signing one does not necessarily answer every possible future question.

Why Is Independent Legal Advice Important?

Independent legal advice can be particularly important when someone is being asked to permanently waive spousal support.

Before signing, each spouse should understand:

• whether they may currently have an entitlement to support;

• approximately how much support might otherwise be payable;

• how long support could potentially continue;

• what rights they are giving up;

• the financial consequences of the waiver; and

• whether the agreement allows support to be reconsidered later.

Independent legal advice also helps demonstrate that the spouse understood the nature and consequences of the agreement when it was signed.

A spouse should not assume that because they do not need support today, they will never have had a valid support claim.

For example, someone may underestimate the long-term economic effect of having spent many years outside the workforce during the marriage.

Understanding the potential claim before waiving it allows the spouse to make a more informed decision.

Why Is Financial Disclosure Important?

Meaningful financial disclosure is another important part of negotiating a spousal support waiver.

A spouse cannot properly assess whether giving up support is reasonable if they do not have an accurate understanding of the other spouse's financial circumstances.

Disclosure may include information relating to:

• employment income;

• bonuses and other compensation;

• business or self-employment income;

• investments;

• pensions;

• tax returns and Notices of Assessment; and

• other relevant sources of income.

Consider a spouse who agrees to waive support believing that the other spouse earns approximately $90,000 annually.

After the agreement is signed, they discover that the other spouse had substantial additional corporate income and was actually benefiting from significantly greater financial resources.

The circumstances surrounding that waiver may become important if the agreement is later challenged.

Full and accurate disclosure helps both spouses understand the financial bargain they are making.

Can a Waiver Be Challenged Because It Was Unfair?

Potentially, but an agreement is not automatically disregarded simply because one spouse later regrets the outcome or believes they could have negotiated a better arrangement.

The circumstances surrounding the negotiation and execution of the agreement are important.

Justice Canada's SSAG guidance identifies legal doctrines such as duress, unconscionability and undue influence as part of the existing legal framework through which final support agreements may potentially be challenged.

For example, concerns may arise where one spouse was pressured into signing immediately, significant financial information was withheld, or there was a serious imbalance in the negotiating process.

The court may also consider whether the agreement substantially complied with the objectives of the Divorce Act when it was made and, in the appropriate legal context, whether later circumstances have developed in a way that puts the agreement at odds with those objectives.

This does not mean every unequal agreement will be overturned.

Separating spouses are permitted to make compromises. The existence of a better financial outcome does not, by itself, invalidate an agreement.

What Is the Miglin Test?

For married spouses, Miglin v. Miglin is an important Supreme Court of Canada decision dealing with the weight courts should give to a prior spousal support agreement when a spouse later applies for support under the Divorce Act.

In simplified terms, the analysis considers both the circumstances in which the agreement was negotiated and the substance of the agreement.

The court may consider whether there were circumstances such as vulnerability or oppression affecting the negotiation process and whether the agreement substantially complied with the objectives of the Divorce Act at the time it was made.

If the agreement passes that stage, the court then considers the parties' circumstances at the time of the later application and whether developments have occurred that justify departing from the agreement.

The analysis is fact-specific.

For this reason, a spouse should not assume either that:

"A waiver can never be challenged,"

or that:

"A court can simply ignore a waiver whenever circumstances change."

Neither statement accurately reflects the law.

Does the SSAG Override a Spousal Support Waiver?

No.

The Spousal Support Advisory Guidelines do not themselves give a court authority to reopen or invalidate an existing final agreement.

Justice Canada's Revised User's Guide specifically explains that a final agreement waiving spousal support generally precludes simply applying the SSAG unless the agreement can first be set aside or overridden under the existing legal framework.

This distinction is important.

Suppose spouses sign a Separation Agreement containing a final support waiver. Several years later, one spouse runs an SSAG calculation showing that support would be payable based on their current incomes.

That calculation alone does not invalidate the agreement.

The legal effect of the existing waiver must first be considered.

Can Spousal Support Be Waived in Exchange for More Property?

Spousal support and property division are legally distinct issues, but spouses sometimes negotiate their overall financial settlement together.

For example, a spouse may accept a particular property arrangement as part of a broader settlement in which spousal support is waived.

However, this type of negotiation should be approached carefully.

A spouse should understand the potential amount and duration of the support claim before deciding whether another financial benefit appropriately compensates for giving it up.

Tax consequences can also differ depending on how a settlement is structured.

The agreement should clearly document the parties' intentions rather than leaving uncertainty about whether a particular property transfer was intended to resolve a support claim.

