Alberta Court Overturns a DIY Text Message Separation Agreement

In the recent Alberta Court of King’s Bench decision, Christenson v. Kelly, the Court addressed a complex family law matter involving a dispute over partner support and the validity of a separation agreement. This case offers valuable insights for anyone facing separation or divorce, particularly regarding the enforceability of agreements and the determination of appropriate support.

A 27-Year Relationship and Its Breakdown

The applicant and respondent were in a 27-year adult interdependent partner (AIP) relationship, akin to a common-law marriage, from 1991 to May 2017. They had two children together. During their relationship, the respondent was the primary financial provider, working in the oil and gas industry, often internationally. The applicant primarily focused on childcare and homemaking.

The applicant had graduated from a legal assistant program and worked part-time before their children were born. She took time off to care for their children, returning to part-time work in 2003 and eventually full-time employment in 2015.

Parties Entered Informal Support Agreements via Text Messages

Following their separation, the parties initially agreed, without legal advice, that the respondent would pay $2,000 per month in partner support and $1,500 per month in child support. However, in July 2019, the respondent unilaterally reduced this combined amount to $2,500 per month, leading to tension.

In December 2019, the parties entered into a written agreement through a series of text messages. The respondent agreed to pay the applicant a lump sum of $31,000 as a full and final settlement of his partner support obligations and $2,000 per month in child support. Neither party obtained independent legal advice before signing.

Applicant Challenged the Enforceability of Text Message Agreement

In 2022, the applicant applied for retroactive and ongoing partner support, arguing that the agreement reached via text messages was inequitable. She claimed she felt pressured to accept the respondent’s terms and that the agreement did not reflect the appropriate amount of support. The respondent argued the agreement was valid and binding.

The key issues before the Court of King’s Bench were:

1. The validity and enforceability of the agreement: Was the Agreement a full and final settlement of partner support obligations?
2. Appropriate partner support: If the agreement was invalid, what was the proper amount and duration of partner support?

Court Rules Agreement Is Invalid

The Court determined the agreement reached by the parties through their text messages was not valid or enforceable. The Court’s decision rested on section 62(3) of Alberta’s Family Law Act, which allows the Court to deviate from a support agreement if it is inequitable and one of several specified circumstances exists, such as a lack of independent legal advice.

The Meaning of “Inequitable”

The Court undertook a detailed analysis of the term “inequitable,” as used in section 62(3) of the Family Law Act. It concluded that “inequitable” should be interpreted broadly, encompassing both the circumstances surrounding the agreement’s formation and its substance.

Circumstances and Substance of the Agreement’s Formation

The Court found the circumstances surrounding the agreement’s formation were inequitable. The respondent placed time pressure on the applicant to accept his terms, threatening to provide no further support if she did not agree. The applicant felt she had no realistic choice but to accept the agreement, given the respondent’s international residence and his history of unilaterally reducing support payments.

The Court also found the substance of the agreement was inequitable. The lump sum payment of $31,000, combined with the initial monthly payments, amounted to only 15.5 months of support, significantly less than what the applicant would have been entitled to under the Spousal Support Advisory Guidelines, given the 27-year length of their relationship.

Determining Appropriate Partner Support: Applying the Guidelines

Having found the agreement invalid and unenforceable, the Court determined the appropriate amount and duration of partner support. It relied heavily on the Spousal Support Advisory Guidelines, a crucial tool for determining equitable support amounts. While not strictly binding on the Court, the Guidelines provide a structured approach to calculating support, ensuring the financial outcomes of separation are just and reflective of the parties’ circumstances.

Entitlement to Partner Support

The Court validated the applicant’s entitlement to partner support, a point of agreement between both parties. This affirmation was built upon the extended duration of their relationship and the substantial contributions the applicant made as the primary caregiver and homemaker. The Court recognized the potential long-term effects of her role on her career prospects, justifying her right to compensatory and non-compensatory support. This decision was designed to ensure that the support accurately reflected the economic partnership they shared and the economic imbalances that resulted from its dissolution.

