Changing Family Law Agreements

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After a family law agreementAn agreement between two or more persons about family law issues that have arisen or made arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements and separation agreements. has been signed, one of three things can happen:

  1. The parties can follow the agreement and everything continues as it should.
  2. The circumstances of the parties or a child change and their agreement must also change.
  3. One of the parties refuses to follow the agreement and it must be enforced by the courts.

This section focuses on separation agreements and talks about how agreements can be changed without going to court, and when the agreements can be set aside by the court.

You can find out how family law agreements are enforced in the Enforcing Family Law Agreements section of this chapter.

Changing agreements by agreement

There are always two ways of doing something: the hard way or the easy way. In family law, the easy way usually involves discussion and negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.". The hard way usually involves a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order., and is generally a fair bit more expensive and time-consuming than the easy way.

Any family law agreement can be changed at any time, as long as the parties to the agreement agree to the change. If the parties can't agree on the change or on the terms of the change, the partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." who wants the change may have to go to court if the problem is important enough. Since the court doesn't have the power to vary an agreement, the best the court can do is to cancel the part of the agreement that has to change and then make an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." in place of the part that was cancelled.

Amending an agreement

A family law agreement can be changed by a later agreement. If the parties to an agreement both agree that the original agreement should be changed and on how it should be changed, the parties can sign a second agreement called an amendment agreement, an amending agreement or an addendum agreement to the original agreement.

An agreement changing an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement made on 1 April 2010." Amending agreements are usually very short, as the idea is to change just one particular part of an agreement rather than to rewrite the entire original agreement. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:

2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:
Sally will also have parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." with the children beginning on Tuesdays at 4:00pm or the end of school to the following Wednesday at 9:00am or the start of school, whichever is earlier.
3. Sally's income is $45,000 per year as at the date on which this Amending Agreement is made. The parties agree that Sally's child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses. obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty.", set out at Paragraph 28 of the Agreement made on 1 April 2010, will be $684 per month, commencing on the first day of the month following the month in which this Amending Agreement is made.

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witnessA person with direct, personal knowledge of facts and events; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence.", who watches each party sign the agreement and then signs the agreement him- or herself.

Amending an agreement through negotiation

A well-written agreement will usually provide a way for the parties to resolve disputes arising from the agreement. Sometimes this mechanism requires that the parties go to court; sometimes this mechanism prescribes some other means of dispute resolutionThe processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. like mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator." or arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator.".

Mediation is, in general, the best option if simple negotiation doesn't get you anywhere. In mediation, the parties attempt to negotiate a resolution to their dispute with the help of a neutral third party, the mediator, who is skilled in family law issues and works with the parties to get them to a new agreement.

Mediation is not always appropriate, particularly where the problem is limited to one particular term of the agreement and it seems that neither party is willing to bend on the matter. In such cases, arbitration on that one issue should be considered. The job of an arbitrator is to listen to the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." and the arguments and then make a decision, called an awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator.", that resolves the dispute and is bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." on the parties. It is always faster to arbitrate than to litigate, and when both parties have lawyers it's usually cheaper to arbitrate as well.

Whatever method is chosen, it's almost always better for people to reach a resolution of the problem themselves without having to go to court. This way the power remains in the hands of the people whose lives are affected by the agreement and who must live with it on a daily basis, rather than in the hands of someone else, a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal., who doesn't know the people involved and may make a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." that no one is entirely happy with.

See the chapter Resolving Family Law Problems out of Court for more information on Family Law Mediation and Family Law Arbitration.

Intervention by the courts

If a party to an agreement becomes unhappy with an agreement, there are two ways to proceed. First, the party could ask the court to throw out the entire agreement because it is unfair, because the agreement is invalid, or because of some other fatal problem with the contractAn agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.. Second, the party could apply under the Family Law Act to have the court set aside just part of the agreement.

In general, the court will be reluctant to meddle with a reasonable separation agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements.". In fact, the Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal." for British Columbia has said that separation agreements should be treated by the courts with "great deference." This is because a separation agreement is a private contract between two parties that is the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb an agreement without a very good reason for doing so. The courts will be similarly reluctant to change a final order that was the product of a separation agreement.

Setting aside agreements under the law of contracts

Just like a commercial contract, the validity of a family law agreement can be challenged for a number of reasons based on the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec. of contracts:

  1. the agreement was not freely entered into, in other words, a party was under duressForcing someone to do something though psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or set aside that agreement. when the agreement was negotiated or executed,
  2. the agreement is unconscionable, in other words, the agreement is obviously and seriously unfair to a party,
  3. a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by mistakeIn law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not made in bad faith. In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract. See "bad faith" and "contract.",
  4. the agreement was signed without full disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. having been made, or
  5. a party signed the agreement because misleading information had been provided.

Duress, coercionThe use of force or intimidation, whether emotional or physical, to compel another person to do something; interference with another person's freedom of choice to obtain an outcome, action or behaviour., unconscionability and mistake

The courts won't enforce an agreement — that is, they won't compel the parties to abide by an agreement — where one of the parties was forced or pressured to enter into the agreement. An agreement must be entered into freely and voluntarily.

Likewise, the courts won't enforce an agreement where one of the parties used a position of power to achieve an unfair agreement. This can include threats and manipulation, as well as signing an agreement in circumstances of extreme emotional stress, such as just before a wedding, following a hospitalization, or during an emotional breakdown.

