Many people look to separation agreements as a means to resolve their family law conflict. Separation agreements can be cost effective and allow disputes to be resolved in a timely manner. However, the recent Court of Appeal for British Columbia decision in S.E. v. J.E.,  2013 BCCA 540 has demonstrated that separation agreements may be subject to attack in certain circumstances.

In S.E. v. J.E., the parties entered into a separation agreement whereby the wife received a lump sum property/support settlement. She later challenged the agreement in court, arguing that the spousal support provision was not in substantial compliance with the objectives of the Divorce Act, R.S.C. 1985, c. 3 as per Miglin v. Miglin. The Court of Appeal for British Columbia determined that the trial judge had erred in finding that the separation agreement was in substantial compliance with the objectives of the Divorce Act. The Court of Appeal set aside the decision of the trial judge and remitted the matter to the Supreme Court of Canada for a new hearing.

This case demonstrates that separation agreements which provide a clear financial advantage to one party at a disadvantage to the other party, may be subject to an attack. A deal that is too good to be true may ultimately be challenged. The agreement must be negotiated to reflect the objectives of the Divorce Act.