D.S.S. v. N.M.G. 2012 PECA 14
Family Law - Separation agreements, domestic contracts and marriage contracts - Enforcement - Conditions precedent
The parties entered into a separation agreement under which the husband relinquished his right to have the wife’s much more lucrative pension funds divided in return for the husband paying a reduced amount of child support ($500 per month rather than the $1,039 per month prescribed by the Federal Child Support Guidelines for the husband’s income). The agreement also provided in clause 50 that, if the wife applied for additional child support, she was to be responsible for all of the husband’s legal costs and such an application would result in the equalization of the pensions. The wife applied for additional child support. She was ordered to pay the husband’s costs to date and to provide security for costs (see  Nfld. & P.E.I.R. Uned. 70). The wife sought a divorce with corollary relief to be granted at a later date and to have significant portions of the agreement set aside. The husband sought an order for the division of the wife’s pension, for costs and for security for costs.
The Prince Edward Island Supreme Court, in a decision reported at (2012), 321 Nfld. & P.E.I.R. 233; 996 A.P.R. 223, held that clause 50 of the separation agreement was enforceable. The court determined the pension equalization and granted orders relating to costs and security for costs. The wife appealed.
The Prince Edward Island Court of Appeal allowed the appeal, setting aside the orders relating to costs and security for costs below.
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