Agreements that are hugely unfair can also be found to be unconscionable, as can agreements formed under a fundamental misunderstanding about the nature of the family finances or the extent of a party's assets.

Lack of independent legal advice

A spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before entering into the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing, and to ensure that one party doesn't unintentionally enter into an unfair agreement.

There is, however, no requirement that independent legal advice be sought before an agreement is signed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself.

Fraud and the failure to make full disclosure

When people enter into an agreement, they do so on the assumption that certain materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." facts are true, that each is earning as much money as they say they are, that each has no more assets than they say they have, and so forth. These assumptions are the foundation on which the agreement is built. If one of the parties has failed to make full disclosure of these sorts of material facts, or if one party has lied about or misrepresented these facts, the courts may be willing to overturn an agreement.

Setting aside agreements under the Family Law Act

Under the provincial Family Law Act, the court cannot vary or amendTo change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "amended Notice of Family Claim" or the "amended separation agreement." a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts set aside. Section 214 of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." says this:

(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.
(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." and, unless the court orders otherwise,
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.

The legal test that the court must apply to set aside part of an agreement changes, depending on the subject of the part of the agreement in question.

Guardianship

The Family Law Act does not provide a specific test to vary an agreement appointing a parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." as the guardian of a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.". However, under s. 214(3), the court can make an order on different terms than an agreement.

Under s. 37(1), when the court is making an order about guardianship, it must do so considering only the best interests of the child. The factors the court must think about to decide what is in the best interests of a child are listed at s. 37(2) of the act, and, when family violence is a factor, also at s. 38.

Parental responsibilities, parenting time and contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."

Section 44(4) of the Family Law Act says this about agreements for parental responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting time:

On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." if satisfied that the agreement is not in the best interests of the child.

Section 58(4) says almost exactly the same about agreements for contact.

The factors the court must think about to decide what is in the best interests of a child are listed at s. 37(2) of the act, and, when family violence is an issue, also the factors listed at s. 38.

Child support

As in all matters concerning children, the court's only concern is the best interests of the child. The court will rarely interfere with an agreement that provides for child support in accordance with the federal Child Support Guidelines. The courts will also be reluctant to reduce a child support provision that is higher than what the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. require, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will be much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.

Section 148(3) of the Family Law Act says this:

On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.

Section 150 is the section that says how child support is to be calculated, namely that it is to be calculated according to the Guidelines. As a result, the court will set aside the part of an agreement dealing with child support if:

  1. the payor's income has increased,
  2. the payor's income has decreased,
  3. one or more children are no longer living mostly with the parent receiving support,
  4. one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
  5. one or more children are no longer entitled to receive support, or
  6. the agreement otherwise provides for an inadequate amount of child support.

Spousal support

Section 164 of the Family Law Act talks about when the parts of an agreement about spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. should be set aside. Under s. 163(2), an agreement about spousal support includes an agreement that spousal support won't be paid as well as an agreement that spousal support will be paid.

Section 164 provides two legal tests to help the court decide whether an agreement should be set aside. The first test requires the court to look at what happened when the agreement was being negotiated and signed:

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose income, significant propertySomething which can be owned. See "chattels" and "real property." or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

That last part, at s. 164(3)(d), is about the common law of contracts, discussed above.

Even if there are no problems with the circumstances when the agreement was being negotiated and signed, the court can still set aside the agreement if it considers the agreement to be "significantly unfair" considering five factors:

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161.

Section 161 is the section that says why spousal support should be awarded.

Property and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

Section 93 of the Family Law Act talks about when the parts of an agreement about dividing property and dividing debt should be set aside. Like s. 164 on spousal support, discussed above, s. 93 provides two legal tests to help the court decide whether an agreement should be set aside. The first test requires the court to look at what happened when the agreement was being negotiated and signed and is exactly the same as the test at s. 164(3). The second test allows the court set aside the agreement, even if there are no problems with the circumstances when the agreement was being negotiated and signed, if the agreement is "significantly unfair." However, to determine significant unfairness under s. 93(5), looks at three factors, not five:

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) the intention of the spouses, in making the agreement, to achieve certainty;
(c) the degree to which the spouses relied on the terms of the agreement.

In 2013 case from the Supreme Court of British Columbia, L.G. v. R.G., the Court said that the term "significant unfairness" is intended to create greater certainty by limiting when the Court will intervene to situations which are "unjust or unreasonable". In a 2014 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", Remmem v. Remmem, the Supreme Court of British Columbia said that in order for there to be "significant unfairness", the unfairness must be compelling or meaningful having regard to the factors set out in the legislationAn act; a statute; a written law made by a government. See "regulations.".

Setting aside agreements about property and debt under the Family Relations Act

Agreements about property and debt that were made before March 18, 2013, which is when the Family Law Act came into force, have to be changed under the Family Relations Act, which was the law in effect before the Family Law Act. If the agreement is between unmarried spouses, then only agreements made before November 24, 2011, would have to be changed under the Family Relations Act.

Section 252(2)(a) of the Family Law Act says that proceedings to enforce, set aside or replace an agreement about property division that was made before the Family Law Act came into force must be started under the Family Relations Act. Section 65 of the Family Relations Act says that an agreement that is in writing and witnessed by a third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party." or parties can be varied if it would be unfair having regard to the factors set out in that section. Section 68 of the Family Relations Act provides for the variation of agreements that are not in writing or were not witnessed.

Given the additional issues involved in changing agreements made before March 18, 2013, getting advice from a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." is highly recommended.


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