13 Years of Partner Support Ordered

Given their extensive 27-year relationship, the Court concluded that a 13-year period of partner support was appropriate. This duration was chosen to allow the applicant sufficient time to adjust to her new financial reality post-separation while acknowledging and encouraging her demonstrated efforts towards achieving financial independence.

The Court aimed to balance recognizing the economic disparities resulting from the relationship’s end with encouraging the applicant’s ability to establish a self-sufficient future.

Quantifying Partner Support Using the Guidelines

The Court calculated partner support using the Spousal Support Advisory Guidelines. The “with child” formula was applied until April 2025, when their youngest child was expected to complete her education, and the “without child” formula thereafter. The Court directed that the mid-range of the Guidelines be used, adjusted annually based on the parties’ incomes.

Retroactive Partner Support & Addressing Past Obligations

The Court addressed the applicant’s claim for retroactive partner support, applying the factors established in the Supreme Court of Canada’s decision in DBS v. SRG to evaluate the legitimacy of her request. These factors include the reasons for any delay in seeking support, the behaviour of the paying party, the recipient’s personal circumstances, and the potential hardship that a retroactive award could impose on the payor.

The Court concluded that the applicant’s delay was justified, considering the respondent’s history of altering support arrangements and her reasonable reliance on his assurances. Consequently, the Court deemed retroactive support appropriate to correct the financial disparities that arose post-separation, spanning back to June 2017. This decision aimed to ensure the applicant received the support she was entitled to throughout the period, not just from the date of her application, thereby rectifying the financial imbalance created by the separation.

Accounting for Support Already Paid

The Court acknowledged the amounts the respondent had already paid as partner support, including the lump sum payment under the agreement and the initial monthly payments. The Court determined that $105,000 had been paid, which would be set off against the retroactive support owing.

Key Takeaways for Separated Partners in Alberta

The Court’s legal analysis in Christenson includes several lessons for separated partners and their support obligations.

Importance of Independent Legal Advice

This case underscores the critical role of independent legal advice before entering any separation agreement. Agreements made without legal advice are more likely to be challenged and overturned by the Court. This is because legal counsel provides a critical layer of protection, ensuring that all parties fully understand their rights, obligations, and the potential long-term financial and legal implications of their decisions. Without such guidance, individuals may unknowingly agree to fundamentally unfair or legally unsound terms, leaving them vulnerable to future disputes and costly litigation.

Enforceability of Agreements

While parties are free to negotiate and create their own separation agreements, it is crucial to recognize that these agreements are not beyond the reach of judicial review. Courts possess the inherent authority to scrutinize agreements and, if deemed inequitable, to set them aside. The Court’s ability to intervene underscores the importance of ensuring that all agreements are fair, reasonable, and reflect the parties’ true intentions.

Role of the Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines are pivotal in determining appropriate partner support. Courts rely on these guidelines as a valuable tool to ensure that support orders are fair, predictable, and consistent. Understanding these guidelines empowers parties and their lawyers to negotiate robust, defensible support agreements.

Factors Considered by the Court in Support Disputes

When determining partner support, courts undertake a thorough and comprehensive evaluation considering various factors. These include, but are not limited to, the duration of the relationship, the respective roles played by each party, their current and future financial circumstances, and their demonstrated efforts toward achieving self-sufficiency. This multifaceted approach ensures that support orders are tailored to the unique circumstances of each case, promoting fairness and addressing the parties’ specific needs.

Retroactive Partner Support

Retroactive support can be a valuable tool for rectifying financial imbalances that arise between separation and the court’s final order. However, it is essential to understand that delays in applying retroactive support can have significant consequences. Courts carefully consider the reasons for any delays, and prolonged inaction may negatively impact the amount and duration of any retroactive support awarded.

Contact DBB Law for Solid Family Law Solutions After a Partner Separation

The dynamic family and divorce lawyers at DBB Law provide comprehensive advice to adult interdependent partners and married spouses navigating separation and divorce. Our firm is respected across Alberta for delivering exceptional family law services at every stage of the legal process, offering innovative, tailored solutions. We are committed to safeguarding our clients’ best interests and strive to minimize conflict wherever possible.

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