What is the effect of the parties’ agreement on the division of net family property pursuant to the terms of the agreement?

[21] For the purpose of the analysis in Boston v. Boston, supra, I do not find that the parties’ separation agreement should be interpreted so as to impute an implied condition that the applicant’s valuation is based upon any undertaking by the respondent to retire at age 65 and no sooner. I therefore find that there has been an equal division of all the parties’ net family property pursuant to the terms of the parties’ separation agreement made, based on full disclosure received and each party having had the benefit of independent legal advice. There may be many reasons why the applicant agreed to accept certain valuations. It is not this court’s role to look behind the agreement that the parties’ made. Therefore, this court must distinguish between an inequitable agreement resulting from lack of disclosure or material misrepresentations that could be re-opened and an agreement that was properly negotiated based on full disclosure and that remains fully binding on the parties. However, even though I find that the separation agreement of 22 October 2003 remains fully binding upon the parties, such does not prevent this court from taking into consideration any inequities arising from a material change of circumstances since the making of the agreement, such as the respondent’s taking early retirement.

[22] Counsel for the applicant submits that this is not a case of double-dipping since this case should be distinguished from Boston v. Boston, supra, based on the reasons set out in paragraph [22] of that judgment. In Boston v. Boston, the court found that the husband earned some pension credits after separation, resulting in a higher pension value and that these credits had not been equalized. The trial judge considered that this unequalized portion of the pension was a factor in determining the amount of continuing support to be paid. In the case before me, the inequality does not arise from pension credits earned since the separation on 22 January 2003 (although obviously pension credits were earned by the applicant between 22 January 2003 and the last day of February 2009, when he retired). In this case, the alleged inequality arose from the fact that the applicant agreed to and did settle her net family property claim based upon a valuation calculated upon the presumption that the respondent would retire at age 65, when he has now retired at age 55. Counsel therefore submits that this case must be distinguished from the situation in Boston v. Boston, supra, on the grounds that here we are not arguing inequality based on post-separation pension credits.