What About a Lump-Sum Spousal Support Settlement?

Instead of permanently waiving support without payment, spouses may sometimes resolve a support claim through a lump-sum payment.

For example, rather than paying monthly support for several years, the parties may negotiate a single payment intended to resolve the support obligation.

This can provide finality and reduce the need for ongoing financial interaction between former spouses.

However, calculating an appropriate lump sum is not necessarily as simple as multiplying a monthly support amount by the expected number of months.

Duration, future income changes, contingencies and tax consequences may all require consideration.

Justice Canada's SSAG guidance treats final agreements involving waivers, time limits and lump sums as agreements that can prevent straightforward future application of the Guidelines unless the applicable legal requirements for overriding the agreement are met.

Example: Waiver Following a Shorter Relationship

Consider Andrew and Melissa, who separate after seven years.

Both are 38 years old, remained employed throughout the relationship and earn approximately $100,000 annually. They have no children.

After exchanging financial disclosure and obtaining independent legal advice, they decide that neither will pursue spousal support.

Their Separation Agreement contains a mutual and final waiver.

The fact that both spouses had comparable incomes, maintained their careers and obtained advice may provide important context supporting their decision.

Example: Waiver Following a Long Marriage

Now consider Robert and Lisa, who separate after 26 years.

Robert earns $240,000 annually. Lisa earns $35,000 after spending many years working part-time while raising their children and managing the household.

Lisa is asked to permanently waive spousal support.

This decision could have substantial long-term consequences.

Before signing, Lisa should understand the potential compensatory basis for support, the possible SSAG amount and duration ranges, her future earning capacity and the financial effect of giving up the claim.

If there has not been meaningful disclosure or independent legal advice, or if the waiver does not adequately reflect the circumstances surrounding a lengthy economically interdependent marriage, the enforceability of the agreement could become a significant issue if Lisa later seeks support.

Can You Waive Spousal Support Before Separation?

Spousal support may also be addressed in agreements entered into before separation, including marriage or cohabitation agreements.

However, circumstances can change substantially between the date an agreement is signed and the eventual breakdown of the relationship.

A couple might sign an agreement early in their relationship when both have similar careers and no children.

Fifteen years later, one spouse may have spent a decade outside the workforce raising children while the other's income increased significantly.

Whether an earlier waiver will ultimately determine the spouses' rights can require careful legal analysis based on the agreement, the circumstances surrounding its execution and the circumstances that exist when the relationship ends.

Should You Agree to a Spousal Support Waiver?

A waiver can be appropriate in some cases, but it should be an informed decision.

Before agreeing to waive spousal support, it is important to understand:

• whether you have a potential entitlement;

• the approximate SSAG range;

• how long support might otherwise last;

• the economic consequences of the relationship;

• your future earning capacity;

• the financial disclosure provided;

• what you are receiving under the overall settlement; and

• whether the waiver is intended to be final.

The goal should not simply be to sign an agreement quickly.

The goal should be to understand what rights are being surrendered and the potential consequences of that decision.

How Bridgestone Law Can Help

A spousal support waiver can provide valuable certainty, but it can also involve giving up a significant financial right.

At Bridgestone Law, our Calgary family lawyers can help you determine whether you may have an entitlement to spousal support, review the Spousal Support Advisory Guidelines, assess the potential amount and duration of support, and explain the consequences of a proposed waiver.

We can also review or prepare Separation Agreements, assist with financial disclosure, provide independent legal advice, and advise clients where an existing spousal support waiver is being challenged.

Careful legal advice at the time an agreement is negotiated can help reduce uncertainty and future disputes.

Conclusion

Spousal support can be waived in Alberta, but a waiver should be approached carefully.

A properly negotiated Separation Agreement may provide that one or both spouses give up their right to claim support. Courts generally give significant weight to agreements reached by informed parties, but a waiver is not necessarily beyond challenge in every circumstance.

Financial disclosure, independent legal advice, the fairness of the negotiation process, the objectives of spousal support law and the circumstances of the spouses can all become important.

Most importantly, the Spousal Support Advisory Guidelines do not automatically override a final waiver simply because an SSAG calculation would produce support. The legal effect of the existing agreement must first be considered.

Before permanently giving up a potential spousal support claim, obtaining legal advice can help ensure that you understand what you may be entitled to and what you are agreeing to surrender.

Bridgestone Law assists clients in Calgary and throughout Alberta with spousal support, Separation Agreements, independent legal advice and other family law matters.