Date of Award
Master of Laws (LLM)
Shelley Margot Kierstead
This work applies the lens of relational theory to five Ontario Superior Court of Justice cases where a party previously executed a spousal support agreement, but subsequently sought to have it set aside pursuant to section 56(4) of the Family Law Act. While the outcomes in the five cases differed as to whether section 56(4) of the Family Law Act was successfully engaged and, if so, whether the judge in turn exercised his discretion to set aside the agreement, it is argued that the cases are united by a common theme that is resonant with relational theory. The distinct relational feature of the five cases is the judges understanding of autonomy through the context-specific estimation of the wives capacity for informed consent and reflection. Chapter 1 will provide an overview of spousal support, domestic contracts and contractual autonomy in Canada. While the focus of this thesis is contractual support, the introductory section will briefly outline how entitlement to spousal support may be established on three conceptual bases. Chapter 2 will provide an overview of relational theory and review the limited scholarly literature that exists in analyzing spousal support agreements through the lens of relational theory. In this way, Chapters 1 and 2 will situate the reader and provide the necessary background to the legal analysis, commentary, reflections and critique found in Chapter 3. Chapter 3 will argue that assessing domestic contracts through a relational lens helps to explain the judicial reasoning as to why agreements were upheld or set aside while also highlighting some of the deficits in the court process and analysis. It will also highlight the lessons learned and the important implications for family law practitioners and scholars going forward.
Kun, Sara, "To Set Aside or To Not Set Aside the Agreement Pursuant to Section 56(4) of the Family Law Act: Applying Relational Theory to Domestic Contracts Involving Spousal Support Releases and Waivers" (2021). LLM Theses. 52.